Could the Virginia Department of Health require a surveyed plat with an application for a private well construction permit?

Plain-English summary

Virginia Attorney General Robert F. McDonnell concluded in 2008 that the Department of Health could require a survey plat as part of a private-well construction permit application. Although the private-well regulation required a "site plan" rather than expressly using the words "survey plat," the AG found the department's interpretation reasonable.

The required plan had to show the proposed well, property boundaries, actual or proposed sewage-disposal systems, recorded easements, and contamination sources within 100 feet. The opinion reasoned that reliable and accurate boundary and location information could reasonably require a professionally prepared survey or plat.

The requirement appeared in an agency procedures manual, which the opinion treated as a guidance document rather than a regulation with the force of law. Even so, interpretive guidance could receive persuasive weight when it reflected the agency's specialized responsibility for enforcing the well regulations and was not prohibited by statute or regulation.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

The Department of Health issued a 2007 procedures manual combining application processes for onsite sewage permits and private-well permits. The Eastern Shore Health District used the manual to require a survey plat in a complete private-well application, prompting the request for an opinion.

The sewage regulation expressly required the perimeter of a soil-absorption area to appear on a surveyed plat. The well regulation, 12 Va. Admin. Code § 5-630-230, required a site plan with accurate locations and boundaries but did not separately define "site plan" or expressly demand a survey plat.

Under § 32.1-176.4(A), the department enforced the Board of Health's private-well rules. Section 2.2-4001 described guidance documents as agency materials that interpret or implement statutes and regulations for staff or the public.

What the AG concluded

The department could require the survey plat. Determining the information needed for a private-well application fell within the department's specialized area of responsibility.

The site-plan requirement supported the interpretation. Accurate property boundaries, sewage locations, easements, the well site, and nearby contamination sources reasonably called for survey-quality information.

The manual was guidance, not a substitute for law. The opinion said it lacked the force and effect of a formally adopted regulation but could carry persuasive weight as the agency's interpretation.

No statute or regulation prohibited the requirement. That absence, combined with the department's enforcement responsibility, supported the AG's conclusion.

Common questions

Did the private-well regulation expressly say "survey plat"?
No. It required a "site plan" with specified accurate locations and boundaries. The AG concluded that the department could reasonably interpret that requirement to include a survey.

Was the procedures manual itself a binding regulation?
No. The opinion called it a guidance document without the force of law, while recognizing that agency interpretations could have persuasive effect.

Why did sewage regulations matter to a well permit?
The department's manual combined the two application processes, and the sewage regulation expressly used a surveyed plat. The well rule independently required location and boundary information that the AG believed justified the same reliable format.

Did the opinion decide whether every document had to be prepared by a licensed surveyor?
It concluded that the department could require a survey plat and noted that Virginia law treated preparation of plats for site plans as part of land surveying. It did not resolve a separate licensing dispute over a particular preparer.

Citations

• Va. Code Ann. §§ 2.2-4001, 32.1-164, 32.1-176.4(A), 54.1-408
• 12 Va. Admin. Code §§ 5-610-460, 5-630-230
• NRV Real Estate, LLC v. Va. Dep't of Health, 51 Va. App. 514, 659 S.E.2d 527 (2008)
• Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 369 S.E.2d 1 (1988)
• Va. Real Estate Bd. v. Clay, 9 Va. App. 152, 384 S.E.2d 622 (1989)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-048-Lewis.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Robert F. McDonnell

900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

Attorney General

July 28, 2008

The Honorable Lynwood W. Lewis, Jr.
Member, House of Delegates
P.O. Box 760
Accomac, Virginia 23301
Dear Delegate Lewis:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.
Issue Presented
You inquire whether 12 VAC §§ 5-610-460 and 5-630-230, the Onsite Sewage Quality Assurance
Manual of the Department of Health, or any other provision of Virginia law authorizes the Department to
require a “survey plat” in applications for construction permits for private wells.
Response
It is my opinion that the Department of Health has the authority to require submission of a survey
plat with an application for a private well construction permit.
Background
The Department of Health (the “Department”) distributed its “Procedures Manual for the Onsite
1
Sewage Program” (the “Manual”) on October 17, 2007. The purpose of the Manual is to provide
guidance to local Health Departments and to identify measurable standards for internal processes
2
associated with the Sewage Program in an effort to raise the overall quality of the program. The Manual
combines the procedures for applying for permits for septic systems under the Sewage Handling and
3
4
Disposal Regulations (the “Sewage Regulations”) and private wells under the Private Well Regulations
5
(the “Well Regulations”) (collectively, the “Regulations”). You state that local health departments
1

See Memorandum from Jeffrey Lake, M.S., Deputy Commissioner for Community Health Services, Department
of Health (Oct. 17, 2007) (copy on file with author); see also Dep’t of Health, Procedures Manual for the Onsite
Sewage Program (Oct. 17, 2007) (copy on file with author) [hereinafter “Manual”].
2
See id., Introduction, “Establishing a Quality Assurance Program.”
3
12 VA. ADMIN. CODE §§ 5-610-20 to 5-610-1170 (2002) (codified in scattered sections).
4
12 VA. ADMIN. CODE §§ 5-630-10 to 5-630-480 (2002) (codified in scattered sections).
5
See Manual, supra note 1, Septic & Well Bare Application Process, app. 2, “Instructions for Well and Septic
Permit Applications”; id. app. 3, “Check List for Septic or Septic and Well Applications.”

