Supreme Court Upholds Issuance of Permits for King William Reservoir
to Save the Mattaponi v. Virginia, 621 S.E.2d 78 (Va. 2005).
Opponents of a massive
water supply project in southeastern Virginia suffered a major setback
in November when the Supreme Court of Virginia upheld the issuance of
a building permit by the State Water Control Board (Board).
In 1993, the City of Newport News (City) filed an application for a
permit to build the King William Reservoir. The City contends that the
Reservoir is necessary to ensure adequate future water supply to cities
in southeastern Virginia, including Newport News, Hampton, and Williamsburg.
The Board issued the City a permit in December 1997. If constructed
as planned, the Reservoir would flood more than 1,500 acres, including
400 acres of wetlands and over 100 archaeological sites, and draw up
to 75 million gallons of water a day from the Mattaponi River. The Mattaponi
River is a popular recreational river and provides prime spawning and
nursery habitat for important commercial freshwater fish like striped
bass and American shad.
Opposition to the Reservoir is strong. Following the Boards decision,
the Mattaponi Tribe and the Alliance to Save the Mattaponi, a coalition
of environmental groups which includes the Sierra Club and the Chesapeake
Bay Foundation, filed petitions for review with the Circuit Court. The
Mattaponi Tribe is a small tribe whose reservation abuts the Mattaponi
River. The tribe is not currently recognized by the federal government,
but it is recognized by the Commonwealth of Virginia. The Tribe claims
that the construction of the Reservoir will impair its members
right to hunt and fish guaranteed by the 1677 Treaty of Middle Plantation.
The Alliance contends the project will cause extensive environmental
damage and argues that the Boards decision is not supported by
The Circuit Court dismissed both the Alliances and the Tribes
appeals due to lack of standing. The Court of Appeals affirmed. The
Supreme Court reversed and remanded the case back to the Circuit Court,
holding that the organizations had standing because there was a casual
connection between their alleged injuries and the Boards decision.
The second time around, the Circuit Court found that the Boards
decision was supported by substantial evidence. In addition, the court
found that it lacked jurisdiction to decide the Tribes treaty
claims. The Court of Appeals affirmed and transferred the treaty claims
to the Supreme Court. The Alliance and the Tribe appealed.
Virginia consistently argued that state law immunized it from suit.
Virginia asserted that Virginia Code § 2.2-4002(B)(3), which exempts
from judicial review the location, design, specifications, or
construction of public buildings or other facilities, applied
to this case because the Reservoir was a public facility. Both the Circuit
Court and the Court of Appeals found that the state was not immune.
The Supreme Court had not addressed this issue when the case was before
it in 2001, but this time it affirmed the findings of the lower courts.
The Supreme Court held that §2.2-4002(B)(3) did not control in
this situation because another section, § 62.1-44.29, expressly
provides for the judicial review of all final decisions of the Board
relating to the issuance of water protection permits. When one
statute addresses a subject in a general manner and another addresses
a part of the same subject in a more specific manner, the two statutes
should be harmonized, if possible, and when they conflict, the more
specific statute prevails.1 The Court found that
the more specific provisions in §62.1-44.29 controlled and Virginia
was therefore not exempt.
The Supreme Court rejected all arguments that the Boards decision
was not based on substantial evidence. The court found that the Board
considered the scientific studies that were available to it and imposed
permitting conditions to address adverse impacts. For example, one permit
condition requires the City to create twice as many wetlands as it destroys.
The court held that the Board did not abuse its discretion when it determined
that wetland losses could be mitigated, only minor salinity changes
would occur, and that the project was needed to meet future water demands.
The Court also found that the Board adequately considered the cultural
value of the Tribes archaeological sites and was justified in
determining that it could not protect both the sites and instream flows.
The Alliances appeal was over. The Tribe, however, had one option
The Board had refused to consider the Tribes treaty rights before
issuing the permit. The Tribe contended that the Board, as a state agency,
has the duty to uphold the states treaty obligations. The Court
of Appeals disagreed and the Supreme Court affirmed. The Board derives
its authority from the Virginia Water Control Law. It is authorized
only to issue water protection permits, not determine private rights
of citizens. The Board, therefore, did lack the authority to consider
the treaty claims.
The Tribe also appealed the lower court rulings that the treaty claims
are governed by state law, not federal law. The Tribe argued that the
Treaty is governed by federal law because of the Supremacy Clause of
the U.S. Constitution which states all treaties made, or which
shall be made, under the Authority of the United States, shall be the
supreme law of the land. The Supreme Court rejected the Tribes
arguments ruling that the treaty could not be federal law because it
was entered into in 1677, over 100 years before the Constitution was
adopted in 1789. The United States did not exist in 1677 and therefore
could not have entered into a treaty with the Mattaponi Tribe. The Tribe
made the interesting argument that the Supremacy Clauses reference
to treaties made refers to all treaties adopted with Indian
tribes before 1789. The court stated that while the Constitution does
refer to treaties made before 1789, that language is a specific reference
to treaties entered into by the U.S. under the Articles of Confederation.
It does not apply to treaties entered into by Indian tribes with the
British Crown. The treaty is governed by state law.
The court remanded the case to the Circuit Court for further proceedings
on the Tribes treaty claims. The litigation will continue, but
against only one defendant - the City. The Court held that Virginia
and its agencies are immune from suit on the treaty claims. The doctrine
of sovereign immunity protects the Commonwealth from interference
with the performance of its governmental duties and preserves the Commonwealths
ability to control its funds, properties, and instrumentalities.2 Immunity must be expressly waived by the state. The court found no state
law that expressly waived immunity for treaty violations. The City,
however, is not protected by sovereign immunity and the Tribes
case against it can proceed.
Although the Alliance and the Tribe have exhausted their remedies regarding
the Boards permit, this litigation is far from over. In 2001,
the Norfolk District of the Corps of Engineers rejected the Citys
application for a §404 permit for the dredge and fill of wetlands.
The permit application was elevated to the North Atlantic Division in
Boston when the Governor of Virginia issued a letter in opposition to
the permitting decision invoking a rarely used federal law. 33 C.F.R.
§ 325.8(b)(2) requires district engineers to refer permit applications
to the division engineer when the recommended decision is contrary
to the written position of the Governor of the state in which the work
will be performed. After reviewing the referred permit application,
the division engineer may authorize the issuance of §404 permits.
On November 16, 2005, the North Atlantic Division issued the City a
§404 permit for King William Reservoir. The Southern Environmental
Law Center has already announced that it will challenge the permit in
The Corps is not the only agency that has flip-flopped during the permitting
process. In 2003, the Virginia Marine Resources Commission voted to
deny a permit for a water intake on the Mattaponi River. That should
have spelled the end of the project, but in September 2004 the Commission
reversed itself. This permit could also be challenged by the Alliance
and the Tribe.
1. Alliance to Save the Mattaponi v. Virginia,
621 S.E.2d 78, 87 (Va. 2005).
2. Id. at 96.