2005-04-18
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 1)
A joint meeting and work session of the Albemarle County Board of Supervisors, the Albemarle
County Service Authority (ACSA) Board of Directors, the Charlottesville City Council, and the Rivanna
Water & Sewer Authority (RWSA) Board of Directors was held on Monday, April 18, 2005, at 10:00 a.m. in
Conference Room A at the Albemarle County Office Building - 5th Street, 1600 5th Street, Charlottesville,
Virginia.
The purpose of the meeting was to meet with federal and state regulatory agencies of interest to
entertain questions and have discussion on the permitting process for the Community Water Supply Plan.
BOARD OF SUPERVISORS PRESENT: Mr. David P. Bowerman, Mr. Kenneth C. Boyd, Mr.
Lindsay G. Dorrier, Jr., Mr. Dennis S. Rooker, Ms. Sally H. Thomas and Mr. David C. Wyant.
ALBEMARLE COUNTY SERVICE AUTHORITY PRESENT: Mr. Robert Humphris, Mr. Robert
Larsen, Mr. Hollis Lumpkin, Mr. J. Randolph Parker, Mr. Clarence Roberts and Mr. Donald Wagner.
CHARLOTTESVILLE CITY COUNCIL PRESENT: Dr. David Brown, Mr. Blake Caravati, Ms.
Kendra Hamilton and Mr. Kevin Lynch.
CHARLOTTESVILLE CITY COUNCIL ABSENT: Mr. Rob Schilling.
RIVANNA WATER & SEWER AUTHORITY BOARD OF DIRECTORS PRESENT: Mr. William
Brent, Mr. Michael Gaffney, Ms. Judith Mueller, Mr. Gary O'Connell and Mr. Robert Tucker.
FEDERAL REGULATORS PRESENT: Mr. James Brogdon and Mr. Mike Schwinn - U.S. Army
Corps of Engineers (COE); Mr. Peter Stokely - U.S. Environmental Protection Agency (EPA).
STATE REGULATORS PRESENT: Ms. Lynn Crump - Virginia Department of Conservation and
Recreation (DCR); Mr. Robert Cooper - Virginia Dam Safety and Floodplain Management (DSFM); Dr.
Ellen Gilinsky, Mr. Joseph Hassell, Mr. Scott Kudlas, Mr. Terry Wagner, and Ms. Brenda Winn - Virginia
Department of Environmental Quality (DEQ); Mr. John Kauffman, Ms. Amy Martin, and Mr. Brian Watson-
Virginia Department of Game and Inland Fisheries (DGIF); Mr. James Moore and Mr. Ron Conner - Virginia
Department of Health (VDH); and Mr. Tony Watkinson - Virginia Marine Resource Commission (VMRC).
ALSO PRESENT: Ms. Nancy Barker, VHB Project Team; Mr. Aaron Keno, Gannett Fleming Vice
President and Project Principal; Mr. Larry W. Davis, County Attorney; Ms. Ella W. Carey, Clerk to the Board
of Supervisors; Ms. Debi Moyers, Senior Deputy Clerk to the Board of Supervisors; Mr. James Bowling,
ACSA Legal Counsel; Ms. Susan Rohm-Briggs, ACSA Administrative Office Associate; Mr. Craig Brown,
City Attorney; Ms. Jeanne Cox, Clerk to City Council; Mr. Tom Frederick, RWSA Executive Director; Mr.
William Ellis; Legal Counsel to RWSA on the Community Water Supply Plan; Mr. Kurt Krueger, RWSA
Legal Counsel; Dr. Robert Wichser, RWSA Director of Water and Wastewater Operations; Ms. Jennifer
Whitaker, RWSA Chief Engineer; and Ms. Mary Knowles, RWSA Executive Secretary.
Agenda Item No.1. Call to Order.
Mr. Michael Gaffney, Chairman of the RWSA Board of Directors, welcomed everyone in
attendance to this special joint meeting and work session of the Albemarle County Board of Supervisors,
ACSA Board of Directors, Charlottesville City Council and the RWSA Board of Directors. He restated that
the purpose of today's meeting was to meet with federal and state regulatory agencies of interest to
entertain questions and have discussion on the permitting process for the Community Water Supply Plan.
He stated that the first item of business would be for the Chairman of each board to call this meeting of its
board to order.
The meeting of the RWSA Board of Directors was called to order at 10:40 a.m., by the Chairman,
Mr. Gaffney. He noted that a quorum was present.
The meeting of the Board of Supervisors was called to order at 10:40 a.m., by the Chairman, Mr.
Rooker. He noted that a quorum was present.
The meeting of the City Council was called to order at 10:40 a.m., by the Mayor, Mr. Brown. He
noted that a quorum was present.
The meeting of the ACSA Board of Directors was called to order at 10:40 a.m., by the Chairman,
Mr. Parker. He noted that a quorum was present.
Agenda Item No.2. Welcome. Michael Gaffney.
Mr. Gaffney reported that he would be leaving at 12:30 p.m. as his attendance was required at
another meeting that began at 1 :00 p.m. Mr. Gary O'Connell had agreed to adjourn the RWSA Board of
Directors' meeting in his place, if that became necessary.
Mr. Gaffney next commented on the challenges associated with arranging the meeting table to
accommodate the large size of the group. He requested that all speakers stand and direct their remarks
into one of the microphones so that everyone seated at the table and in the audience could hear their
comments.
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 2)
Mr. Gaffney thanked everyone for their attendance, especially those who had traveled from out of
town, which he felt demonstrated the importance of the meeting. RWSA appreciated their assistance
during the water supply planning process.
Mr. Gaffney further stated that RWSA staff and its consulting team have worked extremely hard on
this project for over a year. He publicly thanked the staff for their very dedicated work under sometimes
stressful circumstances. Their efforts have led to the completion of numerous reports and technical
memoranda, several presentations to the RWSA Board of Directors, six well-attended public outreach
meetings for public education and input from which many positive comments have been received, several
programs at community group meetings, regulatory agency meetings, and many discussions with the
consulting team. From his observations during this process, Mr. Gaffney felt that the staff was dedicated to
carry out the mission of the RWSA Board of Directors to find a solution to the community's water supply
needs that took into account local public opinion and satisfied the requirements of local, federal, and state
regulations. Those who had attended the RWSA Board of Directors meetings and the numerous public
outreach meetings would attest that there had been considerable discussion about those regulations and
the role in defining this process. Some of the questions posed to the regulators today had already been
asked of RWSA staff and its consulting team in previous meetings. He felt this was an opportunity to hear
directly from the regulators on those issues.
Mr. Gaffney added that as the Boards and Council would be making very critical decisions
concerning the community's future water supply, it was deemed important to review certain issues related to
this process in order to confirm information or learn of opportunities not previously known.
Mr. Gaffney reiterated that RWSA had not made a decision at this point on a preferred alternative
and was still considering four "short-list" concepts as possibilities while seeking concurrence with City
Council, Board of Supervisors and ACSA Board of Directors.
Mr. Gaffney explained that as part of a prepared list of questions and answers, RWSA's consulting
team and the Community Water Supply Plan attorney offered an opinion on March 3, 2005 that was still
being considered but had not been acted upon at this time by any of the joint local Boards and Council
present today. A key purpose of this meeting was to permit the Board and Council members to clarify
some questions with the regulators of interest and engage in an important dialog before making decisions.
Mr. Gaffney then welcomed the citizens in attendance at the meeting and thanked them for their
interest. RWSA had provided previous opportunities for public comment and would be planning one or
more further avenues in the future.
Agenda Item No.3. Purpose and Desired Outcome of Meeting, Michael Gaffney.
Mr. Gaffney explained that this meeting was not designed as a public forum. The agenda and
purpose today was to hold a discussion involving the joint Boards and Council, the regulators, and the
RWSA staff on questions concerning the water supply planning process that members of the joint Boards
and Council had at this point in the process. An opportunity was provided for the members of the joint
Boards and Council to submit advance questions for the regulators. Questions received by last Monday
were distributed to the regulators prior to this meeting. A handout listing those questions had been provided
on the table located in the lobby entrance to the conference room. In fairness to those who submitted
advance questions, the prepared list will be addressed first. The floor would then be opened up for
additional discussion and questions from the joint Board and Council members. As questions were asked,
the regulators were requested to decide among themselves who was in the best position to answer a
particular question, or in some cases, if more than one person could contribute to the issue under
discussion. A limited amount of time would be permitted for follow-up discussion from Board and Council
members and RWSA staff to ensure that responses are understood and clarified before proceeding to the
next question. He asked that the discussion be focused and succinct as possible since there were a
number of questions and limited amount of time to cover all the issues.
Mr. Gaffney reported that RWSA was notified at the last minute that the Virginia Department of
Historic Resources (DHR) had canceled their plans to participate today. They did provide an e-mail
response to the prepared questions for which they felt they could contribute. A copy of their response was
being provided to each of the Board and Council members.
Mr. Gaffney added that the joint Board and Council members were appreciative that the regulators
were present today to answer their questions while at this point in the planning process when the
investigations had not been completed and a preferred alternative had not yet been selected. It was
recognized that this might limit the quantity of information that could be provided, but the Board and Council
members were grateful for what the regulators could offer to assist with the decision-making process.
Prior to proceeding to the first question, Mr. Gaffney recognized Mr. Ken Boyd, Ms. Sally Thomas,
and Mr. David Wyant for their contributions to the list of prepared questions.
Agenda Item No.4. Discussion of Prepared Questions from Local Board Members for Regulatory
Agencies.
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 3)
Agenda Item No.5. Discussion of Additional Questions from Floor.
Mr. Gaffney then read the first question as follows:
1. For each regulatory agency, "What role will your agency play in the application process?"
(Regulators answering this question should include the Albemarle County Community
Development Office.) Is there one agency that determines or controls the final answer
more than other agencies?
a) What is the timeframe for federal and state review and approval, once a
complete application is received? Are the reviews by the regulatory agencies
concurrently or in succession?
b) Is VDOT another agency that will need to have input at the same time as the other
regulatory agencies? What role do they play, especially in the Ragged Mountain
reservoir option?
Mr. Gaffney inquired as to which regulatory agency wanted to be the first to respond to the
question.
Ms. Thomas stated that she pictured this question as an opportunity for the joint Boards and
Council to hear briefly from each regulatory agency in attendance on their role in the overall process.
