Preserving a Landmark: Broaddus '97 Fights For Virginia WetlandsBy Alston Ramsay | Tuesday, April 9, 2002
By any measure, Henry Broaddus '97 was doing well for himself. After graduating from Dartmouth with an English degree in Creative Writing, he became an assistant director of admissions at the College and planned to attend graduate school in the near future. Then, in the summer of 2000, the county of Hanover, Virginia, confiscated part of his land for a sewage outfall, which could, when complete, dump up to 30 million gallons per day of treated sewage into the Pamunkey River. The County Board planned its new wastewater treatment plant to accommodate and spur industrialization and urbanization. In times of drought, the plant's outflow could conceivably constitute half the river's entire flow; though the US Environmental Protection Agency has already designated the river's water quality as 'impaired.' What ensued for Broaddus was a legal nightmare, rife with dubious proposals, illegal permits, and numerous lawsuits. All of these continue today as Broaddus and his mother, battling bureaucracy daily, hope to save the Pamunkey River from what they consider a disastrous proposal which would entirely wreck the threatened river. 'In every instance, the historical significance of the place always has to do with the relationship between the river and the place or its people,' Henry Broaddus explains. His land is a Virginia Historic Landmark; the colonial town of Newcastle was located on the premises. During its heyday in the 18th century, Patrick Henry had lived there and even marched against the English Lord Dunmore in 1775 after Dunmore attempted to confiscate the gunpowder of the colonist. Soon after, the town nearly became Virginia's state capital, losing by only a few votes to Richmond. It was then that the Pamunkey River exerted her force on the burgeoning town. The river had, in many respects, been the source of Newcastle's good fortunes, but now the river brought Newcastle's fall as silt filled the shipping channels to the Chesapeake Bay, ending the town's lucrative trade and fast growth. The area fell back on its agrarian roots, and by the mid-19th century, a farmer named Edmund Ruffin had moved to the area and had begun groundbreaking experiments, with fertilizers, crop rotation, and drainage and plowing techniques in an effort to revitalize the region's depleting soul. Later, Ruffin would be dubbed 'the father of soil chemistry' and be invited to fire the first cannon at Fort Sumter in appreciation for his contributions to Southern farming. Ruffin was also known for being a strong supporter of slavery and Southern succession. Historians call Ruffin's gun-inflicted suicide the 'last shot of the Civil War,' and it has long been associated with the lost Southern cause and the Southern code of honor, the inability to accept a life of defeat. His farm would be worked and passed down for five generations. Henry Broaddus inherited the land as a 5-month-old child following the death of his father. Though his own man, Broaddus seems to conjure his forebear Ruffin's spirit in tenacity. As during the 1700s, urbanization again encroaches in Hanover County, this time propelled by a Board of Supervisors intent on building a new waste treatment plant. The decision was made in the early Nineties, the County Board fully expecting that their population boom would continue, at some point necessitating their own plant, as they would exceed the amount of sewage they could process with neighboring Henrico. Until that time, Hanover courts processed sewage at a plant in neighboring Henrico and operated by that municipality. To meet the needs of anticipated new residents, the county would need its own plant. Also, revenues were at stake; those of the businesses that could be were lured in to replace, even overtake, what was a well-located but still-rural agricultural region. In any case, the plant would be necessary. Long-time residents recall this decision as being the first in which the County set against the wishes of many of its residents. A citizens' group studying a possible waste plant concluded that, even if construction was absolutely necessary, the plant should not affect the river. As growth slowed later into the decade and support for the plant further waned , the Board of Supervisors continued to search for a suitable place to discharge treated sewage from the new plant. Over local opposition, they chose the Pamunkey River. Also, they planned to build the plant itself in a wetland, so that gravity would carry the raw sewage to the plant for treatment. In the 1980s, the Pamunkey had been dubbed 'the most pristine freshwater marsh habitat on the entire East coast.' Its fate became (and remains today) uncertain. The Board toured the Broaddus property in 1997 to examine the part of the 800-acre farm bordering the river. They identified three potential places on the river for the actual discharge, each of which would require the installation of thick pipes crossing the property. One of the proposed pipes directly bisected the land. Broaddus, of course, was concerned: 'From any landowners perspective, you would want it to be on the extremity of your property.' The county's own report claimed that the sight downstream of a fishing hole on the periphery of Henry's property, was the best location, technically speaking. Broaddus was still unhappy with the plans. 'We were quoted as saying some pretty militant things that made it clear that we weren't going to cooperate with them.' It was then that the County modified their proposal for the central site. Henry and his mother Frances Broaddus-Crutchfield sued the county, claiming that it was trying to coerce them into selling the land it desired by punishing them for not cooperating. 'We were being punished for exercising free speech,' says Broaddus. The family dropped the case soon afterwards, when Mr. Broaddus and his lawyers decided it would be next to impossible to prove. 