THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, May 3, 1995 TAG: 9505030115
SECTION: VIRGINIA BEACH BEACON PAGE: 12 EDITION: FINAL
TYPE: Cover Story
SOURCE: BY TOM HOLDEN, STAFF WRITER
LENGTH: Long : 501 lines
THE INK MAY HAVE dried on the Lake Gaston agreement, but the water it promises for Virginia Beach remains a mirage. So before thoughts take hold to wash that pollen-coated Honda, think again.
You can't.
``Nothing has changed in terms of the water restrictions,'' said C.W. Walck, customer service administrator for the Department of Public Utilities. ``That agreement is a milestone all of its own. Our water restrictions are based upon the limitations imposed by Norfolk (which supplies our water). Until we have the water coming in, we still have the restrictions in place.''
With that said, let's review where the city stands in its 18-year effort to restrict water use - even if the $3.65-per-1,000-gallons price tag wasn't incentive enough.
No one knows how much water has been saved by Virginia Beach residents since the city enacted water conservation efforts - some mandatory, some voluntary.
But repeated threats of a cutoff from Norfolk, an occasional drought and an on-going public education program have turned Virginia Beach residents into some of the most water conservative consumers in the nation.
The average single-family home in Virginia Beach uses about 60 gallons of water per person per day, said Bob Montague, an analyst in the Department of Public Utilities' water conservation office. Add in businesses and the rate rises to 80 gallons.
That may sound like a lot, but compared to other water-starved communities Virginia Beach residents deserve a pat on the back.
Phoenix residents, for example, consume 137 gallons per person, per day, while Oakland, Calif., residents use 95 gallons. In Raleigh, the rate is about 124 gallons a day, and in San Diego, which has some of the nation's more progressive water conservation programs, residents average 85 gallons daily.
Worst among major cities is Las Vegas, which sucks up 190 gallons per person per day.
Virginia Beach has fared so well by offering various programs to cinch down the water use - from conservation lessons for students to economic incentives for their parents.
Consider the low-flow, toilet rebate program.
On July 1, 1993, the city began offering a $75 rebate to any homeowner who installs an ultra low-flow toilet. Traditional toilets use anywhere from 3.5 to 6 gallons of water per flush. The ultra, low-flow variety consume just 1.6 gallons.
As of February, the city reported that 16,743 ultra, low-flow toilets had been installed around town.
In May 1993, the city adjusted its building codes to require that new buildings be equipped with low-flow shower heads, which reduce water use from 3 gallons per minute at 80 pounds per square inch to 2.5 gallons per minute, and low-flow sink faucets, which curb use from 3 gallons per minute to 2.2 gallons.
The effect of these programs is measured in the city's consumption rates, which have held steady despite economic growth. The city once was increasing its consumption rate each year by 1 million gallons per day.
With restrictions, that rate has slowed. In 1991 the city averaged 31.8 million gallons a day. The following year, the rate dropped to 30.1 million, rising slightly in 1993 to 30.3 million gallons and to 31.7 million gallons last year.
The increase last year may be attributed to improvements Norfolk made to its pumping abilities, which may have affected consumption.
``We've had a lot of system growth since 1994 but we're basically using what we were in 1991. We're doing well,'' said Montague.
The need to save water goes beyond retrofitting old homes. The latest water-saving technology used in new construction will be demonstrated at this year's Homearama in a specially-designed 3,500-square-foot ranch home being built by the Viola Building Corp.
Albert ``Albie'' Viola, the company's owner, said the new home will use all the existing techniques, while a few lesser known tricks are under consideration.
The home will have ``point of source'' water heaters, which are positioned closer to bathrooms. When hot water is called for, the distance water flows to the spigot is shorter so that less water is used while warming to the owner's preferred temperature.
The system is enhanced with the use of time-sensitive pumps that can be set to begin circulating hot water moments before a person's daily shower, allowing for instant hot water upon demand.
In addition, the home will have ``water wise'' landscaping and pervious concrete for the driveway. This concrete is porous so that water seeps into the ground, lessening the amount of runoff.
The company also may install French wells, which are essentially holes in the ground with gravel added to slow the amount of stormwater runoff.
Ground breaking is scheduled May 10, and the house will be built in time for the October showcase in Lago Mar.
