State Court Rules in Favor of Reservoir in Newport News

By Scott Harper, The Virginian-Pilot, Norfolk, Va.

Nov. 5–The Virginia Supreme Court on Friday rejected arguments from environmental groups trying to block the proposed King William Reservoir , but left the door open — if barely — for the Mattaponi Indian tribe to stop the $230 million drinking-water project.

The ruling from the state’s high court was another victory for Newport News Waterworks and its advocates for a planned 1,500-acre reservoir, which would supply millions of gallons of water a day to more than 400,000 homes and businesses on the Peninsula, from Hampton to New Kent County.

It has taken 18 years and more than $20 million to reach this point, but reservoir proponents finally have all required permits in hand and a sweeping, favorable opinion from the state Supreme Court.

“We are pleased that the court affirmed” earlier and multiple legal rulings that also supported the project, Randy Hildebrandt, an assistant city manager for Newport News, said in a prepared statement.

Still, the decision Friday did grant the Mattaponi tribe another day in court — specifically, in Newport News Circuit Court. There, its attorneys will again argue that the reservoir violates the 1677 Treaty at Middle Plantation signed by the Mattaponi and the British crown.

Part of the treaty reads, “For prevention of — Injuries and evil consequences — for time to come; It is hereby concluded and Established that no English shall Seat or Plant nearer than three miles of any Indian Town. “

About 532 acres of the reservoir would lie within three miles of the Mattaponi reservation, located just off the Mattaponi River, upstream from the town of West Point on Virginia’s Middle Peninsula. The tribe also has argued that construction of pipelines, pump stations and a giant empoundment would flood Indian archaeological sites and harm historic fishing grounds.

While not ruling on those claims, the state’s high court said the lower court in Newport News can.

At the same time, though, the high court opined that the tribe cannot seek enforcement of the 1677 treaty by suing the state, though action against the city of Newport News is possible.

The ruling left attorneys for the Mattaponi frustrated and confused.

“Basically, it seems the commonwealth is free to violate the treaty at will and there’s nothing the tribe can do about it in state court,” said Eric Albert, senior lawyer at the Institute for Public Representation, a branch of Georgetown Law School that is representing the Mattaponi.

Written by Justice Barbara Milano Keenan, the Supreme Court’s 46-page opinion rejected arguments from environmental groups that the State Water Control Board erred in granting a permit for the project in 1997.

Groups including the Alliance to Save the Mattaponi, the Sierra Club and the Chesapeake Bay Foundation have long argued that the state board acted without sufficient study and without a final plan for compensating for the loss of more than 400 acres of wetlands.

“If the board were required to wait for the results of all potential studies before making a decision,” Keenan wrote, “water protection permits would be issued very rarely, if ever.”

Environmental groups either could not be reached or did not comment on the ruling Friday. But Albert summed up the day this way: “Overall, we’re very disappointed.”

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