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Present:    Carrico, C.J., Lacy, Keenan, Koontz, and Kinser, JJ.,
and Compton, S.J.
MATTAPONI INDIAN TRIBE, ET AL.
v.    Record No.  000509
COMMONWEALTH OF VIRGINIA,
DEPARTMENT OF ENVIRONMENTAL QUALITY,
EX REL. STATE WATER CONTROL
BOARD, ET AL.                                                         OPINION BY
SENIOR JUSTICE A. CHRISTIAN COMPTON
March  2,  2001
ALLIANCE TO SAVE THE
MATTAPONI, ET AL
v.    Record No.  992575
COMMONWEALTH OF VIRGINIA,
EX REL. STATE WATER CONTROL
BOARD, ET AL.
FROM THE COURT OF APPEALS OF VIRGINIA
In this environmental litigation arising under laws dealing
with the quality of state waters, the sole question presented in
these appeals is whether certain protesters to state action have
standing to seek judicial review of such action in a state
court.
In July  1993, the City of Newport News applied to the State
Water Control Board  (the Board) for a Virginia Water Protection
Permit  (the state permit) for the City's proposed King William
Reservoir public water supply project.    This application was
filed pursuant to  §  401 of the federal Clean Water Act  (the
federal Act),  33 U.S.C.  §  1341, and Va. Code  §  62.1-44.15:5, a




part of the State Water Control Law, Code  §§  62.1-44.2 through  -
44.34:28  (the Virginia Act).    The Board issued the state permit
to be effective in December  1997 for a term of ten years.
In February  1998, two proceedings seeking review of the
Board's decision were instituted in the Circuit Court of the
City of Newport News by petitions in chancery filed in
accordance with Rule  2A:4.    In one proceeding, the petitioners
included four organizations and two individual riparian owners,
that is, Alliance to Save the Mattaponi; Chesapeake Bay
Foundation, Inc; Mattaponi and Pamunkey Rivers Association;
Sierra Club; Paulette P. Berberich, and Warren Mountcastle
(hereinafter collectively, the Alliance).    Respondents in that
proceeding included the Commonwealth of Virginia, ex rel. State
Water Control Board, and the City of Newport News.    The other
proceeding was instituted by The Mattaponi Indian Tribe, Carl T.
Lone Eagle Custalow, Assistant Chief  (hereinafter, the Tribe),
against the Board and the City.
The circuit court sustained demurrers filed by the Board
and the City, and entered final judgments against the Alliance
and the Tribe dismissing the proceedings for lack of standing to
sue.
Subsequently, the Court of Appeals of Virginia affirmed the
judgments of the circuit court in separate appeals.    Alliance to
Save the Mattaponi v. Commonwealth,  30 Va. App.  690,  519 S.E.2d
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413  (1999), and Mattaponi Indian Tribe v. State Water Control
Board,  31 Va. App.  472,  524 S.E.2d  167  (2000).    Among other
rulings, the Court of Appeals decided that the Alliance and the
Tribe lacked standing to institute the circuit court
proceedings.
In these cases originating before an administrative agency,
we determined that the decisions of the Court of Appeals involve
matters of significant precedential value.    See Code  §  17.1-
410(B).    Thus, we took jurisdiction of the cases, awarded the
Alliance and the Tribe separate appeals, and consolidated them
for hearing upon the question of standing.
Because the circuit court decided the matters upon
demurrer, we shall recite the facts alleged, and all reasonable
inferences flowing from those facts, as though they are true, in
accordance with settled principles of appellate review.    There
is very little difference between the respective allegations of
the Alliance and the Tribe.    Actually, the factual allegations
merely serve as a background for resolution of a pure question
of law.
The City's proposed King William Reservoir project is a
regional undertaking sponsored by a coalition of local
governments  (York County and the Cities of Williamsburg and
Newport News) that was formed to identify and develop a water
supply to meet the region's long-term public water supply needs.
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The project will also supply water to consumers in the Cities of
Hampton and Poquoson, and the Counties of James City, King
William, and New Kent.    The City of Newport News acts for the
coalition because the coalition has no corporate existence or
authority to obtain permits or to build and operate a water
supply system.