'It was not a strong enough case to warrant pursuing.' Nonetheless, the first legal salvo had been fired. In order for the plant to come to be built, the County would need permits from three regulatory agencies—the State Water Control Board, Virginia Marine Resources, and the Army Corp of Engineers. Each of these permits is meant to ensure the environmental responsibility of a project, particularly one to be built on wetlands and discharged into a river. With these three, one would expect that only an environmentally feasible project could make it through the system, but in this case, Mr. Broaddus claims that the 'principles of justice...are being utterly corrupted' on a number of fronts, starting with the original location choice of the outfall, and seeping through every other aspect of the wastewater project. The State Water Control Board's job is to determine the quality of the discharge coming from a waste outfall. During the comment period prior to the issuance of Hanover County's permit, Broaddus and other opponents of the project attempted to sway the Board's decision. 'We had a comment period with the Virginia [Department of Environmental Quality] regarding the state water control, so we were scrambling through these regulatory agencies trying to convince them not to issue the permit.' The Board granted a permit to Hanover in April of 1999, even though the SWCB was aware that the Pamunkey had begun to fail other water quality standards as a result of discharges elsewhere. Within two weeks of the permit having been issued, the US EPA designated the river to be 'impaired,' especially since its dissolved oxygen levels were extremely low. There are also concerns about the river's salinity. 'Put 30 MG of the clearest spring water into that river every day and you're still going to mess things up in dramatic ways that are difficult to model,' says Broaddus. Broaddus again went to court and sued the SWCB over its granting of a permit for the proposed project without properly assessing the project's impact on the river. He was, however, thrown out of court when a judge ruled that he did not have standing in the matter. The judge also ruled that the SWCB could not be held accountable in any case as 'the SWCB governs only the water quality or permit limits that govern what the chemical composition of the effluent is that comes out of the pipe.' The adverse ruling was not an isolated case. Virginia has a history of throwing out such claims on issues of standing, a practice for which the US EPA, which oversees the mother organization of the SWCB, had severely chastised the state years earlier and even threatened to revoke the SWCB's ability to issue such permits. Again Broaddus backed down. 'They were still dealing with a na've family at that point,' he says. The next legal battle occurred in May of 2000, when Mrs. Broaddus-Crutchfield, received a terse letter from Hanover County explaining that there would be an eminent domain hearing in two weeks, and the county would vote whether or not to condemn and seize the portion of Newcastle farm required for the planned discharge system. The county employed a 'quick-take' tactic, by which they could acquire the land and sort out financial recompense at a later date. The grounds for this involved the perceived immediacy of the project, which, the county claimed, made it impossible to enter into a regular and often drawn-out eminent domain hearing. Broaddus took the county to court again, challenging the legality of the quick-take procedure. The judge in the case resorted to looking up several specific words of the relevant regulation in Black's legal dictionary before he ruled in favor of the county. 'Necessity,' as used in Virginia's quick-take statute, is defined as being 'reasonably necessary for public good.' The county had leapt over that low bar easily. As Henry's lawyers explained to him that 'the standard for proving that eminent domain has not been used for public good is that you have to show that it was essentially a crooked deal whereby government officials directly profited by virtue of that taking.' Thus, the standards between a regular eminent domain and a quick-take are largely non-existent, at least in Virginia. Again, Broaddus did not appeal the decision, at the suggestion of his lawyers. The second major permit the county's plans would require was from the Army Corps of Engineers as the Corps must approve any project that impacts wetlands. The county segmented the project into two parts, the interceptor, and the plant and discharge and applied for two separate 'Nationwide permits.' The interceptor portion would be responsible for carrying the sewage to the plant, following a creek bed and using gravity to bring waste to the plant, built on the low-lying wetlands. By applying for two permits for what really was a single project, the county was able to contend that each of the improvements was, in and of itself, a public improvement and, more importantly, avoid strict wetland use regulation. In other words, even without any means of bringing waste to the plant (because this was covered in a separate permit), it was still beneficial to the public. If the two permits had been combined, then the overall project would have impacted enough wetland acreage to force the county to apply for an 'Individual' permit, which would require much tougher scrutiny on the part of the Corps and a public comment period, the results of which the Corps would have to take under consideration in making its decision. The county avoided the strictest regulations. The Corps awarded the permits just two weeks after the condemnation hearing. Mr. Broaddus once again sued, this time over the legality of the county's splitting the project in two for the sake of scoring permits. With no projected time for a response from the judge, he and his mother were in a standstill pattern as the project proceeded. In early 2001, the County received the third and final permit it needed to begin the project from the Virginia Marine Resources Commission. At nearly the same time, the US Geological Survey reported that the Pamunkey had led all other Chesapeake Bay tributaries in the increase of wastewater discharge with an astounding 457% increase. Unfortunately for Broaddus, this new information just missed the VMRC's comment period. 