Wetlands issue with Edinburgh project heading to court

NORFOLK

A wetlands dispute between federal regulators and the developers of Edinburgh, a community in southern Chesapeake, has resurfaced and appears headed back to U.S. District Court in Norfolk.

Edinburgh was the subject of contention in 2002 that resulted in a $500,000 state fine for destruction of nontidal wetlands and a legal compromise that allowed some homes and shops to be built. Several of those homes were featured in the Home­arama festival in 2007.

Now the developer, Precon Development Corp. Inc., of Chesapeake, wants to build 10 more homes and a community clubhouse on 10 acres as part of the next phase of Edinburgh, along the Chesapeake Expressway on the fast-growing, rural fringes of the city.

The government says the area in question consists largely of ecologically important nontidal wetlands and that it will not issue a permit for the proposed work, insisting that construction occur in a less sensitive section of the budding community.

Precon Development first applied for the permit in December 2006 and has had its proposals rejected three times.

Last week, an attorney for Precon, Douglas E. Kahle, filed a lawsuit in federal court that claims the wetlands are not wetlands after all and that regulators with the Army Corps of Engineers in Norfolk have overstepped their authority by insisting on protecting these low-lying, forested features.

The suit asks that a federal judge let the development proceed without a permit or order the corps to issue a permit for a scaled-back version of the project – 10 homes on 4.8 acres, and no clubhouse.

“We agreed to pull back, and even that wasn’t enough,” said Kahle, a Virginia Beach attorney with a history of challenging government wetlands regulations. “It’s another example of how crazy this whole system is.”

Officials with the corps and the U.S. Justice Department did not comment on the case Thursday.

Coastal Virginia, especially Hampton Roads, is rich in nontidal wetlands, which often are hard to decipher from unregulated fields and forests but are valuable for controlling flooding, filtering pollution and providing wildlife habitat.

Property owners and developers have long complained about government rules protecting these wetlands. Their existence on a piece of property can determine how expensive development will be and how long it will take.

Kahle said the Edinburgh case will be one of the first in Virginia to be judged in the wake of a U.S. Supreme Court ruling in 2006, known as the Rapanos decision, that urged government to reconsider how nontidal wetlands are defined and regulated under the Clean Water Act.

The Edinburgh wetlands lie near a ditch that drains into other small canals before emptying about five miles away into the Northwest River in Chesapeake.

The government maintains that the wetlands protect the ditch, which protects the canals, all of which protects the Northwest River. Kahle argues that the wetlands are too far away to play any significant role in the river system and should be unregulated.

Government lawyers are expected to answer Precon’s lawsuit as early as next week.

Kahle said he anticipates a trial and ruling by mid-2009.

Scott Harper, (757) 446-2340,

scott.harper@pilotonline.com