Does a Virginia farm pond have to be used for crop irrigation to qualify for the Dam Safety Act's agricultural exemption?

Plain-English summary

A delegate asked several questions about the Dam Safety Act's agricultural exemption (the "25/100 exemption"), which exempts impounding structures less than 25 feet tall or with capacity below 100 acre-feet, provided they are operated primarily for agricultural purposes. The AG addressed each.

Irrigation is not required. Section 10.1-604 conditions the agricultural exemption on operation "primarily for agricultural purposes." 4 Va. Admin. Code § 50-20-30 defines "agricultural purpose" as production of an agricultural commodity that "requires the use of impounded waters." The DCR Director's guidance document lists three qualifying scenarios: agricultural land of at least 5 contiguous acres with the impounded water used or held in reserve to assist in production; certified gross sales over $1,000 annually over three years from agricultural commodities served by the impoundment; or agriculturally zoned land where the impounded water assists production. None of those required irrigation specifically. The impounded water just has to assist agricultural production, in whatever form.

Fire suppression for silviculture and pasture pond questions are fact-bound. The AG declined to issue an opinion on whether a pond providing fire suppression for traditional silviculture, or a pond in the middle of a hay-cutting pasture, qualified for the agricultural exemption. Silviculture clearly falls within "agricultural commodity," but whether possible fire suppression "requires the use of impounded waters" is a case-by-case judgment for the DCR Director. The AG noted that the Department of Forestry hadn't issued guidelines on impounded waters for fire suppression, and any DCR determination would be entitled to deference if not plainly wrong.

Forester vs. orchardist. Neither term is defined in the Dam Safety Act or its regulations. The AG looked to Va. Code § 10.1-1181.8 (Department of Forestry statutes) for "forester": "any person who is engaged in the science, profession and practice of forestry," with forestry being "the science, art and practice of creating, managing, using and conserving forests and associated natural resources for human benefit and in a sustainable manner." For "orchardist," with no statutory definition, the AG used the ordinary dictionary meaning: an owner or supervisor of orchards, where an orchard is a planting of fruit trees, nut trees, or sugar maples. The difference: an orchardist focuses on what trees produce (fruit, nuts, sap); a forester focuses on the timber itself.

Currency note

This opinion was issued in 2013. 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.

Common questions

What's the 25/100 exemption?
The Dam Safety Act's exemption for impounding structures less than 25 feet tall or with maximum impoundment capacity below 100 acre-feet, when operated primarily for agricultural purposes. Below those thresholds and with the agricultural use, the structure isn't subject to the Act's general permitting and safety regulations.

How does a landowner claim the agricultural exemption?
Submit an Agricultural Exemption Report under the Impounding Structure Regulations. The report has to list the agricultural functions for which the impoundment supplies water and include the owner's signature validating that the impoundment is operated primarily for agricultural purposes.

Why is silviculture different from straightforward agriculture?
Silviculture is clearly an "agricultural commodity" under § 3.2-3900. The harder question is whether the water from the pond "requires" use, and on what theory. A landowner asserting fire suppression for forestland would need to convince DCR that fire suppression is a required use of the impounded water, which DCR has historically resisted.

Can DCR change its mind through guidance?
Yes, within limits. Guidance documents don't have the force of law, but courts give "great deference" to an agency's interpretation of regulations it is responsible for enforcing, unless plainly wrong or contrary to the agency's own rules.

Why does the forester-orchardist distinction matter?
Because the definition of "agricultural commodity" lists both as examples of qualified producers. The exemption can apply to either, but the kind of impoundment use that "assists in production" may differ. An orchardist might use the impoundment for irrigating fruit trees; a forester might claim it assists in timber management or fire suppression.

Background and statutory framework

The Dam Safety Act regulates impounding structures to protect human life and property from dam failure. Its agricultural exemption excludes dams operated primarily for agricultural purposes that are less than 25 feet tall or with maximum capacity below 100 acre-feet (the "25/100 exemption," tied to § 10.1-604). The Soil and Water Conservation Board adopts the Impounding Structure Regulations, and the Department of Conservation and Recreation administers the program under delegated Board authority.

4 Va. Admin. Code § 50-20-30 defines "agricultural purpose" as production of an agricultural commodity that requires the use of impounded waters. Va. Code § 3.2-3900 defines "agricultural commodity" as any plant or part, animal, or animal product produced by a person (farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, nurserymen, wood treaters not for hire, or others) primarily for sale, consumption, propagation, or use.

The DCR Director's guidance document (November 30, 2010) lists three scenarios that meet the exemption: (1) at least 5 contiguous acres with impounded water assisting in production; (2) gross sales over $1,000 annually over three years from commodities served by the impoundment; (3) agriculturally zoned land with impounded water assisting in production.

The "forester" and "forestry" definitions the AG used as an interpretive guide come from Va. Code § 10.1-1181.8 (the Department of Forestry statutes). "Orchardist" has no statutory definition, so the AG used its ordinary meaning.

