300R04905
Recommended Record of Decision
of the District Commander
On Permit Application Number 93-0902-12
Submitted by the City of Newport News
on Behalf of the Regional Raw Water Study Group
For the King William Reservoir Project
on Cohoke Creek in King William County, Virginia
US Army Corps
off Engineers
Norfolk District
803 Front Street
Norfolk, Virginia 23510-1096 20 March 2001
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Recommended Record of Decision
of the District Commander
On Permit Application Number 93-0902-12
Submitted by the City of Newport News
on Behalf of the Regional Raw Water Study Group
For the King William Reservoir Project
on Cohoke Creek in King William County, Virginia
U. S. Army Corps of Engineers
Norfolk District
803 Front Street
Norfolk, Virginia 23510-1096
20 March 2001
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Prepared By
Pamela K. Painter, P.O., P.W.S.
Environmental Scientist
Regulatory Branch
Project Manger
Kenneth M. Kimidy, P.W.S.
Environmental Scientist
Regulatory Branch
David A. Knepper, P.W.S.
Environmental Scientist
Regulatory Branch
Melissa A. Smith
Environmental Scientist
Regulatory Branch
Audrey L. Cotnoir, P.W.S.
Environmental Scientist
Regulatory Branch
Reviewed By
Bruce F. Williams
Chief, Northern Virginia Regulatory Section
Regulatory Branch
Nicholas L. Konchuba, P.W.S.
Chief, Eastern Virginia Regulatory Section
Regulatory Branch
R. Harold Jones, P.W.S.
Chief, Southern Virginia Regulatory Section
Regulatory Branch
J. Robert Hume, III, P.W.S.
Chief, Regulatory Branch
William A. Sorrentino, Jr., P.E.
Chief, Technical Services Division
Recommended By
Allan B. Carroll
Colonel, U. S. Army
District Commander
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Table of Contents
Page
1. Name of Applicant 1
2. Location. Description and Purpose of the Proposed Activity 1
a. Location 1
b. Description 1
(1) Impoundment 1
(2) Pipeline 2
(3) Outfall Structure 2
(4) Intake Structure 2
(5) Pier and Boathouse 3
(6) Applicant's Proposed Compensation Plan 3
c. Purpose 3
3. Applicable Statutory Authorities and Administrative Determinations Conferring
Corps of Engineers Regulatory Jurisdiction 4
4. Other Federal, State and Local Authorizations Obtained or Required and Pending 4
a. Other Federal Authorizations 4
b. State Authorizations 4
(1) Section 401 of the Clean Water Act (33 U. S. C. 1341) 4
(2) Virginia Wetlands Act (Va. Code 28.2-1300) 5
(4) Virginia Dam Safety Act (Va. Code 10.1 -604) 5
(4) Coastal Zone Management Act of 1972 5
(5) Federal Safe Drinking Water Act 5
c. Local Authorizations 5
(1) Virginia Erosion and Sediment Control Law 5
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(2) Chesapeake Bay Preservation Act (Va. Code 10.1-2100) 5
(3) Local Zoning 6
5. Public Notices, Public Hearing and Publication of Environmental Impact Statement 6
a. Notice of Intent to Prepare Draft EIS 6
b. Scope of Study for Draft EIS 6
c. Draft EIS and Public Notice 6
d. Public Hearing 6
e. Public Notice 6
f. Supplement to the Draft EIS and Public Notice 6
g. Final EIS and Joint Federal/State Public Notice 7
6. Project History 7
7. Extent of Public and Private Need 15
a. First IWR Review 17
b. Second IWR Review 17
c. Newport News' Rebuttal of IWR Report 19
d. Final IWR Report 19
e. Newport News' Revised Needs Assessment 21
f. IWR's Review of Newport News' Revised Needs Assessment 22
(1) Drought Curtailment 24
(2) James City County Desalination Plant - 26
(3) Risk of Shortfall with Additional Supply 26
(4) Additional Supplies Needed to Eliminate Risk 28
(5) Dead Storage and Safe Yield of the Newport News System 29
(6) Need for Additional Water Supply 30
(7) Water Needs for National Defense 32
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Views of the District Commander Concerning the Probable Effect of the Proposed Work: 33
a. Water Supply 33
(1) RRWSG Area 33
(2) Communities in the Mattaponi and Pamunkey River Watersheds 33
b. Navigation. Present and Prospective 35
(1) Mattaponi River 35
(2) Cohoke Creek 35
c. Flood Height. Drift and Flood Damage Protection 35
(1) Mattaponi River 35
(2) Cohoke Creek 36
d. Erosion or Accretion 36
(1) Mattaponi River 36
(2) Outfall on Beaverdam Creek 37
(a) Site Conditions of the Relocated Outfall Site 38
(b) Impact Analysis 39
(3) Cohoke Creek 41
e. Water Quality • 41
(1) Mattaponi River 41
(a) Minimum In-Stream Flow Requirements 42
(b) Salinity of Mattaponi River Water 45
(2) Pamunkey River Water 49
(3) Cohoke Creek 49
(a) Downstream Releases 50
(b) Assessment of Proposed Cohoke Creek Flow-By Requirements 51
(4) King William Reservoir Watershed 59
f. Fish and Wildlife Resources 60
(1) Habitat Description 60
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(a) Cohoke Creek System 60
(b) Mattaponi River System 61
(2) Ecological Impacts of the Proposed Work 61
(a) Habitat Loss 61
(b) Wetland Loss 65
(i.) Impacts to Downstream Wetlands 66
(ii.) Wetland Conversion Impacts 68
(c) Upland Loss 69
(d) Functional Assessments 69
(i.) Habitat Evaluation Procedures (HEP) 69
(ii.) Wetland Evaluation Technique (WET) 76
(iii.) Evaluation for Planned Wetlands (EPW) 77
(iv.) Total Net Primary Productivity (TNPP) 79
(v.) Sediment Retention/Nutrient Assimilation 81
(vi.) Floodflow Alteration 85
(vii.) Landscape Interspersion/Connectivity 85
(viii.) Uniqueness 86
(ix.) Summary of Functional Assessments 87
(e) Applicant's Compensation Proposals 88
(i.) Mitigation 88
(ii.) Mitigation Team 88
(iii.) August 1996 Conceptual Mitigation Plan 89
(iv.) Pilot Study 89
(v.) October 1997 Draft Mitigation Plan 89
(vi.) Fringe Study 90
(vii.) July 1998 Draft Mitigation Plan 91
(viii.) February 1999 Final Revised Draft Mitigation Plan 91
(ix.) May 1999 King William Reservoir Project-Final Mitigation Plan 92
Bleak Hill/Ferry Farm 95
Burlington Farm 95
Davis Farm 95
Gulasky 96
Island Site 96
King William Sand and Gravel Site 96
Lanesville 96
Meadow Farm A 97
Meadow Farm B 97
Meadow Farm C 97
Rice Site 98
Taliaferro Site 98
Terrell Site 98
Townsend Site 98
Contingency Sites 99
(x.) Mitigation Program, Fish and Wildlife Mitigation Plan-May 1999 99
(xi.) Stream Compensation 100
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(xii.) Environmental Issues Summary 101
(xiii.) Uplands Preserved 102
(f) Summary of District's Findings on Compensation Proposals 102
g. Endangered or Threatened Species 104
(1) Bald Eagle 104
(2) Small Whorled Pogonia 105
(3) Sensitive Joint-Vetch 106
h. Other Rare or Protected Species 109
i. Other Wildlife 109
j. Anadromous Fish and Other Fishes 110
(1) Mattaponi River 110
(2) Cohoke Creek 113
k. Monitoring Plan 116
(1) Wetland Vegetation 117
(2) Impingement and Entrainment 117
(3) Fisheries 118
(4) Water Quality 118
(5) Cohoke Creek Monitoring 118
(6) Final Coordination Requirements 118
1. Aesthetics 119
(1) Mattaponi River 119
(2) Cohoke Creek 120
m. Historic Resources and Traditional Cultural Properties 120
(1) Archaeology and Architectural Resources 121
(2) American Indians 122
(3) Public Involvement and Comments 122
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(4) Traditional Cultural Properties 123
(a) Consulting Parties 123
(b) TCP's and Environmental Justice 124
(5) Memorandum of Agreement 124
(6) "Powhatan's Legacy" 125
(a) Newport News Comments on TCP Report 125
(b) Other Comments on TCP Report 126
(c) Final TCP Report 126
(7) Mitigation for Impacts to TCP's 127
(8) Suspension of Section 106 Coordination 129
(9) Discussion on Appropriate Mitigation Measures 129
(10) Sacred Site 129
(11) Rebuttal Reports Submitted by Newport News 130
(a) Newport News Request for Continuation of Section 106 Review 131
(b) Additional Newport News Comments on TCP Report 132
(12) Impacts to Cultural Resources 133
n. Air Quality 134
o. Health and Safety 134
p. Recreation 135
(1) Mattaponi River 135
(2) King William Reservoir 135
(3) Cohoke Creek 136
(4) Diascund Reservoir • 136
q. Socioeconomics 136
(1) Mattaponi and Pamunkey Indian Tribes • 136
(2) Commercial Fisheries 137
(3) Development Potential 137
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(4) Agricultural Irrigation 138
(5) Increased Cost to Newport News Waterworks Customers 138
r. Energy Needs 139
s. Land Use Classification and Coastal Zone Management Plans 139
(1) Mattaponi River 139
(2) King William Reservoir 139
(3) Pipeline Routes 139
t. Environmental Justice 139
(1) Executive Order 12898 139
(2) Minority Populations Potentially Affected by the Proposed Project 140
(3) Federal Trust Responsibility 141
(4) Demographic Characteristics of the Closest Census Tract 141
(5) Potential Adverse Environmental Effects to the Tribes 143
(a) Impacts to Cultural Resources 143
(b) Loss of Archaeology 144
(c) Effects of Water Withdrawal from the Mattaponi River 144
(d) Mattaponi River Cultural Factors 145
(e) Impacts of Increased Recreational Boating on the River 145
(f) Socioeconomic Effect on Hunting, Trapping, and Gathering 145
(g) Physical Barrier Between Reservations 146
(h) Reservation Expansion/Tribal Land Reclamation Efforts 146
(i) Loss of Rural Character of the Local Area 146
(6) Mitigation Measures Available 146
(7) Summary of Findings on Environmental Justice 147
9. Alternatives Considered in EIS 148
10. Alternatives Available to the Applicant 149
a. Non-Reservoir Components of the RRWSG's Plan 149
(1) Groundwater 150
(2) Conservation 150
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b. Other Non-Reservoir Alternatives 151
(1) Purchase of Surplus Treated or Raw Water from the City of Richmond 151
(2) Withdrawal of Fresh Water from the James River Above Richmond 151
(3) Desalination of Brackish Water from the James River, the Pamunkey River
or the York River 152
(a) James River Desalination 152
(b) Pamunkey River Desalination 152
(c) York River Desalination 152
c. Other Alternatives Considered • 154
(1) Wastewater Reuse for Non-Potable Uses 154
(2) Black Creek Reservoir and Pamunkey River Pumpover 155
(3) Surplus Water from the City of Norfolk 155
11. Combined Adverse Environmental Impacts of the Project 157
12. Extent and Permanence of Beneficial and Detrimental Effects 158
a. Beneficial Effects 158
b. Detrimental Effects 159
13. Probable Impacts in Relation to Cumulative Effects Created by Other Past. Present and
Reasonably Foreseeable Activities 159
a. Expansion of the King William Reservoir 160
b. Enhancement of the King William Reservoir 161
14. Adverse Environmental Effects Which Cannot be Avoided Should the Proposal be Implemented 161
15. The Relationship Between Short-Term Uses of Man's Environment and the Maintenance and
Enhancement of Long-Term Productivity 162
16. Any Irretrievable or Irreversible Commitments of Resources Which Would be Involved in the
Proposal Should it be Implemented 163
17. Comments and Recommendations of the Corps Federal Advisory Agencies 164
a. U. S. Fish and Wildlife Service 164
b. U. S. Environmental Protection Agency 165
V1H
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c. National Marine Fisheries Service 167
18. Views of Other Federal and State Agencies and Representatives 167
a. Virginia Department of Environmental Quality 167
b. Virginia Department of Health 168
c. Virginia Department of Game and Inland Fisheries 170
d. Virginia Department of Conservation and Recreation Division of Natural Heritage 170
e. Governor of Virginia 171
f. Virginia Secretary of Natural Resources 171
g. U.S. Senator Charles Robb 171
h. U.S. Senator John Warner 171
i. Congressman Herbert Bateman 171
j. Congressman Robert Scott 172
19. Summary of Public Comments Received on the Environmental Impact Statement 172
20. Comments Received from the City of Newport News 175
21. A Discussion of Conformity With the Guidelines Published for the Discharge of Dredged 177
or Fill Material in Waters of the United States (40 CFR. Part 2301
Subpart C - Potential Impacts on Physical and Chemical Characteristics of the Aquatic Ecosystem 177
Subpart D - Potential Impacts on Biological Characteristics of the Aquatic Ecosystem 180
Subpart E - Potential Impacts on Special Aquatic Sites 183
Subpart F - Potential Effects on Human Use Characteristics 184
Subpart G - Evaluation and Testing 187
Subpart H - Actions to Minimize Adverse Effects 187
Subpart B - Compliance With the Guidelines 189
22. Conclusions 191
23. District's Recommendation 198
Selected References 201
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DEPARTMENT OF THE ARMY
NORFOLK DISTRICT, CORPS OF ENGINEERS
FORT NORFOLK, 803 FRONT STREET
NORFOLK, VIRGINIA 23510-1096
REPLY TO
ATTENTION OF
CENAO-TS-G 20 March 2001
MEMORANDUM FOR Commander, North Atlantic Division, ATTN: CENAD-CO-R
SUBJECT: Recommended Record of Decision of the District Commander on Permit Application
93-0902-12 submitted by the City of Newport News on behalf of the Regional Raw Water Study Group to
construct the King William Reservoir Project on Cohoke Creek in King William County, Virginia.
1. Name of Applicant: The City of Newport News, acting on behalf of a group of municipalities known as
the Regional Raw Water Study Group (RRWSG), c/o Mr. R. W. Hildebrandt, Assistant City Manager,
2400 Washington Avenue, Newport News, Virginia 23607. The terms RRWSG, the City of Newport
News, Newport News Waterworks, the project proponent, and the applicant are all used in this document.
These terms are generally interchangeable, but in some cases it was difficult to determine if submittals by
the City of Newport News or Newport News Waterworks were made on their own or on behalf of the
RRWSG.
2. Location, Description and Purpose of the Proposed Activity:
a. Location: The proposed King William Reservoir would be located in Cohoke Creek (also
known as Cohoke Mill Creek), a tributary to the Pamunkey River, in King William County, Virginia.
Cohoke Creek lies in a deeply incised valley between the Mattaponi and Pamunkey Rivers, which join at
West Point, Virginia to form the York River. The reservoir would be generally located between State
Route 30 to the north, County Route 630 to the east, County Route 626 to the south and County Route
633 to the west, in a rural area known locally as Pamunkey Neck. The proposed raw water intake and
pumping station would be located at Scotland Landing, in the freshwater tidal portion of the Mattaponi
River, a tributary to the York River in King William County, Virginia (see Map 1 - Project Vicinity Map).
b. Description: The proposal involves the withdrawal of water from the Mattaponi River,
pumpover to a reservoir created by impounding the upper half of Cohoke Creek, and the transmission of
the water by underground pipeline to the Newport News Waterworks' existing water supply system. The
project consists of the following activities requiring Department of the Army authorization:
(1) Impoundment: A 78-foot high by 1,700-foot long earthen dam would be constructed on
Cohoke Creek, approximately 3.5 miles upstream of the existing Cohoke Mill Pond dam and 0.2 miles
downstream of the Route 626 crossing of Cohoke Creek to provide a raw water storage reservoir. The
reservoir would impound a surface area of approximately 1,526 acres at a normal water surface elevation
of 96 feet at mean sea level to provide a storage volume of approximately 12.2 billion gallons. The
reservoir pool area would be clearcut logged up to elevation 90 feet at mean sea level. Approximately
100,000 cubic yards of material would be excavated from vegetated wetlands in order to remove
unsuitable organic soils for the preparation of the dam footprint. The downstream toe of the dam and the
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GENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
spillway discharge channel would be protected by riprap. The existing Cohoke Creek crossing of County
Route 626 would be relocated to the top of the dam structure. The impoundment would involve the
excavation, filling and displacement by flooding of 437 acres of waters of the United States consisting of
403 acres of palustrine forested, scrub-shrub and emergent wetlands and 34 acres of shallow open water.
The construction of the impoundment would also inundate approximately 21 miles of free-flowing
perennial and intermittent streams.
(2) Pipeline: A 50 million gallon per day (mgd) reservoir pump station would be constructed
on the downstream side of the dam to pump raw water from the King William Reservoir through an
estimated 11.7 miles of 42-inch and 48-inch diameter pipeline to Beaverdam Creek, a tributary to the
Newport News Waterworks' existing Diascund Creek Reservoir in New Kent County. The construction
of the pipeline would involve crossings of the Pamunkey River, Cohoke Creek near its confluence with
the Pamunkey River, and 60 other perennial and/or intermittent streams and wetland areas. The 4,500-
foot long submarine pipeline crossing of the Pamunkey River and adjacent wetlands would be
accomplished by directional drilling methods to avoid disturbance of the river bottom and wetlands. A
concrete emergency drain outfall structure and riprap slope protection apron would be constructed on the
west bank of the Pamunkey River. Other pipeline crossings would be excavated and backfilled to pre-
existing grades. The total area that would be impacted by the pipeline construction would be 113 acres
including approximately 10.4 acres of wetlands/streams. Most of the affected stream and wetland areas
are palustrine forested, broad-leaved deciduous wetlands. Construction and maintenance of the pipeline
right-of-way would permanently convert forested wetlands to emergent and scrub-shrub wetlands.
(3) Outfall Structure: The pipeline would end at a pre-cast concrete outfall structure with a 30-
foot long riprap apron on Beaverdam Creek approximately 0.3 miles west of the Interstate 64 bridge over
Beaverdam Creek and 0.8 miles upstream of the normal pool area of Diascund Creek Reservoir. A 150-
foot long discharge channel would be excavated to connect the outfall to the main channel of Beaverdam
Creek. The outfall would be designed for a maximum discharge flow of 50 mgd. Approximately 0.15
acres of vegetated wetlands consisting of a mixture of palustrine forested, scrub-shrub, emergent and sub-
emergent communities would be impacted by the outfall structure and the excavated channel. The
existing Newport News Waterworks raw water transmission system would transport the raw water from
the Diascund Creek Reservoir to terminal reservoirs and treatment plants.
(4) Intake Structure: Because the reservoir drainage area is so small (8.9 square miles), the
project would also involve the construction of a raw water intake and pumping station with a withdrawal
capacity of 75 million gallons per day (mgd) at Scotland Landing on the southern shore of the Mattaponi
River approximately 24.2 river miles upstream of its mouth, and the construction of 1.5 miles of 54-inch,
75 mgd capacity transmission pipeline with an outfall at the upper end of the proposed reservoir.
Approximately 6,000 cubic yards of material would be excavated from the river bottom to facilitate the
installation of the intake structure and concrete foundation. The intake pipe will be encased in a concrete
structure and backfilled with gravel and riprap. River withdrawals would be accomplished though twelve,
7-foot diameter wedge-wire intake screens arranged atop the foundation in a single row parallel to the
shoreline approximately 140 feet channelward of mean high water. The screens would be designed with
one-millimeter slot openings and a maximum through slot velocity of 0.25 feet per second to protect fish
eggs and larvae from entrainment and impingement. Two 60-inch diameter intake lines would be
installed using a microtunneling method which would not disturb the shoreline or bank. No wetlands
would be impacted by the footprint of the proposed pumping station.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Initial withdrawals of up to 75 million gallons of water per day (mgd) would be pumped from the
Mattaponi River to the King William Reservoir for the purpose of filling the reservoir and would continue
whenever the reservoir level drops below the normal pool elevation of 96 feet at mean sea level.
However, river withdrawals would be restricted by a minimum instream flow requirement (MIF) to
prohibit pumping during periods of low freshwater flow in the river. The applicant's proposed 40/20 MIF
applies the 40 Tennant MIF during the higher flow months of December through May and the 20 Tennant
MIF during the lower flow months of June through November.
(5) Pier and Boathouse: A 72-foot long pier with an enclosed boathouse would be constructed
adjacent to the intake structure on the Mattaponi River to provide mooring and storage of a boat for use in
water quality sampling and intake screen maintenance.
(6) Applicant's Proposed Compensation Plan: To compensate for the loss of wetlands within
the dam and reservoir pool area, the RRWSG propose to establish replacement wetlands at a 2 to 1 ratio
in several sites throughout the York River and Rappahannock River watersheds. The applicant has also
proposed a stream restoration plan in Louisa County. The applicant's Mitigation Program, Fish and
Wildlife Mitigation Plan also outlines other potential mitigation measures. The applicant's proposed
mitigation plans are discussed in detail in Section 8 f of this document.
c. Purpose: The applicant's stated purpose is "To provide a dependable, long-term public water
supply for the Lower Virginia Peninsula, in a manner which is not contrary to the overall public interest."
The Regional Raw Water Study Group has stated that a new raw water supply which can increase the
regional treated water delivery capacity by 39.8 mgd is required to satisfy projected demands through the
year 2040 (changed by applicant in November 2000 to year 2050). In order to meet the projected need,
Newport News Waterworks has proposed the King William Reservoir as their preferred alternative to
supply 23.2 mgd of the projected treated water safe yield deficit. The RRWSG estimates that
construction and filling of the reservoir would take about ten years. Fresh groundwater development (4.4
mgd), brackish groundwater desalination (5.7 mgd) and conservation measures/use restrictions (7.1 to
11.1 mgd) are the other three components of the applicant's proposed water supply plan.
The RRWSG is led and principally funded by the City of Newport News and its current members consist
of the City of Newport News, the City of Williamsburg and York County. The Lower Virginia Peninsula
jurisdictions to be served by the Regional Raw Water Study Group include the Cities of Newport News,
Hampton and Poquoson, which compose the current Newport News Waterworks service area, the City of
Williamsburg, and York and James City Counties. Although once a member of the RRWSG, James City
County is currently a participant under the conditions of a Memorandum of Agreement with the City of
Newport News. Within the RRWSG service area are four military installations. Fort Eustis, located in
Newport News and the Yorktown Naval Weapons Station, located in York County, rely on Newport
News Waterworks for all of their water supplies. Langley Air Force Base and Fort Monroe, both located
in Hampton, obtain their water supplies from Fort Monroe's Big Bethel Reservoir, but rely on Newport
News Waterworks for emergency supplies. The applicant's projected 39.8 mgd deficit is broken down as
follows: Newport News Waterworks service area = 32.8 mgd, Williamsburg =1.5 mgd, York County =
1.1 mgd and James City County = 4.4 mgd (see Map 2 - Regional Map).
The City of Newport News Waterworks would receive 82% of the safe yield. Seven mgd or 18% of the
safe yield would be supplied to the other members. While not members of the Regional Raw Water
Study Group or a part of the RRWSG service area, King William County and New Kent County are host
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
communities for the reservoir and pipeline, respectively. If the King William Reservoir were built, the
host agreements with these localities provide a 3 mgd allowance of raw water for King William County
and a 1 mgd allowance of raw water for New Kent County in the reservoir storage volume, should these
localities ever choose to purchase the water from the City of Newport News and to construct the pipes,
pump stations, treatment plants and distribution systems necessary to obtain the water. The water
supplies and needs of the host localities have not been included in the RRWSG's calculations of the 39.8
mgd deficit for the region (see Map 3 - RRWSG Service Area and Host Communities).
On 27 October 2000, the City of Newport News reported a re-calculated 19 to 21 mgd safe yield benefit
from the King William Reservoir based on the conditions contained in the Virginia Water Protection
Permit. On 30 November 2000, the City of Newport News submitted an updated water needs assessment
which reported that the Peninsula's 2050 deficit could be as low as 15 mgd or as high as 36 mgd,
depending on the rate of regional population growth and economic development. The report indicated a
50 percent chance that the regional need for additional water supply in 2050 would be between 22 and 27
mgd.
Based on my review of the applicant's stated project purpose, I am defining the overall project purpose as
follows: to satisfy the water supply needs of the localities in the Regional Raw Water Study Group
service area through the year 2050.
3. Applicable Statutory Authorities and Administrative Determinations Conferring Corps of Engineers
Regulatory Jurisdiction: Section 10 of the Rivers and Harbors Act of 3 March 1899 (30 Stat. 1151, 33
U.S.C. 403) and Section 404 of the Federal Water Pollution Control Act, as amended (Clean Water Act,)
(Public Law 92-500, 86 Stat 816 and 33 U.S. C. 1344) are applicable.
4. Other Federal. State and Local Authorizations Obtained or Required and Pending:
a. Other Federal Authorizations: No other federal authorizations are required.
b. State Authorizations:
(1) Section 401 of the Clean Water Act (33 U. S. C. 1341): The issuance or waiver of a state
certification assuring that the proposed discharge will not violate specified water quality standards is
required prior to the issuance of the Corps of Engineers permit under Section 404 of the Act. In Virginia,
the State Water Control Board (S WCB) and the Virginia Department of Environmental Quality-Water
Division (DEQ) implement Section 401 under the 1989 Water Protection Permit law (Va. Code 62.1-
44.15:5).
The Virginia DEQ issued its Virginia Water Protection Permit (VWPP)/401 Certificate Number 93-0902
on 22 December 1997 with an expiration date of 22 December 2007. The permit imposed a more
restrictive minimum instream flow for the Mattaponi River than the one the RRWSG proposed, set a
higher minimum downstream release from the dam into Cohoke Creek and placed maximum limits on
interbasin transfers from the King William Reservoir to the other Newport News reservoirs, all of which
the City of Newport News claimed restricted the safe yield of the project to the point that it would not
provide enough water to justify its construction. The City of Newport News immediately filed suit in
Newport News Circuit Court against DEQ and the State Water Control Board to have these restrictions
removed. A ruling by the Newport News Circuit Court upheld the DEQ permit conditions and the City of
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Newport News did not appeal the decision, but stated that they would pursue changes to the permit when
it is eligible for re-issuance in 10 years.
The Mattaponi Tribe also filed suit against the DEQ and the SWCB alleging that the Board issued its
permit without considering the detrimental impact the project would have on the survival of the Tribe. In
addition, King and Queen County and several environmental groups filed suit against the Board for
issuing its permit. However, the court ruled that these groups lacked the legal standing to sue the Board
on its decision.
(2) Virginia Wetlands Act (Va. Code 28.2-1300): Either the Virginia Marine Resources
Commission (VMRC) or the local Wetlands Board must grant a permit for construction in any state-
owned submerged land in the Commonwealth of Virginia or any tidal wetland area in "Tidewater
Virginia" (generally east of Interstate 95). This includes the intake and associated structures, pipeline
crossings and discharge structures. VMRC is reviewing the permit application. As the local governments
are co-applicants, local wetlands board approval may not be required. The dam for the proposed reservoir
is authorized by statute pursuant to Section 28.2-1203 of the Code of Virginia and would not require a
permit from the VMRC.
(3) Virginia Dam Safety Act (Va. Code 10.1-604): The Virginia Soil and Water Conservation
Board (under the Virginia Department of Conservation and Recreation) must issue construction permits to
provide for design, construction, operation, and maintenance of impounding structures to protect public
safety.
(4) Coastal Zone Management Act of 1972: The project must be constructed and operated in a
manner which is consistent with the Virginia Coastal Resource Management Program. The City of
Newport News has written to the Virginia Coastal Program Manager stating that the project is consistent
with the Act. However, the state has requested more information in order to determine if they concur
with the applicant's draft federal consistency certification.
(5) Federal Safe Drinking Water Act: The Virginia Department of Health must approve the
' capacity of waterworks operation systems (Va. Code 32.1-172).
c. Local Authorizations:
(1) Virginia Erosion and Sediment Control Law (Va. Code 10.1-560): The law specifies
minimum standards for control of soil erosion, sediment deposition, and non-agricultural runoff.
Localities must adopt a plan that is consistent with the state program. The applicant is required to submit
a sediment and erosion control plan for approval by the counties in which work is conducted.
(2) Chesapeake Bay Preservation Act (Va. Code 10.1-2100): Localities in eastern Virginia are
required to implement land use controls to improve the condition of Chesapeake Bay waters and to
designate Chesapeake Bay Preservation Areas in which all project activities would be required to comply
with the appropriate land use controls. The Act is administered by the Chesapeake Bay Local Assistance
Department. The 1997 King William County Comprehensive Plan shows the proposed reservoir and
designates a 100-foot wide area around the reservoir pool area as a Resource Protection Area. The
remainder of the County is designated as a Resource Management Area. Specific authorizations for the
reservoir have not yet been sought.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(3) Local Zoning: The reservoir site is currently zoned as Agricultural/Conservation.
Approvals from King William and New Kent Counties under state and local consent statutes and local
zoning ordinances would be required for some components of the project. The counties have provided
local consent for the project.
5. Public Notices. Public Hearing and Publication of Environmental Impact Statement (EIS):
a. Notice of Intent to Prepare Draft EIS: Because of the range of alternatives and the potential
for significant environmental impacts, the District determined that an Environmental Impact Statement
would be required. A notice of intent to prepare a Draft EIS on the City's proposed raw water supply was
published in the Federal Register on 30 July 1990.
b. Scope of Study for Draft EIS: A public scoping meeting was not conducted because the
project alternatives were so geographically widespread. Rather, a Public Notice was issued on 1 August
1990 requesting public comments by 20 August 1990 on the Scope of Study for the development of an
EIS on the regional water supply to meet the future short and long-term needs of the Regional Raw Water
Study Group. The notice listed a reservoir on Cohoke Creek with a pumpover from the Mattaponi River
as one of numerous alternatives that would be considered and indicated that an Environmental Impact
Statement would be required to evaluate the environmental impacts, project alternatives and other public
interest review factors
c. Draft EIS and Public Notice: In accordance with the requirements of the National
Environmental Policy Act (NEPA) of 1969, as amended, a Draft Environmental Impact Statement for the
proposed water supply project was released for public review and comment on 4 February 1994 with a
45-day comment period to end on 21 March 1994.
d. Public Hearing: In the District's Public Notice announcing the availability of the Draft EIS, it
was also announced that a public hearing for this proposal had been scheduled for 7:30 PM on 8 March
1994 in the auditorium of the Acquinton Elementary School which is located near the intersection of
Routes 30 and 629 in King William County, Virginia. The hearing record remained open for ten days
after the public hearing for the submittal of written comments. The District determined that a 30-day
extension of the Draft EIS comment period until 20 April 1994 was warranted to allow for thorough
public review of the document.
e. Public Notice: Based on comments received at the District's Public Hearing and in response
to the Draft EIS, the District announced in a Public Notice dated 8 June 1994 the intent to prepare a
Supplement to the Draft EIS to remedy the inadequacies of the document, address concerns raised during
the public review and include the results of additional field studies.
f. Supplement to the Draft EIS and Public Notice: The Norfolk District announced the
availability of the Supplement to the Draft Environmental Impact Statement (Supplement) for the project
on 29 December 1995 with a 45-day comment period to end on 12 February 1996. However, official
Notice of Availability of the document was not announced in the 29 December 1995 Federal Register due
to the partial federal furlough from 18 December 1995 to 12 January 1996. The Notice of Availability
appeared in the 26 January 1996 Federal Register with the original closing of the comment period on 12
February 1996. Although the Supplement was mailed on time, the District determined that a 30-day
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
extension of the comment period until 13 March 1996 was warranted to allow for thorough agency and
public review of the document.
g. Final EIS and Joint Federal/State Public Notice: The Norfolk District announced availability
of the Final Environmental Impact Statement (Final EIS or FEIS) for the project on 24 January 1997 with
a 30-day comment period to end on 24 February 1997. The Public Notice also announced the receipt of
the RRWSG's permit application. In a Public Notice dated 3 February 1997, the comment period was
extended by 30 days to end on 26 March 1997. In a subsequent Public Notice dated 11 March 1997, the
comment period was further extended by 60 days to end on 26 May 1997. Finally, in a Public Notice
dated 9 May 1997, the comment period was extended an additional 60 days to end on 25 July 1997. The
comment period for the Final EIS totaled 180 consecutive days.
Copies of all EIS documents were made available for viewing during normal business hours at the Army
Corps of Engineers Norfolk District Office; the Offices of the City Managers in the Cities of Hampton,
Newport News, Poquoson, and Williamsburg; the Offices of the County Administrators in the Counties of
James City, King and Queen, King William, New Kent, and York; as well as at the following libraries:
Hampton Public Library, Heritage Library, King and Queen Branch Library, Newport News Public
Library, Pamunkey Regional Library, Poquoson Public Library, Williamsburg Regional Library, and
York County Public Library. Single copies of the EIS documents were made available upon request and
at no charge for as long as they lasted. Individuals who subsequently requested copies were referred to the
local libraries.
6. Project History: In June of 1989, the City of Newport News invited the District to attend a briefing on
the City's future water supply plans to be held on 13 July 1989. (According to a chronology of events
prepared by the RRWSG, organizational meetings were held as early as 18 March 1987. However, the
District was not involved until June of 1989.) The City of Newport News then presented their plan at the
District's regularly scheduled federal/state interagency meeting later that same day. The initial
interagency coordination meetings were held on 17 April and 8 May 1990. A notice of intent to prepare a
Draft EIS on the City's proposed raw water supply was published in the Federal Register on 30 July 1990
and a Public Notice was issued on 1 August 1990 requesting public comments on the Scope of Study.
The District's scoping outline and copies of letters received in response to the Public Notice were sent to
the City of Newport News on 17 December 1990 as a guide for the preparation of their environmental
report.
On 13 November 1990, the City of Newport News executed a specific agreement with the King William
County Board of Supervisors for the King William Reservoir and Mattaponi River pumpover entitled
"King William Reservoir Project Development Agreement." According to a chronology of events
prepared by the City of Newport News, an earlier "Memorandum of Understanding" between Newport
News and King William County for cooperative investigation of the King William Reservoir was in place
on 23 May 1989. To the District staffs knowledge, no similar agreements were ever executed for the
development of any other alternative. The District staff learned of the existence of this host agreement in
late 1993 or early 1994, but was unaware that it had been executed before the EIS process began. The
District only learned of the date of the agreement in January 1998, when a copy was provided by an
opponent of the proposal who had obtained it from Newport News through the Freedom of Information
Act. Up until seeing the agreement, the District and the federal agencies believed that the RRWSG had
taken no steps to identify a preferred alternative before initiation of the EIS process.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
James City County withdrew from the Regional Raw Water Study Group in March 1993 after the City of
Newport News formally endorsed selection of the King William Reservoir as the Group's preferred
alternative. James City County did not agree with this selection, as they believed the Ware Creek
Reservoir alternative should be the Group's preferred alternative. It should be noted that the RRWSG's
projected raw water deficit did not decrease upon James City County's withdrawal from the group. (The
Ware Creek Reservoir project, originally proposed in 1984 by James City County, involved the creation
of a 1,238-acre impoundment on a tidal freshwater tributary to the York River to provide 7 mgd of treated
water. EPA vetoed the project in 1989 under Section 404(c) based on unacceptable adverse effects on the
aquatic environment including the destruction of 425 acres of high quality wetlands. EPA viewed the
project as environmentally costly and contributing to an unacceptable trend of wetland loss and reduction
in freshwater flow to the Chesapeake Bay watershed. A reservoir at Ware Creek, with a pumpover from
the Pamunkey River, was one of the alternatives considered by the RRWSG.)
On 6 July 1993, an environmental report and a permit application (which was found to be incomplete)
were received from the City of Newport News. The Draft EIS published in February 1994 addressed 31
alternatives and carried forward 3 of these for detailed review: 1) a reservoir on Ware Creek between
James City and New Kent Counties with pump-over from the Pamunkey River, 2) a reservoir on Black
Creek in New Kent County with pump-over from the Pamunkey River, and 3) a reservoir on Cohoke
Creek in King William County with pump-over from the Mattaponi River, which is the applicant's
preferred alternative. As described in the DEIS, the originally proposed King William Reservoir (KWR-
I) would have impounded a surface area of approximately 2,234 acres providing a storage volume of
approximately 21.7 billion gallons with a safe yield of 25.5 mgd. The reservoir project was one
component of what was at that time described as a 30.2 mgd regional raw water supply plan which
included use restrictions and groundwater development. (In the Final EIS, the RRWSG recalculated the
projected deficit, increasing it from 30.2 mgd to 39.8 mgd).
When the original dam location was first presented to the District and the federal advisory agencies, the
RRWSG reported that 293 acres of wetlands would be impacted (based on National Wetland Inventory
mapping). By the time the Draft EIS was published, the applicant's environmental consultants had
performed a more thorough review (based on aerial photo interpretation) and reported that 479 acres
would be impacted. However in May 1994, a detailed wetland delineation of the King William site
conducted jointly by environmental consultants working for Newport News Waterworks and James City
County revealed that the reservoir would impact approximately 653 acres of non-tidal wetlands (based on
field verification). The City of Newport News was advised by District staff on several occasions that
such a large and unprecedented impact to high quality wetlands raised serious concerns.
In their 17 May 1994 and 1 June 1994 letters commenting on the Draft EIS, both the U. S. Fish and
Wildlife Service and EPA commented that the DEIS was inadequate because it did not contain sufficient
information to fully assess the environmental impacts and requested that the District prepare a
Supplement to the DEIS. The Service also stated that the project may result in substantial and
unacceptable impacts to Aquatic Resources of National Importance (ARNI). The District announced in a
Public Notice dated 8 June 1994 that a Supplement to the Draft EIS was warranted to remedy the
inadequacies of the document, address concerns raised during the public review and include the results of
additional field studies, including the revised information on wetland impacts.
Of the three reservoir alternatives described in the Draft EIS, the Black Creek Reservoir in New Kent
County was reported to impact the least wetland acreage (285 acres) and it appeared to the District and
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
the federal agencies that it could be determined to be the least environmentally damaging of the reservoir
alternatives. New Kent County indicated in their letter commenting on the Draft EIS that they were "not
adverse to the construction of a regional reservoir at Black Creek" and would support the project "if a
sufficient amount of that new supply were reserved for the use of New Kent County." The City of
Newport News stated that a reservoir at Black Creek would not have enough storage area to satisfy both
their projected deficit and New Kent County's desired host allowance. They further claimed that another
reservoir and its associated wetland impacts would be required to make up that difference if the Black
Creek Reservoir was determined by the District to be the environmentally preferred alternative. Based on
this, Newport News requested that the District eliminate the Black Creek alternative from further
consideration. The District did not concur because other non-reservoir alternatives could potentially meet
the small shortfall in safe yield. In the District's letter dated 1 August 1994 outlining the informational
needs for the Supplement to the Draft EIS, the City was subsequently given written notification that the
King William Reservoir alternative could be determined to be environmentally unacceptable when other
less environmentally damaging reservoir alternatives were available (including a smaller King William
Reservoir).
Although New Kent County had been a willing participant up to that time, in September 1994, R. J.
Emerson, Jr., the Acting County Administrator, announced that the County would no longer cooperate
with the City of Newport News toward further analysis of a reservoir in Black Creek. On 27 October
1994, the City of Newport News sent a letter to the District outlining their detailed legal position for not
providing any further analysis of the Black Creek Reservoir alternative and announced their intention to
eliminate it from further evaluation in the information package they would supply for the Supplement to
the Draft EIS. In a letter dated 21 November 1994, the District informed the City that unavailability of an
alternative is not sufficient reason to eliminate it from further review under NEPA. Therefore, the District
proceeded with the best available information on the Black Creek Reservoir alternative and it was carried
forward as a "No Action" alternative (in accordance with 33 CFR 325 Appendix B, 9b(5)(a)) and
compared in similar detail to the RRWSG's preferred alternative throughout the December 1995
Supplement to the Draft EIS.
Despite New Kent County's resolve not to cooperate with the City of Newport News, County
representatives had written to EPA Region III on 17 June 1994 requesting a meeting to discuss the
feasibility of developing a reservoir at Black Creek for their own uses. However, the meeting was never
held. It is unclear whether the County opposes the development of a reservoir at the site; therefore, the
Black Creek Reservoir alternative might once again become available to the City of Newport News. On
29 March 1996, the District wrote to New Kent County to learn if Black Creek was still unavailable to the
City. The New Kent County Board of Supervisors indicated in a letter dated 23 April 1996 that the
County remained committed to not cooperating with Newport News. They did not, however, withdraw
their host agreement with the City to allow the construction of the pipeline from the proposed King
William Reservoir across their jurisdiction.
The City of Newport News' host agreement with King William County stipulated that the reservoir would
provide 47% dead storage for recreational purposes. This means that almost half of the water in the
reservoir would not be available as water supply and Newport News would need to rely heavily on
augmentation by river pump-over in order to meet the projected safe yield. Recreational potential already
exists on most reservoirs without added dead storage, and the applicant's stated purpose of the reservoir is
to provide a source of water, not year-round recreation. Therefore, in a 1 August 1994 letter, the District
recommended that the King William Reservoir proposal be evaluated without the proposed 47% dead
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
storage in order to reduce the project's reliance on the Mattaponi River. Both the Black Creek and the
Ware Creek Reservoir proposals included 25% dead storage as a default value. The District also
recommended that a discussion of a smaller King William reservoir that would reduce the 653-acre
wetland loss be included in the Supplement to the Draft EIS.
The City of Newport News did not wish to reduce the size of the reservoir and asserted that a large
reservoir would be environmentally superior since it would have the potential to meet some of the
additional regional needs without constructing additional reservoirs. Therefore, in a letter dated 30
November 1994, the RRWSG proposed for agency consideration an enhanced King William Reservoir
project with the same physical dimensions as KWR-I, but with an additional 45 to 120 mgd pumpover
from the Pamunkey River to augment the 75 mgd Mattaponi River withdrawal. The enhanced project
would supply between 6 to 15 mgd of additional treated safe yield benefit for other jurisdictions. The
City of Newport News was advised that if they chose to pursue such a plan, the potential users must be
identified, the additional need must be demonstrated and the alternatives to meeting the need within those
jurisdictions must be investigated.
The City of Newport News had begun discussions with James City County, New Kent County and
Hanover County, and had plans to contact Gloucester County concerning their participation in an
enhanced King William project. Also, the District staff learned that James City County and New Kent
County might be interested in obtaining water from Hanover County's proposed 25 mgd side-hill
reservoir project (this permit application is currently inactive.) The District staff recognized the potential
to satisfy the needs of these localities as well as the potential for conflicting competition for the
Pamunkey River as a water source. Therefore, the District staff arranged an interagency meeting for 19
December 1994 to leam each jurisdiction's short and long term water needs, their planning period and
what alternatives they had already explored to meet those needs. However, in a letter dated 29 November
1994, Newport News stated strong objection to this action until they had "established clear parameters"
on how these others might become partners with the RRWSG and expressed their fear that the District's
involvement might disrupt the development of local institutional arrangements. Although the District did
not concede to Newport News' proposed "ground rules" for the meeting, Newport News did attend and
there were open discussions of the needs of these jurisdictions. None of the localities made any
commitments for participation on regional cooperation for an enhanced project.
After considering this option for over a year, the RRWSG decided not to pursue the second pumpover at
that time and on 14 June 1995, the City of Newport News submitted their information for the Supplement
to the DEIS along with a revised permit application relocating the dam 2,900 feet upstream of the
originally proposed dam location. In order to maintain the proposed reservoir storage volume, the pool
elevation was raised from 90 to 96 feet to impound a surface area of approximately 2,222 acres with a
storage volume of 21.2 billion gallons. Ninety-four acres of wetland impacts were avoided by moving the
dam upstream; however, raising the pool elevation by 6 feet would inundate an estimated additional 15
acres of wetlands for a net reduction of 79 acres. The total wetland impacts were reduced to 574 acres at
the revised dam location (KWR-II) and direct impacts to a bald eagle nest were avoided.
Although the City of Newport News stated that they had no plans to pursue the second pumpover, and the
impacts of such a proposal were not evaluated in the EIS, they clearly did not abandon the potential for
such an option. In the 8 August 1995 Addendum Number 2 to the King William Reservoir Project
Development Agreement between the City of Newport News and King William County, a Pamunkey
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
River pump station is included to provide a second pumpover to the proposed King William Reservoir as
a way to enhance the safe yield of the reservoir and to supply water to jurisdictions other than those
composing the group as of March 1995. Furthermore, in a 27 February 1996 Memorandum of
Understanding, the City of Newport News has promised to provide an additional 4 mgd of water to James
City County from an enhanced King William Reservoir.
In a letter dated 13 May 1996, the District recommended that the RRWSG recalculate water supply
deficits for the region using the Virginia Employment Commission's revised population projections and
by addressing the Virginia Department of Environmental Quality's comments on ways to reduce the
estimated demand by up to 10.3 mgd. Also, the RRWSG did not calculate potential gains in water
conservation from the Federal Energy Policy Act's efficiency requirements for low-flow plumbing
fixtures manufactured after January, 1994. Instead, these potential water savings were dismissed as being
"uncertain." Therefore, the District recommended that the RRWSG incorporate more aggressive and
proactive water savings measures into their conservation plan. In light of the potential for reduced
demand projections and more aggressive conservation, and the still significant wetland loss, the District
informed the RRWSG that the feasibility of a downsized reservoir with a much more substantial
reduction in the wetland loss should be addressed in the Final EIS. In their letter of 13 November 1996,
EPA rated both the Draft EIS and Supplement to the Draft EIS as EU-2, which means that they found the
magnitude of impacts associated with the project to be Environmentally Unsatisfactory and the
documents did not contain sufficient information for EPA to fully assess the environmental impacts that
should be avoided in order to protect the environment.
The City of Newport News maintained that a dam at the second location (KWR-II) would be technically
superior from a long-term regional public water supply perspective. However, in view of the concerns of
the District and other federal and state agencies over the loss of wetlands and wildlife habitat, the
RRWSG elected to submit a second revised permit application on 30 December 1996 for a dam at a
location 9,700 feet (1.7 miles) upstream of the originally proposed dam location, thus reducing the
impacts to 437 acres of wetland/open water habitat (KWR-IV). Information submitted by the RRWSG
for the Final EIS also included an additional dam location (KWR-III) that was never proposed to the
District and the advisory agencies for consideration. The KWR-III location would be 7,500 feet upstream
of KWR-I and would impact an estimated 511 acres of wetlands. In order to enhance the safe yield
benefit of the KWR-IV reservoir, and minimize drawdown, the applicant retained their originally
proposed 40/20 Tennant Minimum Instream Flow which allows for more frequent river withdrawals.
The City of Newport News claims that the 9 billion gallon reduction in storage capacity of the KWR-IV
alignment makes the project only marginally adequate to meet the reasonably foreseeable water needs of
the Lower Peninsula. Therefore, the City has made plans for future enlargement of the reservoir footprint
back to either the KWR-I or KWR-II location. The City of Newport News asserts that if the dam was
sited at the KWR-I or KWR-II location, the reservoir could supply between 2.2 and 3.9 mgd of additional
treated water. In the 11 March 1997 Addendum Number 3 to the King William Reservoir Project
Development Agreement between the City of Newport News and King William County, it is stated that
the lands between the KWR-II and KWR-IV dam sites would be reserved for possible future downstream
reservoir enlargement. The 186 acres of wetlands and 620 acres of uplands between the Cohoke
Millpond and the KWR-IV dam site have been offered as part of the applicant's mitigation package as a
wildlife preservation area; however, the mitigation plan states that the land may not be preserved in
perpetuity. Therefore, this entire area may eventually be impacted as well by future reservoir expansion,
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
if permitted by all regulatory agencies. The Final EIS was published on 24 January 1997 based on the
applicant's revised application and information contained in their environmental report.
In their letter of 25 July 1997, commenting on the Final EIS, EPA did not change its "Environmentally
Unsatisfactory" rating as they believed the loss of 437 acres of diverse and valuable wetlands/open water
habitat within the Cohoke Creek basin would be significant. EPA re-stated that the wetlands at the
project site qualify as an Aquatic Resource of National Importance (ARM) due to their "diverse type,
quantity and functional capacity." Because major outstanding environmental and cultural issues remained
and the Final EIS still contained some vague data and unsupported conclusions, EPA recommended the
preparation of a Supplement to the Final EIS. Also, in their 25 July 1997 letter commenting on the Final
EIS, the U.S. Fish and Wildlife Service recommended denial of the King William Reservoir due to the
project's impacts on wetlands, perennial and intermittent streams, upland wildlife habitat, alteration of
downstream wetlands, elevation of salinity levels in the York River basin and impacts to the federally
listed threatened sensitive joint-vetch (Aeschynomene virginica). The Service reaffirmed their 13 June
1994 position that these impacts would be extremely detrimental to the fish and wildlife resources of
Southeast Virginia and will result in substantial and unacceptable impacts to an ARNI.
Three substantive critiques of the applicant's needs assessment were received from the public in response
to the Final EIS. In March 1998, the District requested that the Corps' Institute for Water Resources
(IWR) provide an independent technical review of the applicant's water needs forecast and the three
critiques. IWR contracted with Planning and Management Consultants, Ltd. (PMCL) to perform an
independent, third-party review of the documents. In a May 1998 report, PMCL concluded that the
RRWSG's projected water supply deficit of 39.8 mgd might actually be in the range of 16 to 19 mgd.
The City of Newport News did not accept PMCL's findings and on 31 July 1998, provided a point-by-
point rebuttal in which they questioned the objectivity of PMCL's review. In October 1998, the District
requested IWR's review of the PMCL report and the City of Newport News' rebuttal to determine which
was correct. IWR assembled a panel of four nationally and internationally recognized water resource
experts to perform the review and presented the draft report of their findings to me during a 4 May 1999
briefing. The consensus of the panel was that Newport News Waterworks had significantly overestimated
future demand and that the stated need was not supported by their data. Using the City of Newport News'
numbers, the panel calculated a deficit of about 17 mgd by 2040 and concluded that the City of Newport
News was not at risk if it did not immediately increase its water supply (see Section 7, Extent of Public
and Private Need, for a full discussion).
Based on the lack of a demonstrated need to destroy 403 acres of vegetated wetlands, 34 acres of shallow
open water and 21 miles of perennial and intermittent streams as well as the combined adverse
environmental impacts of the project, I reached a preliminary position that the issuance of a permit for the
project would be contrary to the public interest. My staff and I briefed the North Atlantic Division
Commander and the HQUSACE staff of my preliminary position to deny the permit on 27 May 1999.
The then Assistant Secretary of the Army for Civil Works (Dr. Joseph Westphal) was briefed on 28 May
1999. Dr. Westphal requested that I not inform Newport News of this preliminary position until he had
informed the Governor of Virginia, U. S. Senators and interested Congressmen of the District's
preliminary position.
On 3 June 1999, the late Congressman Herbert Bateman informed the City of Newport News of the
District's preliminary position. I met with the City of Newport News and Congressman Bateman on 4
June 1999 to explain the rationale for my preliminary position and to deliver my letter of 4 June 1999 to
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
the applicant. My letter of 4 June 1999 outlined the reasons for my preliminary position. In a letter dated
9 June 1999, the City of Newport News requested an additional 30 days to provide a rebuttal. On 14 June
1999,1 granted a 30-day extension to the two-week response period. On 16 July 1999, the City of
Newport News submitted their 132 page report entitled "Lower Peninsula Water Needs: A Summary
Response and Rebuttal to Institute for Water Resources 'Special Study', May 1999" dated July 1999. In
this report, the City of Newport News questioned the objectivity of one of the panel members, Dr. John
Boland, and alleged that all panel members did not concur with the findings of the IWR report.
In a letter dated 8 June 1999, Virginia Governor James S. Gilmore, III informed me that he did not agree
with my preliminary position of denial and urged me to determine that the King William Reservoir is the
least environmentally damaging practicable alternative in the District's formal Record of Decision. As
my preliminary position is contrary to the written position of the Governor of the state in which the work
would be performed, the application must be referred to the North Atlantic Division Commander for
resolution in accordance with the provisions contained in 33 CFR Part 325.8 (b)(2).
During a meeting on 19 July 1999, the City of Newport News and their water resources experts briefed
me on their rebuttal to the IWR needs study. On 24 August 1999, the City of Newport News submitted a
report entitled "Comparison of King William Reservoir Project with Recently Permitted Reservoirs in the
Southeastern United States" dated, August 1999. On 24 September 1999, the City of Newport News
submitted a report entitled "Alternatives Summary Report" dated October 1999. Subsequently, I
requested that the IWR panel review all of the applicant's previous and recent submittals on water need
(as well as those from the public) before meeting with the applicant and finalizing their report.
On 17 December 1999, a meeting between the IWR panel, various Corps of Engineers representatives and
the City of Newport News was held at the IWR office in Alexandria, Virginia. Also in attendance were
representatives from the Virginia Department of Health, Department of Environmental Quality,
Department of Natural Resources, and Department of Commerce and Trade as well as aides from the
offices of Congressman Bateman, Congressman Scott and Senator Robb. The purpose of the meeting was
to provide an opportunity for the City to discuss the findings of the IWR report with the panel. At this
meeting, the panel agreed to provide a list of measures to improve the major deficiencies in the RRWSG's
analysis if they chose to provide further information in support of their deficit projections. In a letter
dated 21 December 1999, Newport News Mayor Joe Frank outlined his understanding of what occurred at
the meeting and requested that the District provide the list. On 22 December 1999,1 provided an interim
response to the Mayor's letter indicating that a detailed response would follow after the first of the year.
I reviewed all of the information submitted by the applicant in support of the proposed reservoir and
found nothing that would lead me to change my preliminary position of denial. Therefore, in a letter
dated 3 February 2000,1 provided a detailed response to the Mayor's letter which confirmed my intention
to recommend denial of the permit to the North Atlantic Division Commander. I reminded the City that
this position was not based solely on the issue of need and that my preliminary recommendation of denial
was based on the combined adverse environmental, cultural and socioeconomic impacts even if the City's
entire projected need could be demonstrated through a new assessment. In this letter, I also provided the
IWR list of major deficiencies, and outlined the options available to Newport News to bring the process to
closure. In addition, I informed the Mayor that a collaborative effort between the City of Newport News,
the District and the state to solve the RRWSG's water needs would not be possible until the conclusion of
the permitting process.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
In a letter dated 22 February 2000, Mayor Frank expressed his grave concern for the physical, cultural
and economic health and well-being of the over 600,000 water customers that depend on the City to
provide them an adequate and affordable water supply. He also stated his belief that the cultural and
environmental impacts of the King William Reservoir project have been overstated and those that will
occur can be effectively mitigated. Mayor Frank stated that the City did not intend to abandon the King
William Reservoir project by withdrawing their permit application. However, he requested until 31
March 2000 to inform the District whether the City would submit additional information on the need
projections and on the perceived impacts to Native Americans. The District granted the requested
extension.
On 30 March 2000, Newport News City Manager, Mr. Ed Maroney, requested an additional 7-month
extension (until 1 November 2000) for the City to prepare and submit their new water needs assessment
in support of the King William Reservoir project. In a letter dated 6 April 2000,1 granted the requested
extension and again cautioned the City that before they went to the additional expense of providing more
information on water need, they should be reminded that I still intended to recommend denial of the
project on the basis of combined adverse environmental, cultural and socioeconomic impacts. Because of
this extension, the Norfolk District's recommendation to the North Atlantic Division on the application
was postponed until the new information could be reviewed and considered in the recommended Record
of Decision.
Newport News staff originally indicated that they did not need the final version of the IWR report for the
preparation of their new water need information that would be submitted on 1 November 2000. However,
in mid-August 2000, Newport News staff indicated that the final IWR report was indeed critical to the
preparation of the new needs assessment. Accordingly, the IWR staff was requested to complete the final
report as quickly as possible. The final IWR report was submitted to the Norfolk District on 12 October
2000. The panel's final conclusions on water need remained basically unchanged from those in the draft
report and their analysis demonstrated that there is no imminent need to expand the City's water supply.
The panel found that the RRWSG's data and assumptions implied a very small risk of shortage by 2020
and subsequent information suggests that the risk is likely even lower.
In a letter dated 21 April 2000, the Commander of the North Atlantic Division provided instructions to
the Norfolk District outlining the procedures to be followed for completing the review and forwarding my
recommendation on the permit application to the Division. On 3 May 2000, these procedures were
announced in a Public Notice, which both appeared on the Norfolk District Regulatory Branch's Public
Notice Web Page and was mailed to all parties on the District's mailing list for the project. The
procedures are as follows:
The District's recommended Record of Decision will be published for a 45-day public comment period.
In light of the numerous opportunities for public comment that the District has previously provided,
Division did not require additional public hearings or meetings. All written comments received during
this period will be analyzed and forwarded along with the final recommended Record of Decision to the
North Atlantic Division. The North Atlantic Division Commander will provide a copy of the District's
final recommended Record of Decision to those parties who submitted comments during the 45-day
comment period. These parties will be afforded an additional 30 days in which to submit written
comments to the Division. According to the 21 April 2000 letter, the Division Commander will consider
only timely, written comments relevant to the final recommended Record of Decision (late comments,
oral comments and comments related to new or additional information not previously submitted to the
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Norfolk District will not be considered.) At the end of the 30 days, the Division Commander will conduct
a review of the record and the Division Commander will issue a decision. The North Atlantic Division
will not seek or entertain any additions to the record unless, in the course of the review, the administrative
record is found to be deficient in some respect. If any deficiency is identified, the Division will open and
supplement the record only to clarify the point in question. Publication of the District's recommended
Record of Decision for public review and comment should address the recommendation from EPA and
others for the publication of a Supplement to the Final EIS.
At the City's request, the North Atlantic Division arranged a facilitated meeting between the City of
Newport News and the Norfolk District on 17 July 2000. The District staff believed thai the purpose of
the meeting was to discuss the findings of the City's new needs assessment. However, the City had
apparently informed Division staff that they did not understand the rationale behind my preliminary
position of denial and wished to discuss my letter of 4 June 1999 in detail. My staff and I had
participated in numerous meetings with the City since my preliminary position letter and had already
discussed all issues the City raised. At the facilitated meeting, District staff informed the City of Newport
News that my recommended Record of Decision was nearing completion and would contain a detailed
discussion on each issue. Furthermore, not all of the new information submitted to the District had been
fully reviewed and incorporated into the document. District staff reminded the City that two separate
opportunities for comment on my recommended Record of Decision would be provided before the
Division's decision would be made. The District staff indicated that if the City still had questions after
reading the recommended Record of Decision, the appropriate time to conduct further discussions would
be during the comment period.
In a series of letters dated 20 July, 24 August, 26 August, 12 September, 25 September, 26 September, 2
October, 4 October, 5 October, 17 October, and 7 November 2000, the City of Newport News and their
attorneys submitted requests under and concerning the Freedom of Information Act (FO1A) to view and
copy the District's permit application file. Responses were provided to these requests and the City was
provided copies of all requested documents that were determined-by District Office of Counsel to be
releasable at that time.
On 20 October 2000, the District granted the City's request for an additional one-month extension (to 1
December 2000) to provide additional information on their application. On 30 November 2000, the City
submitted their revised water needs assessment along with further comments on several other issues. All
information submitted by the applicant, state and federal agencies and the general public has been
reviewed and fully considered in the preparation of the District's recommended Record of Decision on
this project.
7. Extent of Public and Private Need: In the Final EIS, the City of Newport News predicted that by
2040, the lower Peninsula would have a shortage of 30 mgd if nothing is done to expand existing
supplies. The Norfolk District is aware that the Lower Peninsula will need additional public water supply
as the population in the region grows. However, the question is whether the assumptions the City of
Newport News has applied in their calculations of future demand are appropriate. The District relies on
the applicant to submit accurate information in support of a permit application. Despite the expected
increases in residential and economic development during the 1990's, growth in water demand has not
increased at the same rate as in the 1980's as predicted by the City of Newport News. In fact, Newport
News Waterworks data demonstrates that actual water demand has remained almost the same from 1990
to 2000. The applicant claimed that 25 percent of future demand would be met through conservation and
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
by imposing stringent water-use restrictions in times of severe drought. The Virginia Department of
Water Quality commented that the RRWSG was planning for the largest project possible and that with all
of the safeguards that are incorporated into the plan as proposed, the likelihood that water use restrictions
would ever be imposed is very slight.
The federal advisory agency representatives and my staff recognized the need for more information to
support the applicant's demand projections and requested additional information to be included in both the
Supplement to the Draft EIS and the Final EIS. Therefore, in a letter dated 1 August 1994, the District
requested that a discussion of how conservation measures would be implemented in each locality and a
more comprehensive explanation of the RRWSG's drought planning be included in the Supplement
(including indicators used to assess drought conditions and the means by which use restrictions will be
enacted and enforced). The District requested that the applicant also address the potential downsizing of
military facilities in the region and associated employment reductions at military suppliers such as
Newport News Shipbuilding in the calculation of future water supply demand. The District requested that
the RRWSG fully consider and address in the Supplement a recommendation for a non-structural
approach to meet the region's needs contained in a 1990 University of Virginia Urban and Environmental
Planning report submitted by the Southern Environmental Law Center in response to the DEIS entitled
"Demand Management and Raw Water Supply Alternatives for the Lower York-James Peninsula 1990-
2030."
The District staff learned that the Virginia Employment Commission's 1993 revised population
projections were lower than those used by the RRWSG; therefore, the District requested in a letter dated
13 May 1996 that the water supply deficits for the region be recalculated for the Final EIS. The District
and the federal advisory agencies believed that the RRWSG had underestimated the potential for water
conservation and had inaccurately characterized the Lower Peninsula's consumption rates by comparing
them to those of cities in dry western states where outdoor water use is considerably higher. The
RRWSG was also advised that as they had not provided the more comprehensive discussion of their
drought planning or included a discussion of how conservation measures would be implemented in each
locality as requested for the Supplement, these should be provided for publication in the Final EIS. It was
also recommended that the Final EIS address the Virginia Department of Environmental Quality's
comments on methods to reduce the projected demand by up to 10.3 mgd. The District also
recommended that the RRWSG's conservation plan address more aggressive water savings measures such
as a region-wide incentive program for retrofitting of high water use fixtures in older homes, incentives
for industries (both existing and new) to implement non-potable water reuse systems and reduction in
outdoor uses at times other than during emergency restrictions.
It was further recommended that consideration of growth limitations due to building restrictions imposed
by the Chesapeake Bay Act be taken into account when projecting 2040 populations and total build-out.
An evaluation of the effects of military downsizing on employment at the Langley Research Center and
the Newport News Shipyard and verification that the Army will not maintain the Big Bethel Reservoir for
water supply were also requested for the Final EIS. In light of the potential for considerably reduced
demand projections and more aggressive conservation, the District informed the RRWSG that the
feasibility of a downsized reservoir with a much more substantial reduction in the wetland loss than that
shown in the Supplement should be explored in the Final EIS.
Three substantive critiques of the applicant's needs assessment were received in response to the Final
EIS: (1) a critique dated 14 July 1997 prepared by Michael Siegel and Dr. Thomas Muller on behalf of
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
the Alliance to Save the Mattaponi and the Sierra Club entitled "Analysis of the Lower Virginia
Peninsula, Regional Raw Water Supply Plan, Environmental Impact Statement, January 1997", (2) a
critique dated 23 July 1997 prepared by Scott Chaplin for the Rocky Mountain Institute entitled
"Comments Regarding the Final Environmental Impact Statement (FEIS) for the Lower Virginia
Peninsula Regional Water Supply Plan 1990-2040", and (3) an undated critique prepared by Dr. Donald
H. Phillips, President of the West Point Hunt Club, Inc. entitled "Comments on the Final Environmental
Impact Statement for the Regional Raw Water Study Group's Lower Virginia Peninsula Raw Water Study
Plan." All of these critiques alleged that the applicant's projected water need was greatly overstated.
a. First IWR Review: The Corps of Engineers'Institute for Water Resources (IWR) was
requested in the Norfolk District's Scope of Work, dated March 1998 to provide an independent technical
review of the applicant's water needs forecast and the three critiques. IWR contracted with Planning and
Management Consultants, Ltd. (PMCL) to perform an independent, third-party review of the documents.
PMCL submitted an interim report on 6 April 1998 and a draft final Report (Task B) on 23 April 1998.
Their final report entitled "Review of Water Supply Needs Assessment for the Regional Raw Water
Study Group, Newport News, Virginia." was submitted in May 1998. The PMCL report and the public
critiques pointed to possible flaws in the data used to estimate need and questioned the validity of the
methodology used by Newport News Waterworks to calculate the projected need for the RRWSG through
the year 2040. According to PMCL's evaluation, numerous inadequacies in the analytical methods used
by RRWSG tended to overestimate future demand as well as underestimate future supply. PMCL
concluded that the projections of population served and employment were optimistic relative to the
national projections and that residential conservation was underestimated. PMCL also found a lack of
justification for excluding the supply capacity of the Big Bethel reservoir in the RRWSG's future supply.
Therefore, PMCL concluded that the RRWSG's projected water supply deficit of 39.8 mgd might actually
be in the range of 16 to 19 mgd. The City of Newport News commented in a letter dated 22 May 1998
that they had found the report to be seriously flawed and biased. The Norfolk District arranged a meeting
between the City, IWR, and PMCL on 8 July 1998 so that the City could present their views and discuss
the report with the reviewers. In a letter dated 31 July 1998, the City provided a point-by-point rebuttal of
PMCL's findings and questioned the objectivity of PMCL. Additional comments were also submitted by
Michael Siegel, Dr. Thomas Muller, and Dr. Donald Phillips on both the PMCL report and the Newport
News Waterworks rebuttal.
b. Second IWR Review: In a second Scope of Work dated October 1998, the Norfolk District
requested IWR to review the differences between the PMCL report and the City of Newport News
rebuttal, as well as the additional public comments, and as the Corps' experts in water use forecasting and
conservation, provide their independent expert opinion on the most reasonable position for each
contended issue. During the IWR review period, both Newport News Waterworks and some of the
authors of the critiques met with IWR staff to discuss their findings and submitted further written
comments for IWR's consideration. The City of Newport News also submitted a report in support of their
projections prepared by Research and Planning Consultants, January 1999 entitled "Review of Planning
Assumptions for Water Needs Assessment Lower Virginia Peninsula."
IWR assembled a panel of four nationally and internationally recognized water resource planning experts
to conduct the review. William J. Werick, the panel member from IWR was joined by John J. Boland, a
Johns Hopkins University professor; Jerome Gilbert, a former President of the American Water Works
Association and former manager of the East Bay Mud Utility; and Roland C. Steiner of the Interstate
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Commission on the Potomac River Basin. IWR met with the City of Newport News on 14 December
1998 and with the principal critics of the City's study on 15 December 1998 to ensure that both sides had
an equal opportunity to explain their case. IWR then developed and distributed to all involved parties a
list of key questions to be answered. An EXCEL spreadsheet was developed to estimate how uncertainty
in each component of the forecast affected the forecasted amounts of water use. IWR presented the draft
report of their findings to me and my staff during a 4 May 1999 briefing.
The panel did not prepare an alternative forecast, rather they prepared an alternative calculation of the
RRWSG's need using the same forecasting approach as Newport News and most of the same data, but
replaced certain assumptions they deemed questionable with more plausible numbers. The panel's
interpretation of the data arrived at a significantly different deficit than that projected by Newport News
Waterworks. The consensus of the panel is that Newport News Waterworks has significantly
overestimated future demand and that the stated need is not supported by their data. The City of Newport
News based their population projections on optimistic local government estimates which are much higher
than the projections of the U. S. Census Bureau and the Bureau of Economic Analysis. Likewise, the
City of Newport News' estimate of future employment growth is higher than the federal government
projections. The panel concluded that the RRWSG's per capita domestic water use estimate did not reflect
the potential for additional conservation through the use of water conserving fixtures and appliances. In
addition, the City of Newport News appears not to have sufficiently considered reliability-based planning
incorporating drought management, which would allow a better assessment of the risk from future
deficits.
Therefore, the panel concluded that the City of Newport News had not convincingly established the need
for a 39.8 mgd increase in its water supply. IWR reviewed each section of the demand and supply
projections and reported that certain assumptions underlying the forecast appeared questionable. Based
on differences in population projections, employment structure, domestic, commercial and industrial
water use calculations and conservation, the panel calculated a deficit of about 17 mgd by 2040. Since
the safe yield is the amount of water available during an extreme drought, such infrequent supply
shortfalls can be efficiently managed by infrequent demand curtailments and other less damaging sources.
There is only a 1 to 2 percent chance that the drought of record will re-occur in any given year.
Therefore, the panel concluded that the City of Newport News is not at risk if it does not increase its
water supply at this time.
The IWR report recognized two major alternatives that are available to the RRWSG to meet the smaller
deficit of 17 mgd and significantly reduce deficits and the risk of future water shortages. The Final
Environmental Impact Statement outlines the RRWSG's long-term plans for the development of 4.4 mgd
of fresh groundwater and 5.7 mgd of brackish groundwater supplies along with 7.1 to 11.1 mgd of
conservation and use restrictions in addition to obtaining 23.2 mgd of safe yield from the proposed King
William Reservoir. Therefore, the combined 17.2 to 21.2 mgd safe yield of the non-reservoir components
would meet the 2040 deficit of 17 mgd. If both groundwater sources are used as planned, they could
substantially reduce deficits and the risks of water shortages. In fact, Newport News' $17 million dollar
brackish groundwater desalination plant is now in operation and provides about 5.7 mgd of supply. (The
Final IWR report further clarified that neither Newport News' calculation of a 39.8 deficit nor IWR's
calculated 17 mgd deficit included conservation or water use curtailment. When IWR's estimated
conservation benefit and water use restrictions from Newport News' Stage 2 Drought Plan are included,
the 2040 deficit would be reduced to 4.96 mgd. The City's newly constructed desalination plant would
eliminate this supply shortfall.)
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Late in the IWR study, the City of Norfolk revealed that it had a surplus of 32 to 45 mgd of water for sale
because the City of Virginia Beach started using water from Lake Gaston exclusively in 1997 and no
longer purchased water from them. The exact amount of this surplus and the length of time the water will
not be needed by users in the southside of Tidewater has not been established. While IWR did not believe
this water could be assumed to meet all of the RRWSG's long-term needs, if some or all of it is available
in the near to mid-term, it would further diminish the risk of water shortages that the RRWSG would
experience.
c. Newport News Rebuttal of IWR Report: On 16 July 1999, the City of Newport News
submitted their rebuttal to the draft IWR report. During a meeting on 19 July 1999, the City and their
water resources experts, Research and Planning Consultants (RPC), briefed me on their rebuttal. Also, in
a letter dated 18 August 1999, RPC submitted additional comments on the IWR review of the City's water
demand projections. On 17 December 1999, a meeting between the IWR panel, District staff and the City
of Newport News was held at the IWR office in Alexandria, Virginia to provide an opportunity for the
City to discuss the findings of the IWR report with the panel. At this meeting, Newport News' attorneys
questioned each panel member concerning their contributions to the report and their support for its
findings. Each member affirmed his unqualified support for the IWR report.
In a letter dated 30 March 2000, Newport News City Manager, Mr. Ed Maroney indicated that the City
intended to submit to the District a new water needs assessment in support of the King William Reservoir
and requested a 7-month extension (until 1 November 2000) in order to prepare their report. On 6 April
2000,1 granted the City's request. Therefore, the Norfolk District's recommendation to the North
Atlantic Division on the application had to be postponed until the information was received, reviewed and
addressed in my recommended Record of Decision.
Newport News staff originally indicated that while they would like to have the final version of the IWR
report, it was not likely to be very different from the draft and would not be needed for the preparation of
the City's new water deficit information. However, in mid-August 2000, Newport News staff informed
the project manager that the final IWR report was critical to the preparation of the new needs assessment.
Accordingly, the District requested that IWR complete the final report as quickly as possible. The Final
IWR report was submitted to the Norfolk District on 12 October 2000 and sent electronically to all
interested parties on the same day. On 20 October 2000, the District granted the City's request for an
additional 30 days (until 1 December 2000) in order to provide additional information in support of their
project.
d. Final IWR Report: In the Final IWR Report, the panel's conclusions on water need remained
basically unchanged. In fact, information developed since the draft report was released provided even
stronger support for the recommendations contained in the draft report. Those findings are as follows:
Newport News forecasted that in the year 2020, water use would exceed safe yield by about 27 mgd.
However, this figure does not reflect the reduction in water use through long-term conservation because
those figures are reported separately as a supply alternative. Accounting for long-term conservation
reduces the 2020 deficit to less than 23 mgd. Since publication of the EIS, the City of Newport News has
completed their proposed groundwater desalination plant which produces 5.7 mgd of high quality
drinking water, thereby reducing the 2020 deficit further to about 17 mgd. Newport News estimated that
Tier II drought measures would reduce water use by about 6 mgd, dropping the deficit to 11 mgd. Tier III
of the Newport News drought plan would reduce the deficit even further to 5 to 6 mgd. The chance that
this 5 to 6 mgd deficit will actually occur is the chance that the drought of record will re-occur, which is
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
about 1 to 2% in any year. This assessment of risk was made in the draft IWR report using the RRWSG's
assumptions and did not include other supply sources that Newport News had considered or transfers of
water from the City of Norfolk.
Information received since release of the draft report allowed IWR to adjust their analysis. In the Final
EIS, water use was forecast to grow by 10 mgd in the last decade. However, water use has actually
remained flat and will be lower than IWR originally predicted. Also, James City County has announced
plans to construct a 6 mgd groundwater desalination plant to open in 2005, rather than waiting for the
outcome of the King William Reservoir permit application in order to solve their long-term water needs.
This project was not among the alternatives that the RRWSG considered, but if built, would reduce the
need for an additional surface water supply.
Furthermore, the IWR panel found even less evidence to support the use of 25% dead storage in the
existing Newport News system. In past analyses, the safe yield of the Newport News system was
calculated assuming 10 to 11% dead storage. However, in the EIS, the RRWSG calculated a lower safe
yield based on 25% dead storage. A 1 March 1996 memo from DEQ states "Newport News could get a
waterworks certificate based on 11.8% dead storage from the Health Department." The IWR panel
acknowledged that water from the lower regions of the reservoir may be more costly to treat, but would
provide a yield roughly equivalent to Newport News' new desalination plant, which costs $17 million.
Reducing the dead storage to previous assumptions would add another 7 to 10 mgd of safe yield and
further reduce near term risk.
Also, Newport News predicted that the Big Bethel Reservoir would not be producing water in 2010, but
offered no analysis to support its abandonment. The Final EIS described Big Bethel as an efficient source
of high quality drinking water with a safe yield of approximately 2 mgd. According to the Fort Monroe
website, the Army made a significant investment in 1997 to upgrade water treatment at Big Bethel.
Furthermore, in a letter dated 14 January 1999 to the Norfolk District Commander, Air Force General
Earnest O. Robbins II stated: "It is our understanding from conversations with (Fort Monroe Department
of Public Works) personnel that Big Bethel will continue to serve Langley Air Force's needs and that the
City of Newport News municipal system will be relied upon in case of emergencies or when additional
water supply is required." Therefore, the IWR panel questioned the RRWSG's assumption that Big
Bethel will no longer be in operation by 2010.
The Department of Health requires utilities to begin planning for additional supplies when water
production reaches the 80% threshold, but does not require the construction of any particular alternative
to provide those supplies. Based on discussions with the Health Department in December 1999 and a
review of the Health Department's newly reorganized and clarified version of their regulations, the IWR
panel concluded that its recommendations do not conflict with the so called "80% rule." Newport News
Waterworks could pursue any alternative or combination of alternatives that would provide the additional
supplies.
The IWR panel found the RRWSG's interpretation of a requirement to match safe yield to maximum
daily water use as highly unusual. The RRWSG's analysis in the Final EIS failed to accomplish such a
design capacity. Likewise, the Department of Health's own assessment that the addition of the King
William Reservoir would meet the region's water needs through 2040 did not meet this design capacity.
The IWR panel concluded that it is more likely that the requirement is for the design capacity of the
treatment plant and transmission equipment than for the safe yield of the water supply itself. The Virginia
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Department of Health recently approved plans for improvements to increase the design capacity of the
Lee Hall Treatment Plant which should assist Newport News Waterworks in meeting its maximum daily
demand. In addition to Newport News' 5.7 mgd groundwater desalination plant already in operation,
James City County plans a 6 mgd groundwater desalination plant in 2005. Therefore, the panel concluded
that up to 11.7 mgd of additional supply would be available to the RRWSG long before 2040.
The panel found that the RRWSG's demand studies did not show an imminent need for additional water
supplies and that the applicant's data and assumptions implied a very small risk of shortage by 2020.
Subsequent information suggests that the risk may be even lower than previously stated. Although the
IWR panel admits that no point forecast, including their own, represents the complexity of the situation,
their analysis demonstrates that there is no immediate need to expand the City's water supply. Finally,
the panel suggested that a collaborative risk assessment of future water supply need of the region be
undertaken that would compare the costs, benefits and risks of a wide variety of supply and demand
alternatives.
James City County proposed the Ware Creek Reservoir in order to meet their 40 year projected deficit of
7 mgd. Due to the EPA veto, the Ware Creek Reservoir was never built. James City County has been
able to avoid their anticipated water supply crisis by implementing long-term solutions that do not require
dependence on the proposed Ware Creek or King William Reservoirs. They have accomplished this by
requiring more intense water conservation efforts (i.e., voluntary water conservation) and by planning for
the construction of a 6 mgd groundwater desalination plant. However, James City County still supports
the construction of the King William Reservoir and in their 14 September 2000 letter to the Regional
Administrator of EPA, Bradley Campbell, they requested that EPA re-examine their oversight role for
regulations to provide safe and reliable supplies of drinking water.
On 27 October 2000, the City of Newport News submitted a report entitled "Evaluation of Safe Yield
Benefits From King William Reservoir Project" which re-calculated the safe yield of the King William
Reservoir (KWR-IV) in consideration of the conditions and restrictions outlined in the Virginia Water
Protection Permit. The report indicated that the treated water benefit of the reservoir to the RRWSG
members would be between 19 to 21 mgd.
e. Newport News' Revised Needs Assessment: On 30 November 2000, the City of Newport
News submitted an updated water needs report by HDR Engineering, Inc., entitled "Lower Virginia
Peninsula Regional Raw Water Supply Plan Water Needs Assessment 2000-2050" confirming the City's
contention that their earlier estimates of water need were not overstated and that the Peninsula will face a
high risk of water shortages unless the King William Reservoir is built. This report acknowledges for the
first time that water supplies in the 1990's had been more plentiful than predicted due to the development
of new groundwater sources, and decreased demand as a result of higher water rates, conservation and
wet weather. The report concluded, however, that even with conservation, regional water demands will
exceed the available supply by 2010 and that there will be a 50% chance that the Peninsula will need an
additional 22 to 27 mgd of water supply by 2050. This would be due in part to a steady growth in
population over the next 50 years. However, the deficit may be as modest as 15 mgd or as large as 36
mgd depending on the rate of regional population and economic growth. The report stated that there is a
75% chance than even an additional 22 mgd supply will not meet the Peninsula's needs in 2050, and that
the Peninsula will need even more than the 19 to 21 mgd that the reservoir would provide if there is a
drought more severe than any in the last 70 years.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The City also claimed that they would not be able to obtain permits for the 4.4 mgd fresh groundwater
component of their plan and that without the reservoir, conservation measures and use restrictions would
provide only 4.8 mgd of safe yield instead of the 7.1 to 11.1 mgd stated in the Final EIS. Combined with
the 5.7 mgd from their new groundwater desalination plant, the City reported that the non-reservoir
components of their plan would only provide 10.5 mgd of safe yield benefit rather than the 17.2 to 21.2
mgd reported in the FEIS. The City of Newport News also submitted a separate letter commenting that
they had identified serious flaws in the IWR Final report. Newport News contends that "We have found
that the conclusions reached by this panel in their final report are inaccurate and misleading and should
therefore be discounted." These reports and all other supporting documents supplied by the City of
Newport News were forwarded to the IWR panel for review and analysis. Figure ES-1, below shows the
City's estimate of future water need.
