VA natural resources protected in courts, not General Assembly
With Virginia’s rancorous and divisive 2004 General Assembly session finally ended, one cannot help but look back to see if indeed anything of real substance was accomplished, at least in terms of Bay and river protection issues. Given the session’s generally myopic focus on all things budgetary, this is a valid question for the citizens of the commonwealth.
The short answer is yes, a few things other than the budget battle were debated and a few things were actually accomplished, but unfortunately none either benefit or help the Bay or its troubled tributaries. In fact, what actually did transpire translates to little more than a slap in the face for those to whom the Bay is a fragile and imperiled treasure.
The simple truth is embarrassing to report, but the more definitive actions actually took place away from the Senate and House floors this session than occurred within those hallowed halls.
For starters, every effort to come up with a funding mechanism specifically dedicated to Bay and rivers resource protection failed, whether it was presented in the form of a user fee, an impact fee, a user tax, or a set-aside. Nothing doing here in Virginia. So once again, there will be no, or at best minimum, dedicated funding source for Virginia’s Land Conservation Foundation or for even implementing the long-awaited revised tributary strategies.
In light of the fact that Virginia’s current funding mechanism for river nutrient reduction, the Water Quality Improvement Fund, only provides funds in times of budget surplus, and given the state’s dubious national ranking as the single lowest-spending state for protecting natural resources, the net result of this session’s gains toward meaningful environmental stewardship is a big fat zero.
With respect to efforts to have the Assembly embrace and support a critical increase for fees associated with the pending barging of waste on Virginia rivers, up from a pusillanimous $1 per ton to a more appropriate fee level, again, this was simply not to be.
“It’s going to be open season for the Bay and its tributaries when barges loaded with waste come steaming up into the rivers of Virginia, second only to Pennsylvania in the volume of imported trash,” said Patti Jackson of the James River Association. “Absent realistic fees to fund river protection, Virginia runs a significant risk of injuring and polluting our rivers, the Bay and dependent living resources. We couldn’t be more disappointed this year.”
It was in court, not the General Assembly, where any real progress was made during the session, when Judge Randal Johnson of the Richmond court ruled that the JRA had legal standing to challenge the state’s waste container testing standards and the secretive process by which they and the fees came into being in 2003. The association will press its legal case on the merits later this year.
Perhaps this session’s most sinister and threatening ploys against meaningful natural resource protection were those undertaken by representatives doing the bidding of city waterworks officials in Newport News.
No less than four bills were introduced in the Senate and House chambers, obviously in retaliation by frustrated city officials to the Virginia Marine Resources Commission’s denial in May 2003 of a much-needed construction permit for the controversial King William Reservoir. These legislative “remedies” had a clear and apparent purpose: to circumvent the state’s permit process in which the city had failed, and to punish the VMRC for delivering the fatal blow.
The first, Senate Bill 109, championed by Sen. Martin Williams, and defeated by a 9-to-6 vote, would have quite literally stripped the VMRC of its permit authority from water supply projects permanently.
Subcommittee and committee meetings on this bill were well-attended by a diverse mix of bill opponents who testified passionately in support of the VMRC’s unique responsibility to manage and protect the commonwealth’s fisheries resources, particularly those under coordinated state, Bay, and Atlantic Ocean harvest moratorium.
Next up, Sen. Frank Wagner’s Senate Bill 420 and Dels. Glen Oder and Mamye BaCote’s House Bill 797 would have authorized and directed the VMRC to grant to Newport News a permanent easement for the construction of the King William Reservoir intake pipe in the Mattaponi River.
These bills, would have, if passed, enabled Newport News to place the intake pipe in the river without a VMRC permit, rendering the VMRC permit process both irrelevant and meaningless. Ultimately, these bills were tabled, given the clear lack of support votes in both houses, but once again, only after a series of protracted and testimony-intense subcommittee and committee meetings during which legislation opponents appeared and testified against the changing of the rules in midstream, a transparent strategy intended to benefit the city which had simply failed during the 2003 permit process to make its case on the merits.
Finally, Senate Bill 110, again championed by Senator Williams in a last-minute language amendment attempt, would have instructed the governor’s water supply task force to deliver as part of its December 2004 draft regulations specific mechanisms that would “encourage” consistency among state agencies in water supply permit reviews and decisions.
Opponents again filled the meeting room, testifying to the concerns shared with senators and delegates that while the state’s permit process did need to be streamlined, that “streamlining” was quite different than consistency, and that it should not come at the expense of the VMRC’s unique permit authority as outlined in the Code of Virginia.
The amendment attempt died when it was ruled by the leadership to be “not germane” to the underlying bill.
On the surface it would appear that reservoir project opponents might take some comfort in how these scuffles and battles turned out, but yet again, it was well away from the Capitol grounds that the real action took place.
Given the fury and breadth of the legislative assault upon the VMRC, particularly when coupled with the refusal of the attorney general’s office to respond to the commission’s earlier request that he appeal a court’s reversal of the VMRC’s May 2003 permit denial decision, negotiations were undertaken concurrently in Newport News between the VMRC and the city that led to a settlement agreement well in advance of the session’s end.
Among the settlement details, the commission agreed to a formal re-hearing of the city’s joint permit application, which will likely incorporate both revisions and some additional mitigation; in exchange, and with stipulations, the city will drop its lawsuit against the commission in the matter of the 2003 permit denial.
It is widely anticipated that the city will field yet another spirited effort to win the coveted VMRC permit, albeit with a somewhat revised proposal, and perhaps including yet another iteration of its failed and inadequate original attempt at a fisheries mitigation plan.
It is also safe to assume that the VMRC will, in turn, once again rely upon the scientists and fishery management experts at the Virginia Institute of Marine Science for evaluation, recommendations and counsel, particularly in the matter of the adequacy and sufficiency of any proposed fishery protection mitigation plan.
Finally, it will be imperative that the VMRC and VIMS effectively factor and rightfully communicate the scope and breadth of Virginia’s public investment to date in protecting and re-establishing the shad fishery.
In the past 10-plus years, Virginia has spent $20 million of local, state, federal and private funds for monitoring, restocking, hatchery operations and fish passage projects to restore the shad fishery, and that isn’t counting Virginia’s considerable role and effort as a member partner in the Atlantic States Marine Fisheries Commission.
Nor does that figure include the loss of at least $2.5 million of commercial landings of shad by Virginia fishermen since 1993. Virginia would also be well advised to consider both the considerable effort and the cumulative expenditures made by her sister Bay partner states in restoring shad across the Chesapeake Bay watershed.
In the final analysis, the antics that took place over the winter notwithstanding, it will fall once again to the highly respected fisheries experts and scientists at VIMS to provide both the data and the hard science by which the VMRC commissioners can once again defend their mandated commitments and obligations to protect fishery resources in Virginia and the Chesapeake.
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