THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Saturday, July 23, 1994 TAG: 9407230202
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY ESTHER DISKIN, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 128 lines
After a decade of fighting, it has come to this: The only physical obstacle between this city and a long, cool supply of water is about 4 acres of lake shore watched over by a sharp-toothed dog.
That protector is called FERC, short for Federal Energy Regulatory Commission. For more than three years, FERC has kept the city off the land it needs to put a $142 million straw into Lake Gaston.
Now the city vows to kick FERC aside, seize the land and blaze a path into the lake, which straddles the Virginia-North Carolina border.
``Once the city gets that land, Virginia Beach is going to take that water unless someone stops it,'' said Scott Hart, a partner at the Richmond firm of Mays & Valentine, which is guiding Virginia Beach's fight for the pipeline.
Before Virginia Beach can get to the lake water, the city needs to put its footprint on the land where it will install the pipes. To do that, the city has come up with a strategy designed to take the matter out of the commission's hands: It is asking the state's permission to condemn the land, which is located in Brunswick County.
If the city succeeds, officials say, it will claim use of the 60 million gallons per day under riparian rights - the right of an owner on a river's bank to reasonable use of water.
At its core, the case is a fight for primacy between state and federal governments, water-rights experts said. The case raises the question: Who has ultimate control over the public's use of a hydroelectric project?
The condemnation strategy is a daring legal attack, according to some experts in water-rights issues. None - including the top official at the regulatory commission - can think of any previous parallels.
``We have not had a case like this,'' said the commission's chairwoman, Elizabeth Moler. She declined to comment directly on the city's strategy, or how the commission might react.
``A unique approach, to say the least,'' said Jerome C. Muys, a Washington-based lawyer and teacher at University of Virginia's law school who has worked on interstate water-rights cases. ``I have a feeling, because Lake Gaston has a federal license, there will be a problem doing it.''
If the city can condemn the land, city officials contend, the pipeline can be built without waiting for the commission's approval.
The middleman in the case is Virginia Power, which operates Lake Gaston, an impoundment in the Roanoke River, as a hydroelectric project. The entire lake bed and shoreline - including a section that the city wants for the pipeline - is owned by Virginia Power.
But the utility is regulated by FERC, which must approve any changes in Virginia Power's operation.
The commission gets its authority to regulate hydroelectric projects from the Federal Power Act, which has been interpreted to give the commission broad control over projects.
But two sections of the act appear to set limits on the commission's authority. One says that the commission should not interfere with state laws relating to use or distribution of water for irrigation, municipal or other uses. Another appears to give federal, state and city governments the power to condemn entire utilities.
That's exactly where the city's legal team is focusing. ``The Federal Power Act is clear,'' Hart said. ``The power to control water for irrigation or municipal use is reserved to the states.''
Hart cited a case that he believes sets some precedents for the Beach's proposed seizure of project land. In 1991, the U.S. Department of Interior condemned a large utility project in Utah so it could be used for a municipal and industrial water supply.
``The significant thing here is that the right of a city to condemn a power project is reserved,'' he said. ``We have the same right to condemn as the U.S. government does.''
But not everyone agrees that the federal government can be cut out of the action so easily. ``If FERC still has statutory jurisdiction, condemning the land won't help them,'' said Daniel Mandelker, a law professor at Washington University in St. Louis who is an expert on land-use law.
Mandelker said he doesn't know of any similar water cases. But he said states have tried to bypass federal environmental studies on highway projects by returning federal funding for the roads. Judges have refused to let states wiggle out, he said.
North Carolina Attorney General Mike Easley shares that view. And he pointed out that even if Virginia Beach condemns the land, there are owners along the Roanoke River in Virginia and North Carolina who have the same rights to its water.
He said the commission's in-depth environmental study will determine whether granting Virginia Beach the right to remove millions of gallons will interfere with the water-use rights of others along the river.
``You get back to the same environmental-justice argument,'' Easley said. ``I don't think you can cut the federal government out of its regulatory authority, especially when they clearly control the flow in a hydroelectric project.''
If the legal arguments aren't simple, the process, at least, is fairly straightforward. The city has applied to the State Corporation Commission for the right to condemn the land.
It must convince a panel of three commissioners, appointed by the General Assembly with power comparable to judges, that the land is crucial in serving the public need for water and not essential for Virginia Power's operation.
Some facts already favor that argument:
The city has already been allowed to take control of 76 miles along the pipeline route. And before the city decided to pursue the condemnation, Virginia Power had said it would grant the city an easement to the land, as long as it paid the utility for removing water from energy production.
It's not clear how long it could take for the State Corporation Commission to issue a ruling, and its decision could be appealed to the Virginia Supreme Court.
An appeal would create yet another delay, and that's exactly what the city had hoped to avoid by pursuing land condemnation. The city could have tried this strategy years ago but hoped to get quicker results by cooperating with the commission.
Instead it got stuck in the waiting game. It's a game city officials say the entire region can't afford to play.
Beach residents have endured water restrictions for two years, but a drought could send the region into a crisis. During the 1980-81 drought, the Norfolk water system cut the Beach's consumption to 15 million gallons a day - less than half the amount city residents currently consume, even with restrictions.
``It doesn't take a rocket scientist to figure out that 400,000 people can't get by on 15 million gallons a day,'' said Virginia Beach City Manager James K. Spore. ``You have to have a system that works in all times, not just normal times.'' MEMO: Related story on page B4.
ILLUSTRATION: Map
Graphic
Virginia Beach's Unusual Tactic
KEYWORDS: LAKE GASTON PIPELINE WATER SUPPLY PLAN by CNB