Citations

• Va. Code § 2.2-505 (Attorney General opinions)
• Va. Code § 3.2-3900 (agricultural commodity definition)
• Va. Code § 10.1-604 (Dam Safety Act agricultural exemption)
• Va. Code § 10.1-1181.8 (forester and forestry definitions)
• 4 Va. Admin. Code § 50-20-30 (agricultural purpose definition)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2013/12-074_Wright.pdf

Original opinion text

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

January 4, 2013

The Honorable Thomas C. Wright, Jr.
Member, House of Delegates
Post Office Box 1323
Victoria, Virginia 23974

Dear Delegate Wright:
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 present several questions related to the Dam Safety Act and the application by the Department of Conservation and Recreation ("DCR") of the agricultural exemption it contains. You first ask whether a farm pond must be used for the irrigation of crops to qualify for the exemption. You also inquire whether the agricultural exemption applies in two situations: 1) for a farm pond available for fire suppression when located within forestland where conventional silviculture is practiced professionally, or 2) for a pond located in the middle of a pasture from which hay is cut, hay being a plant as well as an agricultural commodity. Finally, you ask what constitutes being a forester within the context of the Dam Safety Act and attendant regulations and guidance, and specifically, how a forester differs from an orchardist.

Response
It is my opinion that irrigation is not a necessary element for a farm pond to qualify for the agricultural exemption, provided the impounded waters are utilized in a manner found to be required for agricultural production. It is further my opinion that, because the determination of whether the agricultural exemption applies to any particular structure is primarily a factual question reserved to the Director of DCR on a case-by-case basis, I must decline to render an opinion on the issues raised in the second question presented. Finally, it is my opinion that, absent a specific definition in the Dam Safety Act, it is appropriate to look to the definition of the term "forester" provided in the statutes governing the Department of Forestry as an interpretative guide, and that a forester differs from an orchardist in that an orchardist harvests fruit, nuts or sap from trees, while a forester is concerned with the timber itself.

Background
You relate that you have constituents who own what you describe as farm ponds. You identify at least two categories of uses to which such farm ponds are dedicated. The first category you describe comprises ponds located within forested land subject to conventional silvicultural practices in accordance with the guidelines of the Virginia Department of Forestry. The owners of these ponds assert that they are entitled to the agricultural exemption because the ponds serve a valuable fire suppression purpose. The second category contains ponds surrounded by open fields on which the owners cut hay and/or run livestock. In this instance, the owners assert that the ponds are operated for agricultural purposes and therefore subject to the agricultural exemption.

Applicable Law and Discussion
The Dam Safety Act ("the Act") provides for the regulation and permitting of impounding structures in the Commonwealth in order to protect human life and property from the dangers of dam failure. The Act exempts from regulation structures that are "operated primarily for agricultural purposes" and do not exceed certain height and impoundment capacity limitations. This provision is generally referred to as the "25/100 exemption" or the "agricultural exemption."

The General Assembly has directed the Soil and Water Conservation Board ("the Board") to "adopt regulations to ensure that impounding structures in the Commonwealth are properly and safely constructed, maintained and operated." Pursuant to this authority, the Board has adopted the Impounding Structure Regulations. These regulations define "agricultural purpose" as "the production of an agricultural commodity as defined in § 3.2-3900 of the Code of Virginia that requires the use of impounded waters." Section 3.2-3900 defines "agricultural commodity" as "any plant or part thereof, animal, or animal product, produced by a person (including farmers, ranchers, vineyardists, plant propagators, Christmas tree growers, aquaculturists, floriculturists, orchardists, foresters, nurserymen, wood treaters not for hire, or other comparable persons) primarily for sale, consumption, propagation, or other use by man or animals."

The Impounding Structure Regulations provide that "[a]n owner covered by an agricultural exemption pursuant to § 10.1-604 of the Code of Virginia and [4 VA. ADMIN. CODE § 50-20-30] may validate such exemption by submitting an Agricultural Exemption Report (Agricultural Exemption Report for Impounding Structures)." This report requires, inter alia, "[a] list of the agricultural functions for which the impoundment supplies water" and "[t]he owner's signature validating that the impoundment is operated primarily for agricultural purposes."

Pursuant to a delegation of authority from the Board, DCR administers the Dam Safety Program. The Director of DCR has issued a guidance document regarding the agricultural exemption requirements. Although guidance documents do not have the force and effect of law, they serve to advise the agency's staff and the public of the agency's interpretations of its regulations. Courts generally give such "interpretative" rules persuasive effect and will give "great deference to an administrative agency's interpretation of the regulations it is responsible for enforcing."

In this document, the Director explains three scenarios that meet the agricultural exemption: (1) the dam owner demonstrates that the agricultural land consists of a minimum of five contiguous acres upon which the agricultural commodity is produced and the impounded water is used or held in reserve primarily to assist in this production; (2) the owner of the agricultural use certifies gross sales in excess of $1,000 annually over the previous three years for the sale of agricultural commodities produced from the lands served by the impounding structure waters; or (3) the dam owner demonstrates that the land on which the agricultural commodity is produced is zoned for agricultural use and the impounded water is used or held in reserve primarily to assist in this production.