Mr. Gaffney concurred with Ms. Thomas's suggestion and asked if a regulator from each of the
agencies represented at the meeting could briefly outline their role in the water supply permitting process
during their response to the first question.
Mr. Joe Hassell (DEQ) stated that his agency was responsible for issuing a Virginia Water
Protection permit, which dealt with wetlands, streams, and instream flow, and also the amount of water that
could be withdrawn from any particular project.
In reference to item 1 a), Mr. Hassell responded that DEQ preferred to issue approval within a year
of receiving a complete application, but this was not always possible.
Concerning item 1 b), Mr. Hassell explained that DEQ was required by state law to seek the
recommendations of five specific state agencies and any other interested agencies. VDOT would fall in the
latter category. If RWSA submitted an application on the two projects that involved raising the dam, then
DEQ would request VDOT's recommendation and would be required by state law to give VDOT's
recommendation full consideration.
Referring back to item 1 a), Mr. Hassell added that reviews by regulatory agencies are considered
concurrently. There was a new state law that was passed this year that required the Virginia Marine
Resources Commission (VMRC) and DEQ to jointly advertise the application and to act within one year, as
much as possible, on the completed application and to coordinate the permitting process. DEQ also
coordinated with the U.S. Army Corps of Engineers as well.
Mr. Tony Watkinson (VMRC) stated that his agency was responsible for issuing permits for projects
that encroached upon state-owned submerged lands, which would include most waterways throughout the
Commonwealth of Virginia, unless the bottom of the stream bed was rendered to an individual by some
special legislation or dated back to a King's land grant prior to the founding of the Commonwealth.
Reservoirs were authorized by statute, and under Virginia code sections, VMRC did not issue permits for
reservoirs. VMRC did issue permits for other activities that resulted in encroachment upon state-owned
submerged lands. Of the four concepts under consideration, water withdrawal structures in the James
River would require permits from VMRC, if that were the preferred alternative, as well as pipeline crossings
over various tributaries and waterways leading throughout the distribution system.
Mr. Watkinson also stated that VMRC conducted what they called a "public interest review." Upon
receipt of a completed application, a public notice would be posted in concurrence with DEQ based on new
state law requirements that would become effective July 1, 2005. Public comments would then be
accepted. VMRC would also seek input from other regulatory agencies during their permit review process.
The effects of the project on other reasonable or ongoing uses of state-submerged lands would be
evaluated, such as fishery resources, adjacent properties, and water quality. These studies would be
conducted consistent with their requirement to consider the public trust doctrine and the public use of those
waterways.
Mr. Watkinson added that from his perspective, VMRC would have the most involvement with the
James River project if that were the selected alternative. His agency would examine the effects of that
alternative on water quality, fishery resources, and the habitats for those particular fisheries.
Mr. Mike Schwinn (COE) stated that Mr. James Brogdon who worked out of their Staunton office
was also in attendance. COE regulated the discharge of dredge and fill material under Section 10 of the
Rivers and Harbor Act and Section 404 of the Clean Water Act.
Mr. Schwinn further stated that once his agency received a completed application, the goal was to
complete the processing of the application within 120 days. Depending on the project, and the extent and
nature of the impacts, the review and approval process could take up to a year or longer to complete. COE
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 4)
coordinated extensively with DEQ during the permitting process, and application reviews were conducted
concurrently in order to establish a parallel tracking process.
Mr. Schwinn thanked the local Boards and Council members for including COE in this meeting.
Mr. Jim Moore (VDH Office of Drinking Water) stated that his agency did not have any primary
involvement in the application or permitting of the raw water source. VDH provided input and comment to
DEQ. Once a raw water source had been chosen, the Office of Drinking Water's focus would be on the raw
water pumping, treatment, and distribution components of the project. His agency would need to issue a
construction permit for the raw water intake, the pumping station, and the treatment facilities. Once this had
been completed, the Office of Drinking Water would issue an operating permit for the waterworks facility.
His agency has attempted to keep up to date on this planning process and had provided input and
comment where applicable.
Mr. Peter Stokely (EPA) commented that his agency did not issue any permits. EPA reviewed the
permit application as it pertained to the Clean Water Act, Section 404 Permit, with COE. EPA's review
process began once public notice had been issued and generally involved a 30-day period. The two tests
that EPA conducted during its evaluation of the permit application to ensure that it was in compliance with
the Clean Water Act entailed meeting the water dependency requirement and the regulation that stated
only the "least damaging, practicable" alternative could be permitted. He further explained that "least
damaging" referred to the impacts to aquatic resources, wetlands, and streams. As part of that process,
EPA would review the environmental documentation and the alternatives' analyses in order to determine
which alternative was the "least damaging" overall. In summary, he stated that EPA had a review role and
commented directly to COE.
Ms. Lynn Crump (DCR) stated that DCR was one of the five agencies to which DEQ requested
comments. Her particular role pertained to scenic and recreation resources protection. Three rivers within
this whole study were designated scenic rivers. Her agency would be providing comments relative to that
issue. DCR also examined recreational opportunities to ensure that the minimum water flow could support
those activities during prime-time recreational seasons. Her agency did not have any legal compliance
requirements, and the scenic river legislation only stated that scenic rivers cannot be impounded without the
Governor's approval. Within DCR, Natural Heritage would also be providing comments concerning the
environmental impacts for native and protected species.
Mr. Robert Cooper (DCR's Dam Safety and Floodplain Management Department) stated that his
agency did not have any regulatory role in the Community Water Supply Plan process. Their role was to
bring the upper and lower Ragged Mountain Dams into compliance with state law.
Ms. Amy Martin (DGIF) commented that her agency also did not have any regulatory authority over
the projects being considered in the water supply plan. DGIF did provide comments to the permitting
agencies regarding impacts to the native wildlife species.
Mr. Gaffney thanked the regulators for providing a brief overview of each agency's role in this
process. He then asked Ms. Thomas if she had any further comments before proceeding to Question No.
2.
Ms. Thomas inquired if there was a representative from Albemarle County's Community
Development Office in attendance. She was informed that no one from that Department was seated at the
meeting table.
Mr. Gaffney then read Question No.2 as follows:
2. Can we obtain an extension on the deadline date for the Ragged Mountain Dam
replacement decision? If so, what do we need to do to obtain the extension? As elected
officials, we feel public pressure to complete the planning process and we have little desire
to prolong it, but we do want to have the information in hand that will make our decision an
intelligent one and allow time for citizen input.
Regulators may want to discuss with us alternatives to having our planning time line driven
by one specific facet (the spillway's condition).
a) Are there interim safety measures and/or other good faith efforts that this community
can undertake to warrant a request for an extension of the Ragged Mountain
permit?
b) We understand that there are anticipated changes to the state's dam safety
regulations. Will those impact our situation and/or the deadline?
c) Some of us are aware that the long-range water supply permitting/planning
process is being revised this fall, but we don't know if the proposed changes are
impacting our own planning process and its time line. We'll appreciate the
regulators discussing this issue and any other pending issues of which we should
be aware that may impact our planning process.
Mr. Cooper referred back to the inspection report that was done in 1978, which deemed the
emergency spillway inadequate because it only allowed passes of a 25-year probable maximum flood
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 5)
(PMF) event. Since that report, the Dam Safety Board (the Board) had been issuing two-year conditional
certificates, with the prominent condition being to resolve and rectify the inadequate spillway capacity. On
July 15, 2004, the Board issued a one-year conditional certificate for both of the Ragged Mountain Dams,
which expires on July 30,2005. In addition to the primary condition, the Board specified that the design for
meeting their requirement be presented with a time table for action by July 30, 2005. As of today, Dam
Safety had received no documentation that dealt with the Board's request concerning the conditional
certificate. In order for the Board to renew the conditional certificate, Dam Safety and Floodplain
Management required a letter requesting that extension. His agency stipulated that within that letter, an
explanation as to why the goals of the last conditional certificate had not been met and proof of the owner's
proceeding with the necessary corrective action. After review of that request, and if the information was
adequate, a recommendation would be presented to the Board for approval.
Mr. Cooper further stated that in response to item 2b), there have not been any changes to the
state's dam safety requirements since July 1, 2002.
Mr. Gaffney further inquired if any additional changes have been proposed.
Mr. Cooper replied that there had not been any to date.
Mr. Lynch stated that there had been an awareness of safety considerations concerning the
Ragged Mountain Dam spillway. One of the long-term water supply solutions under consideration
concerned raising the Ragged Mountain Dam in addition to making the required repairs. The repair work
had been identified as early as 2002 and was approved as part of the Community Water Supply strategy.
He asked what could the community do to expedite moving forward with a design that could address raising
the dam and how would that fit into the Dam Safety requirement that a repair strategy be submitted as
quickly as possible? Could those repairs be done in the context of raising the dam?
Mr. Cooper replied that improvements could be made to the dam other than what was required by
Dam Safety. His agency's main concern had been the inadequacy of the spillway. Because of the water
supply issue, raising the dam would be part of the whole construction activity. For the permit, Dam Safety
would consider that request as long it included the required improvements to the spillway.
Mr. Lynch commented that it was not probable that a design for raising the dam could be
incorporated into the repair strategy and submitted by July 30, 2005. He inquired as to what assurances
would be needed by his agency that the design for the required repair work was moving forward in order to
obtain another one-year permit.
Mr. Cooper reiterated that his agency would need to know why the work had not been done and
future plans for satisfying their spillway requirements. Dam Safety had hoped that the design and a
timetable for the repair work would be presented to them by July 30, 2005, and they would need to continue
that approach.
Mr. Rooker stated it appeared that under any circumstances an extension would be needed. Even
if a water supply option was selected within the next 30 days, approval of that option would not be known by
July 30,2005. A concrete plan that involved Ragged Mountain could not be developed until, as he
understood it, an application was actually approved that would allow us to move forward with the preferred
alternative. He asked, given the current circumstances, if there were any scenario where an extension
would not be needed.
Mr. Cooper replied that an extension would always be needed because the conditional permit
expired at the end of July.
Mr. Gaffney asked what would happen if the request for an extension was not granted.
Mr. Cooper stated that the worst case scenario would be that the dam would be found out of
compliance.