60.00 - •
50.00
=• 4O.OO j • • — •
9 I There le a 99% probability thai the -future
£ 30.00
0
0)
s
20-°°
io.oo
deficit will tall within this range
There is a 50% probability that the future
deficit will fall within this range
2020
2030
2040
2050
(10.00)
Figure ES-1, Estimate of Future Water Need, or Water Supply Deficit
f. IWR's Review of Newport News' Revised Needs Assessment: In their March 2001 report
entitled "An Evaluation of the Risk of Water Shortages in the Lower Peninsula, Virginia," the IWR panel
reported on their review of the HDR report and supporting documents. The IWR review panel examined
the assumptions, methods, results, and interpretations contained in the new studies submitted by the
applicant. With the assistance of its consultants, the IWR panel replicated the demand, supply and deficit
analyses of the applicant, both to verify reported results and to test the sensitivity of those results to key
assumptions. The IWR panel found that its prior recommendation of a collaborative risk assessment for
future water supply needs was at least partially satisfied by the new studies. For this reason, the IWR
results and the results of the HDR study cannot be compared directly to any of the reports that preceded
them. Previous reports compared point estimates of future water needs to the safe yield of the water
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
system. The panel criticized that approach because it masks the real and potentially critical uncertainty in
any long-term forecast. The panel feels strongly that the "deficits" reported in previous analyses are far
less useful than information on "risk of shortage."
The IWR panel's estimates of future water use and supply were very close to those of HDR. The panel's
estimate of probable 2050 demands was about 5% less than HDR's because the panel believed that HDR
overestimated unaccounted for water and market penetration. The IWR panel's point estimate of
groundwater yield was the same as HDR's, however the panel's probabilistic estimate was a little higher
because it allowed for the possibility of higher yields. The panel's estimate of the safe yield of the current
surface water supply was 56.7 mgd, as compared to HDR's estimate of 56.5 mgd.
The most significant difference between the conclusions of the IWR panel and HDR analyses is in how
the results were presented. HDR reports the probable difference between future water use and the
minimum expected supply (safe yield). Safe yield is the minimum amount of water the system will
produce over a long period of time during an extreme drought. The IWR panel has criticized this
approach since the system will produce more water than the safe yield 98% of the time. Therefore, since
actual supply will nearly always exceed safe yield, this approach exaggerates the risk of future deficits.
No one can accurately predict what water supply or water use will be in the year 2050 with any precision,
but it can be said that the uncertainty about future water supply is different from the uncertainty about
future demand, and the risk assessment must be structured to reflect those differences. IWR developed its
own yield model for the five reservoirs in the Newport News Waterworks system to estimate the
probabilities of satisfying various levels of demand in all years, not just the drought of record. The IWR
panel's supply forecast is a probability distribution of the full range of yields, from lowest to highest, so
that the risk assessment can consider all combinations of supply and demand.
Therefore, the IWR panel reports on the percentage of risk that the supply will be inadequate, showing the
probable difference between future water needs and future water supply - not just the safe or minimum
supply. Figure 1 shows the risk that supply will be inadequate in each of the forecast years with no
additional water supply under two assumptions; (1) 33% dead storage and no drought curtailments, and
(2) 20% dead storage with drought curtailments. This analysis considers the worst drought in the
twentieth century, as Virginia rules require. The risk percentages shown capture the full range of ,
probable demand and supply, not just point estimates. As in their previous report, the IWR panel again I
pointed out that the FEIS estimate of safe yield of the system was based on a higher level of dead storagel
space (33%) than used in previous studies. ' I
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Risk of Shortage
2000
2010 2020 2030 2040 2050
Figure 1. Probability That The Existing Water Supply Will Be Inadequate
(DCP = drought curtailment plan, 20% = 20% dead storage)
The November 2000 HDR report concluded that the region will need more water by 2010, based on
Newport News Waterworks' use of 33% dead storage, and the Virginia Department of Health's rule that
utilities not rely on drought curtailments to assess the adequacy of their supplies. Based on those two
assumptions, the panel estimated that there is no risk of shortage through 2015 with existing supplies.
The panel estimated that the region will need an additional 11 mgd of water supply by 2020 in order to
have a zero risk of shortage.
The Virginia Department of Health has agreed to a much lower dead storage for existing reservoirs than
the 33% used in the HDR calculation. Also, the City of Newport News has a drought contingency plan
and has used drought curtailments. Therefore, the IWR panel considered HDR's assumptions on dead
storage and drought curtailment to be at least arguable, so they also calculated shortfall probabilities
assuming 20% dead storage and the use of drought curtailments. Based on these assumptions, both of
which have been used in actual practice, the IWR panel estimated that there is no risk of shortage through
2025 with existing supplies.
(1) Drought Curtailment: Drought planning is the process of identifying an array of drought
management measures, usually organized into several stages of increasing stringency; and defining
trigger points that determine when each stage will be activated and inactivated. Sooner or later, every
utility is faced with a potential deficit and must take various actions to prevent system failure. The deficit
may arise from meteorological drought, from a contamination episode, or from pipeline or equipment
24
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
failure. The actions taken in these circumstances - ranging from water use reductions to augmentation of
existing supply capacity to emergency supply arrangements - are known as drought management
measures. The Newport News Waterworks drought curtailment plan (DCP) provides for three tiers
(stages) including voluntary measures (Tier 1) and a range of mandatory measures (Tiers 2 and 3) with
specific triggers for starting and ending the curtailments.
For many years, water supply planners calculated future infrastructure needs by comparing forecast
unrestricted water use to water availability under design drought conditions (usually the "'drought of
record") with an unknown but small probability of recurrence. Assuming that the water use forecast and
the hydrologic assumptions proved accurate, the result was a water supply system that would require
drought management measures very rarely during the forecast period (only for events more severe than
the design drought). However, as hydrologic modeling, water use forecasting, and risk analysis methods
improved, it became clear that planning on the basis of an arbitrary reliability level risks substantial
excess costs. Setting the reliability level too high requires the utility to provide costly, and possibly
environmentally damaging supply works that will rarely be needed. Setting the reliability level too low
means that costly, inconvenient, and potentially disruptive drought management measures will be
implemented too frequently. The IWR panel believes that a preferable planning criterion is to minimize
the total costs of supply and demand measures, achieving a balanced strategy of capacity additions and
reasonable use of drought management, known as Strategic Trigger Planning.
Some drought management measures, when implemented occasionally, involve little more than mild to
moderate costs and inconvenience for water users. These include the familiar, relatively low-impact
restrictions on outdoor water use, voluntary reductions, increased recycling, accelerated leakage control
programs, etc. The availability of such measures in time of drought will often produce significant and
highly cost-effective reductions in long-term supply requirements. Typically, these measures are
acceptable to the public (unless implemented too frequently) and less costly than the incremental supply
capacity that would be required to avoid their use. The IWR panel believes that low-impact drought
measures should always be considered in determining supply requirements, whether implemented through
voluntary action or by regulation, because it so often makes economic and environmental sense to reduce
use during occasional dry periods.
Since there were no benefit-cost analyses of drought curtailments in the HDR studies, the IWR panel used
the existing Newport News drought plan and the panel's safe yield model to determine how drought plans
would extend the reliability of this water system. The panel found that the Newport News plan can
increase the reliability of the current water system. In other words, if water use is curtailed occasionally
during moderate to severe droughts, the system can support larger average demands without ever
experiencing a shortfall. However, the already low outdoor water use in this region means that drought
curtailment will not have the dramatic effect that is has in other regions of the country that rely on treated
water for most domestic irrigation.
The panel then re-ran the simulation applying drought curtailments according to the rules and expected
savings described in the Newport News drought contingency plan and allowed the reservoirs to drop to
20% dead storage to quantify the reduction in risk that would occur if the operators drew the reservoirs
down more during droughts, recognizing that there could be additional water treatment costs. The panel
also counted the frequency in which drought curtailments would be imposed.
25
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The frequency of drought curtailments for the 20%, DCP scenario is shown in Table 1, below. Between
2020 and 2030, the frequency of voluntary drought declarations would reach a level that might cause
some public pressure for additional supplies. In 2020, voluntary lawn sprinkling bans would be required
in 4 years out of every 100. By 2030, mandatory bans would be imposed in 2 years out of every 100, but
voluntary bans would be imposed in 15 years out of every 100. The voluntary percentage is high, but
probably could be adjusted lower with a refinement of the triggers used. However, if future water use
were to attain the high end of the expected range, supply would be inadequate even with these plans in
place. This creates the small risk shown in Figure 1 for 2030 for the 20%, DCP scenario. By 2040 even
with drought curtailment there is 50/50 chance of a 4% risk of shortfall. The panel estimated that the
region will need an additional 8 mgd of water supply by 2030 in order to have a zero risk of shortage.
Table 1 Frequency at Which Each Tier of Drought Curtailments are Imposed
Tierl
Tier 2
Tier3
2000 2010 2020 2030 2040
0.03% 0.108% 3.4% 14.5% 45.9%
0.00% 0.004% 1.3% 1.9% 4.0%
0.00% 0.000% 0.5% 1.2% 0.0%
2050
62.9%
13.8%
1.3%
(2) James City County Desalination Plant: The IWR panel also believes that since James City
County has shown its intent to develop a desalinated groundwater plant, it should be considered in the
District's alternatives analysis. The City of Newport News argues that the net contribution of the new
plant to the yield of the system would only be 2 mgd, rather than 5 to 6 mgd as reported by James City
County, because some of the freshwater wells would be abandoned. The panel's analysis of groundwater
studies suggests that the current aquifer yields can be sustained, therefore, for planning purposes the
expected yield of the desalination plant should be estimated to be between 2 and 6 mgd. Yield from this
source would mean that the region will have adequate supply with zero risk of shortage for a few years
beyond the dates noted above.
(3) Risk of Shortfall with Additional Supply: Because of the uncertainty regarding the net yield
of the other supply sources, particularly the proposed James City County Desalination Plant, the panel
estimated how various levels of additional supply would affect the risk of shortfall. Figures 2 and 3 show
the risk that supply will be inadequate with additional supplies of 5, 10, 15, 20, 25 mgd under the two
operational assumptions. Supply is considered inadequate in any year where water use is not satisfied in
any month. Again, the analysis considers the worst drought in the twentieth century, as Virginia rules
require and the risk percentages capture the full range.of probable demand and supply, not just point
estimates.
26
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Risk of shortfall with additional supply (in 5mgd increments) - No Curtailment,
33% Dead Storage
•t.10/
in0/ -
oo/ .
CO/ .
oo/ .
5mgd
5 mgd
fir
5 mgd
IS
2000 2010 2020
OCjri
1
1
10 mgd
TTlSmgd
i
*
i
10 mgd
1
: 15mqd
I
~ • 20 mgd
?&
if
M
Jj
10 mgd
; I 15 mgd
•^20mgd
• •!iB1igd
2030 2040 2050
Figure 2. Probability That Water Supply Will Be Inadequate If Supplemented By New Supply,
Assuming No Curtailment During Drought And 33% Dead Storage
Risk of shortfall with additional supply (in 5 mgd increments) - Curtailments, 20%
Dead Storage
Z/o
K mnrf
5
5 mgd
07o i i i i
2000 2010 2020 2030
mgd
|
10 mgd
15 mgd
|
I
I
i
10 mgd
|15 mgd '
• 20 mgd
2040 2050
Figure 3. Probability That Water Supply Will Be Inadequate If Supplemented By New Supply,
Assuming Curtailment During Drought And 20% Dead Storage
27
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(4) Additional Supplies Needed to Eliminate Risk: To reduce the risk to zero, the following
amounts of additional water supply would be needed as shown in Table 2 and Figure 4 below:
Table 2 Additional supply needed to eliminate risk of shortage
2000 2010 2020 2030 2040
No DCP, 33%
DCP, 20%
0
0
11
0
17
25
16
(DCP = drought curtailment plan, 33% = 33% dead storage, 20% = 20% dead storage)
2050
32
23
Additional Supply Needed to
OFT ....
oo •
on
25 -
on
•o 20 •
0)
E .,
15 •
•in
Eliminate Risk
2000 2010
I
I
2020 2030
Forecast year
,
UP
9*
2040 2050
D No DCP, 33%
D DCP, 20%
Figure 4. The amount of additional supply needed for zero risk of shortages
(DCP = drought curtailment plan, 33% = 33% dead storage, 20% = 20% dead storage)
These amounts correspond to the upper limit (worst case) of Figure ES-1 in the HDR Report. These
values are derived from a risk assessment that assigned a range to each water use category to capture the
uncertainty in forecasts. Zero risk means that this amount of water would satisfy the highest levels of
water use in those ranges under any hydrologic conditions that had been experienced in the twentieth
century.
28
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The panel found that if no new water sources are provided, the RRWSG service area will experience an
increasing risk of deficit over the next 50 years. The IWR panel's results show that the RRWSG has
demonstrated a need for some additional water supply in order to drop their risk of shortage to zero
sometime between 2015 and 2030 depending on the operational criteria applied. Assuming that water use
is not curtailed during droughts and reservoirs are not allowed to go below 33% full, this risk will not be
perceptible before about 2015, and is likely to become clearly perceptible sometime after 2020. Based on
the use of 20% dead storage and occasional drought curtailments, both of which Newport News
Waterworks has used in actual practice, the panel believes the region will need an additional 8 mgd of
water supply by about 2030 in order to eliminate all risk of shortage.
• No DCP, 33% Dead Storage: Unless the region suffers a drought more severe than any recorded in
the twentieth century, the RRWSG would have enough water through about 2015 even without using
drought curtailment or dipping into the lower third of their reservoir storage. The risk of shortage is
as follows:
There is no risk of shortage through 2015 with existing supplies.
There is a less than 4% risk of a shortage by 2020. The maximum expected deficit by 2020 is
mgd (i.e., if water use is the highest expected, if groundwater yields are the lowest expected, and:
if there is a recurrence of the worst drought of the twentieth century).
There is about a 7% risk of a shortage by 2030. The maximum expected deficit by 2030 is 17 mgd.
There is about a 12% risk of a shortage by 2040. The maximum expected deficit by 2040 is 25 mgd.
There is about a 17% risk of a shortage by 2050. The maximum expected deficit by 2050 is 32 mgd.
• DCP, 20% Dead Storage: If drought curtailments are used and reservoirs are allowed on occasion to
drop to 20%, then the region would have enough water through about 2025. Under these conditions,
the risk of shortage is as follows:
There is no risk of shortage through 2025 with existing supplies.
There is a less than 1% risk of a shortage by 2030. The maximum expected deficit by 2030 is 8 mgd.
There is a less than 4% risk of a shortage by 2040. The maximum expected deficit by 2040 is
16 mgd.
There is a 6% risk of a shortage by 2050. The maximum expected deficit by 2050 is 23 mgd.
• James City County Groundwater: Since James City County has shown its intent to develop a
desalinated groundwater plant, an expected yield of between 2 and 6 mgd should be considered as
available water supply in the alternatives analysis. Any additional yield from this source would mean
that the region will have adequate supply for a few years beyond the dates noted above for these two
scenarios and the water would be supplied where it is apt to be needed most. Adding as little as 5
mgd of new supply drops the risk of shortage by 2020 to about 1%. Each additional 5 mgd supply
increment significantly decreases the risk of future shortage. Combined with drought curtailments and
20% dead storage, as little as one 5 mgd supply increment (i.e., taking into consideration the James
City County groundwater well) would reduce the risk of shortage to close to zero as late as the year
2030.
(5) Dead Storage and Safe Yield of the Newport News System: Both in the FEIS and the HDR
report, the estimate of safe yield of the Newport News Waterworks system was based on a higher level of
dead storage space in their existing reservoirs than used in previous studies or required by the Virginia
29
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Department of Health. This further limits the effectiveness of their drought contingency plans. Safe yield
is generally calculated assuming reservoir capacity is diminished by dead storage. This space can be
filled with years of sedimentation, and it can be more difficult or more expensive to treat water in the
lowest elevations. The Department of Health previously determined that the safe yield of the Newport
News Waterworks system could be based on the physically available storage of about 12%. (According
to all reports, 10-12% of the reservoir capacity could not be used, at least not without extraordinary
measures.) The Newport News system has about 13 billion gallons of storage, and Big Bethel and
Waller Mill Reservoirs add another 2 billion gallons.
IWR developed their own safe yield models to determine the sensitivity of safe yield to the specification
of dead storage volumes shown in Table 3 below. This includes safe yield from all existing reservoirs.
Table 3
Dead Storage
12%
20%
25%
33%
IWR estimate of Safe Yield, all reservoirs
70.8 mgd
65.6 mgd
62.2 mgd
56.7 mgd
JO.j iiiga
- *
, ?- 14.1 mgd
U 8.9 mgd f &
\ J
By using 33% dead storage to calculate safe yield of their system, Newport News Waterworks has
discounted a significant amount of storage volume in their existing reservoirs that is available for water
supply. By using 25% dead storage, an additional 5.5 mgd of existing storage within the system is
available as safe yield. By using 20% dead storage, an additional 8.9 mgd of existing storage is available
as safe yield. Using 12% dead storage, an additional 14.1 mgd of existing storage is available as safe
yield. Newport News Waterworks' proposal to cease withdrawals at 33% of total storage volume is
arbitrarily and unnecessarily conservative, and unreasonably inflates their apparent deficit.
Newport News Waterworks reported experiencing water quality problems when Diascund Creek
Reservoir was drawn down to between 20 and 25% of total storage in 1983 and 1984. However, they did
not report on the costs or the difficulties involved in treating this water. Even though it might be more
difficult or more expensive to treat water in the lowest portions of these reservoirs, it would undoubtedly
be less costly than providing a new water source, especially considering how infrequently it would be
necessary. Furthermore, maintenance dredging of accumulated sediments in the bottom of the reservoirs
could restore some of the storage volume that is lost over time to sedimentation and reduce the costs and
difficulty of treatment.
(6) Need for Additional Water Supply: The Corps' Institute for Water Resources concluded
that unless the region suffers a drought more severe than any recorded in the twentieth century, the
RRWSG has enough water through about 2015 even without using drought curtailment or dipping into
the lower third of their existing reservoir storage. Therefore, there is no risk of shortage through 2015
with existing supplies. The IWR panel estimated that using 33% dead storage and no drought curtailment,
the region will need more water beyond 2015 in order to have a zero risk of shortage. By 2020, there is a
less than 4% risk of a maximum 11 mgd shortage if water use is the highest expected, groundwater yields
are the lowest expected, and there is a recurrence of the worst drought of the twentieth century. By 2030,
the risk is about 7% for a maximum 17 mgd shortage. The risk increases to 12% for a maximum shortage
30
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
of 25 mgd by 2040. In the year 2050, there is about a 17% risk of a maximum shortage of 32 mgd of
water. The risk of shortage means the risk of needing to use drought curtailment, not that the region
would run out of water.
Newport News Waterworks would use drought curtailment if needed during a drought as they have in the
past and as any prudent utility would. Building the King William Reservoir would likely push the need
for doing so again far into the future (barring emergencies), but at a significant environmental, social, and
economic cost. I acknowledge the Virginia Department of Health's policy that utilities should not include
drought curtailment when calculating the capacity of their supply systems, and that this policy would
preclude Newport News from using IWR's drought curtailment scenario (as discussed above) to
determine the 'official,' or rated capacity of their system. Although I did not rely on the drought
curtailment scenario to justify my findings, I cannot ignore the reality that drought curtailment would be
invoked if needed and would extend the capacity of Newport News' current system.
Referring to Figure 2, it can be seen that if Newport News Waterworks would use the existing reservoir
storage volume of 5.5 mgd (at 25%), 8.9 mgd (at 20%) and 14.1 mgd (at 12%) in their calculation of safe
yield, they would not need that same amount of safe yield from another future source, including
additional storage space in a new reservoir. Utilizing as little as the 5.5 mgd of dead storage between
33% and 25% to calculate safe yield would reduce the risk of shortage to 1% by 2020, to less than 4% by
2030, to less than 8% by 2040, and to 13% by 2050. If Newport News Waterworks would utilize the 8.9
mgd of reservoir dead storage between 33% and 20% to calculate safe yield, there would be no risk of
shortage by 2020, the risk of shortage would be reduced to less than 2% by 2030, to less than 4% by
2040, and to 8% by 2050. By using the 14.1 mgd of dead storage between 33% and 12% in then-
calculation of safe yield, there would be a less than 1% risk of shortage by 2030, a less than 2% shortage
by 2040 and a less than 5% shortage by 2050.
I also believe that the 2 to 6 mgd of water from James City County's proposed groundwater desalination
plant should be considered as a reasonably foreseeable future water supply and taken into consideration in
the region's water supply planning. I also believe that the RRWSG has underestimated the expected yield
of the aquifer. Yield from the James City County desalination plant would postpone the need by a few
additional years depending on how much of the potential 6 mgd yield is actually realized.
Therefore, I have determined that the RRWSG will have no risk of shortage through the year 2015 with
existing supplies. If water use is the highest expected, and if groundwater yields are the lowest expected,
and if there is a recurrence of the worst drought of the twentieth century, there is a less than 4% risk of a
maximum 11 mgd shortage by 2020. The maximum potential 11 mgd shortage calculated for 2020 could
be satisfied by using the existing reservoir storage volume and the yield from the James City County
desalination plant, and the region would have only a very small risk of shortage by 2030. Each additional
5 mgd supply increment (from some other sources) significantly decreases the risk of future shortage. I
find that the RRWSG would not need any new water supply, let alone a new reservoir until after about
2030.
Determining the best time to begin construction on a new water project is a matter of judgment, involving
consideration of risk of shortage, project costs, financial impacts, shortage costs, hardships to users and
numerous uncertainties with respect to alternative strategies. The IWR panel believes that by using
Strategic Trigger Planning as their planning criterion, the RRWSG can achieve a balanced strategy of
capacity additions and reasonable use of drought management.
31
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(7) Water Needs for National Defense: Fort Eustis, and the Yorktown Naval Weapons Station
rely on Newport News Waterworks for all of their water supplies. Langley Air Force Base and Fort
Monroe obtain their water supplies from the Big Bethel Reservoir, but rely on Newport News
Waterworks for emergency supplies. Each command has clarified their current and projected water needs
based on the effects of military downsizing and base closures. There is evidence that the base closure and
realignment has not had a major impact on the Peninsula except for a slight increase in military related
employment.
In a letter dated 17 December 1998, City of Newport News Mayor Joe S, Frank wrote to General Richard
E. Hawley, Commander, Air Combat Command, Langley Air Force Base, soliciting the support of
Langley Air Force Base for the City's proposed King William Reservoir project. Mayor Frank's letter
stated "We know that to support further consolidation of facilities to the Peninsula or to accommodate a
military mobilization in response to a national security threat, requires that an adequate water supply
infrastructure be in place."....and "To ensure that the needs of our local military installations are not
overlooked in the decision-making, I ask that you convey to Colonel Carroll your thoughts on the
importance of a reliable municipal water system to your mission at Langley Air Force Base."
In a letter dated 14 January 1999, Brigadier General Earnest Robbins, II, the Civil Engineer for Langley
Air Force Air Combat Command wrote to me and attached a copy of Mayor Frank's letter to General
Hawley. Brigadier General Robbins stated that Big Bethel Reservoir is operated and maintained by Fort
Monroe's Department of Public Works which reported that the Big Bethel Reservoir will continue to
serve Langley AFB's needs. He indicated that the City of Newport News' municipal water system would
be relied upon in case of emergencies or when additional water supply is required. He projected no
significant changes within the foreseeable future in the base's current average water consumption, and
stated that " Any project necessary to ensure reliable water supply to Langley AFB while satisfying all
environmental requirements is in the best interest of the Air Force."
The following comments were also received from commands at Fort Eustis, the Yorktown Naval
Weapons Station and Fort Monroe:
Brigadier General Gilbert Harper, Commander of the U. S. Army Transportation Center at Fort Eustis
stated in a letter dated 13 January 1999 that he expects his facility to show a gradual increase in military
and civilian employment due to consolidations of other facilities caused by military downsizing. He
stated that "A reliable source of water is absolutely critical to mission execution at Fort Eustis."
J. H. Cosper II of the U. S. Naval Weapons Station at Yorktown indicated in a letter dated 18 February
1999 that he did not anticipate any major growth of the facility, although there are some vacant facilities
that could be filled by tenants. He also stated that " A reliable municipal water service is critical to the
operation of WPNSTA Yorktown and to Navy families residing in the area."
In a letter dated 27 January 1999, Colonel Bobby A. Little, Post Commander of Fort Monroe, indicated
that Fort Monroe possesses its own capability for satisfying the water needs of the installation, but
routinely require an alternative source of water when minor problems develop in their treatment plant and
distribution system. He indicated that Fort Monroe and Langley Air Force Base will likely not suffer
much from reduction in personnel and base closures as they are major commands. He stated "If future
demographic requirements justify the added capability obtained from the King William Reservoir project,
Fort Monroe supports the initiative and highly encourages your approval."
32
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The RRWSG's November 2000 HDR report predicted a total military demand of 4.03 mgd in 2000, 4.01
mgd in 2010, 4.00 mgd in 2020, 3.98 mgd in 2030, 3.97 mgd in 2040 and 3.96 mgd in 2050. They
attributed the decrease in future military water usage over time to on-base conservation, primarily the
replacement of older fixtures. While each of these commands has a general need for an adequate and
reliable water supply in order to fulfill their mission, they do not specifically need the King William i
Reservoir project for national defense. Any alternative that would reliably supply water to these * '
commands would satisfy their needs.
8. Views of the District Commander Concerning the Probable Effect of the Proposed Work on:
a. Water Supply:
(1) Regional Raw Water Study Group Area: Newport News Waterworks currently has a system
of five reservoirs which provide a total of 12.9 billion gallons (BG) of raw water storage (Diascund Creek
Reservoir = 3.49 BG; Skiffes Creek Reservoir = 0.23 BG; Lee Hall Reservoir = 0.88 BG; Harwoods Mill
Reservoir = 0.85 BG and Little Creek Reservoir = 7.48 BG.) The proposed King William Reservoir
would provide an additional 12.2 BG of storage, thereby almost doubling Newport News' water storage
capacity. Also, the City of Williamsburg operates the Waller Mill Reservoir (1.42 BG), and the Army at
Fort Monroe operates the Big Bethel Reservoir (0.61 BG). Therefore, total reservoir storage for the
RRWSG area actually equals 14.96 BG (see Map 2 - Regional Map). Domestic, commercial and
industrial wells also provide water for much of James City County and York County. The James City
County Board of Directors recently approved a plan to pursue a groundwater desalination facility to
provide its own water supply if the Corps permit for the King William Reservoir was not issued by July
2000 and have now contracted for the first production well.
(2) Communities in the Mattaponi and Pamunkey River Watersheds: The applicant's regional
water supply plan does not address the water supply needs of communities in the Mattaponi River and
Pamunkey River watersheds, aside from the host allowances in the reservoir storage volume for King
William County and New Kent County. In Virginia, water is allocated by the state on a first come, first
served basis. Without a regional cooperation agreement, not all of the needs in a locality will be met by
the resources available in that vicinity if they have already been allocated to a previous user.
King William County is not a member of the RRWSG, but is the host jurisdiction for the King William
Reservoir. The host agreement gives King William County the option to reserve up to 3 mgd of the
reservoir storage should they ever build the necessary pipeline, treatment plant and distribution system to
use it. The King William County Businessmen's Association recently informed the District that according
to the Agreement, the County would not only have to purchase the reserved raw water from the City of
Newport News and construct the pipes, pump stations, treatment plants and distribution systems
necessary to obtain the water, but they would also have to pay the City of Newport News a percentage of
the total cost of the reservoir project (currently estimated to be approximately $167.5 million dollars).
The Association believes that these costs would prohibit the County from ever being able to take
advantage of the water reserved for them.
Likewise, New Kent County is not a member of the RRWSG, but is the host jurisdiction for the pipeline
connecting the King William Reservoir to the rest of the Newport News Waterworks system. A similar
host agreement between New Kent County and Newport News provides 1 mgd of the reservoir storage for
33
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
their future use. New Kent County indicated to the District in 1994 that they currently had no plans for
using the water reserved for them in the reservoir storage.
According to the Final EIS, there are currently no substantial uses of the Mattaponi River basin for water
supply. The Year 1990 estimated average withdrawal of water from the Mattaponi River basin was 4.64
mgd (71% is for domestic, commercial and institutional uses; 21% is for irrigation; and 8% is for
industrial, manufacturing and mining purposes.) Approximately 3.1 mgd of this withdrawal is for
consumptive use; that is, the water is not returned to the river. On the other hand, almost all of the 75
mgd withdrawal for the King William Reservoir would be a consumptive use to the Mattaponi River
because it would be pumped to the reservoir in the Pamunkey River watershed and then transferred out-
of-basin. Only the water discharged as a downstream release from the dam (and potentially the host
allowances for New Kent and King William County) would return to the York River system.
Furthermore, the users of the water are in the Lower Peninsula area where wastewater discharge would be
into the lower York, Chickahominy and James River basins.
The King and Queen County Board of Supervisors is very concerned that the Mattaponi River would not
be able to meet their future water supply needs if the RRWSG is allowed to take so much of the water.
The proposed 75 mgd withdrawal represents approximately 15 percent of the estimated average annual
flow of 484 mgd in the freshwater tidal area of the Mattaponi River at Scotland Landing. While this is a
small percentage of the annual flow, the proposed withdrawal could effectively preclude the use of the
Mattaponi River as a dependable water source by other jurisdictions and riparian owners (farmers) within
the watershed. River water withdrawals must comply with minimum instream flow (MIF) standards
imposed by the Virginia Department of Environmental Quality. During seasonal low flow conditions
from June through October, the withdrawal schedule using the modified 80% Exceedence MIF could
possibly transfer to the Lower Peninsula up to 40% of the total flow at Scotland Landing on a single day.
This would be most, if not all of the water that exceeds the minimum instream flow of 114 mgd, leaving
little or none for use of Mattaponi watershed residents. Under the less restrictive 40/20 MIF, pumping
would be allowed when freshwater flows exceed 99 mgd; therefore, even less would be left for use by
Mattaponi watershed residents. The County is also concerned that the encroachment of more saline water
in the Mattaponi River could cause salt water intrusion into shallow aquifers especially at West Point.
The Caroline County Board of Supervisors is also opposed to the King William Reservoir because it
would restrict their future use of the Mattaponi River for water supply. They feel they should be allowed
to have their "fair share" of the Mattaponi River water. They also point out that the applicant's
determination of Caroline County's need is based on a study that is more than 10 years old and no longer
accurately reflects Caroline County's consumptive needs since growth has been faster than projected.
Caroline County feels that groundwater systems within the County will be inadequate to meet their
demand within the next few years and predict that by 2014, they will need their own surface water source
to meet their demand.
Numerous farmers on the Mattaponi River use river water to irrigate their crops. The RRWSG's analysis
indicated that crops currently grown by these farmers would be tolerant of the small predicted salinity
increases brought about by the withdrawal. Therefore, they concluded that there would be no adverse
impacts on irrigation as a result of withdrawals. The RRWSG's analysis is based on the results of the
VIMS salinity study which did not consider the cumulative effects of other consumptive uses or the
additive effect of the proposed withdrawals with natural, pre-existing salinity fluctuations. The
34
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
RRWSG's analysis also did not appear to consider future increases in agricultural irrigation in the
Mattaponi watershed.
b. Navigation. Present and Prospective:
(1) Mattaponi River: The Mattaponi River is navigable at its confluence with the York River \
and for some distance upstream. Based on historical records, the head of navigation for legal purposes is *
presumed to be the Guinea Bridge in Caroline County. It experiences moderate to heavy recreational use
especially during weekends and holidays throughout the summer. The river is approximately 400 feet
wide at the mean low water elevation in the vicinity of the proposed intake site. The proposed 180-foot
long intake structure would be constructed parallel to the shoreline approximately 125 feet channelward
of the mean low water line. A 72-foot long pier with an enclosed boathouse would be constructed
adjacent to the intake structure to provide mooring and storage of a boat for use in water quality sampling
and screen maintenance. The pier would extend approximately 20 feet channelward of the mean low
water line. The intake structure would consist of six T-shaped pipes with a total of twelve screen-covered
openings. The structure would be located in approximately 21 to 25 feet of water, providing a minimum
of 7 feet of vertical clearance at mean low water. Although recreational craft should not be affected by
the intake structure, the intake area would be marked by warning buoys. Sounding data indicate that the
remaining navigable portion of the river is approximately 175 feet wide with a minimum depth of-7 feet
at mean low water. Therefore, river usage by larger commercial or pleasure craft should not be restricted.
The proposed intake structure and pier should not adversely impact navigation in the Mattaponi River.
(2) Cohoke Creek: The proposed reservoir is located in the non-tidal waters of Cohoke Creek, a
tributary to the Pamunkey River. Recreational navigation occurs in the 85-acre Cohoke Millpond, an
existing impoundment downstream of the proposed dam site, and in the short tidal reach below the
Cohoke Millpond Dam adjacent to Route 632, but is not known to exist above the Millpond. The
privately owned Cohoke Millpond is currently fed by approximately 16 miles of perennial streams and 14
miles of intermittent streams from the total 17-square mile drainage area. Water levels are maintained by
the Cohoke Fishing Club through the use of a gate-controlled spillway, which feeds into a 30-inch culvert
running under Route 632. Approximately 3,500 gallons of water per minute, or 5 million gallons per day,
flows through the culvert into the tidal waters of the Pamunkey River under normal conditions. Average
depths throughout the pond during periods of normal elevation are 5 feet. The proposed King William
Reservoir dam would affect roughly half of the Cohoke Creek watershed and would reduce the volume of
water entering the Millpond by approximately two thirds. This in turn would reduce the existing flow
over the spillway to approximately 1,200 gallons per minute under normal conditions. However, this
two-thirds reduction in the total water volume is not expected to adversely affect the Club's ability to
control water depths or to navigate within the confines of the Millpond during normal conditions.
Impacts to navigable capacity would be associated with abnormal drought events, but should be
temporary in nature. Therefore, no adverse impacts to navigation in the Millpond are anticipated. No
adverse impacts are anticipated to navigation in the Pamunkey River.
c. Flood Height, Drift and Flood Damage Protection:
(1) Mattaponi River: The proposed 75 mgd maximum daily withdrawal represents
approximately 15 percent of the estimated 484 mgd average annual flow in the freshwater tidal area of the
Mattaponi River at Scotland Landing (river mile 24), but could possibly represent up to 40 percent of the
total flow in a single day during the seasonal low flow period. The total freshwater discharge at the
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
mouth of the Mattaponi River is estimated to be 581 mgd. The mean tidal range at Scotland Landing is
3.56 feet. No measurable effects on tidal height or range or flood damage protection are anticipated.
Water depths in the Mattaponi River would not be measurably impacted by the proposed withdrawals
since the intake would be located in tidal waters.
(2) Cohoke Creek: Cohoke Creek is a tributary to the Pamunkey River. The Cohoke Creek
watershed has an estimated drainage area of 17 square miles. The Creek's tributary system consists
primarily of non-tidal perennial and intermittent streams. A 100-year old dam near the mouth of Cohoke
Creek has created the 85-acre, privately owned Cohoke Millpond. Numerous beaver dams currently exist
on approximately 8 miles of the creek above the millpond. No adverse effects on flood height, drift and
flood damage protection are anticipated.
d. Erosion or Accretion:
(1) Mattaponi River: The relative elevation of wetlands to the river are maintained when there is
a balance between sediment accretion rates and erosion and subsidence rates. Erosion and accretion could
result in long-term changes to plant communities. The withdrawal of up to 75 mgd of water from the
Mattaponi River would reduce kinetic energy from freshwater flows. This has the potential to alter
erosion rates and suspended sediment loads. In their draft plan for monitoring changes to wetlands on the
Mattaponi River, Dr. Arlene Darke and Dr. Patrick Megonigal of George Mason University (members of
the River Monitoring Team assembled by the District) concluded that these changes would be expected to
alter wetland geomorphology and the substrate available for plants, thereby contributing to changes in
wetland community composition (see Section 8 k, Monitoring Plan).
Also, the Fish and Wildlife Service and the Virginia Department of Game and Inland Fisheries expressed
concern that the proposed intake structure in the Mattaponi River could cause erosion or accretion of the
adjacent marshes and potentially eliminate suitable habitat for the sensitive joint-vetch, a federally-listed
threatened and state protected plant species. In an attempt to address this issue, the City of Newport
News hired a coastal engineer to examine the potential indirect impacts of the intake structure on flow
velocities and sediment depositional patterns in the Scotland Landing-Garnetts Creek Marsh area. The
findings were presented in a September 1996 report entitled "Study of Potential Erosional Impacts of
Scotland Landing, Water Intake Structure on Gametts Creek Marsh, Mattaponi River, Virginia" by Dr.
David R. Basco.
Dr. fiasco's objective was to analyze the water velocities and sediment transport potential before and after
intake construction to determine if a relative change in sediment potential would occur and to predict the
extent of expected change in sediment deposition and scour patterns on the nearby marsh geometry. Due
to time constraints, the study relied on existing information provided by Malcolm Pirnie, Inc. and a single
site visit by Dr. Basco. The study was limited to the area immediately surrounding Garnetts Creek Marsh
across from the proposed pump station and the sensitive joint-vetch colony on the south side of the
Mattaponi River upstream of the proposed intake. The report stated, "...the increased mean velocities
and sediment transport potential are so small that the possibility for excessive erosion of Gametts Creek
marsh and the south-side shore is minimal to non-existent" (emphasis added). Based on the findings of
this report, the RRWSG has extrapolated from this statement that "the installation and operation of the
intake will not alter any of the river's existing circulation patterns in a manner that would lead to
increased erosion along its shoreline."
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Dr. Basco's report actually indicates that while erosion would not be expected to be excessive, small
changes in flow and circulation would result in erosion and/or accretion of the shoreline. The report's
findings were that the proposed intake would reduce the flow cross-sectional area by only 1.1 percent, but
would present a blockage to secondary currents across the river bend that would result in a 2 percent
increase in sediment transport potential which could enhance sediment settling at Gametts Creek Marsh.
The intake would increase the maximum tidal flood velocity by less than one percent, but would produce
a wake region with increased turbulent kinetic energy that would impact the south-side bank both
upstream and downstream of the intake structure. Turbulent wake would be created by the ebb currents
and the secondary currents near the river bend where the pump station would be located. Sharp surfaces
and edges of the intake screen would generate increased levels of turbulent energy when the ebb flows
pass the screen, so that turbulence will be transferred downstream and will diffuse vertically to the surface
and down to the river bed.
This increased turbulent energy could reach the sensitive joint-vetch area on the south side of the river,
especially during elevated water and flood events. The south-side colony, which is subject to natural
erosion processes from freshwater flooding events, may have increased levels of turbulence during daily
cycles of the flood tide, consequently, increased erosion could occur. The report also indicated that a
smaller wake would extend upstream during daily tidal flooding, and the area of turbulence caused by the
water intake may reach the mean high waterline in the south-side colony. Dr. Basco noted that existing
models could not predict the exact dimensions and energy content of the turbulent wake or what effects
this increased turbulence would have on the species. These changes would be permanent and the effects
would be continuous and cumulative. Therefore, he recommended monitoring the level of daily flood tide
induced wake turbulence upstream, and monitoring of the south-side habitat after intake construction to
determine if protective measures would be needed. Dr. Basco also suggested that monitoring after
construction was the only way to evaluate the potential sources of erosion impacts. While I believe the
potential for turbulence-induced effects would be minor, they cannot be completely discounted.
(2) Outfall on Beaverdam Creek: The applicant proposes to use Beaverdam Creek as an inter-
reservoir conveyance channel for water pumped from the King William Reservoir to the Diascund Creek
Reservoir. The 11.7 mile pipeline would terminate at a pre-cast concrete outfall structure with a 30-foot
riprap apron. A 33-foot wide by 3-foot deep trapezoidal discharge channel would be excavated through
150 linear feet of vegetated wetlands to connect the outfall to the main channel of Beaverdam Creek. The
outfall would be designed for a maximum discharge flow of 50 mgd (see Map 4 - Aerial Photo of
Beaverdam Creek and Diascund Creek Reservoir).
In the RRWSG's original application, the outfall structure for the pumpover was located approximately
1.3 miles upstream of the normal pool elevation of the Diascund Creek Reservoir, in a third order stream
segment of Beaverdam Creek on the north side of Interstate 64. Beaverdam Creek flows southward under
the 60 to 75-foot wide concrete supported 1-64 bridge. The Diascund Reservoir is located on the south
side of the interstate. Normal pool elevation of Diascund Creek Reservoir is 26.0 feet at mean sea level.
Elevation of the originally proposed outfall was 35 feet at mean sea level or 9 feet above normal pool
elevation of the reservoir. The discharged water would flow through a small perennial low-flow channel
for approximately 4,000 feet before entering a channelized portion of the Beaverdam Creek/wetland
complex located approximately 500 to 600 feet upstream of the Interstate 64 crossing.
The District staff and the federal advisory agencies expressed concern that stream channel erosion could
be significant, even if the released high flows stay within their banks. The U.S. Fish and Wildlife Service
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
commented that repeated peak flows of this magnitude could severely degrade the biological integrity and
channel morphology of Beaverdam Creek by causing scouring of the stream channel, channel
downcutting, dewatering of the floodplain and channel widening. EPA provided similar comments. The
Virginia Department of Game and Inland Fisheries commented that the Final EIS did not evaluate the
impact of the increased frequency of high flows in Beaverdam Creek and that it is highly likely that
increased flows would increase erosion, especially during periods of high flow. All three agencies
recommended that the discharge point on Beaverdam Creek be moved to the Diascund Reservoir.
Based on those concerns, the District recommended that the RRWSG provide an analysis for inclusion in
the Final EIS that would fully and completely evaluate the feasibility of extending the pipeline all the way
to the receiving reservoir, rather than merely the applicant's previous statement that doing so would be
too costly ($4 million). The RRWSG failed to provide the requested evaluation for the Final EIS; instead
they attempted to minimize the potential for erosion by extending the outfall location another 0.5 miles
downstream, thereby reducing the impacted section of streambed to 0.8 miles. The RRWSG modified
their application in December 1996 to relocate the outfall approximately 3,800 feet downstream to a point
which is approximately 1 foot in elevation above the normal pool of Diascund Reservoir. The new
location would be approximately 600 feet upstream of the 1-64 crossing of Beaverdam Creek. The Fish
and Wildlife Service, EPA, the National Marine Fisheries Service and the Virginia Department of Game
and Inland Fisheries continued to recommend that the potentially significant adverse impacts to
Beaverdam Creek should be avoided by extending the pipeline all the way to the Diascund Reservoir.
(a) Site Conditions of the Relocated Outfall Site: The relocated outfall structure would be
situated within a transitional zone between a floodplain forested wetland and a highly diverse, mixed
scrub-shrub, emergent and sub-emergent community. Dominant trees include red maple (Acer rubrum)
and sycamore (Plantanus occidentalis). The herbaceous community consists of, in part, various species of
smartweeds (Polygonum spp.), pondweeds (Potamogeton spp.), cut grass (Leersia spp.), sedges (Carex
spp.) woolgrasses (Scirpus spp.), cattails (Typha spp.) and blueflag (Iris virginica). It is anticipated that
species composition in the herbaceous layer would be substantially more diverse during the later part of
the growing season as non-persistent species emerge. Soils at the site consist of a Johnston mucky loam;
a coarse-loamy, siliceous, acid, thermic cumulic humaquepts. Johnston soils are very deep and poorly
drained which are formed in loamy fluvial sediments. Beneath 2 inches of standing water, soils examined
at the relocated outfall site consisted of a peaty muck "O" horizon 0 to 14 inches deep, a "Cgl" horizon of
a dark brown fine sandy silt from 14 to 24 inches and a "Cg2" horizon of gray-brown medium sand from
24 to 54 inches. Clay content ranges from 2 to 20% depending on the horizon investigated. Permeability
is moderately rapid (2-20 in/hr). Organic content for the Johnston series is high (8-18%). However, due
to the landscape position where stream morphology and the cross sectional geometry flatten considerably
compared to upstream segments, the organic buildup has increased significantly. This is due primarily to
the long-term sustainability of this low gradient, low energy system situated in a broad flat alluvial plain
within a relatively undisturbed, pristine watershed. The existing soil conditions at the discharge site, as
evaluated by the District and U.S. Fish and Wildlife Service are consistent with the data presented in the
Soil Survey of New Kent County. Statements advanced by the applicant on soil conditions are
inconsistent with agency findings and the soil survey data itself.
It is recognized that channelization of a portion of Beaverdam Creek has removed the upper horizons of
the pre-existing natural substrate. However, field inspection revealed that portions of the channel have
filled in sufficiently to support lush emergent, sub-emergent and aquatic vegetative communities. This is
the result of a slow accumulation of natural stream sediments and organic matter, accelerated to some
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
degree by the construction of beaver dams which further slow normal water velocities. The channel does
not contain "stiff clays that are resistant to erosion" as purported by RRWSG in the Final EIS.
(b) Impact Analysis: The underlying substrate in both the emergent and sub-emergent
vegetated communities contains a high organic content which is indicative of conditions of a low energy
system. The presence of beaver activity, both upstream and downstream of the proposed outfall, further
supports the conclusion that this portion of Beaverdam Creek is a low energy system with wetland
communities that are highly susceptible to potential changes in supporting hydrologic and hydraulic
conditions, rates of stream erosion, turbidity and sedimentation. The sustained increase from 4.5 mgd to
32.6 mgd average annual flow would undoubtedly result in erosion and transport of easily removed
components of the aquatic substrate, (i.e., organic material, silts and fine sands.) This would result in
increased sedimentation rates within the upper reaches of Diascund Reservoir, decreased water quality
from resulting turbidity and re-suspension of nutrients and pollutants.
The RRWSG characterized the proposed relocated outfall structure as being at " the upstream end of a
man-made, riprapped channel constructed at the foot of an 1-64 embankment fill section." This is
inaccurate as the channel is only lined on the south side immediately adjacent to and parallel with 1-64.
Placement of the structure was evidently intended to abate any naturally occurring erosional forces from
storm events on the road embankments for 1-64 within this section of Beaverdam Creek. This revetment
extends to an area on the south side of the westbound lane where it terminates. The north and east sides of
the man-made channel are unlined and thus exposed to erosional forces. Furthermore, the channel does
not extend downstream to the open water portion of Diascund Reservoir. Rather, the man-made channel
terminates approximately 100 feet south (downstream) of the eastbound lane of 1-64. From that point,
although reported to be within the normal reservoir pool elevation of 26.0 feet at mean sea level, water
must actually flow through a series of braided channels and forested wetlands for approximately 1,600
linear feet before it enters the open water portion of the reservoir.
The RRWSG responded to concerns raised by the federal advisory agencies regarding environmental
impacts associated with the relocated outfall. However, their rebuttal evaluated the discharge in terms of
flow velocities per event for potential erosional impact rather than assessing flow volume, duration of
peak discharge and frequency of peak discharge for potential impact on the existing wetland ecosystem.
The RRWSG utilized the U.S. Soil Conservation Service's TR-55 Graphical Peak Discharge method to
model pre- and post high flow conditions. Current pre-project stream flow at the discharge point averages
4.5 mgd. Post-project peak discharge plus ambient flow would raise the discharge to 54.5 mgd. This
would represent a 12-fold increase above existing average conditions. Average post-project flow
conditions would raise the flow to 32.6 mgd, representing a 7-fold increase above existing average
conditions.
The TR-55 is a useful model for application in small rural and urban watersheds to analyze peak flow
scenarios. One of the model's variables, Q (runoff depth in inches) is based on a 24 hour cycle. The F
factor is an adjustment for ponds and swamps but can only be applied to ponds and swamps that are not
along the main flow used to determine the time of concentration. Therefore, the data developed by the
RRWSG utilizing the TR-55 methodology may not be accurate, since much of the upstream watershed is
comprised of forested wetland swamps hydrologically supported by the stream modeled. Even if the
model produced accurate results, it would only be applicable downstream to the point of discharge at the
outfall structure, since flow from the pumpover is assumed to be continuous. Evaluation of the continuous
hydrologic loading of this section of Beaverdam Creek must be accomplished utilizing other models in
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
which the time of concentration and lag time are major variables. The purpose of such modeling would be
to determine the magnitude of hydrologic change on the wetland resources in the near zone of the
discharge structure and downstream to the open water of Diascund Reservoir, not to analyze potential
erosional forces as was employed by the RRWSG. Additionally, the RRWSG did not take into account
existing cross-sectional variations of creek morphology below the discharge point in their velocity
calculations.
The RRWSG claims that increased flow velocities could be beneficial to aquatic life and support a wide
assemblage of organisms by providing higher dissolved oxygen levels, higher nutrient flushing rates and
greater saturation of the floodplain wetlands through recharge. It appears highly unlikely that the stream
ecosystem would experience changes that would be beneficial. As existing fish and invertebrate
populations are adapted to an average flow of less than 5 mgd, continuous flow events of 32.6 mgd or
continuous peak flows of 54.5 mgd would likely change long-term species composition. The National
Marine Fisheries Service expressed concern that excessive turbidity would reduce water quality in the
Diascund Reservoir and Diascund Creek, affecting the anadromous fish that Diascund Creek supports,
and channel enlargement would eliminate the diversity of water depths found in naturally meandering
streams. The RRWSG has failed to substantiate their claims. It appears much more likely that the portion
of Beaverdam Creek below the outfall would become a degraded system, by increased flow volumes and
velocities similar to those streams subjected to excessive stormwater loading in urban areas, since the
flow events would occur at a frequency in orders of magnitude above natural conditions.
The applicant offered to correct any erosional problems that developed by implementing such measures as
the construction of check dams to dissipate flow velocities and reduce bank undercutting. According to
the U.S. Fish and Wildlife Service, this position reflects a lack of understanding of stream dynamics, and
that any attempts to correct stream morphology problems once they have occurred are unlikely to
succeed.
The relocated outfall structure could also adversely impact a nesting population of the great blue heron
(Ardea herodias), a species protected under the Migratory Bird Treaty Act. During a March 2000 site
inspection District personnel observed a small initiating rookery of 4 nests located at the very site of the
outfall structure. Great blue heron rookeries are very susceptible to human activity and disturbance and
are usually only found in forested wetlands removed from the presence of human activity. Construction
and operation of the outfall could force the nesting pairs from the rookery, causing nest abandonment.
The RRWSG has failed to include any discussion regarding efforts to avoid or minimize impacts to this
rookery. Construction and operation of the outfall structure and channelization of 150 linear feet of
vegetated wetlands directly beneath a great blue heron rookery could induce unnecessary and, therefore,
unacceptable impacts to the rookery. Relocation of the outfall structure further downstream would
minimize or avoid impacts to the rookery.
Impacts to existing wetland resources through increased depth of water and duration would be
anticipated. Changes range from slight modifications in community composition to complete loss of
vegetated systems, depending on the depth and duration of increased water levels. Biogeochemical
cycles, such as denitrification, organic decomposition and ferric iron reduction would be adversely
impacted with increased rates of flow, alteration of both the anaerobic and aerobic layers of stream
stratigraphy, and alteration of the phosphorus cycle through changes in sediment deposition and re-
suspension.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Operation of the pumpover with an average 7-fold increase above existing flow conditions in Beaverdam
Creek would adversely and permanently change stream dynamics. Changes in stream morphology would
result and this low energy system would experience degradation due to sustained increases in flow
volumes and velocities. Increasing the average stream flow condition from 4.5 mgd to 32.6 mgd would
generate damaging levels of sustained flow volume on downstream aquatic resources, including vegetated
wetlands, fisheries and benthic populations. Sustained flow volumes would increase rates of erosion and
subsequent deposition of erodible materials (including highly erodible materials such as organics and
silts), and would potentially decrease water quality downstream to Diascund Creek Reservoir. The
applicant has failed to demonstrate that increasing the magnitude of flow in Beaverdam Creek from an
average daily flow of 4.5 mgd to 32.6 mgd would be beneficial to the aquatic ecosystem or that it would
not be harmful. Also, the RRWSG has failed to demonstrate that these potential adverse impacts are
unavoidable. (For a more detailed discussion of this issue, see the District's report entitled "An evaluation
of the outfall on Beaverdam Creek.")
(3) Cohoke Creek: The existing Cohoke Creek vegetated wetlands perform some sediment
retention, but sediment pulses are regularly transferred to downstream wetlands. This downstream
transport of sediment is not only normal, but is essential for the natural maintenance of a healthy riverine
system. Sediment that is normally transported and deposited downstream would be retained by the
proposed King William Reservoir dam and lost to the Cohoke Creek system. The RRWSG estimated that
approximately 85 tons of sediment per year would be retained by the proposed dam.
Similarly, the applicant developed a simple model that estimated that the proposed reservoir and the
Mattaponi River pumpover would increase nitrogen loading by 44,507 pounds per year and increase
phosphorus loading by 11,931 pounds per year above current nutrient loading rates in the Cohoke Creek
watershed. The RRWSG counted any nutrient treatment of the pumpover volumes as a net benefit, but
even discounting problems associated with trying to quantify the degree of assimilation within the
reservoir, the net effect of the pumpover would be elevated nutrient levels in Cohoke Creek proper.
The RRWSG claims that this sediment and nutrient retention would be beneficial to the York River and
the Chesapeake Bay. Whereas, in fact, maximizing sediment retention functions would actually be
detrimental to the Cohoke Creek system, and the proposed reservoir could result in elevated nutrient
loading to the Cohoke Creek watershed. As sediments are eroded downstream of the dam and not
replaced by sediments from upstream, there would be an alteration of the streambed and floodplain,
which would affect the extent and character of the downstream wetland system. Also, the proposed
reservoir would disrupt the existing nutrient transport linkage between the Cohoke Creek headwaters and
lower creek mainstem, and result in changes to nutrient loading to the Cohoke watershed. (A detailed
review of sediment retention and nutrient assimilation appears in Section 8 f (2) (d).)
e. Water Quality:
(1) Mattaponi River: The Virginia Department of Environmental Quality (DEQ) maintains a
water quality monitoring station on the Mattaponi River at the Walkerton Bridge, 5 miles upstream of the
proposed intake at Scotland Landing. Recent data from the monitoring station indicates that water quality
in the Mattaponi River is excellent. All surface waters within the Mattaponi River basin have been
designated as "effluent limited" by DEQ and there are currently no designated major municipal or
industrial discharges in the Mattaponi River basin. Current management of the Mattaponi system in a
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
relatively undeveloped state with low consumptive uses has resulted in minimal impacts to both water
quality and quantity.
(a) Minimum Instream Flow Requirements: The Corps of Engineers does not have the
authority to allocate water by regulating the amount of water that can be withdrawn from a water body.
That authority rests with the Commonwealth of Virginia. However, the Corps has the authority to require
the maintenance of sufficient minimum instream flows to insure that impacts to water quality, fisheries,
recreation, and navigation are minimized. (Regulatory Guidance Letter 85-7).
The Code of Virginia, Section 62.1-44.38(b) directs the Virginia State Water Control Board (VSWCB) to
estimate, for each major river and stream, the minimum instream flows necessary during drought
conditions to maintain water quality and avoid permanent damage to aquatic life. In this analysis, it is
important to quantify the beneficial uses within the stream, which need to be protected. A full
understanding of the extent to which the MIF is contravened under natural conditions, and the extent to
which offstream uses may add to these contraventions is necessary for assessment of MIF conditions.
There have been many methods developed to generate instream flow recommendations. These methods
analyze fisheries, recreation, aesthetics, power generation and wastewater assimilation to determine the
amount of water necessary to protect instream resources. The analysis of higher spring or flushing flows
is also necessary in order to assess the impacts to fish migration or the removal of fine sediments from the
stream bottom. Impoundments often provide a dampening effect during extreme flows but also may
eliminate the seasonal high flows necessary for ecosystem maintenance (VSWCB, 1986).
The Tennant (Montana) Method is one of the most frequently utilized instream flow assessments.
According to DEQ, this method was developed based on the analysis of hundreds of flow regimes near
USGS gauges in many states. The recommendations are based on many years of observations regarding
the adequacy of various flow rates to meet the needs of aquatic resources. The VSWCB (1986)
confirmed that much of the early research used to develop the method was conducted on eastern streams
with geomorphological characteristics similar to those found in the Commonwealth of Virginia. The
report also confirms that there is some level of consistency in the relationships between the width, depth
and velocity of discharge of streams in different physiographic provinces.
Advantages of the Tennant Method are that it is quick, inexpensive, and easy to use. It uses an
incremental approach because the relative health of the aquatic habitat can be evaluated for different
flows. It can be extended to ungauged streams by averaging the flow recommendation values for gauged
areas for a specified drainage area. The Tennant Method allows for either annual or seasonal assessment
of stream quality by modifying the analysis to reflect periods vital to the health of aquatic life. The
VSWCB (1986) stated that dividing the year into two 6-month periods corresponding to the wetter or
dryer portion of the year may not be appropriate in Virginia since the critical periods may not correspond
to high flow seasons. The District believes a more accurate use of the Tennant Method would be to
divide the year into periods of critical life history stages to insure that necessary flows are adequate
during these times of the year.
The 80% Exceedence Flow, another MIF methodology, is based on the monthly flow rate which has the
probability of being exceeded 80 percent of the time during the period of record. The 80% Exceedence
Flow can be modified to provide additional protection measures for instream resources and/or future
demand needs for the watershed. The 80% Exceedence Flow also provides additional protection to
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
instream needs as it utilizes median monthly flows as the basis for the MIF conditions rather than the
mean annual flows of the Tennant Method. The fluctuating flows allow for additional MIF values during
critical times of the year (i.e., anadromous fisheries migration or spawning periods, endangered or
threatened species propagation, salinity intrusion periods).
The proposal by the RRWSG is stated in the Final EIS to be high flow skimming in order to avoid
potential impacts when saline water naturally moves farther upstream during dry periods. In a letter dated
5 September 1996, Malcolm Pirnie, Inc. discussed the MIF proposal and concluded that the estimated
tidal flow near Scotland Landing was over an order of magnitude greater than the estimated freshwater
discharge. Thus, the influence of tidal flow at Scotland Landing would dominate hydrology and
overshadow any potential effects of withdrawals on natural streamflow variability.
The FEIS utilized such a Modified 80% Exceedence flow for both the Pamunkey River withdrawal and
the KWR-II reservoir. For the Pamunkey River, this flow was modified to include a minimum flow rate
of 140 mgd which must be maintained when available, an additional 25 mgd for irrigation during the
months of April to September, and an additional 40 mgd for possible future Hanover County withdrawals
(FEIS, 3-10). For the Mattaponi River, the 80% Exceedence flow was modified to set up a minimum
flow threshold of 108.5 mgd (lowest median monthly streamflow value (September) at Scotland Landing)
and reserve an additional 5.5 mgd for the SWCB's projected Year 2030 consumptive uses in the
Mattaponi River Basin (exclusive of potential use by RRWSG jurisdictions) (FEIS 3-11). The FEIS also
states that, "Based on the Mattaponi River Basin streamflow records for the Water Years 1942 through
1987, it is estimated that the assumed Mattaponi River MIF (Modified 80% Exceedence flow) would
allow some withdrawals to occur 69.6 percent of the time." In addition, the FEIS acknowledges that,
"The Modified 80% Monthly Exceedence Flows MIF would better preserve the shape of the Mattaponi
River's natural season hydrograph and establish monthly MIF levels which are higher for each month of
the year."
The RRWSG proposed the use of the 40/20 Tennant MIF at KWR-IV in the FEIS due to the reduction in
the total and available storage of 9.0 and 6.6 billion gallons, to provide for sufficient safe yield, and to
allow more frequent withdrawals from the Mattaponi River. As the District staff could not make any
determination of acceptability of specific permit conditions until the final permit decision, it should be
noted that the District did not approve the use of the 40/20 Tennant method instead of a modified 80%
exceedence MIF as asserted by the RRWSG. The District staff merely stated that the 40/20 Tennant
method might be determined to be sufficient to protect resources in the Mattaponi River after conclusion
of the reviews of impacts to anadromous fish and the sensitive joint-vetch. The FEIS stated that, "The
KWR-IV reservoir configuration, in combination with other practicable project components, would
provide sufficient yield to meet the RRWSG's projected needs if the originally proposed 40/20 Tennant
MIF were retained for the Mattaponi River pumpover. If a more restrictive MIF were imposed, then the
reservoir yield would not be sufficient to meet projected needs of the Lower Peninsula localities and host
communities through the RRWSG's planning horizon." Safe yield is an accepted planning device, but it
does not represent the actual amount of water available to consumers during a severe drought. In
practice, water managers impose emergency restrictions well in advance of the point of lotal depletion to
reduce the risk of failure to the system (FEIS, 3-8). The safe yield is based on the level of acceptable risk
and management's conclusions as to the reliability and resiliency of the system to respond during critical
dry periods.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The calculations performed by the RRWSG utilized a minimum acceptable reservoir dead storage of 33.3
percent of the total storage. A model developed for Newport News Waterworks by Camp Dresser McKee
(CDM) and referenced in the FEIS (3-9) calculated actual dead storage as 11.8 percent of the total storage
capacity, which corresponds to the percentage of total storage within the existing Newport News
Waterworks reservoirs from which water could not be pumped by existing pumping stations. Comparing
the 33.3 percent dead storage level proposed by the RRWSG with the 11.8 percent actual dead storage
calculated by CDM, the RRWSG plans to use only 76 percent of the available water in the reservoir and
to hold 24 percent of the potentially available water in reserve. Therefore, the RRWSG has
underestimated the true safe yield of the system. Furthermore, even if the default value of 25 percent
dead storage is used instead of the CDM figure of 11.8 percent dead storage volume, Newport News
Waterworks' preferred 33.3 percent dead storage still reduces available water by 11 percent. If the
additional 11 percent of the available water is included in the assessment of safe yield for the KWR-IV
reservoir, then the potential difference between the currently proposed 40/20 Tennant MIF and the
Modified 80% Exceedence MIF would be negligible. Thus the RRWSG could provide additional safety
margins within the Mattaponi River with no detrimental impact to the reservoir by utilizing the Modified
80% Exceedence figures.
Newport News claimed that the DEQ permit was unfairly restrictive, reducing by as much as one-third
the amount of water they could withdraw from the Mattaponi River. They stated that DEQ's required
Minimum Instream Flow and other conditions of the permit would provide only 16 mgd safe yield benefit
and would "cripple the project." However, in a report dated 27 October 2000, the City of Newport News
re-calculated the safe yield benefit of the KWR-IV reservoir configuration based on the conditions
contained in the Virginia Water Protection Permit and determined that the reservoir would provide 19 to
21 mgd.
The Institute for Public Representation (IPR), representing the Mattaponi Indian Tribe, commented to the
District that the proposed minimum instream flow presented by the RRWSG would have a negative
impact on the shad population in the Mattaponi River. Since shad are of critical importance to the
Mattaponi Tribe as both a source of food and income as well as a resource of cultural and religious
significance, additional protection measures to minimize any impact to their population dynamics is
something I consider to be warranted. The National Marine Fisheries Service commented that because
anadromous and semi-anadromous fish populations in the Mattaponi, Pamunkey, and Cohoke Creek
drainages are currently low, significant impacts to these species are not tolerable. In his review of
potential effects of the proposed withdrawal on anadromous fish in the Mattaponi River, Dr. Greg
Garman of Aquatic Resources, LLC, consultant to RRWSG, expressed concern that adequate stream
flows and natural hydroperiods be maintained during the summer months to protect the riverine and
riparian habitat for juvenile fish and suggested the maintenance of a more conservative minimum
instream flow (MIF) than the 40/20 Tennant method proposed by the applicant for this critical period.
The Virginia Department of Game and Inland Fisheries also recommended that the RRWSG adopt the
Modified 80% Exceedence flow schedule as well as a time-of-year restriction during construction of the
intake structure in the Mattaponi River from 15 February through 30 June to protect spawning
individuals. ,. .
By letter dated 18 September 1998, the U.S. Fish and Wildlife Service submitted their Biological Opinion
for the King William Reservoir project. As part of the Conservation Recommendations for protection of
the federally listed threatened sensitive joint-vetch, the Service suggested, "The adoption of the minimum
instream flow restrictions on raw water withdrawal from the Mattaponi River... which stipulate a
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Mattaponi River flowby regime (water amount left for instream purposes) of a Modified 80% Exceedence
of each month's flow duration statistics." The Service stated that other flow levels could be investigated
to provide additional water during several winter months. The Service noted that the proposed 40%/20%
minimum flow did not have enough linkage to biological processes or historic flow regimes. In addition,
many parameters beyond salinity levels affect the functioning of a tidal freshwater ecosystem since many
riparian plants are adapted to seasonal timing components of a natural flow regime of flowering, seed
dispersal, germination and seedling growth.
The agreement between the City of Newport News and King William County for the development of the
King William Reservoir requires that the water surface elevation of the reservoir stay at the highest level
practical to accommodate recreational interests. The City agreed to design and construct a boat ramp and
floating pier to insure that recreational access will be maintained provided that the water surface elevation
is within 15 feet of the spillway elevation. There are also monetary penalties involved if the reservoir
surface elevation drops below this elevation for 6 percent of the calendar year. For this reason, the
RRWSG will seek to maximize the withdrawals from the Martaponi River in order to protect the
recreational interests within the reservoir. This higher withdrawal rate may result in increased impacts to
the Martaponi River.
The RRWSG claims that there will be no adverse impacts to anadromous fisheries, wetlands, threatened
species, or water quality as a result of the proposed withdrawal. However, because I believe the potential
exists for impacts to these resources, the District developed monitoring protocols that would be included
as a condition of a permit, if one were to be issued, to provide long-term data gathering and analysis (see
Section 8. k, Monitoring Plan). Conclusive evidence will not be available until the various monitoring
efforts and studies have been completed many years after the project is built.
Therefore, based on recommendations from the U. S. Fish and Wildlife Service for the protection of the
sensitive joint-vetch, the concerns raised by the National Marine Fisheries Service and the Virginia
Department of Game and Inland Fisheries for the protection of anadromous fisheries, the specific
condition requiring this flowby in the Virginia DEQ's VWP permit, the availability of additional water
utilizing the default value of 25 percent dead storage level versus the RRWSG preferred 33.3 percent of
reservoir storage capacity for the KWR-IV reservoir, and the fishery concerns raised by the Mattaponi
Tribe, I have determined that flow-bys based on the Modified 80% Exceedence rules for withdrawals in
the Mattaponi River must be required if a Corps permit were issued. A detailed discussion of Minimum
Instream flow appears in the District's "Analysis of Minimum Instream Flow Requirements for the King
William Reservoir Project."
(b) Salinity of Mattaponi River Water: The proposed pumpover from the Mattaponi River
would reduce the freshwater flow in the river and would shift the freshwater/saltwater interface upstream.
The migration of more saline waters into freshwater zones presents a potential for the loss of tidal
freshwater habitat and changes in wetland plant community composition, with resultant adverse effects on
plant and animal species. These freshwater wetlands serve to protect water quality in the Chesapeake Bay
and provide habitat for rare plant species, migratory waterfowl and anadromous fish. Potential impacts to
the federally listed threatened sensitive joint-vetch and to the river's shad population are of special
concern. Species diversity is also affected by changes in river salinity. Due to salt stress, the number of
species of wetland plants commonly found in marshes decreases as salinity increases. Furthermore,
reduced freshwater flows in the Mattaponi River could reduce kinetic energy and alter suspended
sediment loads and erosion rates. Also, the upstream movement of the freshwater/saltwater interface
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
could move the flocculation point, thereby affecting sediment deposition patterns. As these changes
would affect the substrate available for plants, they would contribute to changes in the composition of
wetland communities and fish and wildlife habitat.
Salinity in the tidal freshwater portion of the Mattaponi River approaches zero but is also influenced by
the rise and fall of the tide, bringing salt water upstream. Salt concentrations in tidal waters vary from
month to month depending on the amount of freshwater input from rainfall and groundwater discharge.
Because salinity has been shown to be a limiting factor in wetland plant distribution within tidal marshes,
an investigation of the possible impacts of the proposed freshwater withdrawal on salinity patterns and
vegetative communities on the Mattaponi River was performed for the RRWSG by the Virginia Institute
of Marine Science (VIMS). The results of the modeling effort are summarized in the 1991 VIMS report
entitled "Tidal Wetlands on the Mattaponi River, Potential Responses of the Vegetative Community to
Increased Salinity as a Result of Freshwater Withdrawal" by Hershner, Booth and Mitchell.
Using the long-term salinity intrusion model developed at VIMS, the applicant's environmental
consultants, Malcolm Pirnie, Inc., simulated a salinity record for the Mattaponi River between 1942 and
1987 using historical and adjusted freshwater inflows. They then simulated a salinity record for the same
time period including the RRWSG's proposed freshwater withdrawal scenario. Then, VIMS compared
the predicted salinity patterns provided by Malcolm Pirnie, Inc. with the existing plant community
distributions from the summer of 1990 and historical vegetation distributions from 1953, 1971, and 1987
aerial photography. Salinity in the tidal freshwater zone ranges from 0.0 to 0.5 parts per thousand (ppt),
while salinity in the oligohaline zone ranges from 0.5 to 5.0 ppt. As plant distribution patterns correspond
to salinity patterns, long-term changes in wetland distributions can be predicted in response to anticipated
salinity changes. Wetland plants which have known associations with long-term salinities in these ranges
were chosen for the VIMS study.
The applicant's simulated salinity record indicated that the proposed withdrawal would result in an
upstream shift in the average salinity levels by about 1 kilometer (0.62 miles) and indicated only minimal
salinity increases between adjacent transects for the RRWSG's proposed withdrawal scenario when
compared with the historical salinity record over the same period. The mean annual salinity levels in the
critical tidal freshwater-oligohaline transition zone were predicted to increase by about 0.1 to 0.2 ppt as a
result of the proposed freshwater withdrawal scenario. The City of Newport News claims that this change
in salinity would be miniscule when compared to natural salinity fluctuations from tides and droughts.
VIMS quoted previous researchers who have reported that natural fluctuations in mean salinities due to
freshwater discharge and groundwater input as well as changes due to freshwater withdrawals have been
known to have a significant long-term impact on wetland vegetation patterns. Although the actual salinity
increase is predicted to be greater downstream, the percentage of change would be more significant
upstream where the existing salinity approaches zero. While these increases might appear small, they will
be sustained for as long as the withdrawal exists and will exacerbate any natural salinity increases during
times of drought and/or during periods when the wind pushes the tidal water farther upstream.
Furthermore, tidal freshwater and oligohaline wetlands are known to be more sensitive to persistent long-
term salinity increases than are the more stable downstream mesohaline (5.0 to 18 ppt) wetland
communities.
The authors of the VIMS report noted that the conclusions of their assessment were limited to the effects
of only the single proposed withdrawal location at Scotland Landing under the modeled RRWSG
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
withdrawal scenario and are not applicable to other withdrawal scenarios. In evaluating a single
withdrawal from one river, the model did not address the dynamic relationship among the Mattaponi,
Pamunkey and York Rivers. Also, the study did not assess the effects of any other withdrawal on the
Mattaponi or Pamunkey River system, the cumulative effects of other consumptive uses, or the additive
effects of any future potential withdrawals with natural, pre-existing salinity fluctuations. The model
looked at the effects of infrequent salinity peaks due to storm events, but did not evaluate the effects of
small, but more consistent daily peaks that may have a more profound adverse effect on plant
communities.
There was significant public criticism regarding the validity of the conclusions of the simplistic, one
dimensional VIMS salinity model because it relies on monthly averages rather than capturing salinity
changes throughout a daily tidal cycle, and does not consider the vertical salinity gradient. Two
substantive critiques of the results were received in response to the FEIS (Dr. Linda M. Huzzey of the
U.S. Coast Guard Academy and Dr. Wu-Seng Lung of the University of Virginia, both on behalf of King
and Queen County). Therefore, with the assistance of EPA, the Norfolk District contracted with the
Corps' Waterways Experiment Station (WES) Coastal and Hydraulic Laboratory in Vicksburg,
Mississippi to review the 1972 VIMS model and the Hershner, et al. report as well as the two critiques.
Because changes in mean salinity levels can have a significant long-term impact on vegetation patterns,
WES believes that it is important to investigate the possible impact of salinity changes over a time scale
of decades. WES concluded that the long-term approach taken by Hershner, et al. to assess the impact of
the freshwater withdrawals on possible long-term vegetation changes was technically sound because
hydrological conditions in the Chesapeake Bay vary both seasonally and on a long-term scale. They cited
a report that showed dry periods dominated from 1951 to 1969 followed by extremely wet years in the
1970's and wide variations over the last 20 years. WES believed that Dr. Huzzey and Dr. Lung made
valid statements in their criticisms, and agreed with many of Dr. Huzzey's concerns about the assumptions
in the VIMS study. However, Dr. Huzzey's suggestion to run a 40-year simulation of a three-dimensional
model on the Pamunkey, Mattaponi and York River systems would be a formidable task that would be
both very expensive and time consuming. Considering the time and funding constraints of the permit
process, WES felt that a three-dimensional model should not be required if it can be shown that salinity
does not vary appreciably over the cross-section. Although the resolution was coarse (vertical 5 feet,
longitudinal 2.5 to 4 km spacing), WES concluded that the VIMS' assumptions of lateral and vertical
homogeneity appear reasonable. WES concluded that although the results from the VIMS one-
dimensional model were averaged over cross-sections and tidal cycles, the model is adequate to address
the impact of the freshwater withdrawals on salinity in the Mattaponi River.
WES recommended some limited three-dimensional modeling to fully justify their belief that the effects
discussed by Dr. Huzzey would indeed be small. WES also recommended a re-run of the one-
dimensional model to include the effects of anticipated known withdrawals from both the Pamunkey and
the Mattaponi Rivers to assess the cumulative impacts of consumptive withdrawals to the York River.
The applicant's environmental consultant, Malcolm Pirnie, Inc. performed the recommended analysis and
concluded that the overall mean salinity level would increase by no more than 0.01 ppt from the previous
Mattaponi River withdrawal scenario, overall mean and maximum salinity levels increases would be one
percent or less, and the predicted mean salinity levels would be less than the historical mean salinity
levels at adjacent downstream transects. From these results, Malcolm Pimie, Inc. determined that the
conclusions from the 1991 Hershner et al. study should apply to the Mattaponi River when projected
Pamunkey River withdrawals are included in the analysis.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
WES clarified that since a numerical model is an abstraction and only an attempt to represent nature,
certain natural processes can be reproduced, while others cannot. Therefore, the modeler must select a
model that will be adequate for the needs of a study, and must determine which processes are important,
then make sure those processes are correctly simulated. WES stressed that predictions should not be made
beyond the range of conditions for which the model was calibrated. Although WES found both the VIMS
model and methodology to be appropriate, it should be noted that WES did not independently validate, or
even comment on, the conclusions drawn by the RRWSG in interpreting the results of the VIMS model.
Based on the RRWSG's simulated salinity records, the VIMS report anticipated little or no upriver shifts
in the distribution of existing wetland vegetation as a result of the predicted upstream salinity shift. The
model predicted that the proposed withdrawal of freshwater also would not significantly increase the total
number of days or percentage of days in which seasonal mean salinities exceeded the long-term salinity
tolerances of the wetland plant community types studied. From the VIMS report, the RRWSG has
concluded that freshwater withdrawals from the Mattaponi River would be immeasurable and
inconsequential, and would not result in any impacts to fish and wildlife resources including tidal
freshwater invertebrates, anadromous fish and the sensitive joint-vetch. They have made a similar claim
concerning the Pamunkey River and its resources. It should be noted that the VIMS report addressed only
the predicted spatial distribution of existing wetlands, and did not evaluate the effects of the upstream
salinity shift on any fish and wildlife resources or endangered and threatened plant or animal species.
Therefore, the RRWSG's extrapolation of the VIMS finding to these resources is unsupported.
The U. S. Fish and Wildlife Service commented that the Mattaponi and Pamunkey Rivers possess
outstanding resource values which are at risk from salinity intrusion. The Service also cautioned that
while accurate, the RRWSG's statement that "Natural Mattaponi River salinity fluctuations greatly
exceed any salinity changes that were predicted due to withdrawals" should not be misinterpreted to mean
that as long as changes stay within the range of natural variation, salinity changes are not detrimental.
Both the Fish and Wildlife Service and the Virginia Department of Conservation and Recreation
commented that some organisms and life stages have a much lower threshold for negative effects from
chronic exposure to increased salinity or higher frequency of occurrence. During certain life stages, some
species may be harmed by acute salinity impacts that would occur during maximum pumping events. The
Service commented "The use of 'average pumping rate' obscures the model's ability to detect detrimental
salinity changes on benthos and aquatic animal species because significant departures from baseline may
be found when pumping occurs at maximum rates." Organisms in the low-salinity upper estuary may be
particularly at risk for impact from very slight changes in water chemistry as some of these freshwater
and estuarine species may already be at the edge of their physiological tolerance. Even a change in
salinity as slight as 0.1 ppt could cause a significant decrease in growth and reproduction for these
organisms. Also, a variety of plant metabolic processes, including germination, nutrient uptake,
productivity, seed production, and community establishment are known to be affected by salinity.
Salinity is an important growth-limiting factor in wetland species and the effects of salinity on function
and anatomy may vary during various plant developmental stages.
The Virginia Department of Conservation and Recreation further commented that salinity alone is not an
adequate variable for predicting all effects of the withdrawal of freshwater on plants and animals.
Freshwater withdrawal may result in changes to water chemistry, including concentrations of macro-and
micro-nutrients such as nitrogen, phosphorus, potassium, iron, cobalt and dissolved organic carbon as
well as major inorganic elements such as chloride, sodium, magnesium, sulfate, calcium, and bicarbonate.
The U. S. Fish and Wildlife Service commented that the VIMS study does not answer all questions on the
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
potential salinity intrusion impacts on aquatic plants and organisms from project withdrawals and other
cumulative withdrawals in the York River system. In their 28 March 1996 comments on the Supplement
to the Draft EIS, the Service stated "The Service has serious concerns with the accuracy and validity of
the conclusions drawn from the applicant's salinity modeling efforts." and "The numerous errors and
omissions in the salinity modeling presented in the DEIS/SEIS do not allow conclusions to be drawn
about the impacts of salinity intrusion on the Federally threatened sensitive joint-vetch or other fish and
wildlife resources." The Fish and Wildlife Service further stated that "Encroachment of higher salinities
would affect large portions of the Mattaponi and Pamunkey Rivers and detrimentally impact fish and
wildlife resources and their habitats as freshwater tidal zones are reduced. The concept that marsh
communities and fish spawning habitats could readily migrate upstream with salinity changes is likely
false due to a variety of unsuitable habitat features or barriers."
(2) Pamunkey River Water: Although the freshwater flow on the Pamunkey River itself may
not change appreciably from the reduction of freshwater input from Cohoke Creek, salinity changes at the
confluence of the Mattaponi and Pamunkey Rivers could affect the location of the freshwater/saltwater
interface in the Pamunkey River as well. This change has the potential to result in adverse effects on
plant and animal species in the Pamunkey River, but to a lesser degree than those expected in the
Mattaponi River. As in the Mattaponi River, of particular concern are potential effects to anadromous
fish spawning and reproduction and rare plant species such as the sensitive joint-vetch.
