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Newport News gets permit to place pipe in Mattaponi River

JAMES CITY, Va. - The city of Newport News moved a step closer Aug. 12 to
constructing a 1,524-acre reservoir when a state agency reversed its
decision and approved one of several necessary permits to build it.

The reversal made by the Virginia Marine Resources Commission served as a
major upset for opponents - the Mattaponi Indian Tribe and numerous
environmental groups - who walked away from hearings more than a year ago
pleased when the commission denied the permit.

But after a year of appeals, court hearings and proposed legislation to
bypass and change the VMRC decision, the city ultimately got what it
wanted.

With a permit allowing Newport News to place an intake pipe in the
Mattaponi River, it will be able to pump up to 75 million gallons of water
a day to the reservoir it plans to construct adjacent to the Mattaponi
Indian Reservation.

The VMRC staff had recommended a deferment of the construction until an
eight-year study had been completed on the river and the species that live
in and around it. But Newport News will conduct a study during the
construction phase of the project before it opens the reservoir.

Last year, the VMRC voted six to two against the permit - but with two new
members on the board voting in favor of the permit and a change of opinion
by a commissioner who voted against the permit last year, the permit
received approval by a five to three vote.

David Bailey, Mattaponi Indian Tribe attorney, wouldn't state for certain
at the hearings if the tribe would file a lawsuit against the VMRC. But the
Sierra Club, Virginia Chapter, which has also opposed the reservoir, has
asked Gov. Mark Warner to intervene. In a letter dated Aug. 13, the Sierra
Club, Virginia Chapter, told the governor that the State Department of
Environmental Quality permit, which allows the withdrawal of water and the
VMRC permit aren't consistent.

"We are requesting a public comment hearing in the evening," said Michael
D. Town, Sierra Club, Virginia Chapter director.

But Gov. Warner's press secretary, Ellen Qualls, said the governor has
tried to stay out of the reservoir debate and let the scientists make the
decisions on the reservoir issue.

Because the VMRC extended the hiatus period to five months - meaning the
city can't pump water from March to the end of July when the endangered
American Shad fish are spawning - Town said there is little information
about how extensive pumping in the fall will affect the river flow.

Mattaponi Chief Carl Custalow told the VMRC at the two hearings that the
tribe continues to oppose the reservoir, and that the pumping of water from
the river would harm an already endangered fish that the tribe has survived
off of for many generations.

The tribe, he said, built a 2,000-square-foot, state-of-the-art shad
hatchery and marine sciences center in 2000 to replenish the shad stock in
the river. The Mattaponi's hatchery produces 4 - 6 million fry a year,
which are tagged and released directly into the Mattaponi River, he said.

"Through the hatchery, the tribe has helped maintain the struggling shad
population in the river, making it one of the healthiest river systems on
the East Coast," Custalow said. "My father always told us that we must take
care of the river, and it will take care of us. And if we take from the
river, we must also put back. This has been the driving force of our
hatchery efforts for many years."

Custalow told the commission that the shad don't start and stop spawning on
a specific date. And if the shad population and spawning grounds were
harmed, the tribe's hatchery wouldn't be able to continue to operate.

"The time and money spent will have been in vain, and the tribe will have
to depart from its traditional methods of life," he said.

While the permit conditions require the city to halt pumping of water for
five months, the governor can override that in drought emergencies, said
Tony Watkinson, VMRC habitat management deputy chief, in his report to the
commission.

Newport News officials presented information from a panel of experts it
hired to resolve issues with the potential for harming the shad. In a video
presentation, the city showed the types of screens that would be used near
the intake pipe to prevent shad from being sucked up during the pumping.
The city also created test situations during its studies using shad to
determine their movements.

While their studies proved convincing to the commission, other experts and
opponents of the reservoir argued that the studies the city conducted
weren't conclusive and that a longer study period was needed because of the
lack of data on the shad spawning and life cycle.

During a break in the first day of the hearing, Dr. Linwood Custalow,
brother of the chief, said the city and commission have discussed the wrong
point.

"They're arguing about the filtration; they should be arguing about the
water need," Linwood Custalow said.

In 2001, the U.S. Army Corps of Engineers' Norfolk District Office
recommended denial of the project, in part, because it said the city's
water needs were overstated. But this factor didn't prove to be an issue in
2002 for the Army Corps of Engineers' North Atlantic Division office in New
York, which took over review of the project after then-Gov. James Gilmore
asked the federal agency to change its opinion.

In order to get final approval for the reservoir project from the Army
Corps of Engineers, Newport News still must complete a mitigation plan for
compensating the Mattaponi, Pamunkey and Upper Mattaponi Indian tribes as
well as state historic resources for losses. The city also has to update a
plan to replace wetlands it will destroy and it must assure that its plans
don't violate a state coastal consistency agreement.