While home builders are among those who've taken up the cause to conserve water, other users are reminded of the ever-present threat for not doing their part: a $500 fine.
``That has not been levied against anyone,'' said Montague, of the public utilities department. ``Normally, when we get reports of people using city water, we'll send out an inspector and remind the citizen that the city still has the mandatory outdoor restrictions in effect and they always comply.'' ILLUSTRATION: ON THE COVER
To create the color cover illustration, staff photographer D. Kevin
Elliott splattered contact-solution droplets on a plate of glass. He
placed the reversed letters ``VB H20'' about two feet below the
glass on the floor and photographed them through the glass and
droplets. The droplets act like a camera lens and invert the image
of the lettering. And each droplet gives a slightly different angle
on the lettering.
Staff file photo by MORT FRYMAN
The Pea Hill Creek pumping station at Lake Gaston was completed in
December 1993 before construction on the pipeline was halted.
Map
Area shown: Lake Gaston Pipeline
[Side Bar]
THE LAKE GASTON SETTLEMENT
The state of North Carolina and the City of Virginia Beach, Va.,
agree to settle the disputes and disagreements between them
regarding the Lake Gaston pipeline project on the terms and
conditions set forth herein:
1. Maximum withdrawals for southeastern Virginia through the
pipeline. The maximum amount of water that can be withdrawn from
the Roanoke River Basin through the Lake Gaston pipeline for
southeastern Virginia is 60 million gallons per day (mgd).
2. Water for northeastern North Carolina. Virginia Beach agrees
that North Carolina will have an option to connect to the Lake
Gaston pipeline at any time for the purpose of transporting up to 15
mgd of raw water through the Lake Gaston pipeline for water supply
to northeastern North Carolina communities (the ``North Carolina
communities'') under the following conditions:
a. Connection. The water would be made available to North
Carolina at reasonably convenient locations agreeable to Virginia
Beach and North Carolina.
b. Cost. No direct or indirect costs of such connection or of
the transport of such water through the Lake Gaston pipeline, or of
the use of such water, would be paid by Virginia Beach. The North
Carolina communities would pay a pro rata share of all operation
and maintenance costs of the Lake Gaston pipeline based on actual
use.
c. Permits. All permits, consents, licenses, approvals, waivers,
contractual agreements or other permissions (collectively,
``permits'') required for the connection, transport or use of such
water would be obtained by the North Carolina communities.
d. Reasonable assistance. Virginia Beach would provide all
reasonable assistance in connection with any application or request
by North Carolina or the North Carolina communities for the permits
necessary for the transport or use of such water.
e. No reduction in Virginia supply. Any water from the Lake
Gaston pipeline which is made available to North Carolina will be
in addition to the 60 mgd permitted for use by Virginia Beach and
other southeastern Virginia communities; and water would be made
available to North Carolina only to the extent it obtains such
permits as are necessary to transport additional water through the
Lake Gaston pipeline.
f. Limitations on delivery. At any time that Virginia Beach's
ability to make actual withdrawals from Lake Gaston for use by
Virginia Beach and other southeastern Virginia communities is
restricted or limited in any way as a result of this settlement or
for any other reason, withdrawals for the North Carolina communities
would be restricted or limited by the same percentage and in the
same way.
g. Impossibility or interruption of performance. Virginia Beach
would not be obligated to make such water available to the North
Carolina communities if Virginia Beach were prevented from making
such water available by law, regulation, order of a court,
contractual agreements (existing as of March 30, 1995, and
disclosed to North Carolina prior to April 5, 1995), necessary
maintenance, act of God or any other physical or legal factor making
performance impossible. Virginia Beach would have no liability to
North Carolina, the North Carolina communities or any of their
customers on account of an interruption in water supply for any
reason beyond the reasonable control of Virginia Beach.