Nothing in this guidance document, or in the applicable statutes or regulations, sets forth a requirement that a farm pond be used specifically for irrigation in order to qualify for the agricultural exemption. As the language of the document suggests, what is critical is that the impounded waters be used "to assist in [agricultural] production." No provision of law limits such assistance to irrigation. Thus, in response to your first question, I conclude that, provided the impounded waters otherwise are shown to be primarily used for agricultural purposes as required by § 10.1-604, irrigation is not a necessary element for a farm pond to be eligible to receive the 25/100 exemption.

Your next inquiry relates to eligibility for the exemption in two scenarios, as described above. With regard to the first scenario, silviculture clearly falls within the scope of the above-referenced definition of "agricultural commodity" and "agricultural purpose." Nonetheless, the authorities cited above, including DCR's own guidance, do not address the question of whether possible fire suppression for traditional silviculture "requires the use of impounded waters," as the regulations require to qualify for the exemption. In addition, it does not appear that the Department of Forestry has issued any guidelines or descriptions of best management practices that speak to the use of impounded waters for possible fire suppression as part of silvicultural activity. I also am not aware of any court decisions addressing this question. The question you ask involves matters of specific silvicultural practices that do not appear in law and are left for the relevant agencies to address. It is for the relevant agencies to determine whether traditional silviculture activity requires impounded waters for possible fire suppression. Any agency determination on the matter will be entitled to deference by the courts unless plainly wrong or contrary to the agency's own rules.

You similarly ask whether a farm pond located in the middle of a pasture from which hay is cut qualifies for the agricultural exemption. As with the first scenario, in the abstract, it is possible that growing hay will "require the use of the impounded waters," and it is also possible that the impounded waters would not be required for such an agricultural production. The question of whether a particular pond is maintained "primarily for agricultural purposes" as discussed in § 10.1-604, is for the Director to determine based on the particularized facts of each case. I am therefore unable to render an opinion as to whether the exemption would be available in any particular circumstance in either scenario.

Lastly, you ask what constitutes being a forester within the context of the Act and attendant regulations and guidance and how a forester differs from an orchardist. As discussed above, the Act exempts from regulation certain structures that are "operated primarily for agricultural purposes," where an "agricultural purpose" includes "the production of an agricultural commodity . . . ." Relative to your inquiry, "agricultural commodity" is "any plant or part thereof, animal, or animal product, produced by a person (including ... orchardists [and] foresters ...) primarily for sale, consumption, propagation, or other use by man or animals." Neither the Act, the regulations, nor the guidance document provide a definition of "forester" or "orchardists."

Nonetheless, as for "forester," because the Code of Virginia constitutes a single body of law, other sections may be looked to where the same phraseology is used. In the statutes governing the Department of Forestry, the General Assembly has defined "forester" as "any person who is engaged in the science, profession and practice of forestry and who possesses the qualifications required by this article." The statute further defines "forestry" as "the science, art and practice of creating, managing, using and conserving forests and associated natural resources for human benefit and in a sustainable manner to meet desired goals, needs, and values." I conclude that, absent a specific definition in the Act, it is appropriate to look to the definition of "forester" in § 10.1-1181.8 as an interpretative guide for determining the meaning of the term as it is used in the dam safety context.

Unlike "forester," the General Assembly has not provided a definition of "orchardist" in the Code of Virginia. In the absence of a statutory definition, a term is given its ordinary meaning, given the context in which it is used. The common definition of "orchardist" is "an owner or supervisor of orchards," and "orchard" is commonly defined as "a planting of fruit trees, nut trees, or sugar maples." I therefore conclude that a forester differs from an orchardist in that an orchardist harvests fruit, nuts and sap from trees, while a forester "creat[es], manag[es], us[es] and conserv[es] forests and associated natural resources for human benefit and in a sustainable manner to meet desired goals, needs, and values." Thus, an orchardist is concerned with the products of trees, while a forester is interested in the timber itself.

Conclusion
Accordingly, it is my opinion that irrigation is not a necessary element for a farm pond to qualify for the agricultural exemption, provided the impounded waters are utilized in a manner found to be required for agricultural production. It is further my opinion that, because the determination of whether the agricultural exemption applies to any particular structure is primarily a factual question reserved to the Director of DCR on a case-by-case basis, I must decline to render an opinion on the issues raised in the second question presented. Finally, it is my opinion that, absent a specific definition in the Dam Safety Act, it is appropriate to look to the definition of the term "forester" provided in the statutes governing the Department of Forestry as an interpretative guide, and that a forester differs from an orchardist in that an orchardist harvests fruit, nuts or sap from trees, while a forester is concerned with the timber itself.

With kindest regards, I am
Very truly yours,

Kenneth T. Cuccinelli, II
Attorney General