The Virginia Marine Resources Commission reversed itself in August and voted 5–3 to allow Newport News to construct a water intake in the midst of what scientists say is the state’s most important spawning area for American shad.

The commission last year had rejected 6–2 a permit for a water intake near Scotland Landing on the Mattaponi River, a denial which would have doomed the city’s plan for a 1,500-acre reservoir it insisted is needed to meet future water demands.

During a new hearing that was scheduled to settle a lawsuit by Newport News, city officials presented a revised proposal developed by a panel of fisheries experts aimed at minimizing impacts from the withdrawal structure on shad, a fish that has been the target of major restoration efforts around the Bay watershed.

A central part of the proposal calls for shutting off the intake during shad spawning periods to minimize harm to shad eggs and larvae. A city-funded eight-year monitoring program would identify the periods that the intake would be turned off to protect at least 97 percent of the shad eggs and larvae in the river.

The approval removes a major impediment for the project, sought by the city for more than a decade, although it still needs other approvals, including a permit from the Army Corps of Engineers to drown 430 acres of wetlands—which would be the largest wetland loss ever permitted in the region—before it could go forward.

But city officials said with the VMRC permit, the other approvals could fall into place by the end of the year. “We’re delighted,” Newport News Mayor Joe Frank said moments after the roll-call vote. “Now we can look forward to getting approval from the Army Corps of Engineers and moving this project forward.”

In approving the permit, the commission turned its back on the recommendations by its own staff and science advisers from the Virginia Institute of Marine Science who had recommended delaying a decision for a decade until monitoring could show whether the city’s proposal for a pumping hiatus was feasible.

“The VMRC took the recommendation of a paid consultant over the recommendations of independent experts,” said Roy Hoagland, Virginia director of the Chesapeake Bay Foundation. “To place an intake structure in Virginia’s prime spawning grounds when there is no data on what impact that will have is irresponsible environmental management.”

The city’s plans to create the reservoir by building a 78-foot-high, 1,700-foot-long dam on nearby Cohoke Creek has long been criticized by environmental groups.

Critics charge the project runs counter to many objectives of its Chesapeake 2000 agreement, including those which seek to protect shad and other migratory fish, and those seeking to protect wetland acreage and functions. In an earlier study, the Corps indicated that although the city would have to replace lost wetlands, it could not replace the ecological functions performed by those wetlands.

Critics, including two nearby Native American tribes, also object to the reservoir because it would infringe on wild areas historically used by the Mattaponi and Pamunkey tribes, and would drown an estimated 100 archaeological sites.

The project is wildly unpopular in the rural area where the reservoir would be built, and has been the target of intense criticism from environmental groups. Critics charge the city overestimated future water demand, and too easily discounted other options, such as desalinization.

The city has already spent more than $18 million on the project over the past decade to design and plan the reservoir, which would be built on a tributary of the Pamunkey River, draw water from the Mattaponi River, then pipe it to Newport News 60 miles away.

Newport News has insisted that the reservoir, which will cost more than $150 million to build, is essential to provide water for the 600,000 residents it predicts will be in its service area by midcentury.

The commission’s vote, in fact, was the second time Newport News salvaged the project after seemingly fatal blows.

The Corps’ Norfolk District in 2001 rejected the city’s permit application, saying “it is not reasonable to build such an environmentally damaging project to satisfy a need that may never materialize.”

Then-Gov. Jim Gilmore invoked the rarely used authority of a governor to challenge a decision of a district, and sent the matter to the Corps’ North Atlantic Division in New York. Last fall, Brig. Gen. Stephen Rhoades, commander of the division, sided with Newport News, calling the proposed reservoir the “least damaging practicable alternative” to meet long-term water needs.

Rhoades indicated the Corps’ would approve the project, but only after the city completed several other steps, including securing all necessary state approvals.

Corps approval was derailed last year when the VMRC voted, after 14 hours of public hearings dominated by project opponents, to deny the water intake permit.

The denial followed recent VIMS studies which showed the Mattaponi was the most important river for shad spawning in Virginia, and the intake would go in the midst of the shad spawning grounds.

