SUE KARR, HAROLD H. McCALL, JAMES R. WEBB AND CAROL ANN WHITE
VIRGINIA DEPARTMENT OF ENVIRONMENTAL QUALITY AND DAVID K. PAYLOR, DIRECTOR
THE CIRCUIT COURT OF THE CITY OF RICHMOND Joi Jeter Taylor,
L. Belinsky for appellants.
Matthew L. Gooch, Assistant Attorney General (Mark R.
Herring, Attorney General; John W. Daniel, II, Deputy
Attorney General; Lynne C. Rhode, Senior Assistant Attorney
General, on brief), for appellees.
Present: Judges Humphreys, O'Brien and Malveaux Argued at
J. HUMPHREYS, JUDGE
Sue Karr, Harold H. McCall, James R. Webb, and Carol Ann
White (collectively "appellants") appeal the
September 30, 2015 decision of the Circuit Court of the City
of Richmond (the "circuit court") upholding the
adoption of Permit(s) by Rule Regulation for the Construction
and Operation of Small Wind Energy Projects ("the
Regulations") by the Virginia Department of
Environmental Quality ("DEQ" or "the
Department") and approved by the Director of DEQ, David
K. Paylor ("DEQ Director Paylor"), pursuant to Code
§§ 10.1-1197.5-1197.11, Virginia Administrative
Process Act (APA) Code §§ 2.2-4026-4027, and Rule
2A:4 of the Rules of the Supreme Court of Virginia. On
cross-appeal, DEQ appeals the circuit court's May 23,
2011 decision to overrule DEQ's plea in bar.
appellants assign six errors to the circuit court's
September 30, 2015 decision. The appellants claim that it was
error for the circuit court to find: 1) that DEQ complied
with the statutory authority given to it pursuant to Code
§ 10.1-1197.6 because the Regulations do not require the
analysis of beneficial and adverse impacts of proposed wind
energy projects of wildlife; 2) that DEQ lawfully
predetermined significant adverse impacts to wildlife without
requiring the collection of site-specific information as
mandated by Code § 10.1-1197.6(B)(7); 3) that the term
"wildlife" is ambiguous and that DEQ's
interpretation of the term has special weight; 4) that DEQ
complied with its statutory authority pursuant to Code §
10.1-1197.6 because the regulation "unsettles,
disregards, alters, or violates the pre-existing system of
statutory provisions for the regulation of impact(s) to
threatened and endangered [referred to throughout the record
as "T&E"] species"; 5) that specialization or
technical assistance offered by a Regulatory Advisory Panel
("RAP") justified non-compliance with statutory
authority; and 6) that each party must bear its own costs. On
cross-appeal, DEQ contends that this appeal was not timely
filed consistent with the requirements of Rule 2A:2(a) of the
Rules of the Supreme Court of Virginia because the law in
effect at the time was that a regulation is finally adopted
for the purposes of appeal at the time the Director of DEQ
signed the Regulations and not at the time the Regulations
were published in the Register of Regulations.
2009, the General Assembly enacted Code §§
10.1-1197.5 through -1197.11 granting new authority to DEQ to
develop, by regulations . . . a permit by rule or permits by
rule if it is determined by the Department that one or more
such permits by rule are necessary for the construction and
operation of small renewable energy projects, including such
conditions and standards necessary to protect the
Commonwealth's natural resources. 
Code § 10.1-1197.6(A).
relevant in the case at bar, DEQ was required to initially
"develop the permit by rule for wind energy, which shall
be effective as soon as practicable, but not later than
January 1, 2011." Id.
October 22, 2010, DEQ Director Paylor signed the Regulations
establishing the Permit by Rule ("PBR") for wind
energy. On November 22, 2010, the Regulations were published
in the Register of Regulations, with an effective date of
December 22, 2010. 27 Va. Reg. Regs. 640 (Nov. 22, 2010). On
December 22, 2010, the appellants filed their notice of
appeal with DEQ. On January 21, 2011, the appellants filed
their petition of appeal with the circuit court. On February
17, 2011, DEQ filed a plea in bar with the circuit court for
lack of jurisdiction arguing that the appellants failed to
comply with the timely filing requirements of Rule 2A:2(a) of
the Rules of the Supreme Court of Virginia. On May 23, 2011,
the circuit court found "that the petition [sic] was
filed within 30 days of publication of regulation" and
it overruled DEQ's plea in bar.
four years later, on September 30, 2015, the circuit court
issued its final decision on the merits in favor of DEQ. The
circuit court found:
[T]he General Assembly expressly conferred authority to DEQ
to determine what constitutes a significant adverse impact to
"wildlife" and in doing so, they did not define the
term "wildlife." The term wildlife, without more,
can be read in more than one way and is neither clear nor
definite in and of itself. As such, the term wildlife is
ambiguous and is subject to interpretation by the agency
charged with enforcing the statute.
ruling, the circuit court also found that: 1) DEQ complied
with the statutory authority given to it pursuant to Code
§ 10.1-1197.6; 2) because the term "wildlife"
was ambiguous, DEQ's interpretation of wildlife was to be
given special weight; 3) DEQ used its discretion
appropriately and reasonably in its interpretation of the
term "wildlife" as used in Code §
10.1-1197.6(B)(7); and 4) DEQ used its discretion
appropriately and reasonably in determining the appropriate
triggers for the creation of mitigation plans.