(3) Cohoke Creek: Roughly half of the total 17 square mile drainage area (8.9 square miles)
would be affected by the impoundment and the flow pattern of Cohoke Creek would be significantly and
permanently altered. The impoundment would inundate approximately 21 miles of free-flowing streams
(9 miles perennial, 12 miles intermittent) and reduce the average flows to the Pamunkey River by up to 5
mgd. The net reduction in freshwater discharge below the dam would restrict stream flows to about one
third of the existing average flow and would result in adverse impacts to the wetland vegetation and the
fish and wildlife that Cohoke Creek and Cohoke Millpond support. The RRWSG claims that flow rates
downstream of the dam would not change appreciably because their release schedule would attempt to
mimic natural downstream flow in Cohoke Creek. Nevertheless, I believe the presence of a new large
impoundment would permanently alter the existing flow regime and associated processes of sediment
transport, channel-forming and channel-maintaining flooding events and the timing and magnitude of
flood flows.
In addition to short-term water quality impacts from increased turbidity associated with land clearing and
dam construction, long-term water quality characteristics of Cohoke Creek downstream of the proposed
dam are expected to be adversely impacted by the average two-thirds reduction in flow volume from the
impoundment. Long-term water quality changes are expected from filling the impounded area with
Mattaponi River water. The vast open water expanse of the proposed reservoir is estimated to result in a
minor increase in atmospheric deposition of nitrogen and phosphorus to the aquatic environment. As the
majority of the water in the reservoir would be pumped from the Mattaponi River, elevaled nutrient
concentrations in the reservoir are expected; however, how that change would affect nutrient loading to
Cohoke Creek cannot be determined. Since the applicant proposes to avoid Mattaponi River withdrawals
when salinity levels are elevated at the intake, significant changes in chloride levels in the reservoir would
not be expected.
Also, stratification of the reservoir water, especially in summer months, could lead to anoxic conditions
and low temperatures at the bottom of the reservoir. Downstream water quality problems and associated
49
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
fish kills could result from the release of water from the lower levels. Therefore, it is unlikely that water
quality in Cohoke Creek and the York River Basin would improve as a result of this project as claimed by
the RRWSG. The Virginia Department of Game and Inland Fisheries recommended that downstream
releases from June to October should contain at least 75% epilimnetic water to prevent temperature shock
to stream fish during the summer and to prevent excessive discharges of anoxic hypolimnetic water that
could stress or kill fish in Cohoke Creek. They also recommended a monitoring program to document
shifts in water temperature and dissolved oxygen below the dam.
The RRWSG proposes a multilevel release of water from the proposed KWR-IV dam at elevations to
protect downstream water quality. A condition of the DEQ VWPP requires that the RRWSG prepare an
operations and maintenance manual for DEQ approval that would specify the procedures, measurements
and calculations that would be performed to ensure that the release of water from the dam to Cohoke
Creek would not cause the violation of water quality standards for dissolved oxygen, temperature or pH.
The District has not seen this manual. Although this condition would aid in the protection of water
quality, the District and the advisory agencies continue to emphasize that the volume of water released to
the downstream system is vital to maintenance of the wetland system located downstream of the proposed
King William Reservoir.
(a) Downstream Releases: Concern for maintaining the existing hydrologic regime for
downstream wetlands has been raised by the District and the advisory agencies. In their 25 July 1997
letter, the U.S. Fish and Wildlife Service expressed concern that all or a portion of the wetlands
downstream of the KWR-IV dam would be impacted by inappropriate flow regime for reservoir releases.
In a letter dated 22 July 1999, the Service indicated that they were still concerned the RRWSG's plan for
downstream releases did not avoid impacts to the functioning of downstream wetlands. In a report
entitled "Evaluation of Potential Downstream Effects from King William Reservoir", the applicant
described a modified schedule for downstream releases which they contend would mimic the natural
downstream flows in Cohoke Creek and would afford a high degree of protection for the downstream
ecosystem. The RRWSG's modified downstream release proposal is to release an average of 2.5 mgd
during normal higher reservoir pool condition and a 1.5 mgd average annual release would be used when
the King William Reservoir storage declines to less than 80 percent (which equates to a reservoir pool
elevation of approximately 92 feet at mean sea level). These releases would be equal to about one third of
the existing estimated 6.2 mgd average flow at the dam site. The proposed downstream release would
represent only about one-third of the existing stream flow at the dam location.
The Virginia Department of Game and Inland Fisheries commented that research has shown that a
reduction in stream flow of this magnitude would not be adequate to protect the fish populations or
adjacent wetlands. Therefore, they recommended that the discharge flows be revised to maintain median
monthly flows in Cohoke Creek. The U.S. Fish and Wildlife Service also expressed concern that the
proposed release would be inadequate and recommended a more variable year-round release which
mimics the natural variation in the hydrograph. The Cohoke Club's recreational fishing for bass, crappie,
brim, catfish and perch in the Cohoke Millpond could be adversely impacted by changes in water quality
and decreased freshwater input into the millpond. The reduced freshwater flow from Cohoke Creek into
the Pamunkey River coupled with the reduced freshwater flow from the Mattaponi River could change
the salinity at the confluence of the two rivers and affect the location of the freshwater/saltwater interface
in the Pamunkey River as well.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(b) Assessment of Proposed Cohoke Creek Flow-By Requirements: Regardless of the release
schedule implemented for the King William Reservoir, the mere fact that a dam would be placed across
Cohoke Creek assures that the existing flow regime and associated processes would be permanently
altered. The Corps public interest review requires that impacts to recreation, navigation, water quality and
fisheries are minimized through the maintenance of minimum stream flows. The following is the
District's evaluation of the flow-by requirements for protection of these resources in Cohoke Creek below
the proposed KWR-IV dam.
In a 1995 paper entitled "Downstream Ecological Effects of Dams", Ligon, Dietrich, and Trush stated that
by changing the flow of water, sediment, nutrients, energy and biota, dams interrupt and alter most of a
river's important ecological processes. They suggest that geomorphological changes are the key to
understanding the long-term ecological consequences of dams and other stream disturbances. In order to
fully understand the geomorphology of the pre and post- dam ecosystem, they recommended that
researchers characterize and quantitatively describe both the channel and the watershed, monitor the water
and sediment discharges, develop pre-and post dam sediment budgets and hydrology figures, model the
effects of the dam on downstream bed elevation and grain size, and attempt to predict the channel
responses to the dam using both theoretical and empirical models. In their paper "Landscape Scale
Influences on Stream Habitats and Biota", Richards, Johnson, and Host (1996) concur, stating that the
biotic composition of streams is strongly influenced by physical habitat. Once these changes have been
characterized, the next important step is mitigating the unavoidable impacts.
In the 1996 paper entitled "Assessing the Ecological Effects of Habitat Change: Moving Beyond
Productive Capacity", Jones, et al. identified a set of four objectives which review the ecological effects
of habitat changes. These factors include the maintenance or optimization of fishery resources, the
protection and conservation of healthy ecosystems from the effects of human activities, the preservation
of pristine or undisturbed natural systems, and the restoration of degraded ecosystems to a healthier state.
Each of these factors must be taken into consideration in the design of downstream releases for the King
William Reservoir.
White developed a spreadsheet database from an indexed bibliography on stream habitat improvement to
identify the frequency of occurrence of subjects related to stream habitat management in his 1996 paper
entitled "Growth and Development of North American Stream Habitat Management for Fish." He
identified several major categories which need to be considered in protecting or restoring stream habitat.
These categories include stream habitat components (i.e., riparian vegetation, streamflow discharge,
channel morphology, aquatic vegetation), stream fauna (invertebrates, fish, beaver, other vertebrates),
human activities (sediment runoff/deposition, timber harvest, damming/impoundment), habitat
management (streambank stabilization, in-channel structures, vegetation management), habitat
assessment (biological survey, in-stream flow needs studies), biological aspects (fish ecology and
behavior, habitat quality, riparian ecosystems), physical aspects (hydrologic changes), and other human
aspects (land use, recreation, political, aesthetic, and legal). He concludes that consideration of
management for ecosystems will permit management of human affairs while allowing these ecological
systems to function at their highest level.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The Virginia Department of Environmental Quality, in their Virginia Water Protection Permit dated 22
December 1997, required the following minimum release:
"The permittee shall maintain a minimum release below the dam at Cohoke Creek equal to the
median monthly flow of Cohoke Creek at the dam site. The median monthly flows for Cohoke
Creek at the dam site shall be calculated as a part of the development of the operations and
maintenance manual required for DEQ approval by Special Condition B.7 of the permit. This
minimum flowby shall be maintained during filling of the reservoir as well as after the dam is
completed and the reservoir is filled,"
This condition was implemented based on the recommendations of the Virginia Department of Game and
Inland Fisheries for protection of the downstream habitat resources. The RRWSG objected to this
proposal because they felt that it would reduce the safe yield of the reservoir by 3.8 mgd. The Norfolk
District, in the evaluation of the project, reviewed the DEQ permit and the following specific details in
order to assess the specific requirements that would need to be incorporated into the downstream releases.
It should be noted that the RRWSG must comply with the most restrictive conditions of any permit.
The initial flow-by for the KWR-IV location identified in the FEIS (pages 5-17) was 2 mgd during the
high flow periods and 1 mgd during the low flow periods. The average stream flow identified in the FEIS
(pages 4-19) was 6.2 mgd for the KWR-IV configuration. The FEIS (pages 3-15) also identified the
reservoir seepage losses from the King William reservoir to be 2 mgd. Several concerns regarding this
flow-by requirement were raised by the federal and state advisory agencies. In March 1998, a revised
proposal was submitted to the Norfolk District by the City of Newport News (dated 19 January 1998).
This revised proposal slightly modified the releases identified in the Final EIS by adding a 0.5 mgd flow,
which is attributed to seepage from the dam, to both the higher and lower storage flow-by levels (2.5 mgd
during high flow and 1.5 mgd during low flow). This seepage rate conflicts with the 2 mgd figure
identified in the FEIS. The FEIS reported an estimated existing 6.2 mgd average stream flow at the dam
site. However, in the revised RRWSG document, the average flow at KWR-IV was reduced to 5.7 mgd.
There is no documentation of the 0.5 mgd difference between the FEIS and the revised plan. The revised
proposal seems to put the releases in a more favorable light, as the higher pool conditions would result in
an effective release of 44 percent of existing average flows and the lower pool conditions an effective
release of 26 percent. Utilizing the 6.2 mgd average stream flow as identified in the FEIS, the higher pool
conditions result in a 40.3 percent effective release and during the lower pool conditions an effective
release of 24.2 percent. In addition, the seepage figure identified in the revised flow-by proposal (0.5
mgd) conflicts with the figure identified in the FEIS (2 mgd). If the higher seepage rate is correct, the
necessary release proposed by RRWSG would be only 0.5 mgd.
The City of Newport News supported their position by utilizing the Tennant Method classification system
as outlined in the Tables 4 and 5 below.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Table 4 - RRWSG's Proposed King William Reservoir Release Schedule
Normal Reservoir Pool Conditions (When Available KWR-IV >=80%)
Month Controlled
Release
(mgd)
January 2.4
February 2.8
March 3.0
April 3.0
May 2.3
June 1.5
July 1.5
August 1.3
September 1.2
October 1.3
November 1 .4
December 2.4
Month Controlled
Release
(mgd)
January 1 .2
February 1 .4
March 1.5
April 1 .5
May 1.2
June 0.7
July 0.7
August 0.6
September 0.6
October 0.7
November 0.7
December 1 .2
Dam
Seepage
(mgd)
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
Table 5 -
(When
Dam
Seepage
(mgd)
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
0.5
Effective Release
mgd % of mean
Flow
2.9 51
3.3 58
3.5 61
3.5 61
2.8 49
2.0 35
2.0 35
1.8 32
1.7 30
1.8 32
1.9 33
2.9 51
Drawdown Reservoir
Tennant Classification
Low Flow High Flow
Months Months
Excellent+
Outstanding- A i
Outstanding+ J
Outstanding+ f
Excellent- *
xcel to Outstand
xcel to Outstand
Excellent+
Excellent
Excellent+
xcell to Outstand
Excellent+
Pool Conditions
Available KWR-IV Volume < 80%)
Effective Release
mgd % of mean
Flow
1.7 30
1.9 33
2.0 35
2.0 35
1.7 30
1.2 21
1.2 21
1.1 19
1.1 19
1.2 21
1.2 21
1.7 30
Tennant Classification
Low Flow High Flow
Months Months
Fair
Fair-Good
Fair-Good
Fair-Good
Fair
Good-f-
Good+
Good-
Good-
Good +
Good +
Fair
53
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Unfortunately, the KRWSG's interpretation of the percent flows from the Cohoke Creek release do not
correspond to the flow regimes outlined by Tennant and the rationale for the use of above 80 percent and
below 80 percent of the volume of the reservoir has not been fully explained. The District is reluctant to
base downstream releases on the amount of water in the reservoir but would rather relate downstream
releases to the actual flow regime of Cohoke Creek or its surrogate.
Table 6 - Instream Flow Regimes for Fish, Wildlife, Recreation, and Related Environmental
Resources based on Tennant (1975)
Recommended Base Flow Regimens % of Mean Annual Flow (MAF)
Narrative Description of
Flows
Flushing Flow
Optimum Range
Outstanding
Excellent
Good
Fair
Poor to Minimum
Severe Degradation
October - March
200%
60-100%
40%
30%
20%
10%
10%
0-10%
April - September
200%
60-100%
60%
50%
40%
30%
10%
0-10%
The City of Newport News identified low flow months from June to November and high flow months
from December to May while Tennant utilizes April to September and October to March as its basis of
evaluation. The Virginia State Water Control Board (VSWCB) Minimum In Stream Flow Study (1986)
recognized the Tennant Method as a viable tool in the development of flow assessments for aquatic
habitat. This study, however, cautions that although the Tennant Method is not a true desktop method, it
is frequently used with no additional field assessment. Table 2-2 of the report is shown above which
specifically outlines the base flow regimes of the Tennant Method. VSWCB (1986) further states that
much of the early research used to develop the method was conducted on eastern streams and that rivers
flowing in physiographic provinces with characteristics similar to Virginia were included in the
information base on which the method was founded. The VSWCB Minimum Instream Flow Study
acknowledged that it would be appropriate to specifically match flow recommendations to the critical
periods in the life history of fishes present in the stream and cautioned against merely dividing the year
into two 6 month periods that correspond to the wetter and dryer halves of the year because the critical
biological periods do not necessarily coincide with the high or low flow periods in the Commonwealth of
Virginia.
Specific concern was raised by the federal and state agencies over the blueback herring migration patterns
in Cohoke Creek. The VSWCB report outlines the period of April to May for adult upstream migration,
May to June for adult downstream migration, and June to October for juvenile downstream migration.
For the non-tidal areas above the millpond dam, the species identified include bluegill, largemouth bass,
shiner, and dace (FEIS, Table 4-45B). The VSWCB study identifies the spawning periods of the species
as follows:
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Species
Spawning Period
Bluegill
Largemouth Bass
Shiner
Blacknose Dace
May-August
April-June
May-July
May-June
In order to assess the fishery-related needs of the Cohoke Creek basin, it would be most appropriate to
utilize a flow period of April to October and November to March as the basis of a Tennant Methodology
review. Under this scenario, the proposed releases by the RRWSG would result in a classification of
Excellent to Outstanding from November to March and Fair to Outstanding from April to October under
the 80 percent reservoir volume. Under the less than 80 percent reservoir volume, the classification
changes result in a good to excellent rating from November to March and a Poor to Minimal ranking for
most of the April to October period. I have determined that this period is critical for anadromous fisheries
below the Cohoke Millpond dam; therefore, consideration of higher flows must be undertaken.
Table 7 - Modified Tennant Rating for Proposed Cohoke Creek releases utilizing the District's
Revised Flow Regime, RRWSG Data and Tennant Ratings
Tennant Rating
Tennant Rating
Month
January
February
March
April
May
June
July
August
September
October
November
December
% of mean
flow at
>/= 80%
Volume
51
58
61
61
49
35
35
32
30
32
33
51
High Flow
Month
Outstand.
Outstand.
Optimal
Excellent
Outstand.
Low Flow
Month
Outstand.
Good
Fair
Fair
Fair
Fair
Fair
% of Mean
flow at
< 80%
Volume
30
33
35
35
30
21
21
19
19
21
21
30
High Flow
Month
Excellent
Excellent
Excellent
Good
Excellent
Low Flow
Month
Fair
Fair
Poor/
Minimal
Poor/
Minimal
Poor/
Minimal
Poor/
Minimal
Poor/
Minimal
55
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Concern has also been raised regarding the lower flow levels to the existing Cohoke Millpond. The
proposed King William Reservoir dam would affect roughly half of the Cohoke Creek watershed and
would reduce the volume of water entering the Millpond by approximately two thirds using the
RRWSG's proposed flowby. This in turn would reduce the flow over the spillway from approximately
3,500 gallons of water per minute to approximately 1,200 gallons per minute under normal conditions.
This raises additional concern over potential salinity changes in the Pamunkey River due to this reduction
in freshwater input to the tidal portion of Cohoke Creek.
As there was no gauge in place on Cohoke Creek at that time, DEQ recommended that the RRWSG
utilize a surrogate gauge in order to mimic the conditions at Cohoke Creek. During a meeting with DEQ,
the RRWSG was given an option of three potential surrogate gauges including Totopotomy Creek, Cat
Point Creek, and Piscataway Creek. Totopotomy Creek has the lowest mean annual flow per square mile
of drainage which would tend to show any potential downstream releases in the most favorable light,
reflect a higher percentage of the mean annual flow, and rate higher on the Tennant Method scale. The
use of Totopotomy Creek may, therefore, not be the appropriate surrogate to measure downstream
impacts at Cohoke Creek.
The Virginia Department of Environmental Quality review of the RRWSG's revised flow-by plan
identified many of these discrepancies. Their 14 April 1998 letter discussed the misinterpretation of the
Tennant figures which results in a lower rating than specified by Newport News in their January 1998
revised flow-by proposal. DEQ assumed that the applicant would do everything possible to eliminate
seepage, and then in the interest of dam safety, install a toe drain to collect whatever water did get
through the dam. DEQ recommended that the Norfolk District consider requiring a specified flow in
Cohoke Creek immediately below the dam. This would take seepage into account and also require
releases to accurately reflect the pre-construction flow regime. The conclusion of DEQ was that requiring
higher downstream releases would be appropriate in order to minimize downstream impacts, protect
existing in-stream uses, and comply with State Water Control Law.
The federal advisory agencies also expressed concerns regarding the acceptable minimum flow-by
requirements for Cohoke Creek. In a 14 April 1997 letter to DEQ, the U.S. Fish and Wildlife Service
expressed concern over the quality and quantity of water released into the downstream Cohoke Millpond.
They recommended a more variable year round release which mimics the natural variation in the
hydrograph (flood flows, normal high flows, low flows) in order to protect over 100 acres of wetlands
below the dam that would be affected by alteration of quantity, duration, and seasonality of the flows.
This position was echoed in the Service's letter to the Norfolk District, dated 25 July 1997. The Service
recommended that if the applicant intended to replicate natural variability, that they examine monthly
flow durations and the seasonality, duration, and magnitude of annual and infrequent pulses.
In a letter to the District dated 18 July 1997, the Virginia Department of Conservation and Recreation
(OCR) also questioned the proposed KWR-IV dam release scenario as it would not mimic the natural
Cohoke Creek streamflows due to the limited amount of water which would be released from the
reservoir. They recommended that the project mimic the pre-project flows since the wetlands
downstream of the dam and the fisheries would likely be affected by any changes in the hydrologic cycle.
DCR recommended that Cohoke Creek be monitored and that any releases from the reservoir follow the
natural hydrograph established through the sampling protocols.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
A meeting of the federal and state advisory agencies and representatives of the RRWSG was held on 1
October 1998. This meeting was scheduled to discuss the differences between the current RRWSG
proposal and the natural flow release requested by the federal agencies. VDGIF discussed the rationale
for the median monthly flow condition incorporated into the DEQ permit in order to balance the in-stream
and off-stream uses. Consideration was given to habitat, assimilation capacity, and navigation issues
related to the stream. The flow requirements necessary for sustaining aquatic life depend on both the size
of the stream and the depth. The larger the stream, the lower the percentage of the average annual flow
there is needed to sustain aquatic life. The 20 percent mean annual flow was initially considered but
determined by DGIF to be unrealistic based on the downstream characteristics. The RRWSG produced a
revised proposal which took into account an additional 0.5 MOD seepage loss from the dam to
supplement flows to Cohoke Creek. The U. S. Fish and Wildlife Service reiterated their concerns and
again recommended a natural flow scheme where inflow equals outflow, subject to a range of acceptable
variation in order to capture both the low flow and high flow events within the waterway. This would
allow RRWSG to maintain the hydrology of the beaver dams and protect the wetlands downstream of the
proposed dam site. A suggestion was made to place a gauge in Cohoke Creek immedialely so that data
could be collected to refine the flows.
By letter dated 30 March 1999, the RRWSG presented a revised downstream release flow proposal. The
revised plan would provide the estimated flow at dam site KWR-IV if the reservoir were not present or
the estimated median monthly flow required by the DEQ permit if the estimated natural flow were greater
than the median monthly flow. Although this proposal would more closely mimic the stream under low
flow conditions, it does not allow for the short-term, high flow conditions represented by a rainfall or
runoff event. I believe this high flow period contributes to maintaining the downstream aquatic resources.
A meeting of the federal and state advisory agencies was held on 15 May 1999 to discuss the flow-by
alternatives presented by the RRWSG. The group reached consensus that the latest proposal by the
RRWSG would not be acceptable as it would continue to discount high flow events which may be critical
to sustaining downstream aquatic resources. The group also questioned the varying seepage figures
presented by the RRWSG and determined that any solution would need a refined figure on seepage from
the dam and options available to the RRWSG to control such water loss. The group also felt that a time
series analysis would need to be performed to determine when the 80 percent water level in the reservoir
would be contravened. The median monthly flows were determined to be less reliable because they
masked the high and low flow conditions which may be critical to the downstream resources. Several
suggestions were made on methods to protect the high flow events including peak flows to flush the
waterway and mimic natural high flow events and the utilization of Totopotomy Creek flows associated
with precipitation data in the vicinity of the reservoir.
The RRWSG proposal focuses on the protection of downstream fisheries. In utilizing the modified
Tennant Method, the RRWSG assumes that fisheries resources take precedence over other stream
resources. As stated in comments by both the U.S. Fish and Wildlife Service and the U.S. Environmental
Protection Agency, there are significant wetland resources downstream of the proposed KWR-IV dam
site. The aquatic resources below the proposed dam are driven by supporting hydrology from the
millpond, beaver activity and the remainder of the watershed. I believe that mimicking the natural flow
regime is an important consideration in determining the flow-by requirements to sustain these areas.
To provide a methodology for mimicking the natural flow regime that could be incorporated into the
design plan, there must be an acceptable range that could be met by the RRWSG. The group determined
57
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
that a 10 percent variation would be appropriate. The group also determined that the measurement time
must be small enough to capture the flow differences, yet long enough to be practical. Since the effort is
based on a need for the high flows, a 3-day running average was suggested which would capture the high
flows and would not mask these flows to a great extent. The daily range would be within 15 percent of
this average while the monthly average would be within 10 percent of the established flow. In addition,
the group determined that the high flow matches would be waived should the RRWSG implement a
mandatory water restriction for their customers. The longer monitoring can be performed in Cohoke
Creek, the easier it will be to establish a unit hydrograph for the watershed. The use of Totopotomy
Creek as a surrogate was discussed by the group. Since Totopotomy Creek represents a much higher
drainage basin, the group concurred that it would be preferable to establish an adjacent watershed as the
surrogate. It would be much more likely that events in an adjacent watershed would more closely mirror
conditions in Cohoke Creek. Through the establishment of baseline conditions for both rainfall and
runoff in both waterways, it would be appropriate to develop a hydrograph that would reflect natural
conditions prior to dam construction.
The RRWSG supplied their analysis of the proposed discharges with respect to Section 404 (b)(l) of the
Clean Water Act in November 2000. In their analysis, they state that the conditions imposed by the
Virginia Water Protection Permit are equal to the median monthly flows of Cohoke Creek at the dam site
along with the hydrologic influence of the reservoir and would effectively eliminate any potential
dewatering of the downstream wetlands. The revised RRWSG plan discussed above would provide a
more natural flow regime; however it still neglects to take into account the high and low flow regimes that
both the Virginia Department of Game and Inland Fisheries and the U.S. Fish and Wildlife Service have
identified as being critical to the ecological health of the downstream resources. The RRWSG also
proposes to incorporate a multilevel release to protect downstream water quality. Although this condition
would aid in the protection of water quality, the District and the advisory agencies continue to emphasize
that the volume of water released to the downstream system is vital to maintenance of the wetland
ecosystem downstream of the King William reservoir. Ideally, the downstream releases would mimic
natural conditions. The most recent proposal by the RRWSG continues to emphasize a set flow rather
than the fluctuating flows requested by the District and other federal and state advisory agencies.
In conclusion, I recommend that downstream releases be based on the natural flow regime of Cohoke
Creek. The District staff has determined that the information collected at the Cohoke Creek gauge
currently being monitored by the RRWSG and the collection of rainfall data in the vicinity of the
proposed reservoir would be required in order to establish the downstream releases. The District could
then develop a unit hydrograph which is based on precipitation that falls on the basin and then establish a
simple model to determine stormflow hydrographs. This data would also aid the District in a final
determination of the adequacy of utilizing Totopotomy Creek as a surrogate for flows in Cohoke Creek.
It would also allow the District and the Virginia Department of Environmental Quality to develop a flow
regime which would approach the natural variation currently found in Cohoke Creek while minimizing
the impact to the reservoir. The methodology would include a 3-day running average to capture the high
flows, a daily range within 15 percent of this average and a monthly average within 10 percent of the
established flow criteria. The high flow matches would be waived should the RRWSG implement a
mandatory water restriction for their customers. (For a detailed discussion of this issue, see the District's
"Assessment of Proposed Cohoke Creek Flow-by Requirements for the King William Reservoir
Project.")
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(4) King William Reservoir Watershed: In December 1996, a citizen group opposing the
reservoir project reported to EPA that before it was closed in April 1995, the 85-acre King William
Landfill (#505) had received several loads of pulp waste from the Chesapeake Corporation paper
processing plant. Landfill #505 is located within the watershed of the proposed King William Reservoir
at the intersection of Route 30 and Route 640 in King William County. Because bleached pulp waste is
known to contain dioxin, EPA's Region III Emergency Response Center performed sampling to
determine if any imminent and substantial threat to public health, welfare or the environment existed from
potential dioxin contamination at landfill #505 and to determine if a removal action was necessary. EPA
collected and tested a total of six water samples from monitoring wells and leachate tanks on 24 January
1997.
A monitoring well system is located around the perimeter of the landfill and routine sampling has
demonstrated compliance with the landfill permit and all Virginia Solid Waste Management regulations.
Also, EPA was informed that all wastes deposited in landfill #505 by the Chesapeake Corporation met the
criteria of an approved non-hazardous waste and that all bleached paper products generated within the
pulp and paper operation are recycled back into the pulp and would not have been included in the material
deposited at the King William landfill.
Although the most toxic 2,3,7,8-tetra chlorinated dibenzo-p-dioxin (2378-TCDD) was not detected, 4 of
the 6 locations showed parts per quadrillion levels of octachlorinated dibenzo-p-dioxin (OCDD), the least
toxic isomer of dioxin. EPA determined that the concentrations found do not require a removal action
and the risk associated with the current levels of OCDD do not approach any levels of concern for
drinking water from the King William Reservoir, should it be built.
Despite EPA's determination that landfill #505 poses no concern for dioxin, on 20 June 1997 the Institute
for Public Representation, on behalf of the Mattaponi Tribe, requested that EPA investigate more fully the
potential impact of dioxin hazards on the King William Reservoir project and the Mattaponi Tribe. In
response to this request, EPA Region Ill's Resource Conservation and Recovery Act program sampled all
of the wells in the groundwater monitoring network around landfill #505 on 24 and 25 February 1998.
The results of the sampling confirmed the earlier conclusion that dioxin is not a problem at the landfill or
for the proposed King William Reservoir.
The final landfill cap is expected to limit surface water infiltration and minimize leachate generation.
Since the groundwater table aquifer is thought to flow in a southwesterly direction toward Cohoke Creek,
any leachate leaving the landfill should flow towards the reservoir. State regulations require water quality
monitoring both during operation and after closure of landfills. Should it become necessary, the RRWSG
has proposed a number of corrective actions to prevent any leachate-contaminated groundwater from
reaching the reservoir. Among these methods are: the construction of a slurry wall, groundwater
interceptor ditches and buried drains, groundwater recovery wells and rerouting of surface drainage away
from the reservoir, and full removal of the disposed materials.
In January 1999, as a part of the evaluation of potential dioxin contamination, EPA contracted with the
Corps of Engineers Philadelphia District to develop a 2-dimensional groundwater model to assess the
potential effects of the construction of the proposed reservoir on groundwater flow near the landfill. The
hydraulic divide was previously assumed to be coincident with Route 30. However, based on a review of
historical water level data for that landfill, the modeling results show that due to the flat topography in the
area, the hydraulic divide may currently move back and forth beneath the landfill with seasonal variations
59
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
in precipitation and recharge. In the model, the presence of the proposed reservoir could move the
hydraulic divide westward by as much as 200 feet.
Therefore, it is anticipated that there may be an alteration of the existing groundwater flow patterns (along
with an increase in lateral seepage out of the reservoir) due to the rise in water table elevation in the
Cohoke Creek watershed as a result of the proposed reservoir. Groundwater recharge is expected to
increase in the vicinity of the reservoir. However, based on their sampling, EPA has determined that
dioxin does not pose a problem to groundwater quality surrounding the landfill or to water quality within
the King William Reservoir, should it be built.
In their 25 July 1997 letter, EPA recommended that the Corps require groundwater quality monitoring
and mitigation, specifically for dioxin, to ensure that the landfill does not impact the water quality of the
reservoir or endanger groundwater wells in the area. DEQ has since determined that the current landfill
monitoring system is adequate as it has both upslope and downslope wells that monitor groundwater
quality surrounding the landfill. Based on DEQ's findings, EPA no longer recommends that the District
require additional monitoring wells.
f. Fish and Wildlife Resources:
(1) Habitat Description:
(a) Cohoke Creek System: Cohoke Creek is a low-gradient stream system that lies in a deeply
incised valley between the Mattaponi and Pamunkey Rivers. The Cohoke Creek watershed includes a
diverse wetland complex, mature and immature forests, free-flowing streams and beaver ponds. The
1,526 acres of wetland and upland system that would be impacted by the King William Reservoir (KWR-
IV) consists of 114 acres of coniferous forest, 618 acres of mixed coniferous/deciduous forest, 87 acres of
mature cove hardwood forest, 270 acres of early successional logged forest, and 403 acres of vegetated
wetlands, 34 acres of shallow open water communities, and 21 miles of perennial and intermittent streams
which comprise 64 different cover types and hydrologic regimes.
The project area is generally undisturbed except for silvicultural activity. Although heavily logged in
some areas, the site contains large expanses of wetland and upland forests. These upland and wetland
communities provide valuable and diverse habitat for fish and wildlife and support a wide variety of
aquatic, semi-aquatic and terrestrial species. The functions and ecological value of these communities are
enhanced by their juxtaposition and interspersion. For instance, the large diameter trees and snags in the
mature forests provide habitat for cavity nesters such as the barred owl and pileated woodpecker, and the
surrounding contiguous forests provide sufficient expanse for their home ranges.
The diverse wetland complex at the site accounts for over thirty of the cover types and hydrologic
regimes present and is a mixture of palustrine forested, scrub-shrub and emergent wetlands. Typical
species found in non-tidal forested wetlands at the proposed reservoir site include red maple (Acer
rubrum), smooth alder (Alnus serrulate?), bayberry (Myrica cerifera), sycamore (Platanus occidentalis),
river birch (Betula nigra), and silky dogwood (Cornus amomum). Dominant species in palustrine
forested/scrub-shrub wetlands include smooth alder, bayberry, silky dogwood, and buttonbush
(Cephalanthus occidentalis). Dominant species in palustrine emergent wetland at the site include sedges
(Carex spp.), soft rush (Juncus effusus), arrow arum (Peltandra virginicd), sensitive fern (Onoclea
sensibilis), switch grass (Panicum virgatum), smartweed (Polygonum spp.), pickerelweed (Pontederia
If 60
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
cordatd), woolgrass (Scirpus cyperinus), bulrush (Scirpus spp.), marsh fern (Thelypteris palustris), and
broad-leaved cattail (Typha latifolia). Cove hardwood forests are older deciduous forests typically found
at the heads of ravines and on slopes in the stream valleys and are composed mainly of beech (Fagus
grandifolid), oak (Quercus spp.) and hickory (Carya spp.). These types of communities are rare in
logged areas and provide extremely high quality wildlife habitat. Due to their age and landscape position,
these communities are very difficult to replace or re-create. Rather than showing low aquatic diversity
and abundance functions as claimed by the City of Newport News, the various wetland diversity analyses
indicated that the proposed impoundment area of Cohoke Creek includes a structurally complex and
diverse wetland system providing multiple valuable ecological functions.
(b) Mattaponi River System: The Mattaponi River joins the Pamunkey River at the town of
West Point to form the York River. The Mattaponi River supports extensive and diverse riparian wetland
communities classified as tidal freshwater (0.0 to 0.5 ppt) at the headwaters to oligohaline (0.5 to 5.0 ppt)
at the mouth. These tidal freshwater wetlands provide habitat for rare plant species and migratory
waterfowl, support an important shad fishery and serve to protect water quality in the Chesapeake Bay.
An extensive tidal freshwater marsh known as Gametts Creek Marsh is located on the North shore of the
Mattaponi River directly across from the proposed intake site. Typical herbaceous species found in the
marsh include pickerelweed (Pontederia cordatd), arrow arum (Peltandra virginica), spatterdock
(Nuphar luteum), wild rice (Zizania aquaticd), smartweed {Polygonum spp.), tearthumb (Polygonum
arifolium and P. sagittatum), rice cutgrass (Leersia oryzoides) and Walter's millet (Echinochloa \valterf).
A small tidal freshwater marsh is located about 600 feet upstream of the intake site on the southern side of
the river. This small "pocket" marsh is dominated by sweet flag (Acorus calamus), pickerelweed, arrow
arum and spatterdock. Colonies of sensitive joint-vetch (Aeschynomene virginica), a federally listed
threatened plant species, are also found in these two marshes.
The Virginia Department of Conservation and Recreation stated that "The Mattaponi River is one of the
most significant natural habitats in the eastern United States." They further commented that the Mattaponi
River supports state-significant and exemplary freshwater tidal marshes and swamps and provides
important habitat for rare species such as the sensitive joint-vetch and the bald eagle.
(2) Ecological Impacts of the Proposed Work:
(a) Habitat Loss: The project would result in the conversion of 1,526 acres of a highly diverse
and productive system of wetlands, forests and streams and their wildlife communities into a far less
diverse, open-water lake environment favored by relatively few species. Construction of the reservoir
would inundate at least 21 miles of stream channel, 34 acres of open water habitat, 403 acres of vegetated
non-tidal wetlands, 875 acres of forested uplands, and 214 acres of early successional forested uplands.
The existing wetlands would be displaced by the fill material for the dam or inundated by backflooding.
The Norfolk District recognizes that all of the wetlands would not be lost due to fill impacts. However,
the functions and values of the existing vegetated wetland complex would be removed.
Restriction of flows from construction of the proposed King William Reservoir dam also has the potential
to alter the sustaining hydrologic regime and associated biogeochemical processes of existing non-tidal
wetlands located downstream of the proposed reservoir site. Additionally, construction of pipelines to
connect the new reservoir to the existing Newport News Waterworks distribution system and provide for
the proposed pumpover from the Mattaponi River would result in the permanent conversion of forested
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wetlands to emergent and/or scrub-shrub wetland cover types. A breakdown of these impacts by cover
type for the proposed King William Reservoir (KWR-IV) pool area only is shown below:
34 ACRES VEGETATED WATERS
Open Water 34 acres
403 ACRES VEGETATED WETLAND
Palustrine Emergent 37 acres
Palustrine Emergent/Open Water 18 acres
Palustrine Scrub-Shrub 13 acres
Palustrine Scrub-Shrub/Emergent 63 acres
Palustrine Scrub-Shrub/Open Water 2 acres
Palustrine Forested 192 acres
Palustrine Forested/Emergent 40 acres
Palustrine Forested/Scrub-Shrub 32 acres
Palustrine Forested/Scrub-Shrub/Emergent 5 acres
Palustrine Forested/Open Water 1 acre
1089 ACRES UPLAND
Mixed Forest 618 acres
Cove Hardwood 87 acres
Early Successional Logged Area 270 acres
Evergreen Forest 114 acres
TOTAL ACREAGE 1526 acres
(SOURCE: Table 2-1, King William Reservoir Project, Habitat Evaluation Procedures, Main Report
(Malcolm Pirnie, 1999a))
It is important to note that the currently proposed King William Reservoir would effectively eliminate the
entirety of the upper Cohoke Creek headwaters (both vegetated wetlands and unvegetated streams above
the dam) as well as a large portion of the mainstem of Cohoke Creek proper and its associated wetlands.
Immediately after construction of the reservoir, there would be an artificial system comprised of a large
open water body devoid of any upslope natural bordering wetlands.
The City of Newport News has continued to assert that construction of the King William Reservoir would
have little if any adverse impact and claims that any impacts that are realized, such as wetland loss, would
be easily mitigated and most likely offset by the enormous gain in open water created by the reservoir.
The City asserts that the reservoir would not represent a true loss of habitat, but rather only the conversion
of habitats; and that the 1,500-acre lake and its 77 miles of shoreline would provide larger and more
productive fish and wildlife habitat and better water quality than the natural upland forests, wetlands and
streams. They claim that rather than being monotypic, the reservoir itself would provide 1,251 acres of
deep water habitat and 322 acres of shoreline and shallow water habitat for spawning, nursery, nesting,
migratory and wintering areas that would be used by waterfowl, wading birds, amphibians and other
aquatic organisms. The City expects 200 acres of wetland fringe to develop around the reservoir; and
expects that when mature, the upland buffer area around the reservoir would provide greater wildlife
habitat than the upland areas impacted by the reservoir. The City also alleges that the existing low dam at
- «!•->
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Cohoke Millpond already precludes interaction between the Cohoke Creek watershed and the larger
Chesapeake Bay ecosystem.
EPA commented that the loss of such a large area of contiguous forest would represent a serious threat to
habitat (especially for area-sensitive species) and biodiversity in the area as well as a dramatic alteration
of a functioning stream valley ecosystem in the Chesapeake Bay watershed. EPA contends that
waterfowl, forest interior bird species and raptors such as the bald eagle presently traverse the existing
low dam and utilize the large, uninterrupted tracts of bottomland hardwood and other forested land for
migration, feeding and breeding. Impounding Cohoke Creek would eliminate the varied topography and
reduce the existing diversity of interspersed habitats. Consequently, the food, cover and reproductive
sites for the vast majority of species in the reservoir pool area would disappear. The loss of the natural
hydrologic regime would dramatically alter patterns of sediment transport and fish passage, and reduce
the exchange and transport of nutrients, detritus and organisms between the channel and the floodplain
both above and below the proposed dam. The establishment of a stocked freshwater fishery would not
compensate for the impacts of the project to resident fisheries as asserted by the RRWSG. It is also
unlikely that the created deep-water habitat would be more valuable than the existing wetlands as claimed
by the RRWSG.
In a letter dated 5 August 1999, EPA stated their belief that the uniqueness/heritage values of the wetland
ecosystem that would be lost would not be sufficiently replaced by the open water habitat of a man-made
lake. Many of the forested systems, especially bottomland hardwoods and mature cove hardwood areas,
have a productivity rate and biological diversity that is well above that of a managed man-made lake.
Due to the age and landscape position of the mature cove hardwood areas, the U.S. Fish and Wildlife
Service believes they would be extremely difficult to replace or re-create. Although man-made lake
environments may be productive at first, the agencies indicated that productivity declines over time.
Also, the entire surface of the reservoir would not represent usable habitat as asserted by the RRWSG.
While some portion of the surface of the deep-water lake would be utilized by fish or wading birds, it is
the shallow water littoral fringes that would be most valuable to fish and other wildlife for breeding and
nursery habitat and for cover and foraging. However, water level fluctuations and periodic drawdowns
associated with reservoir operation would decrease the habitat value and use of the littoral zone and fringe
wetlands by wildlife. EPA stated that " EPA continues to believe it is inappropriate to view these losses as
offset by gain in open water habitat as discussed in the May 1999 Plan."
The City of Newport News has stated that the reservoir will remain within one foot of its normal pool
elevation for more than 80 percent of the time during its first 30 years and they believe the wetland fringe
will be as stable as those at their other reservoirs. However, the proposed King William Reservoir would
be at the top of the system and it would have steep slopes down to the waters edge. In addition, Malcolm
Pirnie predicted the water elevations would decrease by 10 feet for periods of time and by as much as 25
feet, 40 years after construction. The widely fluctuating water levels, especially in later years of reservoir
operations when water demand would be higher, make the sustainability of the fringe wetlands
questionable. The duration of drawdown and the time of year are critical, and the advisory agencies
believe that the fringe would likely be very small or nonfunctional for a substantial part of the 50-year
project evaluation period. The drawdown time was considered one of the greatest limiting factors.
The Norfolk District does not dispute that some vegetated wetland fringe would likely develop along the
shoreline of the new proposed reservoir. However, the methods proposed to quantify this area are
questionable, the water level fluctuations from future projected use of the King William Reservoir would
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
limit the long-term viability of any vegetated wetland fringe, and such a vegetated wetland fringe would
provide relatively few functions in comparison to the existing Cohoke Creek wetlands (i.e., fringe
wetlands would be out-of-kind). Although focusing on estuarine wetlands, Childers and Day, in a 1991
paper entitled "The Dilution and Loss of Wetland Function Associated With Conversion to Open Water,"
present a compelling argument that conversion of a predominantly vegetated wetland system to a more
open water system decreases the wetland to open water ratio and effectively dilutes the functions of the
remaining wetlands relative to the aquatic system. Childers and Day postulate that in such a scenario
"although wetland area would remain, it would be diluted so effectively... that, in an ecological sense, it
would be functionally lost to the system." The proposed King William Reservoir would effectively result
in the complete loss (inundation) of all wetlands situated upstream of the dam, and any new fringe
wetlands that might develop around the reservoir would not be associated with other natural non-tidal
wetlands. This would result in a very artificial, functionally depauperate and isolated system in the upper
watershed of Cohoke Creek. Any fringe wetlands that might develop would be very narrow in width, and
arguably the only viable wetland function they would serve would be as habitat. The habitat provided by
the shallow water areas of the proposed King William Reservoir and adjoining vegetated buffer have been
quantified and credited by the District's Habitat Evaluation Procedures (HEP) study, and are responsible
for most of the habitat credit gains for several of the species evaluated in the study (e.g., beaver, mink,
great blue heron, and red-spotted newt).
Furthermore, the U.S. Fish and Wildlife Service expressed concern that planned development and
recreational activities in and around the reservoir would discourage its use by wildlife. According to the
1997 King William County Comprehensive Plan, the area immediately adjacent to the reservoir would be
designated as a Resource Protection Area in accordance with the Chesapeake Bay Preservation Act. This
would be a 100-foot wide buffer zone around the reservoir in which no buildings, land disturbance
activities or clearing would be allowed. The remainder of the watershed is designated as a Watershed
Protection Area which is also in the County's Resource Management Area. The RRWSG stated in the
FEIS that there would be minimal planned development around the reservoir. However, the 1997 King
William County Comprehensive Plan indicates "Moderate residential development is intended within the
Watershed Protection Area and at its periphery a narrow area is designated for moderate mixed
development of residential, light commercial and planned unit development." Human disturbances from
such development would change the rural and agricultural setting of the area, further reduce the habitat
available to wildlife and reduce the habitat value of the proposed buffer zone surrounding the reservoir.
Also, public recreational access to the reservoir and surrounding land would significantly decrease habitat
value and use by wildlife. The County's recreational plan includes nature trails and picnic areas within
the buffer surrounding the reservoir. The presence of picnickers, dogs, bicyclists, motorized bikes and
other disturbances in the buffer area would render it of limited habitat value compared to its existing
condition and would significantly decrease the quality of habitat for those species less tolerant of human
activities.
The project would result in the alteration and potential degradation of 186 acres of wetlands and the
wildlife habitat they provide downstream of the proposed dam, as well as 0.8 miles of streambed below
the proposed discharge point on Beaverdam Creek. Although the actual physical disturbance to wetlands
along the pipeline route would be temporary, the wetlands would be permanently converted.
Maintenance of the right-of-way would change the palustrine forest community to an emergent and/or
scrub-shrub system and would result in habitat fragmentation. Furthermore, these disturbed areas may
become dominated by more tolerant exotic and invasive species such as Phragmites australis (common
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
reed,), the establishment of which would further degrade the wildlife habitat. The U. S. Fish and Wildlife
Service commented that forested wetlands provide especially valuable habitat for certain forest-dependent
songbirds and some of the species most dependent on moist woods are the most susceptible to forest
fragmentation.
(b) Wetland Loss: When the project was originally presented to the Norfolk District and the
federal agencies in the December 1989 "Preliminary Report on Aquatic Resource Issues" and further
documented in the applicant's June 1993 "Alternatives Assessment", the RRWSG reported that 293 acres
of wetlands would be impacted by the reservoir at the original dam location (KWR-I). By the time the
application was submitted on 6 July 1993, the applicant's environmental consultants had performed a
more thorough review and reported that 479 acres would be impacted. However, a detailed wetland
delineation of the King William site conducted jointly by environmental consultants working for Newport
News Waterworks and James City County in May 1994, revealed that the reservoir would impact
approximately 653 acres of wetlands at 90 feet mean sea level. In the first revised permit application
submitted on 14 June 1995, the dam was relocated 2,900 feet upstream of the originally proposed dam
location and the normal pool elevation was raised by 6 feet. With this configuration, the wetland impacts
were reduced to 574 acres (KWR-II) at 96 feet mean sea level. A second revised permit application was
submitted on 30 December 1996 for a dam at a location 9,700 feet upstream of the originally proposed
dam location which reduced the impacts to 403 acres of vegetated wetlands and 34 acres of shallow open
water habitat (KWR-IV).
The City of Newport News has included 186 acres of the wetlands and 620 acres of uplands downstream
of KWR-IV as a temporary preservation component of their mitigation plan until such time as they
enlarge the reservoir footprint back to either the KWR-II or KWR-I location. A clause in the City of
Newport News' Development Agreement with King William County reserves the wetlands between the
KWR-IV and KWR-II dam sites for future downstream enlargement of the reservoir. If it were ever
permitted, such an enlargement would impact a total of 574 to 653 acres of wetlands for the King William
Reservoir. These downstream wetlands closely resemble those in the proposed impoundment area and
possess a high level of ecosystem diversity.
The King William Reservoir (KWR-IV) would inundate 52 percent of the Cohoke Creek watershed and
virtually all of the existing wetlands above the impoundment. The exceptions would be those wetlands on
a small number of headwater streams and isolated wetlands above the normal pool elevation. As
currently proposed, approximately 403 acres of non-tidal, palustrine forested, emergent and scrub-shrub
wetlands and 34 acres of open water plus 21 miles of stream channel would be filled, excavated or
inundated by the KWR-IV configuration.
The RRWSG has estimated 21 miles of stream corridor would be impacted by the proposed project.
Approximately 12 miles are intermittent streams and 9 miles are perennial. The streams are further
described as approximately 11.5 miles of intermittent and 3 miles of perennial first order streams; 0.4
miles of intermittent and 2.6 miles of perennial second order streams; and 3.5 miles of perennial third
order streams. This breakdown was based on an analysis of the King William and King and Queen
Courthouse U.S. Geological Survey quadrangle maps. A more accurate measurement of the linear
footage to be impacted would need to be field determined in order to further develop a stream restoration
plan. The area includes all streams that would be below the proposed reservoir's normal pool elevation of
96 feet above mean sea level.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The RRWSG claims that the wetlands impacted in Cohoke Creek are not unique in any way. In a letter
dated 27 November 2000 responding to comments on RRWSG's Environmental Issues Summary, the
City of Newport News claimed that the existing Cohoke Creek wetlands are not unique because they
comprise less than 4 percent of the total estimated non-tidal palustrine wetlands in King William County.
As the quality and habitat value of the remaining wetlands and forests in King William County is
unknown, no valid comparison with the impacted area can be made. Additionally, non-tidal palustrine
wetlands can occur in a wide variety of landscape positions and encompass several hydrogeomorphic
wetland classes. Therefore, the City's use of percentages is a mischaracterization of the relative
abundance of the Cohoke Creek wetland types in the project vicinity. The District is more concerned
with the actual predicted wetland loss associated with the project, rather than with expressions of relative
loss of wetland type or acreage that tend to downplay the magnitude of the impacts to the aquatic
environment. In their letter of 23 August 1996, the U.S. Fish and Wildlife Service stated that their field
representatives found the site to be ecologically diverse and observed a variety of plant communities and
hydrologic regimes within the proposed reservoir pool. The Service considers Cohoke Creek to be a
unique resource within Virginia's lower peninsula. EPA reiterated this opinion in their letter of 28 May
1998 saying "These wetlands, interspersed among uplands, create a unique ecosystem complex with
unique functions and values." Based on the Habitat Evaluation Procedure, as well as the two wetland
diversity analyses employed by the applicant, I find these areas contain a diverse wetland complex
providing multiple ecological functions and high quality wildlife habitat.
This diverse habitat includes beaver ponds, highly productive emergent wetlands, stream bottom and
riparian wetlands as well as areas of mature forest. This low-gradient system serves an important role in
maintaining water quality. The proposed King William Reservoir (KWR-IV) involves the largest single
destruction of wetlands and their associated habitat ever evaluated in the Norfolk District and exceeds the
annual wetland impacts authorized by the Norfolk District in the entire State of Virginia for 1996 (394.4
acres), 1997 (267.5 acres) and 1998 (266.4 acres). The next largest impact evaluated in the Norfolk
District was James City County's proposed Ware Creek Reservoir, which in 1987 would have impacted
381 acres of wetlands and 44 acres of open water. (By 1994, more detailed mapping and further beaver
activity increased the estimated impacts at Ware Creek to about 546 acres of wetlands and 44 acres of
open water).
(i.) Impacts to Downstream Wetlands: The RRWSG claims there are 186 acres of non-tidal
wetlands in the mainstem (associated headwater wetlands not included) of Cohoke Creek between the
proposed KWR-IV dam site and the upper reaches of Cohoke Millpond. Concern for maintaining the
existing hydrologic regime (and associated sediment/nutrient dynamics, etc.) for downstream wetlands
has been raised by the District and the advisory agencies. These wetlands are supported in part by
hydrologic input from above the proposed dam location and could change in character and/or be reduced
in acreage by the almost two-thirds reduction in flow volume. In a letter dated 22 July 1999, the Service
indicated their continued concerned that the RRWSG's plan for downstream releases would not avoid
impacts to the functioning of downstream wetlands. The RRWSG stated that their proposed reservoir
releases would attempt to mimic the natural downstream flows in Cohoke Creek. Regardless of the
release schedule implemented for the King William Reservoir, the mere fact that a dam would be placed
across Cohoke Creek assures that the existing flow regime and associated processes (e.g., downstream
sediment transport, channel-forming and channel-maintaining flooding events, timing and magnitude of
flood flows, etc.) would be altered. The RRWSG's Mitigation Program, Fish and Wildlife Plan claims
"the project will result in the added retention of approximately 590 tons of sediment per year." There is
little doubt that the existing Cohoke Creek vegetated wetlands do perform a sediment retention function,
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
but in such a sparsely developed watershed it is at an appropriate level that still allows sediment pulses to
be regularly transferred to downstream wetlands. This downstream transport of sediment is not only
normal, but is essential for the natural maintenance of a healthy riverine system according to Leopold, et
al, in a 1964 publication, Fluvial Processes in Geomorphology; and in a 1995 paper entitled "Downstream
Ecological Effects of Dams" by Ligon, et al., as well as in Restoration of Aquatic Ecosystems by the
National Research Council, (1992). The proposed dam would disrupt the existing balance between
erosional and depositional rates for portions of Cohoke Creek proper located downstream of the project
area and extending down-gradient at least to Cohoke Millpond. By depriving sediment inputs to
downstream portions of Cohoke Creek, the proposed dam would detrimentally alter the processes
responsible for maintaining the dimensions and dynamics of the existing Cohoke Creek channel and
associated floodplain. Ligon et al. state "if a stream's physical foundation is pulled out from under the
biota, even the most insightful biological research program will fail to preserve ecosystem integrity."
This is a perfect example of where an alteration (in this case construction of the King William Reservoir)
that maximizes one or a few wetland functions can actually be detrimental to the overall environment.
The proposed KWR-IV would result in the impoundment of a large portion of the upper Cohoke Creek
watershed, including headwater drainages, associated vegetated wetlands, and adjoining upland habitat.
Eliminating these features would sever organic inputs and processing of detritus for much of the Cohoke
system, especially for those wetlands associated with the mainstem of Cohoke Creek located downstream
of KWR-IV and upstream of the Cohoke Millpond. Significant losses of small forested wetlands along
low order streams, with their associated capacity to retain or transform water, sediment, and nutrient
inputs, could influence both the quantity and quality of inputs to higher order streams, their associated
fioodplains, and ultimately downstream estuarine and marine ecosystems, as discussed in the papers
entitled "Changes in the Functioning of Wetlands Along Environmental Gradients" by Brinson in 1993
and "Functions and Values of Forested Wetlands in the Southeastern United States" by Walbridge in
1993.
Although the continuity of headwater vegetated wetlands to freshwater tidal vegetated wetlands of
Cohoke Creek is currently severed by the Cohoke Millpond, dissolved and particulate forms of organics
and other nutrients originating in the Cohoke headwaters eventually contribute to the maintenance of
downstream aquatic communities, especially during flood events. Fowler and Hershner studied
aboveground primary production for a portion of tidal freshwater Cohoke Swamp located downstream of
the Cohoke Millpond dam and in 1989 reported their results in a paper entitled "Primary Production in
Cohoke Swamp, a Tidal Freshwater Wetland in Virginia." Fowler and Hershner chose this system for
study since it had "remained virtually undisturbed by timber harvesting practices and other human
encroachment for nearly 200 years or more." Their study concluded that in terms of productivity, the
tidal freshwater Cohoke Swamp ranked among the most productive riverine swamp forests in the eastern
United States. The degree to which the proposed King William Reservoir might impact the lower reaches
of Cohoke Creek has not been determined.
The RRWSG has offered to place temporary conservation easements over 186 acres of stream corridor
(this acreage does not include associated headwater wetlands) and 620 acres of adjoining upland habitat
located downstream of the proposed King William Reservoir dam and upstream of the existing Cohoke
Millpond dam. However, since the RRWSG has not agreed to preserve these areas in perpetuity, it raises
the question of possible future impacts to this reach from related King William Reservoir activities. As
noted earlier, a clause in the City of Newport News' Development Agreement with King William County
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reserves the wetlands between the KWR-IV and KWR-II dam sites for future downstream enlargement of
the reservoir.
Considering the above, the King William Reservoir would impact additional wetlands other than those
currently situated within the proposed reservoir pool area. This is contrary to the RRWSG's claim in the
Final Wetland Mitigation Plan that "the inescapable conclusion...is that there is no realistic possibility for
cumulative environmental degradation." The RRWSG continues to assert the environmental impacts of
the project would be limited to the KWR-IV pool area. While the downstream impacts would be more "
subtle and more difficult to calculate than those inside the reservoir, I am convinced they would occur.
(ii.) Wetland Conversion Impacts: Installing the pipeline from the proposed King William
Reservoir to the Diascund Reservoir would also impact wetlands. Approximately 10.4 acres of wetlands
would be converted from forested wetlands to emergent and/or scrub-shrub wetlands. Although the
affected area would still be vegetated wetlands if pre-disturbance contours are re-established, there would
be a loss of forested wetland function associated with a change in cover type due to clearing and
continued maintenance of the utility corridor. Evaluating these wetland conversion impacts as permanent
wetland impacts is consistent with the Corps' current Nationwide Permit policy (NWP-12) for utility line
projects with wetland cover type conversions in easements that will be continually maintained (Chief,
Regulatory Branch, HQ-USACE, Draft "Nationwide Permit Questions and Answers", February 1997;
Final Notice of Issuance and Modification of Nationwide Permits published in the Federal Register
(Volume 65, Number 47 on 9 March 2000). Common reed (Phragmites australis) and other exotic
species that thrive in disturbed areas may also re-vegetate the pipeline right-of-way and further reduce its
habitat value. Also, approximately 0.15 acres of wetlands would be filled and excavated by the proposed
outfall structure, riprap apron and discharge channel on Beaverdam Creek.
EPA commented that the impacts related to the loss of 437 acres of diverse and valuable wetlands/open
water habitat within the Cohoke Creek basin would be significant. The wetlands of the Cohoke Creek site
have been shown to be of high structural complexity and ecological value. Available literature on
restoration of palustrine forested and scrub-shrub wetlands indicates that these types are among the most
difficult to mitigate. If these impacts are not appropriately mitigated, EPA feels that the project may
result in substantial and unacceptable impacts to Aquatic Resources of National Importance (ARNI). The
U.S. Fish and Wildlife Service recommended denial of the proposed King William Reservoir because the
project's impacts would be extremely detrimental to the fish and wildlife resources of Southeast Virginia
and will result in substantial and unacceptable impacts to Aquatic Resources of National Importance.
The RRWSG stated their belief that these wetlands are not a good example of forested riparian systems in
the Coastal Plain because of disturbance from silviculture and agriculture as well as from the Cohoke
Millpond and beaver activity. They also disagree with the determinations by EPA and the Service that the
wetlands in Cohoke Creek constitute an Aquatic Resource of National Importance (ARNI). EPA
reiterated their position that the Cohoke Creek wetlands constituted an ARNI in the letter responding to
the applicant's Environmental Issues Summary. In the 27 November 2000, letter responding to the
comments from the EPA on the RRWSG's Environmental Issues Summary, Newport News stated, "The
Cohoke Wetlands do not constitute a National Resource of Aquatic Importance." Newport News appears
to have meant the term Aquatic Resource of National Importance. The designation of an ARNI is
procedural, as it applies to EPA's ability to elevate a project under the "Section 404 (q) Memorandum of
Agreement between the Environmental Protection Agency and The Department of the Army." The
Department of Interior has a similar MOA with the Department of Army concerning the Service's ability
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
to elevate a decision when they determine that the project may result in substantial and unacceptable
impacts to Aquatic Resources of National Importance. If a signatory agency to this MOA asserts that a
resource is an ARM, it is up to the Assistant Secretary of the Army for Civil Works to agree or disagree
with that assertion. Neither the Corps nor the applicant can make a determination of the presence or
absence of an ARM.
(c) Upland Loss: The Corps of Engineers does not have jurisdiction over the 1,089 acres of
uplands that would be lost; therefore, mitigation for upland impacts is not required as a part of the public
interest review. However, the uplands are an integral part of the wetland/upland ecosystem in the Cohoke
Valley and would be both directly and indirectly affected by the proposed reservoir. Therefore, the
impacts to upland areas were described in the EIS and their habitat value was evaluated along with the
wetlands in the HEP analysis. The function of these uplands is enhanced by their juxtaposition and
interspersion with the wetlands of Cohoke Creek. In addition to wildlife habitat, these uplands provide
nutrient cycling, erosion control and groundwater recharge. The City of Newport News contends that the
upland areas that will be affected "....do not represent a very high quality habitat...." and "...are not
worthy of special consideration..." To illustrate their point they provided photographs of an area that
was recently clear-cut. The Virginia Department of Conservation and Recreation Division of Natural
Heritage commented that the existing silvicultural activities have not resulted in poor quality habitat as
alleged by the applicant. Approximately 214 acres of the upland habitat has been impacted by logging
activity. In the silvicultural management of the area, sections are cut and allowed to re-grow on a
rotational basis. The new growth in recently cut areas provide early successional habitat that also has
wildlife value. Furthermore, the mature forest patches still present within the Cohoke Valley provide core
habitat suitable for nesting neotropical migrants. The early successional openings and pine forests in
addition to the narrow corridors of late successional forests allow dispersal between the mature forest
patches. Furthermore, the clear-cut areas are not as extensive as implied by the City of Newport News.
(d) Functional Assessments: The 1990 Memorandum of Agreement (MOA) between the Corps
and EPA regarding "The Determination of Mitigation Under the Clean Water Act Section 404(b)(l)
Guidelines" states the "objective of mitigation for unavoidable impacts is to offset environmental
losses...such mitigation should provide, at a minimum, one for one functional replacement (i.e., no net
loss of values), with an adequate margin of safety to reflect the expected degree of success associated
with the mitigation plaa" The MOA also states "this ratio may be greater where the functional values of
the area being impacted are demonstrably high and the replacement wetlands are of lower functional
value or the likelihood of success of the mitigation project is low." For more routine smaller-scale
projects, acreage is commonly used as a surrogate for wetland functional replacement; therefore, early on
in the review process the District set a 2 to 1 wetland creation/restoration compensation ratio as a wetland
compensation goal. Due to the magnitude of wetland impacts associated with the proposed King William
Reservoir, the District and federal and state advisory agencies emphasized that other methods would be
needed to identify and evaluate wetland functional replacement needs (e.g., HEP for wildlife functions).
(i.) Habitat Evaluation Procedures: At an interagency King William Reservoir Wetland
Mitigation Workshop held on 02 August 1995 in Fredericksburg, Virginia, it was agreed that a Habitat
Evaluation Procedures (HEP) study would be conducted for the project. The HEP analysis was needed to
quantify anticipated impacts to the range of habitats existing on the proposed reservoir project site and to
determine what would constitute in-kind compensation for habitat impacts. It was also used to determine
whether the proposed compensatory mitigation for the reservoir would offset anticipated habitat impacts
as well as to identify general types of compensation required to offset habitat impacts.
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An interagency team composed of representatives of the Norfolk District Corps of Engineers, the
Environmental Protection Agency, U.S. Fish and Wildlife Service, Virginia Department of Environmental
Quality - Water Division, Newport News Waterworks, and Malcolm Pirnie, Inc. was formed in November
1995 to conduct the analysis. In the fall of 1996, the team invited an authority on the application of HEP
and habitat models, Dr. Dean Stauffer of Virginia Polytechnic Institute, to attend team meetings, review
the analysis, and provide technical advice to ensure that the analysis was scientifically sound and
consistent with the principles of HEP. Team decisions on cover type classification, species selection,
field sampling protocols, data analysis, and assumptions about habitat succession were made by
consensus. As no agency or team member had veto authority over the team's decisions or actions, and
reaching consensus was difficult and time consuming, discussions on contentious issues were tabled until
the team had completed literature research, field investigations or consulted with local authorities. Only
two issues were determined by the Norfolk District rather than by consensus: the life of the project for
the HEP analysis was determined by the District to be the 50-year life of the project as identified in the
EIS; and the Norfolk District Regulatory Branch practice has consistently been that HEP analyses must
show what is required for full in-kind habitat compensation.
Unlike the other functional assessment methods applied to the King William Reservoir project, the HEP
study subdivided the King William Reservoir assessment area based on cover type and hydrologic
regime. A total of 64 cover types and hydrologic regimes in 9 major categories consisting of both
wetland and upland habitats were identified prior to actual habitat analysis: Cove Hardwood, Upland
Mixed Forest, Upland Evergreen Forest, Early Successional Logged Area, Palustrine Open Water,
Palustrine Emergent, Palustrine Scrub-Shrub, drier Palustrine Forest (Saturated and Temporarily
Flooded), and wetter Palustrine Forest (Seasonally Flooded/Saturated and Semi-permanently Flooded).
Additionally, HEP can often take landscape position and hydrodynamics into account via species model
variables, and limiting the use of species models to specific cover types and geographical areas.
It is also important to keep in mind that HEP does not evaluate all habitat types associated with a given
project. The Habitat Evaluation Procedures Workbook (Stiehl, 1995) states "given that you can only study
a small portion of the entire wildlife system of concern, it is essential to give adequate time to deciding
what parts of the system will be studied and why... regional wildlife resource objectives should be used as
the overriding factor guiding the species selection process." The interagency HEP Report lists the
Service's regional wildlife resource objectives as protection of habitat for forest interior dwelling birds,
species sensitive to forest fragmentation, species that use wetlands and riparian zones, threatened and
endangered species, and passage for anadromous fish. In a memo dated 7 November 1995, other regional
wildlife resource objectives proposed by the RRWSG for the King William Reservoir included: species
that use mature hardwood forests, species of public importance, cavity nester species, and species that are
habitat specialists. Twelve evaluation species were chosen to represent several of these regional wildlife
resource objectives and some of the more important habitat types present in the King William Reservoir
project area. Selected species were representative of the range of fish and wildlife species occurring in a
given cover type. Wetland species selected were: beaver (Castor canadensis), mink (Mustela vison),
great blue heron (Ardea herodias), wood duck (Aix sponsa), and redfm pickerel (Esox americanus
americanus). Upland species selected were: brown thrasher (Toxostoma rufum), field sparrow (Spizella
pusilla), and pine warbler (Dendroica pinus). Species representing wetland and/or upland were: pileated
woodpecker (Dryocopus pileatus), yellowthroat (Geothlypis trichas) the terrestrial stage of the red-
spotted newt (Notophthalmus viridescens viridescens) and gray squirrel (Sciurus carolinensis).
The analysis of habitat impacts associated with the project was broken down into 3 distinct phases: an
analysis of gross habitat losses resulting from reservoir construction; an analysis of habitat change
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resulting from construction of the reservoir; and an evaluation of the compensation needed to offset
projected habitat losses associated with the project.
Gross habitat losses were determined to be the loss of all potential habitat within the reservoir poolfarea *
over the life of the project and constitute a worst-case scenario for habitat impacts. After an analysis of J
the gross habitat losses, it was necessary to quantify projected habitat changes from the construction of
the reservoir, including any habitat gains that might be realized from the creation of shallow water habitat
and the extensive reservoir shoreline. While team members agreed that some vegetated wetland fringe
would develop along portions of the new reservoir lakeshore, a consensus was not reached on the amount
or extent of fringe wetland development or the time frame for habitat development. Thus, wetland fringe
acreage was not quantified or considered in this evaluation. In their Mitigation Program, Fish and
Wildlife Mitigation Plan and the Environmental Issues Summary, the RRWSG claims that the King
William Reservoir would provide an important lacustrine and deepwater habitat, which was not fully
evaluated by the HEP study. The interagency HEP study did evaluate and credit the riparian zone and
shallower margins of the reservoir. The riparian zone was defined as a 30-meter wide band extending
upslope of the proposed reservoir lakeshore. As defined in the HEP beaver and mink models, this zone
could include upland and/or fringe wetlands. The deeper portions of the reservoir were not emphasized in
the HEP study, because as noted in a 1994 publication by Tiner et al. entitled "Recent Wetland Status and
Trends in the Chesapeake Watershed (1982 to 1989)", this type of habitat is not limiting factor in the
Virginia Coastal Plain. Reservoirs/lakes/ponds were not identified as an important regional wildlife
resource objective for this part of Virginia.
Lastly, the interagency HEP team was charged with identifying compensatory mitigation measures
needed to provide full, in-kind replacement of habitat losses for all evaluation species. Of the three study
goals, the use of the HEP results in design of the wetland compensation package was somewhat limited,
because the HEP study was conducted concurrently with development of the wetland mitigation plan.
The HEP study results were not finalized until early 1999; by which time at least three drafts of the
wetland compensation plan had already been submitted by the RRWSG and reviewed by the agencies.
Additionally, at least half of the currently proposed wetland compensation sites had already been
identified by the project proponents in the August 1996 Conceptual Mitigation Plan submitted to the
Virginia Department of Environmental Quality, well before the analysis of the HEP data and before the
formation of the interagency wetland mitigation team. Although there was quite a bit of overlap in
members of the HEP and wetland mitigation teams, much of the time spent by the interagency wetland
mitigation team in reviewing potential wetland compensation sites concentrated on evaluating sites for
"fatal flaws" to debit against the 2 to 1 compensation ratio acreage goal, rather than tallying the sites'
cumulative potential for full in-kind compensation of wetland habitat or other wetland functions.
In a memo dated 25 November 1997, the Service supported the parallel tracking of the HEP and
mitigation teams because all parties already had an understanding that there was a 2 to 1 wetland
creation/restoration baseline goal from which the HEP results would help build and shape an appropriate
compensation plan. They felt it was more expedient to have the wetland mitigation team review the
feasibility of specific sites, and then later use this real world data to plug into the HEP evaluation of
expected habitat gains from proposed compensation sites. The HEP analysis was applied to a sample of
the applicant's proposed wetland compensation sites, each of which included restoration/creation of
wetlands and preservation of the proposed reservoir buffer area. The team developed models of habitat
succession to predict what these sites would look like over a 50-year period in order to evaluate the extent
to which these wetland restoration/creation sites would offset habitat impacts and to project the total
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habitat benefits likely from the planned wetland mitigation. This was the strategy previously agreed to by
the HEP and wetland mitigation teams, and was continued to the conclusion of the HEP study in 1999. In
a comment letter dated 22 December 1998, the Service reiterated their belief that "one of the major
beneficial features of the King William Reservoir HEP study is the method of using our 6 identified
potential mitigation sites as realistic compensation landscapes", and that they "believe this report will be
an important template for other HEP studies conducted in the Mid-Atlantic states."
Because the proposed reservoir buffer was not a required part of the project, its size could vary
considerably. The HEP team agreed to consider this buffer as a mitigative action and part of a
compensation plan for the project, but not as part of the project itself. In May 1998, the applicant adopted
plans for a buffer equal to or exceeding 200 feet in width within which no development would occur other
than establishment of hiking trails and other passive recreation facilities. In order for the proposed 1,990-
acre reservoir buffer to be considered as mitigation for habitat impacts, it had to meet all of the life
requisites for a given evaluation species. Also, the habitat gains associated with its preservation over the
life of the project had to be evaluated. This entailed projecting future growth and development of upland
forest cover in this buffer over the next 50 years. As suitable habitat for the pileated woodpecker consists
of large blocks of contiguous mature forest, the team believed that this requirement could not be met
within a 200-foot wide band of forest. The team determined that the proposed reservoir buffer would not
provide suitable habitat for the pileated woodpecker, but it could offset much of the habitat losses for the
gray squirrel and red-spotted newt. (A detailed description of the HEP study is provided in the District's
report entitled "Summary of HEP analysis for the King William Reservoir.")
The Norfolk District and Service feel that the final HEP Report accurately describes the interagency HEP
study performed for the King William Reservoir, and both support the documentation and findings of that
document. However, both agencies strongly feel the description of the HEP findings in the
Environmental Issues Summary are completely inaccurate and misleading. The RRWSG forwards the
opinion that the HEP study indicates the existing Cohoke Creek wetlands provide only moderately
suitable habitat for the selected wetland species because the "habitat value average for all species was
only 0.51 out of a possible score of 1.0." They further state habitat values were expected to be high using
HEP "since species are only selected which are well suited to this type of habitat."
The Service made the following comments regarding the RRWSG's misinterpretation of the HEP
findings in the Environmental Issues Summary:
"The Service believes the RRWSG's presumption, "The results of the HEP gross loss
analysis (Malcolm Pirnie, 1999) indicate that the existing wetlands within the pool area
provide only moderately suitable habitat for the selected wetland species," is incorrect
and invalidly drawn. The Service is surprised to respond to these misapplications of the
Habitat Evaluation Procedures Study, as the consultants for the RRWSG are amply
trained to provide the guidance the RRWSG needs in interpreting HEP results. Training
in HEP was provided in May, 1996 for the RRWSG's consultants Malcolm Pirnie, the
Norfolk District, and the Service's Chesapeake Bay Field Office employees in one joint
training class. According to the HEP Workbook (revised 7/95) distributed to the class,
'HEP may be adapted to many different uses, including project planning, impact
assessment, mitigation and compensation, and habitat management by providing
information for two types of wildlife comparisons: (1) the relative value of different
areas at the same point in time, and (2) the relative value of the same area at future points
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in time.' HEP makes quite clear that the values are not absolute values, but only have
meaning in the relative sense, when comparing habitats. For example, a habitat
suitability index value of 0.55 generally indicates better suitability for a given species,
than a score of 0.35. But in no way does HEP say that 0.55 equals mediocre habitat and
0.35 equals bad habitat, as the "Environmental Issues Summary" attempts to portray....
There is no logical foundation in taking the habitat suitability index values across every
single habitat type of varying acreages for all species, and compiling these numbers into
an "average." There is absolutely no meaning in the 0.51 number, and it is a gross
misapplication of HEP to make statements based upon such a numerical exercise. Less
than ideal habitats were purposely sampled for most species, because the HEP Team felt
that if the habitat had significant potential use by an evaluation species, that habitat
should be included. For example, suitability for pileated woodpeckers was assessed in
upland evergreen forests (UEF) because these habitats can be used when tree diameters
are large. The habitat suitability index value was 0.21 in evergreen forest plots,
compared to a value of 0.43 in upland mixed forest plots. The HEP Team was
attempting to characterize all useable habitats for a species across the project site in a
representative manner, and not skew the results only towards prime habitats. Likewise,
mitigation sites were evaluated and credited for these less than ideal habitats for an
evaluation species. In addition, a value of 0.43 for pileated woodpecker has no
equivalence to a value of 0.43 for red spotted newt, because the species models are
constructed much differently, and their component variables are scaled differently."
The Norfolk District acknowledges that the Service is the recognized federal expert regarding the
application and interpretation of HEP studies and I have no reason to disagree with their determination
that the applicant misinterpreted the HEP results.
In accordance with current Norfolk District practice, all HEP studies completed for proposed projects in
the District boundaries must demonstrate what types of compensation strategies would be required for
full, in-kind fish and wildlife habitat replacement. The HEP Report outlines a series of alternative
mitigation strategies that would provide full, in-kind habitat compensation for all the evaluation species.
Out of numerous potential compensation scenarios, the HEP Report provided four compensation
strategies that would provide full, in-kind habitat compensation. One of those identified strategies would
provide full, in-kind habitat compensation with the least acreage of land and still meet the 2 to 1
compensation ratio for wetland impacts due to reservoir construction. That strategy consists of the
reservoir, a 1990-acre reservoir buffer, another 228 acres (in 3 parcels) contiguous with the buffer, 806
acres of wetland restoration/creation, 406 acres of forested wetland preservation, 586 acres of managed
evergreen forest (i.e. pine plantation), 145 acres of managed oldfield (managed pasture), and 208 acres of
reconnected backwaters. It should be emphasized that this strategy is only one possible theoretical
compensation plan that would provide full, in-kind wildlife habitat replacement. The compensation plan
currently proposed by the RRWSG differs from all scenarios outlined in the HEP Report and is discussed
below.
Table 10-3 in the Mitigation Program, Fish and Wildlife Mitigation Plan outlines RRWSG's currently
proposed compensation plan as it relates to HEP. The plan proposes 275 acres of lacustrine habitat from
the reservoir proper, 1990 acres of buffer surrounding the reservoir, 806 acres of wetland
creation/restoration, 769 acres of upland restoration, 211 acres of forested upland preservation, 436 acres
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of forested wetland preservation, 20 acres of stream restoration, preservation of areas downstream of
KWR-IV (186 acres of wetland preservation and 620 acres of upland preservation), and 73 acres of King
William Reservoir pipeline management.
The preservation of areas downstream of KWR-IV and management of the King William Reservoir
pipeline easement were not reviewed as compensation strategies by the interagency HEP or mitigation
teams and are not suitable compensation measures. Areas downstream of KWR-IV are unacceptable for
mitigation because they would likely be impacted by the current project, the RRWSG has not agreed to
preserve these areas in perpetuity, and the RRWSG plans to further impact this area by future downstream
enlargement of the currently proposed reservoir. The proposed pipelines associated with the King
William Reservoir would require the clearing and maintenance of new linear easements, which would
result in the conversion of mature wetland and upland habitat to early successional states.
Additionally, since HEP was not used to quantify habitat loss resulting from the new pipeline (directly
associated with the new proposed reservoir), it is not consistent to attempt to apply HEP solely for
compensation credit for this aspect of the project. In a memo dated 22 December 1998, the Service
recommended that the RRWSG look to compensate for impacts to early successional species by
managing existing overhead powerline easements on Newport News Waterworks property, not by
clearing and maintaining new utility line easements. The King William Reservoir pipeline right-of-way
does not represent a possible habitat compensation measure, but rather represents additional habitat
impacts (see Section 8 f. (2) (b), Wetland Conversion Impacts). Therefore, the KWR-IV downstream
areas and King William Reservoir pipeline management areas should be eliminated from RRWSG's
proposed compensation plan; and more reasonably should be considered as additional impacts to aquatic
resources.
The RRWSG has proposed compensating for redfm pickerel habitat loss through stream restoration on the
South Anna River in Louisa County, Virginia, and has calculated habitat unit gains using the redfm
pickerel's HEP model. However, the District was unable to determine how the RRWSG quantified
anticipated habitat unit gains for the redfm pickerel when no details on the scope of stream restoration
work in the headwater reaches of the South Anna River were provided in their Mitigation Program, Fish
and Wildlife Mitigation Plan. The RRWSG never identified any existing potential mitigation sites for
review by the interagency HEP team that might compensate for anticipated impacts to the redfin pickerel.
Since this aspect of the compensation plan was never reviewed by the interagency HEP team, the District
questions the validity of applying the redfin pickerel model to the proposed stream restoration area. The
Mitigation Program, Fish and Wildlife Mitigation Plan, provides no details on what field data (if any) was
collected from the proposed stream compensation sites, or other assumptions that would be needed to
apply the redfin pickerel model to the proposed compensation area. Without this information, the District
must reject the applicant's claims for any redfin pickerel habitat unit gains as stated in the Mitigation
Program, Fish and Wildlife Mitigation Plan.
The interagency HEP team agreed that habitat losses associated with the proposed compensation
measures (e.g., the proposed King William Reservoir buffer and wetland mitigation sites) would be noted
qualitatively as losses, but would not be quantified and counted against the project since compensation
measures are viewed as being a net benefit. For example, preservation of the proposed reservoir buffer
would allow the forest to mature and technically result in loss of existing habitat for early successional
species (e.g., yellowthroat). The HEP team acknowledges this loss of early successional habitat, but it is
not counted in the total habitat loss for the overall King William Reservoir project. In Table 10-3 of the
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Mitigation Program, Fish and Wildlife Mitigation Plan, it should be noted that the habitat losses recorded
for the proposed reservoir buffer were shown, but not used to calculate the overall habitat losses for the
pileated woodpecker, pine warbler, brown thrasher, field sparrow, or yellowthroat.
With the reservoir, the currently proposed buffer, and the proposed wetland mitigation sites, habitat
impacts would be fully offset for beaver, mink, great blue heron, wood duck, red-spotted newt, gray
squirrel, brown thrasher and yellowthroat. The regional wildlife resource objectives represented in part
by these evaluation species include: species that use riparian zones, species of seasonally saturated
forested wetlands, species that use wetland scrub-shrub habitat and shrub habitats of later successional
upland areas; species that use shallow permanently flooded wet areas, species of upland forests, species
that utilize mast-bearing forests, and species that utilize early successional forest habitat. These
evaluation species were also chosen to represent, in part, the following habitat types: palustrine forested
wetlands, palustrine scrub-shrub wetlands, palustrine emergent wetlands, shallow water portions of
lacustrine systems, cove hardwood forests, and early successional logged areas.