3. No sales outside region. The purpose of the Lake Gaston
pipeline is to supplement the existing water supplies of
southeastern Virginia, which Virginia Beach represents are
insufficient to meet the needs of the region. Accordingly, Virginia
Beach, Chesapeake and any other community receiving water from the
Lake Gaston pipeline will not resell water taken through the
pipeline or any other water to any entity outside southeastern
Virginia (i.e., Virginia Beach, Chesapeake, Norfolk, Portsmouth,
Suffolk, Isle of Wight, Southampton County and Franklin) or
northeastern North Carolina, except in response to bona fide
emergencies in communities along the pipeline route. For these
purposes, and throughout this settlement, a community receiving
water shall mean a community that receives and uses water supply
from the pipeline and does not mean a community such as Norfolk that
may wheel or treat Lake Gaston water through its system, but does
not use such water for its own water supply.
Further, Virginia Beach will attempt to obtain the agreement of
Norfolk not to abandon any component of its water system, because
of the availability of water from the Lake Gaston Pipeline and not
to sell water to any entity outside of southeastern Virginia (as
defined above) or northeastern North Carolina so long as the
Norfolk water system is being used to treat or transport water from
Lake Gaston. During that period, and in the event Norfolk agrees to
the foregoing, North Carolina will not seek the abandonment of
Norfolk's withdrawals from the Blackwater and Nottoway Rivers, or
from ground water, or the reduction of Norfolk's withdrawals from
the Blackwater and Nottoway Rivers below 24 mgd from each river or
the reduction of ground water withdrawals below currently permitted
levels.
Nothing in this paragraph 3 is intended to exempt or except any
entity from any law or regulation which applies to it.
This settlement shall not become effective until Virginia Beach
obtains the described agreement from Norfolk, and Virginia Beach,
Norfolk and North Carolina execute a written agreement
incorporating such terms.
4. Limitations on withdrawals.
a. Virginia Beach and North Carolina agree that, within two
years of the date of this agreement, and in consultation with the
Wilmington, N.C., District Corps of Engineers, they will develop a
Drought Index which will take into account meteorological and
hydrological data, including but not limited to, stream flow,
rainfall and reservoir levels in Kerr Reservoir. The Drought Index
would provide objective determinations of drought conditions in the
Roanoke River Basin and would be used to establish a regime which
would result in terminations of withdrawals, if requested by North
Carolina, for periods of three to nine months during future
droughts of equal or greater severity than the four most severe
droughts in the period of record (1912-1994), but not more
frequently. If Virginia Beach and North Carolina are unable to agree
upon a suitable Drought Index, they will request the Wilmington,
N.C., District Corps of Engineers to make a binding determination
(final offer arbitration) of the drought Index in accordance with
the goals and objectives of this paragraph 4. Virginia Beach and
North Carolina agree that any such Drought Index will be, in part,
a function of the current operating practices and downstream
release requirements of the Kerr/Gaston/Roanoke Rapids reservoir
systems. Therefore, Virginia Beach and North Carolina agree that,
if significant changes in the operation or downstream release
requirements of the Kerr/Gaston/Roanoke Rapids system occur which
would significantly alter the Drought Index, then Virginia Beach
and North Carolina will, in consultation with the Wilmington, N.C.,
District Corps of Engineers, revise the Drought Index to account
for these changes. In addition, North Carolina and Virginia Beach
shall each have the right to reopen the Drought Index for
reconsideration (i) on or after the 10th anniversary of the
implementation of the initial Drought Index, the implementation of
any revised Drought Index, or a reopener which does not result in a
revised Drought Index; or (ii) if the operation of the Drought Index
causes withdrawal restrictions three or more times in any 10-year
period. The purpose of any reopener of the Drought Index shall be to
assure that the Drought Index accomplishes the same objectives set
forth in the first two sentences of this paragraph 4a. If either
party reopens the Drought Index and the parties are unable to agree
on a revised Drought Index, the matter shall be submitted to the
Wilmington, N.C., District Corps of Engineers for resolutions in
accordance with the standards and procedures set forth in this
paragraph 4a.
b. During periods when a flow regime adopted by FERC and/or by
the Corps of Engineers, VEPCO and the North Carolina Wildlife
Resources Commission for striped bass spawning flow augmentations
is in effect, Virginia Beach will use its storage in Kerr
Reservoir, so long as it is available, for striped bass spawning
flow augmentation on the basis of gallon-for-gallon replacement of
the water withdrawn through the pipeline for southeastern Virginia
when river flows are below the applicable limit of the flow regime.
c. Notwithstanding the foregoing, Virginia Beach shall in no
event be subject to greater withdrawal restrictions than those
imposed and enforced by North Carolina on new or additional
out-of-basin transfers from the Roanoke River Basin to locations
within North Carolina. For these purposes, if Virginia Beach's
withdrawals are occurring under paragraph 5, new or additional
out-of-basin transfers to locations within North Carolina may only
occur if the North Carolina transferees are subject to the same
requirements imposed on Virginia Beach under paragraph 5.