The project will include a water intake and pumping station
on the Mattaponi River at Scotland Landing in King William
County.    Up to  75 million gallons of water per day  (mgd) will be
withdrawn from the River.    The project will also involve a
reservoir impoundment created by a new  78-foot-high dam on
Cohoke Mill Creek, a tributary of the Pamunkey River located
between the Pamunkey and Mattaponi Rivers.    The dam,  1700 feet
long, will cause the inundation of  437 acres of wetlands,  21
miles of perennial and intermittent streams, and  875 acres of
upland wildlife habitat, and additional alteration of  105 acres
of downstream wetlands  — which allegedly will be harmful to fish
and wildlife in the York River watershed.    The Tribe asserts
that of the many acres flooded in the Cohoke Mill Creek Valley,
532 acres will encroach upon lands reserved for use by the Tribe
under a  1677 treaty.
Additionally, the project will include construction of two
pipelines  — one to convey water from the Mattaponi River to the
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reservoir and another to carry water from the reservoir to the
City's existing Diascund Creek Reservoir in New Kent County.
Because the dam will be constructed by a "discharge of
dredged or fill material" into Cohoke Mill Creek, a construction
permit  (federal permit) from the United States Army Corps of
Engineers  (Corps) is required under  §  404 of the federal Act,  33
U.S.C.  §  1344(a).    But  §  401(a) of the federal Act provides that
federal agencies may not issue permits for activities like this
unless "a certification from the State in which the discharge
originates or will originate" is provided.                               33 U.S.C.  §  1341(a).
Code  §  62.1-44.15:5(A) provides that "issuance of a
Virginia Water Protection Permit shall constitute the
certification required under  §  401 of the" federal Act.    The
statute further provides that the State Water Control Board
shall issue such a state permit "for an activity requiring  §  401
certification if it has determined that the proposed activity is
consistent with the provisions of the  [federal Act] and will
protect instream beneficial uses."    Code  §  62.1-44.15:5(B).
The statute further declares:    "The preservation of
instream flows for purposes of the protection of navigation,
maintenance of waste assimilation capacity, the protection of
fish and wildlife resources and habitat, recreation, cultural
and aesthetic values is a beneficial use of Virginia's waters."
Id.
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During consideration of the City's application, public
hearings were held, environmental impact studies were conducted,
and public comment was received by the Virginia Department of
Environmental Quality and the Board.    As we have said, the Board
issued the state permit in December  1997.    The permit
authorized, with certain special conditions, the City to
withdraw water from the Mattaponi River for the reservoir and
certified that the proposed reservoir would meet all
requirements of state law.    To date, according to the
allegations, the Corps has not issued a federal permit and,
thus, the project has not been finally approved.
In the petitions filed in the circuit court, the Alliance
and the Tribe made a number of allegations to support their
conclusions that the state permit was issued contrary to law.
They asked that the matters be remanded to the Board for
reconsideration of its decision to grant the permit.
Initially, the petitions identified the several parties and
their claimed injury in order to support their standing to sue.
For example, the Alliance to Save the Mattaponi, a  1,100-member
unincorporated association, claims that the permit allowing
construction of the project "will threaten irrevocable harm to
the ecosystems of the Mattaponi River and Cohoke Creek region  —
irreplaceable natural resources which its members use for
boating, fishing, recreation and water supply."    The Chesapeake
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Bay Foundation, Inc., a Maryland nonprofit corporation and a
"regional conservation organization with approximately  23,000
members residing in Virginia," claims that the project will
"injure its members who regularly use and enjoy the Mattaponi
River, a tributary of the Bay[,] for swimming, boating,
kayaking, canoeing, sport fishing, hunting, beach walking,
snorkeling, and other educational and recreational pursuits."
The other two organizations make similar allegations of injury
resulting from the decision to award the state permit.
Berberich alleges she is a landowner on Cohoke Mill Creek
and will lose  15-20 acres of her property and possibly her home
adjacent to the proposed reservoir.    She also will be "harmed by
loss of wildlife habitat on her land and her enjoyment of its
use."    Mountcastle, a riparian landowner on the Mattaponi River
adjacent to the location of the water intake pipe, uses the
river for swimming, fishing, hunting, and photography.    He
claims "his enjoyment of these uses would be injured by the
location  [of] the pipe and the noise from the intake."
