Ed. — This archived story originally ran in print on Friday, July 5.
BY JOHN-HENRY DOUCETTE
VIRGINIA BEACH – Back Bay Restoration Foundation, a non-profit organization that advocates for the health of the bay and its watershed, has launched a court challenge to stop a federal permit process that clears the way for wetlands to be disturbed by additional development and some stormwater management work in the Ashville Park subdivision.
In June, the foundation sought a preliminary injunction against the U.S. Army Corps of Engineers for granting the permit to the developer, HOFD Ashville Park LLC, allowing destruction of some wetlands while it builds new lots, parking, amenities and stormwater management infrastructure.
The corps determined an environmental impact statement and public hearing on the matter was not needed, according to records filed in federal court. The foundation disputes this and seeks reversal of the permit before resources at the site are destroyed.
In a court filing, the foundation claimed the corps violated the Clean Water Act and National Environmental Policy Act in its permit process, and that it did not provide enough opportunity for public comment.
This past week, the foundation and corps entered a joint motion, and the foundation withdrew its request for an injunction, allowing for a timetable for providing information to the court that should resolve the dispute this year. Work in the neighborhood was not planned to start immediately, the filing noted.
In a statement released on Tuesday, July 2, Doug Kahle, an attorney representing the foundation, said the U.S. Department of Justice, representing the corps, “convinced the corps and the developer to refrain from conducting any work otherwise authorized under the permit until December.” By that time, the court will likely have ruled, Kahle said in the statement.
Jared Brandwein, executive director of the foundation, said during an interview that the joint motion suggested the court would have granted an injunction. He said this may encourage the city, corps and developer to consider other infrastructure options in the subdivision near Pungo.
“We believe there are alternatives to what they’re proposing that actually increase wetlands rather than fill in wetlands for a parking lot,” Brandwein said.
The motion said the permit allowed for discharging dredged or fill materials into waters of the U.S., affecting a total of 1.49 acres of open water and wetlands. The foundation is concerned about the effects of runoff on the bay and surrounding areas, as well as continued development amid flooding concerns in the southern reaches of Virginia Beach.
“We want smart development,” Brandwein said, “and we don’t want Back Bay to be continued to be used as the toilet bowl.”
The developer, according to the motion, will not start the permitted work before Dec. 15 and would provide 30 days notice before starting any of the work.
In correspondence early last month, a representative of the corps told a member of the foundation the developer had avoided 32 acres of wetlands on the site and “minimized the wetland impacts by moving the stormwater pond out of wetlands.” The developer reduced wetlands impacts from 2.23 acres to 1.49 acres, according to the corps.
In May, William T. Walker, chief of the regulatory branch for the corps’ Norfolk District, wrote in a letter to Brandwein responding to a request for a hearing and an environmental impact statement.
Walker’s letter, included in court filings, said a public hearing “would not likely result in substantive new information relevant to our authorities and the required analysis. Therefore, a public hearing will not be held.”
The permit “will not have a significant impact on the quality of the human environment,” Walker wrote in the letter, and so no impact statement was needed.
Back Bay Restoration Foundation, in arguing for a preliminary injunction, said stopping the permit would mean the corps would only “suffer the inconvenience” of properly reviewing the project. The developer might be delayed in its work, which is “of minor import compared to the destruction of valuable environmental resources,” the foundation argued in the June court filing.
A year ago, the City Council authorized an agreement between the city and HomeFed Corporation, the California company now developing Ashville Park via HOFD Ashville Park, that cleared the way for some additional development in the subdivision, additional stormwater storage at the site and infrastructure improvements in a neighborhood that has experienced significant flooding.
The neighborhood now has about 300 lots, and that number could grow to 455, rather than 499 initially approved there. Ashville Park is in a transition area between the city’s suburban north and rural south. Some development is allowed, but the area – and Ashville Park itself, which was built with insufficient drainage by another developer before HomeFed was involved – has been a source of tension amid increasing flooding concerns.
An attorney representing the developer declined to comment this past week, and a HomeFed executive did not reply to an email seeking comment sent Wednesday, July 3. A media representative for the U.S. Attorney’s Office, representing the corps, did not respond to a request by The Independent News seeking comment on Wednesday, July 3.
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