5. Removal of limitations in times of inadequate water supplies
in southeastern Virginia. If the operation of paragraph 4 would
result in termination of permitted withdrawals through the Lake
Gaston pipeline, Virginia Beach may nonetheless continue to make
withdrawals through the pipeline in amounts sufficient to satisfy
the demands of the communities receiving water from the Lake Gaston
pipeline that (i) are using all existing water supply systems
within their jurisdiction to the maximum extent practicable; (ii)
are using all alternative sources of water, within or without their
jurisdiction, that can be obtained by them at a total cost
(including permitting, construction, treatment and delivery) not
greater than 20 percent more than the price charged by Norfolk to
wheel and treat Gaston water; (iii) are using emergency and
conjunctive use wells within or without their jurisdiction to the
extent that such use (a) is consistent with good utility system
practices and applicable state and local permits and approvals, and
(b) is not economically impractical; and (iv) have instituted
conservation measures to reduce water demands. For purposes of this
paragraph, ``conservation measures'' shall be defined as: requests
that citizens voluntarily conserve water; restrictions on watering
lawns and other vegetation, washing vehicles, sidewalks, streets and
other exterior areas; restrictions on operating ornamental
fountains, refilling swimming pools and non-governmental use of
fire hydrants; prohibition on serving water in restaurants except
on request; all in the manner described in the ordinance adopted by
the Virginia Beach City Council on Feb. 11, 1992. Notwithstanding
the foregoing, the failure of any community to meet the
requirements of this paragraph shall not prevent other communities
that meet the requirements of this paragraph from receiving the
full benefit of this paragraph.
6. Ongoing conservation. Virginia Beach and Chesapeake agree to
maintain an active and ongoing conservation program, including
education, leak detection, water system repairs, conservation
pricing, retrofit to low flow fixtures, and like measures; to
periodically review new technologies which become commercially
available; and, consistent with and subject to good water utility
system practices, not to waste or imprudently use water.
7. Regional water authority. Virginia Beach, Chesapeake and the
other jurisdictions receiving water from the Lake Gaston pipeline
agree to encourage regional conservation programs and to propose
and actively promote the creation of a regional water authority for
the southeastern Virginia region. North Carolina agrees that
Virginia Beach may assign its rights and its obligations under this
settlement and its Lake Gaston permits to a regional water
authority, with the understanding that the authority would be bound
by all the terms of this settlement.
8. Highway improvements. Virginia Beach and Chesapeake will use
their best efforts to expedite federal and state funding of
improvements to Route 17 and Route 168 on the Virginia side of the
North Carolina border to the same standard or higher as they exist
on the North Carolina side of the border. This settlement shall not
become effective unless North Carolina receives reasonable
assurances from Virginia's U.S. Senators and appropriate Virginia
state officials satisfactory to North Carolina that Route 17 and 168
will be expeditiously improved.
9. Local resources. Consistent with Virginia Beach's
representation that the purpose of the Lake Gaston pipeline is to
supplement existing water supplies of southeastern Virginia,
Virginia Beach and Chesapeake and all of the communities receiving
water from the Lake Gaston pipeline agree not to abandon, seek the
abandonment, or interfere with the development of any water supplies
which could be used with or in lieu of Lake Gaston, except for
legitimate and unforeseen reasons that would make such a supply
impossible or impractical even if Lake Gaston water were not
available.
