Threatened Sensitive Joint Vetch as found in area of proposed KWR Intake on Mattaponi River, further endangered by King William Reservoir Project
King William Reservoir Opposition, Alliance To Save The Mattaponi, P.O. Box 150 Mattaponi, VA 23110-0150
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http://www.dailypress.com/news/dp-local_reservoir_0402apr02,0,589905.story 

dailypress.com

Court rules reservoir permit arbitrary and capricious

By Sabine Hirschauer

247-4536

April 2, 2009

NEWPORT NEWS— A U.S. District Court judge sided with several environmental groups late Tuesday, ruling that the Army Corps of Engineers "acted arbitrarily and capriciously" when it issued a construction permit for the controversial King William Reservoir project in 2005.

U.S. District Court Judge Henry H. Kennedy Jr. ruled Tuesday that the Corps was wrong when it found that the King William Reservoir "was the least damaging practicable alternative, that it would not cause or contribute to significant degradation of the waters of the United States, and that it (the reservoir) was in the public interest."

In addition to citing the Corps, the judge also ruled that the U.S. Environmental Protection Agency "acted arbitrarily and capriciously by considering factors outside of the scope of this statutory authority when it decided not to veto the permit."

Kennedy ordered the case to be "remanded," meaning sent back to the Army Corps of Engineers and the EPA.

The decision is the latest legal setback for the city's $289 million King William reservoir, which is scheduled to provide Peninsula customers with water by 2020.

The city's attorney's office is currently plowing through the 33-page ruling, trying to figure out what the court's decision means.

"It's a very lengthy document and we are reviewing it right now," said Allen Jackson, chief deputy city attorney.

In addition to the federal construction permit, Newport News currently holds two state permits for the reservoir, one from the Virginia State Water Control Board and another one from the Virginia Marine Resources Commission.

The Corps issued the federal permit for the 13 billion-gallon reservoir in November 2005 and the plaintiffs in the lawsuit — the Chesapeake Bay Foundation, the Alliance to Save the Mattaponi, the Virginia Chapter of the Sierra Club, and the Mattaponi Tribe —– filed the lawsuit in 2006.

"It's a great victory for all of us," said Deborah Murray, senior attorney with the Southern Environmental Law Center.

The center filed the suit in U.S. District Court in 2006 on behalf of the environmental groups, which have for years opposed the reservoir, citing myriad environmental effects including the destruction of more than 430 acres of wetlands.

The destruction "represents the single largest loss of wetlands in the Mid-Atlantic in the history of the Clean Water Act," Murray said.

The city, EPA and the Corps have 60 days after the judgment has been entered to file for an appeal. Jackson would not comment on whether the city plans to appeal the decision.

According to the court, the Corps has not adequately explained why the reservoir is the least damaging alternative. The judge found that the Corps limited its scope of alternatives because of "several important changes that occurred between 1997 and 2005," the opinion reads.

Those changes included that the projected water need decreased substantially between 1997 and 2005 and that the cost of the project increased while the amount of water it would produce decreased.

"The court simply does not have enough information to determine whether the change in water need presented a seriously different picture because it does not know whether other alternatives .... are now more practicable," the judge's opinion reads.

The King William Reservoir is projected to cost the city at least $289 million by the time it comes online in 2020.

Estimates of how much the reservoir will cost over the years ballooned from $75 million in 1989 to $250 million in 2006 and $289 million at the end of 2007.

What happened?

A federal judge sent plans for the Peninsula's future water supply back to the Army Corps of Engineers and the Environmental Protection Agency, ruling the agencies erred in approving the permit for the 13 billion-gallon reservoir.

What's next?

Newport News, the EPA and the Corps have 60 days to appeal.

Reservoir timeline

April 1993: Peninsula localities, headed by Newport News, endorse the reservoir as the preferred water supply source.

February 1994: An initial mitigation plan calls for restoring or creating one acre of wetlands to replace every acre destroyed. Later, officials realize the reservoir will destroy 653 acres of wetlands, and Newport News agrees to move a dam upstream.

August 1996: Newport News agrees to exceed the requirements of federal law by pledging to restore or create two acres of wetlands for every one acre destroyed.

July 2001: Col. Allan Carroll, who heads the Army Corps of Engineers' office in Norfolk, recommends denial of a federal permit. He says damage to wetlands and wildlife isn't justified because the area needs less water than originally projected.

October 2002: Brig. Gen. M. Stephen Rhoades, who heads the Army Corps' division office in New York, reverses the agency's opposition. Rhoades says the reservoir could help the Chesapeake Bay watershed by preserving several thousand acres from more intense development.

February 2005: The Army Corps closes a public comment period regarding a plan to restore or create 806 acres of wetlands to replace 403 acres lost to construction.

November 2005: The Supreme Court of Virginia unanimously rules that the State Water Control Board properly issued the permit for the estimated $150 million, 12.2 billion gallon reservoir on the Mattaponi River.

June 2006: The U.S. Supreme Court refuses to take up the Mattaponi Indian tribe's challenge of the reservoir.

September 2006: The State Water Control Board refuses to extend a permit for Newport News to work on the King William Reservoir.

October 2006: The Newport News City Council agrees to set aside $3.76 million in bonds for the reservoir. Most of the money — at least about $2.1 million — will go toward legal fees to defend the reservoir in court.

November 2006: Newport News asks the state to reconsider its decision not to extend a permit that the city needs to build the reservoir.

Dec. 11, 2006: The staff for the State Water Control Board recommends the board extend the permit to build the reservoir.

February 2007: Chesapeake Bay Foundation challenges State Water Control Board's permit extension

2010: City has to apply for state Water Control Board permit.

About the reservoir

13 billion Projected capacity, in gallons

$289 Million Projected cost

437 Number of acres of wetlands that would be destroyed

Copyright © 2009, Newport News, Va., Daily Press


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