THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Sunday, February 2, 1997 TAG: 9702020116
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: 195 lines
A victory for Virginia Beach means the city will likely be able to tap the lake, even as North Carolina continues to search for ways to stop the flow.
A victory for North Carolina would further delay the project and could make it difficult for the Beach to take as much water as it wants - if any - from Lake Gaston.
After 14 years of legal cases, public spats and splashy headlines, the fate of the Lake Gaston pipeline remains unsure.
The pipeline is more than 80 percent built, and Beach officials say they're confident they'll win the case now pending before the U.S. Court of Appeals and drink their first sip of Gaston water within the year.
North Carolina officials, who have successfully stalled the project for more than a decade, are equally confident that they can continue to block it.
On Tuesday, both sides will face off again in oral arguments before the appeals court in Washington.
The three-judge court, expected to issue an opinion sometime this spring or summer, won't have the last word on the pipeline. But it will make a huge difference in when - or whether - water will ever course through the 76 miles of concrete and iron pipe.
A victory for Virginia Beach will mean its gamble to restart construction last year has paid off. The city will likely be able to tap the lake, even as North Carolina continues to search for ways to stop the flow.
A victory for North Carolina would add at least a year or two to the project's time line and could make it very difficult for Virginia Beach to take as much water as it wants from Lake Gaston.
Both sides agree that the appeal is North Carolina's last, best hope to stop the pipeline before it's completed.
``Who knows what else North Carolina might think up, but there's certainly nothing on the horizon,'' said M. Scott Hart, Virginia Beach's outside counsel on the project.
``This (case) is significant, because it's near the end of the line, we hope. . . . we believe,'' Hart said. ``The whole process has dragged out so incredibly long that you get leery of making predictions.''
Alan S. Hirsch, special deputy attorney general for North Carolina, said much the same thing Friday.
``Ultimately, no one knows what this court is going to do,'' he said. ``There is absolutely no question in my mind that the court is taking North Carolina's arguments extremely seriously. What the court ultimately does will be reflected in its decision, but I don't believe that anyone can predict with any confidence now what the final outcome will be.''
Regardless of who wins, the case probably will be appealed to the U.S. Supreme Court.
Although the country's highest court routinely refuses to hear most of the cases appealed to it, the nature of this battle between neighboring states makes it a slightly better candidate than most, those close to the case say.
At the heart of the Gaston dispute is whether Virginia Beach - and its South Hampton Roads neighbors who will also use the pipeline - should be allowed to take water from a lake 125 miles away, in a different drainage basin, most of which lies in another state.
Virginia Beach says that it needs the water to survive, that North Carolina is playing politics with the Beach's future.
For five years, Beach residents have been forbidden to fill swimming pools, water lawns with city water or hose down cars in their own driveways. Development has slowed to a crawl, and big businesses won't even give the city a second look, city officials say.
During the last severe drought, in 1980-81, the Beach was days away from shutting down its tourism industry because Norfolk refused or was unable to keep up the resort city's supply.
North Carolina, and pipeline opponents upstream of Lake Gaston in Virginia, say Virginia Beach is just being greedy. If it had kept its growth under control in the 1980s, if it had been content to live within its means, the Beach wouldn't need 48 million gallons of Lake Gaston water a day, they say.
By taking water from the Roanoke River, which is dammed to create Lake Gaston, Virginia Beach is violating the order of nature and forcing residents along the river to limit their own development potential, they say.
All of the courts and federal agencies that have ruled on the project to date have sided with Virginia Beach and its partner, Chesapeake, which would draw as much as 10 million gallons of water per day from the pipeline.
Hirsch, who has led North Carolina's anti-Gaston effort for 12 years, said his state won't give up its fight to stop the pipeline, even if Virginia Beach manages to get water flowing next year.
Virginia Power's 50-year permit to operate a hydroelectric power plant on the Roanoke River expires at the turn of the century. To renew the permit and keep the plant open, the power company needs North Carolina's OK. Hirsch said his state plans to try to impose conditions on the pipeline, which uses Virginia Power land and resources, before signing off on the power plant.
Pipeline opponents in Virginia are also committed to a protracted battle.
Their latest effort is to try to overturn a state statute that supports the pipeline. T. Keister Greer, a Rocky Mount lawyer, is arguing that the General Assembly acted improperly by signing off on the project.
If he succeeds in invalidating the legislation, it may not stop the pipeline, but it will make life more difficult for Virginia Beach by taking away crucial support.
The Beach also has contingency plans.
If the Washington, D.C., appeals court sides with North Carolina and says the Federal Energy Regulatory Commission shouldn't have issued a permit for the pipeline, the Beach is poised to say it didn't need that permission anyway.