Standard of Review
question of statutory interpretation is subject to review
de novo on appeal." Bennett v.
Commonwealth, 60 Va.App. 656, 665, 731 S.E.2d 40, 44
DEQ's Cross-Appeal: Denial of Plea in Bar
first address DEQ's cross-appeal regarding the circuit
court's May 23, 2011 decision overruling DEQ's plea
in bar. DEQ maintains that the circuit court erred in
overruling the plea in bar based on a failure of the
appellants to comply with the 30-day notice requirement of
circuit court found the appellants' notice of appeal to
the Department timely, thus, it decided that it had
jurisdiction over the case. A timely-filed notice of appeal
is necessary to confer jurisdiction upon the court to hear
the appeal. Bd. of Supervisors v. Bd. of Zoning
Appeals, 271 Va. 336, 346, 626 S.E.2d 374, 380 (2009).
Under Virginia law, if the circuit court was without
jurisdiction, then it was error to address the
appellants' challenges to the regulation. See Russell
v. Va. Bd. of Agric. & Consumer Servs., 59 Va.App.
86, 95, 717 S.E.2d 413, 417 (2011).
an action appealing a regulation adopted by DEQ; as such, it
is governed by the APA. Pursuant to the APA, "[a]ny
person affected by and claiming the unlawfulness of any
regulation . . . shall have a right to the direct review
thereof by an appropriate and timely court action against the
agency or its officers or agents in the manner provided by
the Rules of Supreme Court of Virginia." Code §
2.2-4026(A). At the time the Regulations were promulgated,
Rule 2A:2(a) required that "[a]ny party appealing from a
regulation or case decision shall file, within 30 days after
adoption of the regulation or after service of the
final order in the case decision, a notice of appeal signed
by the appealing party or that party's counsel."
(Emphasis added). The issue presented by DEQ's
cross-appeal is identical to the issue this Court addressed
in Russell: "when the point of
'adoption' occurs when an agency creates a regulation
such as to trigger the beginning of the 30-day period in
which to note an appeal." Russell, 59 Va.App.
at 91, 717 S.E.2d at 415.
DEQ promulgated the Regulations in question and the
Russell opinion was issued, the Rules of the Supreme
Court of Virginia and the Code of Virginia were amended to
clarify when the point of adoption occurs, thus creating the
triggering event which begins the 30-day period to note an
appeal. In July 2014, Rule 2A:2(a) was amended to clarify the
term "adoption, " by adding "[w]ith respect to
an appeal from a regulation, the date of adoption or
readoption shall be the date of publication in the Register
of Regulations." Additionally, in 2014 the General
Assembly amended Code § 2.2-4026 and added subsection B
[n]otwithstanding any other provision of law or of any
executive order issued under this chapter, with respect to
any challenge of a regulation subject to judicial review
under this chapter, the date of adoption or readoption of the
regulation pursuant to § 2.2-4015 for purposes of appeal
under the Rules of Supreme Court shall be the date of
publication in the Register of Regulations.
Code § 2.2-4026(B).
2014 modifications to the Rules and the Code clearly
establish the date of adoption to be the date of its
publication in the Register of Regulations. However, those
modifications do not retroactively determine when the point
of "adoption" occurred prior to their
implementation. Thus, we must revisit the same issue
discussed at length, but never decided, in Russell.
Russell, this Court extensively discussed that the
"problem with determining the date of adoption for the
purpose of Rule 2A:2 is that the APA uses the term
'adoption' at several different points and in
different contexts." 59 Va.App. at 91, 717 S.E.2d at
415. This Court cannot be any clearer in its analysis than it
was in Russell:
Code § 2.2-4013 is the statute which is relevant to this
analysis, and it references "adoption" in three
different ways. Under subsection A, "adoption"
first occurs when the agency decides to adopt a regulation
following public comment. The statute specifically says,
"Not less than fifteen days following the completion of
the public comment period provided for in § 2.2-4007.03,
the agency may (i) adopt the proposed regulation if
the Governor has no objection to the regulation; (ii) modify
and adopt the proposed regulation after considering
and incorporating the Governor's objections or
suggestions, if any; or (iii) adopt the ...