Thomas King and Nancy Howard for reviewing prior to publication.
July 1, 2003
July 1, 2003
The Mattaponi River, considered by the Mattaponi Tribe in Virginia to be the place where life begins, will be impacted by a proposed reservoir and dam project that will pump water from the river and could damage its ecosystem. Reports by the U. S. Army Corps of Engineers and other environmental agencies have disagreed over the extent of the environmental and cultural damage of the project, while the Mattaponi remain opposed. “This river is the lifeblood of this reservation because it’s allowed our people, our culture, and this reservation to survive. Whoever controls water in an area controls everything else,” says Carl Lone Eagle Custalow, assistant chief of the Mattaponi.
History of the Conflict
The Mattaponi River flows for 85 miles across the coastal plain of eastern Virginia, before joining the Pamunkey to form the York River. The Cohoke Creek lies between the two rivers and is the site of a dam and associated reservoir proposed by the city of Newport News, Virginia to support the region’s growing demand for water. In the early 1990s the city of Newport News and a regional water study group concluded that the need for water in the area would substantially increase in the next few decades and that the Mattaponi River was the most likely source of water for a new reservoir. They propose a pipeline that would take up to 75 million gallons of water a day from the river and store it in a 1500-acre reservoir, to be used by the city. The proposed King William Reservoir would fill over the Cohoke Creek and surrounding wetlands, and reach out to a point 2 1/2; miles west of the Mattaponi Reservation, which lies on the western bank of the Mattaponi River.
The Mattaponi River, and the shad fish which spawn there, have been central to the physical and cultural life of the Mattaponi tribe for thousands of years. Every spring, Mattaponi children still learn from their parents how to fish for shad. It is an activity that helps maintain cultural continuity from generation to generation, and brings tribal members home at least once a year. It is also a matter of subsistence for those tribal members who live on the reservation; fish account for 30-40% of their diet during the spring, and money from fishing supplements their regular income. Tribal leaders envision a future when they will expand their local fish hatchery, which will help bring back tribal members to the reservation and restore the shad population closer to previous levels. Shad fishing is a seasonal activity dependent on a balance of fresh and salt water in the river. The reservoir project would divert fresh water, potentially causing salt water to intrude up the river and thus forcing the shad to spawn elsewhere—though the probability of this continues to be debated by experts. If the fish spawning grounds move, both the current practices and future plans of the Mattaponi would be greatly impacted. Overall, the tribe believes that the presence of the reservoir will destroy the natural flow of the river and the ecosystem it supports. Two other tribes in the area, the Pamunkey and the Upper Mattaponi, also have historic ties to the river area and have been involved in the negotiations to protect culturally significant places near the Mattaponi.
Along with the hatchery plans, the tribe hopes to reclaim some of its lost reservation land for housing and a new Living History Center which will help educate new generations of Mattaponi and the wider world about Mattaponi customs, including fishing, pottery, beadwork, and dancing. The Mattaponi Reservation is one of the oldest reservations in the United States, established by an act of the Virginia General Assembly in 1658, and now covers just 150 acres. Much of the area that would be affected by the reservoir was designated as a buffer zone between the Mattaponi and the English under a 1677 treaty with King Charles II but is not part of the reservation proper. The tribe has referred to this use clause in a lawsuit against the project but the Virginia attorney general’s office maintains that this part of the treaty is outdated.
The Nature Conservancy describes the Mattaponi River and associated waterways, which flow into the Atlantic Ocean, as “the heart of the most pristine freshwater complex on the Atlantic Coast” and American Rivers named the Mattaponi as one of the 20 most endangered rivers in 1998 because of the proposed project. In addition to the shad population, environmentalists worry about possible relocation of bald eagles and destruction of several delicate plant species. A major issue has been the 400 acres of wetlands that would be destroyed in the process of flooding the valley. While the city has agreed to create two acres of wetlands for every acre destroyed, there is some disagreement about whether these new wetlands are an adequate replacement for the old ones. Local residents are also a concern about dioxin leaking from a nearby landfill, which could get into the water and into the fish consumed by the Mattaponi and others. However, an U. S. Environmental Protection Agency study found that the landfill will cause no harm to the water.
In March 2001, after a number of studies, Col. Allan B. Carroll of the local district Army Corps of Engineers recommended that the Corps deny the permit for the water project. Col. Carroll wrote 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.” Based on the projected harm caused to wildlife, the U.S. Fish and Wildlife Service also recommended denial of the permit.
