Federal Court Overturns Permit for Massive Reservoir in Virginia

A federal court has overturned a permit issued by the Corps of Engineers for a massive impoundment in King William County, Virginia that would have resulted in the single largest, authorized loss of wetlands in the mid-Atlantic region in the last 37 years. The U.S. District Court in D.C. ruled late yesterday that the Corps' finding that the reservoir proposed by Newport News would not cause significant harm to the environment was “arbitrary and capricious.”

“This is a strong ruling by the court that the environmental costs of the proposed reservoir far outweigh the benefit,” said SELC Senior Attorney Deborah Murray, who represents three environmental plaintiff groups in the years-long legal fight to stop the project. “We're extremely pleased.”

Newport News and a consortium of five other Virginia localities have  sought for decades to build the King William reservoir, which includes  a 1,500-acre impoundment on Cohoke Creek (a tributary of the Pamunkey River) and a pipeline to withdraw water from the Mattaponi River, both tributaries to the Chesapeake Bay. The project would destroy 400 acres of wetlands and inundate 21 stream miles, as well as harm the livelihoods and cultural sites of Native Americans. Cost estimates from last year put the project at $289 million. 

In 2001, the Norfolk District of the Corps rejected the project on the grounds that it would significantly degrade water and wetland resources and that Newport News had greatly inflated its water needs.  Independent studies show that the projected water need for the region would be less than half the amount that Newport News claimed to justify the project. However, the Corps' North Atlantic Division ultimately issued the permit in November 2005. The Southern Environmental Law Center filed suit in U.S. District Court in 2006 on behalf of the Alliance to Save the Mattaponi, Chesapeake Bay Foundation, and the Virginia Chapter of the Sierra Club.

Federal Judge Henry Kennedy, in his 33-page ruling yesterday, held that the Corps' finding that no other less environmentally damaging alternatives existed was arbitrary and capricious because of Newport News' significantly inflated demand projections and the Corps' failure adequately to examine alternatives in light of the reduced need and higher cost of the reservoir. Likewise, the court found that the Corps' claim that the wetland mitigation plan would adequately compensate for the ecological function and value of the lost wetlands was arbitrary and capricious.

The judge also ruled in favor of the environmental groups' challenge to  the U.S. Environmental Protection Agency's failure to veto the permit.  He remanded the permit to the Corps for review in light of the court's findings.

“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, litigation director for the Chesapeake Bay Foundation (CBF). “The immense damage that would be caused by this project was always out of proportion to the alleged need.”

“We sincerely hope that Newport News will finally turn its attention to other, less destructive means of supplying water to the region, including conservation and efficiency,” Murray said. “We also hope the Corps and the EPA, both of which are bound by law to ensure the health of the nation's water resources, ultimately reject this over-sized and harmful project.”