The Tribe alleges it is a state-recognized tribe that
maintains a sovereign government occupying Mattaponi Indian Town
located along the Mattaponi River.    Among other allegations, the
Tribe claims that the project "directly injures" it "by
sub[s]tantially interfering with the Tribe's capacity to
continue to exist as a tribe as it has from since before
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recorded history, will interfere with the Mattaponi's
traditional way of life, and will prevent the Tribe from
maintaining its cultural and spiritual connections to the
Mattaponi River, Cohoke Mill Creek, together with its adjacent
wetlands and adjacent archaeological sites, and Cohoke Mill
Creek Valley."    Further, the Tribe asserts that the "project
intake structure in the Mattaponi River will desecrate and
insult the Mattaponi culture, dishonor the Tribe's ancestors,
jeopardize the Tribe's historic dependence on the river for
hunting and fishing, and impair the river's cultural and
spiritual resources."
All of the foregoing parties participated, either in person
or by comment, in the public comment process related to the
decision to grant the state permit.
In the circuit court petitions, the petitioners assigned
errors allegedly committed by the Board.      The Alliance
generally asserts "that the Board refused to consider
substantial evidence in the record relating to cultural and
aesthetic instream beneficial uses; the reasonableness of the
amounts of water withdrawal; and the impact of the water
withdrawal, especially in relation to salinity intrusions and
wetlands losses on water quality and instream beneficial uses.
Thus, the Board erred as a matter of law in failing to follow
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the requirements of the  [federal] Act, the State Water Control
Law, and the regulations promulgated under these statutes."
The Tribe, among other claims, generally asserts that the
Board in issuing the state permit failed to consider and
evaluate certain treaty rights, "cultural values and resources
of the Mattaponi River and Cohoke Mill Creek, together with its
associated wetlands and adjacent archaeological sites, in
violation of Virginia State Water Law."
The Board's and the City's demurrers, insofar as pertinent
to the issue presented in these appeals, relied upon a statute
that is central to our ruling here, that is, Code  §  62.1-44.29,
a part of the Virginia Act governing judicial review of a final
decision of the Board to issue a Virginia Water Protection
Permit.∗
As pertinent,  §  62.1-44.29 provides that any owner
aggrieved, or any person who has participated, in person or by
submittal of written comments, in the public comment process
*In one of the cases on appeal here, the Court of Appeals
decided that the foregoing statute, before its amendment in
2000, and other provisions of state law, contained a waiver of
sovereign immunity from suit against the Board arising from
issuance of the state permit.    Alliance to Save the Mattaponi,
30 Va. App. at  696-701,  519 S.E.2d at  415-18.    That issue was
eliminated from this appeal by denial of the Board's assignment
of cross-error.    As amended in  2000, the statute now contains an
express waiver of such immunity from suit against the Board
arising from issuance of such a permit, as the result of
insertion of "62.1-44.15:5" in the first sentence of  §  62.l-
44.29.    Acts  2000, ch.  1032 at p.  2465; ch.  1054 at p.  2569.
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related to a final decision of the Board to issue a Virginia
Water Protection Permit is entitled to judicial review thereof
if such person meets the standard for obtaining judicial review
of a case or controversy under Article III of the United States
Constitution.
The statute goes on to establish the criteria for standing
that are at the core of these appeals:
"A person shall be deemed to meet such standard if  (i)
such person has suffered an actual or imminent injury
which is an invasion of a legally protected interest
and which is concrete and particularized;  (ii) such
injury is fairly traceable to the decision of the
Board and not the result of the independent action of
some third party not before the court; and  (iii) such
injury will likely be redressed by a favorable
decision by the court."
In its demurrers, the Board, among other contentions,
asserted that the state permit does not, of itself, authorize
the reservoir project, pointing out that the "permitting
authority" for the project belongs to the Corps.    According to
the Board, any injury resulting to the Alliance or the Tribe
from the project is as a result of the City's action following a
decision made by the Corps.    Therefore, said the Board, the
protestants fail to meet the standing requirements of  §  62.1-
44.29.
In its demurrers, the City also attacks the protesters'
standing to sue.    Advancing arguments similar to those of the
Board, the City contended the Alliance and the Tribe failed to
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meet statutory criteria  (i)  (actual or imminent injury) and  (ii)
(causation).    The City said that any injury suffered is not
caused by the Board's decision to issue the state permit, but
only results from the Corps' decision to award a federal permit.
In sustaining the demurrers, the circuit court ruled
without elaboration that the protesters lacked standing to
maintain the suits.