When the permit was denied in the Army Corps’ local office, the city of Newport News and former Virginia Governor Jim Gilmore appealed the decision to the North Atlantic Division of the Corps, where in October of 2002 the Division overruled the local office and said that the permitting process should continue. The regional office of the Corps is requiring the city to update and finalize plans to replace destroyed wetlands, protect the coast, and work with concerned tribes to mitigate the cultural impacts of the project. Brig. Gen. M. Stephen Rhoades concluded that the reservoir is “the least environmentally damaging practicable alternative.” While some effects may be negative, he expects the area to be protected from more intrusive development in the future, and that the creation of new wetlands will counterbalance those destroyed. Based on a study funded by the city, Rhoades anticipates that the impact on shad spawning will be minimal. While Carroll recommended a denial of the project permits due to cultural impact, Rhoades noted that this consideration does not require the Corps to deny the permit, but is instead one of many issues to be considered before making a decision. Other regulatory agencies have been equally divided: the State Water Control Board approved the project, but the Virginia Marine Resources Commission (VMRC) denied a necessary permit. When the VMRC denied the permit based on concern about the shad spawning, the city offered a compromise in which they would not pump water during the spawning season.
The Mattaponi continue to claim that the damming of the creek and the creation of the reservoir would flood wetlands, streams, ancestral sites, and wildlife habitat. They unsuccessfully filed suit against the State Water Control Board’s decision. The state Department of Environmental Quality still has to approve the project in terms of its impact on the Atlantic coast. The City of Newport News made progress when the Division Army Corps ruled that the process should go forward, a decision that requires further research into the possibilities for mitigation. Questions to be resolved include (1) whether or not the projected need for water in the region is great enough to justify the environmental impact; (2) the extent of the environmental impact, most importantly on reduced wetlands and the shad population; and (3) whether or not the Mattaponi can be compensated for the cultural and spiritual loss they may suffer as a result of the flooding of burial grounds and the effect on the shad harvest.
This last question is to be determined by the Army Corps, the federal Advisory Council on Historic Preservation and the Department of Historic Resources. The cultural resource consultation process delineated by Section 106 of the National Historic Preservation Act requires government agencies to consult with Native American tribes to consider the effects of permitted activities on culturally significant places. With regards to the reservoir project, this process has included state and federal agencies, the three tribes, the City of Newport News, the Virginia Council on Indians, and the United Indians of Virginia. Before the Army Corps district office halted the permitting process, the city had agreed to treat all sites as if they were eligible for the National Register of Historic Places for the purposes of mitigation. This acknowledgement allowed the city to initiate consultation and studies to determine how to mitigate the impact of their proposed activities on the Mattaponi River area. The city and the tribes were considering a wide range of mitigation options, but due to the tribes’ request to keep these negotiations confidential, the specific mitigation proposals cannot yet be disclosed. Before the permit was suspended, negotiations with the tribes had progressed to the point of generating a draft Memorandum of Agreement. As of this writing, following the decision of the Army Corps Division office to resume the permitting process, meetings between the city and the tribes have recommenced.
The VMRC’s decision to deny their permit based on the impact to the shad also remains unresolved. The city has requested a hearing to examine the environmental data on which the VMRC based their decision, but the VMRC refused in spite of a request by the Virginia Attorney General to hold the hearing. The city is now going to court in an effort to force the VMRC to hold a hearing.
The reservoir situation is an example of a project which has been thoroughly researched, yet the concerned parties have not been able to agree on the status of the scientific evidence. The City of Newport News has offered some compromises; however there is contradictory evidence and a basic disagreement about priorities between regional governments on the one hand, and tribes and environmental groups on the other. With respect to sacred land, one issue is the lack of clear regulations for how to handle Native American concerns. While the two Army Corps offices are agreed in their commitment to taking historically or culturally significant landscapes into account before issuing the permit, there is no agreement on how this is to be done, and what constitutes a fair and reasonable effort. Negotiations between the city and the tribes that initially seemed promising are now at a standstill, while the negative publicity and price tag of the project continues to grow.
“Reservoir Clears Key Hurdle.” Daily Press, Oct. 2, 2002.
“A Collision Between Past and Future in Virginia Water War Separates Indian Tribes, Downstream Residents.” Washington Post, May 19, 2001.
“Clinging to Tradition, Mattaponi Fight Reservoir.” Washington Post, April 20, 1997.