'At that point we really didn't have the body of information that we do now,' Broaddus laments. The state's environmental agencies and the US Army Corps of Engineers, both known for their toughness in granting permits to private dischargers, rolled over for the county of Hanover. Without a serious analysis of the impact on the Pamunkey River, the project was approved and ready to begin. The County started construction at Newcastle Farm on March 7, after winning an injunction against Mr. Broaddus, who had organized a number of people to prevent the construction workers from accessing his property. He was ordered not to impede the construction and could only watch from his Airstream trailer as the workers maneuvered their equipment across the land that had been in his family for five generations and towards the river. '[T]he Corp's determination is at odds with reality' wrote US District Judge Robert Payne in his ruling against Hanover and the Army Corp of Engineers in November 2001 about the Corps having approved Hanover County's segmented permits . He berated the permits themselves as 'belated contrivance of expediency' and 'remarkably illogical.' 'The decision [to issue the permits] is such a drastic departure form longstanding plans and from reality,' he concluded. Instead, they regrouped and pressed forward. The Board decided that it could continue building certain parts of the project, those not affected by the Corps permits. The county, after all, now owned the land, having seized it, and, so long as wetlands were not harmed, were beyond the Corps' jurisdiction. Further, by sinking money into the project, the county might sway the Corps in their favor, as rejecting the permits would ensure that the $16 million sunk into it so far would be entirely wasted. Though, the Army Corps is not supposed to take this into consideration while judging the permits (they are required by law to proceed as if nothing has been built). Broaddus worries that, with so much money tied up, the Corps will be 'a little less principled about what the intent of the law is. You get pragmatic.' Within the month, Judge Payne again ruled in Broaddus's favor, granting an injunction against the County's continuing construction until the Army Corps issued a new permit following due process and consideration. And with that, the bulldozers were silenced at Newcastle. After the decision, Hanover Board of Supervisors Chairman Jack Ward said in the Richmond Times-Dispatch, 'I think he's wrong, for what it's worth. I think everything we've done so far is right...For him to issue an injunction like this is just ridiculous.' The Hanover County Attorney, Sterling Rives, also weighed in, 'Stopping will do nothing to protect the environment. The wetlands have already been impacted by the construction. The only effect that this decision will incur is unnecessary expenses.' By most estimates, these expenses are in the range of $200,000 each month that the project is idle. Most citizens have directed their anger at the County Board for pursuing such a questionable project. Broaddus goes so far as to rationalize the lull in construction as a savings. 'Its actually saving the taxpayers of Hanover County a great deal of money that would otherwise have been sunk on something that cannot be legally operated,' he says. 'We're encouraging the county to use its money for these regionally cooperative solutions for which the dollar goes farther, anyway.' At an apparent loss for other recourse, the County has reapplied for its permits, accepting that the project will have to bear tougher scrutiny and a public comment period. The County Board has also come up with alternate plans to eliminate the interceptor entirely. In its place, the county proposes a pump station that will not impact any wetlands. But whether the interceptor has actually been abandoned is in doubt. First, the pump station can only provide 10 MGD to the plant, which is still designed to process 30 MGD at some point in the future. Second, the county refuses to give back the easements it acquired from citizens for the gravity interceptor, which would be unnecessary under the new schema plans. Finally, a private developer building houses has already built a section of the gravity interceptor, conveniently, to the county's original specifications and paid for with county money. 'It's a continuation of the shell game that Hanover [County] has played,' says Broaddus. But even if the county has abandoned this plan, Broaddus and his lawyers still believe the entire project may still be illegal. With a pump station, the treatment plant itself need not be located in the wetlands; the sole reason for placing it there was that wetlands are lowest point in the area, needed for a gravity interceptor. If there is a pump station, though, then the plant is in the wrong place entirely, as it is illegal to unnecessarily impact wetlands. The county has also appealed Judge Payne's original decision, his decision to issue the injunction, and his decision not to dissolve the injunction against the county. Broaddus accuses the county of 'conceding certain points in order to be able to litigate them and challenging them in other proceedings.' For the time being, Broaddus is content to wait on the Army Corps, ensuring they 'take the time necessary to ensure a thorough review.' In the mean time, the county's costs escalate by the day, angering many citizens in the area. While the future of Newcastle and the Pamunkey are, without a doubt, still in jeopardy, Broaddus is optimistic, especially with the attention his battle has garnered. 'No matter what political ideology you embrace, if you're true to it, this kind of thing is unconscionable.' Those on the far left are appalled by the plant's environmental impact undertaken for the sake of industrialization, while those on the far right are made livid by the twisted manner in which the legal system has subverted an individual's property rights. In the end, Broaddus puts faith in the Pamunkey River. Many men, including his forebears, have attempted to control the river before, 'and ultimately it seems the river has always managed to win.' |
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