Court Rejects Army Corps Permit for King William Reservoir
Wednesday, April 1, 2009
By: Chuck Epes
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U.S. District Court Judge in D.C. Finds Permit "Arbitrary and Capricious"
(WASHINGTON, D.C.)—In a huge win for the Chesapeake Bay and project opponents, a U.S. District Court judge in Washington, D.C., has rejected a U.S. Army Corps of Engineers permit for the King William reservoir in King William County, Va.,
In his ruling yesterday, U.S. District Court Judge Henry H. Kennedy Jr. said the Army Corps "acted arbitrarily and capriciously" when it found that the reservoir was the least damaging practicable alternative. The judge also found arbitrary and capricious the Corps' conclusion that the permit will not cause or contribute to significant degradation of the waters of the United States and that the permit complies with the public interest.
The judge further ruled that the U.S. Environmental Protection Agency acted arbitrarily and capriciously by considering factors outside of its statutory authority when it opted not to veto the Corps' permit.
The court ruling is a great victory for the plaintiffs in the case the Chesapeake Bay Foundation, the Alliance to Save the Mattaponi, the Virginia Chapter of the Sierra Club, and the Mattaponi Tribe, all of whom challenged the Corps permit after it was issued to the City of Newport News in 2005.
"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."
"This is a profound victory for the Chesapeake Bay, its natural resources, and the thousands of citizens and landowners who have fought this project for decades," said Roy Hoagland, CBF vice president for environmental protection and restoration.
If built, the reservoir would destroy more than 430 acres of pristine Chesapeake Bay wetlands, threaten American shad, and flood Native American archaeological sites.
Deborah Murray, senior attorney for the Southern Environmental Law Center, which represents the environmental plaintiffs in the case, said, "As the court noted, the reservoir project would represent the single largest authorized loss of wetlands in the Mid-Atlantic in the history of the Clean Water Act."
Newport News has sought to build the 1,500-acre reservoir in King William for at least two decades, and local residents, Native Americans, and conservationists have steadfastly opposed it every step of the way. CBF and its partners have long argued that there are other alternatives available, from conservation to smaller reservoirs; that Newport News has never legitimately established the need for the amount of water the huge reservoir would provide; and that the plan to mitigate the wetland destruction failed to compensate for the degraded and destroyed acres and functions of the wetlands.
The Army Corps of Engineers initially rejected Newport News' request to build the reservoir years ago after conducting a comprehensive study of the proposal and concluding that the reservoir was not in the public interest. However, then-Virginia Governor Jim Gilmore objected, bumping the decision to higher Army Corps officials, and with the recent Bush Administration's retreat on wetlands protection across the nation, the Corps reversed itself and issued Newport News the permit in 2005.
CBF and its partners, along with two committed Virginia legislators—Delegate Albert Pollard and Delegate Harvey Morgan have relentlessly argued the facts in opposition to this environmentally disastrous project. With the federal court's decision, science and the law prevailed, and politics failed.