Judge rules against permit essential to Peninsula reservoir
By Scott Harper
© April 2, 2009
A federal judge has thrown out a key permit for the proposed King William Reservoir, putting in jeopardy the massive project that would supply drinking water to thousands of homes and businesses on the Peninsula.
In a written decision, U.S. District Judge Henry H. Kennedy Jr. ruled Tuesday night that federal regulators erred and overlooked environmental problems and other shortcomings when they OK'd plans for the $289 million reservoir in 2005.
Kennedy said the Army Corps of Engineers acted "arbitrarily and capriciously" in the permitting process, and that the U.S. Environmental Protection Agency could have vetoed the project but chose not to - even after its own officials called plans ecologically ruinous.
Environmentalists and Native Americans, who have fought the project for two decades, cheered the ruling.
They said they hoped its primary sponsor, Newport News Waterworks, would abandon its plans and move on.
"This project was ill-conceived and environmentally destructive when it was proposed 20 years ago, and the court is saying it still is," said Jon Mueller, an attorney for the Chesapeake Bay Foundation, one of several advocacy groups that sued the government for permitting the reservoir four years ago.
Conceived in the 1980s, the project would create a 1,526-acre reservoir on Cohoke Creek in King William County. It would supply 19 million gallons of water per day to numerous communities on the Peninsula, and is touted by political and business leaders as vital to economic growth.
But its intake pipe would be about 3 miles from a Native American reservation and would flood cultural sites. It also would destroy 403 acres of wetlands and eliminate 21 miles of free-flowing streams, according to court documents.
The reservoir, meant to supply water for 40 years, has been rejected several times during its contentious life - including in 2001, by the Norfolk district of the Army Corps, which found the project too destructive.
State regulatory panels, too, have blocked plans before - only to resurrect them months later. The project has obtained all of its state permits and needs only a corps permit before construction can begin.
Allen Jackson, chief deputy city attorney for Newport News, said officials were studying the decision Wednesday and had not decided whether to appeal or even how to interrupt the ruling.
"You're always disappointed when things go against you," Jackson said. He noted that Kennedy never heard oral arguments in the case but relied on legal briefs. Kennedy surprised both sides by canceling planned arguments in January.
Spokespeople for the Army Corps in Norfolk and the Department of Justice in Washington declined to comment Wednesday.
Deborah Murray, an attorney for the Southern Environmental Law Center, said the invalidated permit will go back to the corps and the EPA to "redraw and reconsider" its safeguards and details.
Murray was especially pleased that Kennedy sided with her arguments on all but one point, agreeing that Newport News had inflated its need for the reservoir and had never shown that the final plan was the least destructive to the environment, as required under the Clean Water Act.
"This was a big one for us," Murray said Wednesday. "I'm still over the moon about it."
Scott Harper, (757) 446-2340, firstname.lastname@example.org