Mr. Lynch commented that he understood from Mr. Cooper's comments that his agency would
need a letter documenting what has been done to date on the required dam repair work. Funding for the
dam repairs had been approved in 2002 and presumably RWSA had done some work on this project since
that time. He felt the letter should also identify the community interest in raising the dam, potentially to 13
feet or even a greater height depending on the circumstances, and also present some timelines for
accomplishing the redesign work.
Mr. Cooper replied that what Mr. Lynch described was the type of information his agency would
need in a letter in order to consider a permit extension.
Mr. Lynch also asked if such a letter were sent would there be a significant chance for receiving
approval for a one-year extension.
Mr. Cooper replied that he felt the answer to that question would be "yes."
Mr. Tom Frederick stated he understood from Mr. Cooper's earlier statement that if the community
wanted to take steps beyond what was required by Dam Safety requirements and raise the dam, Dam
Safety would not have an objection to that strategy. He asked if any of the other regulators wanted to
comment on whether expediting the raising of the dam for the purpose of providing additional stored water
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 6)
for water supply purposes could be accomplished through a permit from Dam Safety or would that require
going through the water supply process.
Mr. Scott Kudlas (DEQ Office of Water Supply Planning) replied that he did not believe that the
water supply planning process would be linked to the DCR permit application. If the proposed regulation
goes forward in its present form, RWSA's water supply plans would be due in 2008. He felt that RWSA
could move forward with applying for a permit to implement a short-term option at Ragged Mountain or
somewhere else. In terms of the impact of the planning regulations, it would be to the extent that there
were issues from the planning process currently underway that did not address fully what was in the
regulation.
Mr. Frederick stated that the advice RWSA had been receiving through its consulting team and
counsel was that to expand the water supply through any alternative for the purpose of providing additional
drinking water supply to meet future needs would require that RWSA proceed through the Section 404 and
state companion processes. He felt that what was being discussed now was the idea of going through Dam
Safety with a plan that not only rehabilitated the Ragged Mountain Dam and improved the spillway capacity,
but as part of the same project, raise Ragged Mountain Dam 13 feet to provide additional water supply to
this community on an interim basis. He asked if this could be accomplished strictly working with Dam
Safety regulations or did that require RWSA to go through the water supply planning process.
Mr. Kudlas responded that it was not the water supply planning process that RWSA would need to
go through but the permitting process for the water supply. This had been a common mistake made
throughout the development of the regulations for the water supply planning,
Dr. Ellen Gilinsky (DEQ) added that RWSA would need to go through the 404 process with COE
and the Virginia Water Protection permit process if wetlands or streams were impacted. She stated that Mr.
Kudlas was referring to the water supply planning regulation, which RWSA would not need to follow for the
permit application under discussion.
Mr. Schwinn stated that COE had an entire suite of what they called "nationwide permits." Those
permits covered a group of activities that were determined to have either accumulatively or individually
minor impacts and included one specifically for repair and maintenance of existing structures.
Rehabilitating the spillway on Ragged Mountain Dam could be done under an existing "nationwide permit."
Raising the crest elevation of the dam another 13 feet in addition to the rehabilitation work would put this in
another category of regulations under Section 404, and it could lengthen the process. Depending on the
potential impacts, this could also involve a public review process which would involve a minimum of 120
days.
Mr. J. Randolph Parker inquired that if one of the four alternatives included building a new Ragged
Mountain Dam in addition to the required spillway improvements and if the work performed to date was
documented in a letter to Dam Safety, which also demonstrated our diligent efforts to move forward with the
project, would that be sufficient information for Dam Safety to approve a one-year extension or would the
request be submitted to the Board for a determination on that information.
Mr. Cooper replied that his agency would study the information that was submitted, and a
recommendation would be made to the Board based on that information. The Board would then make the
ultimate decision on the course of action that would be taken.
Mr. Parker asked Mr. Cooper what he felt the Board action would be if such a letter was submitted
requesting a one-year extension. There was considerable sentiment that if an extension was granted, it
would allow for a decision to be made in an orderly fashion.
Mr. Cooper responded that it was the goal of Dam Safety that the process continue in a progressive
way so that the dam could be moved from an unsafe conditional certificate to a regular six-year certificate.
Mr. Gaffney stated that it was his understanding from this discussion that although the Ragged
Mountain project could be taken outside the Community Water Supply Plan and raised 13 feet, it would still
need to be permitted but not as part of the water supply planning process. He asked if this would also be
the case if the dam were raised higher than the 13 feet. He further inquired that if this option were selected,
would RWSA be assuming the risk that eventually it could be placed in a position of having a separate
water supply plan in a situation that did not warrant such a strategy.
Mr. Terry Wagner (DEQ) stated that he thought there was confusion with the planning requirements
versus permitting requirements. He felt there needed to be a very clear distinction between planning
requirements that might occur in the future due to draft regulations that were currently in the public
comment process and the existing permitting requirements.
To further clarify his comments, Mr. Wagner stated that currently there are requirements that
specify obtaining a permit for various activities. It was the logical assumption that if there were a planning
process, future actions would be identified that would require permits in that planning process. As far as a
state-required planning process, it currently did not exist. Localities could apply for permits that were in
concert with its plans, and conversely, could apply for a permit for an activity that was not included in the
local plan. There was no requirement that an application for a water-withdrawal activity be included in an
existing plan. DEQ's involvement with water supply planning requirements that would go into effect in the
future had no relevance with activities that might be proposed today. It was hoped that effective water
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 7)
supply planning would guide the permit process.
Mr. Gaffney asked if his understanding was correct that DEQ would consider an application to raise
Ragged Mountain by 13 feet outside of a community water supply plan.
Mr. Wagner responded that the regulations that would require localities to submit a water supply
plan were currently in draft form and were not expected to be finalized for at least three years. If during that
time frame you initiated the process for obtaining permits to raise the dam 13 feet, certainly that activity
would be captured in your water supply plan, so it could not be considered strictly outside the process.
Ms. Jennifer Whitaker commented for clarification purposes on the terminology being used for
water supply planning. She felt that when Mr. Wagner was presenting DEQ's perspective, he was
referencing the proposed state-mandated water supply plan that was currently in the development stage.
RWSA's comments to the public concerning the water supply planning process pertained to the internal
plans developed by Rivanna to determine what type of water supply permit to file. She felt the confusion in
terminology resulted from RWSA's efforts to involve as many citizens as possible during this planning
process.
Mr. Wagner further commented that he applauded RWSA's efforts, which had not occurred in all
areas of the Commonwealth. He added that he was responding to the question on whether there was any
state requirement from DEQ that an application be in concert with the existing water supply plan. It was a
local decision. There was nothing in the regulations that precluded localities from submitting an application
for a water withdrawal permit project outside of its existing water supply plan. It was his opinion that
RWSA's Community Water Supply Plan would suffice for a state-approved water supply plan in concert
with future regulations.
Mr. Rooker stated that it had been previously mentioned that an application to increase the height
of the Ragged Mountain Dam would require a 404 analysis. He inquired whether the 404 analysis then
required a consideration of alternatives, using the standard of the "least environmentally damaging, most
practicable" option.
Mr. Schwinn responded that if during COE's evaluation of the option to raise Ragged Mountain
Dam by 13 feet it was determined that it would not qualify for a category of "nationwide permits," then the
agency would be put into the position of examining the purpose and need of the project and selecting the
"least damaging, practicable" alternative based on that purpose and need. The answer to Mr. Rooker's
question was that this would be a COE requirement.
Mr. Lynch commented that RWSA had already studied the option of raising the Ragged Mountain
Dam by 13 feet and concluded that it had fairly low environmental impacts, possibly the least
environmentally damaging option currently under consideration. He asked if a letter was written to Dam
Safety that documented this information and was then submitted to COE for their review, what would be the
minimum time frame for COE to evaluate the request and issue a finding as to whether they were in
agreement that it would be the "least damaging" alternative and could move forward with the project.
Mr. Schwinn stated that COE would be responsible for conducting an independent review.
Presumably during the course of developing the water supply plan, other alternatives were evaluated during
the process which would be of benefit during COE's review of the alternatives analyses. Ideally, there
would be a 120-day review window unless an environmental assessment was needed or additional studies
were deemed necessary to evaluate available alternatives not considered during the planning process.
COE could also request additional analysis on alternatives that had been dismissed during the evaluation
process to ensure there was adequate data to determine whether they met the "least environmentally
damaging, practicable" criteria.
Mr. Lynch further inquired as to what level of constructions plans would COE need to have included
in the letter to DCR concerning raising the Ragged Mountain Dam by 13 feet in order to receive approval
and proceed with construction by next year.
Mr. Schwinn responded that COE would not be reviewing the project based on the soundness of
the engineering design. His agency would evaluate the project based on the impacts to the water in the
reservoir, wetlands, and streams.
Mr. Hassell addressed the original question of raising Ragged Mountain Dam by 13 feet and
whether this could be accomplished under the project purpose of improving the spillway. Since there were
two different project purposes, DEQ would need to conduct their review under the second project purpose
which was to provide a water supply. During the review process, the Ragged Mountain alternative would
be evaluated in comparison to the other alternatives. DEQ would also consider during their evaluation of
the 13-foot option what additions could be anticipated in the future. Since there was nothing in their
regulations which mandated a 50-year planning period, a shorter interval could be used when assessing the
potential environmental impacts.
Dr. Gilinsky elaborated that DEQ, and she felt COE was conveying this as well, could review a
permit to raise the elevation of the dam without even having a complete water supply plan. DEQ would
however need information concerning other available alternatives and their environmental impacts since the
purpose for raising the elevation of the dam was not based on safety issues but to obtain additional water.
This review would be conducted outside the ongoing planning process.
Ms. Thomas commented that practicality would become an issue. Raising the dam 13 feet with the
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 8)
assumption that it would never be raised higher created a different structure than if the dam were going to
be raised 13 feet with the potential for future additions. A decision on which option to pursue she felt would
take longer than certainly the July 30, 2005 deadline for informing DCR on what type of structure would be
constructed.
Mr. Lynch asked what actions would need to be taken in order to get the existing water supply plan
approved by the regulators. He stated that the community had initiated the water supply planning process
in 1999. In late 2002, a set of recommendations from RWSA were approved by both the County and the
City along with a rate increase to its customers to pay for the plan. Components of the long-term
community-approved plan included raising the South Fork Rivanna Reservoir (SFRR) dam by four feet,
repairing the Ragged Mountain Dam, rebuilding the Mechums River Pump Station, and maintenance
dredging of the SFRR. The consultants apparently overestimated the amount of additional storage that
would result from raising the SFRR by four feet. However, by raising the elevation of Ragged Mountain by
13 feet, you could make up the difference. The community could have a 50-year plan by including the
Ragged Mountain option in the 2002 plan if it could be approved by the regulators.