10. Bi-State Water Advisory Commission. The State of North
Carolina and the City of Virginia Beach agree that a Bi-State Water
Advisory Commission should be established. The mission of the
Commission would be to study and monitor the use, conservation and
coordination of water resources in southeastern Virginia,
northeastern North Carolina and the Roanoke River Basin, so as to
minimize the impact on the Roanoke River Basin, consistent with the
agreements contained herein, and to make non-binding recommendations
to appropriate governmental bodies concerning the best use of these
resources. The water advisory commission would be comprised of not
more than 16 members, the Virginia representatives to consist of a
representative from each of the governments of Virginia Beach,
Norfolk, Chesapeake, Portsmouth and Suffolk, and from the Virginia
Department of Environmental Quality, the Virginia Department of
Health, and the Hampton Roads Planning District Commission, all to
be appointed by Virginia's governor, and North Carolina's
representatives to consist of two persons from northeastern North
Carolina and six other persons, all to be appointed by its governor,
and the commission will contain an equal number of representatives
from each state. Virginia Beach and Chesapeake also agree that the
southeastern Virginia jurisdictions using water from the Lake Gaston
pipeline shall pay, as part of the cost of the Lake Gaston project,
a total of $100,000 per year until the pipeline is fully operational
and, thereafter, $200,000 per year to the Bi-State Water Advisory
Commission to be used by the commission for hydrilla control or
other purposes to benefit the environment of the Roanoke Rive Basin,
provided, however, that the $200,000 payment required of the
southeastern Virginia jurisdictions shall be pro rated to reflect
reduced withdrawals caused by operation of paragraphs 4 or 5 above
during the period such withdrawal restrictions are in effect. This
settlement shall not become effective unless North Carolina receives
a written commitment from the governor of Virginia to create and
appoint the commission.
11. Other uses of Lake Gaston.
a. Virginia Beach agrees not to seek any special regulations,
legislation or stricter discharge standard for Pea Hill Creek than
would apply to other similar waters of the Commonwealth of
Virginia.
b. Virginia Beach agrees not to interfere with recreational uses
of Lake Gaston such as swimming, boating, snorkeling, fishing, or
other recreational activities on Lake Gaston or to petition any
other agency to seek such restrictions.
c. Virginia Beach and North Carolina acknowledge that Virginia
Beach has previously agreed with Brunswick County, Va., that
Virginia Beach will not unreasonably oppose any discharge permits
into Lake Gaston.
12. No opposition by North Carolina. Within 10 days after this
settlement becomes effective, North Carolina shall withdraw its
opposition to VEPCO's FERC application (provided it is modified in
accordance with this settlement). Within 10 days after a FERC order
approving VEPCO's modified application becomes final, North Carolina
shall withdraw all opposition to the Lake Gaston project, including
its appeal of the Secretary of Commerce's CZMA decision, and its
request and support for Judge Britt's injunction in the Eastern
District of North Carolina, and Virginia Beach and North Carolina
shall jointly file a motion to the Fourth Circuit to vacate as moot
Judge Britt's order denying motion to modify injunction and to
dismiss Virginia Beach's appeal. North Carolina further agrees that
it will not in the future oppose, seek or take any action to
restrict, directly or indirectly, Virginia Beach's withdrawals from
Lake Gaston permitted by this settlement. This settlement shall not
become effective unless Virginia Beach receives a commitment from
VEPCO to modify its FERC application in accordance wit this
settlement.
13. Reservation of right by Virginia Beach to commence a
condemnation proceeding. Virginia Beach reserves the right to
commence a condemnation proceeding of VEPCO property.
Notwithstanding paragraph 12, in the event Virginia Beach commences
a con-dem-na-tion proceeding of VEPCO property, North Carolina
reserves the right to oppose Virginia Beach's action or support the
opposition of others to such action. The parties shall be bound by
the provisions of this settlement notwithstanding any judgment in
such a condemnation proceeding.
14. Federal agency obligations. North Carolina and Virginia
Beach recognize that various federal agencies, including NOAA, FWS,
NMFS and EPA, remain obligated to carry out their respective
statutory and regulatory responsibilities. The Departments of
Justice and Commerce have expressed support for the efforts of North
Carolina and Virginia Beach to resolve their dispute over the Lake
Gaston project, and are seeking to facilitate, to the maximum extent
practicable, resolution of the dispute.
15. Agreement by Chesapeake and the Corps. This settlement shall
not become effective unless: 1) it is agreed to by ordinance of the
City Council of the City of Chesapeake; and 2) paragraphs 4 and 18
are agreed to, in writing, by the U.S. Army Corps of Engineers.
