Updated:
Original:

Reservoir project sent back to state

NORFOLK, Va. - A city seeking a permit necessary to build a 1,524-acre reservoir between Virginia's only two Indian reservations will get the chance to cross-examine experts and witnesses who testified against the project last year.

Judge Marc Jacobson of the Norfolk Circuit Court, who mailed made his decision Jan. 6, gave the city of Newport News the right to a formal "evidentiary" hearing with a state agency that in May denied city a necessary permit for the reservoir project.

The city's court appeal for a formal hearing resulted from the Virginia Marine Resource Commission's denial of a permit that would have allowed the city to place an intake pipe in the Mattaponi River in King William County to pump water to the proposed reservoir. Two weeks after the permit denial, the city filed a petition for a formal hearing, which the VMRC also denied.

Now with the case being referred back to the VMRC, the Mattaponi Indian Tribe, which has filed several appeals along with a stay in the case, again plans to file another stay until its appeals can be heard, said David Bailey, the Mattaponi's attorney.

"The tribe is not going to lie down and take this," Bailey said.

Eric Albert, an attorney with the Institute for Public Representation at Georgetown University and who is also representing the Mattaponi, said the tribe is not happy with the judge's decision.

"The tribe is going to press forward with its appeal of the judge's denial of their request to intervene in the case," Albert said.

A spokeswoman for the Virginia Attorney General Jerry Kilgore's office said the Attorney General's Office is working with its client, the VMRC, to decide whether to appeal the judge's decision or to move forward with the judge's decision for a full hearing.

Although Kilgore's office defended the VMRC in the appeal, Kilgore, in a letter to the VMRC last year, had told the agency that a formal hearing would enable the state to lay out the case.

"We believe having a formal hearing allows us to build a case, if we get involved in litigation down the road," said Carrie Cantrell, a spokeswoman for the Attorney General's Office. "This will allow both sides to put forward their evidence. We are in discussion with our client and will make a decision on what is in the best interests of the Commonwealth."

The judge's decision may impact the Mattaponi and Pamunkey Indian tribes, who have reservations adjacent to the proposed reservoir site, if overturning of the VMRC's decision on the city permit is sought. The two tribes both operate shad fisheries and replenish the Mattaponi and Pamunkey rivers each spring. An intake pipe in the Mattaponi River, scientists have said, would harm an already endangered shad fish, especially if water withdrawal from the river occurs during the spawning season.

"Judge Jacobson's opinion may have far reaching consequences for the VMRC, too," Albert said.