U.S. Water News Online
RICHMOND, Va. -- The Virginia Supreme Court upheld a state
permit for construction of a reservoir in King William County but
ruled that a lower court must decide whether the project violates a
1677 treaty with the Mattaponi Indian tribe.
The justices unanimously ruled the State Water Control Board
properly issued the permit for the 12.2 billion-gallon reservoir on
the Mattaponi River. Environmentalists had claimed that the board
acted hastily and without adequate research.
The court also ruled that the tribe can pursue its treaty claims
only against the city of Newport News -- the lead applicant for the
permit -- not the water board, which as a state agency is protected
from lawsuit by the doctrine of sovereign immunity.
"The idea that the commonwealth can evade its responsibilities
under the treaty is very disturbing," said Eric D. Albert, an
attorney for the tribe. "The court basically agreed with the attorney
general that the state doesn't have to abide by the treaty if it
doesn't want to."
In a partial victory for the tribe, however, the court ruled that
the Newport News Circuit Court erred in ruling that it lacked
jurisdiction to consider the alleged treaty violation by the city.
That part of the case was returned to circuit court for further
"The good news is that the Supreme Court ruled the treaty is
enforceable -- that we can sue people other than the commonwealth,
including the city, for trespassing on treaty rights," Albert said.
Randy Hildebrandt, assistant city manager, said the court's ruling
"was more positive than negative." He said the ruling that the permit
is valid will allow the project to go forward even as the tribe
presses its treaty claim against the city.
"We think we have a pretty strong case that we can make that the
treaty isn't violated by the project and the permits that have been
issued," he said.
The water board approved the state permit in 1997. City officials
have signed a U.S. Army Corps of Engineers permit.
The tribe claims the reservoir would encroach on a three-mile
buffer around its reservation that is protected by the treaty. It
also has argued that the reservoir would flood cultural sites near
the 150-acre reservation and that siphoning water from the river
would damage the tribe's fishing and hunting culture.
The Newport News Circuit Court ruled that it lacked jurisdiction
because the treaty gives the governor authority over alleged
However, the Supreme Court noted that in 1677 the governor and his
council had judicial powers now held by the courts. Because of that,
the justices ruled, the tribe's claims against the city should be
resolved in court rather than by the state's chief executive.
Environmental groups also claimed that the water board failed to
prove the project did not waste water and that it improperly issued
the permit without waiting for additional studies of the project's
The court found no merit in those arguments.
"If the board were required to wait for the results of all
potential studies before making a decision, water protection permits
would be issued very rarely, if ever," Justice Barbara Milano Keenan
Newport News officials began looking for a supplemental water
supply in 1987. The 1,500-acre reservoir would supply Newport News
and other Peninsula localities with up to 19 million gallons of water
a day. The estimated cost of the project is $150 million.
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