Can a Virginia coastal locality apply its local zoning rules to an offshore wind farm built in state waters?

Plain-English summary

DEQ Director Paylor came to the AG with a regulatory puzzle. In 2009, the General Assembly created a "permit by rule" process for small renewable energy projects in § 10.1-1197.6. One of the application requirements is "a certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances." That works fine for an onshore wind farm. It does not work for an offshore wind project sited in state waters, because no locality has zoning authority over state-owned submerged lands.

The AG worked through the layers of authority and concluded: Virginia localities do not have authority to extend their land use ordinances to state-owned submerged lands. For projects in or above state-owned bottomland, there are simply no "applicable land use ordinances" for purposes of the § 10.1-1197.6(B)(2) certification. Because DEQ is directed to assess whether an application meets the requirements of "the applicable permit by rule regulations," DEQ may treat the certification requirement as inapplicable and authorize a project if the applicant satisfies all other requirements.

The reasoning rests on three pieces. First, the Commonwealth owns the submerged lands inside Virginia's three-mile seaward boundary, up to the mean low water mark. Second, the Virginia Marine Resources Commission (VMRC) is the agency authorized to permit reasonable uses of state-owned bottomland (§§ 28.2-1203(A), 28.2-1204). The VMRC is a state agency, not a local governing body, so it cannot supply the "local government certification" that § 10.1-1197.6(B)(2) calls for. Third, Virginia is a Dillon Rule state. A locality has only the powers expressly granted by statute or necessarily implied. The General Assembly has not granted localities authority to zone state-owned bottomland or the waters above it. Although a locality's territorial boundary may extend over coastal waters, the Commonwealth retains ownership of the submerged lands.

Practical answer for DEQ: under the opinion, the agency need not amend the regulations further. Read the local certification requirement as inapplicable when there is no locality with jurisdiction.

Currency note

This opinion was issued in 2010. 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 offshore wind and renewable-energy permitting framework has changed significantly since 2010. The permit-by-rule statutes have been amended and the regulations updated. Anyone evaluating a current offshore wind project should look at the current Title 10.1 statutes, the current VMRC leasing framework, and any newer AG opinions or court decisions on local-state authority over coastal waters.

Common questions

Who actually permits an offshore wind project in Virginia waters?
The Virginia Marine Resources Commission (VMRC) controls permits for use of state-owned bottomland: § 28.2-1203(A) restricts use of those lands to enumerated uses or those authorized by VMRC, and § 28.2-1204 authorizes VMRC to issue permits for all reasonable uses. DEQ handles the permit-by-rule for the energy project itself. VMRC, though, is a state agency, so it cannot provide the "local government certification" the permit-by-rule statute calls for.

Where exactly does state ownership end and federal ownership begin?
The seaward boundary of each coastal state extends three geographical miles from the coast line, under the federal Submerged Lands Act. Inside that three-mile boundary, the Commonwealth owns the submerged lands up to the mean low water mark. Outside it, the federal government does.

Did the Dillon Rule actually decide this case?
Yes. Virginia follows strict statutory construction. A locality has the powers expressly granted, those necessarily or fairly implied, and those essential and indispensable. The General Assembly has never granted localities authority to apply land use ordinances to state-owned submerged lands. Under the Dillon Rule, that silence is dispositive against the locality.

Could the legislature change this if it wanted to?
Yes. The legislature could authorize local zoning over state-owned bottomland if it chose to. The AG's conclusion is that the legislature has not done so. That is a description of the current statutory landscape, not a constitutional limit.

Background and statutory framework

The legal anatomy in four layers:

Federal layer. The opinion notes that federal law sets each original coastal state's seaward boundary at three geographical miles from the coast line. Inside that boundary, Virginia owns the submerged lands up to the mean low water mark.

State ownership. Although localities may establish territorial boundaries that extend over Virginia's waters, the Commonwealth retains ownership of the submerged lands under those waters up to the mean low water mark.

Permitting bottomland uses. Use of state-owned submerged lands is restricted to enumerated uses or those authorized by VMRC permit (§ 28.2-1203(A)). Under § 28.2-1204, VMRC may issue permits for all reasonable uses of state-owned submerged lands, and, with the approval of the Attorney General and the Governor, may grant easements over or under, or lease, the beds of the waters outside the Baylor Survey. VMRC is a state agency, not a local governing body, so it cannot supply the local certification the permit-by-rule statute requires.

