Virginia Supreme Court Upholds Issuance of Permits for King William Reservoir

Alliance to Save the Mattaponi v. Virginia, 621 S.E.2d 78 (Va. 2005).

Stephanie Showalter

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).

Background
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 Board’s 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 Board’s decision is not supported by substantial evidence.

The Circuit Court dismissed both the Alliance’s and the Tribe’s 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 Board’s decision. The second time around, the Circuit Court found that the Board’s decision was supported by substantial evidence. In addition, the court found that it lacked jurisdiction to decide the Tribe’s treaty claims. The Court of Appeals affirmed and transferred the treaty claims to the Supreme Court. The Alliance and the Tribe appealed.

Sovereign Immunity
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.

Board’s Decision
The Supreme Court rejected all arguments that the Board’s 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 Tribe’s archaeological sites and was justified in determining that it could not protect both the sites and instream flows. The Alliance’s appeal was over. The Tribe, however, had one option left.

Treaty Claims
The Board had refused to consider the Tribe’s treaty rights before issuing the permit. The Tribe contended that the Board, as a state agency, has the duty to uphold the state’s 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 Tribe’s 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 Clause’s 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 Tribe’s 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 Commonwealth’s 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 Tribe’s case against it can proceed.

Conclusion
Although the Alliance and the Tribe have exhausted their remedies regarding the Board’s permit, this litigation is far from over. In 2001, the Norfolk District of the Corps of Engineers rejected the City’s 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 federal court.

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.

Endnotes
1. Alliance to Save the Mattaponi v. Virginia, 621 S.E.2d 78, 87 (Va. 2005).
2. Id. at 96.