THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, July 16, 1994 TAG: 9407160289
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY ESTHER DISKIN, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 126 lines
City fights ruling with three-pronged approach:
1: It is urging the Federal Energy Regulatory Commission to reconsider its decision to study the environmental impact of the Lake Gaston pipeline.
2: It is asking acourt to order the commission to decide on the pipeline permit by Aug. 25.
3: It is trying to bypass the commission by asking Virginia to let the city seize part of the lake's shore needed for the pipeline.
A grim Virginia Beach City Council went to war with the federal government over the Lake Gaston pipeline on Friday, attacking on several fronts.
Council members will pressure the agency that controls the pipeline's fate to reconsider its demand for an environmental study, make a final decision by Aug. 25, or get out of the way.
After a one-hour emergency meeting, the council emerged to take aim at the Federal Energy Regulatory Commission with a series of rapid and unanimous actions, including a lawsuit.
``The suit we are instituting is against the FERC and the procedure of delay, delay, delay,'' said Mayor Meyera E. Oberndorf.
The council's boldest - and most legally complex - action is designed to eliminate the commission's control over the pipeline. The agency, which oversees nongovernment hydroelectric projects, has jurisdiction because Lake Gaston was created by a Virginia Power hydroelectric dam.
Last month, the agency stunned the city at the 11th hour by calling for a complex environmental study that will likely take at least a year.
The city struck back Friday with a plan that it believes could take the pipeline out of the commission's domain.
The city is asking the State Corporation Commission to allow Virginia Beach to condemn the portion of shoreline it needs to build pipes and other facilities to withdraw the water. Virginia Power owns the lake bed and surrounding area, but, as a regulated utility, it must get the commission's approval to grant the city access to the lake.
The city argues that if it gets permission to condemn the land and immediately takes ownership, the commission's approval won't be necessary. The Beach already has a permit from the Army Corps of Engineers to withdraw 60 million gallons a day from the lake, but it is possible that FERC or North Carolina would challenge an attempt to obtain the water supply this way.
The condemnation procedure could take several months, city officials said.
As the city tries to outflank the commission with one plan, it is also marching forward with a direct assault to rescue its 76-mile pipeline.
The city is filing a federal lawsuit asking the 4th U.S. Circuit Court of Appeals in Richmond to order the commission to reach a final decision by Aug. 25. The ``writ of mandamus'' request is based on a federal statute that requires agencies to take action within a reasonable time period.
The commission, the city argues, received the application for pipeline construction more than three years ago but waited until June to decide to conduct an in-depth environmental study.
The commission's chairwoman, Elizabeth Moler, recently estimated that the study will take one year.
Even as the city takes the commission to court, it isn't neglecting a more polite approach: The council voted to ask the five commissioners who control the agency to reconsider their decision to require the study.
``The purpose is to give FERC every opportunity to correct what we believe is a fundamental error on their part,'' said John F. Kay, the Richmond-based lawyer who is Virginia Beach's chief counsel on Lake Gaston.
There's no guarantee that the commission will take a second look, much less change its opinion.
Requests for reconsideration aren't unusual. ``We have petitions for rehearing on 75 percent of the orders we issue,'' Moler said.
The city's strategy - choosing legal combat over cooperating with the commission's environmental study - has some clear risks. Virginia Beach may antagonize the commission, which is holding public hearings on the study. And the condemnation proceedings could cause conflict with Virginia Power, which has been willing to grant the city an easement.
Moler and a Virginia Power spokesman declined to comment directly on the city's legal actions.
But Moler said the commission won't halt the environmental study during any legal battles. ``We've made that commitment, and any legal maneuvering . . . will not affect that, unless the court tells us we have to stop,'' she said.
The no-holds-barred legal attack isn't a sign of desperation, city officials said. Rather, it is a signal that the city can no longer afford delays in a project that would bring up to 60 million gallons per day to the Hampton Roads region.
``We're just as confident,'' said Oberndorf. ``Otherwise we would not be resorting to the courts, where our successes can be counted in seven different suits, all found in our favor. We know we're strong on the facts in the case.''
But every step in the city's plan is designed to avoid what North Carolina officials most desire - an in-depth environmental study of the pipeline.
``I had hoped that . . . we had the lawyers and politicians out of it, and the experts could conduct an environmental study,'' said North Carolina Attorney General Mike Easley. ``That's all we ever wanted, to learn the environmental impact of the pipeline, and I would think Virginia Beach would want it as well.''
Easley said that should the city condemn the land at the lake and be able to bypass the commission, it would likely face a legal challenge from North Carolina over control of the water.
He said a recent Supreme Court case involving the Clean Water Act gives a state the right to set guidelines for controlling the flow of water out of its borders. Lake Gaston straddles the Virginia-North Carolina line.
``The water is in North Carolina,'' Easley said. ``Whether they can condemn Virginia land or not, I don't see how it would affect the flow of North Carolina water.''
Oberndorf said she didn't believe the city's actions would derail a proposed peacemaking meeting on the pipeline between North Carolina and Virginia state lawmakers. The meeting is scheduled for early next week while the legislators are attending the Southern Legislative Conference in Norfolk.
She said state Sens. Kenneth W. Stolle and Clarence A. Holland, both of Virginia Beach, had told her that it would not prevent any possible agreements. North Carolina Sen. Marc Basnight, who suggested the summit, could not be reached for comment.
Even if a judge grants the city's request to order a final decision by Aug. 25, it doesn't guarantee that the commission will rule in favor of the pipeline.
The commission's initial report on the project was largely favorable. It indicated that the pipeline would have no significant environmental impact in many areas, but identified issues which required more study, including the long-term impact on the Roanoke River basin.
However, the commission could still turn down the pipeline permit.
KEYWORDS: WATER SUPPLY PLAN LAKE GASTON PIPELINE SUIT
ENVIRONMENTAL IMPACT STUDY by CNB