After the VMRC’s rejection, Newport News took its case for a new hearing to circuit court, where the judge indicated he would rule in favor of its request. After Attorney General Jerry Kilgore, a supporter of the reservoir project, said he would not appeal the decision, the commission agreed to a compromise in which it would hold a formal court-like hearing on the issue but the city could not seek yet another new hearing if the permit was again rejected.

Under the agreement negotiated by Kilgore, city representatives and opponents had roughly equal time to make their cases, and the hearing was to focus on issues related to the potential impact of the water intake on fisheries.

The narrow rules for a new hearing was a sore sort for critics. “This was really about project opponents having to adhere to stipulations and the very narrow rules of these proceedings—conditions set down months ago in the settlement agreement that led to the re-hearing,” said Billy Mills, of the Mattaponi and Pamunkey Rivers Association which has fought the project for years. ‘The city’s reservoir opponents never really had a chance, unfortunately, and the outcome reflects that reality.”

Before the new hearing, the city offered a revised proposal that would halt pumping during shad spawning times, using temperature—which is thought to trigger spawning in shad—to determine when the shutdown period would take place.

In addition, the city has proposed redesigning the screen design over the intakes to better protect fish eggs, larvae and egg sacs. As mitigation, it has also proposed removing several fish blockages and support hatchery-based stocking efforts.

“It is a multilayer of protection that offers multiple safety nets that ensure very low risks,” said Charles Coutant, one of the consultants for the city, who is an environmental scientist at the Oak Ridge National Laboratory in Tennessee and past president of the American Fisheries Society.
In its analysis of the proposal, VIMS, which is charged with providing scientific advice to the commission, continued to voice concern that the intake was in the most sensitive area for shad and other anadromous fish.

The city’s proposal was based on shad spawning models developed for the freshwater Hudson River, and VIMS scientists expressed doubt that those same assumptions would hold up in tidal portions of the Mattaponi. They said an adequately protective pumping hiatus on the Mattaponi may preclude the city from pumping enough water to fill its reservoir.

Among other concerns, they said the city’s proposal likely underestimated the effect the intake would have on early life stages of fish when it was withdrawing water because the back and forth tidal movements in the area would sweep larvae past the intakes multiple times.
VIMS scientists recommended that the monitoring take place before a permit is issued. City officials said such a delay was unacceptable, although the VMRC staff echoed VIMS in its recommendation for a permit delay to the commission.

“Once the specific temperature cues and/or triggers have been determined for American shad that spawn or utilize the Mattaponi River in the vicinity of the intake as a nursery, a tailored pumping hiatus and mitigation strategy can be developed in order to truly eliminate most if not all impacts on the fishery,” Robert Grabb, chief of VMRC’s Habitat Management Division, said in a memo to the commission.

“If all impacts cannot be eliminated, the data will allow us to accurately quantify the impacts in an effort to truly strike a balance between the city’s needs and the withdrawal’s impacts on aquatic resources to the maximum extent practicable.”

Before approving the permit, the commission attached a number of conditions spelling out monitoring requirements and other protective measures. In an unusual move, it inserted language that would allow the commission to reopen the permit for a variety of different reasons.

It also required the city to set up a trust fund that would be used to ensure the continued productivity of the Mattaponi with further monitoring, restoration and enhancement programs beyond those required as mitigation for the project.

Two new commission members voted for the permit: insurance agent J.T Holland and commercial waterman Ernest Bowden were appointed to the commission by Gov. Mark Warner after the terms expired for two permit opponents last year. Also, Cynthia Jones, a fisheries scientist from Old Dominion University, switched her vote from last year, and supported the permit after asking many technical questions of the presenters.

After the commission’s approval, opponents stressed that several issues remain before the Corps can approve the project. Remaining differences with the Native Americans in the area must be resolved; the city must submit an updated wetland mitigation plan to the Corps for approval; and the state must determine whether the project is in compliance with its Coastal Zone Management program.

Those steps may be challenged within the administrative process; the Sierra Club has already asked that the state to hold a public hearing—which is not required—on the coastal zone compliance.

Also, any permit could ultimately be challenged in court. “There are still a lot of issues and angles,” Hoagland said.