Local authority. § 15.2-2280 grants localities authority to zone "the territory under its jurisdiction." Absent specific authority to extend over state-owned bottomland, that jurisdiction does not reach beyond the mean low water mark. Under the Dillon Rule, local powers are strictly construed: a locality has only the powers expressly granted, those necessarily or fairly implied, and those essential and indispensable. The General Assembly has not granted localities authority to extend land use regulations to projects on state-owned bottomlands or the waters above them.

Permit by rule. The 2009 permit-by-rule statutes establish the process for small renewable energy projects and directed DEQ to promulgate regulations no later than January 1, 2011. The statutes require fourteen specific application components, one of which (§ 10.1-1197.6(B)(2)) is the local-government certification of compliance with all applicable land use ordinances.

The mechanism the AG identified to bridge the gap: DEQ may treat the certification requirement as inapplicable when no locality has land use jurisdiction over the project's site. DEQ retains authority to authorize the project if the applicant meets all other applicable requirements.

Citations

• Va. Code § 2.2-505
• Va. Code Ann. § 10.1-1197.6(B)(2) (Supp. 2010)
• Va. Code Ann. § 15.2-2280 (2008)
• Va. Code Ann. § 28.2-1203(A) (2009)
• Va. Code Ann. § 28.2-1204
• 43 U.S.C. § 1312 (Submerged Lands Act)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2010/10-091-Paylor.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Kenneth T. Cuccinelli, II
Attorney General

December 30, 2010

Mr. David K. Paylor
Director, Virginia Department of Environmental Quality
629 East Main Street
Richmond, Virginia 23219

Dear Director Paylor:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask what would constitute compliance with the following statutory provision when a proposed wind project will be located in state waters or on state-owned submerged lands:

The conditions for issuance of the permit by rule for small renewable energy projects shall include: ... [a] certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances.

You also inquire which entity or entities, if any, have jurisdiction to provide the Department of Environmental Quality (DEQ) with this statutorily-required certification in such circumstances.

In addition, you pose three sub-questions:

a) Do local governments have land use jurisdiction over renewable energy projects located in state waters or on state-owned submerged lands? If so, how would the boundaries of such jurisdiction be identified so as to assure that the correct local government was providing the "local government certification" for a particular project?

b) If such authority does not rest with local governments, is there another entity (or entities) with land use jurisdiction over renewable energy projects located in state waters or on state-owned submerged lands that may be identified to provide "certification" that such project will comply with "all applicable land use ordinances"?

c) If no entity currently has authority to provide DEQ with the required certification, how should DEQ address this statutory requirement in the proposed regulations for wind energy, in light of the fact that the General Assembly has directed that the regulations must be effective no later than January 1, 2011?

Response

It is my opinion that Virginia localities do not have the authority to extend the application of their land use ordinances to state-owned submerged lands; and that therefore, for small renewable energy projects located on or in the waters above state-owned bottomland, there are no "applicable land use ordinances" for purposes of the certification requirement of § 10.1-1197.6(B)(2). Because DEQ is directed to assess whether a submitted application meets the requirements of "the applicable permit by rule regulations," it is further my opinion that DEQ may treat the certification requirement of § 10.1-1197.6(B)(2) as inapplicable in this circumstance and may authorize a project if the agency determines that the project applicant has met all other applicable requirements.

Background

You note that, in 2009, the General Assembly adopted legislation establishing a "Permit by Rule" process for "the construction and operation of small renewable energy projects, including such conditions and standards necessary to protect the Commonwealth's natural resources." The enacted "Small Renewable Energy Projects" legislation authorizes DEQ to develop one or more permits by rule for renewable energy projects with a rated capacity of 100 megawatts and less. DEQ is to promulgate regulations concerning such permits by rule to be effective as soon as practicable but no later than January 1, 2011.

The 2009 permit by rule statutes require an applicant seeking permit by rule authorization for a project to submit to DEQ fourteen specific application components. The application must include a "certification by the governing body of the locality or localities wherein the small renewable energy project will be located that the project complies with all applicable land use ordinances." You explain that DEQ formed a Regulatory Advisory Panel (Panel) in 2009 to assist the agency in developing draft permit by rule regulations, and that the Panel recommended that this statutory requirement appear verbatim in the proposed regulations.