In a case now on hold in the 4th U.S. Circuit Court of Appeals in Richmond, Virginia Beach has argued that the energy commission doesn't have the right to oversee municipal use of water that passes through hydroelectric projects.
Also, to pre-empt any suits from landowners along the Roanoke River in North Carolina, Virginia Beach filed suit in U.S. District Court in Raleigh. That case, which is also on hold, alleges that landowners along the river don't have the right to block Virginia Beach's water withdrawals.
As a result of all these legal machinations, both sides may find themselves back where they were almost two years ago: in settlement negotiations.
Several people close to the dispute say the only way to really put an end to the dispute is with a peace treaty. That's what happened in the Midwest.
Late last year, after 90 years of fighting, the governors of eight Great Lakes States finally signed an agreement to share the waters of Lake Michigan. ILLUSTRATION: Map
Update on the Lake Gaston Pipeline
Graphics
A LAKE GASTON TIMELINE: PAST AND FUTURE
THE PAST
1975: Southeastern Water Authority of Virginia recommends Lake
Gaston as long-term solution to area's water needs.
November '82 to January 1983: Virginia Beach City Council decides
to proceed with Lake Gaston project.
January 1984: North Carolina files first lawsuit to block
pipeline, shortly after Army Corps of Engineers issues a
construction permit for it.
November 1988: Virginia Beach voters approve a $200 million bond
to pay for the pipeline.
February 1992: Virginia Beach imposes water restrictions limiting
development and prohibiting ``unnecessary'' use of outdoor water.
May 1992: Virginia Beach begins building several bridges and pump
stations near Lake Gaston. A federal judge in North Carolina has
already blocked further construction of the 76-mile pipeline.
December 1994: Virginia Beach and North Carolina officials agree
to enter into mediation to try to settle the entire Lake Gaston
dispute.
April 1995: North Carolina and Virginia Beach officials reach a
settlement, pending the approval of state and federal leaders. Beach
City Council gives Norfolk the go-ahead to expand its water
treatment plant to handle the water from Lake Gaston.
June 1995: The settlement agreement falls apart when Virginia
Gov. George Allen, fighting with the Virginia General Assembly,
declines to call a special session to ratify the compact.
August 1995: Federal Energy Regulatory Commission issues the
final permit for the pipeline.
Early 1996: Construction resumes.
Fall-winter 1996: U.S. Circuit Court of Appeals, in Washington,
D.C., considers North Carolina's appeal of the energy commission's
permit.
THE FUTURE
Tuesday: U.S. Circuit Court to hear oral arguments on North
Carolina's appeal.
Feb. 14: Circuit Court of the city of Richmond to hear arguments
on case filed by pipeline opponents in Virginia.
Early to mid-1997: U.S. Circuit Court to decide appeal.
Spring 1998: Spigot for Lake Gaston pipeline scheduled for
official opening.
1998-2001: Virginia Power will need permission from North
Carolina to continue to operate its 50-year-old hydroelectric power
plant on Lake Gaston. North Carolina is expected to try to use the
permit process to kill or limit the pipeline.
ABOUT THE APPEAL
In late 1995, North Carolina appealed the Federal Energy
Regulatory Commission's decision to permit the pipeline.
The state offered two main challenges to the permit, saying that
Virginia Beach had not adequately proved its need for the Lake
Gaston water and that it should not have been given permission to
take the water until North Carolina was given permitting rights over
the pipeline.
The U.S. Court of Appeals for the District of Columbia Circuit
held oral arguments on the case in September and focused mostly on
North Carolina's permit request. The three-judge court decided that
the energy commission had been unclear in its position on North
Carolina's permitting rights, and so sent the matter back to the
commission for an opinion.
Two months later, the commission again sided with Virginia Beach,
saying it did not believe that Section 401 of the Clean Water Act
gave North Carolina the permitting rights over the pipeline and that
even if it did, the pipeline would not have enough environmental
impact to justify a permit.
Since then, there has been a flurry of briefs amplifying this
dispute. The attorneys general of 40 states supported North
Carolina. Power industry groups, which are regulated by the energy
commission, sided with Virginia Beach. The U.S. Justice Department
seemed to support most, but not all, of the Beach's arguments.
On Tuesday, the court can ask about any issue it wants, but is
expected to continue to focus on the Section 401 disagreement.
It will then take probably two to six months to issue an opinion
which will decide whether the energy commission acted properly in
allowing Virginia Beach to proceed with construction of the Lake
Gaston pipeline.
KEYWORDS: LAKE GASTON PIPELINE WATER SUPPLY PLAN