The RRWSG's compensation plan fails to offset habitat losses for the redfin pickerel, pileated
woodpecker, pine warbler, and field sparrow. The regional wildlife resource objectives represented by
these evaluation species include: species that use wetlands, species sensitive to forest fragmentation,
species that use mature hardwood forests, species of public importance, cavity nester species, species that
are habitat specialists, and protection of habitat for forest interior dwelling birds. These evaluation
species were also chosen to represent the following habitat types: low-gradient, slow-moving, vegetated
riverine habitat; large unfragmented tracts of mature forest (cove hardwood, upland evergreen forest,
upland mixed forest, and all forested wetland cover types); and early successional habitats.
The HEP analysis demonstrates that the proposed mitigation package does not fully compensate for either
wetland or upland habitat losses from the King William Reservoir. The RRWSG's proposed
compensation plan provides no compensation for impacts to redfin pickerel habitat. This underscores
how a diverse, low-gradient lotic system with associated vegetated wetlands cannot be compensated by an
out-of-kind mitigation package comprised of a lentic/lacustrine reservoir and depressional wetland
creation/restoration sites. Although the proposed reservoir buffer is large in acreage (estimated 1,990
acres), it would be comprised of a narrow forested band along the entire perimeter of the proposed
reservoir. Habitat value would largely be limited to those species that utilize lacustrine riparian fringe (as
defined in the HEP species models for beaver and mink), as was appropriately credited in the HEP study
for the project.
The Environmental Issues Summary claims that "these analyses thoroughly demonstrate the benefits of
the King William Reservoir coupled with successful implementation of the Mitigation Program will more
than compensate for any functions and values reduced by construction of the King William Reservoir",
and "the replacement package would more than compensate for the wetland habitat impacted in the
project area...[i]n addition to compensating for all wetland habitat losses from the King William
Reservoir...." I strongly disagree. Despite claims to the contrary on page 4 of the letter from Newport
News dated 27 November 2000 in response to EPA's comments on the Environmental Issues Summary,
there was never a consensus from the interagency HEP team that the King William Reservoir and
mitigation sites would result in a net gain of habitat units; and no such documentation is included in the
HEP Report. In accordance with Norfolk District practice, the HEP study identified theoretical
compensation measures that would be required to provide full in-kind compensation for anticipated King
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William Reservoir impacts to wildlife habitat, but the RRWSG has never submitted a mitigation plan that
would fully compensate for wetland dependent fish and wildlife habitat losses.
(ii.) Wetland Evaluation Technique (WET): In 1993, without the benefit of
input/concurrence on model assumptions from the District or any advisory agencies, the project
proponents performed a Wetland Evaluation Technique (WET) study to qualitatively compare the
probability of wetland functions for a proposed Ware Creek Reservoir site, a proposed Black Creek
Reservoir site, and the proposed King William Reservoir (KWR-II configuration) as part of their
alternatives assessment. The details of this exercise were reported by the RRWSG in the EIS.
In the Environmental Issues Summary, the RRWSG states that "numerous analytical techniques have
been applied to evaluate the quality of the wetlands within the King William Reservoir project area, and
mitigation sites", and cites WET as one of these techniques. WET was not performed on any of
RRWSG's proposed wetland mitigation sites; therefore, the RRWSG cannot make any claims that the
WET study helps demonstrate their wetland mitigation package provides full, functional replacement of
lost wetland functions. It is important to emphasize, as noted by Malcolm Pirnie in their WET study, that
"the qualitative probability ratings assigned by WET are not direct estimates of the magnitude of a
wetland function or value... [r]ather they are an estimate of the probability that a function or value will
exist or occur in the wetland (to an unspecified magnitude)." Malcolm Pirnie further correctly states
"probability ratings assigned by WET do not measure magnitude and consequently the assignment of
numerical values to probability ratings are inappropriate and misleading." The Norfolk District disagrees
with the RRWSG's inferences and conclusions that the WET results are an estimate of the magnitude that
the Cohoke Creek wetlands in the King William Reservoir project area perform different wetland
functions.
Although the existing Cohoke Creek system is recognized as being a diverse and complex wetland
system, Malcolm Pirnie made the assumption that the entire wetland complex could be evaluated as a
single assessment area. In the District staffs opinion, this is an oversimplification of the Cohoke system
and reduces the resolution of an already simplified rapid assessment methodology, which further limits
the reliability of the WET results. Considering the Cohoke Creek wetlands as a single assessment area
also runs counter to Malcolm Pirnie's own reasoning in their subsequent Evaluation for Planned Wetlands
(EPW) study where they state "the complex nature of the wetlands suggests] that each wetland functions
slightly differently from the others...it was not feasible to assess the entire project area as one wetland."
(EPW is discussed in (iii) below). This error in defining the King William Reservoir assessment area led
the RRWSG to erroneously conclude that the WET analysis identified the Cohoke Creek wetlands as
providing "low aquatic diversity and abundance functions" in the Environmental Issues Summary.
Limited knowledge of the Cohoke system at the time Malcolm Pirnie conducted the WET study is
illustrated by the fact that they estimated the extent of wetlands to be 293 acres for the KWR-II
configuration. This was clearly a gross underestimation of the wetland acreage in the KWR-II project
area because a later detailed wetland delineation of this same project area identified 574 acres of wetlands
(an error of 196%).
The WET study emphasized how a few characteristics of the King William Reservoir assessment area
influenced several of the wetland function ratings. For example, the fact that the King William Reservoir
assessment area represents a large percentage of the total palustrine wetlands within the Cohoke
watershed appeared to be a controlling factor in the social significance ratings for the following functions:
groundwater recharge, groundwater discharge, sediment/toxicant retention, nutrient
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removal/transformation, aquatic diversity and abundance, and uniqueness/heritage. This underscores how
the elimination of the majority of headwater wetlands in the upper Cohoke Creek watershed by
construction of the King William Reservoir would likely result in the loss/reduction of diverse wetland
functions within the downstream portions of the Cohoke valley.
In the Environmental Issues Summary, RRWSG states "based on the WET analysis, the wetlands within
the [King William Reservoir] pool area received low scores for nutrient removal/transformation."
Notwithstanding the problems and limitations of the WET study as outlined above, this finding
contradicts their own subsequent EPW evaluation that concluded "the [EPW] evaluation indicate[s] the
existing [Cohoke Creek] wetlands provide a high degree of sediment stabilization and water quality
functions" as stated in the Mitigation Program, Fish and Wildlife Mitigation Plan. Although their EPW
study had shortcomings of its own (see below), the Cohoke Creek wetlands are assumed to perform
important sediment stabilization and water quality functions due to the low gradient nature of the Creek
and generally slow water movement through extensive vegetated wetland systems and beaver pond
complexes.
In the Environmental Issues Summary, the RRWSG stated the WET study demonstrates that the Cohoke
Creek wetlands scored low on groundwater recharge, and provide only moderate export functions. Most
wetlands in the Cohoke Creek area are underlain by fine-textured soils with low permeability rates, so it
does seem reasonable for the project area wetlands to have a low probability for groundwater recharge
functions. The Norfolk District agrees. Since the Cohoke Creek wetlands are part of a low gradient
riverine system it seems reasonable to expect that they have at least a moderate probability of performing
export functions.
The project proponent's original goal of the WET study was to use it as a screening tool to evaluate three
proposed reservoir alternatives. Despite the shortcomings of the study assumptions as detailed above, the
District did not object to this application of WET considering the stated goal and the fact that the level of
review (and error) was applied uniformly to the three alternatives. The RRWSG has tried to use the
results of WET's relative comparison of wetland functions between three different reservoir alternatives to
make specific conclusions about the magnitude of functions performed by the Cohoke Creek wetlands.
This is clearly a misinterpretation of the WET study results, and is a misapplication of a simple
assessment methodology beyond its intended use. I must, therefore, reject this use of the WET study by
the RRWSG.
(iii.) Evaluation for Planned Wetlands (EPW): In 1996 the project proponents, without the
benefit of input/concurrence on model assumptions from the District or any advisory agencies, performed
an Evaluation for Planned Wetlands (EPW) study that reportedly compared the wetland functions of the
existing wetlands within the King William Reservoir project area (KWR-II configuration) to the
collective wetland functions of several proposed wetland mitigation sites. The details of this exercise are
given in the Regional Raw Water Study Group Conceptual Mitigation Plan for the Department of
Environmental Quality. In a letter dated 23 February 1996, the U.S. Fish and Wildlife Service stated that
EPW is too limited to be solely used to evaluate lost wetland functions resulting from construction of the
King William Reservoir. More specifically they were concerned that as a rapid assessment technique,
EPW inherently has a low level of accuracy, is intended for smaller acreages, and the assessment level is
too coarse to be applicable to such a large wetland complex as the Cohoke Creek system.
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The Service stated that the results of an EPW assessment could be useful as long as its assumptions and
limitations were recognized. In a letter dated 7 March 1996, the EPA concurred with the
recommendations of the Service. Malcolm Pirnie had collected the EPW field data for the King William
Reservoir project area in mid-February 1996, but it was not until their letter of 27 March 1996 that
Malcolm Pirnie requested concurrence from the reviewing agencies on the goals and assumptions of the
EPW study. In a letter dated 28 March 1996, the District stated that while EPW can be a valuable tool for
rapid assessment of small wetlands areas, it is too limited to provide the detail needed for analysis of the
King William Reservoir. In a response letter dated 4 April 1996, the Service stated it was unfortunate that
Malcolm Pimie did not coordinate the assumptions and goals before collecting the field data, and found
"the assumptions made by Malcolm Pirnie for evaluating the planned wetland to be without scientific
merit in the case of the proposed King William reservoir site, and rejects them as inappropriate."
EPW classifies non-tidal wetlands into three broad categories: non-tidal (stream/river), non-tidal
(pond/lake) and non-tidal (depression). Using this simplistic classification scheme, the Cohoke Creek
wetlands would be considered to be of the non-tidal (stream/river) class, the proposed reservoir would be
classified as non-tidal (pond/lake), and the majority of the proposed mitigation sites would be classified as
non-tidal (depression). The proposed King William Reservoir and wetland mitigation sites represent
lentic/depressional systems, and clearly cannot provide in-kind replacement for the anticipated impacts to
the Cohoke Creek lotic/riverine system.
Several of the wetland mitigation sites used in the EPW study have since been determined to be
unacceptable after subsequent review by the District and other advisory agencies. Also, it is important to
note that in addition to candidate mitigation sites that had actually been identified by Malcolm Pirnie
staff, approximately 510 acres of unidentified "additional sites" were evaluated, and without explanation,
given quantitative scores of functional capacity for each of the six wetland functions assessed by EPW as
part of RRWSG's 1996 mitigation package. The total wetland acreage of the mitigation sites used in the
EPW study was 1100 acres, which is at least 294 acres more than the RRWSG has ever reported to have
actually found for mitigation.
Another drawback of the EPW study was that the timeframe for assessment of the mitigation sites was
assumed to be when these sites are fully functional, self-sustaining, mature systems. It completely
disregards the temporal loss of functions for more structurally complex wetlands (e.g., forested wetlands)
that occur while the system matures, which can make up a substantial portion of the 50-year project
evaluation period.
In the Environmental Issues Summary, the RRWSG states that "numerous analytical techniques have
been applied to evaluate the quality of the wetlands within the King William Reservoir project area, and
mitigation sites", and cites EPW as one of these techniques. Considering the above, the District staff
believes that the RRWSG's claim that their EPW study compares the wetland functions of the Cohoke
Creek wetland system to the proposed mitigation sites is unsupportable. The Cohoke Creek system and
the proposed mitigation sites belong to at least two different EPW wetland classes (i.e. are out-of-kind),
and comparisons between them cannot be validly made. Additionally, almost half of the study's total
mitigation acreage was comprised of sites to be identified in the future, which artificially inflated the
Functional Capacity Unit scores for the proposed wetland mitigation sites. The ability of EPW to assess
the degree to which the Cohoke Creek wetlands perform different wetland functions is discussed below.
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EPW was mainly designed for assessing and comparing a wetland assessment area against a planned
(created/restored) wetland. In this case the wetland assessment area is broadly considered to be the
Cohoke Creek wetland complex in the KWR-II project area. Malcolm Pirnie chose to break the Cohoke
Creek wetland complex into six wetland assessment area categories based solely on vegetative cover type
(e.g., forested, forested/emergent, forested/scrub-shrub, emergent, etc.). By focusing solely on cover type
for defining wetland assessment areas, the EPW study lumped wetlands with different landscape positions
and hydrologic regimes all together within the same wetland assessment area. The EPW study obscures
any realistic assessment of the functional capacity of the Cohoke wetlands by including several different
wetland functional groups within a single wetland assessment area category. As was the case with
RRWSG's WET assessment, this oversimplifies the Cohoke wetland system, and can lead to erroneous
and unsupportable conclusions.
In the Environmental Issues Summary, the RRWSG claims the EPW study shows that the Cohoke system
only provides a moderate degree offish and wildlife functions. Since the fish and wildlife functions of
the Cohoke Creek wetlands were assessed by a more data-intensive HEP investigation, those results are
considered to be more accurate than the EPW study. According to the applicant's EPW study, the
Cohoke Creek wetlands in the project area scored high for shoreline bank erosion control, sediment
stabilization, water quality, and uniqueness/heritage functions.
(iv.) Total Net Primary Productivity (TNPP): Without the benefit of input/concurrence on
assumptions from the District or any advisory agencies, the project proponents performed a Total Net
Primary Productivity (TNPP) study in 1998 based largely on published information to compare estimated
TNPP values for existing conditions to predicted future conditions. More specifically, TNPP estimates
for existing Cohoke Creek communities within the proposed KWR-IV project area and existing land uses
of proposed mitigation sites (i.e., cropland and mined sites) were compared to the predicted future
conditions of the King William Reservoir with a wetland fringe and fully mature wetland mitigation sites.
TNPP is a measure of the rate at which solar energy is converted into chemical energy and stored by
primary producers, less the amount of energy expended to maintain the metabolism of the primary
producers. TNPP is usually expressed in terms of the amount of carbon fixed per unit area per unit time.
Rates of TNPP are variable and fluctuate with environmental conditions and stresses on the environment.
As such, TNPP is a fundamental ecological variable that provides some insight into energy (carbon
source) input to an ecosystem, as well as trends due to changes in land use. TNPP for vascular plant
communities is calculated by summing two components, aboveground net primary productivity and
belowground net primary productivity. It appears that the belowground net primary productivity
component was not factored into the applicant's TNPP assessment.
There is some concern regarding the reference sites used to estimate TNPP values for the open water and
littoral zone of the proposed King William Reservoir. The RRWSG did not provide enough information
to assess the validity of using the open water productivity data sources, and they failed to demonstrate that
the extent of fringe wetland development can be quantified. Although the two cited reference reservoirs
are located in the eastern United States (Occoquan Reservoir in Virginia and Dog Lake in Georgia), the
degree that they may be similar/dissimilar to the proposed King William Reservoir in depth, seasonal
stratification patterns, trophic state (e.g., oligotrophic, eutrophic, etc.), littoral/pelagic ralio, growing
season, landscape position, presence/absence of stream inputs, catchment size and catchment land use
composition was not factored into the assessment, but can greatly influence TNPP values.
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Other factors that complicate the direct extrapolation of TNPP data from existing reservoirs to the
proposed King William Reservoir is the fact that the proposed reservoir would not be a terminal reservoir,
and the proposed Mattaponi River pumpover would be the major source of water for the new reservoir.
The proposed pumpover would transfer water from a low landscape position (lower reaches of the
Mattaponi River) to a much higher landscape position (upper reaches of Cohoke Creek). The nutrient
content, turbidity, residence time within the pool area before being transferred to the Newport News
Waterworks distribution system, etc., would all have to be factored in to calculate TNPP rates for the
proposed King William Reservoir. Information provided by the applicant already shows that some
predicted water quality characteristics (i.e., nitrogen and phosphorus levels) of the proposed pumpover are
very different from that of the existing Cohoke Creek project area. Because of the Mattaponi pumpover
and continual reservoir withdrawals, the overall water quality of the proposed King William Reservoir
would be very unlike any other existing reservoir even if it is sited in a similar landscape position.
As with any study, the validity of the assumptions dictates the reliability of the conclusions. An oversight
common to most of the "functional assessments" undertaken solely by the project proponents is that they
overlooked the time delay it takes for the wetland and upland creation/restoration sites (i.e., early
successional habitats such as cropland, recent clearcuts) to develop into mature forested wetland and
upland habitats. Although this temporal loss can account for a large portion of the 50-year study period,
the project proponents continually evaluated the proposed mitigation sites as fully mature systems starting
the first year these compensation sites would be constructed. This is not a realistic assumption and can
lead to inflated estimates of functional gains from the proposed mitigation sites over the project
evaluation period. More accurate trends could be estimated using the same methodology as employed by
the King William Reservoir interagency HEP team.
In order to obtain a more accurate indication of the anticipated change in TNPP for the overall project,
District staff recalculated Malcolm Pirnie's model using the modified TNPP figures for swamp forest and
cropland which incorporate an estimate of Belowground Net Primary Productivity. With the District's
modifications, the King William Reservoir (including mitigation sites) would result in an increase in
aquatic TNPP of between 6,600 and 3,300 tons of carbon per year, and a decrease in terrestrial TNPP of
between 14,600 and 7,300 tons carbon per year. Therefore, the King William Reservoir (including
mitigation sites) would result in an overall loss of TNPP between 8,000 and 4,000 tons carbon per year.
It is important to note again that these numbers only represent general trends, because of the problems
with TNPP estimates for other vascular plant cover types and other flawed assumptions of the assessment.
If more realistic TNPP estimates were used for all cover types, in all likelihood the King William
Reservoir would result in an even greater net loss of TNPP, because the TNPP estimates for the other
vascular plant cover types were underestimated. (A more detailed discussion of the problems with the
assumptions made in this study, can be found in the Functional Assessments Section of the Norfolk
District's report entitled "Analysis of wetland and habitat impacts and the Regional Raw Water Study
Group's proposed compensation for the proposed King William Reservoir.").
Without considering the off-site mitigation sites (existing or proposed conditions) and looking only within
the proposed pool area of the Cohoke valley, the King William Reservoir would still result in a net loss of
TNPP. This loss results from the conversion of a natural and productive upland/wetland riverine complex
(Cohoke valley) to an artificial and relatively unproductive open water habitat (King William Reservoir).
An important point not addressed at all by the project proponents is the way these two systems are
inherently different, not only in TNPP rates, but also in the fate of fixed carbon from a landscape
perspective. Although influenced by the composition of its catchment, TNPP cycles in reservoirs are
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generally closed; therefore, claims by the RRWSG that TNPP within the proposed King William
Reservoir proper constitutes a net benefit to the Pamunkey River or the Chesapeake Bay are misleading.
Riverine systems differ in that organic matter originating and processed (i.e., broken down to different
degrees) in the upper reaches of the stream network are transported downstream and utilized by
sequentially lower reaches of the stream network. In The Ecology of Regulated Streams. Cummins
describes the nutrient spiraling concept of lotic (riverine) systems as "the dependence of downstream
communities on upstream processes—communities in each successive stream order are dependent upon
the inefficiency or 'leakage' from the preceding orders." He goes on to describe the river continuum
concept as "the balance between primary production and respiration, and between storage-processing and
export constitute basic features of lotic systems that change along a continuum with stream order and
would be significantly affected by altered flow regime."
Impounding a large portion of the headwaters and associated riparian areas of Cohoke Creek to construct
the King William Reservoir would result in a severe alteration to the existing balance, and there would be
impacts downstream at least to and including Cohoke Millpond. The proposed King William Reservoir
dam would have the potential to significantly reduce the amount of fixed carbon and inorganics that are
transported to and support downstream portions of the Cohoke Creek system. This viewpoint is
consistent with Malcolm Pirnie's own statement that the existing Cohoke Millpond prevents "the aquatic
productivity of upstream [Cohoke Creek] wetlands from being available to the downstream tidal
Pamunkey River system." In the letter from Newport News dated 27 November 2000 (page 3)
responding to EPA's comments on the Environmental Issues Summary, this same viewpoint was
reiterated as "Cohoke Millpond Dam also blocks nutrient and sediment export to the York River
Ecosystem and has, therefore, altered the hydrology of Cohoke Creek." Therefore, construction of the
King William Reservoir has the potential to also alter TNPP rates both within the reservoir pool area and
also to downstream reaches of Cohoke Creek, and yet these impacts have not been addressed in Malcolm
Pirnie's TNPP assessment.
(v.) Sediment Retention and Nutrient Assimilation: In 1998 the project proponents, without
the benefit of input/concurrence on assumptions from the Corps or any advisory agencies, performed an
evaluation that compared predicted nutrient assimilation and sediment retention rates of the existing
Cohoke Creek watershed and the Mitigation Site watersheds to the predicted post-project conditions.
These studies were based largely on published information and assumptions made by the applicant. The
findings of these exercises are summarized in the RRWSG's Mitigation Program, Fish and Wildlife
Mitigation Plan and the Environmental Issues Summary.
Malcolm Pimie made the assumption that maximum nutrient assimilation and sediment retention
functions would be performed the first year after construction of the project. Although this may be a
reasonable assumption for comparisons in the Cohoke Creek watershed, it would tend to overestimate
benefits in the watersheds of the mitigation sites since it would take a large portion of the project
evaluation period for the proposed mitigation sites to mature. Changes in these functions could be more
realistically quantified by assessing temporal differences by successional stage as was done for the HEP.
To obtain more realistic predictions of existing nutrient loading rates and sediment loss at the proposed
compensation sites, landscape position, proximity of other cover types and existing use of
cropland/forestry/mining best management practices (BMPs) should have been evaluated. The York
River is considered a non-point source dominated system, and the utilization of BMPs is the focus of the
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state's water quality control strategy for this waterway. These factors were not considered by Malcolm
Pirnie, and average estimated loading rate values were simply applied to the different cover types with the
assumption that pollutant loads (nutrient and sediment) for the different cover types would ultimately end
up unabated in the Chesapeake Bay. Such generalizations could easily result in estimates that are not
representative of actual pollutant loading rates or sediment loss within the watersheds of Cohoke Creek or
the proposed mitigation sites. There is no question that conversion of cropland to pre-disturbance
wetland/upland forest conditions will result in reduced nutrient and sediment loading rates from these
areas, but there are other factors that need to be considered. Any conclusions drawn from this study
should recognize the limitations and general nature of the assessment.
The project proponents summarized the results of their assessment of nutrient and sediment retention in
Table 10-2 of their final Mitigation Program, Fish and Wildlife Mitigation Plan. The areas of the Cohoke
Creek watershed and the Mitigation Site Watersheds were evaluated and the nutrient and sediment
retention for existing and proposed cover types was compared. The acreage of existing covertype for the
Cohoke Creek watershed was the same as that of the proposed covertype; however, in evaluating the
Mitigation Site Watersheds, Malcolm Pirnie disregarded the acreage of the actual mitigation areas.
Therefore, the proposed covertypes in the Mitigation Site Watersheds consisted of 794 acres less than in
the existing covertypes. Malcolm Pimie assumed it was valid to exclude this acreage from the Mitigation
Site Watersheds proposed acreage because the difference in acreage represents the proposed wetland
mitigation areas which they claim "are considered sediment retention and nutrient assimilation treatment
areas and are not included as a component of the contributing drainage areas." This assumption is invalid
because it was not consistently applied to the Cohoke Creek watershed where pollutant loading and
retention/assimilation rates were applied to both the existing Cohoke Creek wetlands and the proposed
King William Reservoir. Also, following Malcolm Pirnie's logic, any changes in retention/assimilation of
pollutant loads could just be due to removing this acreage from the assessment. For consistency, the
District added 749 acres to the proposed Mitigation Site Watersheds acreage and assigned the respective
wetland loading/assimilation efficiencies (see discussion below for results).
Malcolm Pirnie also assumed "Sediment and nutrient assimilation efficiencies for existing mitigation site
conditions are assumed negligible, because these areas are predominantly agricultural fields and disturbed
sites (mined sites)...net export systems." Again this is an invalid assumption since the net export nature
of these cover types is already factored into the assessment by the changes in cover type acreage (existing
vs. proposed) and in the different estimated loading rates for each cover type. Additionally, Malcolm
Pirnie's assessment only incorporates sediment retention and nutrient assimilation efficiencies for wetland
and reservoir cover types, and does not provide individual retention/assimilation rates for any other cover
type (e.g., forestland, early successional logged areas, or agricultural fields). Therefore, the assessment
calculates any overall retention/assimilation efficiencies for a watershed using the assumption that
stormwater runoff from the catchments would funnel through either wetlands or open water (reservoir)
before ultimately reaching the Chesapeake Bay. Considering the fact that all the proposed wetland
mitigation sites ultimately drain downslope to existing natural wetland systems, the District reran the
assessment using wetland retention/assimilation rates for the cover type acreages of the proposed
Mitigation Site Watersheds. Other problems with the assumptions used in the assessment are addressed
in the appropriate sections that follow.
Nutrient Assimilation: The nutrient assessment focused on nitrogen and phosphorus due to their
importance in regulating the water quality of saline and non-saline aquatic environments, respectively, as
discussed in the papers entitled "Nonpoint Source Pollution of Surface Waters With Phosphorus and
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Nitrogen" by Carpenter et al. in 1989 and "Nutrient Pollution of Coastal Rivers, Bays and Seas" by
Howarth et al. in 2000.
In addition to the problems with the assumptions of Malcolm Pirnie's assessment described above, the
project proponents try to claim nitrogen and phosphorus treatment of the Mattaponi pumpover volumes as
a net benefit of the project to the Chesapeake Bay. The pumpover should be viewed as an additional
impact resulting from the project because it would elevate nitrogen and phosphorus loading rates to the
proposed reservoir pool area and potentially to downstream reaches of Cohoke Creek. Using Malcolm
Pimie's numbers, the pumpover alone would increase nitrogen loading by 4,500 Ibs/year and would
increase phosphorus loading rates to Cohoke Creek by 10,200 Ibs/year above the current loading levels
within the proposed reservoir pool area, and potentially to downstream reaches of Cohoke Creek. Since
the proposed King William Reservoir is not a terminal reservoir, to better quantify treatment efficiencies
of the pumpover by the reservoir and potential effects to downstream areas the project proponents would
have to factor in the respective volumes of the pumpover that would enter the waterworks distribution
system, the residence time of pumpover volumes staying within the King William Reservoir, and volume
and nutrient concentrations of pumpover to be released to downstream portions of Cohoke Creek.
Additionally, the applicant only followed the proposed pumpover to the proposed reservoir pool area, but
to assess the impact of the project on water quality in the Chesapeake Bay the study would have to track
this water through the waterworks system and intended use, ending with effluent discharge from the
Hampton Roads Sanitation District. For these reasons, the Mattaponi pumpover should not be included in
the nutrient assessment.
Malcolm Pirnie made some miscalculations that resulted in an overestimation of the nitrogen retention
rate of the existing wetlands within the Cohoke Creek Watershed, an underestimation of the phosphorus
retention rate of the existing wetlands within the Cohoke Creek Watershed, and an overestimation of the
nitrogen retention rate of the proposed wetland mitigation sites within the Mitigation Sites Watershed.
Using corrected figures the District recalculated the assessment to get an idea of general nutrient budget
trends. Based on these modifications, the proposed King William Reservoir and mitigation sites would
result in net assimilation of 11,826 pounds of nitrogen per year and 48 pounds of phosphorus per year in
excess of that assimilated by the existing Cohoke Creek wetlands and unimproved mitigation sites. The
majority of the reduction in pollutant loading would come from taking existing cropland and logged areas
out of production for new use as potential wetland compensation sites. Although this assessment predicts
there would be a net reduction in nutrient loading with the King William Reservoir project, by ignoring
existing barriers to flow (e.g., Cohoke Millpond, BMPs, etc.) the assessment cannot accurately quantify
existing levels of nutrient inputs to the Pamunkey River or Chesapeake Bay. Considering this
assessment's level of resolution, it is difficult to conclude the project would result in an overall reduction
in phosphorus inputs to the York River watershed. (A more detailed explanation can be found in the
Functional Assessments Section of the Norfolk District's report entitled "Analysis of wetland and habitat
impacts and the Regional Raw Water Study Group's proposed compensation for the proposed King
William Reservoir.")
What is evident from the assessment is that both nitrogen and phosphorus inputs to the proposed reservoir
pool area (and potentially downstream portions of Cohoke Creek) will significantly increase due to
construction of the proposed King William Reservoir and introduction of pumpover from the Mattaponi
River. No amount of offsite mitigation will alleviate this increase in nutrient loading within Cohoke
Creek proper, with a net result being that downstream reaches of Cohoke Creek (at least to and including
Cohoke Millpond) would potentially be impacted by elevated nutrient inputs.
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Sediment Retention: Sediment dynamics are important not only for tracking erosion/deposition patterns
within the landscape, but also as an aid in assessing the fate of adsorbed pollutants (e.g., phosphorus) and
overall water quality (e.g., turbidity).
The problems with Malcolm Pirnie's assumptions described above apply to both the nutrient and
sediment assessments. However, an additional error was made that is specific to the sediment retention
analysis. The entirety of the existing Mitigation Site Watersheds should not be assumed to lack all
sediment retention value. Since all mitigation sites ultimately drain to existing natural wetlands, the
sediment retention value for the existing (unimproved) wetland mitigation sites is estimated to be 396
tons/year (566 tons/year sediment loading rate for all existing cover types in the Mitigation Site
Watersheds with a wetland sediment retention rate of 70%).
While still acknowledging the shortcomings of the study assumptions, the District recalculated the
assessment using the changes described above to get an idea of general sediment budget trends. Based on
these modifications, the proposed King William Reservoir would retain approximately 85 tons of
sediment per year more than that currently retained by the existing Cohoke Creek wetlands, and the
proposed wetland compensation sites would result in added retention of approximately 106 tons of
sediment per year. Although the existing Cohoke Creek wetlands undeniably perform important sediment
retention functions, sediment is still naturally transported downstream. This downstream transport of
sediment is not only normal, but is essential for the natural maintenance of a healthy riverine system as
described in Fluvial Processes in Geomorphology by Leopold, et al. in 1964; and in the paper entitled
"Downstream Ecological Effects of Dams" by Ligon, et al. in 1995, as well as Restoration of Aquatic
Ecosystems by the National Research Council in 1992. The extent and structure of the existing
downstream Cohoke Creek wetlands reflect the natural balance of erosion and sediment deposition rates
that have resulted from the existing character of the catchment (e.g., land use). Malcolm Pirnie predicts
that the King William Reservoir dam would increase sediment storage in the upper Cohoke Creek
watershed, which by default would have to result in deprivation of sediment to downstream wetlands and
riverine habitat. Such sediment deprivation could result in changes in channel patterns (e.g., loss of
braided channels), changes to channel dimensions, reduction in sediment deposition rates that maintain
downstream floodplain and riparian habitats (including vegetated wetlands), changes in nutrient
dynamics, etc. This alteration of sediment dynamics in Cohoke Creek should be viewed as an
environmental impact rather than a project benefit. This viewpoint is consistent with the detrimental
effects of the existing Cohoke Millpond as viewed by Malcolm Pimie in the Mitigation Program, Fish and
Wildlife Mitigation Plan and the City of Newport News (letter dated 27 November 2000 to address
comments from the EPA).
It does seem reasonable to expect improved sediment retention from taking existing cropland out of
production for use as wetland mitigation sites, but due to the limitations of this assessment, the magnitude
of the predicted sediment retention improvement outside of the Cohoke Creek watershed is unknown. By
taking active cropland out of production, the establishment of the proposed wetland mitigation sites
would likely result in benefits to the aquatic environment by reducing nutrient levels and sediment loads.
However, the proposed project would result in alterations to the nutrient and sediment dynamics within
Cohoke Creek, which cannot be compensated by the proposed mitigation plan. Nitrogen and phosphorus
levels would be elevated within the proposed pool area and potentially to downstream reaches of Cohoke
Creek. The proposed dam would result in excessive sediment retention that over the long-term would
detrimentally impact portions of Cohoke Creek, at least downstream to the Cohoke Millpond.
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(vi.) Floodflow Alteration: In 1996 the project proponents, without the benefit of
input/concurrence on assumptions from the Norfolk District or any advisory agencies, performed an
analysis to predict the change in floodflow alteration in the Cohoke Creek watershed if the King William
Reservoir were constructed. This study was largely based on extrapolations from published data and
assumptions made by the project proponents.
Although RRWSG says the proposed King William Reservoir releases would mimic the natural Cohoke
Creek flows, in the Environmental Issues Summary, they claim the King William Reservoir will prevent
downstream flooding by providing ten times greater flood detention functions than that currently
performed by the existing Cohoke Creek wetlands. It should be remembered that flood events, especially
in such a sparsely developed watershed like Cohoke Creek, are natural and not only contribute to channel
formation and maintenance of riverine systems but also are important in nutrient cycling dynamics, as
discussed in Restoration of Aquatic Ecosystems by the National Research Council in 1992 and in the
paper entitled "Nature's Pulsing Paradigm" by Odum et al. in 1995. By reducing the frequency and
duration of flood flows, the proposed King William Reservoir would likely result in additional impacts to
downstream portions of Cohoke Creek. Construction of the King William Reservoir might maximize one
or a few wetland functions, but overall it appears the project would sacrifice other wetland functions and
likely be an overall detriment to the Cohoke Creek watershed. The National Research Council states,
"The construction of dams and dredging of river, stream, and the coastal waterways eliminate wetlands at
the project site and also affect downstream systems. The stabilization of water levels for rivers or lakes
eliminates the vital pulsing function that flooding provides, thus interrupting nutrient and sediment
delivery...the natural maintenance and expansion of wetlands often depend on sedimentation events,
which are interrupted by dams (long term reduction in sediment load)."
(vii). Landscape Interspersion/Connectivity: This function considers both terrestrial and \
aquatic habitats and their relationship to one another, but was only superficially addressed in the f
RRWSG's Mitigation, Program, Fish and Wildlife Mitigation Plan. It is an important function to
consider because it attempts to compare the existing Cohoke Creek system with the proposed King
William Reservoir from a landscape perspective.
The RRWSG's assessment mainly discussed how periodic logging in the project area has resulted in a
fragmented landscape. It seems reasonable to suspect the King William Reservoir proposal precipitated
the accelerated logging at the study site, especially by current property owners of the proposed reservoir
pool area. Silvicultural activities are common not only in the project area, but throughout Virginia and
across the country. Although logging operations often do fragment large forested blocks, in comparison
to RRWSG's proposal to backflood a large portion of the Cohoke Creek upper watershed, the influence of
logging can be viewed as a relatively temporary impact. Silvicultural activities can and do alter sediment
deposition rates, wildlife habitat, TNPP rates, and nutrient cycling; however, they rarely sever such
connections as would construction of a dam.
The proposed King William Reservoir would result in the replacement of a diverse wetland-upland
complex that spans a continuum from extreme headwaters to higher order stream, with a fairly monotypic
open water habitat. Stanford and Ward in Ecology of Regulated Streams emphasize the interconnectivity
of a river to its catchment by describing a river as "an expression of the valley through which it flows;
production of carbon in lotic habitats is greatly influenced by input of allochthonous nutrients and detritus
from the drainage basin."
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The project would not only result in a change in wildlife habitat within the proposed King William
Reservoir pool area, but would also result in impacts to downstream portions of the Cohoke Creek system
at least to and including the existing Cohoke Millpond (see Section 8 f. (2) (d) for Total Net Primary
Productivity, Sediment Retention/Nutrient Assimilation, and Floodflow Alteration). This viewpoint is
based on the same reasoning applied by the RRWSG to the existing Cohoke Millpond when they stated
the millpond dam prevents "the aquatic productivity of upstream [Cohoke Creek] wetlands from being
available to the downstream tidal Pamunkey River system" in the Mitigation Program, Fish and Wildlife
Mitigation Plan. In the letter from Newport News dated 27 November 2000 responding to EPA's
comments on the Environmental Issues Summary, this same viewpoint was reiterated as "Cohoke
Millpond Dam also blocks nutrient and sediment export to the York River Ecosystem and has, therefore,
altered the hydrology of Cohoke Creek"; and "sediment and nutrient transport to the Cohoke Tidal
Estuary have been cut off for more than a century by an existing dam and impoundment located 3.5 miles
downstream of the proposed dam site." In this same letter, the City of Newport News suggested all the
wetland acreage located downstream of the Buckhorn Reservoir in North Carolina could be affected by
altered flows resulting from construction of the dam. The World Commission on Dams in a 2000
publication entitled Dams and Development: A New Framework for Decision-making forwards the
opinion that more than one dam on a single river could "affect both the physical (first-order) variables
such as flow regime and water quality, and the productivity and species composition of different rivers.
The problems may be magnified as more large darns are added to a river system, resulting in an increased
cumulative loss of natural resources, habitat quality, environmental sustainability and ecosystem
integrity."
In the Mitigation Program, Fish and Wildlife Plan, the RRWSG claims that the proposed wetland
mitigation sites would re-establish connections to existing wetlands and riparian corridors, and that these
would be preserved in perpetuity. Although the preservation of the mitigation sites and associated buffers
in perpetuity has merit in retaining landscape connections over the long term, the diversity of
created/restored wetlands is low and out-of-kind with those at Cohoke Creek. The majority of the
proposed wetland compensation sites are designed to be depressional wetlands with one or more water
control structures (water conveyance channels).
(viii.) Uniqueness: The letter from the City of Newport News dated 27 November 2000 in
response to EPA's comments on the Environmental Issues Summary refers to the Cohoke Creek wetlands
as not being unique in any way, and not even being a good example of a Coastal Plain forested riparian
system. This is contrary to RRWSG's own WET study that documented "the King William AA
[Assessment Area] received a high ranking [in Uniqueness/Heritage] due to it representing most or all of
this wetland system type within the watershed and due to the AA being located in a pristine area." The
RRWSG's reptile and amphibian study by Mitchell in 1994 states "The lack of rare species in the Cohoke
Mill Creek watershed does not mean that the area is unimportant herpetologically. On the contrary, this
system of wetlands harbors a rich diversity of amphibians and reptiles. The relatively pristine nature of
the wetlands in and associated with the creek insures that numerous species requiring water for some part
of their life cycle will occur there. The list of species.. .demonstrates that the fauna is healthy." In a letter
dated 23 August 1996, the Service noted "wetland habitats our sampling team found the most impressive
were often the most inaccessible. The true ecological diversity of the site cannot be experienced from the
few road crossings or easy access roads used by the Service for our initial review of the Cohoke Creek
site....sampling team observed an extremely diverse array of macroinvertebrates in the wetland complex.
The Cohoke Creek reservoir site is a unique resource within Virginia's lower peninsula." District staff
spent quite a bit of time in the Cohoke Creek valley verifying the cover type mapping and collecting data
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for the HEP analysis. District staff strongly disagrees with the RRWSG's current interpretation that the
existing study area does not represent a good example of a Coastal Plain forested riparian system.
As discussed above, the accelerated logging in the project area was likely due, in part, to the King
William Reservoir proposal. Private owners of land within the proposed pool area would understandably
be interested in harvesting the timber that otherwise would be lost due to backflooding if the project was
ever authorized. Regardless, from a long-term perspective this is a relatively temporary impact. The
mature Cohoke Creek system that existed prior to this last round of logging had not been a virgin forest
stand, but rather was a stand that regenerated from a previous harvest.
Regarding the EPW and WET uniqueness variable, the project area wetlands are unique in that they
represent the bulk of the upper headwaters of Cohoke Creek. The majority of the functional assessments
for the project have demonstrated that these wetlands provide services to the Cohoke watershed that
cannot be replaced either by the proposed King William Reservoir or the proposed offsite compensation.
(ix.) Summary of Functional Assessments: The minutes of the 2 August 1995 wetland
mitigation workshop recorded by the RRWSG note that the District emphasized "assessment of [wetland]
functional value must go beyond the boundaries of the wetlands; likewise, the mitigation program needs
to go beyond wetlands." According to the 1990 MOA between the Corps and EPA, the primary goal of
wetland mitigation is a minimum of 1 to 1 functional replacement of lost wetland functions. The 2 to 1
wetland acreage compensation goal was identified early on as a interim goal to be used since the HEP and
wetland mitigation teams were working concurrently. The RRWSG has been well aware of the primary
wetland compensation goal throughout the evaluation of the King William Reservoir project, but has
continued to focus on the interim ratio of 2 to 1 wetland replacement even after the functional
assessments demonstrated that there would be a net loss of wetland functions.
A review of the functional assessment methods shows that the overall King William Reservoir project
(proposed reservoir and mitigation sites) would not fully compensate for lost wetland functions, but rather
would result in a net loss of wetland functions (e.g., wildlife habitat, total net primary productivity and
support to the downstream wetlands as related to floodflow alteration, nutrient assimilation, sediment
retention, etc.). Based on flawed assumptions, the WET analysis was only performed on the Cohoke
Creek wetlands in the proposed King William Reservoir pool area, and was not used to evaluate the
reservoir or proposed wetland compensation sites. The WET was originally performed for use in making
broad brush comparisons of different reservoir alternatives, but RRWSG has since sought to interpret the
WET results well beyond the assumptions of the original assessment. The EPW assessment, also based
on flawed assumptions, was only successful in emphasizing the fact that the Cohoke Creek wetlands and
the proposed wetland compensation sites belong to different wetland classes and hence provide different
wetland functions. The HEP study clearly demonstrated that the overall King William Reservoir project
would not provide full in-kind compensation for either wetland or upland habitat losses in the King
William Reservoir project area. Again, this highlights how the overall King William Reservoir project
fails to address the functional loss of a diverse, self-sustaining riverine wetland system. The TNPP study,
although based on some erroneous assumptions, demonstrates the overall King William Reservoir project
would result in a net reduction of TNPP both within the proposed King William Reservoir pool area as
well as downstream reaches of Cohoke Creek. The Sediment Retention and Nutrient Assimilation
desktop reviews simply predict that a few wetland functions could be maximized with construction of the
King William Reservoir, but to the overall detriment of the remaining Cohoke Creek system by
eliminating other important functions (i. e., King William Reservoir would sever TNPP, nutrient, and
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sediment connections between the headwaters and downstream reaches of Cohoke Creek). Replacing a
heterogeneous wetland/upland riverine system complex with a large homogenous impoundment would
undoubtedly result in a reduction of Landscape Interspersion/Connectivity functions. (A more detailed
discussion of the various functional assessments can be found in the Functional Assessments Section of
the Norfolk District's report entitled "Analysis of wetland and habitat impacts and the Regional Raw
Water Study Group's proposed compensation for the proposed King William Reservoir.")
(e) Applicant's Compensation Proposals:
(i.) Mitigation: The Council on Environmental Quality has defined mitigation in its
regulations at 40 CFR 1508.20 to include: avoiding impacts, minimizing impacts, rectifying impacts,
reducing impacts over time, and compensating for impacts. In regard to wetland mitigation, the 1990
Corps/EPA Mitigation MOA requires a sequential review whereby project proponents must first
demonstrate avoidance of wetland impacts, then steps taken to minimize wetland impacts, and finally how
unavoidable wetland impacts will be compensated. While compensatory mitigation for wetland losses
must be planned and considered in the evaluation of a permit application, even complete wetland
compensation would not override the sequencing process in determining whether a project would not be
contrary to the public interest. If there is no demonstrated need for the loss, then the loss is avoidable and
no amount of wetland mitigation can compensate for the loss. Wetland losses must first be avoided, then
minimized and finally unavoidable wetland losses must be mitigated. The District's assessment focuses
on compensatory mitigation for anticipated wetland impacts that would result from construction of the
proposed King William Reservoir. The May 1999 Final Wetland Mitigation Plan indicates that the King
William Reservoir project was selected by the RRWSG as the least damaging, practicable alternative.
The RRWSG claims this choice was based on the process of the Environmental Protection Agency's 404
(b)(l) Guidelines. However, only the Corps makes the decision as to what constitutes the least
environmentally damaging, practicable alternative at the end of the permit evaluation. The applicant
cannot make that determination. Avoidance and minimization need to be demonstrated first; however, the
applicant's compensation proposals needed to be reviewed by the District so a determination could be
made as to whether the compensation proposals could offset the losses. Evaluation of steps taken to avoid
and minimize wetland impacts are addressed elsewhere in this document.
(ii.) Mitigation Team: An interagency team was formed in 1997 to evaluate and provide
guidance on a wetland mitigation plan to be developed by the RRWSG to compensate for the proposed
wetland impacts that would result from the construction of the King William Reservoir. The team was
comprised of representatives of the Norfolk District, EPA, the U. S. Fish and Wildlife Service,
Christopher Newport University (under contract with the EPA), Virginia Department of Environmental
Quality - Water Division, Newport News Waterworks, and Malcolm Pirnie, Inc. In a letter dated 3
September 1998, the City of Newport News notified the District that they had retained Southern Tier
Consulting and Environmental Specialties Group to assist them with the mitigation effort, and that
Environmental Specialties Group would replace Malcolm Pimie as the leader of their mitigation team.
The interagency mitigation team was assembled to review possible compensatory mitigation strategies in
conjunction with reviewing other facets of the proposed reservoir project. As part of the review process,
the RRWSG needed to show they could find 806 acres of compensatory wetland mitigation. Because
finding 806 acres of compensatory mitigation is not an easy task, the team worked to review the sites to
determine if they were feasible for wetland creation. Some sites were preliminarily reviewed and found
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not to be acceptable. Other sites have been studied in more detail and the information has been provided
in the "King William Reservoir Project Final Wetland Mitigation Plan" dated May 1999. by the RRWSG.
Generally, the Corps prefers onsite compensation sites. However, onsite restoration and creation areas
were not available due to steep topography, high elevations, and the lack of available prior converted (PC)
farmlands. Therefore, the consultants looked offsite using a screening process for identifying potential
mitigation sites. The consultants reviewed sites which contained the following: large acreage for
potential wetland development, hydric soils, sources of hydrology, proximity to existing wetlands and ,
streams, suitable landscape position, and site access. In general, priority was to be given to potential I
wetland restoration (e.g., prior converted cropland) rather than wetland creation sites, which may require I
extensive site manipulation. The Mitigation Team tried to ensure that creation was not forced onto a
marginal site. Also, an effort was made to evaluate the sites so as not to maximize wetland
restoration/creation acreage past that which the landscape position of the specific site could support. The
mitigation effort for this stage of the project was mainly driven by the acreage goal to meet the 2 to 1 ratio
requirement and to match cover type and hydrologic regime.
(iii.) August 1996 Conceptual Mitigation Plan: A Conceptual Mitigation Plan was developed
solely by the project proponents without interagency input and submitted to the District for review in
August 1996. This document contained the assumptions and findings of the Evaluation of Planned
Wetlands (EPW) functional assessment, which was not accepted by the District or other agencies (see
Functional Assessments, above). The report was prepared largely to provide the Virginia Department of
Environmental Quality with a conceptual mitigation plan for their permit review process. The plan was
developed prior to the formation of the Mitigation Team and proposed 590 acres of compensation on sites
which had not been reviewed by the District and the agencies. The plan identified 12 sites, 7 of which are
still proposed as primary mitigation sites in the final mitigation plan.
Early on, the RRWSG claimed that their unfinished plan met the 2 to 1 replacement goal and could fully
compensate for the losses of the large wetland system in the Cohoke Valley. The August 1996 Plan
states, "This plan is generous and demonstrates that the project's wetland impacts will be more than offset
by compensatory mitigation projects." However, the 1996 plan had not been determined to meet the
required goal of 2 to 1 replacement of lost acreage, because the RRWSG had not yet even identified 510
acres of the compensation plan for review by the District or the agencies.
(iv.) Pilot Study: The concept of a Pilot Study was formulated in a 17 April 1997 Mitigation
Team meeting to demonstrate the level of design detail needed for each of the wetland mitigation sites.
The Pilot Study produced detailed water budget information for Meadow Farm Site C; however, the
agencies were still concerned about suitable hydrology for that site and others. To remedy these
concerns, the Mitigation Team came to a consensus agreement that if the project were permitted, a few of
the more questionable and problematic mitigation sites would be constructed prior to any work being
conducted in wetlands at the impact site. Up-front construction of these wetland mitigation sites would
help test the validity of the water budgets and other assumptions made in the mitigation plans.
(v.) October 1997 Draft Mitigation Plan: The RRWSG submitted a Draft Mitigation Plan in
October 1997. This plan was the applicant's first version of a compensation plan with interagency input.
However, the RRWSG prematurely released the October 1997 Plan to the public with claims of full in-
kind replacement. During a 13 November 1997 Mitigation Team meeting, the District staff informed the
RRWSG that they should not claim to fully compensate for all the impacts if they could not substantiate
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such a claim. In a 24 November 1997 letter to the RRWSG, the District reiterated that the October 1997
Plan did not meet the goal of "no net loss" of wetlands. The Plan was incomplete and could not claim full
in-kind functional replacement, since the HEP study and other assessment methods were not finished.
The District recommended the RRWSG withdraw the report and resubmit it when the HEP and mitigation
reviews were complete. The RRWSG agreed to continue to work with the Mitigation Team and submit a
complete report at a later date.
During an 8 December 1997 meeting of the District and the advisory agencies, a consensus was reached
concerning the primary goal of the mitigation plan and the use of the HEP study. The wetland mitigation
plan should strive to replace other wetland functions that would be lost in addition to wildlife habitat
losses. The mitigation scenarios, that would be used to replace the habitat units lost, would be evaluated
by the mitigation team to determine which scenarios could provide the most beneficial wetland functions.
In a letter dated 28 May 1998, EPA concurred with the Service's approach of maintaining the 2 to 1 ratio
of wetland replacement while using the HEP as a guide to design feasible wetland sites.
(vi.) Fringe Study: The Fringe Study was completed by the RRWSG in an attempt to justify
the use of potential fringe area around the reservoir as wetland mitigation. The project proponents
performed this study without the benefit of input or concurrence on assumptions by the District or any
advisory agencies. This study attempted to examine the abiotic factors that influence the development of
potential fringe wetlands based on evaluation of several existing "reference reservoirs" in the Hampton
Roads area during the summer of 1996. Using this information, Malcolm Pirnie extrapolated the expected
extent of fringe wetland development at the proposed King William Reservoir at future time intervals.
During a 28 August 1997 Mitigation Team meeting and in a 29 September 1997 memo, the District
provided detailed comments on the Fringe Study; however, these comments were not addressed in the
RRWSG's final version of the study that was circulated in October, 1997. Since the concerns of the
District and other agencies were not adequately addressed, the assumptions and findings of the Fringe
Study have been rejected. The HEP team gave suitable habitat credit to the proposed King William
Reservoir lakeshore with its bordering vegetated buffer and unvegetated shallow water areas.
The District's problems with the use of the projected wetland fringe acreage as wetland compensation
stem from the difficulty in quantifying the amount of wetland fringe that would potentially develop, the
long-term sustainability of the fringe, and the fact that any fringe wetland development would be out-of-
kind. The report draws conclusions on wetland succession based on field observations of existing
reservoirs of different age classes made during a single growing season. However, the report did not
distinguish field observations of persistent wetland communities that were present before construction of
the reservoirs from wetland communities newly established after the reservoirs were constructed. This
may lead to erroneous predictions on wetland fringe succession, particularly as it relates to the predicted
depths that the different wetland classes may colonize over time. This is especially applicable to the
proposed King William Reservoir, which would result in the loss of virtually all wetlands located
upstream of the proposed dam.
The Service commented on the use of the fringe to provide some habitat benefit that could be evaluated
using HEP, but indicated that the predicted acreage provided in the Fringe Study did not appear to be
justified. The Service was opposed to using the potentially developing fringe area as compensation for
wetland impacts, but agreed to using the fringe for habitat compensation. Also, in their August 1997
memo, EPA stated "incidental fringe development will not be accepted by EPA as wetland compensation
for wetland losses incurred as the result of inundation. The unpredictability of wetland development,
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coupled with the frequency and duration of drawdowns at the reservoir will not provide assurance of
success."
(vii.) July 1998 Draft Mitigation Plan: The concept of the RRWSG submitting a working
document was discussed during the 27 and 28 May 1998 Mitigation Team meetings. During the meeting
the link between the HEP Study and the mitigation plan was again discussed. The District and the
agencies highly encouraged the RRWSG to finalize the HEP prior to submitting a mitigation plan. The
Mitigation Team met on 26 June 1998 and discussed the need for in-kind replacement of the wetlands that
would be lost and the problem of replacing the riverine wetlands with depressional wetlands that may not
be as productive. The Team also listed the functions of the existing wetlands and commented on the loss
of riverine systems. The projected total acreage for the proposed sites was also examined.
The RRWSG submitted a Working Draft Mitigation Plan in July 1998 to the District and the agencies.
The plan was submitted as a working document; otherwise it would have been sent to the agencies for
official comment. The District staff and the agencies felt that almost all of the potential wetland
mitigation acreage for each site had been overestimated. Overall, the proposal in the July 1998 plan fell
short of the 2 to 1 goal by over 200 acres. Contingency measures included use of sites that had not been
approved. In addition, the plan proposed that "If some, or portions of some of the proposed 785 acres of
wetland restoration and creation are not feasible following final design, fringe wetlands will make up any
differences to provide the 2:1 acreage." The District and the agencies had previously indicated several
times that the potential fringe development could not be used as wetland compensation.
The plan also offered a proposal for preservation of existing marshes to meet the 2 to 1 compensation
goal. While the District and the agencies agreed the proposed preservation areas contained pristine
marshes, the use of preservation to compensate for the proposed losses in the Cohoke system was not
acceptable. In addition, the Virginia Department of Environmental Quality's permit specified a
mitigation compensation package of no less than 2 to 1 creation/restoration. Therefore, the state permit
would have to be modified if a significantly different mitigation scenario was utilized.
In the 1998 plan, like others, the RRWSG claimed that the mitigation plan, "when successfully
implemented, will fully compensate for wetland losses that would result from the proposed King William
Reservoir." Due to many concerns with the proposed sites and the estimated acreages, the plan was
deemed by the District staff to be incomplete.
(viii.) February 1999 Final Revised Draft Mitigation Plan: In February 1999, Environmental
Specialties Group submitted the Final Revised Draft Mitigation Plan on behalf of the RRWSG. In this
plan, the RRWSG claimed there would be no net loss of wetland function and value, and they stated there
would be a net environmental gain as a result of implementing the strategies they had outlined. However,
the functional assessments did not support these claims.
The February 1999 Plan was the first time sites outside of the immediate watershed had been added to the
mitigation plan. Because the RRWSG indicated that they had exhausted all opportunities in the York
River Watershed, the RRWSG set their focus on the Rappahannock Watershed to find additional acreage.
EPA questioned whether the RRWSG had exhausted all options in the York River Watershed because the
RRWSG discussed acquiring mitigation sites via condemnation. In their February 1999 memo to the
District, EPA was "concerned that the February 1999 Plan makes reference to the fact that the City of
Newport News has made the determination that it is willing to consider condemnation to acquire
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beneficial mitigation sites. If this is true, it raises the question of allowing the RRWSG to move outside
the watershed of the York River Basin to investigate mitigation sites. EPA predicated the decision to
move outside the watershed for mitigation on the fact that Newport News had exhausted all feasible sites
within the York basin and would not pursue condemnation of property to acquire sites for mitigation.
This is an important issue and one that needs to be discussed before EPA considers the additional sites
included in the February 1999 Plan as feasible."
In the February 1999 memo, EPA also expressed concerns about the mitigation process. The Mitigation
Team had a systematic approach to reviewing the proposed sites and the process had been disrupted by a
change in consulting firms. EPA was particularly distressed that "the February 1999 Plan, while
including previously agreed upon sites and particular design elements, has included significant changes in
compensation acreage without the appropriate data to support such changes." The acreage of potential
mitigation on half of the sites had been substantially increased without the District's and the agencies'
agreement. The Mitigation Team had previously reached a consensus of the acreage figures for the
proposed sites during a January 1998 meeting. EPA expressed their concern for providing "additional
wetland acreage at existing sites by expanding the compensation beyond the footprint of hydric soils."
No additional documentation was offered by RRWSG to support the changes. EPA stressed that the
approach "may result in wetland development which would not be appropriate for the landscape or may
result in failure to create wetlands at all." Given their concerns about the February 1999 Mitigation Plan,
EPA objected to the plan because it would not "provide the optimal means of mimicking the values and
functions of the wetlands lost at Cohoke Mill Creek."
(ix.) May 1999 King William Reservoir Project - Final Mitigation Plan: On 27 May 1999,
the Final Wetland Mitigation Plan was submitted by Environmental Specialties Group with input from
Malcolm Pirnie. Conceptual design plans were included in the May 1999 plan. The Final Plan focused on
achieving needed acreage to meet 2 to 1 wetland replacement. However, it was recognized that the final
acreage needed could increase depending on the results of the ongoing functional assessments.
In the Final Mitigation Plan, the RRWSG expressed their opinion that the acreage required could even be
reduced below the 2 to 1 ratio and still meet the goal of no net loss of wetland function. They quote
Kruczynski's 1989 paper entitled "Mitigation and the Section 404 Program: A Perspective", in which he
indicates that ratios can be lowered where the mitigation is in place prior to the impacts. In that paper,
Kruczynski clarifies that those ratios "are suggested for on-site, type-for-type (in-kind) replacement
mitigation." In addition, his suggestions were generally directed to wetland restoration. A large portion
of many of the King William Mitigation sites would be considered creation. For wetland creation, he
indicated that "Increasing the ratio to 2 to 1 can be justified on the basis of the greater risk associated with
any particular site." The Lanesville and Meadow Farm Site B both contain farmed wetlands. Typically,
credit for enhancement would be given at even higher ratios, due to the fact that some wetland functions
are currently present. Kruczynski notes that for enhancement "There is a risk that although some
functions will be improved other currently existing functions could be degraded. Due to this uncertainty,
a 3 to 1 mitigation should be required on an acre-for-acre basis." The District does not agree that the
proposed plan would exceed prescribed ratios and go far beyond achieving no net loss of functions and
values as stated in the Final Mitigation Plan. I have determined that if all of the primary sites and some of
the contingency sites are completely successful, the applicant's Mitigation Plan would provide no net loss
of acreage and some wetland functions, but has not been demonstrated to fully compensate for all
functions of the existing Cohoke Creek system.
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Comments from the Service and EPA came at the time when the need for the projected amount of water
was being re-evaluated by the District based on the findings of reviews conducted by the Institute for
Water Resources. In the Service's 22 July 1999 letter and EPA's 5 August 1999 letter to the District,
both agencies conveyed their belief that the sequencing process of mitigation had not been completed due
to the possibility of an existing less damaging alternative. EPA only provided general comments on the
Final Mitigation Plan, and requested the opportunity to comment in more detail if in the future new
information supported issuance of a permit for the reservoir as the least environmentally damaging
practicable alternative. EPA stressed the importance of recognizing "the diverse wetland communities
present may be extremely difficult, if not impossible, to adequately replace." EPA also maintained their
opinion that the Cohoke wetlands qualify as an Aquatic Resource of National Importance (ARNI) due to
the diverse type, quantity and functional capacity. The basis for the determination is found in Part IV 3(a)
of the Clean Water Act Section 404(q) Memorandum of Agreement between EPA and the Department of
Army.
The Service also expressed concern for replacing a "stream valley wetland complex driven by a
groundwater/surface interface" with farm fields that have depressional surface water regimes. The
Service believes the proposed mitigation is hydrologically and ecologically "out-of-kind." Even though
the created wetlands would be of the same cover types according to the Cowardin classification as the
existing wetlands, the Service indicated those areas would not have the same sources of hydrology which
affect the functions of the system. The landscape positions of the proposed mitigation sites do not mimic
that of the Cohoke Valley stream complex. The plan attempts to take pieces of land that are adjacent to
streams and rivers and perch water to create wetlands or restore cropland back to its former wetland
status. Most of the proposed mitigation sites would be predominantly precipitation driven with a few
having unqualified groundwater inputs. The Cohoke Valley contains flow-through wetlands that absorb
and export nutrients, retain and transport sediments, and retain flood waters as they pass through the
system and provide habitat to species that thrive in these slow moving stream valleys. The proposed sites
may be adjacent to streams or have streams on the property, but the proposals do not restore stream valley
complexes as claimed by Newport News in their 28 November 2000 letter.
In their 22 July 1999 letter, the Service expressed concerns over the sustainability of off-site hydrology
for the mitigation sites. Previously, District staff raised the issue of sustaining long-term hydrology of
some sites in comments dated 29 July 1997 in response to the Pilot Study. The District and the agencies
were concerned about changes in land use over time, which could detrimentally influence the long-term
hydrology supporting the mitigation sites. During Mitigation Team meetings, the possibility of the
RRWSG obtaining hydrologic easements was discussed. The Service sees this as a serious deficiency in
the Plan and has indicated they would object to a Final Wetland Mitigation Plan without a commitment
from RRWSG to obtain long-term hydrology rights from off-site sources for certain sites, such as the
Townsend and Lanesville sites which heavily rely on surface water runoff as a major source of hydrology.
Newport News responded to this issue in their 28 November 2000 letter to the District in which they
address the comments on the Final Mitigation Plan. They have indicated their willingness to obtain water
rights once the sites have been purchased. However, they feel that in some cases it may not be needed,
because major portions of the drainage area are located on the mitigation sites or preservation sites. I
agree that it may not be necessary to purchase water rights on all sites, but protection of the watershed
would be imperative for the success of some of the sites that rely predominantly on surface water runoff.
Although the RRWSG's Final Mitigation Plan proposed only a 5-year period for monitoring, in their 28
November 2000 letter responding to agency comments, the City of Newport News agreed to the
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recommended 20-year timeframe. Should a permit be issued, the District would work with the applicant
to develop an acceptable monitoring plan with specific success criteria should discussions on the
mitigation plan resume.
Other concerns about the proposed wetland mitigation plan surround the Taliaferro and Terrell sites in the
Rappahannock River watershed. The Mitigation Team conducted a single field visit to each of these
sites; however, only preliminary information has been provided for those sites. Together, the two sites
provide 235 acres of the proposed mitigation. District staff and agency representatives have not agreed to
the viability of the sites because additional water budget information and detailed soils analyses have not
been provided. In a 24 May 1999 letter to the District, the Service expressed concerns over the
preliminary design plans for the Terrell and Taliaferro sites. The Service provided site-specific
comments, which described serious design flaws in the conceptual plans. The Service had provided those
comments based on the draft plans; however, in the Service's 22 July 1999 letter, they indicated that the
same deficiencies and flaws were present in the Final Mitigation Plan. In their 28 November 2000 letter,
the City of Newport News responded to some of the concerns about the Terrell and Taliaferro sites;
however, the larger issues with those sites have not been resolved.
Without some assurances that the hydrology would be maintained in the future to sufficiently supply a
created wetland, I cannot agree that a fully successful mitigation effort could be achieved. The Service
maintains a strong belief that the District should not accept and approve a Final Wetland Mitigation Plan
with the existing conceptual plans for the Terrell and Taliaferro sites. In a 6 August 1999 memo, EPA
also conveyed similar concerns about the conceptual plans for the Terrell and Taliaferro sites. Because of
the outstanding concerns regarding the two sites, EPA believes they should not be included in the Final
Wetland Mitigation Plan until the conceptual design plans have been corrected.
An additional problem with the Mitigation Plan is that the use of the proposed mitigation sites has not
been secured and some of the sites may not remain feasible. For example, the Bleak Hill/Ferry Farm site
has been proposed for a mitigation bank by York River Mitigation Landbank, L.L.C. The District has
received a Prospectus for the proposal outlining the intentions of the landowner to create a mitigation
bank on the site. The Bleak Hill/Ferry Farm site was estimated as providing 126 acres of the RRWSG's
mitigation plan.
Other screening factors, such as the presence of federally listed endangered or threatened species, could
affect the use of particular sites or portions of sites or potentially only impose time of year restrictions on
the construction work. The Virginia Department of Conservation Recreation's Natural Heritage in a 11
January 1999 letter indicated that federally listed threatened bald eagle nests have been located near Davis
Farm and the Borrow Area. According to Natural Heritage the federally listed threatened small whorled
pogonia may be present near the Borrow Area. In a January 14, 1999 letter to Environmental Specialties
Group, the Virginia Department of Game and Inland Fisheries also indicated bald eagles may be present
near the Davis Farm site and Lanesville. Small whorled pogonia plants may also be present at Lanesville.
In a 26 January 1999 letter the U. S. Fish and Wildlife Services' Virginia Field Office recommended
surveys for the small whorled pogonia on any of the mitigation sites that contained appropriate habitat.
The Service also indicated that nests of the great blue heron have been documented near the Island and
Rice sites.
In addition, not all of the mitigation sites have been screened for historic resources. It has come to the
District staffs attention that the proposed Townsend wetland mitigation site is situated within the
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Marlbourne National Historic Landmark site (National Register Number: 66000837) in Hanover County,
Virginia. A 1999 Phase I Survey report submitted by the applicant referenced the Marlbourne National
Landmark, but did not indicate that the Townsend Site was within the Landmark boundaries and did not
recommend additional surveys. According to the Virginia Department of Historic Resources, additional
coordination under Section 106 would be necessary, and the effects of the proposed action on the
National Historic Landmark would have to be coordinated with the National Park Service (Personal
Communication, March 2001). The Gulasky Site was also reviewed in the 1999 Phase I Survey review.
The report indicated that additional historic resource surveys may be necessary depending on the final
mitigation plan.
Specific water budget information would be required to design final plans, which would need to be
reviewed by District staff and the advisory agencies. Final approval from the District would be required
prior to initiation of construction. The District and the federal agencies raised numerous concerns
regarding the viability of some the mitigation sites, based on such variables as landscape position,
contributing watershed for supporting hydrology, soil permeability, etc. Based on those concerns,
RRWSG proposed to construct three mitigation sites as demonstration projects prior to or concurrent with
construction of the dam. The three sites determined to be the most problematic by the mitigation team
consists of the Townsend site, Meadow Farm site B and Meadow Farm site C. Lessons learned from the
demonstration projects would be applied to the remaining sites. The following is a brief description of
each mitigation site in the Final Plan, with some of the District's concerns noted (see Map 5 - Wetland
Mitigation Site Locations).
Bleak Hill /Ferry Farm
This site is located adjacent to the Pamunkey River and consists of 126 acres, which have been divided
into three sections for the mitigation plan. Even though this appears to be an suitable site to the District
and the federal agencies, it is recognized that Sites B and C will involve some earthwork and a water
conveyance channel, which makes success of the design riskier. The hydrology would be supplied by
stormwater runoff. The landscape position of the site is ideal; however, the wetlands would be
depressional and would not be replacing the functions of the lost system. As noted above, this site has
been proposed for a mitigation bank.
Burlington Farm
The 14-acre farm site would involve creation and restoration of wetlands. Although the site is small it
does contribute to the overall Mitigation Plan, since it drains to the Meadow Farm Site and a corridor
between the two sites could be protected. The tributary on the site flows to the Mattaponi River. The
existing ditches on the site would be filled to allow water to disperse across the site. Minor earthwork
would occur and a water conveyance channel would be installed. Most of the area is underlain by hydric
soils. Burlington Farm would contain only slope and depressional type wetlands that would not replace
the functions of the impacted system.
Davis Site
The plan for the Davis Site, which drains to the York River, is to restore/create 12 acres of wetlands in the
existing farm field. The majority of the work would be creation, since hydric soils are only around the
existing wetlands. Grading would be required to create wetlands, which would be supported by a
relatively small drainage basin. The hydrology would be supported by runoff and precipitation.
Protection of the drainage basin may be necessary to ensure long-term success of the wetlands. The
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wetlands would be created along a stream channel, but would be depressional for the most part and would
not replace the function of the impacted system.
Gulasky
The Mitigation Plan includes restoration/creation of 33 acres of wetlands on this site, which drain to the
Pamunkey River. No perennial or intermittent streams flow onto the site; therefore, the hydrology relies
on runoff from the drainage area and precipitation. The slope wetlands would be created by installing
small berms to hold the water on the site. The District had some concerns regarding the cross-sectional
drawings, which show upland at elevation 56 and wetlands at elevation 59. This seems to be creation of a
perched wetland that may not be sustainable in the long-term. For Site B the plan calls for installing a 12-
inch berm, which would go through existing wetlands on the south side of a ditch. Further review of the
necessity of placing a berm in existing wetlands would be needed. The plan calls for cutting and filling in
other areas to create the slope wetlands, which would not replace the functions of the impacted wetlands.
Island Site
The landscape position of this site is very favorable, since it is surrounded by existing wetlands. The
major concern on this site is that too much creation would be forced onto a site that cannot support that
much wetland creation. The plan calls for creation of 79 acres of wetlands along existing wetlands and
drainageways. The source of hydrology is intercepted stormflow from Moncuin Creek and precipitation.
The predominance of non-hydric soils within the proposed wetland area would need to be overcome by
adding organics. Creation of wetlands here may be risky, but the benefits are taking the site out of farm
production and preserving the wetlands and uplands. The existing road into the site acts as a dam and
could potentially affect the hydrology of the site. This would need to be further investigated. The Island
Site would provide some wetlands, which would have a riverine component; otherwise they would be
classified as depressional. This site has a favorable landscape setting; however, it would be important not
to force wetlands into inappropriate areas on this natural upland island.
King William Sand and Gravel Site
The 38-acre farm field would be restored and created into wetlands that would provide some riparian
habitat to the Mattaponi River. The hydrology would be from surface water flows, so concern is for
protection of the drainage basin and future land uses. The proposed restoration/creation areas include
both hydric and non-hydric soils. Hydric soils are only found in the northern portion of the site, next to
the existing wetlands. The plan calls for adding small berms to capture and hold water on the site longer.
The site has a great deal of potential, but the District does question whether wetlands would be
established up to elevation 48. Water from the intermittent drainage would be routed to enter the
mitigation site and the drainage ditch in the center of the field would be filled. The wetlands created on
the site would be slope and riverine which would be similar to the impacted wetlands. Although the site
is adjacent to Boot Swamp Creek, the design does not include diversion of water away from the creek.
The wetlands would flow into that creek further downstream.
Lanesville
The Lanesville site contains 33 acres of farm field that would be restored/created into wetlands that would
drain to a tributary of the Pamunkey River. The hydrology would be a function of direct precipitation,
surface water runoff, and groundwater seepage. The main source of hydrology would be surface water
flow. Since the majority of the drainage area is offsite, there is concern about a viable long-term source
of hydrology. The wetlands creation/restoration would be completed by filling the existing shallow
ditches and installing a 2-foot rise along one side of the property to hold water on the site. Most of the
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creation/restoration area contains hydric soils. In fact, a portion of the area along the slope already
contains hydrophytic vegetation and would be considered farmed wetland pasture. The District would
have concerns with the proposal to create wetlands at elevation 40 adjacent to existing uplands at
elevation 34 as it would create a perched system. In addition, wetlands with a seasonally flooded regime
are proposed to be created in that perched area that is underlain by mostly non-hydric soils. Some work
would need to be done on this plan to show that creation of 33 acres is feasible. Slope and depressional
wetlands would be created, so this site would not replace the functions of the riverine wetlands found in
the Cohoke Creek system.
Meadow Farm A
This site is located immediately adjacent to the Mattaponi River. It contains 71 acres of farm field, an
open water pond, forested wetlands and forested uplands. Farmed wetlands are present on this site
adjacent to the pond. There is a natural levee between the site and the River. The hydrology would be
based on surface water flow. The perennial stream adjacent to the site would also be diverted to provide
water as sheet flow across the site. The 21-acre farm field would be converted to wetlands, the existing
pond would remain unchanged, and some upland restoration would occur. Since farmed wetlands are
present on a large portion of the field, that area would actually be enhancement. Excavation would create
a depressional landscape fed by surface water flow and precipitation, so these wetlands would not replace
the functions of the impacted wetlands.
Meadow Farm B
The proposal for this site involves converting an abandoned sand and gravel mining site into wetlands
along the Mattaponi River. Wetlands in this landscape position could provide some riparian habitat and
water quality benefits. Careful consideration would need to be given to soil amenities, since previously
mined areas often contain very sterile conditions. The hydrology would be based on a seasonal high
water table and some surface flow. This system would be connected to the Mattaponi River and would
have more of an opportunity to become naturalized than the proposed borrow area, which was not
favorable to the District or the agencies. The mined areas would be filled up to wetland elevations
creating approximately 57 acres of depressional wetlands unlike the impacted wetlands.
Meadow Farm C
This site consists of 169 acres of pasture and cropland, and the majority of the fields are underlain by
hydric soils. The landowner modified the hydrology by installing ditches and some drain tile. The plan
calls for capturing surface water and holding it on the site for prolonged periods. The long-term
availability of hydrologic inputs from the drainage area of this site would be a concern, since the wetland
mitigation site would be supported by surface runoff and precipitation. Approximately 30 acres of the
site contains hydric soils and only minor earthwork would be required to accomplish the restoration. The
other 43 acres does contain hydric soils, but grading has been proposed to create wetlands on this part of
the site. The proposed elevations of the water conveyance may be problematic. The proposal on the east
side of the site shows a perched wetland at elevation 52 and there are existing uplands at elevation 40.
The plan calls for filling a slope from elevation 40 to 52 and installing a reinforced water conveyance
channel creating a perched wetland system. Approximately 73 acres of depressional wetlands would be
created. The created wetlands would not replace the functions of the lost wetlands. Several District and
agency team members had concerns over the proposal for this site, so the RRWSG agreed that it would be
constructed first as a demonstration project.
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Rice Site
The Rice Site consists of 33 acres of farmland that would be converted to wetlands. Almost all of the
soils in the farmed area are non-hydric, so this would be considered creation. The hydrology would be
supported by surface flow and precipitation. The site has a small watershed consisting of existing
farmland. This could be a concern if the drainage area was developed and stormwater was routed away
from the site. The plan calls for matching the elevations of the Pamunkey River floodplain, which is
immediately adjacent to the site. The created wetlands would connect to existing floodplain. Even
though this site is small and would contain creation, the landscape position across the Pamunkey River
from the Island Site makes it favorable. Approximately 33 acres of riverine wetlands, which are similar
to the impacted wetlands, would be created.
Taliaferro Site
A 42-acre farm field would be converted to wetlands and 3 acres of existing forest would be hydrated to
restore/create wetlands in the Rappahannock River watershed. The site contains hydric soils and has been
ditched to facilitate drainage. The hydrology would be supported by surface flow and direct precipitation.
The existing swales and ditches would be backfilled to restore wetland hydrology to the field. The
District concurs with the Service's concerns about the plans showing a water conveyance channel at
elevation 28.5 and wetlands at elevation 30.5. Without additional information, it would be difficult to
determine if that proposal is feasible. The majority of the watershed contributing to the hydrology is
offsite and future development could have an effect on the long-term sustainability of the wetlands. The
wetlands that would be restored would be considered depressional and would not replace the lost
functions of the Cohoke wetlands.
Terrell Site
The 300-acre tract is currently open farmland off Route 17 in the Rappahannock River basin. The
agencies and the District do not agree with the RRWSG that the site could support creation/restoration of
300 acres of wetlands. A somewhat tentative consensus was reached for 190 acres of creation/restoration.
The hydrology would be based on surface runoff from surrounding sites and an offsite pond that flows
into the site. The future use of the pond and the contributing watershed would be a concern, since this
water is needed to support the hydrology of the wetland mitigation area. The existing ditches would be
filled and a berm would be installed along the northern edges of the site to hold water for longer
durations. Rough areas and depression would also be added for diversity to this surface water site. A
large portion of the site contains hydric soils and the plan does not propose any major grading. The lower
and middle portions of the site seem to be the most promising. The upper areas, closest to Route 17
appear to be more problematic. The District finds potential for restoration of wetlands on the site, but
fears that the hydrology may not support a larger acreage. Depressional wetlands, that would not replace
the functions of the Cohoke wetlands, would be created on the site.
Townsend Site
This site consists of 90 acres of farmland that would be restored/created into wetlands. Part of the site
drains to a tributary to Totopotomoy Creek and the other part flows under Route 360 to a pond that
discharges to the Pamunkey River. The hydrology would be supplied by surface flows and direct
precipitation. The plan calls for backfilling the existing drainage ditches and installing water conveyance
channels. The proposal involves only minor earthwork and a large part of the site is underlain by hydric
soils. One concern for this site would be the lack of control over the drainage area, especially since it is
along the Route 360-corridor. Some of the proposed elevations on the cross section also would need to be
further reviewed to determine if they are feasible. The Townsend site would produce slope and
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depressional wetlands, which would not replace the functions of the impacted wetlands. As noted
previously, there are additional historic resource concerns surrounding this site.
Contingency Sites
Although the Mitigation Team has not reviewed the Hollyfield Farm, Chericoke Farm or the Wood Farm
Sites, it appears on cursory review that they may have potential for wetlands restoration/creation. These
sites contain large acreages of hydric soils and they drain to the Pamunkey River. Additional acreages at
primary sites were also included as contingency acreage. While the District has not agreed that additional
acreages would be feasible, any additional acreages achieved would be considered if a permit for the
reservoir project was issued.
The Mitigation plan could fall short by as much as 431 acres due to the uncertain feasibility of the 90-acre
Townsend site, problems with the designs of Terrell and Taliaferro (combined acreage of 232), and due to
changes in the conceptual plans that appeared in the Final Wetland Mitigation Plan, for Gulasky,
Lanesville, and Meadow Farm C (an additional 109 acres). The Townsend Site is potentially located
within a national historic landmark and its use may be limited. Additional problems with the designs and
water budgets of the Terrell and Taliaferro Sites have been identified by the District and the agencies. The
plans for these two sites are not acceptable as submitted, and additional field work would probably be
needed to develop suitable wetland restoration/creation designs. During the field visits the District and
the agencies agreed that opportunity exists for wetland creation/restoration on the proposed sites in the
Final plan; however, the District and the agencies do not agree with all aspects of the conceptual plans.
The District staff believes that the proposed sites included in the Final Mitigation Plan are acceptable as
compensatory mitigation sites; however, the wetlands created would not replace the functions of the
wetlands that would be impacted. In addition, the applicant altered the design plans submitted in the
Final Plan from those previously submitted. The changes to the design plans have caused my staff
additional concerns over the sustainability of the proposed wetland creation.
(x.) Mitigation Program, Fish and Wildlife Mitigation Plan: On 06 October 1999, Malcolm
Pirnie submitted the Mitigation Program, Fish and Wildlife Mitigation Plan for the RRWSG. The
purpose of the report was to tie together all aspects of the mitigation proposals including the functional
assessments and the stream restoration. The plan summarized the acreage of mitigation proposed
including the upland buffer areas, which are part of the mitigation sites. In most cases, the RRWSG
would be required by existing landowners to purchase whole parcels including upland. The remaining
upland would act as buffers to the created wetlands.
One of the shortcomings of this report was that a great deal of the information it contained was based on
studies, such as the Fringe Report, that had been rejected by the District and the agencies. Also, the
functional assessments, WET and EPW were performed without input from the federal agencies and
several of the assumptions made for the methodologies were seriously flawed (see Functional
Assessments, 8 f. (2) (d) above). The Mitigation Program, Fish and Wildlife Mitigation Plan indicates
valuable shoreline wetlands and shallow water habitat are expected to develop around the proposed
reservoir. These potential wetland areas were not included as mitigation due to the fluctuating water level
in the proposed reservoir, the steep slopes down to the water's edge and the questionable nature of their
development and sustainability.
