THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Wednesday, March 29, 1995 TAG: 9503290426
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 56 lines
A North Carolina federal court Tuesday rejected the city's final attempt to bypass an environmental study of the proposed Lake Gaston pipeline.
U.S. District Judge W. Earl Britt, who in 1990 blocked construction of the 76-mile water pipeline until the Federal Energy Regulatory Commission approved the project, denied Virginia Beach's request to circumvent the commission's review.
Lawyers for Virginia Beach had argued in January that FERC did not need to approve the project if the city could condemn property along the lake front instead of purchasing it from Virginia Power.
The utility, which uses the lake to create hydroelectric power, cannot sell the property without the approval of the federal regulatory commission. Late last year, the Virginia State Corporation Commission gave Virginia Beach permission to condemn the necessary land instead of buying it.
Judge Britt decided that Congress could not have intended to allow cities to circumvent FERC control simply by condemning property.
He also said Congress expressly allows states or cities to condemn entire hydroelectric projects, but it has never authorized condemnation of pieces of such projects.
The judge's decision marks the rejection of the city's third and final attempt to bypass an environmental review by the federal energy regulatory commission.
The city had announced its three-prong strategy last summer when FERC reversed earlier rulings and decided to study the potential impacts of removing up to 60 million gallons of water per day from Lake Gaston for Virginia Beach, Chesapeake, Franklin and Isle of Wight County.
The two other efforts, asking FERC to reconsider its decision and asking the court to order FERC to make a decision quickly, also failed.
The Federal Energy Regulatory Commission has been studying the project's potential environmental impacts since last summer. It released a draft report last month recommending construction of the pipeline and is expected to release its final report by June 30.
North Carolina and Virginia Beach are also engaged in federal mediation, hoping to find an out-of-court solution to the pipeline standoff.
Clarence Warnstaff, director of the city's Department of Public Utilities, said he expected the city would appeal Britt's decision to the 4th Circuit Court of Appeals in Richmond.
North Carolina officials said the decision validated their demand for a full environmental review. ``This is a rejection of Virginia Beach's attempt to get by the back door what they have so far been unable to get by the front door,'' said Attorney General Michael F. Easley. by CNB