Hearing begins for environmental suit

RICHMOND

A development near Stumpy Lake finally got its day in court Monday, eight years after environmentalists sued the state for granting a permit for the project.

Lawyers for the Chesapeake Bay Foundation and Citizens for Stumpy Lake argued that the permit for the Tri-City Properties project, which would fill in between 145 and 181 acres of forested wetlands in Chesapeake, is flawed and should never have been approved by the State Water Control Board in 2003.

Back then, state Del. Bob McDonnell, now the governor, urged the state board to issue the permit to his client, developer Eddie S. Garcia Sr., despite objections from environmental groups and federal agencies.

On Monday, the state attorney general's office, along with a lawyer for Tri-City, based in Virginia Beach, argued that the state board spent three years negotiating and considering the project before approving it, won numerous environmental concessions for the proposed development, and said the permit should stand.

Furthermore, Assistant Attorney General David Grandis asked a Richmond Circuit Court judge to throw out the environmental lawsuit, questioning why the Bay foundation is involved at all, noting that the project affects waters that flow into Stumpy Lake, the North Landing River and the Albemarle Sound, not the Chesapeake Bay.

The case has become a model of confusion and delay and illustrates how legal struggles between environmentalists and developers can sometimes go on and on, with each side expressing exasperation with the other.

After two hours of debate Monday, Richmond Judge Margaret P. Spencer gathered stacks of materials from her desk and told both sides she would issue her ruling after considering the evidence.

A decision could take weeks or months, attorneys said.

Even if she sides with Tri-City, the project will be in limbo. That's because the Army Corps of Engineers denied a permit for the residential and commercial project in 2008, saying it would be too harmful to wetlands and the lush environment around Stumpy Lake.

In response, in 2009, Tri-City scaled back its proposal, telling federal regulators that it would fill in only 29.8 acres of wetlands and would build only 520 units instead of the original 1,100 homes and apartments.

But that proposal is not what the state board approved in 2003, leaving attorneys for environmental groups wondering how the vastly different blueprints could be reconciled.

"That's why we ask that they start from scratch, start the process all over, because we now have a permit for a project that doesn't exist," said Rob Wise, an attorney representing the two environmental groups.

The case has twice been to the Virginia Court of Appeals and once before the state Supreme Court. Arguments there were never on the merits of the case, but on technical matters.

The debate Monday was the first time lawyers got to plead their sides of the dispute: Did Virginia err in allowing a major development affecting a large swath of wetlands that protect water quality, filter pollutants, control flooding and provide wildlife habitat?

Environmental lawyers said yes, that the state skipped steps and did not require the developer to perform analyses to force a less harmful project.

State attorneys said no, that the board took available information, worked tirelessly to find a compromise and could no longer wait for federal regulators at the Army Corps of Engineers to provide their expert opinions. Grandis called it "federal foot dragging."

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com