Alliance v. Com., Dept. of Environ. Quality
| Decision Date | 04 November 2005 |
| Docket Number | Record No. 042196.,Record No. 042198.,Record No. 042826. |
| Parties | ALLIANCE TO SAVE THE MATTAPONI, et al. v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF ENVIRONMENTAL QUALITY, ex rel. STATE WATER CONTROL BOARD, et al. Mattaponi Indian Tribe, et al. v. Commonwealth of Virginia, Department of Environmental Quality, ex rel. State Water Control Board, et al. |
| Court | Virginia Supreme Court |
Deborah M. Murray (Southern Environmental Law Center, on briefs), for appellants (Record No. 042196).
John K. Byrum, Jr., Assistant Attorney General; George A. Somerville (Judith Williams Jagdmann, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General; James E. Ryan, Jr.; M. Scott Hart; Stuart E. Katz, City Attorney, Allen L. Jackson, Deputy City Attorney; Troutman Sanders on brief), for appellees (Record No. 042196).
Amici Curiae; Virginia Municipal League, and Local Government Attorneys of Virginia, Inc. (Howard W. Dobbins; D. Kyle Deak; Williams Mullen, on brief), in support of appellee City of Newport News' opposition to appellee Commonwealth of Virginia's motion to dismiss (Record Nos. 042196 & 042198).
David S. Bailey; Eric D. Albert (Hope M. Babcock; Curtis Berkey; Institute for Public Representation; Alexander, Berkey, Williams & Weathers, on briefs), for appellants (Record No. 042198).
John K. Byrum, Jr., Assistant Attorney General; M. Scott Hart (Judith Williams Jagdmann, Attorney General; Roger L. Chaffe, Senior Assistant Attorney General; James E. Ryan, Jr.; George A. Somerville; Stuart E. Katz, City Attorney, Allen L. Jackson, Deputy City Attorney; Troutman Sanders, on brief), for appellees (Record Nos. 042198 & 042826).
Eric D. Albert (David S. Bailey; Hope M. Babcock; Curtis Berkey; Institute for Public Representation; Alexander, Berkey, Williams & Weathers, on briefs), for appellants (Record No. 042826).
Present: All the Justices.
In this consolidated appeal, we consider questions relating to a Virginia Water Protection Permit (the permit) issued by the State Water Control Board (the Board) to the City of Newport News (the City) for construction of the King William Reservoir.
This appeal raises two distinct sets of issues. The first set of issues is based on an appeal from the Court of Appeals under the Virginia Administrative Process Act (the APA), Code § 2.2-4000 et seq., requiring us to consider whether the Board violated any of its statutory mandates under the State Water Control Law (Water Control Law), Code § 62.1-44.2 et seq., by issuing the permit to the City.
The second set of issues, transferred to us from the Court of Appeals without decision, involves a collateral attack on the Board's action based on the 1677 Treaty at Middle Plantation (the Treaty) entered into by King Charles II and ancestors of the Mattaponi Indian Tribe (the Tribe). The Tribe contends that the Board's issuance of the permit violated certain provisions of this Treaty.
In 1987, the City, York County, and the City of Williamsburg created the Regional Raw Water Study Group (the Regional Study Group) to examine the water supply needs of the Lower Peninsula area of southeastern Virginia. Anticipating growth in the area's population from about 400,000 residents in 1990 to about 636,000 residents in 2040, the Regional Study Group commissioned a raw water study plan to estimate future water needs. The Group projected that by 2040, the three localities would experience a water deficit of 39.8 million gallons per day (mgd).
The Regional Study Group identified 31 different options for providing additional water to the region. After considering these options, the Group proposed a combination of alternatives to solve the projected water deficit, including the implementation of new water conservation measures and use restrictions, the development of fresh groundwater sources, and construction of the King William Reservoir. The King William site was preferred over other potential reservoir sites for both practical and environmental reasons.
In 1993, the City, acting as the "lead" locality for the Regional Study Group, filed an application for a permit to build the King William Reservoir project (the project) in compliance with the Water Control Law and the Clean Water Act, 33 U.S.C. § 1251 et seq. (1988 & Supp. IV 1993). As finally proposed, the King William Reservoir would be located on Cohoke Creek and would employ a "pumpover" from the Mattaponi River. The project would include the construction of a 75 mgd supply intake structure and pumping station, and a 1.5-mile pipeline from Scotland Landing to the Reservoir site.