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The report also addressed other forms of mitigation. One section discussed support to the Pamunkey and
Mattaponi Indian Tribes for the fish hatcheries on the Tribal Reservations. This type of mitigation cannot
be used as compensation for wetland impacts, but may be evaluated for other public interest review
factors.
The Mitigation Program, Fish and Wildlife Mitigation Plan indicates that the Wetland Mitigation Plan
exceeds the District's wetland compensation requirements by 137 acres. The difference in acreage is
based on a full 2 to 1 ratio versus a 1 to 1 ratio for emergent impacts and a 1.5 to 1 ratio for scrub-shrub
impacts. The RRWSG's Final Wetland Mitigation Plan includes 806 acres of potential restoration and
creation of wetlands to meet the 2 to 1 ratio generally required by the District for forested wetland
impacts. The Norfolk District Regulatory guidance on mitigation ratios provides compensation ranges
between 0.5 to 1 and 1.5 to 1 for emergent wetland impacts, between 1 to 1 and 2 to 1 for scrub-shrub
wetland impacts, and between 1.5 to 1 and 2 to 1 for forested wetland impacts. The guidance also states
"in any specific case the appropriate ratio can vary from zero to infinity.. .based solely on the functions
and values of the aquatic resources that will be impacted." Originally the RRWSG had proposed a 1 to 1
ratio for all the impacts, including impacts to the forested wetlands. The District indicated that 1 to 1 was
not acceptable and that a 2 to 1 ratio for the impacts would be needed to even begin to offset the impacts
to the Cohoke wetland complex. Utilizing a 2 to 1 ratio is needed to address the temporal losses
associated with replacing a highly diverse system with a newly created wetland.
In their 28 November 2000 letter, Newport News addressed this issue again and reiterated how their
Mitigation Plan goes beyond the general requirements of the District's mitigation policy. The District
determines mitigation ratios on a case-by-case basis for each project depending on the size of the impact
and the quality of the system. In the paper entitled "Evaluation of the Effectiveness of Within Watershed
Compensation in Response to Permitted Activities through the Norfolk District's Section 404 Regulatory
Program", Jones and Boyd reported that an overall mitigation ratio of 1.7 to 1 was achieved during the
assessment period of 1996, 1997 and 1998. That overall ratio took into consideration projects that
involved impacts to emergent, scrub-shrub and forested wetlands.
It is not unusual for the mitigation ratios to be higher for a project with impacts of the magnitude
proposed by the RRWSG. Generally when the Corps permits project impacts with mitigation, the project
does not eliminate an entire, highly diverse system such as would be impacted by this project. It is not
appropriate to compare the ratio of mitigation required for this project with other projects reviewed by the
District, since this project would have substantial impacts (orders of magnitude higher than usual
projects) to an entire wetland system. The proposed project represents a larger impact than the Norfolk
District typically authorizes in a single year for all projects. According to the Norfolk District Regulatory
Database, the District permitted a total of 394.4 acres of impacts in 1996, 267.5 acres in 1997 and 266.4
acres in 1998. These impact totals are for the entire state for each individual year. The impacts from the
King William Reservoir would be more than the total amount of impacts typically permitted in an entire
year in the State of Virginia.
(xi.) Stream Compensation: The mitigation proposal for the 21 miles of stream channel
impacts includes restoration of 21 miles of stream channel in other off-site locations. The proposed
stream restoration plan is described in the May 1999 Final Wetland Mitigation Plan. The consultants
have identified degraded stream systems in the Green Springs National Historic Area in Louisa County,
Virginia. On 23 February 1998, District and Service representatives reviewed the potential stream
restoration sites. The area includes both intermittent and perennial stream channels. Many of the streams
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have been affected by livestock accessing the streams. The RRWSG proposes to analyze each particular
stream using the following parameters: stream bottom and bank conditions, erosional forces, width and
presence of vegetated buffers, and the practicability and long-term success potential of performing the
work. The proposal for each stream restoration effort would vary depending on the condition and the
reasons for the degradation. Options could include encouraging development of riparian, buffers, nutrient
and pesticide management, livestock exclusion through fencing, and bioengineering to reduce erosional
forces. The goal of the proposed work is to improve water quality in the streams and increase the habitat
value. Where possible, preservation of the restored channels and other land use restrictions would be
utilized to protect the stream corridors from additional impacts. However, conservation agreements may
not be in perpetuity and would be dependent on agreements with individual landowners. The landowners'
desires and the RRWSG's ability to maintain the fencing in the future would also affect the amount of
protection to the streams.
At the Mitigation Team meeting on 26 June 1998, the RRWSG indicated that 21 miles of intermittent and
perennial stream channel restoration would occur at a 1 to 1 ratio for stream miles and stream order.
Specific proposals for stream restoration have not been submitted to the District and the agencies, so it is
difficult to determine if that goal was met. No further discussion about the stream order of the restoration
channels was offered. In addition, the long-term benefits and success of the proposal are difficult to
determine without knowing the level of individual landowners' participation and willingness to continue
the stream restoration in perpetuity.
The May 1999 Wetland Mitigation Plan also indicated 6.4 miles of stream between the proposed dam and
the Cohoke Millpond would be preserved. As discussed previously, the RRWSG has been unwilling to
propose preservation in perpetuity in hopes of using the area in the future for expansion of the dam if the
project is permitted. This is not an acceptable mitigation option since the long-term viability is
questionable.
The Mitigation Team has also discussed restoring stream channels on some of the proposed mitigation
sites, such as Davis Farm, Terrell and Taliaferro sites. Stream restoration has been encouraged in
corridors, which would tie into other natural wetland systems. Breaching impediments to anadromous
fish migration has also been suggested as being connected to the stream restoration plans.
While stream restoration alone is commendable, the action still does not compensate for the loss of a
stream valley complex found in the Cohoke system. The Service expressed their concern for the
disjointed form of compensation in a 22 July 1999 letter to the District addressing the Final Wetland
Mitigation Plan. The Service indicated, "The applicant's Final Plan proposes to perform stream
mitigation predominantly separate from the wetland mitigation, further demonstrating that the stream
valley wetland complex has been torn into two disjunct, ecologically disconnected components for
mitigation purposes." I do not believe that the proposed stream restoration could fully mitigate for the
loss of 21 miles of contiguous stream channel.
(xii.) Environmental Issues Summary: The RRWSG submitted the Environmental Issues
Summary in August 1999 in response to my preliminary position of denial of the project. The RRWSG
indicated that report was not intended to provide new information, but to summarize their project and
reiterate all the benefits they believe the project would provide. However, the report made many claims
that had not been made previously and were not substantiated.
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The RRWSG contends that a positive net environmental impact can be achieved when implementing the
King William Reservoir Final Mitigation Plan. The District agrees with EPA's opinion that, "There is no
net gain as a result of the RRWSG mitigation plan but rather, if all goes as planned, an offset of impacts, a
compensating equivalent [in wetland acreage]." An offset of the acreage of impacts is only seen if the
mitigation sites are fully successful. The Environmental Issues Summary indicates that the open water of
the reservoir and the mitigation sites would represent a net gain in wetlands. The District believes that
over several years, a net gain in acreage may occur if all the proposed mitigation is fully successful.
However, a gain or even a compensatory equivalent in net function has not been demonstrated. EPA has
maintained their belief that "the complex mosaic ecosystem which will be impounded by the reservoir can
not be replicated." The Service expressed similar opinions in a 25 July 1997 letter, "Based on the
Service's extensive involvement evaluating the evolving wetland mitigation plan, we do not see the
possibility that the applicant can adequately replace the wetland functions, contiguous habitat, and
wetland types that the project proposes to impact."
(xiii.) Uplands Preserved: The City of Newport News has included as a part of their
mitigation package those remaining portions of several of their mitigation sites (totaling approximately
1,000 acres) that are unsuitable for wetland compensation, as buffer areas adjacent to the created and
restored wetland areas. These upland areas must be purchased along with mitigation site. In many cases
these upland areas comprise a portion of the contributing watershed to the proposed compensation sites,
and their preservation would help ensure the long-term protection of at least a small part of the hydrologic
inputs from the catchment.
The RRWSG's Mitigation Program, Fish and Wildlife Mitigation Plan also offers as compensation for the
upland that would be inundated by the reservoir, the 1,900 acres of upland forest that surrounds the
reservoir as a buffer. The 100-foot water quality buffer would total 1,300 acres and the 100-foot
construction setback, in which development would be limited, would be 600 acres. The mitigation
proposal also includes the temporary preservation of 620 acres of upland located between the proposed
dam and Cohoke Millpond. However, as the upland below the proposed dam would not be held in
perpetuity, future impacts could occur in that area.
The City claims that their preservation of upland would create large areas of habitat for species that
require contiguous hardwood forests and that the reservoir buffer would provide forest and riparian edge
habitat that can support several species. The 100-foot construction setback provides no guarantee that an
undisturbed forested area would remain. It is unclear as to whether that construction setback buffer
would be owned by the adjacent property owner or the City of Newport News. The benefits to wildlife
would be limited due to use of the reservoir and surrounding land for recreation and by any future
adjacent property owners.
In a 16 July 1997 letter, Natural Heritage concluded that the total 200-foot wide construction setback and
water quality buffer would essentially be edge habitat, not contiguous forest with habitat value to interior
dwelling species. Species in this area would be trapped between the reservoir and rural/suburban
development on the other side. Natural Heritage indicated that research has shown such areas in forest
patches are actually detrimental to breeding neotropical migratory bird species.
(f) Summary of District's Findings on Compensation Proposals: In the 28 November 2000
letter addressing the agencies' response to the Final Mitigation Plan, Newport News rebutted the opinions
that the Plan offers mitigation that is hydrologically and ecologically out-of-kind. In "Mitigation
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Technical Guidelines for Chesapeake Bay Wetlands", which was published with interagency cooperation
in 1994, Eckles et al. define in-kind replacement as "compensatory mitigation activities which replace the
hydrologic core and structural factors, ecosystem processes, functions, and values of a project wetland."
As noted in "Mitigation Technical Guidelines for Chesapeake Bay Wetlands", "wetland communities
located within a riparian corridor are affected by stream hydraulics (e.g., overbank flow rates and
duration, sediment deposition, and scouring), whereas other wetland communities are more affected by
groundwater, direct precipitation, and surface runoff. The hydrologic core factors of the two communities
are different." Different sources of water and energy of flows affect the nutrient cycling, community
dynamics, organic matter production, decomposition, and export of carbon. It is important to note that the
proposed sites generally do not provide in-kind replacement of the Cohoke stream valley complex.
The concept of impacting one large wetland system and replacing it with smaller wetlands located
throughout the watershed is contrary to the mitigation banking policy used by the Corps. The "Federal
Guidance for Establishment, Use, and Operation of Mitigation Banks" indicates that mitigation banking
"typically involves the consolidation of small, fragmented wetland mitigation projects into one large
contiguous site." Consolidating the impacts helps to more effectively replace lost wetland functions.
Replacing a large contiguous wetland system with individual sites scattered throughout the landscape
does not fully compensate for the proposed losses. While the individual sites do provide a habitat benefit,
they cannot compensate for the loss of a large contiguous system with inter-related upland, vegetated
wetlands, shallow open water, and varying hydrologic regimes. Piecemealing the compensation sites in
the various hydrogeomorphic settings cannot fully compensate or provide the same functions as the
existing free-flowing riverine system of the Cohoke Creek.
The 34 acres of open water that would be impacted by the project would not be offset by the creation of I
the 1,526-acre lake as claimed by the City of Newport News. These water regimes are totally dissimilar t
and do not provide the same types of wildlife habitat or water quality functions. Also, the applicant's •
proposed enhancement and restoration of other streams does not replace the streams that would be lost. ^
Furthermore, open water areas have limited functions, which are not typically as valuable as the functions
of existing swamps, such as found in the Cohoke system.
In a letter dated 12 March 1997, VIMS expressed concern over the success of the applicant's mitigation
proposal. "It is not clear that highly scattered areas of creation, restoration and preservation will
accomplish the compensation goal envisioned for them given the overall complexities of the present
landscape and our relative lack of sophistication at present when it comes to evolving wetland-landscape
interactions." EPA commented that the diverse wetland communities at the King William site might be
extremely difficult, if not impossible, to adequately replace. In a letter dated 23 August 1996, the U. S.
Fish and Wildlife Service commented, "The Service does not believe it is practical or possible to mitigate
for the loss of an entire watershed. To attempt to mitigate for the steeper mature forest uplands grading
into very wet palustrine forests and emergent systems requires a unique mix of landscape position and
quantity, seasonality and duration of hydrology."
Newport News has identified acreage for 2 to 1 compensation. However, their plan has not demonstrated
functional compensation for the wetland impacts or that there would be adequate hydrology to support the
desired wetland species at all sites. The proposed mitigation sites do not re-create the stream valley
wetland complex of the Cohoke wetlands that would be lost. I am concerned about replacing the free-
flowing stream valley complex with mostly depressional wetland systems that do not replace the
functions of the impacted wetlands. I am also concerned about replacing one large contiguous system
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with smaller unrelated sites. (A more detailed discussion of the various compensation proposals can be
found in Norfolk District's report entitled "Analysis of wetland and habitat impacts and the Regional Raw
Water Study Group's proposed compensation for the proposed King William Reservoir.")
g. Endangered or Threatened Species: Impacts to three federally listed threatened species; the
small whorled pogonia (Isotria medeoloides), the sensitive joint-vetch (Aeschynomene virginicd), and the
bald eagle (Haliaeetus leucocephalus), were evaluated for this project. Informal consultation with the
U.S. Fish and Wildlife Service led the District to determine that formal consultation would not be
required for the bald eagle but would be required for the small whorled pogonia and the sensitive joint-
vetch pursuant to Section 7(a)(2) of the Endangered Species Act. It should be noted that the level of
protection and the need for consultation for federally listed threatened species is the same as for federally
listed endangered species under Section 7 of the Endangered Species Act. On 2 February 1998, the
District initiated formal consultation with the Service and the Service's Biological Opinion was finalized
on 18 September 1998.
The Service concluded that neither the proposed action nor its cumulative effects are likely to jeopardize
the continued existence of the small whorled pogonia or sensitive joint-vetch species. However, a "no
jeopardy" opinion does not mean that the proposed work will not affect listed species. Rather, it means
that this one action alone would not lead to the extinction of the entire species being considered, even
though there may be harm, functional impairment or destruction of an individual population. No critical
habitat has been designated for these species, so none would be impacted. (For a detailed discussion of
endangered species issues, see the District's report entitled " Endangered Species Consultation for King
William Reservoir Project.")
(1) Bald Eagle: The bald eagle is protected under the 1940 Bald and Golden Eagle Protection
Act. This species was federally listed as endangered in 1967, but was reclassified to threatened in 1995.
The 6 July 1999 proposal to delist the bald eagle is controversial in the Chesapeake Bay population due to
heavy development pressure in the region that threatens their habitat; therefore, delisting has not taken
place. The bald eagle is currently listed as threatened in Virginia. Bald eagles are particularly sensitive to
noise and other disturbances from human activities, especially during nesting and foraging.
A bald eagle nest is located approximately 10,100 feet (1.9 miles) downstream of the KWR-IV dam
construction site. The pipeline from the KWR-IV dam to the existing Diascund Reservoir would be more
than 0.5 miles from the nest. Another bald eagle nest has been documented on the Mattaponi River
approximately 1,800 feet (0.3 miles) from the proposed intake location at Scotland Landing. These nests
are beyond the designated 0.25-mile radius buffer (1,320 feet) within which human activities could
disturb eagles or degrade their habitat; therefore, the Service concluded that if noise disturbances are not
excessive, the proposed reservoir construction would not be likely to adversely affect the bald eagle at the
King William Reservoir Site.
During informal consultation for endangered species under Section 7 of the Endangered Species Act,
discussions over management issues for the bald eagle took place between the applicant, the District and
the Service. In a 28 March 1996 letter, the Service recommended tight control of sedimentation during
construction to avoid interference with foraging success of the eagle. Another nest is located near
Chestnut Grove Landing, approximately 0.25 miles west of the pipeline to Diascund Reservoir. In a 25
July 1997 letter, the Service recommended time-of-year restrictions from 15 November through 15 July
on pipeline construction activities to prevent disruption to bald eagles during the critical nesting period.
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Also, if active eagle nests are located in the vicinity of any of the proposed wetland mitigation areas,
additional coordination would be necessary. The Virginia Department of Game and Inland Fisheries also
recommended the same time of year restriction and recommended that all nests should be protected by a
management zone of 750 feet since disturbances during this period may lead to nest abandonment and/or
chilled or overheated eggs or young, or premature fledging. The VDGIF also stated that no human
activity or habitat alteration, including construction, should occur in this zone during the nesting season
from 15 November through 15 July and that all of the forested reservoir shoreline should be protected by
a management zone that extends at least 330 feet inland and prohibits clearcutting, land clearing and
construction. A management zone and its governing rules should be established in cooperation with the
VDGIF and the U. S. Fish and Wildlife Service.
In the informal consultation process, the Service provided recommendations to minimize potential
impacts to both existing and newly established eagle nests that could occur during construction and
operation of the pipeline and reservoir. The applicant agreed to these recommendations and they were
included in their proposed management plan contained in the District's January 1998 Biological
Assessment. Although the bald eagle was included in the District's letter initiating formal consultation,
the Service stated in their letter of 27 February 1998 that their concerns over potential impacts to bald
eagles had been resolved through the informal consultation process. Therefore, the bald eagle did not
need to be included in the formal consultation. However, there is no mention of these management
measures in the RRWSG's October 1999 Mitigation Program, Fish and Wildlife Mitigation Plan. I
concur with the management measures recommended by the Service and VDGIF and agree that the
recommendations should be incorporated as conditions if a Corps permit were issued for the project.
(2) Small Whorled Pogonia: The small whorled pogonia was federally listed as endangered in
1982, but reclassified from endangered to threatened in 1994. This orchid is also listed as a state
endangered species in Virginia. The small whorled pogonia was found in two locations within the pool
area of the proposed King William Reservoir. Both locations would be flooded by the currently proposed
King William Reservoir. However, as recent clearcutting and burning has rendered the habitat at Colony
1 unsuitable for the pogonia, it is considered no longer extant at that location. Colony 2 is located at
approximately 64 feet mean sea level and would be inundated at the normal pool elevation of 96 feet
mean sea level. Because Colony 2 would be flooded and destroyed, the Service concluded that direct
impacts would occur to the small whorled pogonia.
As reported in the RRWSG's Mitigation Program, Fish and Wildlife Mitigation Plan, one colony was
present in 1995, but not in 1996. The applicant claims that the project would nave no impacts on the
small whorled pogonia because only one individual of Colony 2 was observed in 1997 and none have
been observed since that time. This claim was reiterated in the applicant's Environmental Issues
Summary, based on one site visit by Malcolm Pirnie staff in late June 1999. A July 2000 survey
conducted by the applicant also reported no observed plants in the colony. The applicant believes that the
site has no long-term viability because beaver activity 2 to 3 years ago opened the forest canopy and
altered the site's suitability to support the small whorled pogonia.
It cannot be assumed that because small whorled pogonia plants were not found in a location, they would
never be present there again. Small whorled pogonia plants can occur one year and not be found the next.
Colony size and stem counts can fluctuate widely on an annual basis because individual plants may not
emerge every year, but may lie dormant for up to seven years. The U. S. Fish and Wildlife Service
commented that Colony 2 " is particularly interesting due to their larger than normal size and their
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reproductive status. Plants that have twin flowers are considered to be particularly well-established and to
have a strong energy source." Therefore, it should not be automatically assumed that Colony 2 no longer
exists.
As mitigation for the adverse effects to the species, the applicant offered to relocate the affected small
whorled pogonia plants to a protected site. Experience has shown the Service, and the Virginia
Department of Conservation and Recreation Division of Natural Heritage that individuals of the species
do not survive transplanting; therefore, mitigation usually entails the purchase and preservation of
property that contains known populations of the species that are under threat of destruction from
development. The Service's conservation recommendation to minimize the impacts of the proposed
action on the small whorled pogonia was the perpetual preservation of the Casey Colony in James City
County. Monitoring and site management would be a component of the preservation plan.
Although the applicant considers the habitat at the Colony 2 to be marginal, they have agreed to the
Service's conservation recommendation. Dr. Donna Ware of the College of William and Mary has
identified several sites with known populations and suitable habitat for the small whorled pogonia as
candidates for preservation (White Marsh Colony in Gloucester County, the Casey/Ford's Colony site in
James City County and a remnant of the Grimes Colony in James City County.) The applicant's plan
would be to attempt to secure the Casey Property/Ford's Colony Site in James City County to preserve the
small whorled pogonia population that is under threat from land development. However, if that site is not
available, purchase of the other sites with pogonia colonies would be attempted. Although they claim
there would be no plants to move, an attempt to relocate plants that would be affected by the reservoir to
suitable locations remains a part of the applicant's plan.
(3) Sensitive Joint-Vetch: The sensitive joint-vetch was federally listed as threatened in 1992
and is listed as very rare and imperiled in Virginia. A large population of the sensitive joint-vetch has
been recorded in five areas along a 15-mile stretch of the Mattaponi River between Walkerton (river mile
28) and the Wakema/Gleason Marsh (river mile 13) predominantly in the tidal freshwater portion of the
River (0.0 ppt salinity). The Wakema/Gleason Marsh population falls within the oligohaline salinity
regime (0.0 to 0.5 ppt salinity). Populations of this species are located on the north side of the Mattaponi
River within the Garnetts Creek Marsh directly across from the proposed intake site at Scotland Landing
(approximately 2.5 acres of habitat), and in a small pocket marsh on the south side of the river
downstream of White Oak Landing, approximately 600 feet upstream of the intake site. The Garnetts
Creek Marsh is classified by the Virginia Department of Conservation and Recreation Division of Natural
Heritage as an exemplary freshwater tidal marsh and is ranked as an excellent occurrence of this
community type. The Service concluded that no direct impacts to the sensitive joint-vetch are anticipated
from the construction and operation of the proposed intake structure, pier and boathouse at Scotland
Landing. However, indirect impacts associated with the withdrawal of freshwater from the Mattaponi
River may occur to all locations of the species on the River through changes in salinity and water quality.
Also, the beds closest to the intake could be indirectly impacted by erosion or accretion of the point-bar
habitats on the shoreline.
The sensitive joint-vetch is also found at five locations in the tidal freshwater zone of the Pamunkey River
along a 19-mile section from Holts Creek/Cumberland Marsh to Claybome Creek Marsh. As the
Mattaponi and Pamunkey Rivers converge to form the York River, potential salinity changes from
freshwater withdrawals in one tributary have the potential to affect salinity levels in the other tributary.
Therefore, the Service concluded that the "action area" for the sensitive joint-vetch would include the
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tidal freshwater zones of both rivers. Consequently, the Service expressed concern about the potential
effects of salinity and water quality changes not only to the colonies near the proposed intake, but also to
populations downstream of the intake as well as throughout the York River basin, and made six
conservation recommendations to minimize or avoid adverse effect of the proposed action on populations
of the sensitive joint-vetch.
s
The Service's priority recommendation for protection of the sensitive joint-vetch population in the York f
River system was the maintenance of natural variability by placing minimum instream flow restrictions
on raw water withdrawal from the Mattaponi River. The Service does not believe that the RRWSG's
proposed minimum flow of 40%/20% of Mean Annual Flow would have enough linkage to biological
processes and historic flow regimes to maintain natural variability. Since so little is known about the
exact habitat requirements and ecological niche of the sensitive joint-vetch, it is not known if variations
from normal conditions during the months of early spring may be critical to its growth process. The life
cycles of many riparian plants have adapted to the seasonal timing of the natural flow regimes through the
sequence of flowering, seed dispersal, germination and seedling growth. Seasonal timing is particularly
important to annual plants like the sensitive joint-vetch, that have to reestablish their populations every
year. The Service feels that it is critical to closely follow the natural regime as much as possible and
recommended using the more conservative modified 80% Exceedence MIF to reduce or eliminate impacts
to the sensitive joint-vetch colonies near the intake and farther downstream. This would be consistent
with recommendations of the Virginia Department of Game and Inland Fisheries and one of the
conditions of the Virginia Department of Environmental Quality's (DEQ) Water Quality
Certification/Water Protection Permit which stipulates a Mattaponi River flowby regime of 80%
exceedence of each month's flow duration statistics.
However, the applicant believes that there would be a nearly undetectable difference between the 40/20
Tennant Minimum Instream Flow and natural variation in the river system and is opposed to the use of
the Modified 80% Exceedence MIF because it would minimize opportunities for filling the reservoir
during periods of high flows. Immediately after the DEQ permit was issued, the applicant brought suit
against the SWCB to challenge this condition and has indicated to the District that such a restriction
would not provide enough water to make the project economically feasible. However, when the Court
determined that the City of Newport News did not have legal standing to sue the state, the City did not
appeal the decision. Rather, they indicated that they would request a modification of the DEQ permit
when it is due for re-issuance in 10 years. Based on my concerns for potential impacts to sensitive joint-
vetch colonies as well as a number of other concerns outlined elsewhere in this document, I have
determined that flow-bys based on the Modified 80% Exceedence for the withdrawal rules in the
Mattaponi River must be required if a Corps permit were issued (see Section 8 e. (l)(a)).
As a part of the Mattaponi River Monitoring Plan that the District has developed in conjunction with the
multi-agency team, the Service recommended investigating the impacts of the withdrawal on the sensitive
joint-vetch during the reservoir-filling phase as a worst-case situation. They stated that iif the District's
required River Monitoring Plan reveals impacts from the water withdrawal or intake structure, they would
consult the District and the Service to determine appropriate strategies for remedying the impact. Formal
consultation under Section 7 of the Endangered Species Act was being undertaken simultaneously with
the development of monitoring conditions; therefore, the development of monitoring protocols for the
sensitive joint-vetch by the monitoring team would have been premature. Further discussions would have
to be undertaken with the Service to determine appropriate monitoring protocols.
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The Service also recommended annual monitoring of all extant and historical populations of sensitive
joint-vetch on the Mattaponi River and Pamunkey River for a ten-year period. The applicant did not
agree to monitor all colonies of sensitive joint-vetch but indicated they would monitor what they consider
to be a reasonable, but undisclosed, number of colonies. I do not necessarily agree with the Service that
all colonies both the Mattaponi and Pamunkey Rivers should be monitored. Further evaluation would be
required to determine which colonies should be monitored if a Corps permit were issued for the project.
The Service expressed concern that construction disturbances may bring about the invasion of common
reed (Phragmites australis) which could affect the marsh community near the intake and indirectly
threaten the existing sensitive joint-vetch and other suitable habitat. Therefore, the Service recommended
strict control of invasive species at the Scotland landing intake site both during and after construction
activities. The applicant agreed to this recommendation.
The Service recommended coordination with state and local agencies, to mark the navigation channel to
minimize boat wake impacts to the sensitive joint-vetch habitat at Garnetts Creek Marsh, if it becomes
necessary. The applicant does not believe that the proposed intake structure would affect river traffic or
move it closer to the marsh; nevertheless, they agreed to petition the authorities to provide channel
markers to better control boat traffic in the vicinity of the intake.
The Service also recommended land acquisition or conservation easement protection of sensitive joint-
vetch habitats at Garnetts Creek Marsh and Gum Marsh and upland buffers in conjunction with the
applicant's wetland mitigation plan. The applicant was not amenable to purchasing properly or a
conservation easement on sensitive joint-vetch colonies unless the District would agree to accept wetland
preservation as a priority compensation component of the wetland mitigation instead of wetland creation
or restoration. The District and the federal advisory agencies concur that priority should be given to
wetland creation and/or restoration with reliance on preservation only as a final option.
In response to the Service's Final Biological Opinion, the RRWSG agreed to three of the six conservation
recommendations outlined above. However, in their Mitigation Program, Fish and Wildlife Mitigation
Plan, the RRWSG reiterated their belief that the impacts to the sensitive joint-vetch habitat from the
construction and operation of the intake at Scotland Landing would be negligible, and offered to locate
work staging areas away from wetland areas, implement sediment control measures at all times and avoid
compaction and disturbance of wetland soils as steps to "further minimize the potential for adverse
effects." As there is no mention of the previous agreement to the Service's conservation
recommendations in the mitigation plan, it would appear that the applicant might now be replacing their
agreement with these three measures. Such measures to minimize the adverse impacts associated with
construction would be automatically included in any Corps permit as special conditions, and the
implementation of standard erosion and sedimentation controls are required by state and local agencies
responsible for ensuring that Best Management Practices are followed. These general measures would
not provide protection for the sensitive joint-vetch equal to the Service's recommended measures.
With the exception of the number of colonies to be monitored, I agree with the need to implement all six
of the Service's conservation recommendations for the sensitive joint-vetch. I have concluded that
without implementation of these recommendations, the construction and operation of the intake has the
potential to result in indirect impacts to colonies of sensitive joint-vetch in the vicinity of the intake.
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The issuance of the Biological Opinion concluded the Formal Consultation process. However, if
federally listed threatened or endangered species are found to be present on or near any of the proposed
mitigation sites, or the relocated sections of the pipeline, formal consultation may need 1o be reinitiated.
Also, King William County has indicated that they plan to develop Scotland Landing Park, a recreational
park on the remainder of the land purchased for the construction of the intake and pump station.
Depending on the type of development, the sensitive joint-vetch population on the south side of the river
could be affected by those actions.
h. Other Rare or Protected Species: According to the Virginia Department of Conservation and
Recreation Division of Natural Heritage, in addition to the sensitive joint-vetch, the Mattaponi River
supports populations of several rare plants: marsh senna (Chamaecrista fasciculata var. macrosperma),
small water-wort (Elatine minima), Parker's pipewort (Eriocaulon parkeri) and tropical water-hyssop
(Bacopa innominatd). Increased salinity levels and changes in water quality from the withdrawal of
freshwater could adversely affect these plant species.
The great blue heron would also be adversely affected by the project in two separate locations. Great blue
herons are protected under the Migratory Bird Treaty Act, which is enforced by both the U.S. Fish and
Wildlife Service and the Virginia Department of Game and Inland Fisheries. The great blue heron carries
a state heritage ranking of S3, which means that it is rare to uncommon and may be somewhat vulnerable
to extirpation. Loss of habitat, particularly nesting habitat, is considered a threat to the species.
A great blue heron rookery is located within the proposed KWR-IV reservoir pool area north of Route
626. The rapid growth of this rookery from 3 nests in 1993 to 17 nests in 1995 indicates the potential for
further expansion. Great blue herons thrive in natural habitats where there is limited predator and human
access, nesting primarily in riparian swamps with large trees. Most of the 17 nests were located in dead
white oak trees within an open water beaver pond. The rookery would be inundated by 1he reservoir
forcing the breeding individuals to find another area to nest. The Virginia Department of Game and
Inland Fisheries stated that the rookery area should be protected from reservoir basin clearing activities,
the rookery trees should not be removed, and no construction activities should take place within 0.25
miles of the rookery from March 15 thought July 30. The RRWSG has not agreed to incorporate these
recommendations into their plans and claims that suitable nesting habitat is likely to be in abundance in
nearby watersheds. The U.S. Fish and Wildlife Service disagreed with the RRWSG's unsupported claim
and expressed concern that the overall carrying capacity of the region for nesting herons would be
reduced by the proposed reservoir.
The relocated outfall structure on Beaverdam Creek could also adversely impact a small nesting
population of the great blue heron. Disturbances from construction and operation of the outfall and
channelization of 150 feet of vegetated wetlands directly beneath the 4 nests of this great blue heron
rookery could force the nesting pairs from the rookery and abandonment would occur. The RRWSG has
failed to include any discussion regarding efforts to avoid or minimize these unnecessary and, therefore,
unacceptable impacts to the rookery.
i. Other Wildlife: Approximately 1,526 acres of wildlife habitat within KWR-IV pool area
would be converted to open water. Terrestrial and wetland-dependent wildlife would be affected by the
inundation of wetland and forested areas. Many species inhabiting the flooded area would be forced to
relocate to other areas of similar habitat, if available. If neighboring habitats are at or near their carrying
capacity for a particular species, the competition for available food supply would resulting in malnutrition
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and mortality and an overall reduction of the population of that species in the area. Less mobile species
and species dependent on large contiguous habitats would be the most affected by the reservoir
construction. Reptiles, amphibians and some small mammals would be less likely to relocate unless
suitable habitat is available immediately adjacent to the pool area. These individuals would not survive.
An aquatic fringe would most likely become established around the reservoir; however, the fringe would
not provide the same diversity of habitat as that present in the existing Cohoke Creek system.
Furthermore, water level fluctuations and periodic drawdowns associated with reservoir operation would
decrease the habitat value and use of the aquatic fringe by wildlife. Reduction in habitat could also affect
temporary resident species such as neotropical migratory songbirds that rely on large areas of temperate
forest for breeding. Reduced habitat from forest fragmentation could result in decreased breeding success
and an overall population reduction. Species currently utilizing palustrine wetlands would be adversely
affected since much of their food sources would be destroyed by the removal and flooding of the
vegetation.
Clearing of forests along the pipeline route would result in fragmentation of habitat for some interior
forest species. The cleared right-of-way could also allow the introduction of edge species, which compete
with, or prey upon interior forest species.
j. Anadromous Fish and Other Fishes:
(1) Mattaponi River: Fish collection records for the Mattaponi River between 1993 and 1995
identified 13 fish species including five species of anadromous fish. Anadromous fish species
documented as utilizing the tidal freshwater reaches of the Mattaponi River for spawning and nursery
grounds are the American shad (Alosa sapidissima), Hickory shad (Alosa mediocris), Alewife (Alosa
pseudoharengus), and Blueback Herring (Alosa aestivalis). Semi anadromous species include white
perch (Morone americand) and yellow perch (Percaflavescens).
Over-fishing and the construction of impediments to upstream migration have resulted in a decline in
anadromous fish in all Virginia rivers. The reproductive viability of American shad is of particular
concern because shad populations have slowly but steadily declined over the past 100 years. State and
federal agencies are currently involved in conservation efforts to restore habitat and increase
American shad populations. Hatcheries operated by the Mattaponi and Pamunkey Tribes on their
reservations contribute to this effort. Based on recent unpublished data, anadromous fish populations in
the Mattaponi River presently appear to be relatively high compared to other Virginia rivers, although still
low by historical standards. Recent surveys also indicate that shad populations in the York and
Rappahannock Rivers have stabilized most likely due to the fishing moratorium. However, traditional
fisheries management has not been effective in expanding the shad populations, and researchers have
acknowledged that the complex interactions of the complete ecosystem must be taken into account.
Therefore, new studies at the Virginia Institute of Marine Science are underway to examine the critical
stages of the shad's life cycle and to determine what types of habitat are essential to reproductive success.
The taking of shad in the rivers is prohibited to the general public due to depletion of stocks by over-
fishing and habitat degradation. However, the Mattaponi and Pamunkey Tribes hold tribal fishery rights
and are exempt from the state closure. Many members of the Mattaponi Tribe depend on fish from the
Mattaponi River for both their subsistence and as a source of income, and the Tribe operates a shad
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hatchery to restore and replenish shad populations in the River. The Mattaponi Tribe's shad hatchery
contributes from 6 to 10 million shad fry every year to Virginia's waters.
On behalf of the Mattaponi Tribe, the Institute for Public Representation (IPR) submitted letters dated 25
July 1997 and 14 January 2000 outlining the Tribe's concern that the proposed withdrawal of up to 75
mgd of freshwater from the Mattaponi River could result in significant adverse impacts lo American shad
and related fish species. IPR's 14 January 2000 letter included letter reports, dated 17 December 1999
and 12 January 2000, from Dr. Edward F. Cheslak, an aquatic ecologist, commenting on the potential
adverse effects of the project on anadromous fishes in the Mattaponi River. In these letters, IPR and Dr.
Cheslak expressed concern that the upstream intrusion of brackish water into the tidal freshwater reaches
of the Mattaponi River along with changes to hydrologic patterns and tidal dynamics would adversely
affect American shad habitat, disrupt spawning behavior and affect the viability of eggs and the
survivability of larvae and juveniles. Also, the letters expressed concern that the withdrawal of so much
water might increase water temperatures and reduce oxygen levels in the summer resulting in adverse
effects to shad and herring nursery areas. Since the intake facility would be located within the prime
spawning area for shad and other anadromous fish, there is concern that the intake would harm fish eggs
and juveniles, remove the fishes' food supply and concentrate predatory fish. In addition, noise from the
operation of the pumping station could disrupt fish migration and spawning habits. Turbulence and
increased siltation from periodic backflushing to clean the intake pipe could further threaten the fish. If
the project is approved, the Mattaponi Tribe has requested that no withdrawals be allowed during the
critical spring shad spawning period to provide protection for the more vulnerable eggs and juveniles.
The U. S. Fish and Wildlife Service has expressed concern that the potential of saltwater intrusion to
decrease the tidal freshwater zone of spawning habitat on the Pamunkey and Mattaponi Rivers could
seriously impact populations of American shad and striped bass. In their 28 March 1996 letter, the
Service commented, "Virginia and CPB's (Chesapeake Bay Program) successes in opening historic
habitat to reverse dramatic declines in shad and striped bass populations should not be negated by the
reduction in available tidal freshwater habitat from RRWSG water withdrawals." In an attempt to address
the concerns of the Tribes and the state and federal agencies, the applicant contracted Dr. Greg Garman of
Aquatic Resources, LLC, to conduct a study of the potential impacts of the proposed withdrawal on
anadromous fish. As part of the study, Dr. Garman attended a meeting with the Mattaponi Tribe, the
District and EPA on 28 April 1997 to discuss the Tribe's concerns and to more clearly understand the
issue from their unique point of view. In a report entitled, "Analysis of Potential Effects of Water
Withdrawals for the King William Reservoir on American Shad (Alosa sapidissima) and Related
Anadromous Clupeid Fishes in the Mattaponi River, Virginia, A Review of the Current and Relevant
Scientific Literature", dated 7 August 1997, Dr. Garman provided a qualitative evaluation of the potential
for adverse impacts as the direct result of the water withdrawal. Dr. Garman found that fish assemblages
of the tidal freshwater potion of the Mattaponi River have been inadequately surveyed and relevant and
useful data on anadromous fish in the Mattaponi River is extremely limited. Dr. Garman concluded that
"With a few exceptions, there existed only a very limited amount of biological or ecological information
that can be used to make direct judgments concerning the likely impacts of the King William Reservoir
on the ecologically and economically important anadromous clupeid populations of the Mattaponi River."
Dr. Garman further stated that without the availability of such basic descriptive information as temporal
and spatial distribution, spawning and early life history stages, it was very difficult to accurately assess
the potential for ecological impacts from the proposed project.
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One potential impact that could result from the intake operation is unacceptable fish mortality from
entrainment and impingement of fish eggs and larvae. The applicant has designed the intake in
accordance with the recommendations of the National Marine Fisheries Service and Virginia Department
of Game and Inland Fisheries to reduce impacts to anadromous fish. The intake design incorporates
wedge-wire slot mesh screens with one-millimeter screen openings and entrance velocities not to exceed
0.25 feet per second. Also, the intakes would be placed midway between the river bottom and the
average water surface to avoid those eggs that float on the surface or roll on the bottom. In addition, the
intake structures would be aligned parallel to the river flow. These measures should reduce impacts to
anadromous fish eggs and larvae. However, even with these measures, some eggs and larvae that are
impinged on the intake screens would be damaged or destroyed. As the maximum swimming speed of
early American shad larvae is 0.16 feet per second and the maximum intake velocity would be 0.25 feet
per second, these early larvae would be unable to escape the intake flow. American Shad and Hickory
Shad eggs exceed 1.0 mm in diameter (up to 3.5 mm), and after a 24-hour water-hardening period, are
slightly heavier than water. They would likely settle to the bottom, but they are light enough to be re-
suspended by currents. On the other hand, the eggs of Alewife and Blueback Herring would be
susceptible to greater impact from entrainment because they are considerably smaller (0.87 to 1.21 mm)
and are distributed throughout the water column. Some eggs and juveniles of other fish species and food
particles that are smaller than the one-millimeter screen openings would be pulled into the intake. This
could affect food supplies that are necessary for the survival and growth of juvenile shad and other
anadromous fish populations in the Mattaponi River. While it is unknown whether fish would group at
the intake and become easy targets for predator species, such behavior has been observed by researchers
in other areas.
Because of the lack of recent and quantitative data on American shad distributions, it was not possible for
Dr. Garman to predict the effects of changes in river hydrodynamics on juveniles or their critical habitat.
However, Dr. Garman felt that if the conclusions of the applicant's salinity study were correct, the
withdrawal of water would be unlikely to have a significant, direct impact on early life history stages of
anadromous fishes because river discharges are typically higher during the spring when spawning occurs.
Nevertheless, he expressed concern that adequate stream flows and natural hydroperiods be maintained
during the summer months to protect the riverine and riparian habitat for juvenile fish and suggested the
maintenance of a more conservative minimum instream flow (MIF) than the 40/20 Tennant method
proposed by the applicant for this critical period. The Virginia Department of Game and Inland Fisheries
recommended that the RRWSG adopt the Modified 80% Exceedence flow schedule as well as a time-of-
year restriction for all construction activities in the Mattaponi River from 15 February through 30 June to
protect spawning individuals.
Although American shad and other related species would be exposed to slightly increased salinity regimes
in the freshwater reaches of the Mattaponi River as a result of the freshwater withdrawal, Dr. Garman
cited recent laboratory studies which suggest that these fish are strongly salinity tolerant and would not be
significantly affected by such changes. During upstream migration, the adult shad would have recently
traveled from highly saline waters to freshwater; therefore, Dr. Garman did not concur with the Tribe's
claim that adult American shad would be "extremely sensitive" to changes in salinity. However, as
American shad spawn only in freshwater (less than 0.5 parts per thousand salinity), any salinity changes
associated with the withdrawals could affect where and when these fish spawn in the River. In a letter
dated 14 January 2000, the Mattaponi Tribe submitted a review of Dr. Carman's report that was prepared
by Dr. Edward F. Cheslak, an aquatic ecologist. Dr. Cheslak referenced a 1997 study by Zydlewiski and
McCormack indicating that while adult and out-migrating juvenile American shad are known for their
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salinity tolerance, full development of salinity tolerance does not occur until the onset of the larval-
juvenile metamorphosis (26 to 45 days from the egg stage). Therefore, there would appear to be the
potential for a reduction in the survival, development and growth of early life stages of shad as a result of
salinity changes in the Mattaponi River. The viability of the shad fry that are released from the Mattaponi
Tribe's hatchery could also be affected as they are released before this metamorphosis occurs. The fry are
released in two stages. Those that are not tagged are released 7 to 9 days after hatching, while those held
for tagging are released 16 days after hatching. The applicant has cited earlier laboratory studies
indicating that shad and blueback herring eggs and larvae can tolerate a wide range of salinity levels.
Based on the limited information available to him and on the assumption that the applicant's predicted
salinity and hydroperiod changes are accurate, Dr. Garman concluded that "there does not appear to be a
substantial or scientific basis to claims of significant and detrimental impacts to migratory fish
populations in the Mattaponi River as the direct result of the construction and operation of the King
William Reservoir." However, Dr. Garman particularly noted that his review did not consider the
potential for indirect ecological effects as the result of physicochemical changes on fish assemblages of
the tidal Mattaponi River. Dr. Garman noted that his conclusions are based on a review of the currently
available literature and did not include field data collection.
Dr. Cheslak disagreed with much of Dr. Garman's findings and believes that the report is incomplete
because it is limited to direct results of the water withdrawal only and does not address indirect effects.
Dr. Cheslak stated that such an omission is biologically significant as many of the major impact of water
withdrawals on anadromous fish are indirect in nature. He further criticized the report for making any
conclusions regarding detrimental impacts to anadromous fish with so little available data. Dr. Garman
concurred that there was so little useful data available on the fishes and the system ecology of the
Mattaponi River that he was at a disadvantage in his limited study to be able to make specific
determinations on potential impacts. However, he stated that his effort complied with the Scope of Work
for the study provided by the City of Newport News (personal communication, October 2000.)
(2) Cohoke Creek: Limited fish surveys conducted in Cohoke Creek both upstream and
downstream of the Cohoke Millpond dam identified 38 species within the watershed. The Virginia
Department of Game and Inland Fisheries indicated that the species lists for the Cohoke Creek and Black
Creek sites are "inadequate and poorly represent the true diversity of the system." The U.S. Fish and
Wildlife Service stated that fish abundance and diversity information for Cohoke Creek is lacking and
that information from the limited sampling is not adequate to assess the impacts of the proposed reservoir
to the system. Both the Service and the VDGIF believe that the transformation of Cohoke Creek from a
lotic and shallow lentic habitat to deepwater lentic habitat would have a significant impact on the
composition of the fish assemblage. Construction of the dam and inundation of the pool area would
impact fish species within the reservoir pool area through increased levels of suspended sediment and the
elimination of benthic food organisms and vegetation for spawning, nursery and shelter.
The City of Newport News claims that an enormous freshwater fishery would be created by the reservoir
which would more than compensate for the project's impacts to resident fisheries. Some of the fish
species found in Cohoke Creek have been documented in other reservoirs where conditions were
favorable for their existence. Although some fish species may be able to persist in the reservoir, others
that rely on the flowing creek system would be eliminated through its conversion to a deep-water
lacustrine system. Because of the limited species data, the extent to which extirpation would occur is
unknown. The U.S. Fish and Wildlife Service does not consider the replacement of native fish species in
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
a lotic habitat by lentic game species as a resources enhancement as claimed by the RRWSG. In his
report on the effects of the water withdrawal, Dr. Greg Garman expressed concern that non-indigenous
fish stocked in the King William Reservoir would likely escape into the Pamunkey River and eventually
become established in the Mattaponi River. These non-indigenous fish could negatively impact native
fish in the rivers by predation and competition. The U. S. Fish and Wildlife Service expressed similar
concerns and also recommended that resident fish populations that survive in the reservoir be protected
from undue entrainment and egg loss at the outflow pipe.
Construction of the King William Reservoir would permanently block the potential passage of spawning
anadromous and catadromous fish into the upper 21 miles of Cohoke Creek effectively precluding the
future restoration of potential anadromous fish spawning habitat in that section of the Creek. The 1987
Chesapeake Bay Agreement has placed a special emphasis on the removal of blockages to anadromous
fish and on restoring historic spawning grounds. According to the National Marine Fisheries Service, the
restoration of depleted anadromous fish stocks within the watersheds of the York River basin has been
identified as a priority action of the Chesapeake Bay Agreement. Therefore, any manipulation of flow in
stream and rivers supporting these species would not be in the best interest of current restoration efforts.
Anadromous fish passage in Cohoke Creek is presently blocked by the existing 100-year old Cohoke
Millpond dam. Surveys have identified alosid eggs, larvae and juveniles in the lower tidal portion of the
Creek between the millpond dam and the Pamunkey River and there is historical evidence that before the
millpond was constructed, Cohoke Creek provided spawning and nursery habitat for blueback herring and
alewife. In the spring of 1992, the Virginia Department of Game and Inland Fisheries recorded blueback
herring at the Cohoke Millpond spillway and indicated that herring and alewife would spawn in the upper
reaches of Cohoke Creek if fish passage was provided. VDGIF has identified herring species as a
primary focus of concern due to the currently depressed condition of regional herring populations. Both
the U.S. Fish and Wildlife Service and the National Marine Fisheries Service commented that the area
upstream of Cohoke Millpond dam represents potential spawning habitat for anadromous and semi-
anadromous species. Although Cohoke Millpond is not currently listed as one the state's priority areas for
restoration, the U.S. Fish and Wildlife Service feels that fish passage could be readily restored by the
installation of a passage device in the 6-foot high Cohoke Millpond dam. The Service disagrees with the
RRWSG's claim that the proposed 78-foot high King William Reservoir dam would result in minimal
impact to the restoration of anadromous fish habitat.
At the applicant's request, Dr. Greg Garman conducted a visual evaluation of the potential for restoration
of spawning activities above the millpond dam and presented his findings in a report entitled "Qualitative
Assessment of Instream Habitat Quality of Cohoke Creek (King William County, Virginia) for
Anadromous Clupeid Fishes (Alosa spp.)", dated 18 September 1997. Dr. Garman clarified that with this
type of qualitative analysis, it is not possible to determine the extent to which potential habitat in Cohoke
Creek would be utilized by anadromous fish, but offered his opinion based on his observation of existing
conditions. Dr. Garman observed outstanding reproductive habitat for Alosa spp. in the short tidal reach
of Cohoke Creek below the Cohoke Millpond. He felt that if fish passage was provided at the Millpond
dam, it is likely that blueback herring and alewife would attempt to spawn in the 2.1 miles between the
millpond and the proposed KWR-IV reservoir site. However, Dr. Garman believed that under present
conditions, spawning would be unlikely above the proposed reservoir dam site due to the extensive
influence of beaver activity and the very limited stream gradient. Since beaver dams and the resultant
ponds are not permanent features, this conclusion pertains only to conditions as they existed at the time of
Dr. Garman's visual survey. The federal and state agencies who are experts in this matter have
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
determined that the area above the Cohoke Millpond dam represents potential habitat for anadromous fish
and I have no reason to disagree with their finding.
As mitigation for the reduction in anadromous fish habitat in Cohoke Creek, the Service recommended
providing fish passage at a suitable location such as Ashland Mill Dam on the South Anna River as a
condition of the Corps permit, if granted. EPA indicated their support for the provision of off-site fish
passage as compensation for the loss of habitat in Cohoke Creek. Even though the City of Newport News
does not concur that potential anadromous fish habitat would be lost, they agreed to work with the
VDGIF to identify dams on one or more priority streams in the York River basin for fish passage
restoration. The Ashland Mill Dam in Hanover County (10 miles), Herring Creek Millpond (9.5 miles)
and Gravett's Millpond (4 miles) in King William County which are known to have historically provided
anadromous fish habitat are being evaluated, but the RRWSG has not identified the number of miles of
stream on which they plan to restore anadromous fish passage.
Intakes for the downstream release of water from the proposed KWR-IV dam into Cohoke Creek would
be located at elevations 80, 65 and 45 feet at mean sea level. Each pipe would be sized for a downstream
release of up to 4 mgd. The RRWSG's modified proposal is to release an average of 2.5 mgd during
normal higher reservoir pool condition and a 1.5 mgd average annual release would be used when the
King William Reservoir storage declines to less than 80 percent (which equates to a reservoir pool
elevation of approximately 92 feet at mean sea level. These releases would equal about one third of the
existing estimated 6.2 mgd average flow at the dam site.
The operation of the reservoir would reduce the net average freshwater flows to the Pamunkey River by
approximately two thirds and would affect fish habitat in the downstream portions of Cohoke Creek as
well as in Cohoke Millpond. The applicant claims that Cohoke Creek is a minor tributary of the
Pamunkey River so the impoundment would not adversely affect it and its fish populations. However, the
U. S. Fish and Wildlife service expressed serious concern over the quality and quantity of reservoir water
released into the downstream Cohoke Millpond and Pamunkey River. Also, in their 12 March 1996
comments on the Supplement to the DEIS, the National Marine Fisheries Service expressed concern that
only one third of the average streamflow would not be sufficient to maintain acceptable fish habitat
downstream of the dam.
According to the VDGIF, research has shown that a reductions in stream flow of this magnitude would
adversely impact aquatic biota. As they believed the applicant's proposed downstream release would not
adequately protect the integrity of fish populations and wetlands in Cohoke Creek, and may significantly
impact water levels in Cohoke Millpond, VDGIF recommended that the release be increased to maintain
median monthly flows. They also recommended release of 75% epilimnetic water between June and
October to prevent temperature shock and oxygen depletion that could stress and kill fish and
recommended that temperature and dissolved oxygen be monitored below the dam. A condition of
DEQ's water quality permit requires monitoring for temperature, dissolved oxygen and pH below the
release point from the King William Reservoir.
The Pamunkey Tribe operates a shad hatchery on the Pamunkey River about three miles upstream of
Cohoke Creek. Reduced flows from Cohoke Creek should not have a significant effect on flows in the
Pamunkey or York Rivers, but the combined reduction in freshwater input to the Mattaponi and
Pamunkey Rivers due to the project could be substantial. I agree with the U.S. Fish and Wildlife
Service's concern that "The potential of saltwater intrusion to decrease the tidal freshwater zone of
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
spawning habitat on the Pamunkey and Mattaponi Rivers could seriously impact populations of American
shad and striped bass." as expressed in their 28 March 1996 comments on Supplement to Draft EIS.
k. Monitoring Plan: The Norfolk District determined that monitoring would be necessary in
order to identify potential negative impacts of the proposed impoundment, intake structure and 75 mgd
withdrawal and to develop plans to ameliorate any detrimental impacts if a permit were issued. A panel
of experts was convened in a cooperative effort to develop monitoring protocols that would effectively
analyze pre and post-withdrawal environmental conditions in the Mattaponi River and allow modification
of in-stream conditions should tests indicate that there had been an impact. Likewise, monitoring
protocols were developed to analyze pre and post-dam construction conditions in Cohoke Creek and
allow modification of downstream releases should tests indicate that adverse impacts had occurred. This
effort identified the factors that need to be monitored, but does not constitute a plan to rectify any
detrimental impacts to the environment that might be identified as a result of the monitoring. The goals
were to determine the effects of the project on the River, and to gather information that would be useful in
solving problems related to the health and welfare of the biota. The information would also provide
baseline data so that permit changes may be undertaken in a timely manner should problems or concerns
be raised during the monitoring period. The Corps believes that the conditions in the specific monitoring
plans would provide valid information and allow modification of both in-stream and downstream
conditions should tests indicate that there has been an impact.
An interagency task force was established to develop consistent and acceptable monitoring conditions for
the Mattaponi River and Cohoke Creek. The following individuals participated in the task force: Dr.
Albert Kuo and Dr. Carl Hershner from the Virginia Institute of Marine Science, Don Schwab and Tom
Wilcox from the Virginia Department of Game and Inland Fisheries, Dr. Patrick Megonigal and Dr.
Arlene Darke, from George Mason University, Game Rouse of Rouse Environmental Services, Inc., Dr.
Greg Garman of Aquatic Resource, LLC, Dr. Charles Gowan of Randolph Macon College, Sandra Erdle,
Lesa Berlinghoff and Steven Carter Lovejoy from the Virginia Department of Conservation and
Recreation/Division of Natural Heritage, Bob Unnasch and Judy Dunscomb of The Nature Conservancy,
Joe Hassell from the Virginia Department of Environmental Quality, Janet Norman from the U.S. Fish
and Wildlife Service, Regina Poeske from the U.S. Environmental Protection Agency, Pamela Painter and
Ken Kimidy of the U.S. Army Corps of Engineers, David Morris from Newport News Waterworks, and
Bruce Aitkenhead and Rebecca Dorsey of Malcolm Pirnie, Inc.
The group developed a list of physical, chemical and biological issues which needed to be addressed in a
monitoring plan for the project. The issues were separated into vegetation, water quality/water quantity,
and fisheries and wildlife impacts. Drs. Hershner, Megonigal, Darke, Garman, and Gowen submitted
draft monitoring reports which outlined specific concerns raised by the members of the river monitoring
task force. Annual reporting required as a condition of a Corps permit would be drawn from this data and
all task force members would be able to access the raw data for comparison. Review of the data would be
undertaken yearly and any anomalies in the data would result in the task force meeting to discuss the
issues and attempt to modify conditions to correct any apparent problems with either downstream releases
or MIF conditions. The group agreed that monitoring should be undertaken even during the period where
the reservoir was being filled. The group also discussed certain testing requirements which could be
undertaken to simulate a worst case analysis prior to the final river conditions being set by the permitting
agencies.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(1) Wetland Vegetation: A study was proposed that would evaluate processes affecting
freshwater wetlands from the perspectives of the watershed (macroscale), floodplain (mesoscale), and
individual marshes (microscale). The use of field studies, remote sensing and Geographic Information
Systems (GIS) is necessary in order to focus on the changes in freshwater flows resulting from water
withdrawal. The review of changes in salinity, specifically soil pore water salinity, sediment loads, and
the effects on marsh geomorphology and substrate availability for plants would be undertaken in order to
assess the changes in ecosystem functions. Through the monitoring of soil pore water salinity, soil
deposition/erosion rates, plant community composition, and peak season cover and biomass, the study
would provide early indications of salinity stress. Details of the monitoring study can be found in the
Monitoring Plan for the Mattaponi River: Wetland Vegetation submitted by Dr. Arlene Darke and Dr.
Patrick Megonigal.
Potential impacts from erosion and accretion of the shoreline, long-term salinity changes and the
introduction of invasive species on populations of sensitive joint-vetch in the vicinity of the proposed
Mattaponi River intake were of concern to the monitoring team members. However, as formal
consultation under Section 7 of the Endangered Species Act was being undertaken simultaneously with
the development of monitoring conditions, the development of monitoring protocols for the sensitive
joint-vetch by the monitoring team would have been premature. Any conservation recommendations
made by the U.S. Fish and Wildlife Service to minimize adverse effects to the sensitive joint-vetch
colonies would be considered for inclusion as conditions of the Corps permit.
(2) Impingement and Entrainment: Dr. Gowen provided an overview of entrainment and
impingement concerns for water supply intakes. The goal of this research would be protection of fish
within the waterway through preventing impingement (fish or eggs being stuck to the screen), prevent
entrainment (fish or eggs being sucked through the screen), and to get the fish away from the facility.
Design considerations must include the screen size, location, and orientation, the velocity characteristics
of the intake, the approach velocity to the screen (must be slower than the fishes sustained swimming
speed), and the sweeping velocity which allows the eggs or fish to move away from the facility. All pipes
and screens must be smooth, with no ragged edges, in order to decrease or eliminate the descaling or
injury of the passing fish. The plan for cleaning or blowing out the system must include protection of the
eggs and fish in the vicinity during the cleaning activity. Monitoring is an important criterion in assessing
the success of the exclusion at the intake site. In order to detect potential concerns, the sweeping and
approach velocities need to be measured 3-6 inches in front of the screen and potential hot spots (high
approach velocities or low sweeping velocities) must be corrected through baffles or angle shifts in the
structure. There are several tests that can assess successful avoidance including releasing marked fish
upstream of the facility and recapturing them below the intake to evaluate passing efficiency and
mortality rates. Predators are also a problem at intake locations due to the creation of eddies which may
capture smaller fish that are not capable of sustained bursts of speed to escape the area. Tidal flows may
help sweep the fish and eggs across the screens but may also create unacceptable conditions during slack
tide. Consideration should be given to monitoring at the worst case scenario for fish and eggs in order to
predict the periods of greatest impact.
Dr. Gowen developed a draft monitoring plan to document the magnitude of potential impacts resulting
from intake operation on the Mattaponi River. The study would also provide early notification should
there be unacceptably high impingement or entrainment losses in order to allow rapid modification to
project design or operation to reduce the impacts. As part of the project development, all screens must be
examined prior to installation to insure that the 1-mm screen size is universal across the screen. In
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
addition, once the screens are installed, they must be inspected underwater to insure they are not damaged
and that all joints and seals are intact. The approach velocities (perpendicular to the screen surface) and
the sweeping velocity (parallel to the screen surface) must be measured at several (12) points along each
cylinder to determine if the intakes are operating properly and appropriate baffles are installed should
faster conditions be found. Sampling protocols are specifically outlined in the plan submitted by Dr.
Charles Gowen.
(3) Fisheries: The fisheries monitoring plan proposes to use quantitative data to analyze key
ecological components of the fishery assemblage, evaluate the temporal trends and spatial patterns of fish
abundance, community structure, and habitat quality associated with the intake structure. Utilizing a
paired synoptic design, the study would include the adjacent and ecologically similar Pamunkey River to
prevent observed changes in the Mattaponi River after intake operation to be attributed incorrectly or
prematurely to the withdrawal. If statistically significant changes not attributable to natural variability are
found, further study will be undertaken to determine the causal effect of the change and proposed changes
to the withdrawal patterns would be developed. Direct effects associated with anadromous species and
temporal and spatial patterns of the entire fish assemblage would be analyzed in the study as well as
indirect effects such as growth rates of the target species. The specific information related to the fisheries
study can be found in the Fisheries Monitoring Plan for the Mattaponi River submitted by Dr. Greg
Garman.
(4) Water Quality: The Virginia Institute of Marine Science submitted a proposal to monitor
water quality parameters, including: total particulate carbon, dissolved organic carbon, total particulate
nitrogen, total dissolved nitrogen, ammonium nitrogen, nitrite-nitrate nitrogen, total particulate
phosphorus, particulate inorganic phosphorus, total dissolved phosphorus, dissolved phosphate,
particulate inorganic silica, dissolved silica, Chlorophyll 'a'/phaeophytin, chemical oxygen demand, and
dissolved oxygen. The monitoring plan proposes the collection of data from the mouth of the York River,
the confluence of the Pamunkey and Mattaponi Rivers, and from the freshwater/salt water transition
within both of these rivers. Sampling protocols are outlined in the proposal submitted by VIMS.
(5) Cohoke Creek Monitoring: Since riparian wetlands are defined by hydroperiods that
determine the plant community composition, dam operations will influence the hydrologic regime of the
downstream wetlands by reducing the variability of the stream discharges. This change could have a
major influence on ecosystem functions. Megonigal and Darke developed a paired monitoring design
utilizing Totopotomy Creek as a control in order to infer that the trends observed in Cohoke Creek only
represent the effects of the reservoir while simultaneous trends observed in both creeks represent more
widespread influences. The use of Totopotomy Creek was proposed because DEQ utilized Totopotomy
Creek as a surrogate for Cohoke Creek to estimate stream flow rates. Monitoring of Cohoke Creek must
be undertaken prior to any reservoir construction and calibrated with stream flow on Totopotomy Creek.
Flow rates, channel contour, peak season percent cover and vegetation composition, and water depths
within the wetland system would be monitored to determine relative changes within the downstream
watershed.
(6) Final Coordination Requirements: These monitoring plans were presented and discussed
with representatives of the Pamunkey, Upper Mattaponi and Mattaponi Indian Tribes during a 24
September 1998 meeting with Norfolk District representatives. District staff discussed the process by
which the various monitoring plans were developed and how the concerns of the tribes were taken into
consideration in their development.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
In their Virginia Water Protection permit, the Virginia Department of Environmental Quality required the
development of a detailed eco-monitoring plan within 24 months of issuance of the permit on 22
December 1997 to identify spawning and nursery grounds of the Mattaponi River used by anadromous
fish. To date, the District has not seen such a plan. Also, as part of their proposed mitigation for impacts
to Traditional Cultural Properties, the City of Newport News offered to provide financial assistance to the
Mattaponi and Pamunkey Tribes to upgrade their existing fish hatcheries.
In the event that a permit were issued for the project, the District, in consultation with state and federal
advisory agencies, would have to resolve any outstanding concerns regarding the monitoring studies (e.g.,
exact sampling locations). Additionally, the applicant would have to provide sufficient assurances that
financial resources are available to perform the needed monitoring over the long-term, and to fund any
needed corrective actions. In the event that monitoring reveals that changes in the operation of the intake
and reservoir are needed to prevent degradation to the aquatic environment, the District Commander may
modify the conditions of the permit in accordance with 33 CFR 325.7 to require such actions as greater
downstream releases or the withdrawal of less water from the Mattaponi River. (For a detailed discussion
of the development of monitoring protocols, see the District's report entitled "Monitoring Study
Development for Impacts of the Proposed King William Reservoir and Mattaponi River Intake.")
1. Aesthetics:
(1) Mattaponi River: In their document entitled "Management Plan and Chesapeake Bay
Virginia National Estuarine Research Reserve System", VIMS placed the Mattaponi River among the
most pristine rivers on the east coast. The Virginia Department of Conservation and Recreation, Natural
Heritage Division has indicated that the Mattaponi River supports a system of state significant and
exemplary freshwater tidal marshes and swamps that provide high diversity habitat for both common and
rare species. The Nature Conservancy has also identified the Mattaponi River as a national wetland
priority under its National Wetland Conservation Program. The river possesses natural scenic beauty in its
sloping forested terrain and relatively undeveloped shoreline. No major urban or industrial development
occurs on the river and it currently exhibits excellent water quality and experiences only minor
consumptive uses.
According to the 1996 Virginia Outdoors Plan, a segment of the Mattaponi River from Mundys Bridge on
Route 628 to the Walkerton Bridge on Route 629 has been evaluated and qualifies as a Virginia Scenic
River. Also, the state has determined that segments of the Mattaponi River in King William County and
King and Queen County from Route 628 to Mundys Bridge and from Aylett to West Point should be
evaluated to determine their suitability as a Virginia Scenic River.
The Mattaponi River was also designated in 1998 as one of the 20 most endangered rivers in the U.S. by
American Rivers, a national river conservation group, because of the threat to the river's ecological
integrity from the proposed RRWSG water supply plan. The middle to lower Mattaponi River has also
been listed as a probable candidate for meeting the DEQ criteria for nomination to the Exceptional Waters
program, which affords special protection to the most unique and sensitive waters in Virginia. Along
with the Pamunkey River, portions of the Chickahominy River, and some creeks of the Rappahannock
River, the Mattaponi River is described by The Nature Conservancy as "the heart of the most pristine
freshwater complex on the Atlantic Coast." As there are no existing impediments, the Mattaponi River
currently provides spawning habitat for anadromous fish species along its entire length.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The Mattaponi Tribe has a unique cultural perspective of the Mattaponi River that goes beyond aesthetics.
The Mattaponi people believe that the Mattaponi River is more than a simple body of water. To them, it
is a spiritual place that unites tribal members through baptism and other religious ceremonies. The
Mattaponi Tribe claims that alterations to the natural state of the river would compromise the sanctity of
these religious ceremonies. They believe that the river is a gift of life from the Great Spirit that provides
and completes the circle of life. The Tribe believes that to defile the Mattaponi River would be to
dishonor the Tribe's ancestors and Mother Earth.
The intake pump station structures and the surrounding cleared areas would disrupt the pristine nature of
the shoreline when viewed from the river. Construction activities would temporarily increase noise
levels, and the pump station operation would result in a long-term increase in ambient noise levels. The
applicant proposes to implement architectural and landscaping treatments that would minimize pumping
noise and visual impacts.
(2) Cohoke Creek: Cohoke Creek is a tributary to the Pamunkey River. According to the 1996
Virginia Outdoors Plan, a segment of the Pamunkey River from Norman's Bridge on Route 614 to the
Pampatike Landing near the Route 360 Bridge has been evaluated and qualifies as a Virginia Scenic
River. Also, the state has determined that segments of the Pamunkey River from the King William
County/Caroline County line to Route 614 and from Pampatike Landing to the York River should be
evaluated to determine their suitability as a Virginia Scenic River.
The upland forests, hardwood swamps, emergent wetlands, streams and beaver ponds of the Cohoke
Creek watershed possess natural scenic beauty. The area is relatively undisturbed except for silvicultural
activities. A dramatic shift in the scenic character of the area would occur from the replacement of this
forest/wetland system with a deep-water man-made lake. However, because aesthetic values vary with
individual taste, some people may consider the new open-water habitat as an aesthetic resource.
Upon completion of construction, the dam area would be landscaped to minimize visual impacts. Short-
term water quality and air quality impacts would occur during land clearing and construction
disturbances. Construction activities and transportation of workers and materials to the site would
increase noise levels at the reservoir project site. A long-term increase in ambient noise levels would
result from the operation of the reservoir pumping station. Odor should be a problem only when the
reservoir is severely drawn down and anaerobic sediments are exposed.
m. Historic Resources and Traditional Cultural Properties: Under Section 106 of the National
Historic Preservation Act (NHPA), federal agencies are required to take into account the effects of an
agency's undertakings on properties included in or eligible for the National Register of Historic Places
(National Register). The goal of the Section 106 consultation process is to identify historic properties
potentially affected by the undertaking, assess its effects, and seek ways to avoid, minimize or mitigate
any adverse effects on historic properties. Historic properties which are issues for this project include
pre-historic and historic archaeological sites, historic structures and Traditional Cultural Properties
(TCPs). TCPs are defined in National Register Bulletin Number 38, "Guidelines for Evaluating and
Documenting Traditional Cultural Properties" as historic properties that are eligible for inclusion in the
National Register because of their association with cultural practices or beliefs of a living community that
are rooted in that community's history, and are important in maintaining the continuing cultural identity
of the community. Since the historic property review for this project also involved a minority population
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of Native Americans, Environmental Justice is an interrelated issue, which is discussed in detail in
Section 8 t. below.
(1) Archaeology and Architectural Resources: As part of the NEPA review of the project, and
as required by Section 106, the RRWSG contracted with MAAR Associates, Inc. to undertake a Phase 1A
cultural resource survey, which was conducted in the summer of 1993. A report entitled, "Phase IA
Cultural Resource Survey for the Proposed King William Reservoir, King William County, Virginia and
the Proposed Black Creek Reservoir, New Kent County, Virginia", was finalized in January 1994 and was
included in the Draft EIS as Appendix G. This survey identified 15 previously unrecorded cultural
resources in the King William Reservoir project area, and recommended additional research in the form
of "Phase IB" intensive systematic field survey. In the summer of 1994, MAAR Associates performed a
Phase IB survey of the 2,400-acre King William Reservoir site (a survey of the KWR-I pipeline route was
conducted in 1996). A report entitled, "Phase I Cultural Resource Survey for the Proposed King William
Reservoir, King William County, Virginia", dated October 1996, documented this archaeological survey,
and was included in the FEIS (January 1997) as Appendix G. The survey was performed for KWR-I and
found a total of 156 archaeological sites. Of the 156 sites located for KWR-I, eight were outside the
impact area, five were located at the site of the pump station and intake pipeline, 19 were located along
the outfall pipeline, and 124 were located within the proposed reservoir impoundment. For KWR-IV this
survey identified a total of 115 archaeological sites within the area of potential effect (92 in the reservoir,
18 in the outfall pipeline route and 5 at the pump station and along the intake pipeline). Of the 115 total
sites for KWR-IV, 72 sites were determined to be potentially eligible for inclusion in the National
Register of Historic Places (55 prehistoric archaeological sites within the KWR-IV pool area, 12 sites
along the pipeline route and five sites at the intake location). Most of the archaeological sites (120, out of
the total of 156 sites identified) were Native American sites, which were temporary hunting/gathering
camps or base camps from the Early Archaic period through the Late Woodland Period. In addition to the
Native American sites, 43 of the 156 sites had a Euro-American component ranging from the seventeenth
through the twentieth century, with most sites falling into the farmstead and/or dwelling category.
Industrial or extractive sites included a dam and mill, several ice house pits and a dam and ice house pit
complex. This report also discussed architectural resources, and noted that 53 survey forms were
completed. Although none of the architectural resources are located within the reservoir pool, a total of
17 properties were considered to possibly be affected visually by the reservoir. It should be noted that the
pipeline route surveyed was for KWR-I, and that roughly 21,000 linear feet of the proposed pipeline route
for KWR-IV was not surveyed in the Phase I.
In April 1997, the Virginia Department of Historic Resources (VDHR) submitted comments on their
review of the October, 1996 Draft Phase I Cultural Resource Survey. VDHR concurred with the majority
of the recommendations in the report for the sites identified; however, they recommended further work on
20 sites, disagreed with the need for further evaluation on 5 sites (based upon total of 156 sites), and
suggested that adjacent sites with the same components need to be evaluated for possible relationships.
They also had concerns about effects to archaeological sites located outside the reservoir pool and KWR-I
pipeline corridor (i.e., mitigation sites, KWR-IV pipeline route), and provided comments on suggested
modifications to the report. The letter also recommended that the District initiate three party consultation
pursuant to Section 106 of the NHPA. The draft version of the Phase I Cultural Resources Survey report
has not been rewritten into a final version; therefore, VDHR comments are not incorporated as part of the
draft Phase I report.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
(2) American Indians: The reservoir would be located in a rural area of King William County,
between Virginia's only two American Indian Reservations: The 150-acre Mattaponi Reservation on the
Mattaponi River with approximately 65 residents (approximately 450 other tribal members do not live on
the reservation) and the 1,200-acre Pamunkey Reservation on the Pamunkey River with approximately 75
residents. In addition, the Upper Mattaponi Tribe, although not reservated, has tribal lands (Indian View
Baptist Church and Sharon Indian School on two acres and another 30-acre tract nearby) in King William
County. These American Indian Tribes are descendants of Native peoples whose archaeological remains
date back thousands of years, and are also all descendants of the Powhatan Indians of Eastern Virginia.
The Powhatan Indians were distinct ethnic communities (tribes) of Native Americans who were united
under the rule of a seventeenth-century paramount chief named Powhatan (the father of Pocahontas). The
Great Chief Powhatan led the Powhatan Confederacy and ruled most of tidewater Virginia when English
colonists arrived in 1607. The present day reservations were originally established by an act of the
Virginia General Assembly in 1658 from land long held by the Tribes and are believed to be the oldest in
the United States. Despite 17th century treaties, the reservation boundaries have decreased in size due to
European colonization and encroachment. All three tribes were recognized by the Virginia legislature in
1983; however, none of them are federally recognized. (These Tribes have been seeking recognition from
the federal government as sovereign nations; however, in January 2001, the Mattaponi and Pamunkey
Tribes withdrew from this effort for undisclosed reasons.) Despite the lack of federal recognition, the
Norfolk District has made every effort to keep the Tribes informed and to involve them where
appropriate. In fact, on 25 February 1998, my predecessor, Colonel Robert H. Reardon, Jr. signed a
Memorandum for the Record regarding the Mattaponi and Pamunkey Tribes. The memo stated, "This is
to memorialize for the record my decision of 7 March 1997 to treat the Mattaponi and Pamunkey Tribes
as if they were federally recognized Tribes, to the extent that I am permitted to do so by applicable
statutes and regulations."
The Pamunkey Tribe became involved in the project in its very early stages. The Pamunkey Tribe first
contacted the consultants who were working on the project in December of 1990 with a letter stating that
they were "concerned about the possible effects to archaeological sites which include human remains
located in the project vicinity" and indicated that they wanted to be an "interested party" in the
consultation process. Mr. Warren Cook, Assistant Chief of the Tribe, was hired to assist in the
archaeological studies. At the time, the Pamunkey Tribe represented not only their Tribe, but also the
United Indians of Virginia and the Mattaponi Tribe (per letters of September 1993, and November 1993
from the Pamunkey Tribe). However, the Mattaponi Tribe later decided to represent itself. The first
piece of correspondence regarding this project from the Mattaponi Tribe was a letter in March, 1994 from
the Mattaponi Chief and Councilmen to the County Administrator of King William County requesting
that the project to withdraw water from the Mattaponi River cease and be dismissed. They stated that the
native people do not wish to see the ecology of the Mattaponi River disturbed or destroyed. In September
of 1996, the District was contacted by the Mattaponi Tribe and informed that the chief, assistant chief,
and tribal council were the only official representatives of the Mattaponi Indian Reservation to comment
concerning the reservoir matter. The Mattaponi Tribe became very involved in the process from that
point on and hired the Institute for Public Representation (IPR), a nonprofit, public interest law firm, to
represent them. The Upper Mattaponi Tribe did not become involved until 1997 after accepting an
invitation from the District to participate as a consulting party in the MOA process.
(3) Public Involvement and Comments: In addition to working with the Tribes, the District
involved the general public in the Section 106 process for this project in many ways, including public
notices, EIS documents and a public hearing (see Section 5 for details). Comments on the Draft,
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Supplement to the Draft and Final EIS documents related to cultural resources were received from various
parties, including; the Environmental Protection Agency, Virginia Department of Environmental Quality,
Pamunkey Tribe, Mattaponi Tribe, Virginia Council on Indians, National Trust for Historic Preservation,
Sierra Club, Chesapeake Bay Foundation, West Point Hunt Club Inc., Alliance to Save the Mattaponi,
Mattaponi and Pamunkey Rivers Association, King William Historical Society, and King and Queen
County.
The letters discussed several issues including: the need to address the likelihood or presence of
Traditional Cultural Properties (TCPs), the need for further consultation with the affected Tribes,
violation of treaties with the Tribes, and impacts to anadromous fish used by the Tribes. The Pamunkey
Tribe and IPR, on behalf of the Mattaponi Tribe, submitted comments on the FEIS, and announced then-
opposition to the project. The letter from the Pamunkey Tribe also indicated that the United Indians of
Virginia were opposed to the project. The letter from IPR on behalf of the Mattaponi Tribe claimed that
the District could not issue a section 404 permit for the proposed King William Reservoir project because
it violates the Mattaponi Tribe's aboriginal hunting, fishing and gathering rights, it abrogates the Tribe's
1646 and 1677 treaties, and issuance of the permit would violate the Corps' trust responsibility to the
Tribe. The letter described the historical background of the Tribe and the many traditions and cultural
practices that are still part of Tribal life (i.e., hunting, fishing for subsistence, spiritual traditions that
involve the Mattaponi River such as baptisms and Easter services). This letter also indicated that the
District did not adequately evaluate the environmental justice consequences of the project; the applicant
failed to show that the project would meet the requirements of section 404; the FEIS was inadequate
under the requirements of NEPA; and the FEIS failed to address the following potential impacts: potential
threat of dioxin contamination, salinity levels in the Mattaponi River and on the shad population,
terrestrial habitat and wildlife, and impacts to the Tribe from lost archaeological sites. The Pamunkey
Tribe's comments on the FEIS included the following items of concern or objections: adverse effect of
the project to archaeological resources, potential impacts to burial sites, inadequate discussion of
environmental justice issues, failure of the Commonwealth of Virginia to live up to its trust
responsibilities and safeguard the Tribes, inadequacies in the proposed wetland mitigation plan, loss of
wetlands and uplands, and potential impacts to the Mattaponi and Pamunkey Rivers. They stated that if
the project was permitted they wanted to participate in and be compensated for the archaeological
investigations and they wanted the best mitigation plan available.
(4) Traditional Cultural Properties: During the preparation of the FEIS, the District staff
learned from the VDHR and the ACHP that there was a need to assess potential impacts to TCPs. Prior to
this time, the focus on cultural resources had been on gathering information on potential impacts to
archaeological and architectural properties. However, once the District staff was made aware of the need
to address TCPs, and the Tribes provided comments on the EIS documents, the District began to meet
with the Tribes, VDHR, EPA, ACHP, and the applicant to determine how to address this issue. At the
invitation of the Pamunkey and Mattaponi Tribes, former District Commander Colonel Robert H.
Reardon, Jr. and several District staff members visited their Reservations in March of 1997. After I
assumed command, I also visited the Mattaponi reservation in September 1998.
(a) Consulting Parties: In response to the District public notices and EIS's, several parties
became interested in the Section 106 process and requested participation as consulting parties. Over the
course of several months, various parties were added as consulting parties, with the most, recent list
including: the District, VDHR, ACHP, City of Newport News, EPA, Mattaponi Indian Tribe (also
represented by the Institute for Public Representation), Pamunkey Indian Tribe, Upper Mattaponi Tribe,
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United Indians of Virginia, Virginia Council on Indians, King William County, Preservation Alliance of
Virginia, National Trust for Historic Preservation, and Southern Environmental Law Center. These
parties were included in meetings and mailing lists on issues related to the various cultural resource
issues.
(b) TCPs and Environmental Justice: After consultation with the VDHR, ACHP and EPA, the
District determined that potential impacts to TCPs and Environmental Justice should be addressed
through a study conducted by a qualified ethnographer. The District conducted a meeting of the
consulting parties to develop a Scope of Work which would guide the ethnographer in the research of the
cultural and spiritual issues related to TCPs. The Scope of Work was finalized in November of 1997.
