Groups sue Army Corps to stop reservoir project in coastal Virginia

Washington DC - Conservation groups filed a lawsuit today against the Army Corps of Engineers for violating federal environmental laws in approving a permit for a proposed dam and 1,500-acre reservoir in the Pamunkey River watershed in King William County. The permit violates the Clean Water Act and the Chesapeake 2000 Agreement and is based on a faulty and outdated environmental impact study in violation of the National Environmental Policy Act, the groups said.

The suit was filed in the U.S. District Court of the District of Columbia by the Southern Environmental Law Center on behalf of the Virginia Chapter of the Sierra Club, Alliance to Save the Mattaponi and Chesapeake Bay Foundation. Click here for a copy of the complaint (pdf: 58 pages).

The proposed King William reservoir would flood more than 400 acres of wetlands - the single largest permitted destruction of wetlands in Virginia since the Clean Water Act was enacted more than 30 years ago. It would also inundate 21 stream miles, destroy hundreds of Native American archaeological and cultural sites, and jeopardize the livelihood and quality of life of local Native American tribes. The project is being proposed by Newport News and a consortium of five other Virginia localities. Newport News estimates the project cost at more than $240 million, which will be paid by water consumers in the city, Hampton Roads, Poquoson, Williamsburg, and James City and York counties.

"The Corps's own staff refused to issue a permit because the evidence shows that Newport News greatly exaggerated its water needs, making the reservoir wholly unnecessary," said Deborah Murray, senior attorney with the Southern Environmental Law Center, a nonprofit, non-partisan organization which represents the groups. "The Corps staff also rejected the permit due to the severity of impacts on the environment and on Native American tribes."

The Norfolk District, which originally reviewed the project, rejected it in 2001, stating that it would significantly degrade water and wetland resources and adversely impact the Native American tribes. Further, the District found that Newport News had greatly inflated its water needs. Both the Environmental Protection Agency and the Fish and Wildlife Service supported this determination. But then-Gov. Jim Gilmore asked that the project be passed up the chain of command to the Corps's North Atlantic Division, which approved the permit in November 2005.

Independent studies confirmed by the Corps show that the projected water need for the region would be less than half the amount that Newport News claimed to justify the project. Those needs could be reasonably met by alternatives such as desalination, water reuse and conservation. In fact a review last fall by Mike Siegel, a private consultant with Public and Environmental Finance Associates, found that contrary to Newport News's claimed deficit, increase in regional demand has failed to materialize, and that demand has remained relatively flat since 1990.

Among other things, the lawsuit claims that:

• The decision by the Corps's North Atlantic Division to issue the permit is illegal under the Clean Water Act because the project would result in the significant degradation of aquatic resources and is unjustified given the existence of less damaging alternatives based on the lower demand.
• The Corps approved a deficient wetlands mitigation plan that fails to meet the government's "no net loss" policy. The multiple and scattered sites where Newport News plans to build artificial wetlands, many of them miles from the reservoir, cannot replace the intact, diverse ecosystem that would be lost.
• The Corps's Environmental Impact Statement (EIS) is illegal because it fails to look at alternatives to the reservoir that would meet the lower, true demand.
• A new or revised EIS is necessary to account for significant changes in the project. In 2004, the Virginia Marine Resources Commission banned withdrawals from the Mattaponi River from March through July to protect native shad populations, the same time of year when the reservoir would pump the most water. Neither the commission nor the Corps has evaluated the impacts of withdrawing more water during the drier months if Newport News is to secure the water that it claims is necessary.

"Agencies have twice denied Newport News permits to allow this project to move forward, including the Army Corps, and both times politicians pressured those agencies to change their decisions. Now, we must rely on the courts to fix those wrongs and bring justice to the Mattaponi," said Michael Town, Executive Director of the Virginia Chapter of Sierra Club.

"The Alliance puts our faith in the federal court to recognize that the Corps has permitted a project that is drastically larger than needed, and that the water needs of Newport News can reasonably be met by alternatives that have never been studied. The environmental damages from this project are far greater than required to satisfy the regional water needs," said Thomas C. Rubino with the Alliance to Save the Mattaponi.

The lawsuit comes just days before the State Water Control Board will hold a public hearing (July 20) to consider Newport News's request to extend one of the other permits needed for the project. The permit allows water withdrawals from the Mattaponi River and expires in December, 2007; Newport News has asked for a five-year extension. The Sierra Club, Alliance to Save the Mattaponi, and Chesapeake Bay Foundation are calling on the Board to deny the request and take a thorough assessment of the withdrawal plans and impacts on the river systems.