Mr. Stokely commented that he thought EPA would not have a problem with a permit application
for one aspect of an overall larger water supply plan, as long as the impacts of the overall plan were
disclosed as part of that permit application. Based on previous experiences with piecemeal processes, he
would recommend applying for the overall project or at least disclose the impacts and maybe apply for an
expedited permit for raising Ragged Mountain by 13 feet.
Mr. Lynch suggested discussing each component of the 2002 plan and have the regulators provide
input on potential environmental impacts associated with each of those projects.
Mr. Parker commented that we were not here today to discuss the 2002 Plan. He thought the
purpose of the meeting was to address the list of prepared questions and discuss the regulatory decision-
making process as it related to the four concepts under consideration. He did not feel it would be helpful to
focus on one specific plan that was not even on the table.
Mr. Lynch followed up by stating that he wanted to discuss this process in the context of the 2002
Plan, which was submitted by RWSA and approved by both the City and the County.
Mr. Gaffney interjected that every local Board and Council member was afforded the opportunity to
submit questions in advance of the meeting. He further stated that due to the number of questions that
remained to be answered and the limited amount of time to address them, he felt a return to the list of
prepared questions was in order and proceeded to read Question No.3 as follows:
3. What is the definition of "practicability?"
a) Is "practicability" determined solely by the applicant, or do state and federal
regulators participate in determining the "most practicable" solution, such as by
analyzing cost estimates?
b) If regulators participate in determining practicability, is it a requirement that the
most practicable project be used? If it's not a requirement, what do regulators
allow as arguments for a project that is not the "most practicable?"
Mr. Schwinn stated that he would answer part of that question from COE's perspective. Under the
404(B)(1) guidelines, the COE was charged with permitting only the "least damaging, practicable"
alternative. The test of practicability took into consideration the cost, technology, and logistics. The solution
also needed to be practicable for the applicant. COE generally would defer to the applicant on the
development of cost estimates, analysis on the technology, and the logistics of building the various
alternatives. He reiterated that the COE was charged with conducting its own independent review.
Mr. Schwinn also stated that if COE determined that one of the alternatives would meet the
purpose and need of the project and had fewer impacts on wetlands and streams, but it was not the
applicant's preferred alternative, by law that was the only alternative that COE could permit.
Mr. Stokely added that he felt there was some confusion in that they did not permit the "practicable"
alternative, but permitted the "least damaging, practicable" alternative. COE and EPA by regulation could
only permit the "least damaging" of the four alternatives currently under consideration, presumably all of
which were practicable.
Mr. Dorrier inquired if their definition of "damaging" referred to impacts to the environment.
Mr. Stokely responded that it referred to damage to the aquatic environment, which included
wetlands and streams as the primary focus.
Mr. Schwinn added as clarification that EPA had ultimate oversight over the process. COE might
issue a permit for what they decided was the "least damaging, practicable" alternative, but there was
another provision under the law, 404(C), that gave EPA veto authority over the COE.
Mr. Stokely stated that Mr. Schwinn's comments were correct. EPA had review authority and could
also veto COE's permits, if COE chose to issue a permit that EPA did not believe was the "least damaging,
practicable" alternative.
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 9)
As there were no further comments or questions, Mr. Gaffney read Question No.4 as follows:
4. Is the community locked into filing applications which are based upon a fifty-year time
period? Can we use a thirty-year time period?
a) Since both bodies of elected officials previously adopted the 2002 Multi-step
Integrated Water Supply Strategy plan proposed by RWSA, a plan that developed
a phasing offuture water-supply projects, is there any regulatory reason why such
a plan could not be approved? The Plan included a commitment to Integrated
Resource Planning, watershed management, demand management, and early
warning drought management response and efforts to balance water uses to
protect natural resources. We understand that some of the previous plan's yield
figures now appear to have been incorrect, but is there any other reason why the
approach taken in that plan is unsatisfactory? Do regulators look for components
such as these in a long-range plan? What do you look for in the application?
b) Since in 35 or 50 years technology will change and experience will create new
solutions, such as recycling waste water, do regulators require 50-year plans as if
all options are already known? Do not the regulatory agencies want some
flexibility in the community plan to allow for the impact of some of these
improvements, technological advancements, etc., over the next 25 -30 years?
Mr. Hassell responded that the answer was "no" to the first part of that question which dealt with
whether a community was locked into filing an application based upon a 50-year time period. The answer
was "yes" to the second part of that question concerning using a 30-year time period.
Mr. Hassell stated that he would not be able to comment on Question 4a) concerning the 2002
Multi-step Integrated Water Supply Strategy until he received further information on the plan.
Concerning Question 4b), Mr. Hassell stated that DEQ realized that new technology could be
developed and would consider the associated impacts. There were some reuse options considered in both
the 2002 and the current water supply plans, such as pump back from below Moores Creek up into the
watershed. The Health Department, which was one of DEQ's advisory agencies that were given full
consideration, took a position against that option.
Mr. Hassell then referred back to Question 4a) concerning what regulatory agencies look for in an
application. He stated that "need" was very important. He felt it was well recognized that RWSA's central
system needed water.
Mr. Hassell next addressed elements of the 2002 Plan, which included integrated resource
planning, watershed management, conservation plans, and drought management plans, and stated that
those would be important components of a permit application that DEQ would consider.
Mr. Kudlas used the analogy of the land use planning process in answering Question No.4. He
stated that the process involved the development of a comprehensive plan, zoning ordinances, and then
approval of site plans or subdivision plans. He felt that this community's water supply planning process was
at the site plan stage. The planning regulation that DEQ had in process now was akin to the comprehensive
planning process, which was a general 30-year to 50-year plan. He pointed out that the detail provided in
RWSA's plan was much further along than other community planning processes.
Mr. Gaffney then moved on to Question No.5 as follows:
5. Are acres of impacted wetlands and feet of stream inundations the only environmental
impacts that will be considered in evaluating our application? If not, what other
environmental impacts will or may be considered in the evaluation?
a) To some of us, proposals that allow us to weaken our stewardship of our
watershed (such as getting water from outside this watershed) should be regarded
as potentially environmentally damaging. Can regulators either correct this
assumption or suggest ways in which it can be inserted into the permitting
process?
b) Since relying on James River water for use in times of drought decreases the
need for, and interest in, protecting our existing reservoirs from siltation and other
degeneration, is this abandonment of our present infrastructure (in whatever form
and to whatever degree this takes place) considered when regulators evaluate
environmental impacts? Since some of this abandonment can take the form of
land-use, zoning and storm water decisions that are not under RWSA 's direction,
do regulators take into account the effect on such city and county decisions? We
are aware that EPA is supportive of the type of land-use decisions called "Smart
Growth. " Does that support play any role in the long-range water supply permitting
process? What other land-use decisions that can be implemented by a locality
are being promoted by the regulatory agencies?
Mr. Schwinn stated that once a federal permit was required under Section 404, the Clean Water
Act, COE had to address both direct and indirect impacts. The obvious direct impacts were listed in
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 10)
Question 5, which included the physical loss of streams and wetlands either through the placement of fill
material or inundation as a result of raising the crest of the dam. There might also be some indirect
impacts that would need to be considered by COE. He also listed some of the other federal laws that COE
was mandated to follow, which included the Endangered Species Act, Fish and Wildlife Coordination Act,
the National Historic Preservation Act, and the National Marine Fisheries Preservation Act.
Mr. Schwinn further stated that in a water supply project not only would COE be evaluating the loss
of wetlands and streams upstream of the dam, there might also be downstream impacts that would need to
be considered. Those impacts could include reduced flows and increased flows. He commented that if the
project mentioned earlier concerning refurbishing the Mechums River Pump Station were tied into the
overall components of the plan, COE would need to address the impacts of that pump station in terms of
whether there were any endangered species or other aquatic species in that area that would be affected by
the reduced river flows. He added that there were several issues that would need to be addressed once a
federal permit was required in terms of both direct and indirect impacts.
Mr. Schwinn next discussed part a) of Question No.5. He stated that if one of the alternatives
being evaluated by COE was outside of the watershed, but it had the potential for greater environmental
impacts than an alternative within the watershed, then his agency would not consider that alternative.
Mr. Schwinn then addressed part b) of Question No.5, which he understood pertained to the other
activities currently underway in the watershed that might result in environmental gain and if they could be
considered during mitigation for impacts from some of the other projects. He asked if his interpretation was
correct.
Mr. Rooker stated that he felt the question dealt with two mitigation issues. The first one pertained
to mitigation with respect to determining what is the "least environmentally damaging," and the second one
concerned the cost of mitigation. An option that might have more stream and wetlands inundation could
have some other benefits to the environment that ought to be considered in making the initial "least
damaging" to the environment analysis.
Mr. Schwinn referenced again the 404(B)(1) guidelines which specified a sequence of steps that at
one point in time were quite rigid and could not be altered, and were in the following order: Can the impact
be avoided; can the impact be minimized; and finally, compensatory mitigation for unavoidable impacts.
COE was now allowed more flexibility and could alter the sequence if it were determined that the project
would result in an overall environmental gain. He asked Mr. Stokely if it was correct that EPA's
concurrence would be needed before COE could proceed in that manner.
Mr. Stokely responded that EPA did take into account a variety of mitigation efforts as part of the
overall project. Instead of the use of "sequencing," EPA would look at the overall picture of the permit, the
impacts, and what was being done to mitigate the impacts.
Mr. Schwinn clarified further that when COE was evaluating the "least damaging, practicable"
alternative, the mitigation issue would not be addressed upfront as a means to buy down the impact so that
the alternative becomes "least damaging" at that point. COE was required to review the merits of the
project on the impacts without considering mitigation. It was only when they reached the step of
determining that it was the "least damaging, practicable" alternative, that mitigation could be addressed. If
Question 5b) concerned whether all the environmental gain could be considered upfront to buy the impacts
down, then the answer would be "no" as it related to COE regulations.
