THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Friday, October 25, 1996 TAG: 9610250520
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: 93 lines
The federal Environmental Protection Agency sided with North Carolina on Thursday in the state's latest effort to derail the Lake Gaston pipeline.
The EPA sent a letter to the Federal Energy Regulatory Commission saying it agreed with pipeline opponents that the Clean Water Act gives North Carolina veto power over the project.
And the EPA said the commission should agree, too.
If the commission and a U.S court of appeals agree with the EPA, over Virginia Beach's objections, then the pipeline's strongest opponent might be able to prevent the project from going forward.
In September, the U.S. Court of Appeals for the District of Columbia said the dispute over the Clean Water Act has to be resolved before the court will rule on whether Virginia Beach should have received permission to build the pipeline.
Virginia Beach and Chesapeake already have spent more than $75 million on the pipeline. Construction is under way, and half of the line is already in the ground.
Virginia Beach's attorneys downplayed the letter, saying it was an inaccurate reading of the law and wouldn't be upheld by the courts.
``I think this is an environmental watchdog agency giving you the predictable environmental watchdog agency response,'' Virginia Beach counsel M. Scott Hart said. ``This is the way EPA would like the law to be (because) it provides the maximum possible environmental checks and balances, but it's not the way the law is.
``Because it is so out of line with what the statute says, it's not a major concern. The statute's clear, and what they're saying is just clearly contrary to the statute, and therefore it doesn't cause us a great deal of alarm.''
Pipeline opponents read the letter as an indication that their side will prevail when the commission and the court interpret the Clean Water Act.
``We're very pleased with the letter,'' said Alan S. Hirsch, North Carolina special deputy attorney general. ``This is the position that we have taken for several years, and we think it's unquestionably the correct one.
``This is a clear step in the right direction, but there are many more steps to go.''
William B. Ellis, a lawyer for the Roanoke River Basin Association, a group of Virginia residents, business owners and political leaders upstream of Lake Gaston, said he was not surprised by the letter.
``I think they did what they had to do, and they did the right thing,'' Ellis said.
The letter, signed by the EPA's general counsel, Jonathan Z. Cannon, and its assistant administrator for water, Robert Perciasepe, says the pipeline will affect the flow of water along the Roanoke River in North Carolina, so the state deserves a legal review of the project.
According to the letter, the EPA has a strong interest in making sure states can protect and maintain water quality and would not want a legal precedent set against it.
The EPA argued that a section of the Clean Water Act provides ``one of the most critical authorities states have . . . to ensure the protection of water quality and the elimination of water pollution.''
The EPA cited a provision of the Clean Water Act stating that: ``any applicant for a Federal license or permit to conduct any activity . . . which may result in a discharge shall obtain a Section 401 certification from the state in which the discharge originates.''
At the crux of the dispute is whether Virginia Beach's withdrawal of water from a finger of Lake Gaston sticking into Virginia eliminates North Carolina's jurisdiction over the project. Virginia gave its permission years ago.
Pipeline opponents and the EPA say the Supreme Court has defined ``discharge'' under the act in a way that would trigger the certification process if the pipeline has any effect on the flow in North Carolina.
North Carolina is not likely to give its approval easily.
The letter, addressed to the secretary of the Federal Energy Regulatory Commission, also asks that the commission be provided a copy. It is also likely to become part of the record under review by the appeals court.
The commission, which issued a permit for the pipeline a little more than a year ago, has jurisdiction over the project because it oversees the Virginia Power hydroelectric plant on Lake Gaston. To operate the pipeline, Virginia Beach needs to modify Virginia Power's permit to run its power plant.
The commission initially avoided ruling on the Clean Water Act issue, saying the permit ``would have no material adverse impact on North Carolina water quality.''
But, in a motion last month, the appeals court sent the matter back to the commission, giving it 60 days to rule on the need for North Carolina's certification. The court said it would not make a decision without the commission's input.
The court is not expected to issue its ruling until early next year. ILLUSTRATION: WHAT THE EPA SAID: North Carolina has veto power over
the Lake Gaston pipeline project.
WHAT IT MEANS: The letter bolsters North Carolina's appeals court
claim that Virginia Beach needs that state's permission to build the
pipeline.
VIRGINIA BEACH'S RESPONSE: EPA's reading of the law is inaccurate
and won't hold up in court.
KEYWORDS: LAKE GASTON EPA LETTER FERC by CNB