16. Options to terminate settlement. All obligations of North
Carolina and Virginia Beach required hereunder, and all obligations
and commitments obtained hereunder from other persons or parties,
shall expire and be of no force and effect if FERC approves VEPCO's
application on a basis materially different from the terms of this
settlement and North Carolina concludes and declares in writing to
Virginia Beach that the differences are adverse to its interests.
All obligations of Virginia Beach and North Carolina required
hereunder, and all obligations and commitments obtained hereunder
from other persons or parties, shall expire and be of no force and
effect if FERC denies or approves VEPCO's application on a basis
materially different from the terms of this settlement and Virginia
Beach concludes and declares in writing to North Carolina that the
differences are adverse to its interests and does not accept the
final FERC approval. If FERC's approval of VEPCO's application is
materially different from this settlement and Virginia Beach does
not terminate the settlement but seeks rehearing or judicial review
of FERC's approval, North Carolina agrees to support actively
Virginia Beach's efforts to secure modifications to FERC's approval
so that it is consistent in all respects with this settlement.
17. Interstate Compact. Virginia Beach, Chesapeake and North
Carolina agree to use their best efforts to cause the enactment of
an interstate compact between North Carolina and Virginia which
would provide that no new or increased out-of-basin transfers of
water in addition to those described in paragraphs 1 and 2 could be
made from the Roanoke River Basin at any point above the Roanoke
Rapids Dam without the consent of each state, except that up to 20
mgd of such additional out-of-basin transfers could be made from
locations in North Carolina to locations in North Carolina without
the consent of Virginia. For the purposes of this compact, transfers
from the Roanoke River Basin to a locality that straddles the
Roanoke River Basin and another river basin will not be considered
out-of-basin transfers so long as the water transferred is used
within the locality and substantially returned to the Roanoke River
Basin. This settlement shall not become effective unless and until
(i) the Virginia General Assembly and the North Carolina General
Assembly have enacted and the governor of Virginia has signed into
law legislation enabling such interstate compact, and (ii) the U.S.
senators from Virginia and North Carolina have agreed to support
the interstate compact.
18. Dispute resolution. North Carolina and Virginia Beach will
request that the U.S. District Court of the District of Columbia
enter a consent order in North Carolina v. Brown ordering
compliance with this settlement, and retaining jurisdiction over
North Carolina and Virginia Beach for purposes of this settlement.
In the event that a dispute arises between North Carolina and
Virginia Beach over the interpretation of, or performance under,
paragraphs 1, 3, 4 or 5 hereof, such disputes shall be submitted to
the Wilmington, N.C. District Engineer of the U.S. Army Corps of
Engineers for an expedited non-judicial preliminary resolution (the
``preliminary resolution''). The parties will accept and abide by
the preliminary resolution until it is superseded by a preliminary
injunction or permanent resolution of the dispute by a court, which
dispute shall be considered de novo and not as an appeal of the
preliminary resolution. The Corps of Engineers shall not be sued in
or otherwise made a party to such litigation. The preliminary
resolution may be enforced by a preliminary injunction. The parties
agree that this settlement is made in the District of Columbia and
that any judicial action to resolve any dispute arising under this
settlement may be brought only in the U.S. District Court for the
District of Columbia.
19. Cooperation to effectuate settlement. North Carolina and
Virginia Beach agree to cooperate and to execute and file all
documents and pleadings and take such other actions as necessary to
effectuate the terms of this settlement, with the objective that the
FERC process and construction and operation of Lake Gaston pipeline
project proceed as expeditiously as possible.
20. Effective date. This settlement shall become effective on
the date that the last agreement and/or commitment required under
paragraphs 3, 8, 10, 12, 15 and 17 is obtained, but it shall not
become effective unless such agreements and commitments are obtained
within 60 days after execution of this settlement; provided,
however, that each party shall attempt to obtain, and cooperate with
the other in obtaining, such agreements and commitments prior to
such date. Upon receipt by Virginia Beach of each such agreement or
commitment, it shall be submitted to North Carolina and North
Carolina shall promptly indicate to Virginia Beach whether it agrees
that such agreement or commitment satisfies the terms of this
settlement.
KEYWORDS: LAKE GASTON CONTRACT AGREEMENT SETTLEMENT VIRGINIA BEACH
NORTH CAROLINA WATER by CNB