THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, December 9, 1995 TAG: 9512090292
SECTION: LOCAL PAGE: B2 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: Medium: 100 lines
The Environmental Protection Agency is urging Virginia Beach and North Carolina to work out their differences and settle the Lake Gaston dispute.
The two sides can either reach a settlement or continue to argue in court for years and then settle, said an EPA official familiar with the Gaston case and involved in the branch of the federal agency that oversees water issues. She is not an agency spokesperson and therefore asked that she not be quoted by name. Official spokespeople were unfamiliar with the Gaston case, she said.
``The question is whether you do it now, or whether you wait for more litigation to go ahead, until you finally face up to the need to work this out,'' she said.
The EPA had questioned the pipeline proposal before the Federal Energy Regulatory Commission conducted a yearlong study of the project's environmental impacts, but is now ``not opposed'' to the project, she said.
``We're hopeful that instead of helping move litigation along, we can help move a settlement along.''
The EPA, she said, is concerned that a continuing court battle between the two states might damage a legal provision of the Clean Water Act, which the EPA administers.
States, under the act's Section 401, have a right to veto projects they don't like, even those approved by federal agencies.
Virginia Beach and FERC said that the 401 provision doesn't affect the city's efforts to build a water pipeline from the North Carolina border. North Carolina plans to argue to a federal court of appeals early next year that it does.
North Carolina also says the section gives them the power to veto the pipeline early in the next century when Virginia Power, which operates a hydroelectric power plant on Lake Gaston, must renew the plant's license. Virginia Beach officials say the pipeline will be built and filled with water at that point, and they will certainly challenge North Carolina in court if it tries to shut off the spigot.
The EPA official said her agency was worried that the legal challenges might ultimately overturn the section, thereby depriving all states of their opportunity to block projects.
``We're looking at the long-term not just for this project, but for the Clean Water Act,'' she said. ``We think that's an important part of the Clean Water Act and we don't want to be put in a position of allowing litigation to go forward or seeing litigation go forward that could damage the 401 program.''
The official would not detail what the EPA is doing to ``encourage'' a settlement.
``We're at the very early stages of exploring whether and how we can be constructive,'' she said. ``I think there are a number of parties on both sides who see this long-term concern and want to find a way to work this out . to do.''
North Carolina has argued that a Lake Gaston settlement that was reached, and then politically defeated this summer, should be resurrected. If it isn't, North Carolina officials have said their state will continue to use all of its powers to defeat the pipeline.
Virginia Beach Mayor Meyera E. Oberndorf said Friday that she does not see any reason for Virginia Beach to accept a costly settlement now that all the necessary pipeline permits have been granted.
The settlement, negotiated between last December and the end of June, called for Virginia Beach to provide money to communities in both states that might lose access to Roanoke River water because of the pipeline. Virginia would also agree to let northeastern North Carolina communities tap the lake for up to 15 million gallons of water per day.
In exchange, North Carolina agreed to drop all opposition to the project. After the settlement expired, FERC granted a final permit for the pipeline, despite the opposition.
``It would take a very, very, very strong and honest representation to explain to me or to the ratepayers of Virginia Beach why they (should be) obligated to pay North Carolina cities and cities in Virginia for something that they have earned through the permit process and by virtue of the cases that they have brought against us that we have successfully concluded in the courts,'' Oberndorf said.
Deputy City Attorney William M. Macali said Friday that he thinks North Carolina seriously weakened its case against the pipeline by agreeing to the settlement this summer.
``We're still wondering why it is there's continuing opposition in North Carolina to our taking 60 (million gallons per day of water from Lake Gaston) when they thought it was all right for there to be a 95 mgd withdrawal,'' he said. ``Sixty is devastating but if you give us 35 on top of that, we're all right? That's what we're facing.''
He said he doesn't see any reason for the EPA to get involved in the Gaston dispute now.
``If they do not oppose the pipeline, given the fact that the pipeline has received all the necessary approvals for construction and operation from the federal government, there would not seem to be any reason for EPA to have any further involvement of any kind,'' he said.
``It would not hurt if when a federal agency says yes, it means yes,'' Oberndorf said. ``It's enough to drive a person to distraction.''
KEYWORDS: LAKE GASTON PIPELINE WATER SUPPLY PLAN by CNB