In an unusual reversal, the Army Corps of Engineers has overruled the recommendation of its Norfolk District and may allow the construction of a 1,526-acre reservoir in one of the least developed tributaries on Virginia’s Western Shore.

Brig. Gen. Stephen Rhoades, commander of the Corps’ North Atlantic Division, ordered that work resume on the permit process after concluding the proposed King William Reservoir was the “least damaging practicable alternative” to meet the long-term water needs of the Newport News area.

If the project is ultimately approved, it would result in the destruction of more than 400 acres of wetlands — the largest loss ever allowed through a regulatory program in the Bay watershed. Environmentalists charged that approval of such a loss would be contrary to the Chesapeake 2000 agreement signed by the states and federal government two years ago.

Last year, the Norfolk District rejected the permit application by the city of Newport News to build the reservoir on Cohoke Creek, a small tributary of the Pamunkey River in King William County.

In making the decision, Col. Allan Carroll, former head of the Norfolk District, cited Corps studies questioning the need for the reservoir and the project’s impact on wetlands and Native Americans and concluded that “it is not reasonable to build such an environmentally damaging project to satisfy a need that may never materialize.”

But Carroll’s decision was challenged by then-Gov. Jim Gilmore, who invoked the rarely used authority of a governor to challenge the decision of a district engineer. That boosted the issue to the Corps’ North Atlantic Division in New York.

After taking comments last fall and reviewing the issue, Rhoades Oct. 1 took the unusual step of overruling a district engineer. “The project’s purpose and need as submitted by the City of Newport News is valid,” Rhoades said.

Rhoades’ decision does not automatically result in the issuance of a wetlands permit allowing the project to go forward. Before a permit can be approved, Rhoades said the city must resolve issues about the project’s impacts on Native Americans in the area and submit an updated wetland mitigation plan for review by the Corps.

In addition, the state must determine that the project is in compliance with its federally required Coastal Zone Management Act program, which seeks to protect coastal water bodies.

Rhoades’ action drew praise from Newport News officials, who had spent $18 million over the past decade on environmental reviews, design work and other studies related to the project.

David Morris, planning and programs manager for the Newport News Waterworks, said he was encouraged work toward issuing permits would resume soon and that the final issues could be resolved in a matter of months, allowing the Corps to issue the permit. “There has been an incredible amount of good science that has gone into this,” he said.

Morris said the project would provide a net benefit to the Bay and local waterways because the city planned the restoration or creation of more than 800 acres of wetlands. Also, he said that nearly 3,000 acres of land would be permanently preserved from development around the wetlands and the reservoir, helping to meet the Bay Program goal of permanently preserving a fifth of the Chesapeake watershed as open space. “It is very consistent with the Bay commitments,” Morris said.

But environmentalists, who have been staunchly opposed to the project, contended that Rhoades’ 41-page decision failed to adequate justify reversing the detailed, 350-page decision issued by Carroll.

“It really summarily dismisses the conclusions that were reached by the Norfolk District,” said Ann Jennings, a scientist with the Chesapeake Bay Foundation. “And the Norfolk District conclusions were exhaustively researched and documented.”

The sweeping rejection by Carroll expressed doubt the wetlands could be successfully replaced and said the project would have unacceptable cultural impacts on Native Americans still living in the area, including the potential disruption to American shad in the Mattaponi River, a species culturally important to the Mattaponi Tribe and a target for Bay Program restoration. He said the project would threaten rare plants and species in the area and disrupt stream flows.

Besides impacts at the site, Carroll said pipelines for the water would destroy another 10 acres of wetlands and require the clearing of additional forests for the right-of-way. That in turn would fragment remaining woodlands, harming forest-dependent species, and allow exotic and invasive species access to the forest interior, further degrading habitat quality.

“General Rhoades’ statement strikes us as stating little more than his own disagreement and rejection of the Norfolk District engineer’s evaluation and conclusions,” said Billy Mills, executive director of the Mattaponi and Pamunkey Rivers Association. “We’re just not seeing anything to substantiate or clearly define his alternative view.”

Critics charged that the Corps gave in to political pressure. Besides Gilmore, Virginia U.S. Sen. John Warner and a number of other lawmakers had pressed for approval of the project.

Warner issued a statement saying he was “confident that this worthwhile project will stand on its own merits.”

Environmental groups also called on Gov. Mark Warner to kill the project. Virginia Secretary of Natural Resources Tayloe Murphy, noting that aspects of the proposal still faces state review, told reporters that the governor “is going to leave it to the professionals to make the decision.”

Opponents of the project, which also includes the Sierra Club, the Southern Environmental Law Center, and local Indian tribes, said they were evaluating their options if a permit is issued. The Mattaponi Indian tribe and environmental groups already have separate suits pending against a state-issued permit for the project. Those cases are set for trial next winter and spring.

If the Corps does issue a permit, the EPA — the lead federal agency for Bay restoration efforts — would have to decide whether to exercise its veto authority over wetland permits.

Environmentalists charged that the project is contrary to the Chesapeake 2000 agreement, which is supposed to guide federal and state actions. That agreement calls for achieving an overall increase of 25,000 acres of wetlands by 2010, and for achieving a “no-net loss of existing wetlands acreage and function in the signatories’ regulatory programs.” The agreement was signed by the EPA administrator on behalf of the federal government, as well as the governors of each Bay state.

