Suit filed to protect globally rare ecosystem in Virginia

Despite opposition from fishermen, birders, local residents and two federal agencies, the Corps of Engineers illegally issued a permit for a proposed commercial marina in waters just north of Back Bay National Wildlife Refuge in Virginia Beach, according to a lawsuit filed by the Southern Environmental Law Center today in the U.S. District Court in Washington, DC.

Click here to read the complaint (pdf)

The complaint was filed on behalf of Friends of Back Bay and Back Bay Restoration Foundation, two non-profit groups that work to restore water quality to the bay and enhance habitat for the dozens of fish and bird species that use the bay and the national refuge. They say that increased motorized boating from the proposed 76-slip marina would, among other impacts, destroy aquatic grasses in the shallow bay that are critical for preserving water quality and wildlife habitat for a rich variety of species, including largemouth bass and migratory birds that winter and nest in the area.

“Simply put, it is inappropriate to permit a project that will concentrate motor boat traffic right next to the refuge and in an area that is globally rare, and considered by our federal government as an Aquatic Resource of National Importance. In fact, it is illegal,” said SELC attorney Marirose Pratt.

The developer, Kenneth Douglas Wilkins, applied for a permit in 2005 to construct the marina in North and Shipps bays, tributaries of Back Bay. The agency received substantial public comment from citizens concerned about the project, including the two conservation groups. Partly in response to existing motor boat use (there are two state-run boat launches further south on the west side of the bay), the Corps established a no-wake zone around the shore of the refuge. During an environmental assessment of the marina permit, the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service, which manages the Back Bay refuge, both recommended denying the project.  However, the Corps issued the permit in 2008, claiming the no-wake zone was sufficient to protect aquatic resources, even while acknowledging the regulation had not been enforced and that the agency did not have money to enforce it.

“For more than 20 years, Friends of Back Bay secured congressional funding for the Back Bay National Wildlife Refuge to purchase land from willing sellers to buffer the bay from encroaching development.  We see the proposed marina as detrimental to this end and have vigorously opposed it since its inception,” said Cheryl Petticrew of Friends of Back Bay. “Having exhausted our appeals to the Corps, we find no alternative but to sue. To do less would mean we have disregarded our duty to protect this Aquatic Resource of National Importance.”

Back Bay Restoration Foundation is dedicated to preserving, enhancing, and improving the water quality and wetlands located in Back Bay.  Among its many efforts, the organization conducts monthly water quality monitoring, and hosts the annual Back Bay Forum. 

BACKGROUND
Back Bay is located within the barrier islands of southeastern Virginia and constitutes the northern-most end of the Albemarle-Pamlico estuary, which the EPA designated as an “estuary of national significance.”  Back Bay is a shallow estuarine system with an average water depth of four feet, which fluctuates based on wind direction rather than lunar tides.  Winds, especially from the northeast, can influence the water depth by as much as three feet. Such wind-tidal marsh communities are considered globally rare.

With large expanses of open water and scattered beds of aquatic grasses, the bay provides valuable habitat for a variety of fish and wildlife. The Back Bay National Wildlife Refuge was established in 1938 with approximately 4,600 acres of land. The next year, President Franklin Roosevelt established a “proclamation boundary,” still in effect today, prohibiting migratory bird hunting in bay waters adjacent to refuge lands. Over the last 20 years, with help from the Friends of Back Bay, the Fish and Wildlife Service has expanded the land acreage to about 9,000, which has helped enhance overall water quality and wildlife habitat, and in 1994, attracted the first pair of bald eagles to nest in Back Bay in over 30 years. Of more than 300 bird species identified at the refuge, 30 have been identified as “Birds of Conservation Concern” for the Southeastern Coastal Plain. Both the FWS and the Corps consider Back Bay to be an Aquatic Resource of National Importance.

Aquatic grasses play a key role in the health and diversity of the ecosystem, providing food, shelter, and nursery grounds for fish and wildlife. The submerged vegetation also absorbs nutrients, stabilizes bottom sediments, removes suspended sediments from the water, and retards shoreline erosion by reducing wave energy. Once abundant in Back Bay and its tributaries, the vegetation began to decline in the mid-1980’s, mostly because of poor water quality caused by nutrient and sediment pollution. Both public and private efforts have begun to restore aquatic grasses; the FWS studies show significant increases since 2003, including in the vicinity of the proposed marina.