The Honorable Lynwood W. Lewis, Jr.
July 28, 2008
Page 2
throughout the Commonwealth have been implementing the processes outlined within the Manual. You
indicate that the Eastern Shore Health District, relying upon the Manual and the Regulations, recently has
required the submission of a survey plat as part of a complete application package for a private well
construction permit. Therefore, you ask whether the Department’s policy in the Manual to require such
survey plat is a reasonable interpretation of the Regulations.
Applicable Law and Discussion
The Sewage Regulations, adopted by the Board of Health (the “Board”) pursuant to § 32.1-164,
specifically authorize the Department to require a survey plat. The Sewage Regulations require a “site
6
plan (sketch) … to evaluate the suitability of a subsurface soil absorption system for that site.” “[A]s a
minimum, prior to issuance of the construction permit the perimeter of the soil absorption area site or sites
7
shall be shown on a copy of a surveyed plat of the property.”
Pursuant to § 32.1-176.4(A), the Department enforces the Well Regulations adopted by the Board
to govern the location and construction of private wells in the Commonwealth. The Well Regulations
require a completed application to include “[a] site plan showing the proposed well site, property
boundaries, accurate locations of actual or proposed sewage disposal systems, recorded easements, and
8
other sources of contamination within 100 feet of the proposed well site.” The Well Regulations do not
define the term “site plan” and do not include a specific requirement for a survey plat.
The Manual includes a survey plat of the property as an element of a complete application for
both a septic permit and a private well construction permit, thereby equating the requirement for a site
9
10
plan or site sketch with a survey plat. The Manual is in effect a guidance document. Such documents,
11
while not having the force and effect of law, serve to advise the agency’s staff and the public of the
12
agency’s interpretation of its regulations. Courts generally give such “interpretative” rules persuasive
effect:

6

12 VA. ADMIN. CODE § 5-610-460.
Id.
8
12 VA. ADMIN. CODE § 5-630-230.
9
See Manual, supra note 1, Septic & Well Bare Application Process, app. 2, “Instructions for Well and Septic
Permit Applications.”
10
The Administrative Process Act, §§ 2.2-4000 to 2.2-4031, defines a “guidance document” as “any document
developed by a state agency … that provides information or guidance of general applicability to the staff or public to
interpret or implement statutes or the agency’s rules or regulations.” VA. CODE ANN. § 2.2-4001 (Supp. 2007).
11
NRV Real Estate, LLC v. Va. Dep’t of Health, 51 Va. App. 514, 526-27, 659 S.E.2d. 527, 533 (2008).
12
The General Assembly has charged the Department, like all administrative agencies, with the interpretation and
application of regulations adopted by the Board. See VA. CODE ANN. § 32.1-176.4(A) (2004) (mandating that
Department enforce rules and regulations of Board regarding location and construction of private wells). Reviewing
courts will afford varying degrees of deference to the decision of an administrative agency. Johnston-Willis, Ltd. v.
Kenley, 6 Va. App. 231, 243-44, 369 S.E.2d 1, 8 (1988). If the issue to be resolved falls within the specialized
competence of the agency, the latter’s decision is entitled to special weight. Id. at 244, 369 S.E.2d at 8. That
interpretation will not be reversed unless it is arbitrary and capricious. Va. Real Estate Bd. v. Clay, 9 Va. App. 152,
159, 384 S.E.2d 622, 626 (1989). The Department’s interpretation of the Board’s regulations in the present situation
to a given permit application would be such an issue.
7

The Honorable Lynwood W. Lewis, Jr.
July 28, 2008
Page 3

[A]n agency “has incidental powers which are reasonably implied as a necessary incident
to its expressly granted powers for accomplishing [its] purposes.” This includes the
adoption of interpretative rules. Since such rules do not undergo the same scrutiny as do
formally promulgated regulations, they “‘do not purport to be a substitute for the
statute.’” “[T]hey do not have the force of law.” In spite of this, interpretative rules carry
persuasive effect. We give “great deference to an administrative agency’s interpretation
of the regulations it is responsible for enforcing,” for “it is inappropriate for a court to
second-guess the manner in which an agency responds to its responsibility of carrying out
[13]
the Commonwealth’s policy when those means are not prohibited[.]”
Determining the appropriate components to be included in an application for a private well permit
falls within the area of the Department’s special area of expertise. The Department has determined that
the requirement of a survey as part of such an application is necessary to accomplish the proper purpose
14
of the Well Regulations.
I find no statutes or regulations that would prohibit the Department from
adopting such a requirement.
The General Assembly considers the preparation of a plat for site plans to be part of the practice
15
of surveying. As previously noted, 12 VAC § 5-630-230 of the Well Regulations requires a “site plan”
to show among other things the property boundaries, the accurate location of actual or proposed sewage
disposal systems, the proposed well site, and any recorded easements. Such items would necessitate a
properly prepared, reliable, and accurate survey or plat to provide the Department with the information to
make a correct and informed decision regarding a well application. Thus, in my opinion, it is reasonable
for the Department to require that a “site plan” under the Well Regulations include a survey.
Conclusion
Accordingly, it is my opinion that the Department of Health has the authority to require
submission of a survey plat with an application for a private well construction permit.
Thank you for letting me be of service to you.
Sincerely,

Robert F. McDonnell
1:1426; 1:941/08-048
13

NRV Real Estate, LLC v. Va. Dep’t of Health, 51 Va. App. 514, 526-27, 659 S.E.2d. 527, 533-34 (2008)
(citations omitted) (first and second alterations in original).
14
See supra note 9 and accompanying text.
15
See VA. CODE ANN. § 54.1-408 (2005) (expanding statutory definition of “practice of land surveying” to
provide that “[i]n addition to the work defined in § 54-400, a land surveyor may, for subdivisions, site plans and
plans of development only, prepare plats, plans and profiles for roads, storm drainage systems, [and] sanitary sewer
extensions.” (Emphasis added.)