Can the Virginia DEQ Director skip the 30-day public review and comment period when handing out nutrient-reduction technical assistance grants from the Water Quality Improvement Fund?

Plain-English summary

Virginia's Water Quality Improvement Fund pays for nutrient-reduction projects in the Chesapeake Bay watershed. Most of the grant money goes to wastewater treatment plants for capital projects (nutrient removal technology), but the Fund also supports "technical assistance" grants to local governments, soil and water conservation districts, state agencies, and others. By the late 2000s, state agencies had interpreted the public notice statute (§ 10.1-2130) to apply only to capital grants and not to technical assistance grants under § 10.1-2131. Delegate Chris Peace asked the AG to verify.

Attorney General Bob McDonnell said the state agencies were wrong. Section 10.1-2130's public notice and review and comment requirement applies to all grants from the Fund, including the technical assistance grants. Section 10.1-2131(C) does authorize the DEQ Director to disburse nutrient-reduction technical assistance grants outside the usual restriction on non-capital uses of the Fund, but that "notwithstanding" override is internal to § 10.1-2131, it does not override the separate public-process requirement in § 10.1-2130.

The result is real-world: any nutrient-reduction technical assistance grant must be posted for public review for 30 to 60 days before execution, and notice must go to every other pending Water Quality Improvement Grant applicant and to anyone who has requested notice. This applies whether the recipient is a local government, a university, or a private contractor.

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. The Water Quality Improvement Act, the Chesapeake Bay TMDL framework, and Virginia's tributary strategy plans have all been amended or implemented since 2008.

Background and statutory framework

The Virginia Water Quality Improvement Act of 1997 (§§ 10.1-2117 to 10.1-2134) created the Water Quality Improvement Fund to help eligible wastewater treatment plant owners and others comply with heightened nutrient discharge limits in the Chesapeake Bay. The General Assembly's principal goal was to fund the capital projects, the actual nutrient-removal technology, but it also allowed technical assistance grants to help recipients design and operate that technology and meet the Bay's water-quality requirements.

Two statutes were in tension. Section 10.1-2130 set up a general public-process requirement: every grant agreement under the Fund "shall be made available for public review and comment for a period of no less than thirty days but no more than sixty days prior to execution," with notice given to every pending applicant and to anyone who requested notice. Section 10.1-2131 governed point-source-pollution funding conditions and included a subsection (C) addressing technical assistance.

The contested language in § 10.1-2131(C) reads: "Notwithstanding the previous provisions of this subsection, the Director may, at any time, authorize grants, including grants to institutions of higher education, for technical assistance related to nutrient reduction." State agencies had read "notwithstanding" broadly to mean the technical assistance grants could be made without complying with § 10.1-2130's general procedure as well.

What the AG concluded, point by point

"Notwithstanding" reaches only "this subsection." The override language is internal to § 10.1-2131(C). Citing a 2004 AG opinion that interpreted a similar "notwithstanding any contrary provisions of this section" phrase in § 15.2-410(F), the opinion holds that the override does not reach outside the subsection. Section 10.1-2130 is a different section entirely, located outside the subsection's reach.

§ 10.1-2130 is a general procedural rule that applies to all Fund grants. The opinion reads the public review and comment requirement as a general procedural rule. Nothing in § 10.1-2131(C) creates an exemption for nutrient-reduction technical assistance.

Statutes on the same subject must be read together. The AG invokes the in pari materia canon and Prillaman v. Commonwealth for the rule that statutes on the same subject must be construed harmoniously. Reading § 10.1-2130's notice requirement out of the Fund's technical assistance grants would create disharmony between the two provisions.

Section headlines are not law. The AG cites § 1-217, which provides that statutory headlines are mere catchwords. The titles of § 10.1-2130 ("[g]eneral provisions related to grants from the Fund") and § 10.1-2131 ("[p]oint source pollution funding; conditions for approval") help interpret the structure, but cannot create or eliminate substantive rules.

The DEQ Director's discretion under § 10.1-2131(C) is timing-and-purpose, not procedure. The opinion allows the Director to authorize nutrient-reduction technical assistance grants "at any time" (the timing override) even before tributary strategy plans are fully implemented. It does not authorize him to skip public review.

What this meant at the time

For DEQ staff issuing grants (as of 2008)

Every technical assistance grant agreement for nutrient reduction had to be posted for public review for 30 to 60 days, with notice to all other Water Quality Improvement Grant applicants and anyone on the notice list. Internal procedures had to be aligned with that requirement.

