Newport News files lawsuit to revive reservoir project

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NEWPORT NEWS, Va. - The fight over a 1,500-acre reservoir that would sit in the middle of Virginia's two Indian reservations - the homes of Chief Powhatan and Pocahontas descendants - has moved to the courts.

On June 25, the city of Newport News filed a lawsuit in Circuit Court appealing the Virginia Marine Resource Commission's May 14 decision to deny the city a necessary permit, one of several, that would enable it to build the reservoir in King William County.

The city's filed the suit after a final appeal to the VMRC for a formal hearing was denied by a 5-to-3 vote. Such a hearing would have allowed the city to cross-examine witnesses opposed to the reservoir and would have given the city a record of information for its lawsuit.

Newport News then filed an administrative appeal in Newport News Circuit Court citing the VMRC's denial of a permit to install a water intake structure for its proposed King William Reservoir Project as one of its reasons, said James E. Ryan Jr., attorney with Troutman Sanders LLP of Richmond and outside counsel for Newport News.

"We were denied a formal evidentiary hearing, and we claim a right to have such a hearing on demand," said Ryan, who added that such a hearing would allow the city to present its evidence in a trial-like setting and to examine and cross-examine witnesses. "We also claim that the decision the Commission reached denying the permit was arbitrary. The Commission based its decision on effects on fishery resources in the Mattaponi River."

The Commission gave the city no credit for the state-of-the-art screen Newport News plans to use on the water intake, Ryan said.

"In addition, the city had proffered that it would not pump water during the 60-day spawning season, with one exception, and that was if there were a declared water emergency," Ryan said.

Such an emergency happens about once in a generation and last occurred in 2002, Ryan said.

Wilford Kale, VMRC senior staff advisor, said the lawsuit filed by the Newport News is allowed by the Code of Virginia as an appeal process. Newport News, Kale said, had already filed a notice of appeal to the VMRC, acknowledging the city's intentions to file lawsuit against the commission.

"We have no comment on the lawsuit at all," Kale said.

Although the Virginia Attorney General's office will represent the VMRC, the agency had sought legal advice from Attorney General Jerry Kilgore in June regarding Newport News' request for a formal hearing. Kilgore told the VMRC in a June 10 letter, "I urge the Commission to consider granting a formal hearing in this matter."

Kilgore further noted in his letter that holding a formal hearing could strengthen the commission's position should the city decide to appeal the VMRC's decision to the Circuit Court.

"The city had challenged that they had an inherent right by law [to the formal hearing]," Kale said. "The letter doesn't say that. But the attorney general asked us to do some other things. He urged us to hold a formal hearing. To my knowledge, we have never held such a hearing, and the agency is over 125 years old. We were founded in 1875."

Kale said the VMRC discussed the potential lawsuit in executive session, but no discussion of how the commission would vote took place.

For the Mattaponi and Pamunkey Indians, the VMRC's denial of the formal hearing this week came as good news. The Mattaponi Indian Tribe, too, has a lawsuit against the State Water Control Board for granting Newport News a permit to pump water from the Mattaponi River to the proposed reservoir site several years ago. Now, the city's lawsuit keeps the tribes' future in a flux - once again.

"The tribe is very pleased that the Commission was not swayed by political pressure that has no place in an administrative proceeding, which is supposed to be about the facts and the law," said Mike Beach, Mattaponi attorney and attorney with the Institute for Public Representation at Georgetown University. "The commission was absolutely correct to deny a request for a formal hearing given the city's motive for seeking such a hearing was to constrain the factual record."

The Attorney General made it clear that a formal hearing should only serve to broaden the record, Beach said.

"This case was already replete with expert testimony and voluminous studies and analyses," Beach said.

The Mattaponi Indians have fought against the proposed reservoir for years, arguing that the structure and withdrawal of water, up to 75,000 gallons of water a day from the Mattaponi River, would harm the tribe's shad fishery, reservation, religious practices and way of life.

Without the VMRC permit, the U.S. Army Corps of Engineers, which has final approval of the project, can't grant the city permission to build the reservoir.

Newport News sought assistance a second time in May from the Virginia governor. This time, however, Gov. Mark Warner has declined to get involved. It's the second time the city sought help from the governor's office. In 1999, the city asked then-Gov. Jim Gilmore to ask the Army Corps of Engineer's Norfolk District office to approve the project.

The Norfolk District office had, at that time, told Newport News it planned to deny the permit because the need for the water had been overstated, and there were many environmental concerns to be addressed such as a loss of 400 acres of wetlands and losses to the tribes.

With Gilmore's opposition to the Army Corps' district office opinion, the project was then moved to the Army Corps of Engineers North Atlantic Division office, which gave the city another shot at building the reservoir. The city then had three major requirements before the Army Corps of Engineers would consider the project, one of those was the intake pipe permit from the VMRC.