The first ethnographer contracted to perform the study was Dr. Helen Rountree, an
anthropologist/ethnohistorian and Professor at Old Dominion University who had studied the Pamunkey,
Mattaponi and Upper Mattaponi Tribes for many years. However, in January 1998, due to her
unexpectedly large class load, she declined to perform the study. Dr. Kathleen Bragdon, a cultural
anthropologist with the College of William and Mary was then selected as the principal investigator for
the TCP study, which was begun in the spring of 1998. The TCP study was funded by EPA.
(5) Memorandum of Agreement: While the TCP study was being conducted, the District
continued to work on other aspects of the project related to cultural resources. Since the City of Newport
News declined to perform the Phase II (evaluation of significance) on the archaeological sites prior to a
permit decision, it was determined that a Memorandum of Agreement (MOA) would need to be
developed to specify measures to avoid, reduce or mitigate adverse effects on historic properties that are
eligible for the National Register. It was known that there were 115 archaeological sites, 72 of which
were potentially eligible for the National Register (79 as recommended by VDHR), possible visual
impacts to potentially eligible architectural properties, and the issue of the presence of a rural historic
landscape. It was clear that the project would have an adverse effect on historic properties. Numerous
meetings were held with the various consulting parties to develop an MOA. The stipulations of the draft
MOA included: Coordination of Reviews, Identification and Evaluation (archaeological sites, TCPs,
standing structures, and rural historic landscapes), Consultation and Treatment (archaeological sites,
TCPs, standing structures, and rural historic landscapes, curation of archaeological materials, human
remains and associated artifacts), Discovery Provisions, Public Involvement, Dispute Resolution and
Administrative Provisions. It was recognized that the identification of all historic properties would not be
completed until after execution of the MOA, and that there were still areas that would need identification
surveys for historic properties (i.e., the outfall pipeline route, wetland mitigation sites, staging areas for
construction equipment). Therefore, the purpose of the MOA was to address what actions would be taken
to resolve the adverse effects of the reservoir project on historic properties. Treatment plans for particular
archaeological sites were to be developed after further investigations and eligibility determinations were
completed.
There was much concern by the Tribes about the recovery of archaeological materials, and especially,
human remains. Although no burials were located during the Phase I identification survey, more
extensive excavations at the Phase II survey level could reveal the presence of human remains. After
much discussion, it was determined that if the project was constructed, archaeological materials would be
permanently curated by VDHR; however, all Native American artifacts would belong to the Tribes. It
was decided that American Indian skeletal remains and associated artifacts, would be reinterred as
determined by and in a location as agreed upon by the Pamunkey Tribe, the Mattaponi Tribe, the Upper
Mattaponi Tribe, in consultation with the United Indians of Virginia and the Council on Indians. It
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should be noted that not all parties concurred with the stipulations in the draft MOA. In particular, the
Mattaponi Tribe stated that they could not accept plans to disturb burial sites of their ancestors and
suggested that the MOA should state that human remains would be left undisturbed by reconfiguring the
project design.
Another issue of concern was related to the archaeological sites that were not recommended for further
work either in the Phase I report, or by VDHR. The treatment of these sites was determined to be
independent of the Section 106 review since they were not considered "potentially eligible" for the
National Register. However, the Mayor of Newport News had made a commitment to the Tribes in
March of 1997, stating, "the City does hereby commit to investigation of all 92 cultural resource sites
found within the flooded area of the proposed smaller reservoir (dam site IV)." The treatment of these
sites was included as a "Whereas clause" in the draft MOA, and attached as a separate document.
Mitigation for TCPs also needed to be included in the MOA, but this could not be accomplished until
after the TCP report was finalized and discussions with the Tribes were conducted.
(6) "Powhatan's Legacy": The first draft of the TCP report, '"Powhatan's Legacy': Traditional
Cultural Property Study for the Proposed Regional Raw Water Study Group's Water Supply Reservoir,
King William County, Virginia" ("Powhatan's Legacy") was received by the District in August, 1998. As
had been agreed, the report was sent to the Pamunkey, Mattaponi, and Upper Mattaponi Tribes for their
review. In addition, since the Tribes had requested confidentially of the report, the District wrote to the
National Park Service (NFS) in August, 1998 requesting the concurrence of the Secretary of the Interior
that public disclosure of the TCP report would cause a "significant invasion of privacy" pursuant to
Section 304 (a) (1) of the NHPA. The NFS responded in January of 1999 that they could not concur with
our intention to withhold the report from public disclosure pursuant to Section 304. The NFS concluded
that based upon available information, they did not see how the public release of the report would cause
significant invasion of privacy, risk harm to historic resources, or impede the use of traditional religious
sites. However, the District agreed to honor the Tribes request for confidentiality to the maximum extent
provided by the Freedom of Information, Act (FOIA). Due to the necessary Section 106 coordination,
certain parties (Tribes, ACHP, VDHR, EPA, and the City of Newport News) were afforded an
opportunity to review and comment on the "Powhatan's Legacy" report. The second draft of the TCP
report, received in October of 1998, was made available in January of 1999 to the parties mentioned
above.
(a) Newport News Comments on TCP Report: The City of Newport News reviewed the draft
TCP report at the District offices in January 1999 and sent in a letter which questioned the validity of the
report, due to a perceived bias. They stated that some of the chapter summaries and other parts of the
report appeared to describe the opinions and beliefs of the investigators, rather than Indian Tribes or
individuals, as to effects of the reservoir project on TCPs and on Virginia Native Americans in general.
They also questioned whether Dr. Danielle Moretti-Langholtz, one of the contributors to the TCP study,
was able to separate her personal views from her professional duties in the conduct of the TCP study, and
mentioned her March, 1997 personal letter to the District commenting on the FEIS before she was
involved in the study. Due to the high volume of letters received against the reservoir arid the length of
time between receipt of her person letter and her appointment by Dr. Bragdon as a contributor to the
investigation, the District staff did not make the connection. The City of Newport News' letter urged the
District to carefully consider the extent to which the TCP report was tainted by the biases and pre-
judgments of one of the principal authors. As a result of Newport News' letter, VDHR commented that
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because Dr. Moretti-Langholtz's comment letter creates the appearance that the report might be biased,
the District should "...take steps to strengthen the perception of objectivity" of the report.
Therefore, the District conducted a full investigation of the validity of the alleged bias. Both Dr. Kathleen
Bragdon and Dr. Moretti-Langholtz responded in writing to the Newport News allegation and met with
me and my staff to discuss the report. Because EPA had funded the study, they initially suggested their
archaeologist, John Vetter to review the TCP report; however, he declined to perform the work. Mr.
Timothy Thompson, a Norfolk District Corps of Engineers archaeologist, was tasked to review the TCP
report. Both VDHR and ACHP were consulted and neither objected to the District's selection of Mr.
Thompson to perform this review. Mr. Thompson concluded that reliable data was gathered using a
standard anthropological methodology and the conclusions of the researchers were consistent with the
data. I am satisfied that Dr. Moretti-Langholtz acted in a professional manner and did not allow any
personal views about the reservoir project to influence the work she performed for the District.
Therefore, in April 1999,1 wrote to Newport News stating that I had concluded my review of the matter
and determined that the allegation of bias was unwarranted. I informed the City that I was satisfied that I
could use the report to make a fair and informed evaluation of the effects of the project on TCPs.
(b) Other Comments on TCP Report: Comments on the "Powhatan's Legacy" report were also
received in March 1999 from ACHP, VDHR, the Pamunkey Tribe and IPR, on behalf of the Mattaponi
Tribe. IPR stated that they commended the overall comprehensiveness of the draft report, but believed
that some important issues were not discussed. They made the following suggestions: inclusion of
traditional cultural uses of Cohoke Valley wetlands, treatment of the entire Cohoke Creek area as an
historic district, and the preparation of a supplemental questionnaire. The Pamunkey Tribe stated that the
use of wetlands has always been a significant part of the way of life of the Pamunkey People and
provided information on the significance of fishing and the Pamunkey Fish Hatchery to their culture.
They also submitted a document entitled, "Searching for Virginia Company Period Sites: An Assessment
of Surviving Archaeological Manifestations of Powhatan-English Interaction, A.D. 1607-1624, Study
Unit 10: Gloucester, King and Queen, and King William Counties", for inclusion in the TCP report.
ACHP stated that in general they found the TCP Report helpful, but recommended that the final report
provide further detail on how traditional cultural properties would be affected by the reservoir, and what
kinds of measures may be needed to mitigate against adverse affects. VDHR stated that their archaeology
subcommittee of their National Register Evaluation Team met to consider the eligibility of the TCPs, and
agreed that all five TCPs were potentially eligible. However, they stated that the level of detail was not
sufficient for them to determine conclusively that the properties met the criteria for inclusion on the
National Register. They recommended further development of property descriptions for the final report.
In April of 1999, the District wrote to the TCP author regarding the comments received and
recommended several minor additions or clarifications to the report.
(c) Final TCP Report: The consultant submitted the final TCP report, "Powhatan's Legacy" in
September 1999, incorporating the applicable comments provided on the draft. The study provided a
historical review of the "Powhatan Indians of Eastern Virginia" from the late sixteenth century, and
described the present day culture. The authors used both quantitative and qualitative methods to gather
data on the Indians' perspective. They conducted formal and informal interviews with individual
members of the Mattaponi, Pamunkey and Upper Mattaponi Tribes, and developed a questionnaire, in
consultation with the Tribes. The questionnaire was designed to focus questions on the attitudes of the
tribal membership and the pertinent cultural lifeways which could be most directly impacted by the
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reservoir project. A total of 98 questionnaires were returned: 51 individuals from the Mattaponi, 19
families from the Pamunkey and 28 individuals from the Upper Mattaponi.
The report identified five Traditional Cultural Properties: the Pamunkey River and its wetlands; the
Mattaponi River and its wetlands; the Pamunkey Reservation including the Pamunkey Fish Hatchery; the
Mattaponi Reservation including their Shad hatchery; and all potentially National Register-eligible
archaeological sites within the project area associated with the Powhatan peoples. These TCPs are argued
as part of the larger ethnographic landscape of the Pamunkey Neck, which has a distinctive rural
character. The Pamunkey and Mattaponi Rivers are described as vital to the Tribes for subsistence, and
essential to their historical and cultural identity, and the Mattaponi River is considered the "lifeblood" of
the Mattaponi community. In regard to the Mattaponi and Pamunkey Reservations, the TCP study
reported that they are the only two Indian reservations in Virginia, "and of less than a dozen surviving
reservations in the eastern United States." The report concluded that the reservations are valued for their
historic and cultural associations and as the center of Indian life for each Tribe. The archaeological
resources were previously researched during the Phase I survey; however, the TCP report stated, "their
(Native American archaeological sites) importance to the Native community goes beyond what their
excavation might tell us." The report indicated that the Tribes recognize that the prehistoric
archaeological sites provide "a centuries deep connection to the prehistoric occupation of the region," and
that the "Mattaponi specifically note that they do not wish these sites disturbed."
The research described the Tribes as having a connection to the land and rivers of the Pamunkey Neck
that provides an important link to their ancestors as well as a legacy to their descendants. The report
stated, "the proposed project is expected to impact the Indian communities, their reservations, and the
surrounding buffer area in a number of ways, all of which will have a negative impact on community
cohesiveness, and on the historic and cultural character of the TCPs." These effects include: direct
changes in the Mattaponi River and indirect changes in the Pamunkey River and their associated
wetlands, which would affect the plant and animal communities and the people that depend on them;
changes in the rural character of King William County due to increased recreational and residential use of
the rivers and reservoir, and further isolation of the two reservations by the physical barrier of a reservoir;
potential impact on future plans of the Mattaponi and Pamunkey Tribes for an expansion of their land
base to further protect their heritage; negative effect on the morale and status of the Indian community of
Virginia as a whole; and inundation and/or excavation of prehistoric archaeological sites which have great
emotional and symbolic significance to the Tribes causing significant disturbance in the Indian
community and possibly impacting their quest for federal recognition. The report stated, "...if this
project is undertaken it will have harmful effects on the Indian people and their culture. All Indian people
we have consulted and surveyed insist that this project should not be undertaken." The author's reasons
for this recommendation are summarized as follows: the area of potential effect for the proposed
reservoir includes the "cornerstone" of surviving traditional native culture in Virginia; changes to the
rivers would be irreversible, as would their effects on the Tribes; the area of potential effects contains
sites of sacred importance to the Tribes; and the archaeological sites affected by the proposed reservoir
are of great cultural and symbolic significance to the Tribes, and most tribal members do not want the
sites disturbed. The Tribes would not discuss compensation of the impacts on these TCPs; therefore, the
author was not able to include suggested mitigation measures in the report.
(7) Mitigation for Impacts to TCPs: At a meeting with the consulting parties on 1 April 1999,
the TCP report was discussed as well as a draft document prepared by the District entitled "Traditional
Cultural Properties: Determination of Eligibility and Evaluation of Effects of the King William
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Reservoir" that applied the National Register Criteria to each TCP and listed the potential effects of the
project on each TCP. All parties present were asked for their input and the District finalized the
document on 6 April 1999 to incorporate these comments. Each TCP was found to meet one or more of
the National Register criteria. In accordance with 36 CFR 800 and 33 CFR 325 Appendix C, an historic
property will be treated as eligible for the National Register if both the SHPO and District agree that the
property is eligible. At this meeting, the District, VDHR, ACHP, Newport News and the Tribes agreed to
consider the TCPs "potentially eligible"; however, there was disagreement as to the effects of the project
on TCPs. Newport News believed that the effects were "perceived" rather than "real", and the Tribes
firmly believed that the impacts were real. Newport News was very concerned about the need to move the
projectfforward and to discuss potential mitigation measures.
Earlier in the project, Newport News had met on their own with the individual Tribes to try to arrive at an
agreement whereby the Tribes would withdraw their objections to the project in exchange for monetary
compensation. Although the Upper Mattaponi Tribe seriously considered the City's proposal, none of the
Tribes consented to sign such an agreement. In March of 1999, Newport News drafted a proposal to
establish the "Powhatan's Legacy Foundation" to "mitigate the adverse effect perceived by the Native
Peoples on TCPs associated with the King William reservoir project, and to provide a vehicle for the
Tribes to protect and maintain their traditional cultural values." Newport News proposed to provide 1.5
million dollars to the foundation, to be distributed equally to the three Tribes. As part of the agreement,
Newport News proposed certain measures to protect the natural environment, provide ongoing assistance
to the foundation, and involve the Tribes in the archaeology research and curation. The Tribes did not
accept this proposal, and requested confidential discussions of any mitigation for TCPs with only the
essential consulting parties attending the meetings. Therefore, arrangements were made to meet with
each of the Tribes individually in May 1999, and the Tribes were requested to provide a list of possible
mitigation measures prior to the meetings.
Accordingly, all three Tribes presented a list of potential mitigation measures which they requested to be
kept confidential. The Upper Mattaponi Tribe provided their list in April of 1999, and requested that the
measures be held in strictest confidence by all parties involved. The Pamunkey Tribe submitted a letter to
the District with their suggested mitigation measures for the TCPs in April 1999. The letter stated that the
Pamunkey Tribal Government has always opposed and still opposes the proposed King William
Reservoir; however, they wanted the best possible mitigation plan if the Corps approved the project. In
May 1999,IPR submitted the Mattaponi Tribes' TCP mitigation proposal to the District. The Mattaponi
Tribe reemphasized their belief that no measures could ever fully mitigate the adverse effect of the King
William Reservoir on the Tribe's historical and cultural resources. The Tribe also indicated that they were
only providing the suggested mitigation measures because they felt forced into the situation, and they
feared that by not participating, the Tribe would run the risk that the reservoir would be built with no
compensatory mitigation. IPR also arranged for confidentiality agreements to be signed by Newport
News and the District. I agreed not to divulge the information presented in the mitigation meeting to the
extent permissible by law and signed the agreement in May 1999.
On 13 May 1999, meetings were held separately with the Pamunkey and Upper Mattaponi Tribes to
discuss possible mitigation measures for impacts to TCPs. The meetings were attended by representatives
of the respective Tribes, the District, VDHR, ACHP, EPA, and Newport News. For both of the Tribes,
Newport News agreed to review their suggested mitigation, provide a counter offer, and attend a second
meeting to discuss the mitigation. On 22 May 1999, a meeting was held to discuss mitigation measures
for impacts to TCPs with the Mattaponi Tribe. The meeting was attended by representatives of the
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Mattaponi Tribe, IPR, the District, VDHR, EPA, and Newport News. The Mattaponi Tribe suggested
mitigation for impacts to TCPs and Newport News requested cost estimates for some of the mitigation
proposals, and indicated they would submit a counter offer. Also at this meeting, IPR read a statement
discussing a unique sacred site within the Cohoke valley which is of great traditional and religious
importance to the Tribe. The Tribe indicated that they were extremely reluctant to discuss the sacred site
with outsiders unless absolutely necessary, and only revealed the existence of it when the Tribe felt it had
no choice if the site were to remain undisturbed. The Mattaponi Tribe requested that the District seek
protection for the information under Section 304 of the NHPA. The District requested a written
statement in order to have something to present to the NPS for protection.
(8) Suspension of Section 106 Coordination: On 4 June 1999,1 sent a letter to Newport News
to inform them of my preliminary position to deny their request for a Department of the Army Permit to
construct the King William Reservoir. With the District's preliminary position of denial, there would be
no federal undertaking for further consultation under Section 106; therefore, the Section 106 process was
discontinued. Newport News objected to this action and recommended that we continue the discussions
of mitigation for TCPs and complete the MOA. In June 1999, Newport News submitted "confidential"
counterproposals to each of the Tribes regarding mitigation for the TCPs, and stated that the offer "should
be regarded as the City's best and final financial proposal." IPR sent a response for the Mattaponi Tribe
stating that the Tribe saw no reason to continue discussing cultural resource mitigation proposals at this
time. The Pamunkey Tribe indicated that further discussions of the mitigation should await Newport
News' appeal of the final Corps' decision if the permit is denied. The Upper Mattaponi did not respond to
Newport News' letter.
(9) Discussion on Appropriate Mitigation Measures: It should be noted that there were
substantial differences in the proposals submitted by each of the Tribes and the counteroffers submitted
by Newport News. Newport News has made statements indicating that they and the Tribes were close to
a resolution on appropriate mitigation measures. However, based upon discussions at the various
meetings and statements contained in letters received from all parties, it did not appear there would be
concurrence between the Tribes and Newport News. Although there were areas where Newport News
and the Tribes agreed (i.e., additional Tribal lands, museums, cultural centers, grantsmanship assistance,
etc.), the monetary amounts offered by Newport News were far less than the Tribes requested. There
were also several measures requested by each Tribe that Newport News did not agree to fund or
incorporate. The monetary differences alone between the Tribe's requests and the offers by Newport
News are significant, with all of the Tribes requesting millions of dollars more for mitigation measures
than Newport News was prepared to offer.
(10) Sacred Site: On 30 June 1999, IPR submitted a letter on behalf of the Mattaponi Tribe
discussing the "sacred site." The District contacted the NPS seeking concurrence that the 30 June letter
should be withheld from disclosure to the public pursuant to Section 304 of the NHPA, and in July 1999,
the NPS responded that they concurred with our intent to withhold the document from the public. Due to
the Tribes' request for confidentiality, and the Section 304 protection provided, the specifics of the sacred
site will not be discussed in detail in this document. However, the 30 June 1999 letter is part of the
administrative record and will be made available within the Corps' chain of command for decision-
making purposes.
The City of Newport News questioned the validity of the sacred site and asked the District to conduct
further investigations and consultations on the site. Although there is no historical documentation on the
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specific location of the sacred site mentioned by the Mattaponi Tribe, there are historical records which
validate the potential existence of such a site. In addition, conversations with VDHR and ACHP have
indicated that oral history in the American Indian culture is very reliable. The District has confirmed with
the authors of the TCP report that they learned of the sacred site from more than one individual during
their research for the TCP study, but were requested not to include any information on spiritual, religious
or ceremonial practices in the report due to concerns that the information might be released to the public.
Newport News also indicated in their letter of 21 September 1999 to the NPS that information about the
sacred site had already been released by certain members of the Mattaponi Tribe. However, Newport
News has provided no evidence that any pubic statements made were a release of the same type of
information or level of detail provided in the 30 June 1999 letter.
The District has accepted the Mattaponi Tribe's statements concerning the sacred site, and has not pursued
the validity in depth due to the Tribes' request for confidentiality and the fact that no further Section 106
consultation is necessary at this time. Although the site was not discussed in the TCP study, the District
believes it would be considered a TCP, at least as another archaeological site. It should be noted that my
preliminary position to deny the permit was made before I had any knowledge of the existence of the
sacred site; therefore, it was not the issue that tipped the balance toward my preliminary position of denial
as alleged by Newport News. Should it become necessary in the future for the District to continue
evaluation of TCPs for permit issuance, further consultation on the sacred site would be necessary.
(11) Rebuttal Reports Submitted by Newport News: In August of 1999, the City of Newport
News submitted two reports to the District: "Cultural Resources Issues Summary" prepared in response
to the District's 4 June 1999 preliminary denial letter; and "Supplemental Report on Cultural Resources
Issues" a confidential report addressing TCP mitigation and attempting to rebut the existence and/or
significance of the sacred site.
The "Cultural Resources Issues Summary" did not contain any new information, rather, the report restated
the City's position that they have been very accommodating to the Tribes, that any adverse effects
resulting from the project could be adequately mitigated, that federal historic preservation laws present no
bar to the issuance of a permit, and that mitigation measures have been successfully used in other similar
situations. The District agrees that the City of Newport News has been willing to cooperate with the
Tribes; however, there were still areas of apparently irreconcilable disagreement between the Tribes and
Newport News, with appropriate mitigation measures being one of the most notable issues. Section 106
requires the District to "take into account" the effect to historic resources, and the law does not suggest
that projects must be denied based on impacts to cultural resources. However, there is nothing to
preclude the denial of a project based partially or wholly on adverse impacts to historic properties. The
reservoir project would result in adverse effects on historic properties, an issue that was considered in the
combined impacts of the project. Mitigation agreements to compensate for TCP impacts in other projects
do not necessarily apply to the proposed King William Reservoir project.
On behalf of the Mattaponi Tribe, IPR submitted a rebuttal to the City's summary report in a letter dated
14 January 2000. The letter stated that the Mattaponi Tribe had not accepted Newport News's proposed
mitigation plan and that they believed the District's procedures were in compliance with the Section 106
consultation process. The Tribe restated their belief that the excavation of vital archaeological resources
would result in an unacceptable and irretrievable loss to the Tribe, there is a strong likelihood that the
project would negatively impact the shad population, the Tribe's traditional hunting and gathering
practices would be severely impacted, the Tribe's traditional religious practices and traditional ways of
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life would be compromised, and that there would be disproportionate impacts to Native Americans
resulting from the project location. IPR also noted cases where mitigation had been rejected by other
tribes due to project impacts.
The City of Newport News' "Supplemental Report on Cultural Resources Issues" contained the same
information on the sacred site that the Mattaponi Tribe had revealed to the District and the City at the 22
May 1999 meeting as well as other information on the site, including possible geographic locations.
Therefore, the District also sought protection of this document under Section 304 of the NHPA. In a
December 1999 letter, the National Park Service concurred with the District's intention to withhold this
document as well.
On behalf of the Mattaponi Tribe, IPR submitted a response to the City's Supplemental Report on
November 30, 2000. Without revealing any details about the site, the following summarizes the two
documents. Newport News alleged that the Mattaponi Tribe revealed the sacred site as "a last-ditch
attempt to promote the particular agenda of the Tribe and its allies." However, the Mattaponi contend
that Tribe never wanted to reveal the existence of the sacred site, and only decided to reveal the secret
"when faced with the untenable choice of either disclosing the site's identity and risk its desecration by
pothunters and profiteers or failing to mention it and risk its loss." IPR cited National Register Bulletin
38 which discusses the reluctance of Native American's to reveal information on sacred sites, "The need
to reveal information about something that one's cultural system demands be kept secret can present
agonizing problems for traditional groups and individuals." Newport News stated their belief that only
the Pamunkey Tribe should be responsible for the sacred site. However, IPR indicated that all six of the
original tribes of the Powhatan Nation have an equal responsibility for the site.
Newport News also questioned why there is no corroboration from other Virginia Tribes about the site.
The Mattaponi Tribe believes that this is not a legitimate basis for questioning their oral history. Other
tribal communities may have their own reasons for declining to disclose information about the site.
Newport News suggested that the sacred site could simply be relocated. However, the Mattaponi Tribe
contends that moving the site " is wholly inconsistent with the Tribe's spiritual practices and
traditional beliefs, would destroy the spiritual integrity of the site, and would undercut the cultural
identity of the tribe itself."
In their report, the City of Newport News attempted to discredit the Mattaponi tribal historian, Dr.
Linwood Custalow by making statements about his motives, indicating that he had already released
details about the sacred site in public forums, and suggesting that his information regarding the sacred site
had been obtained from a published document. The Mattaponi Tribe objected to these attacks on Dr.
Custalow's integrity and provided a summary of his qualifications and service to the community. It
should be noted that the statements from public meetings attributed to Dr. Custalow by the City of
Newport News do not contain details of the sacred site. Furthermore, the District has not been provided
with any documentation to support the City's allegation that any such public release of details on the
sacred site by Dr. Custalow has actually occurred. The Mattaponi Tribe suggested that the similarity
between Dr. Custalow's accounting and published information is corroboration of oral history rather than
plagiarism of modern documentation. As stated above, neither the District staff, ACHP or VDHR found
any reason to reject the Mattaponi Tribe's oral history concerning the sacred site.
(a) Newport News Request for Continuation of Section 106 Review: In addition to the
reports, Newport News wrote several letters to the District expressing their opinion that suspension of the
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MOA process and TCP mitigation discussions was contrary to the Corps' Section 106 regulations. In
October 1999 the District met with Newport News and their representatives to discuss this issue. At the
meeting, and in subsequent letters dated 15 October 1999 and 17 November 1999,1 informed Newport
News that because of my preliminary position of denial, suspension of the Section 106 process was the
correct action in this case, and that concurrence had been received from both VDHR and ACHP that the
District was acting properly.
(b) Additional Newport News Comments on TCP Report: Although Newport News appeared
willing to accept the TCP report after the District investigated the alleged bias issue, they later asked the
District to disregard it. In a letter dated 31 May 2000, the City of Newport News claimed that it would be
a serious error for me to form an opinion on the effects of the project on TCPs based on the Final TCP
report. The City claimed that their consultant, Dr. Thomas King, is more qualified to evaluate the effects
of the project on TCPs than the District staff. The City provided Dr. King's critique, which alleged that
the TCP report is seriously flawed as evidenced by the authors' failure to follow the Scope of Work,
failure to follow applicable procedures and criteria established by law and specified in the scope of work,
and their inability to keep their individual biases out of the document. It should be noted that both the
City of Newport News and Dr. King reviewed the Draft TCP report in January of 1999, and along with
other parties, were given an opportunity to comment. The only issue the City raise at that time was the
alleged bias of the authors. Dr. King's criticisms on the procedures would best have been raised during
the joint development of the Scope of Work or while the report was in draft form.
In a letter dated 21 November 2000, Dr. King submitted a second letter to the District on behalf of the
City of Newport News commenting on Mr. Thompson's review of his critique of the TCP Report and on
the District's 6 April 1999 document entitled, "Traditional Cultural Properties: Determination of
Eligibility and Evaluation of Effects of the King William Reservoir." In a summary of his opinions, Dr.
King advised me that, "In a nutshell, the documents suggest to me that you have been rather poorly
advised about both Section 106 and the conduct of 'traditional cultural properties' studies."
Dr. King stated his belief that the authors of the TCP report exceeded their Scope of Work since "they
were not directed to make an independent analysis of impacts that the District could use in lieu of making
its own analysis." I have conducted my own review of the numerous environmental impacts of the
project, and the Tribe's opinions on the adverse effects to TCPs were considered along with all other
impacts of the project. Since I considered, but did not use the authors' analysis of impacts in lieu of the
District's review, I disagree with the implication in Dr. King's statement. Although he did agree with
some of Mr. Thompson's comments, Dr. King stated that there was not enough support for some of his
conclusions. Dr. King again questioned Mr. Thompson's qualifications, this time based upon some
informal remarks in an e-mail message to the District's project manager. There appears to be a difference
of professional opinion between Dr. King and Mr. Thompson with regard to many issues of the TCP
report, most notably, whether or not the authors were biased. As indicated above, the District had fully
addressed the issue of bias and was not convinced by Dr. King's arguments to reevaluate the issue.
In his critique of the District's 6 April 1999 document addressing eligibility and effects on TCPs, Dr.
King disputed the criteria used for some of the TCPs, but did note that all consulting parties had agreed to
treat all these properties as eligible for the National Register. Dr. King agreed that the listing of perceived
adverse effects "generally tracks the discussion at the 1 April 1999 meeting"; however, he claims that the
District's project manager who chaired the meeting had used words such as "nebulous", "minimal", and
"remote" to characterize some of the listed effects. While the District does not have a verbatim record of
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the meeting and cannot confirm or deny that these words were used, the exact context in which they were
used would be necessary for a true interpretation of their meaning. Finally, Dr. King criticized the
District for not distributing the 6 April 1999 document after consultation was suspended.
Norfolk District's archaeologist, Mr. Tim Thompson, was tasked to review Dr. King's comments and to
determine if any of the allegations were valid. In a 6 December 2000 memo entitled "Further Review of
King William Reservoir TCP Report", Mr. Thompson concluded that the TCP report had been prepared
in accordance with both the Scope of Work and with applicable procedures and guidelines. He stated that
the TCP report outlined how the tribes believe the TCPs might be affected and contains sufficient
information for the District to determine eligibility for the National Register. As even Dr. King admits,
there has been no objection to either the identification of the TCPs or their potential eligibility for the
National Register. As the bias issue had been addressed in depth by the District, it was not discussed any
further.
I have determined that the TCP report accomplishes the primary purpose of the TCP study, which was to
identify TCPs. I have reviewed all of the recent information provided by the City of Newport News and
nothing contained in it has persuaded me to change my position regarding the impartiality of the TCP
authors or the project's adverse impacts to cultural resources.
(12) Impacts to Cultural Resources: It is undisputed that the project would have an adverse
effect on historic resources. My June 1999 preliminary position of denial was based in part on impacts to
these resources, including TCPs. As proposed, the project would cause flooding or excavation of 115
archaeological sites, 79 of which VDHR recommended for further evaluation. The vast majority of the
sites (66) are Native American base camps or temporary camps. There are also an unknown number of
sites which may be impacted by pipeline routes, wetland mitigation sites, and construction staging areas
which have not yet undergone archaeological investigations. The Phase I report states, '"The Cohoke
Creek valley native American site resources base is excellent. There will probably be a fairly large
number of significant sites affected by the project." The Pamunkey and Mattaponi Tribes have indicated
that the archaeological sites are of great importance to their culture, and the Mattaponi have stated that
these sites are also of religious importance. In addition, the Mattaponi Tribe has stated in a letter of July
25, 1997, "Flooding the area, even if those remains that have been identified are excavated, would result
in an unacceptable loss to the Tribe. Perhaps most important, the Tribe considers any burial grounds to be
sacred resting sites, not to be disturbed." The sacred site revealed by the Mattaponi Tribe also has the
potential to be of significance to the sciences of archaeology and anthropology. The Tribes have indicated
that no mitigation measures would be adequate to compensate for the loss to their culture. In addition to
the archaeological sites, there are potentially eligible historic structures and a potential niral historic
landscape that must be evaluated for effects, including viewshed analysis.
It should also be noted that in the course of developing the MOA, the presumed course of action for all
archaeological sites within the KWR-IV reservoir was data recovery, due to the applicant's inability to
further redesign the flood pool or preserve the sites in place. In May of 1999, the ACHP published a
notice of guidance in the Federal Register as an attachment to the revised "Protection of Historic
Properties" regulations. One part of the guidance entitled, "Resolving Adverse Effects Through Recovery
of Significant Information From Archaeological Sites", recommends considering and addressing several
issues when recovery of significant information is the recommended course of action. Several of the
issues listed are pertinent to this project, including the following: (1) the archaeological site should not be
likely to contain human remains or associated funerary objects, sacred objects or items of cultural
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patrimony; (2) the archaeological site should not have long-term preservation value, such as traditional
cultural and religious importance to an Indian Tribe; and (3) the Federal Agency Official should
determine that there are no unresolved issues concerning the recovery of significant information with any
Indian tribe that may attach religious and cultural significance to the affected property. These issues
would indicate that data recovery may not be appropriate in this case, and that if the Section 106 process
is resumed, further discussions with the Tribes would be necessary before data recovery plans are
developed pursuant to the draft MOA.
Traditional practices and beliefs and cultural identity were difficult subjects for the Tribes to discuss with
outsiders; however, because of their decision to cooperate, the District was able to fully consider cultural
and social issues, identify impacts and discuss potential mitigation measures with direct input from the
affected community. The final "Powhatan's Legacy" report identified five Traditional Cultural Properties:
the Pamunkey River and its wetlands; the Mattaponi River and its wetlands; the Pamunkey Reservation
including the Pamunkey hatchery; the Mattaponi Reservation including the Mattaponi hatchery; and all
potentially National Register-eligible archaeological sites within the project area associated with the
Powhatan peoples. The report indicates that the reservoir would harm the Native American Tribes and
their culture through both direct and indirect effects. The Tribes state that the reservoir would destroy
their way of life through the loss of hunting, gathering and fishing habitat, by changing the rural setting
from increased residential growth around their reservations, and by severing ties to their ancestors and to
a sacred site within the Cohoke valley when the archaeological sites are excavated or flooded. Mitigation
for TCP impacts was explored, but not finalized. Further, there are no standard practices for mitigation of
this kind. However, I have concluded that the Tribes cannot be fully compensated for the losses to their
spiritual connections, culture and traditional socioeconomic practices that they would experience as a
result of the construction of the reservoir and the withdrawal of water from the Mattaponi River. (For a
detailed discussion of historic resources issues, see the District's report entitled " Historic Resources and
Traditional Cultural Properties Consultation for the King William Reservoir Project." Also, the District's
chronology of Section 106 coordination appears as "Chronology of Section 106 Coordination and
Environmental Justice Issues for the Regional Raw Water Study Group Permit Application.")
n. Air Quality: Residences along State Route 626 and recreational uses in Cohoke Millpond
could be adversely impacted by hydrocarbon emissions from the internal combustion engines of
construction vehicles and increased dust emissions from land disturbances and construction activities at
the reservoir. There are no residences in the immediate vicinity of the proposed intake. However,
subsistence fishing and gathering by the Mattaponi Tribe as well as recreational uses of the Mattaponi
River by the general public could be adversely impacted by construction activities. Increased dust
emissions could also have an adverse effect on fish and wildlife resources in both construction areas.
Had the project been authorized, it would have been analyzed for conformity applicability pursuant to
regulations implementing Section 176(c) of the Clean Air Act. It is anticipated that the activities
proposed under this permit application would not exceed de minimis levels of direct emissions of a
criteria pollutant or its precursors and are exempted by 40 CFR Part 93.153. Any later indirect emissions
would generally not be within the Corps' continuing program responsibility and generally could not be
practicably controlled by the Corps. For these reasons a conformity determination would likely not be
required.
o. Health and Safety: The increased vehicular traffic on rural roads in the area from the
transportation of workers and materials to the construction sites during the anticipated three-year
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construction period could lead to increased traffic incidents. The existing Cohoke Creek crossing of
County Route 626 would be inundated by the reservoir pool, but would be relocated to the top of the dam
structure. Emergency access for police and fire vehicles would be temporarily re-routed during
construction. Short-term increases in noise levels are expected during construction and long-term
increases in ambient noise levels would occur during the operation of pumps at the pump stations on the
Mattaponi River and at the reservoir.
The Corps of Engineers Institute for Water Resources' analysis of the need for additional water indicates
that unless the region suffers a drought more severe than any recorded in the twentieth century, the
RRWSG would have minimal risk of shortage through about 2030. The risk of shortage requires
implementation of drought curtailment measures (water use reductions) and does not translate into a risk
to human health and safety.
p. Recreation:
(1) Mattaponi River: The Martaponi River and its banks are used year-round for recreational
fishing, boating and hunting. Although there are several pubic boat ramps on the river, none are located
in the immediate vicinity of Scotland Landing. The Mattaponi River and its freshwater tidal wetlands
support a number of fish and birds important to local sportsmen and there are several privately owned
duck blinds and hunt clubs near Scotland Landing. King William County plans to develop a recreational
park on the remainder of the 188-acre parcel purchased by the City of Newport News for the construction
of the intake and pump station. The Mattaponi Tribe has expressed concern that additional recreational
boating would disrupt their subsistence fishing and other traditional uses of the river. Mattaponi Tribal
fishermen report that pleasure boaters often negatively impacts their catch by ripping their drift nets.
During discussions on potential mitigation for the adverse effects to Traditional Cultural Properties, the
City of Newport News offered to ensure that the County would not include a boat ramp at the proposed
recreation area. River water depths would not be measurably impact by the proposed withdrawals since
the intake would be located in tidal waters. The intake structures should not restrict recreational uses of
the river, however the intake area would be marked by warning buoys.
(2) King William Reservoir: King William County plans to develop up to 5 recreational sites
on and adjacent to the reservoir for swimming, fishing and boating. In order to protect water quality, only
electric outboard motors would be allowed. The plan includes the construction of fishing piers, boat
launching facilities and floating boat docks to provide public access for year-round recreational fishing.
The VDGIF recommended that King William County consult with them regarding the location of boat
ramps within the reservoir. Also, camp sites, picnic areas and nature trails would be established. The
reservoir would provide a 1,526-acre lake which would be stocked with forage and game species for
freshwater fishing. Hunting would also be allowed in the vicinity of the reservoir with certain
restrictions.
In the 1990 King William Reservoir Project Development Agreement, the City of Newport News
promised King William County that for at least 90% of the time, water surface elevations within the
reservoir would remain within 6 feet of the spillway elevation to ensure continued recreational benefits.
However, because the District required that the proposed 47% dead storage included for recreational
purposes be reduced, the applicant revised the Agreement to reflect 25% dead storage. This storage
would provide water surface elevations within 15 feet of the spillway elevation for at least 90% of the
time and within 2 feet of the spillway for at least 60% of the time. Then in a second addendum to the
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Agreement, the City of Newport News pledged to further protect the recreational benefits of the smaller
surface area with KWR-IV by guaranteeing that the water surface elevation would remain within 15 feet
of the spillway elevation at least 94% of the time and within 2 feet of the spillway elevation at least 69%
of the time. It is not clear how this can be guaranteed under the modified 80% Exceedence MIF which is
a condition of the DEQ permit. There would undoubtedly be times when even the less restrictive
modified 40/20 Tennant MIF proposed by the applicant would not allow withdrawal from the Mattaponi
River to maintain these levels.
(3) Cohoke Creek: Several bird and mammal species are hunted in the Cohoke Creek valley
and there are a number of hunt clubs and duck blinds that could be impacted within the basin. The land
available for hunting in the area would be significantly reduced. The majority of recreational fishing in
Cohoke Creek takes place downstream of the proposed reservoir in the privately owned 85-acre Cohoke
Millpond where the Cohoke Club has a small boathouse and a private fishing dock. Fish species in the
Millpond could be impacted by siltation during reservoir construction and by long-term changes in water
quality and quantity as a result of reduced flows.
(4) Diascund Reservoir: In their May 1999 Fish and Wildlife Mitigation Plan, the RRWSG
mentioned for the first time the proposed development of a public recreational facility at Diascund
Reservoir as a recreational benefit of the King William Reservoir project. They state: "New Kent County,
through which part of the pipeline will run, will benefit from the development of a new public
recreational facility at the existing Diascund Creek Reservoir." This has not been proposed to the
District; therefore, the impacts have not been evaluated. Depending on the nature of the facility, a permit
from the Corps of Engineers may be required.
q. Socioeconomics:
(1) Mattaponi and Pamunkey Indian Tribes: The Mattaponi and Pamunkey People have lived
by hunting, trapping, fishing and gathering on the Mattaponi and Pamunkey Rivers and in the area known
as Pamunkey Neck for thousands of years and still depend to a great extent on the natural ecosystem that
surrounds their reservations. Many current residents of the reservations make their living from the
Mattaponi and Pamunkey Rivers and the surrounding land and rely on the year-round gathering of fish
and other animals and plants for their subsistence. Both tribes operate shad hatcheries to restore the shad
stock in the York River basin. Tribal members consider shad fishing an important traditional community-
centered activity and an integral part of their identity.
A substantial portion of the Mattaponi Tribe's food supply comes from fishing, mostly during the shad
and herring runs in the spring. Tribal members also depend on other fish such a stripped bass, catfish,
perch and carp as well as game such as deer, wild turkey, ducks, geese, squirrels, rabbits, turtles and
beaver. The use of wild plants is an important part of the lives of many tribal members. Approximately
sixty wild plants found on the reservation or the surrounding land are still gathered by the Mattaponi
People for food, medicine, and ceremonial and ritual uses. Plants used for medicinal purposes include
myrtle leaves, flag root and foxglove. Plants gathered for food include tuckahoe tubers, local wild cactus,
wild rice and yucca. The Mattaponi Tribe believe that the Mattaponi River and the ecosystem
surrounding the reservation is critical to their continued existence as a tribe.
The Mattaponi Tribe fears that the potential increased salinity levels from the proposed pumping of up to
75 mgd of freshwater from the Mattaponi River could result in significant adverse impacts to American
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shad and related fish species and irreversibly alter the natural habitat of freshwater plants and animals on
which the Tribe depends. Also, they fear that the withdrawal would increase water temperatures and
reduce oxygen levels in the summer resulting in adverse effects to shad and herring nursery areas. As the
intake would be located within the prime spawning area for shad and other anadromous fish, the Tribe
fears that the intake would harm fish eggs and juveniles, remove the fishes' food supply and concentrate
predatory fish. They fear that changes to hydrologic patterns and tidal dynamics would adversely affect
shad habitat, disrupt spawning behavior and affect the viability of eggs and the survivability of larvae and
juveniles; all of which could eventually destroy the already depleted shad supply. Disruption of their
shad fishery and hatchery operation would represent a major cultural loss and a potential economic loss to
the Mattaponi Tribe.
The Martaponi Tribe also fears that the construction of such a massive project so close to their reservation
as well as increased property development brought to this rural area by the reservoir would disrupt their
hunting and gathering practices and irrevocably alter their way of life, their culture and ultimately, their
existence as a tribe. According to the 1997 King William County Comprehensive Plan, moderate
residential development would be allowed within the watershed protection area around the reservoir; and
moderate mixed residential, light commercial and planned unit development would be allowed along the
periphery of the watershed protection area. Such development would change the rural and agricultural
setting of the area and decrease the habitat available for hunting and gathering. The Mattaponi Tribe
views the reservoir and the subsequent development around the reservoir as further trespass on their
historic lands. According to the Mattaponi Tribe, many of their people who live off the reservation would
like to return to their traditional homeland to continue the Tribe's culture and traditional way of life. As a
part of their "Legacy Plan", the Mattaponi Tribe is trying to acquire additional land for expansion of the
reservation to allow more tribal members an opportunity to move to the reservation. Residential and
commercial development such as that described in the King William Comprehensive Plan may compete
with the Tribe for those lands and may drive real estate prices in the area out of the reach of Tribal
resources. The development potential of the land surrounding the reservoir would be expected to increase
its value, especially the lakefront property. The Mattaponi Tribe fears that these impacts would
eventually mean the demise of the Mattaponi Tribe.
(2) Commercial Fisheries: The taking of shad in the Mattaponi River is prohibited to the
general public due to depleted stocks. Creel limits for shad are zero in other rivers as well, including the
upper portions of the Pamunkey River, Rappahannock River, James River, Meherrin River,
Chickahominy River and the Appomattox River. However, shad are commercially fished in the
Chesapeake Bay, and any adverse effects to spawning in the rivers would affect the economy of those
depending on the commercial catch of shad in the Bay.
(3) Development Potential: The population of King William County increased only slightly in
recent years and the County remains primarily rural. The RRWSG stated in the FEIS that there would be
minimal development around the reservoir. However, King William County intends to allow moderate
residential development within the watershed protection area around the reservoir; and moderate mixed
residential, light commercial and planned unit development along the periphery of the watershed
protection area. The recreational potential offered by the open water of a man-made lake would
undoubtedly lead to an increase in the development of retirement, weekend and summer homes. Since the
County's recent population growth is related to the growth of the City of Richmond, there is the likely
potential for the development of bedroom communities in the area as well. Central water and sewage
services are not available and the County does not currently plan to develop a central water system to take
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advantage of the 3 mgd source of raw water available to them as hosts for the reservoir. The County has
stated that it is more likely that the water resource would be used to attract industry to the county rather
than to replace residential wells; therefore, any new residential development would be dependent on
wells. The value of the land surrounding the reservoir may increase following the construction of the
reservoir, especially the immediately adjacent waterfront lots. The RRWSG will acquire the land on
which the reservoir would be built and transfer it to King William County. No existing houses would be
displaced by construction of the reservoir; however, if landowners do not wish to sell, the RRWSG may
acquire the land through eminent domain. As King William County will own the land, the County would
benefit financially from lease and tax payment from the City of Newport News. Also, the County would
receive financial gain from the added recreational opportunities provided by the lake. Business activity in
the area is expected to temporarily increase during construction.
A "no discharge zone" would be required for five miles both upstream and downstream of the intake
pipeline at Scotland Landing which could result in restrictions to property owners for future development
on both sides of the river. The imposition of such land use restrictions could result in the diminution of
property rights and property values for landowners on this stretch of the river.
(4) Agricultural Irrigation: There are minor withdrawals of freshwater from the Mattaponi
River for agricultural irrigation. Farmers who use Mattaponi River water fear that the impact of the
proposed withdrawals in addition to natural salinity changes would increase the frequency of salinity
intrusion and destroy their crops if they continue to use the water for irrigation. In the FEIS, the RRWSG
investigated the most downstream irrigator, Enfield Farm in King William County. The farm is situated
on the oligohaline range of the river where the average salinity is 0.0 to 0.5 ppt and current crops are corn,
soybeans and turf grass. The RRWSG reported that the threshold level at which some crops (e.g. com)
begin to experience negative impacts from increased salinity is 0.45 to 0.5 ppt. The RRWSG's analysis
of salinity data shows that the post-withdrawal salinity level would still be below the tolerance threshold
levels. Also, the RRWSG's analysis indicated that the crops grown by these farmers would be tolerant of
the small predicted salinity increases brought about by the withdrawal and concluded that there would be
no adverse impacts on irrigation as a result of withdrawals. The RRWSG's analysis is based on the
results of the VIMS salinity study which did not consider the cumulative effects of other consumptive
uses or the additive effect of the proposed withdrawals with natural, pre-existing salinity fluctuations.
The RRWSG's analysis also did not appear to consider the effects on less salinity tolerant crops or future
increases in agricultural irrigation in the Mattaponi watershed.
(5) Increased Cost to Newport News Waterworks Customers: Newport News Waterworks
customers have expressed concern that the costs associated with building the reservoir will cause their
water rates to increase. The City of Newport News has acknowledged that water rates will increase by
31% by the year 2006 (64 cents per 100 cubic feet of water- $85.56 more per 100,000 gallons than current
charges) in order to pay for the King William Reservoir and other water supply projects. Half of the rate
increase ($150 million dollars or $43.00 per 100,000 gallons) is attributed to the King William Reservoir.
To date, an estimated $16 million has been spent on the planning of the reservoir. Several months after
my preliminary position of denial was announced, the Newport News City Council approved spending an
additional $680,000 for legal and engineering fees associated with continued pursuit of the permit. The
most recently reported estimate for the total cost of the King William Reservoir was $167.5 million
dollars.
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r. Energy Needs: Fossil fuels would be consumed during the construction of the reservoir, and
electric power would be used to run two pump stations. No adverse impacts are anticipaled.
s. Land Use Classification and Coastal Zone Management Plans: The project must be
constructed and operated in a manner that is consistent with the Virginia Coastal Resource Management
Program. The City of Newport News has written to the Virginia Coastal Program Manager stating that
the project is consistent with the Act; however, the state has requested more information in order to
determine if they concur with the applicant's draft federal consistency certification.
(1) Mattaponi River: According to the 1997 Comprehensive Plan for King William County, the
intake site would be located within a designated Resource Protection Area; therefore, its development
must comply with the Chesapeake Bay Preservation Act. Due to the remoteness of the Mattaponi River
intake site from existing development, limited impacts on existing land uses are anticipated. However, a
"no discharge zone" would be required for five miles both upstream and downstream of the intake
pipeline at Scotland Landing which could result in restrictions to property owners for future development
on both sides of the river. An access road and 2.5 miles of new electrical transmission line to the pump
station would require additional clearing and right-of-way maintenance. King William County has
announced plans to develop the remainder of the 188-acre property purchased for the 3-acre intake site as
a recreational park.
(2) King William Reservoir: The King William Reservoir would be constructed in King
William County, a rural area with little or no commercial or industrial development. The project area is
generally undisturbed except for silvicultural activity. The majority of the reservoir watershed is currently
forested land and the remainder consists of wetlands, open water and roads. About 65% of the watershed
is currently managed for silvicultural activities. No existing houses would be displaced by the proposed
reservoir. According to the 1997 King William County Comprehensive Plan, the area immediately
adjacent to the reservoir would be designated as a Resource Protection Area in accordance with the
Chesapeake Bay Preservation Act. This would be a 100-foot wide buffer zone around the reservoir in
which no buildings, land disturbance activities or clearing would be allowed. The remainder of the
watershed is designated as a Watershed Protection Area which is also in the County's Resource
Management Area. The RRWSG stated in the FEIS that there would be minimal planned development
around the reservoir; however, the 1997 King William County Comprehensive Plan indicates "Moderate
residential development is intended within the Watershed Protection Area and at its periphery a narrow
area is designated for moderate mixed development of residential, light commercial and planned unit
development." Human disturbances from such development would change the rural and agricultural
setting of the area.
(3) Pipeline Routes: The pipeline would traverse forested and agricultural lands. Agricultural
lands would be removed from their current use and forested areas would be cleared. The forested areas
would not be allowed to re-grow as forests but only as herbaceous or scrub-shrub cover types so that the
utility corridor could be maintained.
t. Environmental Justice:
(1) Executive Order 12898: Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations (59 Fed. Reg. 7629), requires federal! I
agencies to consider disproportionately high and adverse environmental effects on minority and low- {
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income populations and to give minority and low-income populations access to information and
opportunities to provide input to decision-making on federal actions. Therefore, the District and EPA
consulted concerning federal actions to achieve Environmental Justice when considering impacts to the
American Indian and African-American minority populations in the area. As a part of their mission,
federal agencies must identify and address any disproportionately high and adverse human health or
environmental effects of their activities, programs, or policies on minority and low-income populations.
Although an environmental justice analysis is not mandated by NEPA, the Department of Defense has
directed that NEPA be used as the primary approach to implement the provisions of Executive Order
12898. In a memorandum accompanying the February 11, 1994 Executive Order, President Clinton
specified that federal agencies shall analyze the environmental effects, including human health, economic
and social effects, of federal actions, including effects on minority communities and low-income
communities, as well as mitigation of those effects, when such analysis is required by NEPA. The memo
further directs federal agencies to improve the accessibility of meetings, crucial documents, and notices,
and to use Title VI of the Civil Rights Act of 1964 to ensure that all programs or activities that receive
federal financial assistance that affect human health or the environment do not unjustly discriminate.
The applicant and the District previously attempted to undertake an environmental justice analysis for the
King William Reservoir project in the Supplement to the Draft EIS (December 1995) and Final EIS
(January 1997). Those efforts came at a time when environmental justice analysis was a relatively new
concept to federal agencies, including the District and EPA. At that time there was little guidance
available to agencies as to how to properly analyze environmental justice issues. Although the available
information has not changed substantially, our current understanding of the process has. Therefore, the
District determined that the environmental justice analysis for this project should be updated and refined
to more fully and accurately reflect current expectations for such analyses in the federal review process.
The District is including an updated analysis in this document.
(2) Minority Populations Potentially Affected by the Proposed Project:
African Americans: A small African-American community is located near State Route 626 in the vicinity
of the proposed dam. The applicant's plans for the reservoir would not result in the displacement of any
of the homes in this community. The District held a public meeting at Aquinton Elementary School, in
King William, Virginia, in 1994. No one attending this meeting identified themselves as members of this
community or spoke out against the project. The City of Newport News also held a meeting in October
1997 with property owners and residents of this area. The District did not receive any public comments
identifying such comments as coming from this minority group either in support of or in opposition to the
project. Construction of the reservoir would result in increased vehicle traffic, increased noise and
increased dust emissions from land disturbance that would affect the minority community. However, as
these impacts would also be felt by non-minority individuals in the area, these effects would not be
considered as disproportionately high and adverse impacts to this minority population.
Native Americans: Three Native American tribes would potentially be affected by the proposed King
William Reservoir: The Mattaponi, Pamunkey and Upper Mattaponi Tribes. The members of these
Tribes are descendents of the Powhatan people who occupied the land when the first European settlers
arrived in the 17th Century. The Tribes were notified through public notices and other letters about the
King William Reservoir proposal almost from the beginning of the project (approximately 1994) when it
was one of 31 alternatives considered in the Draft EIS. The Norfolk District Corps of Engineers has been
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working closely with the Pamunkey, the Upper Mattaponi and the Mattaponi Indian Tribes since
approximately February 1997 to identify the reservoir permitting issues that have the potential to affect
the Tribes.
The proposed reservoir would not be built on Tribal lands, but would be located between Virginia's only
two American Indian Reservations: the 150-acre Mattaponi Reservation on the Mattaponi River with 65
residents and the 1,200-acre Pamunkey Reservation on the Pamunkey River with 75 residents. The Upper
Mattaponi Tribe owns community land, but does not have a reservation. The Mattaponi and Pamunkey
Reservations are two of the oldest Indian reservations in the United States. Also, the water needed to fill
the reservoir would be withdrawn from the Mattaponi River, at a location upstream of the Mattaponi
Reservation.
The Tribes believe that the proposed reservoir and Mattaponi River water withdrawal would affect them
environmentally, culturally and economically. The Tribes claim that the reservoir would destroy their
way of life through the loss of hunting, gathering and fishing habitat, by changing the rural setting
through increased residential growth around their reservations, and by severing ties to their ancestors
within the Cohoke Valley when archaeological sites are excavated and/or flooded. The Mattaponi people
also believe that their subsistence shad fishery and hatchery operation would be lost or irreparably harmed
by changes in salinity and impacts to shad eggs and juveniles associated with the raw water intake on the
Mattaponi River. The Mattaponi Tribe claims that the land and River are their heritage and are critical to
their culture and their continued existence as a tribe. The Mattaponi Tribe describes their heritage as a
spiritual and historic connection to the Mattaponi River and the Cohoke Valley.
(3) Federal Trust Responsibility: None of the three Tribes is yet federally recognized, and until
recently all were seeking that status. In January 2001, the Mattaponi and Pamunkey Tribes withdrew
from the effort of all eight Virginia tribes to obtain federal recognition. Although the federal trust
responsibility to Native American tribes applies only to federally recognized tribes, the Norfolk District
has chosen to treat the Tribes as though they were federally recognized to the extent possible and
appropriate. On 25 February 1998, former District Commander, Colonel Robert H. Reardon, Jr. signed a
Memorandum for the Record memorializing his 7 March 1997 decision to treat the Mattaponi and
Pamunkey Tribes "as if they were federally recognized tribes, to the extent I am permitted to do so by
applicable statutes and regulations." Accordingly, the Norfolk District has made every effort to keep the
Tribes informed during the processing of this permit application and to involve them where their input
was appropriate. The Treaty of 1677, which was made with King Charles II of England, is held by the
Commonwealth of Virginia, not by the federal government; therefore, any Corps permit decision could
not violate the treaty.
(4) Demographic Characteristics of the Closest Census Tract: Typically, an environmental
justice analysis requires that the federal agency collect population data, using census data to describe the
race and income characteristics of the residents within the census subdivisions in and around the area of
the proposed action. To determine proportionality of effects, each census tract or block numbering area
(BNA) is usually compared to the statistics of a large community as a whole. This larger community is
called the "community of comparison" (COC). It is identified as the smallest political unit(s) that
encompasses the entire impact footprint, and could be a county, a municipality, a collection of such
entities, or even the entire state in appropriate circumstances. Comparing the statistics of each tract or
BNA with those of the COC will indicate which tracts have a higher proportion of minority or low-
income populations. The tracts with the higher proportion of these populations and that are touched by
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the adverse impact footprint are presumed to suffer disproportionate impacts, even if the COC exhibits a
higher minority or low-income population percentage than the affected tract. If the census tract percent is
equal to or less than the COC percent, a federal agency can generally presume no disproportionate effect
on minority or low-income populations.
King William County, being a rural area, is comprised of BNA's 9501, 9502 and 9503, together identified
as Geocode 51101. Block Numbering Area data for King William County reveals the following: The
total minority population of King William County as determined by the 1990 census was 3,542,
representing 32.4% of the population. Most of this minority population was African-American. Sixteen
Hispanic residents accounted for 0.1% of this demographic. The Native American/Eskimo/Aleut
population of King William County was 218 individuals, or 2.0% of the county's total population.
Persons below the poverty level numbered 1,002 or 9.3% of the total county population. The census data
available to the Norfolk District does not correlate these two statistics, so it is not possible to determine
how many of the minority households might also fall into the "below the poverty level" category. (Not all
2000 census data were available at the time of this analysis; therefore the complete 1990 census data were
used.)
In certain situations it is appropriate for an environmental justice analysis to consider effects in a
somewhat different manner than by comparing BNAs or census tracts to COCs as described above. This
is because concentrations of isolated minority or low-income populations within the impact footprint
could be missed despite their being unfairly impacted by the project in a way the larger population is not.
This was the case in King William County, where the total environmental justice population (i.e., the
three Native American Tribes) was a mere 2% of the entire county population. EPA's Final Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA Compliance Analysis notes that:
"A factor that should be considered in assessing the presence of a minority community
is that a minority group comprising a relatively small percentage of the total population
surrounding the project may experience a disproportionately high and adverse effect.
This can result due to the group's use of, or dependence on, potentially affected natural
resources . . . The data may show that a distinct minority population may be below the
thresholds defined in the IWG key terms guidance on minority population. However, as
a result of particular cultural practices, that population may experience
disproportionately high and adverse effects. For example, the construction of a new
treatment plant that will discharge to a river or stream used by subsistence anglers may
affect that portion of the total population. Also, potential effects to on- or off-
reservation tribal resources (e.g., treaty-protected resources, cultural resources and/or
sacred sites) may disproportionately affect the local Native American community and
implicate the federal trust responsibility to tribes."
Such is the case with the effects that would occur from the construction of the proposed King William
Reservoir. It is important to note that this environmental justice analysis deals with something other than
the more typical discussion of whether a low-income or minority population would be disproportionately
and adversely impacted by effects such as pollution or noise. Many of the impacts to the minority
populations discussed herein result from impacts to their cultural resources, as well as to natural resources
they use in a manner that differs from the general population of the area.
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(5) Potential Adverse Environmental Effects to the Tribes: The City of Newport News claims that a
substantially larger number of minority (African Americans) and low-income individuals on the lower
peninsula would benefit from the affordable and reliable future water supply and the growth it would
spawn than the number of minorities (American Indians) that would be harmed by the project. Therefore,
they reason that there would not be a disproportionately high adverse effect to a minority population.
Instead, they claim that the economy and cultural values of the much larger minority and low-income
community on the Peninsula would be affected if water from the proposed King William Reservoir is not
made available them. This interpretation is clearly not the intent of the President's Environmental Justice
directive. When determining whether environmental effects are disproportionately high and adverse,
federal agencies are to consider the following:
• whether there is or would be an impact on the natural or physical environment that significantly
(as defined by NEPA) and adversely affects a minority population, low-income population, or
Indian tribe. Such effects may include ecological, cultural, human health, economic, or social
impacts on minority communities, low-income communities, or Indian tribes when those impacts
are interrelated to impacts on the natural or physical environment; and
• whether environmental effects are significant (as defined by NEPA) and are or may be having an
adverse impact on minority populations, low-income populations, or Indian tribes that
appreciably exceeds or is likely to appreciably exceed those on the general population or other
appropriate comparison group; and
• whether the environmental effects occur or would occur in a minority population, low-income
population, or Indian tribe affected by cumulative or multiple adverse exposures from
environmental hazards.
The District has identified the following potential adverse environmental effects to the Tribes associated
with this project. These impacts include, but are not necessarily limited to the following and are not listed
in order of importance.
(a) Impacts to Cultural Resources: The Mattaponi Tribe considers any effort to locate,
excavate, construct or flood archaeological/historical sites as disturbing to them and their deceased
ancestors. Proper reverence and concern for the Tribe's culture is of critical importance to them.
Flooding of the area, even if the sites have been excavated, would represent an unacceptable cultural and
religious loss to the tribes. Although the initial archaeological survey did not locate any burials, all three
Tribes are very concerned about the possibility that human remains would be discovered within the
impact footprint during the more extensive Phase II archaeological survey. Although the Pamunkey Tribe
are willing to have skeletal remains relocated, any disturbance or removal is unacceptable to the
Mattaponi Tribe, who requested that the remains be left undisturbed by reconfiguring the project design.
Also, the Mattaponi Tribe has asserted that a specific sacred site of great historical significance exists
somewhere within the area to be impacted by the proposed reservoir. Because of the great traditional and
religious significance of this site, and their cultural reticence to discuss issues of this nature with
outsiders, the Tribe chose not to mention this site or bring it to the District's attention until May 1999.
Disrupting or flooding the sacred site, any potential burial sites, and the approximately 115 archaeological
sites within the impact footprint would be perceived as a significant spiritual loss to the Mattaponi Tribe.
These impacts are unacceptable to the Mattaponi Tribe and such spiritual and cultural losses cannot be
compensated. While data recovery would be the presumed course of action when a project area would be
flooded, recent guidance from ACHP indicates that data recovery may not be appropriate when: (1) the
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site is likely to contain human remains, funerary remains, sacred objects or items of cultural patrimony,
(2) the site has long-term preservation value, such as traditional cultural and religious importance, and (3)
there are unresolved issues with any Indian tribe concerning the recovery of significant religious and
cultural properties.
(b) Loss of Archaeology: The Tribes are concerned that any excavation of archaeological sites
has the potential for loss and/or mishandling of the resources they contain. The loss or mishandling of
artifacts that could help demonstrate that the tribes are culturally identifiable entities with continued
occupation of the area could adversely affect the Tribes' ability to successfully achieve federal
recognition. Additionally, non-Indians would most likely be given the responsibility for interpreting any
archaeological resource. The Tribes feel that they would suffer a loss if their own people are not
primarily involved in this interpretation. The City of Newport News has offered to have a tribal member
present during excavation; however, the tribes remained concerned about possible misinterpretation of
their culture and heritage. Only the 72 to 79 sites considered to be "potentially eligible" are included in
treatment plans in the MOA; therefore, treatment of the remaining identified sites would be outside of the
Section 106 review process. Although the Mayor of the City of Newport News made a commitment to
the tribes to investigate the remaining sites within the reservoir footprint, the level of review that these
sites would receive is unknown and would not be binding under the proposed MOA.
(c) Effects of Water Withdrawal from the Mattaponi River: The Tribes believe that there
would be adverse impacts from the reservoir intake on shad eggs and shad juveniles from entrainment and
impingement. Any eggs, juveniles, and fish food sources smaller than one millimeter could be pulled into
the intake and lost. The Tribes are also concerned about the potential effects of increased salinity of the
Mattaponi River on the spawning behavior of adult shad and other anadromous and non-anadromous fish
and on the growth and mortality of shad eggs and juveniles. The Tribes believe that the withdrawal of
water and its associated salinity changes could affect when and where fish spawn and affect the
availability of food sources. There may also be adverse effects on the Mattaponi's subsistence shad
hatchery (and possibly the Pamunkey shad hatchery as well). The Tribes believe that higher salinity
levels and other physical and chemical changes associated with the water withdrawal could affect the
survival and development of shad fry released into the river by the Tribes at their hatcheries. The
released fry would also be subject to entrainment and impingement at the intake.
Despite the limited biological and ecological information available, the City of Newport News has
concluded that there would be no adverse impact to any life stages of shad in the York River basin. This
conclusion has not been substantiated. Dr. Garman did not concur with the Tribe's claim of significant
and detrimental impacts as a direct result of the King William Reservoir project; however, he noted that
his review did not consider the potential for indirect ecological effects as a result of physiochemical
changes on fish assemblages. He stated that without information on temporal and spatial distribution,
spawning and early life history stages, it is very difficult to assess the ecological impact on anadromous
fish populations in the Mattaponi River from the proposed project. While the intake design should reduce
impacts to anadromous fish eggs and larvae, it would not eliminate them altogether. It is true that despite
the best efforts of the state and the Tribes, the shad population may continue to decrease even without the
water withdrawal for the reservoir. However, the interaction of numerous chemical and physical effects
including the small but sustained increase in salinity that would result from the removal of up to 75 mgd
of freshwater from the Mattaponi River has the potential to further degrade the already depleted shad
population. The Mattaponi and Pamunkey Tribes have made a considerable commitment to their shad
hatcheries, and shad fishing is an integral part of their lives and their culture. As members of the
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Mattaponi Tribe depend on these fish for their livelihood, the further degradation or potential loss of this
resource would significantly and adversely affect the culture and economy of these people.
(d) Mattaponi River Cultural Factors: The Mattaponi Tribe considers the Mattaponi River the
lifeblood of the Tribe and a gift of life from the Great Spirit. To them it is a very spiritual place and much
more than simply a body of water. The Tribe has many religious and spiritual ceremonies closely
associated with the river, which they consider "sacred waters." The Tribe believes that disruption or
"defiling" of the river and its flow would create an imbalance in the circle of life and dishonor the Tribe's
ancestors and Mother Earth. The spiritual importance of the Mattaponi River to the Tribe was recognized
in its identification as a Traditional Cultural Property. This spiritual and religious importance is a vital
cultural value which may be difficult for non-native people to understand. Because this cultural value is
unique to the Native Americans in the project area, impacts to it would appreciably exceed those to the
general population.
(e) Impacts of Increased Recreational Boating on the River: Boating activity disrupts the
Tribes' ability to successfully fish both on a daily basis and during the shad runs in the spring. Fishing
nets are also damaged by boat propellers. These effects already occur to some extent, but the Tribes fear
a substantial increase if the King William Reservoir is built because of the increased residential
development that is likely to follow. Recreational boating may also disrupt tribal spiritual and religious
ceremonies performed on the river, including baptisms. Increased boating activity is likely to occur with
or without the proposed reservoir; however, the planned residential development in the area will most
likely lead to an increase in recreational uses of the River. Because fishing for subsistence is vital to the
Tribes (and possibly to other low-income populations in the area), further disruption of their ability to
obtain fish would appreciably exceed such impacts to the general population.
(f) Socioeconomic Effect on Hunting, Trapping and Gathering: Many members of the
Mattaponi Tribe do not have outside jobs, and they depend upon the natural resources in the Pamunkey
Neck for subsistence hunting, fishing, trapping and gathering. The Mattaponi Tribe would lose a portion
of their subsistence hunting and trapping area if the 1,526 acres of wetlands and uplands in the Cohoke
Valley are filled, flooded or otherwise modified by the construction of the proposed reservoir. The
County's planned residential and light commercial development around the reservoir would further
decrease the land available for hunting, trapping and gathering. While not a part of the current
application, the City of Newport News has made plans for a future expansion of the reservoir to the
originally proposed dam location, thereby removing additional lands used by the Tribes for obtaining
food and materials. The Pamunkey Neck is the primary hunting ground for all three tribes. This area is
also used by the Mattaponi Tribe to gather native wild plants for food, medicinal and ceremonial uses.
Animals displaced by the reservoir and subsequent development would be forced to relocate to other
habitats and would overcrowd those areas, forcing additional competition for food sources which would
result in an overall negative impact on the Tribes' source of game. Similar impacts to trapping and
gathering habitats both within the Cohoke Valley and along the Mattaponi River would also be expected.
The Mattaponi tribe is concerned that chemical changes in the Mattaponi River could adversely affect
native plants growing along the river that are important to the Tribes as food and for medicinal and
ceremonial uses. Because hunting, trapping and gathering for subsistence is vital to the Tribes (and
possibly to other low-income populations in the area), further disruption of their ability to obtain food
from these sources would appreciably exceed such impacts to the general population.
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(g) Physical Barrier Between Reservations: The reservoir is proposed to be constructed
directly between the Pamunkey and Mattaponi reservations. As County Route 626 would be
reconstructed on top of the dam, access between the reservations by road would not be disrupted.
However, the Tribes believe they would be further isolated socially and culturally from one another by
the physical barrier of a reservoir in this location. Only the Mattaponi and Pamunkey Tribes would be
affected by cultural isolation of their reservations from one another; therefore this effect would
appreciably exceed such impacts to the general population.
(h) Reservation Expansion/Tribal Land Reclamation Efforts: The Mattaponi and Pamunkey
Tribes fear that construction of a reservoir at this location would preclude their ability to expand their
reservations. These Tribes have indicated a desire to obtain additional land in order to enlarge their
current reservations. The Mattaponi and the Pamunkey Tribes have been attempting to reclaim areas they
view as their historic tribal lands and that have special cultural and religious significance to them.
Property values may or may not increase without the presence of the reservoir; however, the County's
planned residential and light commercial development around the reservoir will likely increase the
developmental potential and property value of other lands. Therefore, the cost of additional land
purchases is likely to become prohibitive for the Tribes. Only the Mattaponi and Pamunkey Tribes would
be affected by the lack of ability to expand their reservations; therefore, this effect would appreciably
exceed such impacts to the general population.
(i) Loss of Rural Character of the Local Area: The Tribes fear a loss of privacy will
accompany the loss of the rural character of the area. The County has plans for residential and light
commercial development around the reservoir, and the recreational potential of the reservoir is likely to
further increase development of summer and weekend homes. Such development would change the rural
and agricultural setting of the area and further reduce the habitat available for game animals on which the
Tribes depend for a source of food. The loss of rural character would impact practices which are
important to the subsistence and culture of the Tribes.
(6) Mitigation Measures Available: When environmental justice impacts could occur, the
President's Memorandum accompanying E.O. 12898 directs that mitigation measures be identified. All of
the Tribes have indicated that, in their opinion, there are no measures that would adequately mitigate for
the losses identified in this analysis. Despite this belief, they agreed to discuss possible mitigation
measures with the District and the permit applicant during the NHPA Section 106 Memorandum of
Agreement discussions. The Mattaponi and Pamunkey Tribes were careful to remind all parties during
these discussions that they were participating in this process not because they believed the loss of
Traditional Cultural Properties and other adverse environmental effects could be mitigated for, but
because they did not want to be left with no mitigation at all if the permit were granted.
Each of the three Tribes and the applicant proposed a number of specific suggestions for appropriate
mitigation measures. Types of mitigation discussed during these discussions included cash payments,
creation of one or more museums to house and showcase tribal artifacts, and purchase of additional land
to expand the size of the two reservations. Dollar amounts and types of proposed mitigation varied
widely between the permit applicant and the Tribes. Each Tribe chose to discuss potential mitigation
measures separately from the other Tribes and the other consulting parties; therefore, the District, ACHP
and VDHR met with each tribe and the applicant in separate meetings. The Tribes also asked that their
specific proposals be kept confidential to the maximum extent possible.
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Initially, the District worked with the City of Newport News and the Tribes in an attempt to come to a
mutually agreeable resolution of the mitigation issue, or at least identify an acceptable range of mitigation
alternatives. Such agreement would have been helpful to me in judging what would be appropriate
mitigation for the impacts of the project to environmental justice. Ultimately, however, no agreement was
reached between the City and the Tribes as to what measures might be acceptable to both sides.
Discussions were discontinued shortly after I announced my preliminary intention to deny the permit in
June 1999. The City of Newport News asserted that the District's handling of the matter was both
"inconsistent" and "questionable"; and strongly urged me to continue holding meetings in order to come
to a conclusion on what would constitute appropriate mitigation. The District discontinued discussions at
that time because there was no longer a federal undertaking in the offing. Both the Virginia Department
of Historic Resources and the Advisory Council on Historic Preservation agreed that this was the proper
course of action. Furthermore, the Tribes indicated they did not intend to return to these mitigation
discussions unless it became clear that the permit for the reservoir would be granted. Without the active
participation of the Tribes. I believed that such meetings would not be helpful to the District's decision-
making process on the question of environmental justice-related mitigation measures. Furthermore, at the
last meeting held with each tribe as well as in subsequent letters, the City of Newport News had indicated
that they had made their "....best and final financial proposal."
(7) Summary of Findings on Environmental Justice: The Norfolk District, has determined
that the Mattaponi, Upper Mattaponi, and Pamunkey Tribes would suffer the following disproportionately
high and adverse environmental effects as described by Executive Order 12898 if the permit for the King
William Reservoir were granted:
• Construction of the proposed King William Reservoir project would have a combined impact on
the natural and physical environment that has the potential to significantly and adversely affect
the Mattaponi, the Upper Mattaponi and the Pamunkey Tribes;
• The adverse cultural, social, economic and ecological impacts to the Tribes are interrelated to the
adverse impacts to the natural and physical environment that would result from the proposed
King William Reservoir project; and
• The additive environmental effects of the project would be significant and would or may have an
adverse impact on the Tribes that appreciably exceeds or would likely appreciably exceed the
effects on the general population.
The City of Newport News claims that these effects are only perceived by the Tribes rather than being
real and that the scientific reports they have compiled do not agree that such effects would actually result.
Many of these effects might not be perceptible to non-Native Americans living in the same general area
as the Tribes, but this does not lessen the impact felt by the Tribes. Rather, it highlights the
disproportionate nature of such impacts. While the applicant's individual studies did not predict
substantial direct impacts to the Mattaponi River and its resources from the single effects they evaluated,
these studies revealed the lack of information concerning cumulative and indirect adverse impacts that
would occur from the additive effects of these changes. The magnitude of these effects are unknown, and
cannot be accurately predicted, especially in conjunction with other projects that may follow. Based on
the discussions between the Tribes and the. City to date, I have determined that the potential
socioeconomic, cultural, and spiritual losses that the Tribes would suffer as a result of the construction of
the reservoir and the withdrawal of water from the Mattaponi River could not be adequately compensated.
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(For a detailed discussion of the District's Environmental Justice analysis, see the District's report entitled
"King William Reservoir Environmental Justice Analysis.")
9. Alternatives Considered in EIS: A total of 35 alternative components were identified and reviewed in
the FEIS for their availability, cost, technological reliability, and environmental impacts. The RRWSG
used a fatal flaw analysis, then applied a methodology based on the 404 (b) (1) Guidelines to screen the
alternatives for "practicability." District staff had informed the RRWSG that this approach would not
take the place of the Corps' 404 (b) (1) practicability analysis and public interest review which would be
conducted after the close of the EIS comment period. The following is the list of alternative components
as they appeared in the FEIS (Table 3-4). Alternative components 32 through 35 were added at the
request of the District and the federal advisory agencies.
1. Lake Genito
2. Lake Chesdin
3. Lake Anna
4. Lake Gaston
5. Rappahannock River (above Fredericksburg)
6. James River (above Richmond)
7. City of Richmond Surplus Raw Water
8. City of Richmond Surplus Treated Water
9. James River (between Richmond and Hopewell)
10. Ware Creek Reservoir
11. Ware Creek Reservoir and Pamunkey, Mattaponi and/or Chickahominy River Pumpovers
12. Ware Creek Reservoir and James River Pumpover (above Richmond)
13. Black Creek Reservoir and Pamunkey River Pumpover
14. Black Creek Reservoir and James River Pumpover (above Richmond)
15. King William Reservoir and Mattaponi River Pumpover (KWR-I, KWR-II and KWR-IV)
16. King William Reservoir and Pamunkey River Pumpover
17. Chickahominy River Pumping Capacity Increase
18. Chickahominy River Pumping Capacity Increase and Raise Diascund and Little Creek Dams
19. Aquifer Storage and Recovery, Constrained by Number of Wells
20. Aquifer Storage and Recovery, Unconstrained by Number of Wells
21. Fresh Groundwater Development
22. Groundwater Desalination as the Single Long Term Alternative
23. Groundwater Desalination in Newport News Waterworks Distribution Area
24. James River Desalination
25. Pamunkey River Desalination
26. York River Desalination
27. Cogeneration
28. Wastewater Reuse as a Source of Potable Water
29. Wastewater Reuse for Non-Potable Uses
30. Additional Conservation Measures and Use Restrictions
31. No Action
32. Black Creek Reservoir and Mattaponi River Pumpover
33. Ware Creek Reservoir (Three Dam Alternative) and Pamunkey River Pumpover
34. Side-Hill Reservoir
35. Smaller King William Reservoir with Two River Pumpovers
"
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The City of Newport News executed a specific and detailed agreement with the King William County
Board of Supervisors in November of 1990 for the King William Reservoir. The District staff learned of
the existence of this host agreement in late 1993 or early 1994, but was unaware that it had actually been
executed before the EIS process began. The District staff only learned of the date of the agreement in
January 1998, when a copy was provided by an opponent of the proposal who had obtained it from
Newport News through the Freedom of Information Act. Although the City of Newport News informed
the District and the federal agencies that they were seeking the least environmentally damaging
alternative through the EIS process, no matter what it might turn out to be, it appears that the King
William Reservoir had already been chosen as their preferred alternative before the alternatives analysis
was performed for the Draft EIS.
The RRWSG's screening resulted in the elimination from further consideration of all but six of the
original 31 alternative components because they would either fail to meet the RRWSG projected needs,
were too costly, the technology was considered experimental or there might be political problems in
obtaining local approval. These six alternative components were combined to create three reservoir
alternatives that would meet the RRWSG's projected 39.8 mgd deficit. The EIS carried forward for
detailed review the following alternatives: a reservoir on Ware Creek between James City and New Kent
Counties with pump-over from the Pamunkey River (alternatives 11,21,23,30), a reservoir on Black
Creek in New Kent County with pump-over from the Pamunkey River (alternatives 13, 21, 23, 30) and a
reservoir on Cohoke Creek in King William County with pump-over from the Mattaponi River
(alternatives 15, 21, 23, 30) which is the applicant's preferred alternative, and the No Action alternative
(alternative 30).
The results of the applicant's screening analysis is presented on Table 3-4 of the FEIS. Based on the
information provided by the applicant, the District and the federal advisory agencies generally did not
disagree with the RRWSG's conclusions, but identified four more alternative components that should be
reviewed in the FEIS (alternatives 32, 33, 34 and 35). The RRWSG's analysis also eliminated these
alternatives from further consideration because they would either fail to meet the RRWSG's projected
needs, were too costly or might not be acceptable to the host localities. In their 11 April 1996 letter
commenting on the Draft EIS and Supplement to the Draft EIS, EPA stated their belief that several
alternatives were eliminated from consideration without substantial justification including the Black
Creek Reservoir with pumpover from the Mattaponi River and the King William Reservoir with
pumpover from Pamunkey River alone. The federal advisory agencies questioned why it would be
feasible to use a Pamunkey River pumpover for an expanded King William Reservoir, but not as the
single pumpover option for the proposed King William Reservoir (alternative 16).