For Chesapeake Bay advocacy groups (as of 2008)

This opinion was an enforceable transparency tool. Anyone tracking nutrient-reduction grant flow could request to be on the § 10.1-2130 notice list and then comment on proposed grants. Skipped notice was grounds for challenging the grant.

For grant recipients (as of 2008)

If you were getting a technical assistance grant from the Fund, expect a public-comment window before execution. Plan timing accordingly; do not commit to vendors before the comment period closes.

For local governments and soil and water conservation districts (as of 2008)

These recipients should have built the 30-to-60-day public process into their grant timelines. The opinion did not say what the comment period had to contain; it said the period had to occur.

Common questions

Q: Does the public review period apply to other Water Quality Improvement Fund grants too?
A: Yes. The AG reads § 10.1-2130 as a general rule applying to all grants from the Fund. The opinion clarified the rule for the technical assistance subset, but the rule was always broader.

Q: What happens if DEQ issues a grant without the public review period?
A: The opinion does not directly address remedies. But Virginia law generally treats agency actions taken in violation of mandatory procedural statutes as voidable, and interested parties could challenge a grant agreement entered into without complying with § 10.1-2130.

Q: Could the General Assembly create an exemption from § 10.1-2130 for emergencies?
A: Yes, if it wanted to. The opinion only interprets the statute as it stood; it doesn't constrain future legislation. A targeted statutory exception would have to be express.

Q: Does "technical assistance" include grants to universities?
A: Yes. Section 10.1-2131(C) expressly mentions "grants to institutions of higher education" as one example of nutrient-reduction technical assistance. Those grants are subject to § 10.1-2130 like any other.

Citations and references

Statutes:

• Va. Code Ann. § 1-217
• Va. Code Ann. § 2.2-505
• Va. Code Ann. §§ 10.1-2117 through 10.1-2134 (Virginia Water Quality Improvement Act of 1997)
• Va. Code Ann. §§ 10.1-2128 through 10.1-2131 (Fund disbursements, point source pollution funding)

Case:

• Prillaman v. Commonwealth, 199 Va. 401 (1957), in pari materia rule

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2008/08-077-Peace.pdf

Original opinion text

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

December 11, 2008

The Honorable Christopher K. Peace
Member, House of Delegates

Dear Delegate Peace:

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 concerning the proper interpretation of §§ 10.1-2130 and 10.1-2131(C) of the Virginia Water Quality Improvement Act of 1997[1] regarding the issuance of technical assistance grants from the Virginia Water Quality Improvement Fund.[2] Specifically, you ask whether § 10.1-2131 allows the Director of the Department of Environmental Quality to disregard § 10.1-2130, which requires notice and a public review and comment period prior to issuance of a technical assistance grant.

Response

It is my opinion that § 10.1-2131(C) does not authorize the Director of the Department of Environmental Quality to issue a technical assistance grant related to nutrient reduction without the notice and the public review and comment period required by § 10.1-2130.

Applicable Law and Discussion

You inquire concerning provisions of the Virginia Water Quality Improvement Fund (the "Fund"), a portion of the Virginia Water Quality Improvement Act of 1997. You relate that your understanding is state agencies have interpreted § 10.1-2130, which requires a public notice period for all grants, not to apply to technical assistance grants pursuant to § 10.1-2131.

The General Assembly established the Fund to assist eligible wastewater treatment plant owners in complying with heightened requirements for reducing nutrient discharges into the Chesapeake Bay.[3] The stated purpose of the Fund is to provide grants "to local governments, soil and water conservation districts, state agencies, institutions of higher education and individuals."[4] The Director of the Department of Environmental Quality is one of the persons authorized to request expenditures and disbursements from the Fund.[5] Furthermore, the Department of Environmental Quality oversees and disburses grant monies "for the sole purpose of designing and installing nutrient removal technologies for publicly owned treatment works designated as significant dischargers or eligible nonsignificant dischargers."[6] Within these guidelines, technical assistance grants are contemplated and authorized under § 10.1-2131(C).

You inquire about § 10.1-2130,[7] which provides, in pertinent part, that:

Grant agreements shall be made available for public review and comment for a period of no less than thirty days but no more than sixty days prior to execution. The granting agency shall cause notice of a proposed grant agreement to be given to all applicants for Water Quality Improvement Grants whose applications are then pending and to any person requesting such notice.

The plain language of § 10.1-2130 applies the public review and comment period and the notice requirement to all grants issued pursuant to the Fund.[8] Section 10.1-2131 provides further conditions for issuing grants directed at addressing and reducing point source pollutants. Specifically, § 10.1-2131(C) refers to technical assistance grants and provides that:

[T]he Director of the Department of Environmental Quality shall not authorize the distribution of grants from the Fund for purposes other than financing the cost of design and installation of nutrient removal technology at publicly owned treatment works until such time as all tributary strategy plans are developed and implemented …. In addition to the provisions of § 10.1-2130, all grant agreements related to nutrients shall include ….