The Reservoir and dam across Cohoke Creek would create an impoundment of 1,526 acres. The project would have an additional pumping station capable of pumping 50 mgd, and also would provide a pipeline extending 11.7 miles from the King William Reservoir to Beaverdam Creek in New Kent County.
The project would supply water to consumers in the Cities of Newport News, Hampton, Poquoson, and Williamsburg, and the Counties of James City, King William, New Kent, and York. The average water withdrawal rate would be about 20 mgd.
In December 1997, the Board issued the City a permit to build the Reservoir. The Board took this action after conducting several public hearings, reviewing various environmental impact statements and scientific reports, and receiving public comments and written recommendations from both state and federal agencies.
The Tribe and the Alliance to Save the Mattaponi were among the parties participating in the public comment process before the Board issued the permit. The Tribe is recognized by the Commonwealth of Virginia but not by the United States.1 Of the 450 members enrolled in the Tribe, 65 members currently live on the Tribe's reservation, which is located along the Mattaponi River. The Tribe considers the Mattaponi River the center of its cultural heritage and the base of its spiritual identity and economic livelihood. The Tribe opposed construction of the project, asserting that it would encroach on lands bordering the Tribe's reservation and would impair the Tribe's "right to hunt, fish, and gather" secured by the Treaty.
The Alliance to Save the Mattaponi and the Sierra Club, two organizations devoted to environmental preservation, also opposed issuance of the permit. These groups submitted written comments during the administrative process, arguing that the permit application should be denied because of incomplete scientific data accompanying the application and the potential adverse environmental impact on the Mattaponi River and surrounding areas.
After the Board issued the permit, the Tribe, and a group of organizations led by the Alliance to Save the Mattaponi, filed separate petitions for appeal under the APA in the Circuit Court of the City of Newport News (the circuit court) challenging the Board's decision. The Alliance to Save the Mattaponi was joined in its petition by the Chesapeake Bay Foundation, Inc., King and Queen County, the Mattaponi and Pamunkey Rivers Association, the Sierra Club, and certain individual riparian owners (collectively, the Alliance). The Alliance asserted in its petition that the Board's decision to issue the permit was made prematurely and was not supported by substantial evidence in the record.
The Alliance primarily alleged that the Board failed to consider "substantial evidence in the record relating to cultural and aesthetic instream beneficial uses; the reasonableness of the amounts of water withdrawal; and the impact of the water withdrawal, especially in relation to salinity intrusions and wetlands losses on water quality and instream beneficial uses." The Tribe's separate petition included an appeal under the APA, and other claims for injunctive and declaratory relief for alleged violations of the Treaty.
The Commonwealth and the City demurred to both petitions for appeal, asserting that the Alliance and the Tribe lacked standing under the APA to challenge the Board's decision to issue the permit and that the separate Treaty claims were multifarious, improperly pled, and failed to state a claim on which relief could be granted. The Commonwealth also asserted that the appeals were barred under the doctrine of sovereign immunity.
The circuit court dismissed both APA appeals, holding that they were not barred under the doctrine of sovereign immunity but that the Alliance and the Tribe lacked standing to assert those claims under the APA. The circuit court also dismissed the Tribe's separate Treaty claims on the basis that they failed to state a claim on which relief could be granted, were multifarious, and were improperly pled.
The Court of Appeals affirmed the circuit court's judgment that the Commonwealth was not immune from suit on the APA claims but that the Alliance and the Tribe lacked standing to assert those claims.2 Mattaponi Indian Tribe v. Commonwealth, 31 Va.App. 472, 524 S.E.2d 167 (2000); Alliance to Save the Mattaponi v. Commonwealth, 30 Va.App. 690, 519 S.E.2d 413 (1999). We reversed the Court of Appeals' judgment that the Alliance and the Tribe lacked standing. Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 541 S.E.2d 920 (2001). We concluded that they had standing to challenge the Board's decision because there was a "causal connection" between their alleged injuries and the Board's action. Id. at 376-77, 541 S.E.2d at 925. We remanded the cases for trial in the circuit court.3 Id. at 378, 541 S.E.2d at 926.
On remand in the circuit court, the Alliance did not amend its petition. The Tribe filed an amended petition alleging that the Board's decision to issue the permit violated Articles IV and VII of the 1677 Treaty at Middle Plantation.4 The Tribe also alleged that the United States was the...
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