Mr. Rooker stated that he felt it was a very important question that needed to be developed fully at
the meeting due to the four options currently under consideration. The James River Pipeline alternative,
which was outside the watershed, appeared to have very little stream inundation and wetlands impacts.
There were other options within the watershed that were much less costly but had potentially more stream
inundation and wetlands impact issues. Many in the community had expressed their preference to stay
within its watershed to develop an additional water supply source. He inquired if there was a way to bypass
the first level of analysis and evaluate the overall project in terms of protecting the watershed for existing
reservoirs and other factors deemed important by this community, which he felt were well stated in
Question 5b). He also asked if the options currently under consideration that appeared to have more
stream and wetlands impacts were still on the table for this community.
Mr. Schwinn commented that in answer to Mr. Rooker's question, COE could not bypass stream
and wetland impact analysis under the current state of their regulations. He further stated that the COE
must look both within the watershed and outside the watershed to find the "least damaging, practicable"
alternative, and must consider all the factors that are part of the regulations to make that determination.
He offered, however, that if their findings were to conclude that an alternative within the watershed and
alternative outside of the watershed, both of which met the purpose and need of the project, had similar
environmental impacts, then COE could approve the alternative within the watershed because it would not
matter in terms of the regulations which of those the COE permitted.
Mr. Rooker referred back to the earlier discussion by Mr. Lynch concerning the 2002 Community
Water Supply Plan. This community-approved plan included the four-foot crest option, which was a quick
and not too expensive way of substantially increasing the water supply. There were some significant initial
wetlands and stream impact issues associated with that concept. It did provide the benefits of working
within the existing watershed, continued efforts to protect the watershed and the water source, provided for
probable creation of new fringe wetlands, and maybe could provide some improvements in the existing
stream areas by way of mitigation. He felt it was important to know as quickly as possible whether that
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 11)
option could still be considered as part of the plan.
Mr. Schwinn replied that he did not know the details of this project in terms of how many acres of
wetlands and how many linear feet of streams would be inundated by raising the crest height on Ragged
Mountain or SFRR. Once the COE were to review the data, they would first determine if the preferred
alternative fits into a "nationwide permit" category. If not, they would determine if the overall impacts are
low enough to allow COE some flexibility in terms of considering alternatives. The COE really cannot
answer Mr. Rooker's question definitively until the COE knows the project details and measured impacts.
Mr. Rooker stated that the consultants had developed the wetlands and stream inundation figures.
He then reiterated that he felt it was important to know the viability of that alternative before proceeding with
the application process and trying to guess whether or not COE would approve a plan that included the
four-foot crest option.
Mr. Brian Watson (DGIF) stated that there would be approximately 30 acres of wetlands impacts
and 18,000 linear feet of stream impacts with the four-foot crest option.
Mr. Lynch commented that by raising the SFRR by four feet, 30 acres of existing wetlands would be
inundated. Those wetlands were created when the dam was first built. This option would create more than
30 acres of new wetlands. He asked if COE and EPA would view those new wetlands favorably during their
review process.
Mr. Schwinn stated that this was the question asked earlier by Mr. Rooker as to whether mitigation
could be used to buy down the impacts of the project. The answer to that question was in general "no."
The loss of 30 acres of wetlands would have to be evaluated upfront and compared to other alternatives
being considered to fulfill the purpose and need of the project to determine whether or not that particular
alternative was the "least damaging" alternative. If COE reached that conclusion and issued a permit for
that alternative, then the discussion could take place about recreating the loss of 30 acres of wetlands.
Mr. Gaffney noted an earlier comment by Mr. Schwinn concerning applications for both off-site and
on-site alternatives. He asked if the suggestion was that two applications be submitted.
Mr. Schwinn clarified that he felt holding a pre-application meeting with his office would be very
appropriate to discuss the detail and the documentation of the alternatives under consideration, so RWSA
would know upfront what information was needed by the regulators and not waste a lot of time, energy, and
resources on an application that mayor may not be permitted. He added that his office was always
available to conduct pre-application meetings. This was done routinely before there was a big investment
of resources.
Mr. Stokely commented that there would be additional information needed on the James River
Pipeline alternative. Although the environmental impacts to streams and wetlands would be less with this
option than raising the existing reservoir level, not all the impacts from bringing the James River water into
the upper watershed were known at this time and would need to be determined before EPA could made a
decision as to which alternative was the "least damaging" alternative. Two other factors that EPA would
take into consideration when reviewing this alternative was whether the cost was considered "practicable"
by the community and whether it met the purpose and need of the project.
Mr. Hassell stated that there were other issues to be considered during the review process, which
included impingement and entrainment issues with the James River Pipeline and instream flow issues with
all of the alternatives, with the possible exception of dredging. He felt the "gist" of the question concerned
whether the regulators would take into account a community's choice of an alternative outside of its
watershed rather than preserving its existing watershed. He referred to the 404(B)(1) guidelines, which
mandated the permitting of the "least environmentally damaging" alternative in terms of its aquatic impacts,
unless that alternative itself has other significant environmental impacts. If that were applied to the James
River Pipeline alternative, arguments that approval of this option would result in the community having to
face future population growth and zoning issues leading to degradation of the SFRR would not carry much
weight with the regulators due to the area's control over comprehensive planning initiatives. He could not
recall an alternative associated with other environmental impacts that had been approved with minimal
impacts to wetlands and streams, but he felt it would be possible.
Mr. Gaffney commented that he felt Question No.6 had been covered during previous discussions
but went ahead and read the question as follows in case there were any further comments concerning this
issue:
6. How do the estimated environmental impacts for the four-foot crest option compare with
the other water supply expansion projects which have been approved elsewhere?
a) Is selecting the "least environmentally damaging" option required, or is there
leeway for selecting other options, assuming there are legitimate environmental
reasons for doing so?
Mr. Lynch stated that he thought a better question might be whether a 30-acre inundation as part of
an overall plan that would create wetlands for the future had been approved previously.
Mr. Schwinn stated that the answer to the question as to whether COE had permitted impacts in
excess of 30 acres was "yes." He added that every project had to go through the same review process that
was being discussed at this meeting.
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 12)
Mr. Gaffney then went on to read Question No.7 as follows:
7. Can we get "environmental credit" for wetlands created, stream improvements made,
conservation easements, maintaining the health of our existing reservoirs, etc., if we were
to choose adding the four-foot crest on SFRR and/or maintenance dredging as part of our
water supply solution?
a) Many of us are convinced of the value of living within the resources of our own
watershed and being good stewards of our present watershed and our present
infrastructure. We have prided ourselves in the care we have taken of our
watersheds. We have developed sediment and erosion, storm water, land use,
zoning, and Comprehensive Plan measures over the years that indicate our
community's commitment to watershed protection. To some of us, the
"compensatory mitigation" measures that would be required to counter stream and
wetland impacts seem extensions of, and increased funding for, measures already
being pursued. Is this inaccurate?
b) From a regulator's perspective, is it preferable to live within our own watershed's
resources if possible?
c) It has been suggested that projects that require substantial mitigation will fail the
"least environmentally damaging" test. Does the regulatory framework recognize
the positive value of stewardship and maintenance of our own watersheds?
d) How do the regulatory agencies take into account in their decision the positive
impacts of a decision, e.g., flooding of an area destroying certain habitat but
increasing the habitat in nearby areas?
e) Do regulators have suggestions for how Buck Mountain land, owned by RWSA,
could fit into compensatory mitigation?
f) Can endangered species be moved to allow construction?
g) How might the regulatory agencies work with this community, as partners, to
develop and implement a water supply plan that has as its foundation a
commitment to local-source water use and watershed protection? Can you refer
us to other water supply systems that have taken an innovative or integrated
management approach to address their water needs while protecting the
environment?
Mr. Gaffney added that a number of the issues listed in this question had already been discussed
and requested that the focus be on the items not previously covered.
Mr. Hassell addressed the question that asked whether living within your own watershed's
resources was viewed as preferable by the regulators. He stated that it was preferable, but it was not
always possible. The watershed for this area was about 250 square miles if the SFRR was included, and
the amount of water needed to meet the future projected demand was 20 million gallons per day (MGD).
By staying within your own watershed, meeting the projected demand would place a stress on that system.
For example, the area had already experienced the drying up of the Moormans River and could expect a
similar experience with the SFRR.
Mr. Hassell next addressed the question dealing with whether an endangered species could be
moved. He believed that the answer was "yes."
Mr. Hassell further stated that if a project was permitted that impacted streams, Buck Mountain
Creek might fit into compensatory mitigation because you could either preserve part of the land to receive
mitigation credit or if it were degraded - which he did not believe was the case - you could get restoration
credit.
Dr. Gilinsky commented that if it were already preserved, then you would receive no compensation
benefit.
Mr. Watson, who stated that he dealt primarily with freshwater mussels with DGIF, addressed the
question concerning whether endangered species could be moved to allow construction. He commented
that this had been done in the past, but he could not state for certain whether it would be allowed with any
of those projects that involved inundation of an area that had endangered species. It would require a
different level of review that would involve his agency and the Fish and Wildlife Service (FWS). During that
process, a biological opinion would be offered and an opinion issued as to whether the species could be
moved.
Mr. John Kauffman (DGIF) stated that concerning the Buck Mountain land, he felt there was the
potential for compensatory mitigation. He had suggested several times to RWSA that Buck Mountain could
serve as a model area for how riparian areas are managed within the watershed and could be one avenue
for compensatory mitigation as far as loss of stream habitat. Some other potential areas included opening
up areas for fish migration, which had been investigated by Stafford County during their water supply
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 13)
planning process.
Mr. Rooker inquired if compensatory mitigation could be considered during the initial evaluation of
the "least environmentally damaging" alternative, with discussions on how those impacts would be mitigated
being held after the plan had been approved.
Dr. Gilinsky commented that it was a sequencing process that considered avoiding and minimizing
impacts and how the impacts would be compensated. Even though alternatives are viewed as a complete
package, it would still need to be demonstrated that impacts were avoided and minimized before a
compensation package would be considered. She added that a permit would not be issued unless it was
felt that the compensation being provided addressed the acreage and functions of the waters lost. She
reiterated that the project would first be evaluated based on whether the impacts were justified by the
project need and if those impacts were minimized.