Subsequent to the implementation of the tributary strategy plans, the Director may authorize disbursements from the Fund for any water quality restoration, protection and improvements related to point source pollution that are clearly demonstrated as likely to achieve measurable and specific water quality improvements, including, but not limited to, cost effective technologies to reduce nutrient loads. Notwithstanding the previous provisions of this subsection, the Director may, at any time, authorize grants, including grants to institutions of higher education, for technical assistance related to nutrient reduction.

The phrase "[n]otwithstanding the previous provisions of this subsection" unambiguously refers to § 10.1-2131(C).[9] In this instance, the term "notwithstanding" is used in the context of the phrase "of this subdivision." Therefore, it is my opinion that the use of the phrase "[n]otwithstanding the previous provisions of this subsection" in § 10.1-2131(C) indicates a legislative intent to override the prohibition against "distribution of grants from the Fund for purposes other than financing the cost of design and installation of nutrient removal technology" for grants "for technical assistance related to nutrient reduction."[10] Moreover, § 10.1-2130 clearly is not a part of subsection C of § 10.1-2131, nor is it mentioned in the "notwithstanding" phrase. The mention of § 10.1-2130 in § 10.1-2131(C) in this context adds requirements in addition to those imposed by § 10.1-2130.

Furthermore, it is well established that statutes should not be read in isolation.[11] Statutes relating to the same subject should be considered in pari materia.[12] Moreover, statutes dealing with the same subject matter should be construed together to achieve a harmonious result, resolving conflicts to give effect to legislative intent.[13] Therefore, it is my opinion that § 10.1-2130 provides a general requirement that all grants under the Fund, including technical assistance grants, must have a public review and comment period and notice must be given. This general requirement is not specifically excepted or overruled by § 10.1-2131(C).

Conclusion

Accordingly, it is my opinion that § 10.1-2131(C) does not authorize the Director of the Department of Environmental Quality to issue a technical assistance grant related to nutrient reduction without the notice and the public review and comment period required by § 10.1-2130.

Thank you for letting me be of service to you.

Sincerely,

Robert F. McDonnell
Attorney General

1. See VA. CODE ANN. §§ 10.1-2117 to 10.1-2134 (2004 & Supp. 2008).

2. See §§ 10.1-2128 to 10.1-2134 (2004 & Supp. 2008).

3. See Water Quality Improve Fund Guidelines, Section B, ch. I.I, *10 (Nov. 2006), available at http://www.deq.virginia.gov/export/sites/default/bay/documents/WQIFGuidelinesNov2006.pdf.

4. Section 10.1-2128(B) (Supp. 2008).

5. See § 10.1-2128(A).

6. Section 10.1-2129(A)(2) (Supp. 2008).

7. I note that this section is titled "[g]eneral provisions related to grants from the Fund."

8. I note that this section is titled "[p]oint source pollution funding; conditions for approval." "The headlines of the sections … are intended as mere catchwords to indicate the contents of the sections and do not constitute part of the act of the General Assembly." VA. CODE ANN. § 1-217 (2008).

9. When a statute begins with the term "notwithstanding," it is presumed that the General Assembly intended to override potential conflicts. See Op. Va. Att'y Gen.: 2001 at 153, 154; id. at 17, 18; 2000 at 112, 113; 1998 at 56, 57.

10. See id.; accord 2004 Op. Va. Att'y Gen. 120, 121 (interpreting phrase "[n]otwithstanding any contrary provisions of this section" in § 15.2-410(F) to mean indication of legislative intent to override any potential conflicts with other subsections of § 15.2-410).

11. 2B NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51:2 (West 7th ed. 2008); Op. Va. Att'y Gen.: 1999 at 22, 22; 1998 at 123, 124; id. at 19, 21; 1996 at 197, 198; 1995 at 146, 147; 1993 at 160, 162; id. at 135, 137; 1992 at 108, 112.

12. See Prillaman v. Commonwealth, 199 Va. 401, 405-06, 100 S.E.2d 4, 7-8 (1957); 1996 Op. Va. Att'y Gen. 134, 135. "In pari materia" is the Latin phrase meaning "[o]n the same subject; relating to the same matter." BLACK'S LAW DICTIONARY 807 (8th ed. 2004).

13. See 2A SINGER & SINGER § 46:5 (West 7th ed. 2008); 2000 Op. Va. Att'y Gen. 182, 185.