Wald, Elise S.

English

University of Denver

Water Law Review Volume 2 Issue 1 Article 41 9-1-1998 Treacy v. Smithfield Foods, Inc., 500 S.E.2d 503 (Va. 1998) Elise S. Wald Follow this and additional works at: https://digitalcommons.du.edu/wlr Custom Citation Elise S. Wald, Court Report, Treacy v. Smithfield Foods, Inc., 500 S.E.2d 503 (Va. 1998), 2 U. Denv. Water L. Rev. 156 (1998). This Court Report is brought to you for free and open access by the University of Denver Sturm College of Law at Digital Commons @ DU. It has been accepted for inclusion in Water Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact jennifer.cox@du.edu,dig-commons@du.edu. WATER LAW RE VIEWThe petitioner Joann Russell-Smith ("Russell-Smith") and her hus-band acquired a certificate for water rights for domestic use on two ad-joining properties called lots 4 and 5. Russell-Smith lived on lot 4 andrented lot 5 to others. The certificate authorized diversion of waterfrom an "unnamed spring" and identified a particular point of diver-sion ("POD") where the certificate authorized the owner to take waterfrom that source. From 1977 to the present, the various owners of thetwo properties captured water at the authorized POD in a collectionbox. Overflow from the collection box, as well as water flowing fromthe unnamed spring near the collection box, flowed into an intermit-tent stream that ran near lot 5. Renters, and later owners, of lot 5 usedthe water from the intermittent stream. In early April 1996, the pres-ent owners of lot 4 filed documents with the Water Resources Depart-ment claiming statutory nonuse of the water from the intermittentstream. The owners asked for a cancellation of that portion of the oldwater right appurtenant to lot 5. The present owners claimed that be-cause use of the water was from a place other than the described PODin the certificate, it met the statutory definition of nonuse.The main issue was whether a holder of a water right, who takeswater from the authorized source but does so from an unauthorizedPOD has failed to use all or part of the water appropriated, thus, trig-gering forfeiture of the water right. The court concluded that if, ashere, a certificate holder makes an unauthorized change of POD, butcontinues to use water from a designated source in a designatedamount and for the designated use, there is no "failure to use" withinthe meaning of the statute.The court reasoned that although there are special rules that a wa-ter user must follow when the user changes the POD, the key issue inforfeiture for non-use is use, and not whether the user failed to complywith statutory procedures for changing the POD. Oregon's water lawtreats "use," "beneficial use," and "point of diversion" as distinct con-cepts. The statute in question focuses on "use" and "beneficial use,"and makes no reference to "point of diversion." Although other stat-utes do speak to unauthorized changes in point of diversion, none re-fer to forfeiture as a consequence or remedy.Moreover, nothing suggests that the legislature, in enacting theforfeiture statute, intended an unauthorized change in POD to giverise to forfeiture.Joseph A. DawsonVIRGINIATreacy v. Smithfield Foods, Inc., 500 S.E.2d 503 (Va. 1998) (holdingthat food company failed to demonstrate ajusticiable controversy withrespect to modification of a state pollution discharge permit).Volume 2COURT REPORTSSmithfield Foods owned subsidiary corporations that operated twopork processing plants in Isle of Wight County. In 1986, the State Wa-ter Control Board (the "Board"), through the Commonwealth of Vir-ginia, issued a permit that regulated the wastewater Smithfield dis-charged into the Pagan River. The Board later modified the permit,adding a compliance schedule for the construction of facilities thatwould meet a monthly average effluent limitation of phosphorous andlimited nitrogen. Smithfield appealed the modification, challengingthe phosphorous standards that were set forth by the Board.In 1991, a special order was issued in which Smithfield agreed todismiss its appeal and to decide within a specified time if it wouldcomply with the permit. Smithfield agreed one month later to con-nect its wastewater plants to the Hampton Roads Sanitation Districtwastewater plant. In 1992, a new permit was issued with the samephosphorous levels.In 1996, the Board filed a complaint alleging that Smithfieldcommitted numerous permit violations and violated the special order.The EPA then filed suit against Smithfield in the U.S. District Courtseeking penalties under the Clean Water Act for violations of certaineffluent standards, including phosphorous and TRN standards in the1992 permit. Smithfield filed a cross-bill seeking declaratory judgmentthat the special order revised, superseded, and replaced the earlierpermit.The Chancellor issued the declaratory judgment that the phospho-rous standards were inconsistent with the special order. The Com-monwealth appealed, arguing that there was no controversy at issuebecause they had agreed that the special order precedes the permits.Smithfield however, argued that there was a controversy because thespecial order was a contract with the Commonwealth which the Com-monwealth breached by issuing the 1992 permit.The Virginia Supreme Court held that Smithfield was not entitledto a declaratory judgment because it failed to demonstrate ajusticiablecontroversy. The court found that to be justiciable a controversy mustinvolve specific adverse claims that are based on present, not future orspeculative, facts that are ripe for justiciable assessment. Thus, thetrial court did not have authority to issue an advisory opinion or an-swer speculative inquiries. No controversy existed with the Common-wealth because they agreed on the importance of the special order.Rather, the controversy was with the EPA in the federal case againstSmithfield and it should have been pursued it that forum.Elise S. WaldWASHINGTONTiegs v. Watts, 954 P.2d 877 (Wash. 1998) (affirming a lower courtdecision which held Defendants liable for breach of a farm lease andIssue I

Treacy v. Smithfield Foods, Inc., 500 S.E.2d 503 (Va. 1998)

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Treacy v. Smithfield Foods, Inc., 500 S.E.2d 503 (Va. 1998)

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