Newport News developed a mitigation plan that would restore and create more than 800 acres of wetlands to offset those lost because of the reservoir. But the Norfolk District had concluded that the smaller, scattered wetland projects that were proposed would not fully compensate for the functions provided by the mature wetland forest complex that would be drowned.

Further, because of the small size of many of the sites, restoration was less likely to succeed, the Norfolk District said.

“It is not possible to replicate the ecology and diversity of an entire integrated system of wetlands, streams, ponds and forest in scattered mitigation sites throughout several small watersheds,” Carroll wrote, adding that many efforts to recreate wetlands have “proven less than successful.”

Morris said the Newport News plan relied on scattered sites because there was no single site near the proposed reservoir that would meet the mitigation needs. But most of the replacements would be accomplished by reclaiming drained agricultural fields that were once wetlands but had been drained for farming. Such wetland restoration projects have a higher likelihood of success than efforts to create new wetlands where they never existed, Morris said.

Although mature forest wetlands would be lost, Morris said the impacts would be offset by the overall increase in other types of wetlands. “It is a change of habitat, not a complete loss of habitat,” Morris said. “I don’t think there would be a net loss in function.”

An analysis by four university wetland scientists contracted by the CBF expressed doubt that all of the wetlands proposed in the Newport News plan would be successful. Even if they were, the scientists concluded, the mix of sites would not replace the full mix of habitat and hydrologic functions provided by the lost wetlands. Further, they said most of the mitigation sites were outside of the Cohoke watershed, and some were even outside the Mattaponi and Pamunkey drainages, which combine to form the York River. “It is mitigation that will result in a net loss of wetland acres and function to the York River watershed,” Jennings said.

In his decision, Rhoades acknowledged that wetland functions would likely be lost by the project, but said that Corps’ wetland policies recognize that while a one-to-one replacement of wetland function is preferred, it “may not always be appropriate or practicable.” In this cases, he said, the wetland impacts are unavoidable because there is “an overriding public need for the proposed reservoir and there are no less environmentally damaging practicable alternatives.”

Newport News Waterworks provides water to 400,000 customers in Newport News and surrounding communities, as well as to several military bases. It expects to be serving at least 600,000 customers by midcentury. By that time, city officials say they could be facing daily shortfalls of 22 million to 27 million gallons a day, though shortages would begin occurring much sooner, perhaps as early as 2015.

The city has examined options for more than a decade, but its preferred alternative has long been to construct a 78-foot-high, 1,700-foot-long earthen dam on the Cohoke Creek, two counties away. The reservoir, which would be supplemented with water piped from the adjacent Mattaponi River, would hold about 12.2 billion gallons of water, and could supply the city with about 23 million gallons daily.

Proponents and opponents of the project produced conflicting estimates of future water demand. In making its decision last year, the Norfolk District cited a corps study which suggested that Newport News would need no additional water before 2015 at the earliest, and by that time it could offset any projected shortfalls through a series of other actions, such as the desalination of groundwater.

The Norfolk District contended that Newport News was “predisposed” to the King William Reservoir, having already signed an agreement with King William County to allow the development of the site, and therefore did not seriously consider alternatives.

But Rhoades disagreed, concluding that non-reservoir options were not practical, and that construction of the reservoir would provide the cheapest water to the Newport News area, and would have “an overall beneficial impact on the economy of the project area.”

Rhoades said the 24 mgd deficit “cannot be met with even the most optimistic gains from conservation and use restrictions,” and dismissed alternates proposed by the Norfolk District as “short-term solutions” which do not address the long-term water supplies for 2050 and beyond. He said the suggested “patchwork” of alternatives would place “unknown risks” to other rivers in the region.

Three Native American tribes, the Mattaponi, Upper Mattaponi and Pamunkey, have historically used the area, and all have objected to the reservoir project. The tribes have said the disruption of the river and its flow would interfere with their sacred uses and dishonor their ancestors. The Norfolk District stated that Native American tribes “cannot be fully compensated” for spiritual, cultural and socioeconomic connections that would be lost to the flooded land.

Rhoades commended the Norfolk District for its “heightened degree of sensitivity” about the project’s impacts on the tribes. But he said that the Pamunkey Reservation was 3.3 miles from the site and the Mattaponi Reservation was 5.5 miles away. And, he said, the flow of the Mattaponi, from which water would be withdrawn to fill the reservoir, was already disrupted by a number of other water withdrawals and impoundments on the river.

The Corps said the benefits to the half-million people living in the Newport News area outweighed the impacts of the 230 Indians living on the nearby reservations. Consequently, Rhoades ordered the resumption of a study to find ways to mitigate impacts and compensate Indians living in the area.
Similarly, Rhoades said that concerns raised about impacts on plants, animals, water quality and the local environment would be dealt with in final permit requirements.

He also argued the project would have beneficial impacts, such as increased swimming, boating, fishing and other recreational opportunities that “would not materialize if the reservoir were not constructed.”

During a public comment period last fall, the North Atlantic Division got about 3,500 comments opposed, and about 130, in favor of the proposal. The majority of comments both for and against were mass-produced post cards.

Rhoades said he gave “great weight” to the views of state and local jurisdictions, and said it was Corps’ policy to generally issue a permit following receipt of a favorable state review.

He acknowledged the proposal carries a “significant environmental cost” of a “magnitude not previously permitted by the Norfolk District.” Rhoades argued it is needed not only to sustain the local economy, but for national defense because several military bases are in the area.