Mr. Schwinn referred back again to the 404(B)(1) guidelines and stated that COE was obligated to
require compensatory mitigation for lost aquatic resource function. Sometimes it was in the form of using
acreage of wetlands or linear feet of streams as a "surrogate" for that lost function. There was also a
Presidential Executive Order that charged the COE with no net loss. This criterion was to be applied
nationwide and not for each individual project. He then addressed the question as to whether watershed
improvement efforts by a community could be considered as mitigation. He felt it would be very difficult to
go back and quantify exactly what the functional improvements have been based on the watershed work
done in terms of the miles of streams improved and wetlands acreage created. There have been losses
that predated the Clean Water Act, and some of the improvements were compensating for past losses.
Current plans cover new losses that needed to be mitigated.
Mr. Lynch commented that he understood that breaching the Woolen Mills Dam could not count
toward mitigation, but he inquired if future projects such as improvements to Meadow Creek would be
allowed.
Mr. Schwinn replied that he felt COE would consider such future projects and asked EPA to provide
its perspective on this issue.
Mr. Stokely agreed that these future stream restoration projects could be considered for mitigation
for loss of streams. He noted that deed restrictions would be required as part of the mitigation
compensation.
Mr. Rooker inquired if they were discussing solely the compensation package or were they referring
to the initial judgment of an application.
Mr. Stokely replied that the regulations are not very flexible as far as the alternatives analysis
process, which specified a determination of the "least environmentally damaging" alternative.
Mr. Schwinn further clarified the term "mitigation" to avoid confusion on that issue. He stated that
COE was charged by regulations to look for functional replacement as part of the total package, which
could include restoring and protecting riparian areas and creating wetlands.
Mr. Schwinn referred back to the Endangered Species Act and stated if there were any endangered
species involved with any of these alternatives, COE would conduct a two-prong test that asked whether
there was "no effect" or "may affect." If the test indicated that it "may affect," then it would involve FWS and
complying with the Endangered Species Act. It would also involve Section 7 Consultation with the FWS that
would entail preparing a biological assessment, which sometimes became the responsibility of the applicant
and their consultant to prepare that document. The biological assessment would be submitted to the FWS,
and they would render a biological opinion. There were two options associated with the rendering of a
jeopardy opinion. The first one entailed adding steps to be undertaken to resolve this issue, which generally
included the requirement to salvage whatever endangered species were involved. He added that
endangered species could be moved, but to get to that point was an involved process. The involvement of
FWS meant that a new time frame under Section 7 Consultation of the Endangered Species Act would be
in place.
Mr. Gaffney inquired if both the "does affect" and "may affect" determinations involve the Section 7
Consultation process.
Mr. Schwinn replied that ultimately it would be COE's decision, but occasional disagreements have
occurred with FWS concerning determinations made on endangered species impacts. If COE made the
determination that there was "no effect," then there was another set of procedures that would allow FWS to
elevate that decision if they felt that it was a "may affect." FWS could request that they enter into Section 7
Consultation.
Mr. Gaffney stated that he would combine the next two questions as they pertained to the same
issue. He then read Questions 8 and 9 as follows:
8. Under what circumstances can we do dredging in the South Fork Rivanna Reservoir
without obtaining permits? If a permit is required and issued, how long will it be valid?
9. Can we obtain permits for maintenance or opportunity dredging of SFRR in order to
maintain the health of the reservoir? If so, should we file such an application separate
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 14)
from our application(s) related to the long-term water supply applications, or as a part of
those applications?
a) If reservoirs are not dredged and silt builds up possibly forming new wetlands or
flooding upstream, is this viewed as a negative environmental impact? Where
would that issue appear in the permitting process?
b) Albemarle County, the Thomas Jefferson Water Resources Advisory Committee,
and consultants have studied the source and composition of sediment that is filling
the Rivanna Reservoir, but all studies point to a need for more information if
sedimentation is to be reduced and/or dredged spoils are to be put to constructive
use. Do state and federal regulators encourage further study? Does pinpointing
the sources of sediment qualify for expenditure of mitigation funds? There is a
concern that without study, traditional stream-bank restoration, for example, may
be minimally effective in reducing siltation. Or, without further study, the cost of
dredging may be inaccurate due to uncertainty of a market for the dredged
material.
c) Do regulatory agencies ever require maintenance dredging, e.g. if needed to
maintain infrastructure? If maintenance dredging is not allowed, then what means
are the regulatory agencies allowing localities to use to keep all water supply
impoundments in the USA from becoming unusable?
Mr. Hassell first addressed the question dealing with the circumstances under which SFRR could
be dredged without a permit. He stated that "perhaps none," because even if you were to drain the
reservoir and conduct the work under dry conditions, there might be fringe wetlands that would be
impacted. He added that any impacts would probably be minor, so dredging under dry conditions could
possibly be done under a general permit. DEQ did not have a general permit for dredging, so if a permit
were obtained from them it would be issued for a period of 15 years.
Mr. Hassell then discussed the question concerning the ability to obtain permits for opportunity
dredging to protect the health of the reservoir. He stated that as opposed to dredging for water supply
purposes, the answer would be "yes" as long as the material was not disposed into wetlands or streams.
Concerning whether pinpointing the sources of sediment qualified for expenditure of mitigation
funds, Mr. Hassell said the answer was "no." In that same section, Mr. Hassell commented on whether
further sediment studies were encouraged. He stated that it had been suggested that additional studies
would show whether the dredged material was suitable for reuse. The economic analysis that he had
reviewed on this project used several scenarios, which included 50 percent reuse and 0 percent reuse, and
provided a realistic cost for the project. He did not feel that an additional study was needed.
Mr. Hassell added that regulatory agencies did not usually require maintenance dredging. The one
dredging project that he was aware of that was not for navigation but solely for water supply purposes was
conducted by the City of Fairfax, which was conducted by their choice and not due to a DEQ requirement.
Mr. Schwinn asked Mr. Brogdon if RWSA fell under Section 10 of the Rivers and Harbors Act,
which was an important question from a dredging standpoint for COE. Section 10 authorized COE to
regulate dredging operations. Mr. Brogdon replied that RWSA fell under Section 404 and no permits would
be required from COE to dredge the sediment. Mr. Schwinn added that if the method of removal entailed
dropping the reservoir pool and then placing heavy equipment in the upper end of the reservoir, a COE
permit would be required. Dredging operations that would require a COE permit included a hydraulic
dredge drag line or track hoe. He added that the method of removal would be the important determination
as to whether RWSA would need a permit from COE.
Dr. Gilinsky clarified that a state permit would be needed for any dredging operations.
Mr. Schwinn continued by stating that if the material was being removed by a hydraulic dredge drag
line or track hoe and was being transferred off site, then COE would be very interested in the disposal site.
If the material was being placed into a U.S. waterway, the disposal of that material would require a permit
due to wetlands or stream issues. While the dredging in and of itself would not require a permit from the
COE, the disposal site could require a permit.
Mr. Rooker commented that the reservoir was silting up, and it made sense to maintain the health
of our reservoir, regardless of what else was done for the future water supply. During the drought of 2002,
the community was interested in performing dredging operations. For whatever reason, the dredging permit
was never issued. The community did not want to find itself in the position of not being able to take
advantage of future opportunities to maintain the health of the reservoir due to not having a dredging permit.
He asked if a permit application for dredging could be submitted separate from the water supply plan. He
further inquired as to what would be the process for obtaining an opportunity dredging permit that would
allow them over the next 15 years to address sediment issues.
Mr. Gaffney followed up Mr. Rooker's question by asking if the opportunity arose in the Fall to lower
the reservoir and create our own opportunities to dredge, would it be possible to obtain a permit for that
purpose.
Dr. Gilinsky stated that RWSA could apply for a permit to conduct dredging or opportunity dredging
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 15)
operations. During the last drought, the permit issue was discussed several times in several meetings but
DEQ never received an application that her agency could act on. During the review process,
the key issues for DEQ would be the purpose and need, as well as the disposal site. DEQ would
encourage an uplands disposal site versus filling in wetlands.
Ms. Thomas commented that those who had been involved with transportation planning were
aware that as federal and state funding has decreased, efforts have been made to utilize the existing
infrastructures more efficiently. She felt at the local government level a value was placed on protecting and
utilizing its existing infrastructure. Dredging appeared to be a necessary means to maintain present
infrastructure as effective as possible. She inquired if the concept of preserving existing infrastructures
appeared anywhere in the permitting process.
Mr. Hassell stated that DEQ had never expressed any opposition to dredging based on its
environmental impacts. The impacts to water quality would be temporary. The impacts to wetlands, as long
as the disposal was upland, would be zero. He felt dredging was a question that the local boards had to
address as to whether they would be willing to undertake such an expensive project. DEQ had issues with
the SFRR four-foot crests alternative that was partnered with dredging.
Mr. Gaffney then read Question No.1 0 as follows:
10. Do any of the regulatory agencies have data which include broad spectrum (all
contaminants) test results from water in the James River and/or the other rivers in our
watersheds? If so, can we obtain these data? There are many questions regarding the
proposed James River pipeline.
a) From regulators' perspective, does our community have to "lay claim" to James
River water by some specific time?
b) During a drought of record, what actions might state or federal regulators take to
limit withdrawal from the James River? Can we assume that withdrawals will be
allowed up to maximum permitted volumes at all times? Does use of the James
River free the community from having a drought management plan that might
restrict some uses during a drought of record?
c) Are there records regarding James River water quality during the last drought?
Should any treatment plant for river water be designed to deal with a decreased
quality of water in a drought (since the river water will not be needed during
normal rainfall years)? In addition to the Virginia Department of Health's
determination that water meets safety standards, do state or federal regulators
deal with issues of water quality and treatment requirements and costs, and if so,
in what way? (We know that we as rate-payers will have an interest in those costs
and as water-drinkers in issues such as taste, but we are unsure if the regulators
are interested in these issues.)
d) Are there regulations regarding the introduction of lower quality river water into a
higher quality river system, such as may be the situation when putting James
River water into Ragged Mountain reservoirs? (Some data suggest James River
water is inferior in hardness, alkalinity, pH, suspended solids, Total Organic
Compounds, and Pharmaceuticals and Personal Care Products. Future
deterioration of this raw water, derived from a large watershed not under our
control, is also possible.)
e) Does the importation of water into a basin necessitate a regional plan in which all
communities in the Rivanna River basin have input? Will the proposed Rivanna
River Basin Commission be recognized by the regulators as having a role to play
in the planning process if and when it is constituted?
f) How much input do the regulatory agencies have in a cooperative arrangement
among localities? Who is the primary contact-locality from the regulatory
agencies' perspective, the end user, the processing locality, or the supply locality?