10. Alternatives Available to the Applicant:
a. Non-Reservoir Components of the RRWSG's Plan (alternatives 21, 23 and 30): The
RRWSG's 2040 plan outlined in the FEIS provides for 23.2 mgd of safe yield from the King William
Reservoir, 4.4 mgd from fresh groundwater and 5.7 mgd from brackish groundwater and 7.1 to 11.1 mgd
from conservation and use restrictions. These alternatives were all reported by the RRWSG to be
feasible. The combined safe yield of the non-reservoir components of this plan is 17.2 to 21.2 mgd. The
City now claims that they would not be able to obtain permits for the 4.4 mgd fresh groundwater
component of their plan and that without the reservoir, conservation measures and use restrictions would
provide only 4.8 mgd of safe yield instead of the 7.1 to 11.1 mgd stated in the FEIS. Combined with the
5.7 mgd from their new groundwater desalination plant, the City reports that the non-reservoir
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components of their plan would only provide 10.5 mgd of safe yield benefit rather than the 17.2 to 21.2
mgd reported in the FEIS.
It should be noted that these groundwater and conservation alternative components were only considered
in conjunction with the three reservoir alternatives and were not considered as components of any of the
non-reservoir alternatives in the FEIS. The ability to conserve water should produce the same benefit no
matter what other sources are considered to meet the need. In 1998, Newport News Waterworks brought
on line their new $17 million brackish groundwater desalination plant that will produce 5.7 mgd of their
predicted 2040 deficit for $1.20 for 1,000 gallons of water and is expected to cover their demand for
about 10 years. Even if the City would not be able to obtain permits for the 4.4 mgd of fresh
groundwater, they may be able to obtain permits for more brackish groundwater wells. According to the
minutes from a Newport News City Council Work Session held on 8 February 2000, if the Corps permit
is denied, the City might request that the State Water Control Commission allow them access to more
groundwater for further desalination efforts.
(1) Groundwater (alternatives 21 and 23): It should be emphasized that the District is not
advocating the additional use of groundwater to supply the region's need unless it is determined by the
state to be appropriate. The District recognizes that over-reliance on groundwater resources can result in
depletion of aquifers, land subsidence and the disappearance of wetlands that are supported by those
aquifers. Decisions on the availability, quality, quantity and acceptability of groundwater sources rests
with the state. However, the IWR panel believes that the RRWSG's estimated groundwater yields may be
low compared to actual aquifer capacity.
James City County has been able to avoid their anticipated water supply crisis by implementing long-term
solutions that do not require dependence on reservoirs. They have accomplished this by requiring more
intense water conservation efforts (i.e., voluntary water conservation) and by planning for the
construction of a 6 mgd groundwater desalination plant. In February 1998, James City County completed
a feasibility study of a desalination facility which indicated that reverse osmosis treatment of groundwater
from the Potomac Aquifer was feasible to supply their needs. James City County has indicated that if the
King William Reservoir were permitted, they would contract with Newport News for at least 2 mgd and
possibly another 2 mgd of water if it is available. However, the James City County Board of Directors
approved a water supply plan to pursue the desalination facility if the Corps permit for the King William
Reservoir was not issued by July 2000. James City County currently has block water rates of $2.50 per
1,000 gallons for use of less than 15,000 gallons and $2.60 per 3,000 gallons for use of more than 15,000
gallons but less than 25,000 gallons per quarter. These rates are less expensive than Newport News
Waterworks' current rate of $2.73 per 1,000 gallons and proposed rate of $3.59 per 1,000 gallons by the
year 2006. James City County has reported that the desalination plant would cost less to build than its
portion of the cost of the reservoir would be ($9 million per 1 million gallons), although the cost of the
water itself would be more expensive. The City of Newport News has indicated that James City County's
withdrawal from the project would not stop the project from going forward. However, it may be assumed
that some, if not all of James City County's 4.4 mgd need would be met by their new groundwater
desalination plant.
(2) Conservation (alternative 30): The Norfolk District and the federal agencies believe that the
City of Newport News has underestimated their potential water savings from conservation. In their
February 2001 report, the IWR panel also stated that the City of Newport News has underestimated the
beneficial effects of conservation. The RRWSG's November 2000 water conservation analysis concluded
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that water conservation efforts above the regulatory driven new plumbing codes were not cost effective.
They further claim that additional conservation efforts would not significantly reduce usage. According
to the IWR panel, additional conservation through the retrofitting of older fixtures could reflect
substantial savings. The new 1.6 gallon toilets represent a significant water savings over old fixtures
using 5 to 7 gallons and even the now outdated 3.5 gallon low-flow fixtures. Rate restructuring and a
rebate program for low flush toilets and plumbing retrofit could be considered as an incentive to reward
conservative users. Furthermore, the effects of increased conservation as population increases should also
be considered in the RRWSG's calculation of the long-term benefit of conservation as well as the
potential for conservation at military and federal installations.
b. Other Non-Reservoir Alternatives: Certain non-reservoir alternatives identified in the FEIS to
supply the RRWSG's stated 39.8 mgd need were not investigated in detail because they were eliminated
early in the alternatives analysis for various reasons. If these alternatives are still available, they might
provide additional incremental supplies as indicated by IWR or the entire RRWSG projected deficit as a
one time project. With the limited information that is available at this time, there currently appear to be
no significant or unacceptable adverse environmental impacts related to the following alternatives. When
there is a need in the future or in the event that the RRWSG's risk of shortage is actually greater than
IWR predicts, these sources, either separately or in combination, could potentially meet some or all of the
shortage.
(1) Purchase of Surplus Treated or Raw Water from the City of Richmond (alternatives 7 and 8):
The FEIS indicated that the City of Richmond surplus raw water would provide a safe yield benefit on the
order of the Peninsula's stated deficit of 39.8 mgd, however a treated water safe yield benefit of 7.1 mgd
instead was assumed. The RRWSG reported that the alternative was not feasible because the Richmond
Regional Planning District Commission had taken a strong position against lower Peninsula withdrawals
from the James River at Richmond. The FEIS indicated that the safe yield benefit of the City of
Richmond surplus treated water would be 23.9 mgd. The RRWSG estimated that the cost of this
alternative per mgd of treated water would exceed the RRWSG's adopted affordability criterion and the
availability of this water was uncertain.
A study of the Richmond regional water demand was undertaken as part of the review of the proposed
Henrico County Water Supply Intake. The City of Richmond and Henrico County developed a Regional
Flow Management Plan (RMP) for the James River in the Falls of the James to protect instream resources
in the region. As part of the plan, Richmond water treatment plant withdrawals would not exceed 150
mgd. The Henrico County water treatment plant was permitted to withdraw a maximum of 55 mgd.
Henrico County currently purchases approximately 32 mgd from the City of Richmond. When the
Henrico County Treatment Plant goes oa line in 2002, Richmond would have this amount of water
available for other users. The City of Richmond has indicated in the past that they intend to market this
additional water to other users. Utilizing information collected for the Henrico County FEIS (July 1995),
the Richmond regional demand projections would be 153 to 156 mgd in 2010. The combination of the
Henrico County and City of Richmond water treatment plants could supply up to 205 mgd (150 mgd-
Richmond and 55 mgd-Henrico) which leaves a surplus of 49 to 52 mgd which could be marketed to
other users, including the RRWSG.
(2) Withdrawal of Freshwater from the James River Above Richmond (alternative 6):
In the FEIS, the safe yield benefit of this alternative was estimated to be between 7.1 and 7.9 mgd. The
RRWSG reported that this alternative was not feasible because of the Richmond Regional Planning
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District Commission's position against lower Peninsula withdrawals from the James River at Richmond.
The RRWSG's estimated cost of this alternative per mgd of treated water would exceed their adopted
affordability criterion. Also, the RRWSG determined that the intense competition between Richmond and
Henrico County for James River water would severely delay their efforts to pursue this alternative.
The Regional Water Resources Plan for Planning District 15, dated December 1992, proposes to limit the
major exportation of surface water to users outside the region, but does not preclude any of the water
suppliers from marketing their excess water outside of the region. This plan specifically acknowledges
the possibility that the RRWSG could obtain water from the James River:
"Regional Raw Water Study Group. To meet its projected water deficits of over 30 mgd by the
year 2040, the RRWSG has identified numerous sources of water supply for possible use through
the construction of new or expanded water intakes and pumping facilities. Some of the more
significant of these proposals include: Lake Chesdin - 40 mgd intake; James River - 40 mgd
intake in Chesterfield County above Bosher Dam; James River - new 40 mgd intake at the
Richmond WTP to take surplus water; James River - purchase 20 mgd ( 30 mgd maximum) of
treated water from the Richmond WTP "
Since the Richmond Regional Planning District recognizes the possibility of the RRWSG obtaining
additional water from this region, it would not be prudent to eliminate this alternative for a smaller
volume of water.
(3) Desalination of Brackish Water from the James River, the Pamunkey River or the York
River (alternatives 24, 25, and 26: The FEIS reported that these alternatives would each provide a safe
yield benefit of approximately 30 mgd.
(a) James River Desalination: The RRWSG considered treatment of the brackish James River
water as experimental and technologically unreliable because of widely fluctuating salinity levels. They
estimated that the cost per mgd of treated water would be higher than their adopted affordability criterion.
Because the pesticide Kepone is known to be present in sediments in the James River below Hopewell,
and could become re-suspended, the Virginia Department of Health considers this to be one of the least
desirable of the RRWSG's proposed alternatives. The Department's position is that the best available
source of water supply should be used. However, they informed the RRWSG, "We are, however,
receptive to the use of raw water such as the James River below Hopewell in a situation where
appropriate treatment is provided and it is well documented that no other source of potable water is
available." Therefore, the RRWSG concluded that this alternative would not be practical. There clearly
appear to be other raw water sources available to the RRWSG; however, it should be noted that the
Health Department has not rejected the use of this water as indicated by the RRWSG.
(b) Pamunkey River Desalination.: The RRWSG claimed that since this alternative did not
include new raw water storage, and a likely river MIF would severely limit or preclude Pamunkey River
withdrawals for extended periods, they concluded that the safe yield benefit would be negated and the
alternative would not be feasible.
(c) York River Desalination: Due to raw water quality variability and treatment control
concerns, and the lack of experience in treating water from a source of this type, the RRWSG considered
the York River desalination alternative as experimental and not technologically reliable. Also, the
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
RRWSG estimated that the cost per mgd of treated water benefit would exceed their adopted affordability
criteria. The RRWSG claims that the use of desalination to produce potable water from brackish surface
water remains experimental, and actual construction and operating cost data is lacking. Therefore, the cost
analysis of these alternatives in the EIS was conducted using ocean based sources.
Desalination has been traditionally more expensive than the operation of a reservoir; however, as
technology improves, the feasibility and cost effectiveness of the various desalination methods continue
to increase. According to IWR, some methods, such as multi-stage flash distillation, are apparently both
efficient and less expensive. Desalination is generally energy intensive and disposal of the brine from the
desalination process also poses a potential environmental problem for fish and wildlife in the receiving
waterway. However, brine discharged from the treatment of brackish water would not be as highly saline
as from the treatment of seawater and could be diluted, possibly by mixing with wastewater, before being
discharged. In the FEIS, the RRWSG reported 1994 costs between $5.37 and $6.14 per 1,000 gallons to
desalt ocean water and predicted that desalting the brackish waters of the York River would cost as much
as $8.00 per 1,000 gallons. However, in a report dated 15 November 2000, the City of Newport News
estimated that it would cost $340.2 million to treat brackish water from the York River and $382.0
million to treat salt water from the Atlantic Ocean. Therefore, it appears that brackish water desalination
has now become less expensive than ocean water desalination.
According to the Corps's Institute for Water Resources, desalination by reverse osmosis became more
economical in the early 1990's when computer management of the process allowed much greater
efficiency. In fact, a desalination plant under construction by the Tampa Bay Water Authority in Florida
for the year 2002 will reportedly produce 25 mgd for $2.08 per 1,000 gallons of water over the next 30
years. Although Newport News Waterworks reported that the reservoir would produce water for $1.23
per 1,000 gallons, they recently informed their customers that water rates would increase from the current
rate of $2.04 per hundred cubic feet of water to $2.68 per hundred cubic feet of water by the year 2006 to
pay for the King William Reservoir and other improvements. This converts to a current rate of $2.73 per
1,000 gallons that will increase to $3.59 per 1,000 gallons. Seawater desalination is generally more
energy intensive and, therefore, more expensive than the desalination of the brackish surface water
sources available to the City of Newport News. However, at the Tampa Bay plant, heated water from an
adjacent power plant would require less energy to move through the desalination membranes and would
reduce the operation cost. Without the power plant, the cost is estimated to be close to $3.00 per 1,000
gallons, which remains less expensive than the cost to Newport News customers from the implementation
of the King William Reservoir. More information on how treatment, delivery, management, overhead
and construction costs are figured into these two cases would be necessary in order to draw a direct
comparison between Tampa Bay and Newport News. However, these numbers clearly demonstrate that
desalination is not the extravagant option it once was and may actually compare much more favorably to
the cost of the King William Reservoir than previously estimated. Furthermore, the cost associated with
additional water treatment facilities are included in the applicant's desalination analysis, but not in the
other alternatives. The Sierra Club commented that the Lower Peninsula might be able to qualify for a
50% matching grant under the Water Desalination Act of 1996. Therefore, the rapidly improving
technology of recent years has made desalination more cost effective and reliable than it has been in the
past and it may be more attractive to the RRWSG by the time their need arises.
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c. Other Alternatives Considered:
(1) Wastewater Reuse for Non-Potable Uses (alternative 29): The Virginia Department of
Health is opposed to any consideration of direct recycling of reclaimed wastewater as a source of drinking
water and would approve indirect recycling only after all other alternatives have been examined and when
it is determined to be the highest and best source available. The Department of Health could not support
the RRWSG's proposed indirect recycle alternative 28 since the amount of dilution and detention that
could be provided in the Harwoods Mill and Lee Hall Reservoirs would not be sufficient. However, the
Department of Health has indicated their full support for the concept of non-potable reuse of reclaimed
wastewater. Therefore, as other alternatives were undoubtedly available, the District did not require the
RRWSG to further investigate potable uses of wastewater for the FEIS, but did encourage further analysis
of non-potable reuse as an additional conservation measure.
The Hampton Roads Sanitation District (HRSD) has nine treatment plants that handle a total of
approximately 150 million gallons of wastewater per day, which is cleaned and returned to the local
waterways. As an alternative to disposing of this water, HRSD actively supports and encourages using
this highly treated wastewater for non-potable purposes. According to HRSD, wastewater reuse is a
relatively common practice throughout the country, but Virginia has been slow to adopt the concept.
Furthermore, the cooperation of the localities is required for such a program to be implemented. The
RRWSG's projected need could be reduced by as much as 1 mgd if two recent requests for non-potable
reuse of reclaimed wastewater by large use customers were implemented.
HRSD recently initiated a pilot program at its James River and York River Treatment Plants to explore
the industrial uses of filtered, chlorinated effluent. Both projects have received preliminary approval.
HRSD would like to supply an estimated 0.48 mgd of effluent from the James River Treatment Plant for
irrigation at Riverview Farm Park, a new recreational facility in Newport News. However the City of
Newport News would not commit to the project because the City has its own well which would provide
less expensive water for irrigation. Also, HRSD would like to supply 0.6 mgd of effluent from the York
River Treatment Plant to the Virginia Power Plant and the Amoco Oil Refinery in York County for
cooling generators, feeding boilers, washing down and for fire and dust suppression. HRSD offered to
sell reclaimed water to Newport News Waterworks for resale; however, Newport News declined this
offer. As a result, HRSD and Amoco may work directly to pipe the water the one mile distance from the
treatment plant to the refinery. If these two projects had been considered, they would have reduced the
RRWSG's projected need by almost 1 mgd.
The use of reclaimed wastewater to irrigate the athletic fields at Menchville School and at a proposed
park on a closed landfill site has also been discussed. HRSD can apparently produce this water for $1.50
per 1,000 gallons, which is very economical when compared to an average cost of $2.50 per 1,000 gallons
of drinking water. The greatest cost involved in implementing wastewater reuse is the required
infrastructure because a separate system of pipelines and pumps is required. In a report dated 15
November 2000 the City of Newport News estimated that it would cost $241.9 million to produce and
transport wastewater as compared to $167.9 million to build the King William Reservoir.
I acknowledge that Newport News and the other RRWSG member jurisdictions cannot require their users
to incorporate wastewater reuse. However, such opportunities to reduce the demand for potable water for
industrial processing and irrigation should be investigated and encouraged as an additional conservation
measure. I recognize that opportunities for wastewater reuse will initially be limited; however, it could
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
eventually represent a considerable reduction in the need for increased potable water supplies.
Furthermore, the more users there are, the less expensive the reclaimed water will be and the more
attractive the process will become to others. Preliminary projections indicate that wastewater reuse could
be economically beneficial to the power plant and refinery. HRSD estimates that the savings to local
industries could far outweigh the initial costs for the new process and infrastructure. HRSD has
apparently received inquiries regarding wastewater reuse from industries that are considering locating in
the area. Also, Virginia's commitment to the Chesapeake Bay Initiative for restoring water quality in the
Bay will likely encourage non-potable wastewater reuse within the RRWSG's 50-year planning period.
Therefore, the high probability that non-potable uses of wastewater could significantly decrease the future
need for new potable water supplies should have been taken into account when calculating projected need
for the area.
(2) Black Creek Reservoir and Pamunkey River Pumpover (alternative 13): The Black Creek
Reservoir alternative would provide 18.1 mgd safe yield benefit. Like the King William Reservoir
alternative, this alternative was considered in combination with 4.4 mgd from fresh groundwater and 5.7
mgd from brackish groundwater and 7.1 to 11.1 mgd from conservation and use restrictions for a total
safe yield benefit of 35.3 to 39.3 mgd.
After the detailed delineation of the King William Reservoir site revealed a 653-acre wetland impact, the
District and the federal advisory agencies announced to the RRWSG that the Black Creek Reservoir
appeared to be the least environmentally damaging of the reservoir alternatives since it would impact the
least wetlands (285 acres), involved no endangered or threatened species and few cultural resources.
Shortly after the RRWSG was informed of this finding, New Kent County withdrew their cooperation and
the RRWSG was unable to perform further environmental analysis of the Black Creek Reservoir
alternative. The applicant suggested in the Draft EIS that the impacts of the Black Creek Reservoir would
be greater than for the King William Reservoir, however this has not been substantiated since no further
analysis of the Black Creek alternative was performed. The Black Creek Reservoir alternative was
carried forward as a "No Action" alternative in the Supplement to the Draft EIS and the District
proceeded with the best available information for the NEPA review.
As long as there are non-wetland alternatives that would meet the project purpose when the need arises,
any alternatives involving wetland impacts would be presumed to be more environmentally damaging and
unacceptable under the Corps regulations. Therefore, other reservoir alternatives such as Black Creek and
Ware Creek that involve large wetland impacts could not be considered as the environmentally preferred
alternative when non-wetland alternatives are available to meet the RRWSG's need. However, if non-
wetland alternatives are not available and a reservoir is determined to be necessary in order to. meet the
RRWSG's future needs, a reservoir on Black Creek appears to be a practicable and feasible alternative
(cost, technological reliability, etc.) As it was apparently eliminated for other than technical reasons that
may not be insurmountable, it is possible that the Black Creek Reservoir alternative could once again
become available to the RRWSG.
(3) Surplus Water from the City of Norfolk: In March 1999, the City of Norfolk reported to the
District that it currently has between 32 to 45 mgd of surplus water, since the City of Virginia Beach
started using water from Lake Gaston exclusively in 1997 and no longer buys water from the City of
Norfolk. This alternative was not evaluated in the FEIS, and the exact amount of surplus and the length
of time the water will not be needed by users in the southside of Tidewater has not been established. In
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the FEIS, the RRWSG evaluated the alternative of obtaining water from the City of Richmond, which is
much farther distant than the City of Norfolk.
Therefore, the District wrote to the City of Norfolk on 22 March 1999 asking (1) Has Virginia Beach or
any other users on the southside of Hampton Roads indicated a need for this surplus and a desire to obtain
it from the City of Norfolk? (2) Would the City of Norfolk be able to supply treated or raw water to
Newport News Waterworks to provide a treated safe yield of 23.2 mgd through the year 2040 and still
meet its other expected obligations for that same period? and (3) Are there any restrictions on the sale of
the City of Norfolk's water supply outside of South Hampton Roads? In a letter dated 5 April 1999, the
Director of the City of Norfolk Department of Utilities, reported "In the past six years, Norfolk has
discussed the possibility of using some of Norfolk's surplus water with several communities in Southside
Hampton Roads. These discussions are ongoing." and "Our ability to supply all of the 23.2 mgd treated
safe yield required by Newport News could depend on new commitments that might be negotiated with
southside Hampton Roads communities to satisfy their future water needs. For Norfolk to supply either
treated or raw water to Newport News will require, at the very least, new treatment and/or transmission
facilities and the possibility of this has not been discussed with Newport News." He indicated that there
are no restrictions on the sale of Norfolk's water supply outside of South Hampton Roads.
The City of Newport News wrote to the District on 24 March 1999 that the City of Norfolk surplus water
should not be considered an alternative to satisfy the RRWSG's long-term needs because it will be
required to meet the long-term needs of South Hampton Roads and because it was not considered as an
alternative in the EIS scoping process. During scoping, the District and the federal agencies agreed not to
require the RRWSG to consider as an alternative obtaining water from Lake Gaston, because at that time
the outcome of the City of Virginia Beach's Lake Gaston pipeline permit was still in the courts and there
was substantial doubt that the RRWSG would legally be able to obtain water from that source. A Lake
Gaston alternative should not be confused with the surplus water that the City of Norfolk reported that
they now have available from their other sources.
In a letter dated 2 April 1999, the City of Virginia Beach responded that they did not agree with the City
of Norfolk's reported ability to provide a total of 95 mgd of safe yield from their system and calculated
the figure to more likely be 81 mgd. The City of Virginia Beach projected a need for an additional 12
mgd of treated water supply at some point between 2010 and 2020 and believe that they would be a
leading candidate for any additional surplus from the City of Norfolk.
The City of Chesapeake responded that they project a deficit of 10.4 mgd by the year 2040 based on
maximum daily demand rather than average demand. Their water demand projections show that
additional water would be required by 2015. Their options are to purchase additional surplus from the
Cities of Norfolk and Portsmouth and/or develop an entirely new water supply project. The City of
Chesapeake believed that the City of Suffolk and Isle of Wight County might also need some of the City
of Norfolk's surplus in the next ten to fifteen years.
Although their comments had not been solicited, the Western Tidewater Water Authority (City of Suffolk
and Isle of Wight County), informed the District on 2 April 1999 that they disagreed with the City of
Norfolk's claim of a 32 to 45 mgd surplus. Their reasons were legal issues concerning the operation of
wells within the City of Suffolk and the City of Norfolk's sole claim to the Blackwater River. They also
stated their belief that the southside communities would need the surplus water within the next 40 years.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The District has not suggested that surplus water from the City of Norfolk would meet the RRWSG's
projected long-term need of 39.8 mgd. It is clear from these responses that some of the surplus will
indeed be needed to serve the long-term needs of the southside communities. However, it appears that the
surplus Norfolk water would be available in the short term and some may also be available in the long
term and could serve at least some increment of the RRWGS's need when it arises. Corps authorization
would be necessary for any pipelines or crossings affecting wetlands or waters of the United States.
Generally, pipeline crossings do not result in major environmental impacts. Also, a portion of the
pipeline could be attached to one of the bridges that cross the James River and involve less bottom
disturbance. In a report dated 15 November 2000, the City of Newport News estimated that it would cost
$196.6 million to obtain surplus water from the City of Norfolk as compared to $167.9 million to build
the King William Reservoir.
11. Combined Adverse Environmental Impacts of the Project: While any one of the adverse
environmental impacts alone may not lead me to a recommendation of denial, in combination, the adverse
environmental impacts of the project, particularly the wetland loss and the adverse effects to an American
Indian minority population, would be significant. The King William Reservoir would affect ecological
processes both upstream and downstream of the dam and result in both short and long-term adverse
effects on wetlands and wildlife habitats in Cohoke Creek and the Mattaponi. River, which would lead to
significant environmental degradation.
The reservoir would convert 1,526 acres of a highly diverse and productive system of wetlands, forests
and streams and their wildlife communities into a monotypic, open-water lake environment favored by
only a few lake-dependent species. Implementation of the proposed project would result in the loss of a
generally undisturbed upland and wetland system (including 403 acres of vegetated wetlands and 34 acres
of shallow open water), which provides high quality wildlife habitat as well as important water quality
and flood control functions. The reservoir would flood a 17-nest great blue heron rookery, numerous
beaver ponds and large uninterrupted tracts of bottomland hardwood forests and would eliminate
migration, feeding and breeding habitat for wetland dependent species. The reservoir would impound 21
miles of free-flowing stream and would reduce the downstream flow of Cohoke Creek to one third of its
natural volume. The dam would block the future restoration of anadromous fish passage on Cohoke
Creek. The project would result in the alteration and degradation of 186 acres of wetlands and their
associated wildlife habitat downstream of the proposed dam on Cohoke Creek. The proposed outfall
location would result in unnecessary degradation to aquatic resources including wetlands, fisheries and
benthic populations in 0.8 miles of low energy streambed below the proposed discharge point on
Beaverdam Creek. The conversion of forested wetlands to emergent and scrub-shrub wetlands along the
pipeline route would result in a permanent conversion of forested wetlands and fragmentation of habitat
for some interior forest species. Forest fragmentation decreases the habitat value of the remaining forest
to many species.
Potentially adverse alterations to salinity gradients could affect the diverse tidal freshwater marshes in the
nearly pristine Mattaponi River. The proposal would result in adverse impacts to two federally listed
threatened plant species. A population of the federally listed threatened small whorled pogonia would be
flooded within the reservoir pool area in Cohoke Creek. Also, the U. S. Fish and Wildlife Service
concluded that potential cumulative impacts of the project from erosion and sedimentation, long-term
changes in salinity, competition, loss of habitat, changes in water quality and introduced invasive species I
could result in detrimental effects on the sensitive joint-vetch populations on the Mattaponi River, I
especially to those colonies in the vicinity of the proposed intake structure.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The project has the potential to result in ecological impacts to anadromous fish populations in the
Mattaponi River. Without the availability of basic descriptive information on temporal and spatial
distribution, spawning and early life history stages of American shad in the Mattaponi River, the potential
for ecological impacts from the project on the species or its critical habitat cannot be accurately assessed.
While the applicant's limited study did not conclude that there would be significant and detrimental
impacts to migratory fish populations in the Mattaponi River as a direct result of the construction and
operation of the King William Reservoir, the study did not consider the potential for indirect ecological
effects as the result of physiochemical changes on fish assemblages. These same changes could also affect
other species of fish, and other plants and wildlife in the Mattaponi River.
The project would adversely affect 115 archaeological sites (92 in the reservoir, 18 in the pipeline route
and 5 at the pump station and in the intake pipeline route). Between 72 to 79 of these sites are considered
potentially eligible for inclusion in the National Register of Historic Places. The reservoir would be
located between Virginia's only two American Indian Reservations, and the proposed intake on the
Mattaponi River would be constructed approximately three miles upstream of the Mattaponi Reservation.
The project has the potential to impact a sacred site, traditional hunting, fishing, trapping, gathering and
religious practices, subsistence fisheries, and the way of life of the Mattaponi, Pamunkey and Upper
Mattaponi Indian Tribes. Development around the reservoir would further reduce the land available to
the tribes for hunting, trapping and gathering and additional recreational boat traffic on the Mattaponi
River would interfere with traditional net fishing. The Mattaponi and Pamunkey Tribes have a spiritual
connection to the Rivers which is not only vital to their economy but is essential to their historical and
cultural identity. The importance of the natural resources of Pamunkey Neck to the livelihood of Native
Americans emphasizes the significance of the impacts. Therefore, the project has the potential to result in
disproportionately high and adverse environmental effects to this minority population as described by
Executive Order 12898.
12. Extent and Permanence of Beneficial and Detrimental Effects:
a. Beneficial Effects: The regional cooperation between Newport News Waterworks and three
other localities in the lower peninsula should reduce their competition for available supplies. The King
William Reservoir would double the storage capacity of the current Newport News Waterworks system,
would increase the Lower Peninsula's current treated water safe yield by one-third and would provide a
second river basin as a new source of water, thereby decreasing effects from moderate droughts. The City
of Newport News would benefit from the sale of water from the reservoir to their customers as well as to
the other RRWSG members. The reservoir could provide 3 mgd of water to King William County and 1
mgd to New Kent County as hosts should these localities choose to build the necessary facilities to obtain
the water. The reservoir would provide increased public recreational opportunities in the form of
swimming, boating and year-round recreational fishing. The 1,526-acre reservoir would be stocked with
forage and game species for freshwater recreational fishing. Also, camp sites, picnic areas and nature
trails would be established around the perimeter of the reservoir. Hunting would also be allowed in the
vicinity of the reservoir with certain restrictions. Lateral seepage from the reservoir could recharge the
Yorktown aquifer and benefit local private wells; however, the exact effects on residential wells has not
been investigated. King William County would benefit from the receipt of lease payments from the City
of Newport News, and the generation of revenue from recreational, residential and light commercial
development associated with the reservoir. The local area would benefit from additional temporary
employment opportunities during the construction phase of the project.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
b. Detrimental Effects: Construction and backflooding of the dam would result in the permanent
loss of wetlands, upland forests and streams in the Cohoke Creek watershed and the water quality benefits
and wildlife habitat they provide. Impoundment of the upper portion of Cohoke Creek would result in
degradation of wetland and riparian communities downstream of the dam due to attenuation of stream
flows. A sustained increase in stream flow conditions would result in degradation of aquatic habitat
downstream of the outfall on Beaverdam Creek. The conversion of forested wetlands to emergent and
scrub-shrub wetlands along the pipeline route would result in fragmentation of habitat for some interior
forest species and decrease the habitat value of the remaining forest. Cultural and socioeconomic impacts
to the Mattaponi, Pamunkey and Upper Mattaponi Tribes would be expected from both the reservoir and
the intake on the Mattaponi River. Increases in residential and commercial development would
permanently affect the relatively unspoiled rural nature of King William County and would affect the
Mattaponi Tribe's ability to hunt, trap and gather resources for their subsistence and religious ceremonies.
Adverse effects from physical and chemical changes associated with the Mattaponi River withdrawal
could seriously affect the state's ability to restore the American shad population in the York River basin
and adverse effects to the shad fishery in the Mattaponi River could have significant long-term effects on
the society and economy of the Mattaponi Tribe. The proposed dam would permanently block the
potential restoration offish passage for anadromous species in Cohoke Creek. The project would result in
adverse impacts to a colony of the federally listed threatened small whorled pogonia and possibly to
populations of the federally listed threatened sensitive joint-vetch. Adverse impacts could occur to the
federally listed threatened bald eagle if the recommendations of the U. S. Fish and Wildlife Service and
the Virginia Department of Game and Inland Fisheries to prevent disruption during the critical nesting
period are not implemented.
13. Probable Impacts in Relation to Cumulative Effects Created by Other Past, Present and Reasonably
Foreseeable Activities: The Chesapeake Bay watershed and the Tidewater area have experienced intense
development which has resulted in declining wetland resources and significantly reduced natural
diversity. Between 1956 and 1977, before the Corps had jurisdiction over wetlands under Section 404 of
the Clean Water Act, Virginia lost nine percent of its inland forested wetlands. Data from the U. S. Fish
and Wildlife Service indicates that between 1982 and 1989, Virginia experienced a net loss of more than
18,000 acres of wetlands, most of which have occurred in the Coastal Plain (where the King William
Reservoir would be located.) According to the U. S. Fish and Wildlife Service, non-tidal forested
wetlands such as those threatened by the King William Reservoir are the most rapidly disappearing
wetland type in the Mid-Atlantic states. The need for further losses of this dwindling resource must be
carefully weighed in the Corps' public interest review. Through the implementation of regulations and
guidelines in the Corps' review process, significant wetland losses have been reduced and unnecessary
losses have been avoided. The issuance of a permit for unjustified wetland losses of this magnitude
would be contrary to the requirement to reduce cumulative impacts to these resources.
Approximately forty percent of the palustrine forested wetland losses were shown to be from reservoir
and pond construction, which has resulted in a net gain in open water habitats. EPA believes that wetland
losses from the proposed King William Reservoir would contribute significantly to ongoing cumulative
adverse effects in the Chesapeake Bay, and that it is inappropriate to view these losses as offset by a gain
in the open-water habitat of a man-made lake. According to the U.S. Fish and Wildlife Service, wetlands
status and trends reports indicate that over 555,000 acres of ponds and reservoirs have been created in
Virginia between 1956 and 1977, primarily at the expense of free-flowing rivers and streams. Therefore,
populations of fish species dependent on riverine habitat in Virginia have suffered a decline in available
habitat.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
In their letter dated 25 February 2000, EPA stated that wetlands of the Chesapeake Bay, the nation's
largest estuary, should be considered a high national priority and commented, "The KWR project may
contribute substantially to ongoing cumulative adverse effect in the Chesapeake Bay watershed and
southeastern Virginia where urban development has already significantly reduced the diversity of natural
communities." The U.S. Fish and Wildlife Service believes that the two-thirds reduction in freshwater
input to the Pamunkey River from Cohoke Creek should be considered as a cumulative effect to the York
River system. The Virginia Department of Game and Inland Fisheries believes that a withdrawal of this
proposed magnitude in concert with other withdrawals could alter nutrient dynamics in the York River
system and change the composition of organisms above and below the withdrawal point.
Other than the allowances for New Kent and King William Counties from the reservoir storage as host
localities, the water supply needs of other municipalities within the Mattaponi and Pamunkey River
basins have not been considered or provided for by the RRWSG's regional plan. (The 3 mgd allowance
for King William County and 1 mgd allowance for New Kent County are not included in the RRWSG's
safe yield calculations.) King and Queen County and Caroline County in particular have expressed
concern that the withdrawal of so much water from the Mattaponi River will preclude their being able to
obtain future water supplies from the River when their needs arise. Instream flow conditions to preserve
the quantity and quality of water for the maintenance offish and wildlife resources could limit any
additional future withdrawals.
The need for these and other municipalities to develop additional water supplies could lead to further
cumulative wetland and habitat losses if other reservoirs are planned. For example, New Kent County's
treated water deficit has been reported to be 9.1 mgd by 2040. After declining to cooperate further with
the RRWSG toward a reservoir on Black Creek, New Kent County announced its plans to seek a separate
permit for their own reservoir at Black Creek. If both the King William and Black Creek Reservoirs were
constructed, the cumulative losses of these two projects would exceed 700 acres of wetlands, 35 miles of
streams and 1,400 acres of upland habitat.
Also, the King William County Businessman's Association reported that King William County could not
ever take advantage of the 3 mgd host allowance in the King William Reservoir storage because they
could not afford the costs outlined in the agreement to buy the water; therefore, they will need another
water source to solve their future deficit. However, James City County indicated that if Newport News
had not resolved the permit issue by the summer of 2000, they would satisfy their 4.4 mgd deficit by
developing a groundwater desalination plant, which should have little or no impact to wetlands. James
City County's plans for a facility with up to a 6 mgd yield are currently going forward.
The King William Reservoir itself could result in additional cumulative impacts through future expansion
of the reservoir footprint and enhancement of the raw water pumpover as described below:
a. Expansion of the King William Reservoir: In view of the concerns of the District and other
federal and state agencies over the loss of wetlands and wildlife habitat, the RRWSG elected to submit a
revised permit application for the KWR-IV alternative. However, they remained convinced that from the
perspective of a long-term regional public water supply, their preferred KWR-II alternative would be
technically superior. The 11 March 1997 Addendum Number 3 to the Development Agreement between
the City of Newport News and King William County contains a clause reserving the wetlands between the
KWR-IV and KWR-II dam sites for possible future downstream reservoir enlargement. If permitted, a
future reservoir expansion would destroy an additional 137 to 216 acres of wetlands and their associated
* -^ 160
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
fish and aquatic resources downstream of the currently proposed KWR-IV dam site to supply between 2.2
to 3.9 mgd of additional treated water. Although the RRWSG offered to place temporary conservation
easements over the wetlands and adjoining upland habitat between the proposed KWR-IV dam and
upstream of the existing Cohoke Millpond as a part of their mitigation plan, they have not agreed to
preserve these areas in perpetuity.
Therefore, it appears that the City of Newport News intends to eventually impact a total of 574 to 653
acres of wetlands for the King William Reservoir. These downstream wetlands closely resemble those in
the proposed impoundment area and possess a high level of diversity. The dam site was moved upstream
to KWR-IV for the FEIS, so not all of the impacts of a reservoir at the KWR-II or KWR-I locations have
been fully evaluated. Such an expansion, no matter how probable, is not included in the RRWSG's
current application.
b. Enhancement of the King William Reservoir: Also, an additional 45 to 120 mgd pumpover
from the Pamunkey River to augment the Mattaponi River withdrawal as described in the EIS should be
viewed as a "reasonably foreseeable withdrawal" when considering cumulative impacts to the York River
system from salinity intrusion. The reduction in freshwater flows must be considered in light of
cumulative impacts to the Chesapeake Bay. Although the City of Newport News stated that they had no
immediate plans to pursue the second pumpover, and the impacts of such a proposal weie not evaluated in
the EIS, they clearly have not abandoned the potential for such an option. In the 8 August 1995
Addendum Number 2 to the King William Reservoir Project Development Agreement between the City
of Newport News and King William County, a Pamunkey River pump station is included to provide a
second pumpover to the proposed King William Reservoir as a way to enhance the safe yield of the
reservoir and to supply water to jurisdictions other than those composing the group as of March 1995.
The dual pumpover of the enhanced King William Reservoir project would supply between 6 to 15 mgd
of additional treated safe yield benefit for as yet unidentified users. According to VIMS researchers Dr.
Carl Hershner and Dr. Al Kuo, any freshwater withdrawal from the Pamunkey River will affect the
salinity in the York River and thus, the salinity in the Mattaponi River since these rivers are
hydrologically connected. EPA expressed concern regarding the long-term cumulative impacts of the
proposed withdrawals and potential withdrawals on both river systems as well as the York River system.
EPA believes that the City's plans for an additional pumpover appears to be an attempt to piecemeal the
project. There is no assurance that other localities would join the enhanced project since their future short
and long-term needs may be met by other water supply technologies. During a December 1994 meeting,
the District staff learned that none of the localities that the RRWSG had contacted were willing to commit
to participation in an enhanced King William Reservoir project. The enhanced King William Reservoir
project was never officially proposed to the District; therefore, it was not evaluated in the EIS and its
environmental impacts and alternatives are unknown. In addition, the RRWSG has indicated verbally that
in order to meet needs in the reasonably foreseeable future, they will likely request modification of their
DEQ permit to allow a higher maximum daily withdrawal rate from the Mattaponi River, or to implement
the less restrictive 40/20 Tennant minimum flowby method. This change would increase the potential for
cumulative adverse impacts to resources in the Mattaponi River.
14. Adverse Environmental Effects Which Cannot be Avoided Should the Proposal be Implemented:
The proposed King William Reservoir would result in permanent wetland losses due to construction of
the footprint of the dam and backflooding of the Cohoke Creek valley to establish an approximately
1,526-acre reservoir. The project would result in the direct and permanent loss of at least 21 miles of
161
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
stream channel, 34 acres of open water habitat, 403 acres of non-tidal vegetated wetlands, and 1,089 acres
of upland habitat. The project would result in the elimination of ecologically significant wetlands and
floodplain that provide wildlife habitat, store storm flood waters and serve as a water quality buffer. A
large, diverse complex of wetland and upland habitats that support a wide array of aquatic, semi-aquatic
and terrestrial wildlife would be transformed into a monotypic lake environment favored by only a few
species. While the applicant's mitigation plan could provide 2 to 1 replacement of wetlands, it would not
achieve in-kind functional compensation.
Restriction of flows from construction of the proposed dam also would alter the sustaining hydrologic
regime and associated biological, geological and chemical processes of the existing non-tidal wetlands
downstream of the proposed reservoir site. This would indirectly and permanently alter 186 acres of
downstream wetlands and the habitat they provide for wetland dependent species. The presence of a 78-
foot high dam would permanently preclude the potential restoration of fish passage for anadromous
species upstream of that point in Cohoke Creek. The reservoir would flood a 17-nest great blue heron
rookery and the construction and operation of the outfall on Beaverdam Creek could adversely impact the
nesting success of another 4-nest heron rookery.
Additionally, construction of pipelines to connect the new reservoir to the existing Newport News
Waterworks distribution system and to provide for the proposed pumpover from the Mattaponi River
would result in the permanent conversion of 10.4 acres of forested wetlands to emergent and/or scrub-
shrub wetland cover types. The construction of a concrete and riprap outfall structure and the excavation
of a 150-foot discharge channel on Beaverdam Creek would permanently destroy approximately 0.15
acres of vegetated wetlands. The sustained increase in average stream flow conditions of post project
discharge flows would permanently degrade the stream dynamics and morphology by increasing erosion
rates and adversely affect downstream wetlands, fisheries and benthic populations. Most, if not all, of
these effects could be avoided by moving the outfall another 0.8 miles downstream to Diascund
Reservoir.
A population of the small whorled pogonia, approximately 92 archaeological sites, and potentially a site
of sacred significance to Native Americans in the Pamunkey Neck region would be permanently flooded
by the reservoir. An additional 23 archaeological sites would be impacted by the intake and pipelines.
The project has the potential to adversely affect the already depleted shad population in the Mattaponi
River and to have indirect adverse effects on colonies of the sensitive joint-vetch located near the intake
site. The project would result in permanent adverse effects to the way of life of Native American tribes
by affecting their continued ability to obtain food and resources from the Mattaponi River and the
Pamunkey Neck area.
15. The Relationship Between Short-Term Uses of Man's Environment and the Maintenance and
Enhancement of Long-Term Productivity: While the proposed reservoir and river pumpover would meet
or exceed the applicant's projected water supply needs, the combined impacts of the project would result
in a significant and adverse decrease in the long-term productivity of the estuarine system. The proposed
King William Reservoir project would adversely affect ecological processes both upstream and
downstream of the dam and have both short-term and long-term effects on wildlife habitat. A dramatic
alteration in patterns of sediment transport and nutrient exchange which are vital to downstream
ecosystems would be expected from the impoundment.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
A highly diverse and productive natural stream valley system of wetlands, streams and forests would be
replaced with a man-made lake of low diversity and relatively low productivity. The aquatic environment
of a man-made lake may provide a productive habitat for a few lake-dependent species, but literature has
shown that their productivity and diversity usually decline over time. Furthermore, lakes that are
managed for water supply are subject to frequent and sometimes very large drawdowns which further
degrade the aquatic habitat provided by the lake environment. Although the King William Reservoir
would provide a large freshwater fishery, it cannot be expected to possess the same functions and values
as the highly diverse Cohoke Creek valley ecosystem.
There is little doubt that the removal of up to 75 mgd of freshwater from the Mattaponi River will have
some effect on the ecology of the river. The City of Newport News claims there would be "little, if any,
adverse effects." However, the potential exists for long-term effects on salinity and other chemical
properties in the Mattaponi, Pamunkey and York Rivers. While it may be true that only minor effects
would be anticipated from each individual elemental change, the combined and long-term permanent
changes to the productivity of the system are expected to be significant.
16. Any Irreversible or Irretrievable Commitments of Resources Which Would be Involved in the
Proposal Should it be Implemented: There would be an irretrievable loss of the upper portion of an intact
and functional ecosystem in the Cohoke Creek watershed. Irreversible effects to ecological processes
both upstream and downstream of the proposed dam would result from the permanent and significant
alteration of the flow pattern of Cohoke Creek. As proposed, the project would result in the elimination
of 403 acres of vegetated wetlands and 34 acres of shallow open water and the wildlife habitat they
provide as well as the displacement and/or destruction of their inhabitants, the inundation of
approximately 21 miles of free-flowing streams and the reduction of the average flows to the Pamunkey
River. The net reduction in freshwater discharge below the dam would restrict stream flows to about one
third of the existing average flow and would result in adverse impacts to the wetland vegetation and the
fish and wildlife that Cohoke Creek and Cohoke Millpond support. Wetland, upland and riparian habitat
that provides food, cover and reproductive sites for the vast majority of species in the watershed would be
irreversibly lost.
Approximately 10.4 acres of forested wetlands would be permanently converted to emergent and scrub-
shrub wetlands for stream/wetland crossings along the pipeline route. Although the affected area would
still be vegetated wetlands, a change in cover type due to clearing and continued maintenance of the
utility corridor would result in a net loss of forested wetland function.
The outfall structure on Beaverdam Creek would permanently destroy approximately 0.15 acres of
vegetated wetlands and the operation of the pumpover with an average 7-fold increase above existing
flow conditions in Beaverdam Creek would adversely and permanently change stream dynamics.
Changes in stream morphology would result and this low energy system would experience degradation
due to sustained increases in flow volumes and velocities. Increasing the average stream flow condition
from 4.5 mgd to 32.6 mgd would generate unacceptable levels of sustained flow volume on downstream
stream aquatic resources, including vegetated wetlands, fisheries and benthic populations. Sustained flow
volumes would increase rates of erosion and subsequent deposition of credible materials (including
highly credible materials such as organics and silts), and will potentially decrease water quality
downstream to Diascund Creek Reservoir.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The Native American archaeological sites and possibly a sacred site that would be permanently flooded
would represent an irretrievable cultural and spiritual loss to the Mattaponi, Pamunkey and Upper
Mattaponi Tribes. The loss of traditional tribal hunting, trapping and gathering grounds within Pamunkey
Neck would permanently and irreversibly affect the Mattaponi Tribe's ability to obtain food and other
raw materials important to their culture and survival. Any adverse effects to the already depleted shad
population in the Mattaponi River would be expected to affect the Mattaponi Tribe's shad hatchery and
subsistence fishery. Such impacts would have a permanent effect on the tribe's historical uses of the land
and the river.
The irreversible loss of the wetland and upland forested areas within the reservoir pool area would result
in a permanent decrease in silvicultural activities, the permanent loss of a colony of the small whorled
pogonia as well as the permanent displacement of a great blue heron rookery. The indirect adverse effects
on populations of the sensitive joint-vetch in the Mattaponi River would be expected to be permanent as
long as the intake remains in the river and is operational.
The District has developed monitoring protocols for the Mattaponi River and Cohoke Creek downstream
of the dam which are intended to detect potential changes and to allow for a reevaluation of permit
conditions to address adverse effects. However, it may not be possible to rectify some of the adverse
effects, and some changes may not be detectable until the damage has occurred.
17. Comments and Recommendations of the Corps Federal Advisory Agencies: The King William
Reservoir has remained controversial with the federal advisory agencies due to its associated adverse
environmental impacts, especially the loss of extensive wetlands and wildlife habitat. There has been a
high degree of agency cooperation to solve problems and develop solutions in the review of this
application and full consideration of agency concerns in the District's decision-making process. Only
comments received in response to the FEIS or later are included in this section. Where appropriate,
earlier comments have been incorporated into other sections of this document.
a. U. S. Fish and Wildlife Service: In their letter of 25 July 1997 in response to the FEIS, the
U.S. Fish and Wildlife Service recommended denial of the proposed King William Reservoir due to the
project's impacts on 437 acres wetlands/shallow open water habitat, 21 miles of perennial and intermittent
streams, 875 acres of forested wildlife habitat (not including 214 acres of early successional forest),
alteration of 105 acres (later revised to 186 acres) of downstream wetlands, elevating salinity levels in the
York River basin and impacting the federally listed threatened sensitive joint-vetch. The Service stated
that these impacts are extremely detrimental to the fish and wildlife resources of Southeast Virginia and
will result in substantial and unacceptable impacts to Aquatic Resources of National Importance (ARNI).
The Service expressed continued serious concerns over the integrity of the Mattaponi ecosystem
following withdrawals for the King William Reservoir. They expressed concern for alteration of salinity
gradients, and effects to the Mattaponi River's diverse tidal freshwater marshes, including the federally
listed threatened sensitive joint-vetch. The Service stated "Based on the Service's extensive involvement
evaluating the evolving wetland mitigation plan, we do not see the possibility that the applicant can
adequately replace the wetland functions, contiguous habitat, and wetland types that the project proposed
to impact." They clarified that their involvement did not equate to endorsement of the mitigation plan or
of the project.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The Service also expressed concern that the project would impact all or a portion of the wetlands
downstream of the proposed dam due to the inappropriate flow regime proposed for reservoir releases
which does not mimic natural flows. The Service continued to recommend that the pipeline to Diascund
Reservoir be extended the entire length to avoid adverse impacts to Beaverdam Creek from irregularly
high, potentially erosive flows. The Service requested an opportunity to review Dr. Garrnan's report in its
original version before Newport News's editorial changes. The Service believes that the information on
Mattaponi River fish communities is insufficient and that the applicant should be required to do further
sampling to help tailor the River Monitoring Plan. The Service recommended 1 mm wedgewire screens
on the intake with intake velocities not to exceed 0.25 feet per second. As mitigation for the reduction in
anadromous fish habitat in Cohoke Creek, the Service recommended providing fish passage at a suitable
location on another stream as a condition of the permit, if granted. The Service concurred with the
Department of Game and Inland Fisheries concerning time of year restrictions for the great blue heron
rookery and commented that the buffer recommendations around the reservoir proposed for bald eagles
by the Service and the VDGIF should serve to compensate for inundation of the existing heron rookery.
The Service commented that river salinity changes may profoundly affect the sensitive joint-vetch and
that laboratory germination results may not duplicate conditions of a natural setting. The Service
commented on the RRWSG's proposed management conditions for the bald eagle and recommended that
the Service and the VDGIF be consulted for recreation and nature trail plans.
In a letter dated 22 July 1999, the U.S. Fish and Wildlife Service provided comments on the RRWSG's
final wetland mitigation plan. The Service stated that the proposed mitigation plan is hydrologically and
ecologically out-of-kind, separates the stream mitigation from the wetland mitigation and does not
compensate for the loss of the Cohoke Creek stream valley wetland complex. The Service stated that "the
stream valley wetland complex has been torn into two disjunct, ecologically disconnected components for
mitigation purposes." The Service stated "...the mitigation proposed is significantly out-of-kind, and does
not compensate for the loss of the Cohoke Mill Creek stream valley wetland complex." and " We have yet
to understand how a stream valley wetland complex driven by a groundwater/surface water interface can
be recreated." The Service does not believe that the final plan adequately addresses monitoring of the
mitigation sites nor does it make a commitment to long-term hydrology rights from off-site sources for
certain farm fields.
The Service believes that the RRWSG's proposed downstream releases do not avoid impacts to the
functioning of wetlands downstream of the dam site. In their 22 July 1999 letter, the Service concurred
with my preliminary position that there is a lack of demonstrated need to destroy 403 acres of wetlands
and my concern for the combined adverse environmental impact that would result from the King William
Reservoir and Mattaponi River intake. They also reiterated their recommendation that the Department of
the Army permit be denied. The Service stated "These wetland systems are not a readily replaceable,
mitigatable resource." and "The best compensation package in the world is not appropriate if avoidance of
the wetland impact is a practicable option." Finally, the Service commented "Because of our overriding
concern that the King William Reservoir has not been proven to be the least damaging practicable
alternative, the Service believes that a very detailed examination of the applicant's Final (wetland
mitigation) Plan is not warranted at this time."
b. U. S. Environmental Protection Agency: In their letter of 25 July 1997 commenting on the
FEIS, EPA stated that despite the avoidance of 216 acres of wetlands with the KWR-IV configuration,
and the RRWSG's good faith effort to resolve difficult issues, major outstanding environmental and
cultural issues remained. EPA recommended the publication of a Supplement to the FEIS in order to
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
provide full public disclosure on the project's effects on Environmental Justice, the presence or absence of
Traditional Cultural Properties, address unresolved questions regarding salinity impacts to the flora and
fauna of the Mattaponi River, and to incorporate the results of the Habitat Evaluation Procedures into the
applicant's wetland mitigation plan.
EPA commented that the impacts related to the loss of 437 acres of diverse and valuable wetlands/shallow
open water habitat within the Cohoke Creek basin would be significant. The wetlands provide multiple
ecological functions ranging from water quality enhancement to wildlife migration, feeding and breeding
habitat. These functions and the uniqueness/heritage values of these wetland ecosystems would be lost
for many wetland dependent wildlife species and would not be sufficiently replaced by the open-water
habitat of a 1,526 acre lake. EPA believes that the wetlands at the project site qualify as an Aquatic
Resource of National Importance (ARNI) due to their diverse type, quantity and functional capacity.
EPA also expressed concern that the downstream releases into Cohoke Creek did not mimic natural pre-
project flows and that wetlands impacted by the pipeline construction were not addressed in enough detail
in the FEIS.
EPA commented that the water deficit projections for the industrial sector appear to be too high, which
apparently reflects insufficient movement towards reuse or recycling in new or existing industry. They
recommended more progressive conservation strategies such as inclining block rates, aggressive reuse of
non-potable water by industry and aggressive community outreach to promote water conservation.
EPA concurred with the District, the Virginia Department of Historic Resources and the Advisory
Council on Historic Preservation that Traditional Cultural Properties of importance to the Mattaponi and
Pamunkey Indian Tribes were likely to exist in the vicinity of the project and commented that this
information would provide useful in the Environmental Justice analysis. EPA noted that although the
Tribes' spiritual and cultural sense might be difficult for non-natives to grasp, the Environmental Justice
analysis requires that they be taken seriously. EPA also commented that the impacts to treaty-protected
resources and the Tribes' historical, cultural and spiritual interest in the artifacts that contain the
archaeological record of the Tribes' history should not be overlooked in the Environmental Justice
analysis.
In a letter dated 28 May 1998, EPA commented "The wetlands of the Cohoke Creek Watershed have been
shown to be of high structural complexity and ecological value. These wetlands interspersed among
uplands create a unique ecosystem complex with unique functions and values. Further, available
literature on mitigation of palustrine forested and scrub-shrub wetlands indicates that these types are
among the most difficult to replace." and "Site selection has targeted prior converted croplands as a
means of restoring wetland functions. Although this approach has merit, these areas generally will not
support wetter hydrologic regimes (e.g. PFO1E) such as those found throughout the Cohoke Mill Creek
watershed."
In a letter dated August 18, 1998, EPA indicated that they would not be able to agree to issuance of a
Section 404 permit until a superior, in-kind wetland mitigation plan is developed and again recommended
the publication of a Supplement to the FEIS to include the final wetland mitigation plan as well as
information the District had gathered since publication of the FEIS on project need, Traditional Cultural
Properties, and Environmental Justice.
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In a letter dated 5 August 1999, EPA wrote to inform the District that based on the Institute for Water
Resources assessment of the project's purpose and need, EPA believed that the King William Reservoir
may not represent the least damaging practicable alternative to water supply deficits in the Lower
Peninsula. They stated that the applicant's final wetland mitigation plan (May 1999) has not fully
prescribed to the mitigation sequencing which stresses avoidance of adverse impacts as the first step in
mitigation planning.
In this letter, EPA maintained their position that due to the diverse type, quantity and functional capacity
of the wetlands at the project site, they would qualify as an Aquatic Resource of National Importance
(ARM) in accordance with Part IV 3(a) of the Clean Water Act Section 404(q) MOA between EPA and
the DOA. Because the diverse wetland communities at the site have been shown to have high structural
complexity and ecological value, EPA believes it may be extremely difficult, if not impossible, to
adequately replace them and that there is an ecological risk associated with compensatory mitigation.
Therefore, EPA believes that a more rigorous monitoring schedule than proposed in the applicant's May
1999 plan should be incorporated in the Corps permit, if one is issued.
In a letter dated 25 February 2000, EPA stated "The context of the project; the Mid-Atlantic Region,
Chesapeake Bay Watershed, tidewater Virginia, are all areas experiencing intense development pressure
and declining wetland resources, the intensity of the impacts (KWR represents the largest permitted loss
of wetland in the mid-Atlantic region) and uniqueness of the region from an ecological and cultural
perspective, combine to make this project one of the most significant projects Region III has ever worked
on." (The mid-Atlantic region consists of Pennsylvania, Maryland, Delaware, Virginia and West
Virginia.) "The importance of these natural resources to the Native American tribes in the area and the
pubic at large makes the impacts related to the KWR project take on a larger significance. These impacts
cannot be considered insignificant, even with the mitigation measure in place and fully functioning."
c. National Marine Fisheries Service: The National Marine Fisheries (NMFS) submitted
comments dated 12 March 1996 in response to the Supplement to the Draft EIS. No comments were
received from NMFS on the Final EIS. The NMFS commented that because anadromous and semi-
anadromous fish populations in the Mattaponi, Pamunkey, and Cohoke Creek drainages are currently low,
significant impacts to these species are not tolerable. They commented that strict intake protection from
impingement and entrainment of eggs and larvae is critical. Therefore, they maintained their support for
the use of 1.0 mm wedge wire screens with intake velocities not to exceed 0.25 fps. The NMFS
expressed concern that the proposed 3 mgd releases from the King William Reservoir would reduce the
Cohoke Creek streamflow to one-third of the average streamflow and there may not be sufficient water to
maintain acceptable fish habitat downstream of the dam. They also questioned the RRWSG's claim that
the proposed discharge into Beaverdam Creek would be beneficial to aquatic organisms. The NMFS
commented that the introduction of regular high flow events in the Creek would change the species
composition structure over the long term. They also expressed concern that stream channel erosion could
be significant, even if the released high flows stay within their banks. Their site inspection revealed that
the streambed of Beaverdam Creek contains soft fine substrate material which could be readily eroded by
high water events. Therefore, they recommended moving the outfall to Diascund Reservoir.
18. Views of Other Federal and State Agencies and Representatives:
a. Virginia Department of Environmental Quality (DEO'): The Virginia DEQ issued its Virginia
Water Protection Permit/401 Certificate on 22 December 1997. The permit imposed a more restrictive
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minimum instream flow for the Mattaponi River than the one the RRWSG proposed, set a higher
minimum downstream release from the dam into Cohoke Creek and placed maximum limits on interbasin
transfers from the King William Reservoir to the other Newport News reservoirs. These conditions were
imposed to ensure that the proposed activity would be consistent with the provisions of the Clean Water
Act and protect instream beneficial uses. DEQ's decision to impose these conditions was based, at least
in part, on the state's determination that the applicant's need would be up to 13 mgd less than the
RRWSG projected. Among the factors that contributed to this figure are: high unaccounted-for water
losses, continued availability of the Big Bethel Reservoir, low estimation of groundwater supplies in
James City County and questionable calculation of available supply as dead storage in the various
reservoirs in the Newport News system. DEQ stated in their comments on Supplement to the Draft EIS,
"The 30.2 mgd demand deficit is the product of numerous assumptions, nearly all of them favoring the
construction of the largest project." Nevertheless, DEQ urged me to support the King William Reservoir
in my Record of Decision.
In an internal memorandum dated 20 February 1997, DEQ indicated that they proposed stricter
withdrawal and transfer conditions for their VWP because they were concerned that Newport News
would over-rely on the Mattaponi River when existing sources would prove adequate. DEQ remarked
that such conditions were standard in other VWP water supply permits and would prevent Newport News
from using Mattaponi River/King William Reservoir water for purposes other than those stated in their
application. DEQ's memo went on to state that minimizing long-term transfers from the Mattaponi River
would minimize salinity changes and preserve water for future users. Without these long term limits,
DEQ believed that surplus Mattaponi/King William Reservoir water could potentially be sold to other
localities or used to provide water to other pumped storage projects. DEQ cited the following sections of
state law as their authority to impose conditions to regulate minimum instream flow and volumes of water
withdrawn: Section 62.1-11 states: (a) Such waters are a natural resource which should be regulated by
the Commonwealth, (c) "The waste or unreasonable use or method of use should be prevented" (e) The
right to the use of water or to the flow of water in or from any natural stream, lake or other water course is
and shall be limited to such water as may be reasonably be required for the beneficial use of the public to
be served; such right shall not extend to the waste or unreasonable method of the use of such water; and
Section 62.1-44.15:5 states: (b) Conditions contained in a Virginia Water Protection Permit may include,
but are not limited to, volumes of water to be withdrawn.
Newport News claimed that the DEQ permit was unfairly restrictive, reducing by as much a one-third the
amount of water they could withdraw from the Mattaponi River. They stated that DEQ's required
Minimum Instream Flow and other conditions of the permit would "cripple the project." Although the
City filed suit against DEQ to have these restrictions removed, they did not appeal the court decision that
upheld the DEQ permit.
In a letter dated 23 July 1999, DEQ wrote to the District disagreeing with the conclusions of the Draft
IWR report on the water needs of the lower peninsula using almost the exact wording found in Newport
News' 16 July 1999 "Lower Peninsula Water Needs: A Summary Response and Rebuttal to Institute for
Water Resources 'Special Study' May 1999."
b. Virginia Department of Health: In a letter dated 24 June 1997, the Virginia Department of
Health submitted comments in response to the Final EIS. The Health Department stated that Newport
News Waterworks and their RRWSG partners have not increased their sources of supply as quickly as the
area served has grown and the Department has required Newport News Waterworks to seek additional
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sources of water. The Department stated that their criteria stipulate that when a waterworks reaches a set
percentage of permitted capacity, they make preparations to increase their capacity. The Health
Department stated that one of their goals for the Waterworks is that they obtain the largest and best
quality of water that is reasonably available because permitting for new sources is so cumbersome and
time consuming.
The Health Department listed the applicant's proposed King William Reservoir with pumpover from the
Mattaponi River (alternative 15) at the top of their list of preferred projects. The other options in their list
in order of preference were: the King William Reservoir with pumpover from the Pamunkey River
(alternative 16), and Black Creek Reservoir with pumpover from the Pamunkey River (alternative 13),
Lake Genito (alternative 1), Lake Chesdin (alternative 2), Lake Anna (alternative 3), Lake Gaston
(alternative 4), Chickahominy River pumping capacity increases and raise Diascund and Little Creeks
Dams (alternative 18), and Chickahominy River pumping capacity increases (alternative 17). The Health
Department commented that alternatives 10, 11 and 12 involving a reservoir at Ware Creek had been
made moot by the EPA veto. Alternatives 19-28, involving aquifer storage and recovery, development of
fresh and brackish groundwater wells, river water desalination, cogeneration and wastewater reuse as a
source of potable water, were considered to have associated unknowns including limited ability to provide
the needed volume, technological limitations, possible loss of health protection, and public acceptance.
Wastewater Reuse for Non-Potable Uses (alternative 29), was considered a conservation measure which
has been slow to show a major reduction in potable water needs. Water from the Rappahannock River
above Fredericksburg (alternative 5), James River above Richmond, (alternative 6), surplus raw water
from the City of Richmond (alternative 7), surplus treated water from the City of Richmond (alternative
8), the James River between Richmond and Hopewell (alternative 9), Black Creek Reservoir with James
River pumpover (alternative 14), additional conservation measures (alternative 30), and No Action
(alternative 31) did not seem viable to the Health Department as they either move potable water from one
system to another, present extreme treatment problems, or do not address the need for additional sources.
Brackish groundwater desalination in the Newport News Waterworks Distribution Area (alternative 23)
has been implemented by Newport News Waterworks.
It should be noted that the Department of Health's stated preferences of the water supply alternatives is
based on water quality and quantity to satisfy minimum health requirements. Their conclusions are,
therefore, potentially quite different from those of the Corps of Engineers, which must conduct a public
interest review and alternatives analysis that balances the need for the project against its adverse
environmental impacts.
In a letter dated 23 July 1999, the Department of Health wrote to me disagreeing with the conclusions of
the IWR report using the same tone and almost the exact wording found in Newport News' 16 July 1999
rebuttal referenced above. The Department of Health stated that their 19 May 1994 letter under Virginia
Waterworks Regulations 12 VAC5-590-520 had notified Newport News that their water production had
consistently exceeded 80% of their permitted capacity since June 1989 and that they should provide a
schedule for increasing capacity. They stated their belief that without the King William Reservoir, the
entire area would be thrown into a water crisis. Virginia regulation 12VAC5-590-520, Waterworks
Expansion states, " At such time as the water production of a community waterworks reaches 80% of the
rated capacity of the waterworks for any consecutive three-month period, the owner shall cause plans and
specifications to be developed for expansion of the waterworks to include a schedule for construction...."
and 12VAC5-590-690, Capacity of Waterworks states, "The design capacity of the waterworks shall
exceed the maximum daily water demand of the system."
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c. Virginia Department of Game and Inland Fisheries: In a letter dated 14 July 1997, the
Virginia Department of Game and Inland Fisheries (VDGIF) submitted comments on the Final EIS.
VDGIF stated their continued support for the development of other alternative water sources including
fresh groundwater and groundwater desalination and they made several recommendations to reduce the
adverse impacts of the proposed King William Reservoir proposal. They continued to recommend that the
modified 80% Exceedence Minimum Instream Flow schedule be used for the Mattaponi River withdrawal
rather than the applicant's proposed 40/20 Tennant method. VDGIF commented that the proposed release
would represent only one-third of the normal flow in the Cohoke Creek. VDGIF indicated that research
has shown reductions in stream flow of this magnitude would adversely impact aquatic biota and
significantly impact downstream wetlands. As they believed the applicant's proposed downstream release
would not adequately protect the integrity of fish populations and wetlands in Cohoke Creek, and may
significantly impact water levels in Cohoke Millpond, VDGIF recommended that the release be increased
to maintain median monthly flows. They also recommended release of 75% epilimnetic water between
June and October to prevent temperature shock and oxygen depletion that could stress and kill fish and
recommended that temperature and dissolved oxygen be monitored below the dam.
VDGIF commented that the Final EIS did not evaluate the impact of the increased frequency of high
flows in Beaverdam Creek and that it is highly likely that increased flows will increase erosion, especially
during periods of high flow. Therefore, they continued to recommended that the discharge point on
Beaverdam Creek by moved to Diascund Reservoir. VDGIF continued to recommend 1.0 mm wedge wire
intake screens with through slot velocities not to exceed 0.25 ft/sec, as well as a time of year restriction
for all construction activities in the Mattaponi River from 15 February to 30 June to protect spawning
anadromous fish. They concurred with the applicant's proposal to provide off-site fish passage for
blueback herring and alewife and requested coordination with VDGIF for site selection and design. They
recommended time of year restrictions on pipeline construction through the open field east of bald eagle
nest site number 3 from 15 November through 15 July and that all nests should be protected by a
management zone of 750 feet. No human activity or habitat alteration, including construction, should
occur in this zone during the nesting season from 16 November through 15 July. Also, all of the forested
reservoir shoreline should be protected by a management zone that extends at least 330 feet inland and
prohibits clearcutting, land clearing and construction. The applicant's proposed management zone and its
governing rules should be established in cooperation with the VDGIF and the U. S. Fish and Wildlife
Service.
d. Virginia Department of Conservation and Recreation Division of Natural Heritage (OCR-
Natural Heritage): In a letter dated 18 July 1997, the OCR-Natural Heritage provided comments on the
Final EIS. The OCR-Natural Heritage made numerous comments'toward improvement of the applicant's
wetland mitigation plan, and disagreed with many of the statements in the Final EIS which claimed that
the project would have minor impacts to the natural resources in the Cohoke Valley and the Mattaponi
River. The DCR remained concerned about the effects of salinity intrusion on the significant wetland
communities and sensitive joint-vetch populations along the Mattaponi River and continued to question
the results of the salinity model. They commented that upper estuary communities can suffer from even
slight salinity changes because they are often already at the limit of their physiological tolerances. Due to
the potential for additional future withdrawals from the Mattaponi and Pamunkey Rivers, they
recommended modeling multiple, concurrent withdrawals to predict changes in salinity. They
commented that the applicant's proposed downstream release would not mimic the natural hydrograph
below the dam and recommended the use of the Range of Variability Approach to determine the release
that will provide adequate flows. The DCR disagreed with the applicant's conclusion that there would be
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no impacts on the sensitive joint-vetch and the reservoir would "greatly expand local bald eagle habitat."
They expressed concern that backwashing of the intake pipe could impact the sensitive joint-vetch. In
addition, DCR commented that the planned development and recreational activities around the reservoir
would discourage nesting, roosting and foraging of bald eagles since eagles require substantial stretches
of undisturbed forested shoreline. DCR stated that contrary to statements in the Final E1S, Hanover
County is indeed pursuing a water withdrawal project on the Pamunkey River and recommended that the
cumulative effects of such a withdrawal on the Pamunkey River be taken into consideration.
e. Governor of Virginia: In a letter dated 8 June 1999, Virginia Governor James S. Gilmore, III
stated his concern over my 4 June 1999 preliminary position that the King William Reservoir is not
needed. He urged me to determine that the reservoir is necessary and to issue a permit for the project as
the state had already done. In accordance with the provisions contained in 33 CFR Part 325.8 (b)(2),
when the district engineer's recommended decision is contrary to the written position of the Governor, of
the state in which the work will be performed, the application must be referred to the division engineer for
resolution. In another letter dated 21 April 2000, Governor Gilmore informed the District that Dr. E. Anne
Peterson, State Health Commissioner, would be the primary point of contact responsible for
communicating the Commonwealth's perspective on unmet water needs in the Newport News area as
well as the Commonwealth's comprehensive water planning policy.
f. Virginia Secretary of Natural Resources: In a letter dated 25 August 1999, the Virginia
Secretary of Natural Resources, John Paul Woodley, Jr. wrote to me to reemphasize the Commonwealth's
position of support for the proposed King William Reservoir and their disagreement with the conclusions
of the IWR report. As further support for the state's position, Mr. Woodley stated that if the King
William Reservoir had been in place during the recent drought, under the conditions of the DEQ permit,
very little water could have been taken from the Mattaponi River over the past 13 months, thereby
protecting its aquatic life. Mr. Woodley encouraged me to reconsider and reverse my preliminary position
to deny the permit.
g. U.S. Senator Charles S. Robb: In a letter dated 12 April 1999, former Senator Robb wrote to
me seeking the status of the permit application on behalf of one of his constituents, Mr. Larry E. Parker.
A letter dated 2 March 2000 was received jointly from former Senator Robb, Senator Warner,
Congressman Scott and the late Congressman Bateman requesting that the District's record on the King
William Reservoir permit application remain open for comment until they had an opportunity to meet
with General Rhoades, Commander of the North Atlantic Division, to discuss the procedures that would
be followed when the final decision is referred to the Division. Subsequent to that meeting, General
Rhoades provided instructions to the Norfolk District in a letter dated 21 April 2000 that outlined the
procedures to be followed for completing the review and forwarding the District's recommendation on the
permit application to the Division.
h. U.S. Senator John Warner: Senator Warner was a signatory to the 2 March 2000 letter to the
District described above.
a>
i. Congressman Herbert H. Bateman: In a letter dated 26 July 1999, the late Congressman
Bateman informed me that he had read Newport News' rebuttal to the IWR report and was even more
convinced of the need for the King William Reservoir. Congressman Bateman was also a signatory to th|
2 March 2000 letter to the district described above.
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j. Congressman Robert C. Scott: Congressman Scott was a signatory to the 2 March 2000 letter
to the District described above.
19. Summary of Public Comments Received on the Environmental Impact Statement: The King William
Reservoir project has engendered enormous controversy and public opposition ever since it was identified
as the RRWSG's preferred alternative. While only approximately 100 letters were received in support of
the project, approximately 4,315 letters and postcards and 12 petitions (with 1,792 signatures) were
received from the public expressing opposition to the project. All letters received from the general public
were reviewed and all comments were given full consideration in my recommended Record of Decision.
The level of public involvement and scrutiny of the project has been extremely high. Environmental
groups active in the Chesapeake Bay region including the Sierra Club, the Chesapeake Bay Foundation,
and the Southern Environmental Law Center, as well as a local conservation organization, the Mattaponi
and Pamunkey Rivers Association, have presented an informed opposition to the project based largely on
the wetland impacts and impacts related to withdrawals from the Mattaponi River. Several of these
groups, as well as the King and Queen County Board of Supervisors, hired their own experts and
provided substantive comments on numerous aspects of the project, notably the applicant's need for the
water and the validity of the salinity study. The District's re-evaluation of the water need issue was
prompted by these highly technical critiques of the RRWSG's methodologies. Some of the fiercest
opposition to the King William Reservoir came from the citizens of King William County and King and
Queen County, many of whom formed a grassroots organization against the project called the Alliance to
Save the Mattaponi. Many of these citizens perceive the reservoir and withdrawal as the City's attempt to
take their land and water. The proposed reservoir is located approximately 50 miles from the lower
Peninsula communities it would serve.
The public expressed concerns very similar to those of the District, the federal advisory agencies and state
agencies on such issues as alternatives, need for the water, impacts to cultural resources and traditional
cultural properties, anadromous fish, water quality, wetland impacts, fish and wildlife impacts, mitigation
and Environmental Justice. The public also identified a number of other pertinent issues which are either
addressed in this section or in other sections of this document. Other issues not pertinent to my
recommended decision have not been individually addressed. Comments from the public brought to the
attention of the District several factual errors, omissions and instances of conflicting information and
pointed out where inadequate or outdated information had been used in the EIS. In general, the public
commented that the project would result in significant and uncompensated impacts to natural resources in
the Cohoke Valley and the Mattaponi River. Impacts associated with the City of Newport News' plans
for potential future expansion of the King William Reservoir were also of great concern.
King William County: As the reservoir would be located approximately 50 miles from the lower
Peninsula communities it would serve, many citizens of King William County felt the City of Newport
News is wrongfully taking their land and their water, leaving little water for future development needs
within the watershed. Because the project does not reflect watershed based planning, the citizens fear that
the proposed withdrawal would effectively preclude other jurisdictions and riparian owners from using
the Mattaponi River as a water source. This is especially of concern during periods of dry weather, when
they fear the proposed withdrawal schedule would transfer all surplus water over the minimum instream
flow to the lower peninsula, leaving little or none for use of Mattaponi watershed farmers and residents.
This would force more reliance on groundwater wells which may themselves prove inadequate during dry
periods. Also, because DEQ will not permit any significant discharges into the river for a distance of 5
miles of the intake, future development on the river could be substantially affected.
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Some citizens are concerned that anything that will affect regional groundwater would affect their
residential wells. An alteration of the existing groundwater flow velocity pattern and a increase in lateral
seepage due to the rise in the water table is anticipated; however, the exact effects on residential wells
have not been investigated. Many citizens commented that the project would be counter to the intent of
the Chesapeake Bay Act, and would destroy the potential for Federal Scenic River designation. As many
crops cannot tolerate brackish water, several farmers who irrigate their crops with water from the
Mattaponi River expressed concern over the threat of salinity intrusion.
Native Americans: Comments received from the Mattaponi Tribe, the Pamunkey Tribe, the Upper
Mattaponi Tribe, the Virginia Council on Indians and the United Indians of Virginia have expressed
opposition to the project from the unique perspective of Native Americans. In addition to citing many of
the same environmental concerns expressed by environmental groups and the general public, the Native
Americans objected to the project because of its impacts to their culture and livelihood. The Mattaponi
Tribe believes that their subsistence shad fishery and hatchery would be lost or irreparably harmed and
that their culture, traditional practices and way of life would be adversely affected by the project. The
Pamunkey Tribe expressed concern over the loss of cultural resources and disturbance to Native
American burial sites. These tribes have used the rivers and surrounding land of Pamunkey Neck for
centuries and derive from them not only food, but also socioeconomic benefit and their spiritual identity.
The Mattaponi Tribe also believes that the Treaty of 1677, which ceded the Pamunkey Neck to the Native
Americans, would be violated by the construction of the reservoir in Cohoke Creek. The Mattaponi Tribe
claims that since one arm of the reservoir would encroach within 3 miles of their reservation, it would be
in violation of the articles of peace which provided for a cessation of English confiscation of Indian lands
and established a 3-mile buffer zone around all Indian towns to separate the colonists from the Indians. A
portion of the pipeline route would also fall within 3 miles of the Pamunkey Reservation. In a letter dated
3 June 1997, the Virginia Attorney General stated his concurrence with the RRWSG's contention that
since the need for the buffers ceased years ago, it was no longer pertinent. Also, other non-Indian
properties already exist within the 3-mile buffers. For over 350 years, the Tribes have presented their
yearly payment of taxes or "tribute" of beaver pelts, wild turkey and deer to the Governor of Virginia at
Thanksgiving in accordance with the treaty. The Tribes feel that they have honored their commitment,
but by issuing the DEQ permit for the construction of the King William Reservoir, the Commonwealth of
Virginia has not kept its pledge.
It is important to note that these are not federally recognized tribes, although they have been seeking that
status. The Treaty of 1677, made with King Charles II of England, is held by the Commonwealth of
Virginia, not by the federal government; therefore, any Corps permit decision could not violate the treaty.
However, the Norfolk District has made every effort to keep the Tribes informed and to involve them
where appropriate and has treated the tribes as though they were federally recognized to the extent
allowed by applicable statutes and regulations.
King and Queen County: In letters dated 29 April 1997 and 18 July 1997, the King and Queen County
Board of Supervisors commented that the proposed reservoir does not represent a "regional approach"
with "the greatest cumulative benefits and least overall impacts within the region" as claimed by the
RRWSG. Instead, it would greatly benefit the lower Peninsula region at the expense of the middle
Peninsula region. The County stated that the project fails to take into account the future needs of King
and Queen County in terms of agriculture, industry, commerce, recreation and residential development.
King and Queen County also provided two independent critiques of the applicant's salinity study that
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questioned its validity, and applicability to the river system. Furthermore, the County disputes the
RRWSG's reported location of the boundary between King William County and King and Queen County
on the river and claims that the withdrawal structure would be located within King and Queen County.
As such, they believe they should have been considered as a host community for the withdrawal.
Caroline County: In a letter dated 25 July 1997, the Caroline County Board of Supervisors stated their
opposition to the King William Reservoir because it would restrict their ability to obtain their "fair share"
of water from the Mattaponi River. They commented that the applicant used a 10-year old study which
no longer accurately reflects Caroline County's consumptive needs to determine how much water
Caroline County would need in the future. They feel that groundwater systems in the County will be
inadequate to meet their demand within the next few years and predict that by 2014, they will need their
own surface water source to meet their demand. They are also opposed to wetland mitigation sites being
located in Caroline County for a project that is of no benefit to the County.
Dr. John B. Dawson: Dr. Dawson wrote on 22 July 1997 that new developments in the Virginia
Department of Health policy allows wastewater recycling for potable uses by indirect recharge. Dr.
Dawson commented that Tertiary treatment to render wastewater fit for drinking is being accomplished at
the Occoquan Reservoir in Northern Virginia and could be done here as well. Therefore, Dr. Dawson
suggested that alternative 28 should be considered as a viable alternative by Newport News. He believed
that treatment plants in Henrico, Hanover and Williamsburg could potentially be re-fitted to provide
tertiary treatment. According to the Virginia Department of Health, advanced treatment of existing raw
and treated sewage discharges into the Occoquan Reservoir was determined to be economically superior
to transporting the treated effluent out of the watershed area as a way to protect public health. This was a
solution to an existing water quality problem rather than a means of providing additional water supply.
In a letter dated 29 July 1997, the Virginia Department of Health stated their position for developing any
new water supply, "When developing new sources of water supply, use the highest and best source
(combination of highest quality and best quantity) first." Based on this principle, the Health Department
would be opposed to direct recycling of reclaimed wastewater as an immediate water source. Indirect
recycling where reclaimed wastewater is discharged into a natural system to provide dilution and
detention (i.e., the discharge is separated from the intake in time and space) would be recommended only
after all other alternatives are examined and indirect recycling is determined to be the highest and best
source available. The Health Department stated that they would, therefore, not automatically reject the
concept of indirect recycle, but would evaluate each proposal on a case specific basis. The Department
did not support the applicant's Alternative 28, as it would not provide sufficient dilution and detention.
However, they indicated that they would evaluate any other indirect recycle scheme provided sufficient
details are available.
