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Federal judge finds issues with King William County, Va. reservoir permits

KING WILLIAM COUNTY, Va. – A federal judge may have pulled the plug, for now, on the construction of a 1,526-acre reservoir proposed near the Mattaponi Indian Reservation in King William County, Va.

Judge Henry H. Kennedy Jr., of the U.S. District Court in Washington, D.C., in an opinion wrote that the federal agencies involved in reviewing the project acted “arbitrarily and capriciously” for failing to consider significant problems with the proposed reservoir when issuing a permit for it.

The agencies in question were the North Atlantic Division of the U.S. Army Corps of Engineers in New York and the Environmental Protection Agency.

The judge’s opinion, issued March 31, resulted from a lawsuit filed by the Alliance to Save the Mattaponi, Chesapeake Bay Foundation, Sierra Club, Virginia Chapter, and intervener-plaintiffs Carl T. Lone Eagle Custalow, chief of the Mattaponi Indian Tribe, and the Mattaponi Indian Tribe against the U.S. Army Corps of Engineers, the Environmental Protection Agency and other federal officials with the agencies.

“The judge’s finding certainly puts a pretty big wrinkle in the proposal,” said Melanie Kleiss Boerger, Institute for Public Representation staff attorney, who represented the Mattaponi Indian Tribe. “We were very glad that the court recognized the significant legal problems with the permit for the reservoir.”

What happens next, she said, depends on what the city of Newport News, the corps and the EPA choose to do. All three have 60 days in which to appeal.

Neither the EPA nor the Army Corps offices were available for comment regarding the judge’s opinion. When asked if the city planned to appeal the decision, Newport News Chief Deputy City Attorney Allen Jackson said, “We have not made any decision about how to respond.”

The reservoir project in question has been opposed for years by environmentalists and the Mattaponi Indian Tribe; it would be constructed near its reservation and would result in massive pumping of water from the Mattaponi River.

Opponents have argued that this massive pumping to supply the reservoir would affect the spawning of the endangered shad. The Mattaponi Tribe maintains a shad hatchery to replenish the river and has done so for centuries. In addition, the construction of the reservoir would result in the flooding of artifacts and historic sites and the destruction of more than 400 acres of wetlands as well as the wildlife and aquatic habitats there.

In Kennedy’s opinion, he wrote that the corps and the EPA must follow the Clean Water Act, which prohibits permitting projects where an alternative exists in order to avoid “adverse environmental impact.

“Second, a permit may not be issued where it ‘will cause or contribute to significant degradation of the waters of the United States,’ which includes significantly adverse effects on the ‘life stages of aquatic life and other wildlife dependent on aquatic ecosystems’ and ‘loss of fish and wildlife habitat.’”

Regarding the EPA’s role in the case, the Clean Water Act gives an EPA administrator the authority to veto a project if it will “have an unacceptable adverse affect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas,” Kennedy wrote.

But the EPA administrator who chose not to veto the project when he had the authority to do so based his decision on factors “outside of the scope of its statutory authority when it decided not to veto the permit,” according to the judge’s opinion.

Kennedy also found that the corps’ New York office didn’t analyze a number of issues that had been raised, which the Norfolk office of the corps had.

Newport News has spent millions on the proposed project, which has been estimated to cost $200 million to complete, and pursued the reservoir construction, even though the Army Corps’ Norfolk, Va., district office recommended denial of the project in 2001.

At the time, the Norfolk office said there were alternatives to the project, it would not be in the public interest and it would significantly degrade waters of the United States. “The EPA and the Fish and Wildlife Service agreed with the Norfolk District’s recommended decision,” Kennedy wrote.

But when Newport News sought help from Virginia’s governor, who disagreed with the corps’ decision, the governor’s disapproval invoked a corps procedure requiring the project be sent for review to another district office.

In 2002, the Army Corps’ North Atlantic Division in New York allowed the city to revise its plan and seek the necessary permits for the reservoir’s approval.

For the Mattaponi, a crucial issue rests with the loss of shad spawning beds that would harm the tribe’s fish hatchery operated on the Mattaponi River.

Also, the proposed reservoir would result in the flooding of sacred and religious sites of both the Mattaponi and Pamunkey Indians, and the Mattaponi tribe’s plans to expand its reservation would also be affected.