Affirming the judgment of the circuit court in the Alliance
suit, the Court of Appeals said that "the construction and
operation of the King William Reservoir project is contingent
upon the Corps' issuance of a  §  404 permit for the discharge of
fill material into Cohoke Creek."    Alliance to Save the
Mattaponi,  30 Va. App. at  706,  519 S.E.2d at  421.    Continuing,
the Court of Appeals noted that "[u]nder the applicable
statutory scheme, the Corps has exclusive authority to issue
such a permit upon finding that the project and its intended use
comply with the guidelines implementing the policies of the
[federal Act] and comport with the public interest.    The Board's
issuance of a  [state permit] does not compel the Corps to issue
a  §  404 permit."    Id. at  706-07,  519 S.E.2d at  421.
Therefore, the Court ruled, the protesters failed to
satisfy the second prong of the statutory test for standing; it
held that the protesters' "alleged injuries are the result of
the independent action of the Corps upon its authorization of
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the discharge of fill material into Cohoke Creek pursuant to
§  404 of the  [federal Act]."    Id. at  707,  519 S.E.2d at  421.
In affirming the circuit court's judgment in the Tribe's
suit, the Court of Appeals adopted its reasoning in Alliance to
Save the Mattaponi, and held that the Tribe also lacked standing
to sue.    Mattaponi Indian Tribe,  31 Va. App. at  476-77,  524
S.E.2d at  169-70.
The central question for our decision then becomes:    Did
the Court of Appeals err in holding that the protesters' alleged
injuries are not "fairly traceable to the decision of the
Board," but will be "the result of the independent action" of
the Corps, a third party not before the circuit court?
On appeal, the Board and the City contend the Court of
Appeals correctly affirmed the circuit court judgments.    The
Board urges, "Manifestly, the petitioners have made no claim of
injury that does not depend upon the award of the federal
permit.    The State action does not compel or authorize the
proposed Project; it merely allows the federal permitting
process to proceed."    Asserting that any injury does not stem
from the Board, it argues, "The alleged injuries will arise, if
at all, from the Project.    The Corps of Engineers authorizes the
Project and the City of Newport News will construct it."
The City urges that while  §  401 of the federal Act
"provides that federal permits cannot be issued without State
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certification,  .  .  . it does not require that a federal permit
must be issued if the State does grant certification.    Section
401 affords States the opportunity to veto or condition federal
permits, but it gives the States no power to authorize a project
over the objection of the federal permitting agency.    The
federal agency must conduct its own review and make its own
decision, pursuant to applicable laws."    Continuing, the City
argues that if and when the Corps issues a permit to build the
project, protesters can then litigate the issues raised here,
because the project construction and any resulting injuries will
then be "fairly traceable" to the Corps' decision.
We do not agree with either the Board or the City.    We hold
that the Alliance and the Tribe have standing under Code  §  62.1-
44.29, and that the Court of Appeals erred in ruling to the
contrary.
The language of Code  §  62.1-44.29 tracks the statements by
the United States Supreme Court about standing requirements
imposed by the "case" or "controversy" provisions of Article III
of the U.S. Constitution.    The standing doctrine requires  (1)
that the plaintiff has suffered an "injury in fact," an invasion
of a judicially cognizable interest that is  (a) concrete and
particularized and  (b) actual or imminent, not conjectural or
hypothetical;  (2) that there be a causal connection between the
injury and the conduct complained of, that is, the injury must
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be fairly traceable to the challenged action of the defendant,
and not the result of independent action of some third party not
before the court; and  (3) that it be likely, not merely
speculative, the injury will be redressed by the court's
favorable decision.    Bennett v. Spear,  520 U.S.  154,  167  (1997).
Pertinent to these appeals, the Supreme Court has said that
the "fairly traceable" prong does not mean that "the defendant's
actions are the very last step in the chain of causation."
While there is no standing if the injury complained of is the
result of "independent" action of some third party not before
the court, that prong does not exclude injury produced by the
effect of action of someone else.    Id. at  168-69.
However, "[w]hen the suit is one challenging the legality
of government action  .  .  .  , the nature and extent of facts that
must be averred  .  .  . in order to establish standing depends
considerably upon whether the plaintiff is himself an object of
the action  .  .  . at issue.    If he is, there is ordinarily little
question that the action  .  .  . has caused him injury, and that a
judgment preventing  .  .  . the action will redress it."    Lujan v.