Dr. Gilinsky stated that data concerning basic water quality primers could be accessed on the DEQ
website through their interactive Geographic Information System (GIS).
Mr. Hassell felt that one of the premises of this question concerned whether or not the James River
water was of lower quality than the water in the SFRR, Moormans River, or the Ragged Mountain
Reservoirs. He stated that he could not answer that question definitively without access to the data. There
was one myth that he saw in the question that concerned suspended solids. The premise of the James
River operation would be to pump during drought conditions. At that point in time, suspended solids in the
James River in drought events would be very, very low. He had examined the 2002 data for the James
River for suspended solids level near Lynchburg, and they were below detection limits.
Mr. Hassell next addressed the part of Question 10 that dealt with the "lay claim" issue. DEQ
strongly discouraged communities from "laying claim." The state policy as to water stated that "the right to
withdraw water from any river or stream is limited to the amount that it could be put to beneficial use by the
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 16)
public to be served." His agency has received applications where communities are attempting to "lay
claim." In those cases where DEQ felt the water would never be used, "sunset" clauses were inserted in
the permits stating that after a certain time period, the water right allocation would expire. He
recommended that applications for James River water use be filed only when it would actually be utilized.
Mr. Hassell also commented that it appeared from the technical data provided by the consultants
on the James River Pipeline alternative that a permit would not be issued for RWSA's maximum daily
demand. He felt it would more likely be based on the normal daily demand figure. There would also be a
requirement that when the river flow was down, conservation efforts would be initiated.
Mr. Lynch questioned as to what would be the assurance if you could not "lay claim" to the water.
The reason for considering the James River Pipeline option was the ability to meet the 50-year demand
requirement.
Mr. Gaffney also inquired that if a phased-in approach was taken and the James River was the
second or third phase to be implemented 20 to 30 years from now, was that possible or would the
community lose that option after a 5-year time period.
Mr. Hassell commented that DEQ recognized 50 years as a legitimate planning period. He further
stated that if RWSA submitted an application for a two-phase project, for example, raising Ragged
Mountain Dam now and as part of a 50-year plan, and submitted an application at the same time for the
James River Pipeline, the answer to whether DEQ would issue a permit for both phases was probably
"yes." Knowing that the second phase was to be implemented at a later time, DEQ would probably not
insert a "sunset" clause into the permit. There were several applications on the James River at this time,
and it was a legitimate concern to "lay claim." On the other hand, the water supply that would be taken out
of the James River if that were the preferred alternative, would largely be withdrawn from either the
Scottsville site or at Bremo Bluff if done as a regional approach, used in the Charlottesville metropolitan
area, and returned at the Moores Creek Wastewater Treatment Plant. Due to that aspect of the project, he
was not certain that DEQ in its role as a state allocator of water would view this project the same way it
would evaluate a power plant that uses the water consumptively.
Mr. Tony Watkinson (VMRC) commented on the potential permit application for the use of the
James River. As part of the application process, his agency would like to see complete documentation of
the resources of that section of the river, such as fisheries, aquatic resources, and the habitat that those
resources are dependent on, and how the project might influence those resources. This might include
entrainment impingement issues with organisms that might be drawn into the intake system, as well as the
minimum instream flow issue, and at what point would water levels be so low that withdrawals would be
detrimental to certain resources in the river. He added that he did not feel that a water supply plan could be
submitted without a full analysis of some of the aspects he just described for an intake in the James River.
Mr. Gaffney then moved on to Question No. 11 as follows:
11. Are we locked into measuring demand based upon a starting point of 12 MGD, when
actual system-wide demand (including Scottsville) has been averaging less than 10 MGD
for two years? Why can't we use the historical data available to us?
a) From regulators' perspective, is a drought management plan taken into account in
demand projections? Since we have experienced an ad hoc drought
management situation in which consumer use was reduced almost 20%, we
suspect that a well-designed drought management plan can significantly affect
water demand in a drought of record. Are we limited to assuming only a 5%
reduction due to a drought management plan?
b) We have also seen a yearly decrease in water usage, partly due to conservation
measures such as low-flow toilet rebate programs. Do regulators take into
account the effect of water conservation programs on projected demand?
Mr. Hassell stated that he was not certain how to answer the section dealing with using the starting
point of 12 MGD for demand measurement. What he recalled from reviewing RWSA's drought demand
projections was that four methods were used and the demand deficit was averaged from the four different
methods. He felt that a best fit linear regression process was not concerned with water use in one
particular year, but the average demand over time and the amount by which it was increasing. DEQ's
review of RWSA's demand projections found them to be reasonable. There was a slight criticism
concerning the population to be served. It was 7 percent higher than what the Virginia Employment
Commission had projected. He commented that those numbers change as evidenced by the new
projections issued by the Census Bureau recently.
Mr. Hassell then commented on the question concerning conservation programs. He stated that
DEQ did take into account conservation programs. The conservation efforts by this community during 2002
did result in a significant reduction in water use. At the time the mandatory conservation measures were
enacted in August 2002, citizens were consuming more water due to the dry conditions. Another factor for
the reduced water demand was the heavy rainfall received during September and October 2002. He
thought the 5 percent reduction figure as a result of implementing a drought management plan was a little
low, but added that he thought the 20 percent goal was not realistic.
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(Page 17)
April 18, 2005 (Meeting Adjourned from April 6, 2005)
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Mr. Gaffney then read Question 12 as follows:
12. Is there a regulatory reason we can't consider the Beaver Creek Reservoir as part of our
long-term supply solution?
a) The Mechums River pump [station] would possibly make Beaver Creek water
more fully usable in time of drought; what is the permit status of the pump station?
Mr. Jim Brogdon (COE) stated that the rehabilitation of the Mechums River Pump Station had been
issued under a "Nationwide Permit 3." There were some conditions placed on the permit that took into
consideration some requests from DGIF and DEQ. The permit is still usable for the lifetime of "nationwide
permits" that are in affect for the rehabilitation of that facility.
Mr. Hassell stated that if it were decided to raise Ragged Mountain Dam, which had a drainage
area of 2 square miles, there would be a long refill time after a drought. DEQ had issued some minimum
instream flow requirements when the previous Executive Director applied for a "nationwide permit." This did
not mean those would be the same permit conditions that DEQ would apply if RWSA submitted an
individual application for Ragged Mountain with the Mechums Pump Station as its refill component. The
Mechums Pump Station only contemplated a 4 MGD pump. DEQ might allow the installation of a larger
pump that could be used at higher flows. As the flows dropped, the amount of water that could be pumped
would also decrease. At higher flows, you could take more water which might decrease the refill time for
an expanded Ragged Mountain Reservoir.
Mr. Gaffney then moved on to Question No. 13 as follows:
13. Will regulators look at the recharge rate for facilities proposed? Is it not best to have a
large drainage area with many springs above an impoundment to keep the water level as
stable as possible during a drought?
Mr. Hassell responded that DEQ would keep Ragged Mountain on the same critical drought cycle.
What was not desired was a back-to-back dry year that resulted in the storage level becoming lower than
the first year. DEQ would attempt to "craft" the instream flow requirements and pumping limits so that the
facility would be on that one-year drought cycle.
Mr. Hassell referred back to the question concerning the Beaver Creek Reservoir and stated that
DEQ did not have any regulatory reason for disallowing a water release from the Beaver Creek Reservoir or
for it to be a part of the project.
Mr. Gaffney next addressed the questions from Mr. Boyd and read the first one as follows:
1. How much influence does the desire of the community, as professed through the local
elected officials, have with [the regulators 1 decision? Especially since local officials have
a better handle on land use policies and planning. I think this is embedded somewhere in
Sally's questions, but I would like to hear a direct answer as to where our input ranks in the
decision process. If what we want is irrelevant, [the regulators] need to let us know.
Mr. Schwinn stated that it was up to the applicant to determine the purpose and need of the project.
Congress had charged COE to permit what people needed and not necessarily what they wanted. There
was a provision within their regulations that allowed the Governor of that state to voice his opinion and
request that COE reconsider its decision on a specific project that was considered important to a
community.
Mr. Boyd stated that from his standpoint, what prompted this meeting was the fact that the
consultants appeared to be leading the community down a path where its only "least environmentally
damaging" solution was the James River Intake or increasing the capacity of Ragged Mountain. He felt that
it was obvious that the alternative with the least environmental impacts was the James River Intake option.
This was also the option that was the least attractive from the consensus of the community. The
community's sentiment was not to go outside of its watershed and provide an on-site solution. He asked if it
came down to a decision between those two alternatives, would the input of the community have any
influence on their decision-making process.
Mr. Schwinn replied that in addition to the 404(B)(1) guidelines, his agency also had a whole suite
of "public interest review" aspects that factored into COE's determination of the "least damaging,
practicable" alternative. In the context of the "public interest review" factors, consideration was given to the
needs of the community, impacts to fish and wildlife resources, and the economy. He did not want to leave
the impression that community input was not important, as this had to be considered in the overall context
of determining whether or not to issue a permit for a particular alternative. He could not however state that
community input was going to be the sole determining factor.
Mr. Dorrier referred to Mr. Schwinn's earlier comments on the number of applications that had
been submitted concerning the James River as a potential water supply source. He asked if COE had any
financial incentives or encouraged localities to consider joint regional projects.
Mr. Terry Wagner (DEQ) commented that he thought there was some confusion again concerning
planning and permitting. The state law and the regulations encourage regionalization of water supply
planning. To his knowledge, there was no financial support provided for those endeavors. The James
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 19)
River Pipeline was a good example of a project that could be encouraged as a regional approach. It would
first need to be argued that it was a practicable source. Another consideration would be whether all the
local approvals could be obtained to move the water from the James River to RWSA's system. He felt that
although any withdrawal from the James River that contemplated a regional use of the water would be
viewed more favorably, this did not mean that a permit for individual use could not be issued.
Mr. Dorrier also inquired if the number of applications requesting use of the James River would
factor into a decision.
