THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, September 29, 1995 TAG: 9509290488
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: Medium: 95 lines
A federal judge Thursday lifted legal barriers blocking construction of the Lake Gaston pipeline, allowing Virginia Beach to begin moving dirt and laying pipe as soon as contractors can get their equipment into place.
But North Carolina, which has tied up the project for more than a dozen years, promised to continue its fight.
U.S. District Judge Thomas F. Hogan released an opinion Thursday that set off a chain of events clearing the way for construction of the 76-mile pipeline from the North Carolina border to reservoirs in South Hampton Roads.
His pro-Virginia Beach ruling automatically ended a stay he had imposed on the project. That validated the pipeline permit granted by the Federal Energy Regulatory Commission, and the permit dissolved an injunction in a North Carolina federal court that has blocked pipeline construction for the past four years.
North Carolina can still challenge the opinion and can try to get another court injunction to block construction.
``We will continue to use every weapon we have at our disposal,'' Jonathan Howes, secretary of the North Carolina Department of Environment, Health and Natural Resources, said in a prepared statement Thursday. ``There are many steps left for us to take. This is nowhere near conclusion.''
But, hoping for the best, Virginia Beach has already solicited bids for the $250 million project and should be ready to sign construction contracts by the end of November, Clarence O. Warnstaff, director of public utilities, said Thursday. Under that schedule, work on the pipeline would begin early next spring, and water should be flowing by the spring of 1998, he said.
``We are ecstatic with Judge Hogan's decision, but not surprised,'' Virginia Beach Mayor Meyera E. Oberndorf said. ``After 12 years of studies and court reviews, it's a major relief to finally have the last roadblock to construction removed.''
City Attorney Leslie L. Lilley said he thinks the clarity of the judge's opinion, coupled with the Federal Energy Regulatory Commission's decision this summer to issue the final permit for the project, seriously damages North Carolina's efforts to maintain its pipeline challenge.
The next logical legal maneuver for North Carolina is to try to get the federal court of appeals in Washington to delay construction while it considers the case.
Earlier this week, North Carolina filed suit in the court of appeals, challenging the Federal Energy Regulatory Commission's decision to issue Virginia Beach the final permit for the pipeline. North Carolina is also likely to appeal Judge Hogan's decision to that court.
And North Carolina plans to challenge the pipeline during the relicensing process for Virginia Power's hydroelectric plant on Lake Gaston. The plant, and Lake Gaston and the Roanoke Rapids dam that were built to serve it, must be relicensed by the regulatory commission early in the next century. The relicensing process started this year.
The commission issued the Gaston project a five-year permit this summer.
North Carolina is expected to argue in federal court that the FERC's yearlong environmental review of the pipeline was inadequate and based on outdated and misleading information. North Carolina and other pipeline opponents say the project would not be needed if Virginia Beach would only moderate its demands for water and Hampton Roads' cities would agree to share the water they already have.
Virginia Beach officials dismiss that charge, saying they would not have been victorious so many times if the project were not needed.
``The decision by Judge Hogan . . . is yet another confirmation of the soundness of the Lake Gaston water pipeline project,'' Rep. Owen B. Pickett, whose district includes Virginia Beach and parts of Norfolk, said in a prepared statement. ``It is unfortunate that North Carolina continues to initiate frivolous and dilatory legal action that wastes the court's time and makes a mockery of the federal permitting process.''
Virginia Beach hopes to get up to 48 million gallons of water a day from the pipeline. Chesapeake, a one-sixth partner in the project, would get up to 10 million gallons a day; and Franklin and Isle of Wight County are entitled to up to 1 million gallons a day each, according to current agreements.
In a 28-page opinion, Judge Hogan said North Carolina had failed to prove its argument that Commerce Secretary Ronald H. Brown's decision to side with Virginia Beach was ``arbitrary and capricious.''
The judge said he was not ruling on the merits of the pipeline but only on whether Brown had overstepped his bounds in saying it should proceed. The matter came to Brown's attention after his agency moved to block the pipeline, citing the federal Coastal Zone Management Act, which allows states to protect their coastal areas against projects they believe would be harmful.
Brown concluded that the pipeline would not damage North Carolina's coastal areas and would serve an important need by providing water to Hampton Roads.
Hogan had tried to get North Carolina and Virginia Beach to resolve their differences out of court. Late last year, he recommended that the two sides resolve all their differences with the help of a court-appointed mediator.
Virginia Beach and North Carolina officials signed a settlement agreement in April, but political battles over the summer doomed their efforts and sent both sides back to court.
KEYWORDS: WATER SUPPLY PLAN LAKE GASTON by CNB