During a 15 August 1997 meeting between the District, the Virginia Department of Health, the Virginia
Department of Environmental Quality, the Hampton Roads Sanitation District and Newport News
Waterworks, alternatives for indirect recycling were discussed and the District requested that the RRWSG
provide the necessary information necessary for the Health Department's consideration. Accordingly, the
RRWSG considered two possible locations for treated wastewater discharge (upstream of Diascund
Reservoir on Diascund Creek or Beaverdam Creek, or upstream of Walker's Dam on the Chickahominy
River) to benefit the Newport News Waterworks raw water supply system and provided an analysis
indicating that such a project would not be able to provide a long enough hydraulic retention time within
the receiving waterway (according to current California guidelines for similar projects). As the Health
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Department would likely impose more stringent blending ratios to compensate for the low retention time,
the RRWSG calculated that the safe yield would be reduced to 8.5 mgd and the costs per safe yield
benefit would exceed the RRWSG's affordability criterion. As other sources of potable water are clearly
available to the RRWSG, this concept would probably not be considered acceptable by the Health
Department. Therefore, the District did not require further consideration of this alternative, but continued
to encourage wastewater reuse as an additional conservation measure.
Mr. Howard Potter: While not opposed to the reservoir project, Mr. Potter wrote on numerous occasions
of his concern that the continued withdrawal of groundwater would contribute to the subsidence of
shorelines and wetlands in the Chesapeake Bay watershed. He also provided much historical
documentation of the continued occupation of Pamunkey Neck by Native Americans.
20. Comments Received from the City of Newport News: Since the announcement of my preliminary
position in June 1999, the City of Newport News has submitted numerous reports and other documents in
support of their proposal. All of the information submitted has been reviewed and fully considered in my
evaluation of the proposal. Specific comments on each issue have been addressed throughout this
document.
By their own admission, most of the information in the summary reports on environmental and cultural
resources impacts that the City of Newport News submitted since I announced my preliminary position on
4 June 1999 were reiterations of previously submitted information. These documents only present the
benefits of the project and claim that the project will have little, if any adverse impact on the environment.
Many of the City's claims are speculative and unsupported. After reviewing the applicant's August 1999
"Environmental Issues Summary", EPA commented in a letter dated 25 February 2000, "....the Summary
report does not represent a balanced and reasonable evaluation of the project and its environmental
impacts...it fails to consider the Cohoke Mill Creek watershed as a integrated functioning ecosystem but
rather evaluates it piecemeal... does not 'balance' the discussion of the benefits of a reservoir on Cohoke
Mill Creek, with a discussion of adverse impacts." EPA concludes, "The Summary represents well
calculated bits of information submitted by the RRWSG to support the KWR project. It selects
information and data favorable to the KWR project while ignoring data that might present another view. .
The natural resources under consideration do not exist in isolation nor can they be so conveniently « f
separated from each other for purposes of impact assessment." * !
In a recent letter dated 30 November 2000, the City of Newport News submitted their " Applicant's
Proposed 404 (b) (1) Analysis." It is unusual for an applicant to submit their own analysis of the 404
(b)(l) Guidelines. The Corps uses EPA's 404 (b)(l) Guidelines in evaluating discharges of dredged or
fill material into waters of the United States under Section 404 of the Clean Water Act. The Guidelines
apply to all 404 permit decisions and are not just advisory, but are actual regulatory requirements. A
permit for placement of fill material into waters of the United States cannot be issued if the project is not
in compliance with the Guidelines except under 404 (b)(2), which allows the Secretary of Army to issue
permits given consideration to the economics of anchorage and navigation.
The Guidelines specify that no discharge will be permitted if it will cause or contribute to the significant
degradation of waters of the United States. The Corps determines if a project would have significant
adverse effects on human health and welfare; life stages of aquatic life and wildlife; the aquatic ecosystem
diversity, productivity, and stability; and recreational, aesthetic and economic values. The Guidelines are
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
the substantive criteria used to make a decision on issuance or denial of a permit and the Corps has the
sole responsibility for determining whether or not a project complies with the Guidelines.
The City of Newport News has stated that information contained in the EIS should be considered
completely accurate and final and that the District should not change its determinations with regard to
findings stated in the EIS. However, this notion runs contrary to the concept of NEPA to solicit
comments and input from the public regarding the issues presented in the EIS. When the district's
determination of particular issues changes to the point that additional public involvement is necessary,
NEPA documentation is supplemented. This is exactly what happened in this case when the District
determined that a supplement to the Draft EIS was necessary. Until a final decision is made, analysis of
any particular issue is incomplete.
Although the difference between the "administrative record", the "project file", and documents responsive
to the City's FOIA request was clearly outlined in the District's letter of 21 November 2000, the City of
Newport News misunderstood the explanation and as an enclosure to a letter dated 30 November 2000,
sent several of the documents obtained under their Freedom of Information Act request back to the
District ".... to ensure that they are in the record." Other documents were also enclosed which the City
considered relevant to the District's review of their application for the King William Reservoir including
permit decisions on other projects reviewed in the Norfolk District (Ware Creek Reservoir and Lake
Gaston Pipeline) as well as permit decisions in the Wilmington District (Coddle Creek Reservoir). In an
earlier report entitled "Comparison of King William Reservoir Project with Recently Permitted
Reservoirs in the Southeastern United States," which was submitted on 24 August 1999, the City argued
that the King William Reservoir would be less environmentally damaging per unit of water supply benefit
than other reservoir projects in Virginia (Ware Creek Reservoir and Beaverdam Swamp Reservoir), North
Carolina (Buckhorn Reservoir Expansion and Coddle Creek Reservoir) and Georgia (Horton Creek
Reservoir, and Upper Towaliga River Reservoir). As these documents were submitted by the City in
support of this permit application, they were reviewed by the District.
Although each district must comply with the same federal regulations and guidelines, outwardly similar
projects may receive completely different permit decisions. As each project has its own unique need,
environmental impacts, socioeconomic issues, agency concerns and project alternatives, such a
comparison of different projects, both between and within districts, is a futile and irrelevant exercise. The
Norfolk District has considered the King William Reservoir permit application on its own merits, and in
accordance with regulation, has compared it only to appropriate alternatives to the proposed action and
not to past projects, even if they were similar.
Regarding the Lake Gaston Pipeline, the State of North Carolina had alleged that the Norfolk District
granted Virginia Beach a permit to develop a water supply that would be risk free, to the environmental
detriment of the lower Roanoke River ecosystem. After reviewing Virginia Beach's supporting
documentation, the District agreed with the City that impacts from the Lake Gaston Pipeline would be
minimal. Concerns over the effect of the water withdrawal on downstream striped bass were analyzed
and found to be largely unsubstantiated, but a permit condition was added that fully mitigated the
potential impact. The District's finding that project impacts were insufficient to warrant preparation of an
EIS was subsequently borne out after extensive litigation. While the District did not use the same deficit
projecting methodology with the Lake Gaston Pipeline project as with the King William Reservoir
project, the District reviewed and discounted both high population growth projections (which favored
Virginia Beach) and low ones (submitted by North Carolina) and chose to rely on a more defensible,
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
moderate growth projection also supported by the Commonwealth of Virginia. When project impacts are
small, a less rigorous permit evaluation is justified (33 CFR 320.4(a)(2)(ii); 40 CFR 230.6(a)&(b)),
230.10).
The Ware Creek Reservoir project posed no impacts to any American Indian tribes. Also, the District
was convinced at the time of that permit decision that no water supply alternatives existed that were
practicable and less environmentally damaging. The permit review of the Ware Creek Reservoir project
predated the Corps/EPA policy of mitigation sequencing (first avoid wetlands, then minimize wetland
impacts, and only then compensate for any remaining wetland impacts), as well as the federal
government's current policy of 'no net loss' of wetland functions and values. Under today's standards
and policies, the gross wetland impacts of the Ware Creek Reservoir (without mitigation) would be
compared against other alternatives, not the net wetland impacts (with mitigation). Also, the Ware Creek
Reservoir's proposed wetland mitigation plan would be viewed today as being woefully inadequate based
on our current understanding of wetland functions, values, and effective compensation. Finally, the
principal water supply alternative recommended at that time that avoided wetland impacts was
desalination, but in the mid-1980s desalination technology was unreliable, not well tested, and extremely
expensive. Advances in technology and the state of the art since that time have made desalination a
viable alternative in many cases. If the Norfolk District's analysis of the Ware Creek Reservoir project
was less rigorous than our analysis of the King William Reservoir project, it was due to a combination of
different project impacts, different rules and policies, and different technological capabilities.
The City also incorrectly assumed that because they followed the District and federal agency guidance
and direction, that the outcome of the permit review process would automatically be in their favor,
although they had been repeatedly advised against such an assumption throughout the processing of the
application. Over the years, the Norfolk District staff has repeatedly informed the applicant of the major
impediments to obtaining approval of their particular preferred alternative, yet the applicant has continued
to press forward with their proposal. The applicant has expended a great deal of public funds in order to
provide the information required for the District's review of their application as well as in their rebuttal of
my preliminary position. According to the City, this has cost the RRWSG's taxpayers in excess of $16
million dollars. However, such an expenditure cannot be considered as justification for permitting a
project, if the issuance of a permit has been found to be contrary to the public interest.
21. A Discussion of Conformity With the Guidelines Published for the Discharge of Dredged or Fill
Material in Waters of the United States (40 CFR, Part 230): The placement of fill material in vegetated
wetlands and free-flowing streams for the construction of the proposed impoundment of Cohoke Creek is
considered a discharge of fill into waters of the United States. Therefore, an evaluation of the chemical
and biological effects of the proposed fill activity was conducted in accordance with the 404 (b) (1)
Guidelines formulated by the Environmental Protection Agency and published in Volume 45, Number
249 of the Federal Register, dated 24 December 1980.
Subpart C - Potential Impacts on Physical and Chemical Characteristics of the Aquatic
Ecosystem:
Substrate: The proposed King William Reservoir would convert 21 miles of free-flowing streams, 403
acres of forested, scrub-shrub and emergent wetlands, and 34 acres of open water to a deep water man-
made lake. Fill material for the construction of the dam itself would displace some wetlands, while most
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
would be inundated by backflooding. However, the physical integrity, environmental characteristics and
values of the entire 437 acre wetland/open water complex would be lost.
The placement of the pre-cast concrete outfall structure, riprap apron and the excavation of a discharge
channel would displace only 0.15 acres of wetlands. However, the addition of an average of 32.6 mgd of
flow to the channel of Beaverdam Creek would result in an average 7-fold sustained increase above
existing average flow conditions. This increase would adversely and permanently change stream
dynamics and stream morphology in the 0.8 miles of creek substrate below the outfall. This sustained
increase in flow volumes would increase erosion rates, turbidity and subsequent deposition of highly
erodible silt and organic materials downstream.
» *
pie placement of a concrete foundation and riprap for the intake structure on the Mattaponi River would
alter the substrate elevation of a small area and result in changes in water circulation and current patterns.
The discharge of fill material to backfill the pipeline trenches for stream/wetland crossings would convert
approximately 10.4 acres of forested wetlands to emergent and scrub-shrub wetlands. The affected area
would still be vegetated wetlands if pre-disturbance contours are restored; however, there would be a loss
of forested wetland function associated with a change in cover type from the clearing and continued
maintenance of the utility corridor. This conversion would change the physical and biological
characteristics of the wetland substrate and result in fragmentation of the forest habitat. Evaluating these
conversion impacts as permanent wetland impacts is consistent with the Corps' current policy for utility
line projects when wetland cover type conversions in easements will be continually maintained.
Suspended Particulates/Turbidity: Suspended particulates and turbidity would be temporarily elevated
during construction of the darn in Cohoke Creek, the intake structure in the Mattaponi River, the outfall
structure in Beaverdam Creek and the many stream/wetland pipeline crossings. However, a sustained
increase in turbidity would be expected from the increased flow regime downstream of the outfall
structure.
The placement of the proposed intake structure in the Mattaponi River would result in changes in water
circulation and current patterns that may cause a minor change in erosion or accretion of the adjacent
marshes and potentially affect suitable habitat for the federally listed threatened sensitive joint-vetch. The
increased flow regime from the peak discharge of 50 mgd at the outfall in Beaverdam Creek would result
in substantially increased erosion rates and scouring of the natural channel and wetlands along the
affected 0.8 miles of the creek especially during periods of high natural flows.
The impoundment of the naturally flowing streams in Cohoke Creek would reduce the magnitude and
duration of flood flows, interrupt downstream sediment and nutrient delivery and adversely affect the
natural maintenance and expansion of downstream wetlands. Long-term reduction in sediment load would
affect channel formation and nutrient cycling dynamics.
Water: Changes in temperature would be expected to result from the conversion of the upper Cohoke
watershed from a natural, dendritic, riverine system with associated vegetated wetlands and forested
riparian buffer to a large unshaded open water reservoir. Temperature influences the chemical properties
of natural water bodies (e.g., amount of dissolved oxygen), which in turn can greatly limit the ability of
plants and animals to utilize these waters.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The water intake structure on the Mattaponi River would withdraw up to 75 mgd of water from the river.
A sustained withdrawal of such magnitude would result in increased salinity and other changes in
chemical properties of the water that would have the potential for indirect ecological effects on plants and
fish and wildlife resources in the river. Freshwater withdrawal may result in changes to water chemistry,
including concentrations of macro-and micro-nutrients such as nitrogen, phosphorus, potassium, iron,
cobalt and dissolved organic carbon as well as major inorganic elements such as chloride, sodium,
magnesium, sulfate, calcium, and bicarbonate. No matter how slight the changes might be, they would be
permanent and would have a long-term, additive effect on plant and animal resources in the Mattaponi
River and could irreversibly alter the natural habitat of freshwater plants and animals. Long-term and
indirect adverse impacts to water chemistry in the Mattaponi River could affect resources in the
Pamunkey and York Rivers as well.
Also, an additional 45 to 120 mgd pumpover from the Pamunkey River to augment the Mattaponi River
withdrawal as described in the EIS should be viewed as a "reasonably foreseeable withdrawal" when
considering cumulative impacts to the York River system from salinity intrusion. Although the City of
Newport News stated that they had no immediate plans to pursue the second pumpover, they clearly have
not abandoned the potential for such an option, as a Pamunkey River pump station is included in their
agreement with King William County. This additional sustained withdrawal would result in further
increases in salinity and other chemical changes and further ecological effects on resources in the
Pamunkey, Mattaponi and York Rivers.
Lateral seepage from the reservoir due to the rise in the water table could recharge the Yorktown aquifer
and benefit local private wells. However, potential effects on the quantity and quality of residential wells
water has not been investigated.
Current Patterns and Water Circulation: The discharge would result in the following secondary effects to
aquatic resources:
The proposed King William Reservoir would obstruct the natural flows from a large portion of the upper
Cohoke Creek watershed, including headwater drainages and associated wetlands, and would
significantly alter the water circulation patterns both upstream and downstream of the dam. The net
reduction in freshwater discharge below the dam would restrict stream flows and impair the downstream
transfer of sediments and detritus especially to those wetlands associated with the mains tern of Cohoke
Creek located between the proposed dam and the existing Cohoke Millpond. Nitrogen and phosphorus
loading concentrations are predicted to significantly increase over the current loading concentrations in
the Cohoke Creek watershed.
Organic inputs and the processing of detritus would be severed for much of the Cohoke system, especially
for those wetlands associated with the mainstem of Cohoke Creek downstream of the proposed dam and
upstream of Cohoke Millpond.
The addition of an average of 32.6 mgd of flow to the channel of Beaverdam Creek would result in an
average 7-fold sustained increase above existing flow conditions. This sustained increase would
adversely and permanently change stream dynamics and stream morphology in the 0.8 miles of creek
substrate below the outfall and would increase erosion rates, turbidity and subsequent deposition of highly
erodible silt and organic materials.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
The presence of the intake structure in the Mattaponi River would be an obstruction to flow that would
alter current flow and circulation patterns and may affect shoreline erosion and accretion patterns in the
immediate vicinity of the structure.
Normal Water Fluctuations: The reservoir would impound 21 miles of free-flowing stream and would
reduce the downstream flow of Cohoke Creek to one third of its natural volume. The flow pattern of
Cohoke Creek would be significantly and permanently altered and the downstream wetlands would be
starved of the natural flows, as well as sediment and particulate organic matter (detritus) especially during
peak flow events. Water level fluctuations and periodic drawdowns associated with reservoir operation
would decrease the wildlife use and habitat value of any potential aquatic fringe.
The sustained increase in flow events in the 0.8 miles of Beaverdam Creek below the outfall will occur at
a frequency in orders of magnitude above natural conditions. The increased flows would adversely and
permanently degrade channel morphology and would increase erosion rates, turbidity and subsequent
deposition of highly credible silt and organic materials. Decreased water quality from resulting turbidity
would be detrimental to existing fish and invertebrate populations.
Salinity Gradients: The withdrawal of 75 mgd of water from the proposed intake structure would alter
salinity gradients. A very small increase (0.1 to 0.2 ppt) in the mean annual salinity levels was predicted
to occur as a result of the withdrawal and the VIMS report anticipated little or no upriver shifts in the
distribution of existing wetland vegetation as a result of the predicted one kilometer upstream salinity
shift. Although the actual salinity increase was predicted to be greater downstream, the percentage of
change would be more significant upstream where the existing salinity approaches zero. While these
increases might appear small, they would be sustained for as long as the withdrawal exists and would
exacerbate any natural salinity increases during times of drought and/or during periods when the wind
pushes the tidal water farther upstream. VIMS addressed only the predicted spatial distribution of
existing wetlands, and did not evaluate the effects of the upstream salinity shift on any fish and wildlife
resources or endangered and threatened plant or animal species.
Both the Fish and Wildlife Service and the Virginia Department of Conservation and Recreation indicated
that some organisms and life stages have a low threshold for negative effects from chronic exposure to
increased salinity or higher frequency of occurrence. During certain life stages, some species may be
harmed by acute salinity impacts that would occur during maximum pumping events. Organisms in the
low-salinity upper estuary may be particularly vulnerable to impacts from very slight changes in water
chemistry as some of these freshwater and estuarine species may already be at the edge of their
physiological tolerance. Even a change in salinity as slight as 0.1 ppt could cause a significant decrease
in growth and reproduction for these organisms. Also, a variety of plant metabolic processes, including
germination, nutrient uptake, productivity, seed production, and community establishment are known to
be affected by salinity. Salinity is an important growth-limiting factor in wetland species and the effects
of salinity on function and anatomy may vary during various plant developmental stages.
Subpart D - Potential Impacts on Biological Characteristics of the Aquatic Ecosystem:
Threatened and Endangered Species: In their Biological Opinion, the U. S. Fish and Wildlife Service
concluded that flooding of the reservoir would eliminate a population of the federally listed threatened
small whorled pogonia and that the construction and operation of the proposed intake structure on the
Mattaponi River could result in indirect impacts to colonies of the federally listed threatened sensitive
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
joint-vetch from erosion and sedimentation of sensitive joint-vetch beds. The Service believes that there
is also the potential for cumulative indirect long-term impacts to various stages of the vetch's life cycle
from changes in salinity and water quality, competition, loss of habitat, and introduced invasive species.
All of the known nests of the federally listed threatened bald eagle in the vicinity of the project are
beyond the designated 0.25-mile radius buffer within which human activities could disturb eagles or
degrade their habitat; therefore, the Service concluded that if noise disturbances are not excessive, the
proposed reservoir construction would not be likely to adversely affect the bald eagle at the King William
Reservoir Site. However, because bald eagles are particularly sensitive to noise and other disturbances
from human activities, the construction of the pipeline would be incompatible with successful nesting and
foraging. Both the Service and the Virginia Department of Game and Inland Fisheries recommended time
of year restrictions to avoid disruption to bald eagles during the nesting season. Also, bald eagles may be
present on some of the proposed wetland mitigation sites and along the re-aligned pipeline route.
The applicant has agreed to the Service's recommendations for the small whorled pogonia and three of
the six recommendations for the sensitive joint-vetch. During informal consultation, the applicant had
developed a management plan to minimize impacts to the bald eagle. However, in their Mitigation
Program, Fish and Wildlife Mitigation Plan, their proposals for the sensitive joint-vetch and the bald
eagle no longer include these measures.
The bald eagle was not included in the consultation under Section 7 of the Endangered Species because
the Service's concerns over potential impacts to bald eagles were resolved through the informal
consultation process. The Service concluded that neither the proposed action nor its cumulative effects
are likely to jeopardize the continued existence of the small whorled pogonia and the sensitive joint-vetch.
A "no jeopardy" opinion means that this one action alone would not lead to the extinction of the entire
species, even though there may be harm, functional impairment or destruction of an individual population
of the species.
The conclusions of the Secretary of the Interior under Section 7 of the Endangered Species Act
concerning the impacts of the discharge of dredged or fill material on threatened and endangered species
and their habitat are considered final for the proposed impact area. However, additional consultation may
be required for the proposed mitigation sites and the re-aligned pipeline route.
Fish. Crustaceans. Mollusks and Other Aquatic Organisms in the Food Web: The inundation of wetlands
and streams in the proposed reservoir pool area would eliminate habitat for wetland dependent fish and
invertebrate species. Although the proposed King William Reservoir would provide spawning and
nursery habitat for the resident fish species that are able to survive in that system, a conversion of the
natural and productive riverine wetlands to an artificial and relatively unproductive open water habitat
would lower species diversity and may lead to reduction in overall biological productivity. According to
Dr. Greg Garman, non-native fish stocked in the King William Reservoir would very likely escape into
the Pamunkey River, and could eventually become established in the Mattaponi River. These non-native
fish could impact native fish in the rivers, including American shad, by predation and competition.
Impounding a large portion of the headwaters and associated riparian areas of Cohoke Creek would result
in a severe alteration to the flow regime and would significantly reduce the amount of organics that are
transported to, and support fish and aquatic organisms in the downstream portions of Cohoke Creek. The
proposed reservoir and Mattaponi pumpover would result in elevated levels of dissolved nitrogen and
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
phosphorus in the reservoir pool area and potentially to downstream portions of Cohoke Creek. In
particular, the phosphorus concentration is estimated to increase by an order of magnitude, which could
lead to problems with accelerated eutrophication within the proposed reservoir and downstream reaches
of Cohoke Creek. Insufficient or poor quality water releases from the dam would affect the downstream
habitat and inhabitants. Furthermore, construction of the 78-foot high dam would permanently block the
potential restoration of anadromous fish passage on Cohoke Creek upstream of the proposed dam.
The City of Newport News has conditioned their Development Agreement with King William County to
reserve the wetlands between the KWR-IV and KWR-II dam sites for future downstream expansion of the
reservoir. If permitted, a future reservoir expansion would destroy an additional 137 to 216 acres of
wetlands and their associated fish and aquatic resources downstream of the currently proposed KWR-IV
dam. Although the RRWSG offered to place temporary conservation easements over the wetlands
between the proposed KWR-IV dam and upstream of the existing Cohoke Millpond as a part of their
overall mitigation plan, they have not agreed to preserve these areas in perpetuity.
Changes in salinity levels of the Mattaponi River water as a result of the proposed raw water intake would
affect adults, juveniles and eggs of fish, including shad and other anadromous fish. Some organisms and
food particles smaller than 1 mm screen openings would be sucked into the intake and removed as a food
source for fish and other aquatic organisms in the Mattaponi River. Such a loss would be expected to
decrease the overall productivity of the riverine system.
As existing fish and invertebrate populations in Beaverdam Creek below the proposed outfall location are
adapted to an average flow of less that 5 mgd, continuous flow events of 32.6 mgd or continuous peak
flows of 54.5 mgd would likely change long-term species composition. Also, excessive turbidities would
reduce water quality in the Diascund Reservoir and Diascund Creek and affect the anadromous fish that
Diascund Creek supports.
Other Wildlife: Adverse impacts on aquatic wildlife habitat for resident and transient mammals, birds,
reptiles and amphibians would result from the loss of approximately 403 acres of vegetated wetlands, 34
acres of shallow open water and 21 miles of stream corridor. The reservoir would flood a great blue
heron rookery, numerous beaver ponds and large uninterrupted tracts of bottomland hardwood forests.
Habitat that provides food and shelter as well as breeding and nesting sites, protective cover from
predators and travel corridors for a wide variety of wetland dependent species would be eliminated.
Many species inhabiting the flooded area would be forced to relocate to other areas of similar habitat, if
available and not already at or near their carrying capacity. Less mobile species, including reptiles and
amphibians, are not likely to be able to relocate to suitable habitat and would not survive.
Approximately 10.4 acres of forested wetlands along the pipeline route would be permanently converted
to emergent or scrub-shrub wetlands which could result in fragmentation of habitat for some interior
forest species. Reduced habitat from forest fragmentation could result in decreased breeding success and
an overall population reduction. The right-of-way could also allow the introduction of edge species,
which compete with or prey upon interior forest species. Furthermore, these disturbed areas may become
dominated by more tolerant exotic and invasive species which would further degrade the wildlife habitat
and overall biological productivity. Beaver ponds and a small great blue heron rookery could be
adversely impacted by the construction and operation of the proposed outfall on Beaverdam Creek.
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Subpart E - Potential Impacts on Special Aquatic Sites:
Sanctuaries and Refuges: No impacts are anticipated.
Wetlands: The proposed fill for the construction of the dam and backflooding of the reservoir pool area
would result in the direct and permanent destruction of 403 acres of non-tidal vegetated wetlands, 34
acres of open water and 21 miles of perennial and intermittent stream channels. These aquatic resources
have been identified as Aquatic Resources of National Importance (ARM) by the U.S. Fish and Wildlife
Service and EPA. The biological productivity, wildlife habitat, storm flood retention capacity and water
quality buffering of these ecologically significant wetlands and floodplains would be permanently lost to
the local ecosystem. The reservoir would convert 1,526 acres of a generally undisturbed, high quality,
highly diverse and productive system of wetlands, forests and streams and their wildlife communities into
a relatively monotypic, open-water lake environment favored by only a few lake-dependent species.
Roughly half of the total 17 square mile drainage area (8.9 square miles) would be affected by the
impoundment, and the flow pattern of Cohoke Creek would be significantly and permanently altered. The
net reduction in freshwater discharge below the dam would restrict stream flows to about one third of the
existing average flow and would result in adverse impacts to the wetland vegetation and the fish and
wildlife that Cohoke Creek and Cohoke Millpond support. Such a disruption in flow and circulation
patterns could also result in major wetland losses through secondary impacts. The impoundment would
result in the permanent alteration and potential degradation of 186 acres of wetlands and their associated
wildlife habitat downstream of the proposed dam due to decreased inflow to the downstream wetlands,
and significantly reduced export of particulate organic matter (detritus) which would' be expected to
adversely affect the natural maintenance of the downstream system. Additionally, the proposed reservoir
and pumpover are predicted to increase loading of dissolved nutrients (nitrogen and phosphorus) which
could accelerate eutrophication of downstream reaches and result in depletion of dissolved oxygen and
other water quality problems. These changes would be expected to adversely affect the biological
productivity of the downstream wetland system.
The permanent conversion of 10.4 acres of forested wetlands to emergent and/or scrub-shrub wetlands
along the pipeline construction route would result in a reduction of forest patch size and fragmentation of
habitat for some interior forest species. Reduced habitat from forest fragmentation could result in
decreased breeding success and an overall population reduction. In addition, further degradation of
wildlife habitat would occur if these disturbed areas become dominated by more tolerant invasive species
such as common reed (Phragmites australis.) Forest fragmentation would also decrease the habitat value
of the remaining unaltered forest.
Another 0.15 acres of wetlands would be destroyed by the construction of the proposed outfall structure
and excavation of a discharge channel on Beaverdam Creek. In addition, the sustained average 7-fold
increase above existing flow conditions would adversely and permanently change stream dynamics. This
change would increase erosion rates and result in wetland losses in the 0.8 miles of stream substrate
below the outfall. Increased average stream flow conditions to 32.6 mgd would adversely impact wetland
habitat, fish and benthic populations that are adapted to average flows of only 4.5 mgd.
The King William Reservoir itself could result in additional cumulative impacts through future expansion
of the reservoir footprint. The City of Newport News has made plans to eventually expand the reservoir
to either the KWR-II or the KWR-I dam location thereby impacting an additional 137 to 216 acres of
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SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
wetlands to supply additional treated water and has reserved the lands between the KWR-II and KWR-IV
dam sites for possible future downstream reservoir enlargement. Therefore, it appears that the City of
Newport News intends to eventually apply for a permit to impact a total of 574 to 653 acres of wetlands
for the King William Reservoir. These downstream wetlands closely resemble those in the proposed
impoundment area and possess a high level of ecosystem diversity.
The withdrawal of 75 mgd of water from the proposed intake structure on the Mattaponi River has the
potential to alter salinity gradients of the river water which would affect wetland vegetation. The
proposed intake structure itself would alter current patterns and velocity and could increase erosion of
wetlands along the shoreline. Although the increases in salinity and erosional effects are predicted to be
small, these changes would have a long-term, additive effects on the diverse tidal freshwater marshes in
the nearly pristine Mattaponi River and could irreversibly alter the natural habitat of freshwater plants and
wildlife. The applicant's individual studies on salinity and erosion did not predict substantial direct
impacts to the Mattaponi River and its resources from the single effects they evaluated. However, these
studies revealed the lack of information concerning combined and indirect adverse impacts that would
occur from the additive effects of these changes. The magnitude of these effects are unknown, and cannot
be accurately predicted, especially in conjunction with other projects that may follow.
Mud Flats: No impacts are anticipated.
Vegetated Shallows: No impacts are anticipated.
Coral Reefs: No impacts are anticipated.
Riffle and Pool Complexes: No impacts are anticipated.
Subpart F - Potential Effects on Human Use Characteristics:
Municipal and Private Water Supplies: The proposed King William Reservoir project would be highly
beneficial to Newport News Waterworks and their customers. As hosts for the project, King William
County and New Kent County have the option to receive 3 mgd and 1 mgd from the reservoir storage,
respectively, should they choose to purchase the water and construct the necessary pipelines, treatment
plants and transmission infrastructure.
However, the needs of other localities within the Mattaponi and Pamunkey River basins have not been
considered or provided for by the RRWSG's plan. King and Queen County and Caroline County in
particular have expressed concern that the withdrawal of so much water from the Mattaponi River would
preclude their being able to obtain future water supplies from the river when their need arises. Minimum
instream flow conditions to preserve the quantity and quality of water for the maintenance offish and
wildlife resources could limit future withdrawals from the Mattaponi River.
Farmers who currently use Mattaponi River water for irrigation of their crops are concerned that any
increase in salinity would make the water unusable for this purpose. Lateral seepage from the proposed
King William Reservoir due to the rise in the water table could recharge the Yorktown aquifer and benefit
local private wells.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Recreational and Commercial-Fisheries:
Mattaponi River - The taking of American shad is prohibited to the general public in the Mattaponi River
and the upper portions of the Pamunkey River due to depletion of stocks by over-fishing and habitat
degradation; however, shad are commercially fished in the Chesapeake Bay. The Mattaponi and
Pamunkey Tribes hold tribal fishery rights and are exempt from the state closure. The reproductive
viability of American shad is of particular concern because shad populations have slowly but steadily
declined over the past 100 years. State and federal agencies are currently involved in conservation efforts
to restore habitat and increase populations; and hatcheries operated by the Mattaponi and Pamunkey
Tribes on their reservations contribute to this effort. Traditional fisheries management has not been
effective in expanding the shad populations, and researchers have acknowledged that the complex
interactions of the complete ecosystem must be taken into account, and the critical stages of the shad's
life cycle must be examined to determine what types of habitat are essential to reproductive success.
Many members of the Mattaponi Tribe depend on fish from the Mattaponi River for both their subsistence
and as a source of income; therefore, adverse effects to anadromous fish would affect the economy of the
Mattaponi Tribe. Also, any adverse effects to the reproductive success in the Mattaponi and Pamunkey
Rivers wpuld affect the economy of those depending on the commercial harvesting of shad in the
Chesapeake Bay.
The potential for saltwater intrusion to decrease the tidal freshwater zone of spawning habitat on the
Mattaponi River could impact populations of American shad in the Mattaponi and Pamunkey Rivers.
American shad spawn only in freshwater (less than 0.5 parts per thousand salinity); therefore, any salinity
changes associated with the withdrawals could affect where and when these fish spawn in the River.
Research has shown that full development of salinity tolerance does not occur until the onset of the larval-
juvenile metamorphosis (26 to 45 days from the egg stage); therefore, there would appear to be the
potential for a reduction in the survival, development and growth of early life stages of shad as a result of
salinity changes in the Mattaponi River. Adequate stream flows and natural hydroperiods need to be
maintained during the summer months to protect the riverine and riparian habitat for juvenile fish.
The intake operation could result in fish mortality from entrainment and impingement of fish eggs and
larvae. Some eggs and larvae that are impinged on the intake screens will be damaged or destroyed.
Some eggs and juveniles of other fish species and food particles that are smaller than the one-millimeter
screen openings could be pulled into the intake. This could result in a reduction of food supplies that are
necessary for the survival and growth of juvenile shad and other anadromous fish populations in the
Mattaponi River.
According to Dr. Greg Carman, who performed a limited study of the potential effects of the proposed
withdrawal on anadromous fish in the Mattaponi River, "With a few exceptions, there existed only a very
limited amount of biological or ecological information that can be used to make direct j udgments
concerning the likely impacts of the King William Reservoir on the ecologically and economically
important anadromous clupeid populations of the Mattaponi River." Dr. Garman further stated that
without the availability of such basic descriptive information as temporal and spatial distribution,
spawning and early life history stages, it was very difficult to accurately assess the potential for ecological
impacts from the proposed project.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Cohoke Creek - Limited fish surveys identified 38 species within the Cohoke Creek watershed.
Construction of the dam and inundation of the pool area would impact fish species in Cohoke Creek
through increased levels of suspended sediment and the elimination of substrate, benthic food organisms
and vegetation for spawning, nursery and shelter. As the reservoir would be stocked with forage and
game species, it would provide increased opportunities for recreational fishing, but would result in a
significant change in the composition of the fish assemblage. The extent to which extirpation of native
fishes will occur is unknown; however, it can be assumed that the establishment of a stocked freshwater
fishery would not compensate for the impacts of the project to resident fisheries as asserted by the
RRWSG. Although some fish species may be able to persist in the reservoir, others that rely on the
flowing creek system would be eliminated through its conversion to a deep-water lake.
According to Dr. Greg Garman, non-native fish stocked in the King William Reservoir would very likely
escape into the Pamunkey River, and could eventually become established in the Mattaponi River. These
non-indigenous fish could impact native fish in the rivers, including American shad, by predation and
competition.
Construction of the King William Reservoir would permanently block the potential passage of spawning
anadromous and catadromous fish into the upper 21 miles of Cohoke Creek effectively precluding the
future restoration of potential anadromous fish spawning habitat in that section of the Creek. The 1987
Chesapeake Bay Agreement has placed a special emphasis on the removal of blockages to anadromous
fish and restoring historic spawning grounds.
Water Related Recreation: The discharge of fill for the construction of the dam and backflooding of the
pool area would eliminate areas where recreational hunting and fishing as well as non-consumptive
recreational uses such as hiking and bird watching currently take place. Recreational fishing in the
privately owned 85-acre Cohoke Millpond could be impacted by siltation during reservoir construction
and by long-term changes in water quality and quantity as a result of reduced flows. However, the 1,526-
acre King William Reservoir would provide substantial water-related recreational opportunities for
fishermen, sail boaters, canoeists, bird watchers, photographers, sightseers, and hikers. The proposed
King William Reservoir would become the closest large lake available to the residents of the Middle
Peninsula and Northern Neck and would be expected to be a substantial recreational benefit to the region.
Aesthetics: The Cohoke Creek watershed is relatively undisturbed except for silvicultural activities and
to some is considered to possess natural scenic beauty. A dramatic shift in the scenic character of the area
would occur from the replacement of this forest/wetland system with a deep-water man-made lake. To
those who enjoy the natural aquatic ecosystem, the reservoir would be considered an inappropriate
development that would destroy the vital elements which contribute to the compositional unity,
distinctiveness and diversity of the area. Also, the planned recreational and residential development in
and around the reservoir would be considered by some as encouraging incompatible human access to an
otherwise undisturbed area. From the unique perspective of the native Americans living in the area, the
reservoir would reduce the spiritual value of the aquatic area and destroy the quality of life enjoyed by
their people for centuries. However, because aesthetic values vary with individual taste, others would
consider the new open-water habitat and recreational and residential uses as an aesthetic resource.
Short-term water quality and air quality impacts would occur during land clearing and construction
disturbances. Construction activities and transportation of workers and materials to the site would
increase noise levels at the reservoir project site. A long-term increase in ambient noise levels would
result from the operation of the reservoir pumping station. Odor would be a problem when the reservoir is
severely drawn down and anaerobic sediments are exposed.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
According to The Nature Conservancy, the freshwater tidal ecosystem of the Mattaponi River is one of
the most pristine on the Eastern Seaboard and it is considered by the Virginia Department of Conservation
and Recreation to be one of the most significant natural habitats in the eastern United States. A segment
of the Mattaponi River has been evaluated and determined to qualify as a Virginia Scenic River, and the
state has determined that other segments should be evaluated to determine their suitability as a Virginia
Scenic River. The Mattaponi River supports state-significant and exemplary freshwater tidal marshes and
swamps and provides important habitat for rare species such as the sensitive joint-vetch and the bald
eagle. The intake pump station structures and the surrounding cleared areas would disrupt the pristine
nature of the shoreline when viewed from the river. Construction activities would temporarily increase
noise levels, and the pump station operation would result in a long-term increase in ambient noise levels.
The Mattaponi Tribe has a unique cultural perspective of the Mattaponi River that goes beyond aesthetics.
The Mattaponi people believe that the Mattaponi River is more than a simple body of water. To them, it
is a spiritual place that unites tribal members through baptism and other religious ceremonies. The
Mattaponi Tribe claims that alterations to the natural state of the river would compromise the sanctity of
these religious ceremonies. They believe that the river is a gift of life from the Great Spirit that provides
and completes the circle of life. The Tribe believes that to defile the Mattaponi River would be to
dishonor the Tribe's ancestors and Mother Earth.
Parks, National and Historical Monuments, National Seashores, Wilderness Areas. Research Sites and
Similar Preserves: No impacts are anticipated.
Subpart G - Evaluation and Testing:
General Evaluation of Dredged or Fill Material: The proposed fill for the construction of the earthen dam
would be obtained from soils in a borrow area adjacent to the proposed reservoir. This material would
consist of sand and clay and is not likely to be a carrier of contaminants; therefore, no further testing is
required. The proposed concrete and riprap structures at the intake and outfall locations would also be
composed of naturally occurring and inert material unlikely to be a carrier of contaminants.
Chemical. Biological and Physical Evaluation and Testing: The dredged or fill material is unlikely to be a
carrier of contamination and is, therefore, excluded from the evaluation procedures.
Subpart H - Actions to Minimize Adverse Effects:
Actions Concerning the Location of the Discharge: The location of the proposed dam was moved
upstream twice, thereby reducing the wetland impacts on Cohoke Creek by a total of 216 acres. The
outfall location was moved downstream another 0.5 miles, thereby reducing the impacted section of
Beaverdam Creek streambed to 0.8 miles. Also, the pipeline route was realigned to reduce the number of
wetland/stream crossings.
Actions Controlling the Material After Discharge: The applicant has proposed a riprap apron to prevent
scour at the end of the outfall on Beaverdam Creek and riprap toe protection and landscaping of the dam
on Cohoke Creek to reduce erosion of the earthen fill material.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Actions Affecting the Method of Dispersion: The proposed intake structure on the Mattaponi River
would be oriented parallel to the natural flow of the river to minimize the obstruction to water current or
circulation patterns, thereby reducing turbulence and shoreline erosional impacts.
Silt curtains and diversion structures for stream crossings, and standard erosion and sedimentation control
measures to minimize the adverse impacts associated with construction would be automatically included
as special conditions of any Corps permit to confine suspended particulate materials and prevent point
and non-point sources of pollution.
Actions Related to Technology: Wedge wire screens would be installed on the Mattaponi River raw
water intakes as protective devices to reduce impacts to fish eggs and larvae. The pipeline crossing of the
Pamunkey River would be accomplished by the directional drilling technique to reduce and/or avoid
disturbance to the river bottom.
Actions Affecting Plant and Animal Populations: The dam location was moved 1.7 miles upstream of the
original dam site in order to avoid direct impacts to a bald eagle nest and the outfall location was moved
downstream 0.5 miles, thereby reducing the impacts to fish and aquatic resources. The intake was
designed to incorporate wedge-wire screens with one-millimeter screen openings and entrance velocities
not to exceed 0.25 feet per second to minimize entrainment and impingement offish eggs and larvae. The
operation and maintenance of intake screens would minimize the need for backflushing and use of
chemicals to eradicate mussels.
The applicant has developed a wetland mitigation plan for replacement of wetlands that would be
destroyed by the proposed discharge on a 2 to 1 acreage basis. A complete review of the plan indicates
that the proffered acreage may fall short of full 2 to 1 replacement. In addition, the plan does not provide
full in-kind replacement of the wetland functions that would be lost.
The Corps of Engineers does not have jurisdiction over the uplands that would be lost and cannot require
mitigation for upland impacts as a part of the public interest review. However, the HEP and other
functional assessments emphasize how the adjoining uplands complement the functions of the Cohoke
Creek Wetlands. The applicant has included upland buffers in their wetland mitigation plan to partially
offset the adverse impacts.
The applicant agreed to the Service's conservation recommendation of preserving a known colony of the
federally listed threatened small whorled pogonia in order to minimize the impacts of the proposed action
on the species. Six conservation recommendations were made by the Service in their Biological Opinion
to protect the federally listed threatened sensitive joint-vetch populations that may be affected by the
proposed action. The RRWSG agreed to only three of the conservation recommendations as they believe
that the impacts to the sensitive joint-vetch habitat from the construction and operation of the intake at
Scotland Landing would be negligible. Although the RRWSG originally proposed a management plan to
minimize potential impacts to both existing and newly established nests of the federally listed threatened
bald eagle during construction and operation of the pipeline and reservoir, there is no mention of these
management measures in their Final Mitigation Program, Fish and Wildlife Mitigation Plan; therefore, it
appears that the applicant no longer proposes these measures.
Actions Affecting Human Use: The applicant proposes to implement architectural and landscaping
treatments that would minimize pumping noise and visual impacts at the raw water pumping station on
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
the Mattaponi River. Also, upon completion of dam construction, the earthen structure would be
landscaped to minimize visual impacts. In order to reduce damage to Mattaponi Tribal fishing nets from
pleasure boaters on the Mattaponi River, the applicant offered to ensure that King William County would
not include a boat ramp at their proposed recreation area on the remainder of the Mattaponi River pump
station property.
Other Actions: The applicant has proposed a schedule for downstream releases from the dam that they
believe would accommodate the needs of wetlands, fish and wildlife in Cohoke Creek downstream of the
proposed dam. The applicant has proposed the use of the 40/20 Tennant Minimum Instream Flow
Method that they believe would be protective of fish and wildlife resources in the Mattaponi River. The
applicant has developed a wetland mitigation plan that they believe would more than offset the adverse
impacts to wetlands in Cohoke Creek. While I consider these actions to be an impressive attempt to
minimize some of the adverse impacts associated with the project, I do not agree that they would
completely accomplish that goal. My concerns on the shortcomings of each of these plans and
recommendations for improvements are contained elsewhere in this document.
The applicant participated in the development of a long-term River Monitoring Plan to analyze pre and
post-construction conditions in the Mattaponi River and Cohoke Creek. The applicant participated in the
Habitat Evaluation Procedures Study to quantify anticipated habitat impacts on the reservoir project site
and to determine whether the proposed compensatory mitigation would offset the anticipated habitat
impacts.
Subpart B - Compliance With the Guidelines:
Restrictions on Discharge:
Alternatives Restriction (§ 230.10(a)): No discharge of dredged or fill material into a water of the United
States shall be permitted if there is a practicable alternative that would have less adverse impact on the
aquatic ecosystem, so long as the alternative does not have other significant adverse environmental
consequences. Construction of the King William Reservoir dam in Cohoke Creek and i1s adjacent ,
wetlands would constitute a discharge of fill material into a water of the United States. This Record of
Decision has shown that other alternatives, or combinations of alternatives, would be practicable
alternatives. These practicable alternatives would be reasonably available to the applicant and would
satisfy the applicant's overall purpose (to satisfy the water supply needs of the localities in the Regional
Raw Water Study Group service area through the year 2050.) These alternatives would also have less
adverse impact on the aquatic ecosystem. As explained in the 6 February 1990 EPA/Corps Mitigation
Memorandum of Agreement, "Compensatory mitigation may not be used as a method to reduce
environmental impacts in the evaluation of the least environmentally damaging practicable alternatives
for the purposes of requirements under Section 230.10(a)." Therefore, for this restriction, the
environmental impacts of the proposed King William Reservoir project must be assessed without
considering the applicant's compensatory mitigation plan. For these reasons, the King William Reservoir
project fails the Alternatives Restriction.
Other Program Restrictions (§ 230.10(b)): No discharge of dredged or fill material shall be permitted if it
causes or contributes to violation of any applicable state water quality standard, violates any applicable
toxic effluent standard, jeopardizes the continued existence of any species listed as threatened or
endangered under the Endangered Species Act of 1973, or violates any requirement imposed by the
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Secretary of Commerce to protect any designated marine sanctuary. The King William Reservoir passes
the Other Program Restriction.
Significant Degradation Restriction (§ 230.10(c)): No discharge of dredged or fill material shall be
permitted if it would cause or contribute to significant degradation of the waters of the United States. In
the context of this restriction, effects contributing to significant degradation must occur in one or more
specific areas, including: fish; wildlife; special aquatic sites (including wetlands); life stages of aquatic
life and other wildlife dependent on aquatic ecosystems; aquatic ecosystem diversity, productivity, and
stability; loss of fish and wildlife habitat; or loss of capacity of a wetland to assimilate nutrients. For
purposes of the Significant Degradation Restriction, the net impacts of a project are assessed (including
any compensatory mitigation). As stated in this Record of Decision, the applicant has proposed an
impressive wetland mitigation plan and impacts to other resources would be reduced either by project
modifications already agreed to by the applicant or that would be imposed as permit conditions.
However, the wetland mitigation plan falls short of fully offsetting the project's impacts (see below).
Although certain other impacts would also be reduced or offset, the overall effect of the project, from the
standpoint of the factors listed herein and discussed elsewhere (including cumulative impacts as discussed
in Section 13, above), would be to cause significant degradation to waters of the United States. The King
William Reservoir project fails the Significant Degradation Restriction.
Minimization Restriction (§ 230.10(d)): No discharge of dredged or fill material shall be permitted unless
appropriate and practicable steps have been taken to minimize potential adverse impacts to the aquatic
ecosystem. The EPA/Corps Mitigation MOA specifies that "The determination of what level of
mitigation constitutes "appropriate" mitigation is based solely on the values and functions of the aquatic
resource that will be impacted." What is 'practicable', in this context, is what is available and capable of
being done after taking into consideration cost, existing technology, and logistics in light of overall
project purposes. The wetland mitigation plan proposed by the applicant is the largest ever proposed in
Virginia, but the King William Reservoir project would also constitute the largest wetland impact ever
permitted in Virginia. The HEP study discussed elsewhere in this Record of Decision shows that the
wetland mitigation plan would not appropriately mitigate the aquatic ecosystem habitat functions and
values which would be lost due to the project. Also, this Record of Decision shows that there are
uncertainties, risks, and other drawbacks to several of the proposed wetland mitigation areas, making their
complete success uncertain. In addition, the applicant has proposed to preserve the 186 acres of wetlands
downstream from the proposed dam as part of their mitigation plan, but has not agreed to protect this
acreage by restriction or covenant from future degradation or destruction. Finally, impacts to Beaverdam
Creek and its wetlands could be avoided by the practicable alternative of extending the pipeline and
outfall into Diascund Reservoir. For each of these reasons, I find that appropriate and practicable steps to
minimize potential adverse impacts to the aquatic ecosystem have not been taken. The King William
Reservoir project fails the Minimization Restriction.
Factual Determinations (§ 230.11): In light of Subparts C through F, I have evaluated the potential short-
term and long-term effects of the proposed discharge on the physical, chemical anrftiological
components of the aquatic environment. I have considered the actions to minimize impacts (Subpart H)
in making this determination. I have determined that both individually and cumulatively, the proposed
discharge would cause or contribute to significant degradation of the waters of the United States. I have
also determined that secondary effects associated with the discharge have the potential to result in
significant degradation of the aquatic ecosystem.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Findings of Compliance or Non-compliance with the Restrictions on Discharge (§ 230.11'): I have
determined that the proposal does not represent the least environmentally damaging practicable
alternative as other practicable alternatives to the proposed discharge that would have less adverse effect
on the aquatic ecosystem are available to the applicant. The proposed King William Reservoir project
fails three of the four restrictions on discharge.
I have determined that the proposed discharge will result in significant degradation of the aquatic
ecosystem under Section 230.10 (c). The aquatic resources that would be impacted by the proposed King
William Reservoir have been identified as Aquatic Resources of National Importance (AJUSFI) by the U.S.
Fish and Wildlife Service and EPA. The project would result in adverse effects to fish, wildlife and
special aquatic sites, has the potential for significant effects on life stages of aquatic life and other wildlife
dependent on the aquatic ecosystem, would have significant effects on the diversity, productivity and
stability of the ecosystem, would represent a significant loss of fish and wildlife habitat and has the
potential to significantly affect the economy of the Mattaponi Indian Tribe.
The proposed discharge does not include all appropriate and practicable measures to minimize potential
harm to the aquatic ecosystem. The applicant has developed a wetland mitigation plan focusing on 2 to 1
acreage replacement; however, the plan falls short of the goal of in-kind replacement of wetland functions
and may fall short of full 2 to 1 replacement as well. The applicant has agreed to many, but not all, of the
recommendations of the District and the federal advisory agencies to avoid and minimize adverse impacts
to fish and wildlife resources. I have determined that the proposed discharge would cause or contribute to
significant degradation of the waters of the United States. Because of the individual and cumulative
adverse environmental impacts associated with the project and the lack of need to destroy wetlands when
viable alternatives exist, I have determined that the proposed discharge of fill material does not comply
with the Environmental Protection Agency's 404 (b)(l) Guidelines.
22. Conclusions: I have found that the combined adverse impacts of the proposed King William
Reservoir project would cause or contribute to significant degradation of the waters of the United States,
including wetlands, specifically in Cohoke Creek and the Mattaponi River (40 CFR 230.10 (c)).
The proposed King William Reservoir would displace not only wetlands, but a complex landscape of
wetlands and upland communities. The project would result in the irreversible and irretrievable loss of
403 acres of vegetated wetlands, 34 acres of shallow open water, 21 miles of free-flowing streams, and
1,089 acres of adjacent and interspersed upland habitat. The aforementioned aquatic resources have been
identified as Aquatic Resources of National Importance (ARM) by the U.S. Fish and Wildlife Service
and EPA. A large, diverse complex of wetland and upland habitats including beaver ponds, highly
productive emergent and scrub-shrub wetlands, stream bottom and riparian wetlands as well as areas of
mature forest would be transformed into a monotypic lake environment favored by only a few species.
The existing diverse habitat of the Cohoke Creek watershed supports a wide array of aquatic, semi-
aquatic and terrestrial wildlife and the low-gradient system serves an important role in maintaining water
quality. The RRWSG's claim that the Cohoke Creek wetlands are not valuable or highly diverse is
contrary to the results of their own studies as well as the opinions of many experts. Functional
assessments performed in support of the project have actually demonstrated that these wetlands provide
services to the Cohoke watershed that cannot be replaced by the proposed offsite compensation or the
reservoir itself.
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
Approximately 1,526 acres of wildlife habitat within KWR-FV pool area would be converted to open
water. Terrestrial and wetland-dependent wildlife would be affected by the inundation of wetland and
forested areas. The reservoir would flood a 17-nest great blue heron rookery, numerous beaver ponds and
large uninterrupted tracts of bottomland hardwood forests thereby eliminating feeding, breeding and
migration habitat for wetland dependent species. Many species inhabiting the flooded area would be
displaced to other areas of similar habitat, if available. If neighboring habitats are at or near their carrying
capacity for a particular species, the competition for available food supply would result in malnutrition
and mortality and an overall reduction of the population of that species in the area. Less mobile species
and species dependent on large contiguous habitats would be the most affected by the reservoir
construction. Reptiles, amphibians and some small mammals would be less likely to relocate unless
suitable habitat is available immediately adjacent to the pool area. These individuals would not survive.
Some aquatic fringe would most likely become established around the reservoir; however, the fringe
would provide less diversity of habitat and would not replace the functions in the existing Cohoke Creek
system. Furthermore, water level fluctuations and periodic drawdowns associated with reservoir operation
would decrease the habitat value and use of the aquatic fringe by wildlife. Reduction in habitat would
also affect temporary resident species such as neotropical migratory songbirds that rely on large areas of
temperate forest for breeding. The primary adverse impacts to wildlife habitat from the construction of the
reservoir would likely be followed by similar secondary losses of wildlife habitat from the planned
residential and recreational development around the reservoir.
Roughly half of the total 17 square mile drainage area (8.9 square miles) would be affected by the
impoundment and the flow pattern of Cohoke Creek would be significantly and permanently altered. The
net reduction in freshwater discharge below the dam would restrict flows to about one third of the existing
average flow and would impair the downstream transfer of sediments and detritus. The proposed
reservoir and pumpover is predicted to significantly increase loading of dissolved nutrients (nitrogen and
phosphorus) within the reservoir pool area and potentially downstream over current loading rates in the
Cohoke Creek system. An additional 186 acres of seasonally-flooded to permanently-flooded wetlands
between the currently proposed KWR-IV dam location and the upper reaches of Cohoke Millpond would
be indirectly affected by reduced flows. These wetlands are supported by hydrologic input from above
the proposed dam location and would change in character and/or be reduced in acreage by the almost two-
thirds reduction in flow volume.
An estimated 10.4 acres of wetlands would be impacted along the pipeline construction route. Since
reforestation of the pipeline right-of-way would be suppressed to provide maintenance access, palustrine
forested wetlands along the pipeline would be permanently converted to palustrine emergent or scrub-
shrub wetlands and could result in a reduction in forest patch size and fragmentation of habitat for some
interior forest species. Reduced habitat from forest fragmentation results in decreased breeding success
and an overall population reduction. The right-of-way would also allow the introduction of edge species,
which compete with, or prey upon interior forest species. Furthermore, these disturbed areas may become
dominated by more tolerant exotic and invasive species such as common reed (Phragmites australis), the
establishment of which would further degrade the wildlife habitat.
Also, approximately 0.15 acres of wetlands would be impacted by the proposed outfall structure on
Beaverdam Creek. Operation of the pumpover with a sustained average 7-fold increase above existing
flow conditions in Beaverdam Creek would adversely and permanently change stream dynamics and
stream morphology. Increasing the average stream flow conditions from 4.5 mgd to 32.6 mgd would
generate unacceptable levels of sustained flow volume on downstream aquatic resources, including
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
vegetated wetlands, fisheries and benthic populations. Sustained flow volumes would increase rates of
erosion and subsequent deposition of highly erodible materials such as organics and silts, and would
potentially decrease water quality downstream to Diascund Creek Reservoir. The relocated outfall
structure could also adversely impact a nesting population of the great blue heron, a species protected
under the Migratory Bird Treaty Act. Construction and operation of the outfall structure and
channelization of 150 linear feet of vegetated wetlands directly beneath the small rookery could result in
unnecessary and, therefore, unacceptable impacts to the rookery.
The RRWSG has attempted to show that their mitigation proposal would fully replace the lost functions
and values; however, their documentation indicates that their plan would not meet full functional
replacement. Even though the applicant has made an impressive effort to minimize and compensate for
the wetland loss, the net loss would still represent a significant degradation to waters of the United States
and a significant loss of wildlife habitat. I agree that if fully successful, the proposed plan would replace
the acreage amounts of lost wetlands. However, I cannot agree that the proposed plan would fully offset
all of the impacts associated with the loss of an integrated, mature wetland habitat such as is found in the
Cohoke watershed. The mitigation sites may provide wetlands of the same Cowardin classification as the
impacted areas, but they would mostly function as depressional wetlands supported by runoff and
precipitation unlike the wetlands of the free-flowing riverine system in Cohoke Creek. Furthermore, the
project represents the loss of not only wetlands, but also a complex landscape of wetlands and upland
communities that form an entire ecosystem. It is not possible to replicate the ecology and diversity of an
entire integrated system of wetlands, streams, ponds, and forests in scattered mitigation sites throughout
several small watersheds. The functions and values of the complex mosaic of habitats that would be lost
cannot be replaced in fragmented and segregated compensation sites, even at a 2 to 1 ratio.
Historically, many efforts to re-create wetlands, especially forested wetlands, have proven less than fully
successful. Also, because forested wetlands take 20 to 40 years or more to mature and the source of
hydrology may not be guaranteed for that length of time, it is not possible to accurately predict to what
degree the mitigation areas would provide successful and appropriate compensation. Furthermore, I have
found that the Final Mitigation plan could actually fall short by as much as 431 acres due to the
questionable feasibility of the Townsend site, problems with the designs of the Terrell and Taliaferro
sites, and due to changes in the conceptual plans that appeared in the Final Wetland Mitigation Plan for
the Gulasky, Lanesville, and Meadow Farm C sites.
As a part of their mitigation plan, the RRWSG has offered to place temporary conservation easements
over 186 acres of stream corridor wetlands and 620 acres of adjoining upland habitat located downstream
of the proposed King William Reservoir dam and upstream of the existing Cohoke Millpond. However,
the RRWSG has not agreed to preserve these areas in perpetuity and a clause in the City of Newport
News' Development Agreement with King William County reserves the wetlands between the KWR-IV
and KWR-II dam sites for future downstream enlargementof the reservoir. If permitted, a future
reservoir expansion would destroy additional wetlands downstream of the currently proposed KWR-IV
dam. Also, an additional 45 to 120 mgd pumpover from the Pamunkey River to augment the Mattaponi
River withdrawal as described in the EIS should be viewed as a "reasonably foreseeable withdrawal"
when considering long-term cumulative impacts to the York River system and its fish and wildlife
resources from salinity intrusion. In the City's Development Agreement with King William County, a
Pamunkey River pump station is included to provide a second pumpover to the proposed King William
Reservoir as a way to enhance the safe yield of the reservoir and to supply additional water to as yet
unidentified users. The combined effect of the proposed 75 mgd withdrawal from the Mattaponi River
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CENAO-TS-G
SUBJECT: Permit Application 93-0902-12 Submitted by the City of Newport News, Virginia
and the potential 45 to 120 mgd withdrawal from the Pamunkey River on the freshwater input to the
Chesapeake Bay is also of concern.
In their Biological Opinion, the U. S. Fish and Wildlife Service concluded that neither the proposed
action nor its cumulative effects are likely to jeopardize the continued existence of the two federally listed
threatened plant species, the small whorled pogonia and the sensitive joint-vetch. However, a "no
jeopardy" opinion does not mean that the proposed work will not affect listed species. Rather, it means
that this one action alone would not lead to the extinction of the entire species, even though there may be
harm, functional impairment or destruction of an individual population of the species. I disagree with the
applicant's contention that the small whorled pogonia no longer exists within the proposed reservoir pool
area, and I have concluded that the proposal would result in direct adverse impacts to a colony of the
small whorled pogonia which would be lost due to flooding. The applicant has agreed to the Service's
conservation recommendation for the small whorled pogonia. Also, the Service concluded that the
project could result in detrimental effects on the sensitive joint-vetch colonies in the vicinity of the
proposed raw water intake structure on the Mattaponi River and outlined six conservation
recommendations to minimize or avoid adverse effects to these populations. The applicant has only
agreed to implement three of the Service's six conservation recommendations. With the exception of the
number of colonies to be monitored, I agree with the need to implement all six of the Service's
conservation recommendations for the sensitive joint-vetch. I have concluded that without
implementation of these recommendations, the construction and operation of the intake has the potential
to result in indirect impacts to sensitive joint-vetch colonies in the vicinity of the intake.
During informal consultation for endangered species under Section 7 of the Endangered Species Act,
discussions over management issues for the bald eagle took place between the applicant, the District and
the Service. The Service had provided recommendations for reducing impacts to bald eagles and they
were addressed by the applicant's management plan contained in the District's January 1998 Biological
Assessment. In this plan, the RRWSG incorporated the Service's recommendations to minimize potential
impacts to both existing and newly established eagle nests during construction and operation of the
pipeline and reservoir. Therefore, the Service indicated that their concerns over potential impacts to bald
eagles were resolved through the informal consultation process, and the bald eagle did not need to be
included in the formal consultation process. However, there is no mention of these management
measures in the RRWSG's October 1999 Mitigation Program, Fish and Wildlife Mitigation Plan. I have
concluded that without implementation of these management measures, the construction and operation of
the pipeline and reservoir may affect nests of the bald eagle and would require further consultation with
the U. S. Fish and Wildlife Service under Section 7 of the Endangered Species Act.
However small the predicted increase in salinity and erosional effects may be, they would have a long-
term, cumulative effect on plant and animal resources in the Mattaponi River and would alter the natural
habitat of freshwater plants and wildlife on which the Mattaponi Tribe depends for their livelihood. The
magnitude of these effects is unknown, and cannot be accurately predicted, especially in conjunction with
other projects that may follow. While the applicant's individual studies on salinity and erosion do not
predict substantial direct impacts to the Mattaponi River and its resources, I disagree that these limited
studies of single effects justify the RRWSG's broad conclusions, especially since they do not account for
the additive effects of these changes.
The project has the potential to result in ecological impacts to anadromous fish populations in the
Mattaponi River. According to the RRWSG's own consultant who performed the limited study of the
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potential effects of the proposed withdrawal on anadromous fish in the Mattaponi River, "With a few
exceptions, there existed only a very limited amount of biological or ecological information that can be
used to make direct judgments concerning the likely impacts of the King William Reservoir on the
ecologically and economically important anadromous clupeid populations of the Mattaponi River."
Despite a lack of such basic descriptive information on temporal and spatial distribution, spawning and
early life history stages of American shad in the Mattaponi River, the RRWSG has concluded that there
would be no significant effect. I disagree and concur with the U. S. Fish and Wildlife Service that the
project could seriously impact American shad. The applicant's limited study concluded that there would
not be significant and detrimental impacts to migratory fish populations in the Mattaponi River as a direct
result of the construction and operation of the King William Reservoir. However, the study did not
consider the potential for indirect ecological effects as the result of physicochemical changes on fish
assemblages.
Disruption of the Mattaponi Tribe's shad fishery and hatchery operation would represent a major cultural
loss and a potential economic loss to the Tribe. It is true that despite the best efforts of the state and the
Tribes, the shad population may continue to decrease even without the proposed water withdrawal for the
reservoir. However, it must be taken into account that the complex interaction of numerous chemical and
physical effects including the small increase in salinity that would result from the removal of up to 75
mgd of freshwater from the Mattaponi River has the potential to further degrade the already depleted shad
population. As the Mattaponi Tribe depends on these fish for their livelihood, I cannot justify the further
degradation or potential loss of this resource.
Because of the project's potential to impact these resources, the District staff developed monitoring
protocols that would be included as a condition of a permit, if one were to be issued, to provide long-term
data gathering and analysis. Conclusive evidence would not be available until the various monitoring
efforts and studies had been completed many years after the project is built. However, no matter how
thorough such a monitoring plan may be, and how rapid the response to correct a problem that arises,
some effects may not become apparent until the damage is already done and some adverse impacts may
be irreparable.
I have determined that the applicant's proposed use of the 40/20 Tennant Minimum Instream Flow
Method would not be sufficient to eliminate impacts to anadromous fisheries, wetlands, threatened
species or water quality. Therefore, I have determined that it would be prudent to require the more
protective Modified 80% Exceedence for the withdrawal rules in the Mattaponi River if a Corps permit
were issued.
There would be no adverse impacts to navigation in the Mattaponi River and the King William Reservoir
would provide a net benefit to recreational boating in King William County. Recreational boating and
fishing opportunities would be increased by the presence of a 1,526-acre man-made lake. The proposed
reservoir would become the closest large lake available to the residents of the Middle Peninsula and
Northern Neck and would be expected to be a substantial recreational benefit to the region. However, as
there are already many other opportunities for recreational boating and fishing in the area, I do not find
this factor particularly persuasive.
The project would adversely affect 115 archaeological sites, 72 to 79 of which are potentially eligible for
inclusion in the National Register of Historic Places. The reservoir would be located between Virginia's
only two American Indian Reservations, and the proposed intake would be constructed approximately
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three miles upstream of the Mattaponi Reservation. The project has the potential to impact a sacred site,
traditional hunting, fishing, trapping, gathering and religious practices, subsistence fisheries, and the way
of life of the Mattaponi, Pamunkey and Upper Mattaponi Indian Tribes.
The construction of the reservoir would result in a direct loss of hunting, trapping and gathering habitat
and indirect impacts to the remaining area for game from overcrowding and competition for food. The
increased recreational activities provided by the man-made lake and the planned residential and light
commercial construction around the reservoir would result in a secondary loss of habitat on which
traditional tribal uses would occur. This development would further reduce the land available to the tribes
for hunting, trapping and gathering and additional recreational boat traffic on the Mattaponi River would
interfere with traditional net fishing. The Mattaponi and Pamunkey Tribes have a spiritual connection to
the Rivers, which are not only vital to their economy but are essential to their historical and cultural
identity. The importance of the natural resources of Pamunkey Neck to the livelihood of Native
Americans emphasizes the significance of the impacts.
Construction of the proposed King William Reservoir project would have a combined adverse impact on
the natural and physical environment that would significantly and adversely affect the Mattaponi, the
Upper Mattaponi and the Pamunkey Tribes. The cultural, social, economic and ecological impacts to the
Tribes are interrelated to the adverse impacts to the natural and physical environment that would result
from the project. The overall environmental effects of the project would be significant and would have an
adverse impact on the Tribes that appreciably exceeds the effects on the general population. Therefore,
the project would result in disproportionately high and adverse environmental effects to this minority
population as described by Executive Order 12898. I have concluded that the risk to the culture and
economy of the tribes, and to the Mattaponi Tribe in particular, would be significant. The Tribes cannot
be fully compensated for the losses to their spiritual connections, culture and traditional socioeconomic
practices that they would experience as a result of the construction of the reservoir and the withdrawal of
water from the Mattaponi River.
The Corps' Institute for Water Resources concluded that unless the region suffers a drought more severe
than any recorded in the twentieth century, the RRWSG has enough water through about 2015 even
without using drought curtailment or dipping into the lower third of their existing reservoir storage.
Therefore, there is no risk of shortage through 2015 with existing supplies. The IWR panel estimated that
using 33% dead storage and no drought curtailment, the region will need more water beyond 2015 in
order to have a zero risk of shortage. By 2020, there is a less than 4% risk of a maximum 11 mgd
shortage if water use is the highest expected, groundwater yields are the lowest expected, and there is a
recurrence of the worst drought of the twentieth century. By 2030, the risk is about 7% for a maximum
17 mgd shortage. The risk increases to 12% for a maximum shortage of 25 mgd by 2040. In the year
2050, there is about a 17% risk of a maximum shortage of 32 mgd of water. The risk of shortage means
the risk of needing to use drought curtailment, not that the region would run out of water.
Newport News Waterworks' proposal to cease withdrawals at 33% of total storage volume in their
existing reservoirs is arbitrarily and unnecessarily conservative, and unreasonably inflates their apparent
deficit. Newport News Waterworks would use drought curtailment if needed during a drought as they
have in the past and as any prudent utility would. Building the King William Reservoir would likely push
the need for doing so again far into the future (barring emergencies), but at a significant environmental,
social, and economic cost. I acknowledge the Virginia Department of Health's policy that utilities should
not include drought curtailment when calculating the capacity of their supply systems, and that this policy
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would preclude Newport News from using IWR's drought curtailment scenario (as discussed above) to
determine the 'official,' or rated capacity of their system. Although I have not relied on the drought
curtailment scenario to justify my permit findings, I cannot ignore the reality that drought curtailment
would be invoked if needed and would extend the capacity of Newport News' current system.
If Newport News Waterworks would use the existing reservoir storage volume of 5.5 mgd (at 25%), 8.9
mgd (at 20%) and 14.1 mgd (at 12%) in their calculation of safe yield, they would not need that same
amount of safe yield from another future source, including additional storage space in a new reservoir.
Utilizing as little as the 5.5 mgd of dead storage between 33% and 25% to calculate safe yield would
reduce the risk of shortage to 1% by 2020, to less than 4% by 2030, to less than 8% by 2040, and to 13%
by 2050. If Newport News Waterworks would utilize the 8.9 mgd of reservoir dead storage between 33%
and 20% to calculate safe yield, there would be no risk of shortage by 2020, the risk of shortage would be
reduced to less than 2% by 2030, to less than 4% by 2040, and to 8% by 2050. By using the 14.1 mgd of
dead storage between 33% and 12% in their calculation of safe yield, there would be a less than 1% risk
of shortage by 2030, a less than 2% shortage by 2040 and a less than 5% shortage by 2050.
I also believe that the 2 to 6'mgd of water from James City County's proposed groundwater desalination
plant should be considered as a reasonably foreseeable future water supply and taken into consideration in
the region's water supply planning. I also believe that the RRWSG has underestimated the expected yield
of the aquifer. Yield from the James City County desalination plant would postpone the need by a few
additional years depending on how much of the potential 6 mgd yield is actually realized.
Therefore, I have determined that the RRWSG will have no risk of shortage through the year 2015 with
existing supplies. If water use is the highest expected, and if groundwater yields are the lowest expected,
and if there is a recurrence of the worst drought of the twentieth century), there is a less than 4% risk of a
maximum 11 mgd shortage by 2020. The entire 11 mgd shortage calculated for 2020 could be satisfied
by using the existing reservoir storage volume and the yield from the James City County desalination
plant, and the region would have only a very small risk of shortage by 2030. Each additional 5 mgd
supply increment (from some other sources) significantly decreases the risk of future shortage. I find that
the RRWSG would not need any new water supply, let alone a new reservoir until after about 2030.
I acknowledge that it is reasonable for water supply planners to look many years into the future when
designing new water supply sources, especially when reservoirs and pipelines can take a long time to
construct. Determining the best time to begin construction on a new water project is a matter of
judgment, involving consideration of risk of shortage, project costs, financial impacts, shortage costs,
hardships to users and numerous uncertainties with respect to alternative strategies. The IWR panel
suggested using Strategic Trigger Planning as their planning criterion to allow the RRWSG to make
minimal investment for expansion and to determine when additional need warrants the next incremental
investment.
Since there is no immediate risk of a shortage, and when it does occur, the risk of a shortage occurring
would be so low, it is not reasonable to build such an environmentally damaging project to satisfy a need
that may never materialize. It would be more prudent to accurately assess need, and plan ahead when
appropriate to address that need. The RRWSG's need for additional water supply to eliminate all risk of
shortage becomes more certain and more critical in about the year 2025. There are other alternative
sources to meet any shortage when it occurs, either implemented incrementally or as a one-time project.
In the event that Newport News will actually need more water sooner than IWR predicts, these same
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alternatives could be implemented at an earlier date. The risk to the environment, the risk to an entire
watershed and the risk to the continued way of life of Native Americans in the Pamunkey Neck area,
especially the Mattaponi Tribe, are too great when weighed against the unjustified need based on my
interpretation of the IWR panel's report.
The RRWSG has not demonstrated a sufficient need at this time for additional water supply and has not
demonstrated that the proposed King William Reservoir would be the only alternative to meet that need
when it does occur. Based on the results of the IWR report, there does not appear to be a persuasively
demonstrated need for the destruction of 437 acres of wetlands/shallow open water habitat and the
functions they perform as well as the loss of this ecosystem in order to meet this very small deficit in the
region's future water demands. Furthermore, the proposed mitigation plan cannot adequately replace the
wetland functions, contiguous habitat and wetland types that would be impacted by the project. The
productive and diverse wetland system of the Cohoke Creek valley is a valuable public resource that
should not be destroyed without an overriding public need. Wetland losses must first be avoided, then
minimized and finally unavoidable wetland losses must be mitigated. While mitigation for wetland losses
must be planned and considered in the evaluation of a permit application, whether adequate compensation
can be accomplished is not a consideration in determining if the proposed project represents the least
environmentally damaging practicable alternative. If there is no demonstrated need for the loss, then the
loss is avoidable and no amount of wetland mitigation can compensate for the loss.
Other practicable alternatives (as discussed in Sections 7 and 10) are available to the City of Newport
News to reduce their risk of shortage when the need does occur (groundwater, desalination, use of dead
storage below 33%, drought curtailment, etc.). Also, the potential exists to further reduce the RRWSG's
projected need by adopting water conservation incentives and by encouraging non-potable reuse of
wastewater. New and constantly improving technologies are, making other water supply options as
feasible and cost effective as reservoirs have traditionally been. Therefore, I find that it is inappropriate
to assume that only the proposed King William Reservoir has the potential to meet the applicant's future
water supply needs.
23. District's Recommendation: I have determined that the decision on this project is a major federal
action significantly affecting the quality of the human environment and I have evaluated, in light of the
total public interest, all available information pertaining to the subject application. This determination is
based on full consideration of information contained in my Draft, Supplemental and Final Environmental
Impact Statements, and comments received from federal, state and local agencies and the general public
as well as all subsequent information provided by the applicant. My recommended decision reflects the
national concern for both protection and utilization of important resources and is based on an evaluation
of the probable impacts, including cumulative impacts, of the proposed activity and its intended use on
the public interest. The benefits which may reasonably be expected to accrue from the proposal were
balanced against its reasonably foreseeable detriments (33 CFR 320.4 (a)). This review required an
evaluation of the project under NEPA, and for consistency with the 404(b)(l) Guidelines. The 404(b)(l)
Guidelines require an evaluation of all primary and secondary impacts of a project on the aquatic
environment (40 CFR 230.11(h)); and NEPA requires an evaluation of all direct, indirect and cumulative
effects of a project on the environment (40 CFR 1508.8).
The Corps regulations at 33 CFR 320.4(j)(4) state: "In the absence of overriding national factors of the
public interest that may be revealed during the evaluation of the permit application, a permit will
generally be issued following receipt of a favorable state determination, provided the concerns, policies,
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goals and requirements as expressed in 33 CFR Parts 320-324, and the applicable statutes have been
considered and followed: e.g., the National Environmental Policy Act; the Fish and Wildlife Coordination
Act; the Historical and Archaeological Preservation Act; the National Historic Preservation Act, the
Endangered Species Act, the Coastal Zone Management Act, the Marine Protection, Research and
Sanctuaries Act of 1972, as amended, the Clean Water Act, the Archaeological Resources Act and the
American Indian Religious Freedom Act."
The Commonwealth of Virginia has issued a Virginia Water Protection/401 Water Quality Certification
for the King William Reservoir and the Governor of Virginia has urged me to issue a permit as well.
However, I have determined that the concerns, policies, goals and requirements of several of these listed
statutes would not be met if a Department of the Army Permit was issued for this project. It should be
noted that many of the review factors considered by the Corps of Engineers are not the same as those
considered by the state; therefore the outcome of federal and state reviews can be quite different. In
addition to evaluating the project in light of all applicable federal laws and regulations, I must conduct a
public interest review and alternatives analysis that balance the need for the project against its adverse
environmental impacts.
In accordance with 33 CFR 320.4(b)(4), "No permit will be granted which involves the alteration of
wetlands identified as important by paragraph (b)(2) of this section or because of provisions of paragraph
(b)(3) of this section unless the district engineer concludes, on the basis of the analysis required in
paragraph (a) of this section that the benefits of the proposed alteration outweigh the damage to the
wetlands resource." The wetlands in the Cohoke Creek valley perform many of the functions considered
important to the public interest listed in 33 CFR 320.4 (b)(2) and have been identified by the EPA and the
U. S. Fish and Wildlife Service to be an Aquatic Resources of National Importance (ARNI). The
remaining wetlands in the Cohoke Creek valley downstream of the proposed dam would continue to
perform some of these functions, but to a lesser extent, since they would be impacted by decreased stream
flows, sediment deprivation, severed detrital link between the headwaters and downstream reaches, and
increased loading rates of dissolved nutrients within the reservoir pool area. Also, these wetlands would
be under threat of destruction from future expansion of the reservoir to the applicant's preferred dam
location at KWR- II.
In accordance with the Environmental Protection Agency's Section 404(b)(l) Guidelines, "Except as
provided under Section 404 (b)(2), no discharges of dredged or fill material shall be permitted which will
cause or contribute to significant degradation of the waters of the United States." (40 CFR 230.10(c)); and
"....no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the
proposed discharge which would have less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse environmental consequence" (40 CFR 230.10 (a)).
The proposed King William Reservoir project would cause or contribute to significant degradation of
waters of the U.S. and other practicable alternatives are available to meet the applicant's need for
additional water supply when it arises. Therefore, the individual and cumulative damages to the wetland
resource outweigh the benefits of the proposed filling to the applicant.
While the cost to the environment of providing more water than the RRWSG needs at this time are too
high, it is reasonable and appropriate for me to consider what would happen if the risk of shortage is as
great as reported by the RRWSG. I acknowledge that the costs to the RRWSG of providing too little
water are also high. As stated in 33 CFR 320.4 (m), "Water is an essential resource, basic to human
survival, economic growth and the natural environment." However, this section goes on to state, "Water
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conservation requires the efficient use of water resources in all actions which involve the significant use
of water or that significantly affect the availability of water for alternative uses including opportunities to
reduce demand and improve efficiency in order to minimize new supply requirements." If deficits were
to develop more quickly than I anticipate, one or more of the incremental alternatives discussed in
Sections 7 and 10 (groundwater, desalination, use of dead storage below 33%, drought curtailment, etc.)
could be called upon to solve this problem more quickly and less expensively than the proposed King
William Reservoir. Indeed, I find this to be both the environmentally preferred alternative (under NEPA)
and the least environmentally damaging, practicable alternative (under the 404(b)( 1) Guidelines), because
of its inherent flexibility and its low environmental costs.
The applicant has not demonstrated a sufficient need for the project and I have determined that other less
environmentally damaging practicable alternatives to the proposed King William Reservoir are available
to the applicant to meet their actual need, when it does occur. I have found that the issuance of a permit
for the destruction of 437 acres of ecologically significant wetland/open water habitat would neither be
the environmentally preferred alternative, nor would it be the least environmentally damaging practicable
alternative. I concur with EPA, the U.S. Fish and Wildlife Service and others regarding the anticipated
environmental losses; and I agree that not all of these losses could be fully mitigated. I have weighed the
actual need against the direct and indirect environmental consequences of the proposed project, and I have
determined that the adverse impacts would not be justified.
I find that the King William Reservoir project has the potential to result in significant direct, indirect, and
cumulative effects as defined by NEPA, and in significant primary and secondary effects as defined by
EPA's 404 (b)( 1) Guidelines. I have determined that both individually and cumulatively, the proposed
discharge would cause or contribute to significant degradation of the waters of the United States. I have
determined that the issuance of a permit would be contrary to the public interest because of the
unnecessary loss of wetlands and the potential for significant environmental degradation; and I find that
the proposed discharge of fill material does not comply with the Environmental Protection Agency's 404
(b)( 1) Guidelines. Therefore, my decision is to recommend to the Commander of the North Atlantic
Division that the application for the proposed King William Reservoir be denied.
Date Allan B. Carroll
Colonel, U. S. Army
District Commander
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on American shad (Alosa sapidissima) and related anadromous clupeid fishes in the Mattaponi
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proposed King William Reservoir intake. 9 pp.
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203
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205
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206
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207
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209
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210
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