Mr. Terry Wagner replied in the affirmative and stated that any resources being utilized in the
Commonwealth would be evaluated as to its total stress on that resource and its ability to supply water in
the future. He felt this referred back to an earlier question as to whether a permit issued for use of the
James River would allow a withdrawal for the maximum amount specified in that permit at any time. The
answer was "no." There would be conditions on any permit issued on the James River, as well as for the
alternatives inside the watershed under consideration.
Mr. Rooker commented on the issue of water quality of the various sources that might be available
to the community. He asked if highly treated water was not considered to be a "practicable" solution for its
population, would that be taken into consideration by the regulators.
Dr. Gilinsky responded that DEQ would take into consideration the amount of treatment needed,
which would also affect the cost of that alternative versus the other alternatives.
Mr. Rooker stated that cost would be a factor, but his question pertained to the potential health
impacts of highly treated water that might be more of a long-term concern for the population versus less
treated water. He did not have the data at this time to determine if the James River would require more or
less treatment than water from SFRR or Ragged Mountain. He asked if he understood correctly that if a
substantial difference was determined, this information might have some impact on that available option
during the permitting process.
Dr. Gilinsky commented that after the application had been submitted, DEQ would consult with
Health Department on that issue.
Mr. Ron Conner (VDH) stated that they conducted essentially a two-step process when evaluating
the preferred alternative. The first step entailed reviewing a preliminary engineering report, which they have
received from RWSA. During their review, the whole scope of the project would be taken into
consideration. A recommendation on a preferred alternative would then be evaluated, and the plan would
be approved if it met the demand and treatment requirements. The next plan of action would be the
issuance of construction permits. Considerations from other regulators would need to be satisfied before
this process could be initiated by his agency. VDH's policy has been to use the best quality of water
available for treatment. He added that the James River water could be treated. A decision on the
treatment costs associated with the James River option would be made by the consultants or other staff
and would be submitted to VDH for their review and approval of the plan.
Mr. Rooker inquired if there were certain contaminants that could not be treated out of water.
Mr. Conner responded that with the present advances in technology, water could be treated to the
desired quality.
Mr. Rooker further inquired if that would be the case for contaminants, such as PCB's that
remained suspended in water even after going through a treatment process.
Mr. Conner stated that those contaminants could be treated but could not verify the results.
In response to a question by Mr. Lynch concerning the preliminary information provided to VDH by
RWSA, Mr. Conner stated that a letter of support for all the alternatives under consideration had been
written based on meeting demand and treatment requirements.
Mr. Lynch further inquired as to when VDH received information on the four alternatives.
Mr. Conner responded that the data was submitted by RWSA when the list of alternatives was
narrowed down to the four options currently on the table.
Mr. Lynch also noted Mr. Hassell's previous comments that he was unaware of the 2002
Community Water Supply Plan. The community had undertaken a long planning process starting in 1999,
which resulted in selected alternatives in 2002. He expressed concern that this plan had not been submitted
for regulatory review.
Mr. Gaffney responded that the community approved a water supply plan in 2002. The first step
taken after approval of the plan was to update the data. When the update was completed, the area was
experiencing a drought. After a review of the resulting data, it was determined that the Community Water
Supply Plan of 2002 would not meet the needs of this community. A reevaluation of the plan was then
undertaken, which resulted in the four alternatives currently under consideration.
Mr. Lynch further stated that the plan was approved and financed in December 2002. In the spring
of 2004 the elected officials who passed the rate hike onto its customers were told that the 2002 plan was
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 20)
moving forward. In July 2004, the elected officials were informed that some of the original projections were
overstated and the plan would need to be reevaluated. He expressed concern that during that 18-month
period, there was no attempt to permit the plan.
Mr. Gaffney commented that this issue had been addressed over time and was not a subject for
this meeting. He suggested that Mr. Lynch obtain that information from either a RWSA Board member or
Mr. Tom Frederick.
Mr. Don Wagner commented that as he understood the process, to obtain a permit once a decision
had been made on the preferred alternative, a permit application would be submitted with the
accompanying technical information on that option, as well as the data on the other three alternatives that
were under consideration, in order to ascertain whether the preferred alternative was the "least
environmentally damaging, practicable" solution. He inquired that if a permit application was submitted on
Option A, and it was determined by the regulators that Option B better met their requirements, would the
regulators deny a permit on Option A but then issue a permit on Option B or would another application need
to be submitted for Option B.
Mr. Schwinn stated that there were two options available with that scenario. A permit could be
issued for Option B, or the permit could be denied with the statement that there was a "less damaging,
practicable" alternative available to the community. If it were COE's decision to permit Option B, the option
would be to either sign the permit or appeal the decision to the COE Division in New York. At that level,
COE's decision would be reviewed by an independent party. If the COE did not provide the option of
permitting Option B, an opportunity to appeal that decision above the district level would also be available.
Before moving on to the last prepared question, Mr. Gaffney asked Mr. Gary O'Connell to assume
the Chairman's role for the RWSA Board of Directors proceedings and Mr. Tom Frederick to handle any
follow-up questions in his absence.
Prior to leaving the meeting, Mr. Gaffney read the second question submitted by Mr. Boyd as
follows:
2. What do we need to do to get a reservoir approved at Buck Mountain where we bought
land years ago?
Mr. Schwinn stated that this option would need to go through the same process previously
discussed at this meeting. COE would review the purpose and need of that particular reservoir, the
environmental impacts, and whether there was a "less damaging, practicable" alternative available that
fulfilled that purpose and need.
Mr. Rooker followed up by stating that they had been previously informed that it would be highly
unlikely that a new reservoir application would be approved given the fact that there were other alternatives
available to the community. He asked if this statement was correct.
Mr. Schwinn responded that COE would never place itself in the position to prejudge any project
and would need to follow the process as described previously.
Mr. Rooker asked for DEQ's input on this question.
Mr. Hassell stated that it would be difficult to permit the Buck Mountain project, due to it being a
request for a new reservoir. The aquatic impacts with building a new dam occurred during building the first
few feet of the structure. With this project, there would a large inundation of streams and impacts to the
wetlands. The impacts associated with raising dams would be somewhat less per million gallons of
additional storage. He echoed COE's comments concerning not prejudging projects. He did not have the
technical information for the Buck Mountain project in order to make a determination on whether it could be
permitted.
Mr. Watson with DGIF stated that Buck Mountain was a known documented location for the
currently state-endangered James Spinymussel. Those records had been documented from 1998 until last
year from the survey conducted by Virginia Tech. Applying for a permit for this project would probably
require a formal consultation by DGIF on this issue, as there would be no way to remove all the species in
the inundation zone. He felt that DGIF would probably not support building a reservoir in the Buck Mountain
Creek because of the "take" on the James Spinymussel as well as the other impacts to that species that
have occurred in the watershed.
Mr. Kauffman added that in the late 1970's he had several discussions with George Williams and
Gene Potter when the Buck Mountain proposal was first being proposed as far as condemning the land.
He had advised that before the land was condemned a study be conducted for the presence of the James
Spinymussel since there was the potential for that species to be at that location. This study was not
conducted until later in the process.
Mr. Lynch asked what defined a project as "practicable." He noted that three years ago the James
River Pipeline option had not even been identified as being "practicable." He had his own doubts today
whether it was in fact "practicable" because of the cost and the issues associated with a project of that
magnitude of installing 20 miles of pipeline to pump water from the James River to Charlottesville. He
asked if the James River project could be dropped from the list of "practicable" alternatives. He mentioned
that the Buck Mountain Reservoir was "practicable," and although it might not be desirable from an
April 18, 2005 (Meeting Adjourned from April 6, 2005)
(Page 21)
environmental point of view, it could be an easy solution to the "conundrum" that the community faces by
having to negotiate between "practicality" and impacts of the current list of projects.
Mr. Schwinn restated that COE would review the projects based on the test of "practicability" for the
applicant. The factors used to make that determination included the project cost, technology, and logistics.
During the course of the analysis if COE were to determine that the alternative had been taken off the table
for a variety of reasons that rendered it "impracticable," then it would no longer be under consideration.
However, COE would still need to go through the process as described at this meeting.
Mr. Lynch further asked what would occur if the James River Pipeline were not included in the list
of "practicable" alternatives in the first place.
Mr. Schwinn replied that just because an alternative was not included in the original application did
not mean that it would not be evaluated by COE.
Mr. Lynch asked Mr. Schwinn how many alternatives not considered by the local community would
be added by the COE. He sited examples such as desalinating and treating seawater and pumping it to
Charlottesville.
Mr. Schwinn stated that in his experience, the COE took a reasonable approach when conducting
the alternatives analysis. The fact that the James River Pipeline option might not be included in the "suite"
of alternatives did not mean that COE would not evaluate that option from a "practicability" standpoint, as
well as determine if it met the purpose and need of the project.
Mr. O'Connell asked Mr. Schwinn to comment further on the pre-application meeting process as he
felt this was a logical step to take as a follow-up to this meeting and asked who locally should attend.
Mr. Schwinn replied that RWSA staff and consultants who had been responsible for the planning
process should be in attendance. He further stated that screening of alternatives could also be done at this
meeting in order to save time and money by eliminating options that would obviously not be "practicable."
Mr. Jim Brogdon would be the point of contact for the pre-application meeting.
Mr. O'Connell inquired as to what other regulatory agencies would be in attendance, and he was
informed that representatives from EPA and DEQ normally attended pre-application meetings which were
coordinated by COE.
Mr. Brogdon commented that this water supply planning process began nine years ago with 29
alternatives, and a number of pre-application meeting were held during that period of time. Since the
regulators had been through this process once before, they would be familiar with alternatives available to
this community.
Mr. O'Connell thanked everyone for their attendance at this meeting, particularly the regulators who
had to travel some distance to be present today. He also expressed his appreciation for the information
they shared on this complex issue and felt this would be of benefit during the decision-making process.
Agenda Item No.6. Adjourn.
As there was no further discussion or questions, Mr. O'Connell announced that the special meeting
of the RWSA Board of Directors was adjourned at 1 :30 p.m.
Mayor Brown adjourned the special meeting of City Council at 1 :30 p.m.
Mr. Rooker adjourned the meeting of the Board of Supervisors at 1 :30 p.m.
Mr. Donald Wagner, Vice Chairman, adjourned the special meeting of the ACSA Board of Directors
at 1 :30 p.m.
Chairman
Approved by the Board of
County Supervisors
Date: 11/02/2005
Initials: OM