Defenders of Wildlife,  504 U.S.  555,  561-62  (1992).    But when a
plaintiff's asserted injury arises from allegedly unlawful
regulation of someone else, "much more is needed.  .  .                  . Thus,
when the plaintiff is not himself the object of the government
action  .  .  . he challenges, standing is not precluded, but it is
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ordinarily 'substantially more difficult' to establish."    Id. at
562.
In the present appeals, we conclude that the injuries
alleged by the Alliance and the Tribe meet the "causation" prong
of the standing criteria, that is, the injuries alleged are
"fairly traceable" to the decision of the Board to award the
state permit, and are not the result of the independent action
of the Corps, a third party not before the circuit court.    In
other words, there is a causal connection between the injuries
and the conduct complained of.
The federal Act requires the state  §  401 certification to
ensure that the proposed activity will meet state water quality
standards and applicable effluent limitations.  33 U.S.C.
§  1341(a)(1).    The Commonwealth uses the state permit as the
vehicle for the  §  401 certification.
The certification is issued if the proposed project "is
consistent with the provisions of the  [federal Act] and will
protect instream beneficial uses."    Code  §  62.1-44.15:5(B).
Beneficial use of Virginia's waters includes the preservation of
instream flows for purposes of the protection of fish and
wildlife resources and habitat, recreation, cultural, and
aesthetic values.    Id.    The state permit establishes instream
flow conditions, that is, "conditions that limit the volume and
rate at which water may be withdrawn at certain times."              9 VAC
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25-210-110(1).    See Code  §  62.1-44.15:5(B).    Thus, the Board
alone must insure that the reservoir's operation does not
violate state water quality standards and will protect all
existing beneficial uses of the waters.
The Alliance and the Tribe challenge the state permit,
alleging that the Board disregarded the law and its own rules,
and did not adequately protect the foregoing interests.
Therefore, under the statutory scheme, the state permit,
while a condition precedent to issuance of the federal permit,
has its own existence, is separate from the federal permit, and
can cause injury.    The state permit is more than a mere step in
the federal application process; it has a life of its own, being
issued for a ten-year term and, more importantly, providing for
withdrawal of up to  75 mgd from the Mattaponi.
And, by no means are the alleged injuries the result of
independent action of the Corps.    The adjective "independent"
means "[n]ot dependent or contingent on something else."
Black's Law Dictionary  774  (7th ed.  1999).    Manifestly, the
federal permit is "contingent" upon issuance of the state
permit.
Moreover, no federal court or agency can review the state
permit.    U.S. v. Marathon Dev. Corp.,  867 F.2d  96,  102  (1st Cir.
1989)  (defects in a state's  §  401 certification can be redressed
only in state court, rather than federal court); see Am. Rivers,
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Inc. v. FERC,  129 F.3d  99,  110-11  (2nd Cir.  1997)  (same as to
federal agencies).    Accordingly, Virginia state courts are the
only forum in which the Alliance and the Tribe can seek redress
of their injuries.
Having determined that the protesters' allegations satisfy
the "causation" prong of the standing statute, we also conclude
that the remaining statutory requirements have been established
by the allegations.    The Alliance and the Tribe plainly are
"persons" who participated in the public comment process.    See
Code  §  62.1-44.3, defining "person."
We reject the Board's contention that the Tribe sues to
represent the interests of other persons and thus lacks standing
to bring suit in a representative capacity.    The Tribe is not
claiming in a representative capacity.    Rather, it possesses in
its own right justiciable interests in the subject matter of the
litigation, see Board of Supervisors v. Fralin & Waldron, Inc.,
222 Va.  218,  223,  278 S.E.2d  859,  862  (1981), and sues through
its Assistant Chief as authorized by the Tribal Council, the
"governmental body" of the sovereign Tribe.    See  §  62.1-44.3.
And, it is unnecessary to restate the protesters'
allegations to demonstrate they clearly establish the "injury in
fact" prong of the statute as well as the "redressibility"
prong, compliance with which the City has not challenged.
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Finally, we have considered all the remaining arguments of
the City and the Board and find them to be without merit.
Consequently, we will reverse the judgments appealed from
and will remand the cases to the Court of Appeals with direction
that they be remanded to the circuit court for trial upon the
merits of the protesters' claims.
Record No.  000509  — Reversed and remanded.
Record No.  992575  — Reversed and remanded.
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