WEST POINT, Va. - Failed attempts to sidestep the regulatory process to obtain permits for a massive reservoir have brought the city of Newport News back to the negotiating table with a state agency.
During a closed session Feb. 24, the Virginia Marine Resources Commission and Newport News agreed to sign an agreement, if approved by both the Newport News City Council and Norfolk Circuit Court Judge Marc Jacobson, to hold a supplemental hearing in August.
The agreement to hold the "supplemental" hearing comes nearly two months after the city officials sought legislation through the Virginia General Assembly for an easement in the Mattaponi River near the Mattaponi and Pamunkey Indian reservations. This easement would have allowed the city to place an intake pipe in the river to pump water to its proposed reservoir in King William County.
"The supplemental hearing will be focused on fishery issues related to the water intake structure," said Wilford Kale, VMRC senior staff advisor. "There'll also be a chance for public comment. Every effort will be made, so the public is well informed."
Although the reservoir legislation gained support in both the Virginia House of Delegates and Senate, the city asked that both bills be tabled once it began negotiating with the VMRC again.
The Mattaponi Indian Tribe, which awaits action on several appeals regarding reservoir permits and issues, mailed letters in January urging legislators to oppose the bills.
"The bills violate Virginia's obligations to the Tribe under the 1677 Treaty at Middle Plantation by infringing on the Tribe's treaty-protected right to fish in the Mattaponi River and by facilitating the flooding of treaty-protected land that contains important tribal archaeological and cultural sites," the tribe wrote in a press release.
The introduction of the bills came one week after a Norfolk Circuit Court judge ruled that a state agency, which denied the city a necessary permit for the reservoir project, must grant the city a formal hearing.
About the same time, the Virginia Marine Resources Commission in a special hearing voted unanimously to appeal Jacobson's decision. The city had asked the VMRC to grant it a formal hearing last year after the agency denied the city a permit to place an intake pipe in the Mattaponi River in May. While Jacobson's opinion hasn't become final, Kale said the recent agreement with the city, if approved by the judge, would vacate the proceedings and the judge's opinion for the formal hearing.
Even though the bills have been tabled, the city can ask that they be reintroduced, if it wants.
"But in the agreement with the VMRC, the decision made at the end of the supplemental hearing will utilize all information already on the record to this point," Kale said. "The city attorneys cannot cross-examine the Virginia Institute of Marine Science scientists, our scientific advisors."
Eric Albert, Mattaponi attorney with the Institute for Public Representation at Georgetown University, said the city still needs to get certification under the Coastal Zone Management Act, a federal law administered under the Virginia Department of Environmental Quality. The city also must approve mitigation plans for wetlands and cultural losses to the tribes, Albert said.
"As far as getting approval for the project, Newport News has some incompletes if this were a report card," Albert said. "They've already gotten an 'F' from the VMRC. Newport News couldn't succeed under the rules, and they're trying to change the rules."
Newport News continues to fight to construct the reservoir in King William County between the state's only two Indian reservations despite a recommended denial of the project from the U.S. Army Corps of Engineers' Norfolk District Office in 2001. The Army Corps' scientists in Norfolk in a document of more than 350 pages cited scientific reasons why the project at its proposed location wasn't a good idea.
When the city received this letter stating the intentions of the Army Corps' district office, it sought intervention from then-Gov. James Gilmore, who in a letter urged the district office to reconsider its position.
Gilmore's involvement required, according to Army Corps' policy, the Army Corps' district office to forward the project to the North Atlantic Division Office in New York. The New York office after one year of review gave the city another chance to obtain necessary permits in order to obtain a final permit from the Army Corps for the project.
For the Mattaponi, Upper Mattaponi and Pamunkey Indian tribes caught in the middle of the proposed location, the loss of cultural and religious sites has been one of many issues the tribes have raised in their opposition. Newport News officials, who at one point offered the tribes money as a settlement, have accused the Indians of fabricating stories about sacred sites.
But the tribes' livelihood, too, stands to be harmed. Both the Mattaponi and the Pamunkey Indian tribes operate shad fisheries. This is a practice both tribes have conducted in the rivers for centuries, according to Todd Custalow, Mattaponi fisheries' manager and Mattaponi Chief Carl Custalow's son.
With the city's proposal to place an intake pipe in the heart of shad spawning beds, the tribes and scientists have argued that the endangered shad would be harmed.
Even though the city of Newport News stated at the VMRC hearings last year that it wouldn't pump water during the shad spawning season, the VMRC along with the Virginia Marine Institute argued the potential harm to the shad and other fish still exists.
Another issue the tribes have raised is the increased salinity in the Mattaponi River, a tidal river. The Army Corps' Norfolk District Office, too, cited possible problems the potential for increased salinity in the Mattaponi River if the 75 million gallons of water a day are pumped from the river to the reservoir.
The Mattaponi isn't alone in the fight over the reservoir, several environmental groups, including the Sierra Club, continue to fight the reservoir plans. But the environmental groups, represented by the Southern Environmental Law Center, too, have had their lawsuits against the city and their requests to intervene denied.