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Permit denial puts Virginia reservoir project in limbo Mattaponi lawsuit will continue

RICHMOND, Va. – After nearly 20 years, the Mattaponi Indian Tribe remains steadfast in its fight against the construction of a reservoir near its reservation.

During that time, the reservoir project has meandered through ups and downs as the city of Newport News, which proposed the 1,524-acre reservoir, and opponents to the project follow a permit-approval process that has been lengthy, bureaucratic and expensive.

A suit the tribe filed against Newport News for violating Mattaponi treaty rights in proposing the project will head to court in June next year.

But in September, the State Water Control Board, a regulatory agency within the Virginia Department of Environmental Quality, dealt yet another setback to the city when the agency denied an extension of a necessary permit for the reservoir construction.

“I think the only thing one should read into this is there is a lot of new information, and there are a lot of requirements the city hasn’t completed,” said David Bailey, the Mattaponi’s attorney.

The SWCB permit, which allows the city to withdraw water from the Mattaponi River to fill the reservoir, will expire at the end of 2007. With the extension denied, the city will need to reapply for the permit.

While those opposed to the reservoir’s construction have considered the denial a victory, Newport News officials do not and will reapply for the state permit, according to LeeAnn Hartmann, Newport News Waterworks public information officer.

“We look at it that we still haven’t lost anything,” Hartmann said. “We still have all of the permits needed for the project.”

For opponents, however, the denial of the permit extension indicates state officials weren’t satisfied with what the city has completed so far.

“The DEQ permit only satisfies a state regulatory requirement,” Bailey said. “The DEQ permit does not convey any property rights. The fact that Newport News has a permit has no impact whatsoever on the tribe’s treaty rights.”

The tribe, researchers and environmentalists argue that withdrawal of water from the Mattaponi River, which runs alongside the tribe’s shad hatchery and reservation, may harm the spawning of shad. Members of the tribe have cultural, religious and economic ties to the river, which they replenish annually with shad from a hatchery members have operated for generations.

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Newport News has argued that it has a water withdrawal plan that will prevent harm to the shad and that the peninsula residents in the Hampton Roads metropolitan area have future water needs the reservoir will supply.

The loss of wetlands and American Indian archaeological sites remain other reasons opponents fight the reservoir’s construction.

The Mattaponi Tribe’s fight has extended beyond just opposing the reservoir construction. Members had to prove that as a state-recognized tribe with a reservation, they had rights as a sovereign entity.

In 2005, the Virginia Supreme Court heard the tribe’s appeal that the Treaty at Middle Plantation of 1677 provided the tribe with rights, one being protection from encroachment on or near its reservation.

The lower courts in Virginia had argued that they had no jurisdiction to review the tribe’s treaty claims. In November 2005, the state Supreme Court issued an opinion noting that the Treaty at Middle Plantation falls under Virginia law, not federal law, adding that the Mattaponi can’t sue the state or “its agencies, or its officers for violating the Treaty because Virginia is protected by sovereign immunity,” according to the Mattaponi’s attorneys with the Georgetown University Law Center’s Institute for Public Representation. “The Court also held, however, that the Treaty is enforceable against parties other than the state and that the Virginia circuit courts had jurisdiction to hear Treaty claims.”

Clearly, the Supreme Court held the tribe had rights, Bailey said. “But the status of the tribe’s treaty remains uncertain today.”

The Mattaponi appealed the state Supreme Court’s decision that the Treaty at Middle Plantation fell under state, not federal, law with the U.S. Supreme Court. However, the U.S. Supreme Court denied the tribe’s petition in June.

In June 2007, the Mattaponi will go to trial against Newport News, regarding treaty violations by the city, Bailey said. The tribe has since amended its suit against Newport News, adding the city of Williamsburg and the counties of York, James City, New Kent and King William since these municipalities are part of the Regional Raw Water Study Group and have an interest in the reservoir water.

Newport News will reapply for a water withdrawal permit next year, Hartmann said. The city also will begin an archaeological study of the area for historic resources mitigation.

“We don’t know how long this process will take,” Hartman said.

The city also has completed a mitigation plan with the Mattaponi, Upper Mattaponi and Pamunkey Indian tribes, Hartmann said; however, the mitigation plan includes a confidentiality agreement, preventing the city from discussing compensation to the tribes.