You observe, however, that DEQ and the Panel developed the draft regulations primarily with land-based wind projects in mind, and that during Panel discussions of the issue, local government certification was described as part of the "siting" phase of a project's development. You note that the siting decision is a necessary prerequisite for DEQ to regulate the "construction and operation" phases of a project, as mandated by the 2009 PBR statutes.

You explain that DEQ also established an Offshore/Coastal Wind Regulatory Advisory Panel (Offshore Panel) that began meeting in June 2010 to develop possible amendments to the original proposed permit by rule regulations and to address resource-protection issues related to wind projects in coastal land areas and in state waters. You describe that one issue the Offshore Panel faced was identifying the entity or entities that would provide the statutorily-required "local government certification" when the wind project is located in state waters or on state-owned submerged lands. You further convey that the Offshore Panel ultimately recommended that the language requiring local government certification remain unchanged until this question can be resolved.

Applicable Law and Discussion

I. Ownership and Regulation of Uses of Submerged Lands by the Commonwealth

Federal law establishes that "[t]he seaward boundary of each original coastal State is approved and confirmed as a line three geographical miles distant from its coast line." Within this three-mile boundary, the Commonwealth owns the submerged lands under the water up to the mean low water mark. Although localities in the Commonwealth may establish territorial boundaries that extend over waters of the Commonwealth, the Commonwealth retains ownership of the submerged lands under those waters.

Section 28.2-1203(A) restricts the enjoyment of state-owned submerged lands to the uses it explicitly enumerates and to those authorized by Virginia Marine Resources Commission (VMRC). Pursuant to § 28.2-1204, the VMRC is authorized to issue permits for all reasonable uses of state-owned submerged lands, "including but not limited to, dredging, the taking and use of material, and the placement of wharves, bulkheads, and fill by owners of riparian land in the waters opposite their lands, provided such wharves, bulkheads, and fill do not extend beyond any lawfully established bulkhead lines ...." With the approval of the Attorney General and the Governor, the VMRC also is authorized to "grant easements over or under or lease the beds of the waters of the Commonwealth outside of the Baylor Survey." Although VMRC has been granted this authority, it is an agency of the Commonwealth. It is not the governing body of a locality, the entity responsible for providing the certification described in § 10.1-1197.6(B)(2). Therefore, the VMRC cannot fulfill this statutory requirement.

II. Local Regulation of State-Owned Lands

Your questions raise the issue of whether a local government has land use jurisdiction over projects and facilities in state waters or on state-owned submerged lands, even though the Commonwealth owns the underlying bottomland. In general, Virginia follows the Dillon Rule of strict statutory construction, which provides that "'municipal corporations have only those powers expressly granted, those necessarily or fairly implied therefrom, and those that are essential and indispensable'" and its corollary that "[t]he powers of county boards of supervisors are fixed by statute and are limited to those powers conferred expressly or by necessary implication." Therefore, to have the power to act in a certain area, local governments must have express enabling legislation or authority that is necessarily implied from enabling legislation.

The General Assembly has not granted specific authority to localities to extend their land use regulations to projects located on state-owned bottomlands or the waters above them. Section 15.2-2280 does provide a locality with the authority to zone the territory under its jurisdiction, but absent a situation where the Commonwealth has conveyed ownership or control of specific areas of bottomland, submerged lands beyond the mean low water mark belong to the Commonwealth and thus are not within any locality's jurisdiction. In light of this conclusion, DEQ need not amend the proposed regulations for wind energy to address this situation further.

Conclusion

Accordingly, it is my opinion that Virginia localities do not have the authority to extend the application of their land use ordinances to state-owned submerged lands; and that therefore, for small renewable energy projects located on or in the waters above state-owned bottomland, there are no "applicable land use ordinances" for purposes of the certification requirement of § 10.1-1197.6(B)(2). Because DEQ is directed to assess whether a submitted application meets the requirements of "the applicable permit by rule regulations," it is further my opinion that DEQ may treat the certification requirement of § 10.1-1197.6(B)(2) as inapplicable in this circumstance and may authorize a project if the agency determines that the project applicant has met all other applicable requirements.

With kindest regards, I am

Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General