When both tribe and city eye a river

A Virginia case may be the first test of how the Bush team interprets 'environmental justice.'

The Mattaponi Indians - which include descendants of Pocahontas - have long considered sacred the river that runs through their reservation in Virginia. The annual shad run, in particular, is of great cultural significance.

"We still fish the waters the same way we taught the early settlers," says Linwood "Little Bear" Custalow, tribe historian. "It's the last part of our living culture that we really have."

Now, however, the city of Newport News, Va., wants to transfer water out of the Mattaponi River to support its growing population. The result is a clash of old and new - ancient religious values and modern water needs - that could set a precedent for how such disputes will be settled in the future.

Indeed, the case may mark the first major test of how the Bush administration interprets issues involving "environmental justice."

President Clinton signed a vague executive order in 1994 that requires consultations with low-income people before large projects can go forward that may effect them.

He made the move after investigators pinpointed what was termed a "cancer alley" in Louisiana, where permits were frequently given to refiners and industries in poor neighborhoods. Later, the Nuclear Regulatory Commission used the order to take a second look at a uranium enrichment plant proposed for the Bayou State. The company ultimately gave up.

But President Bush has made no public statement on whether he'll continue this policy. Now he might have to.

Starting this month, the federal government - in the form of the Army Corps of Engineers - will try to sort out the Mattaponi clash. A preliminary finding by the corps cited environmental justice as one of the reasons to deny Newport News the permit needed to begin the project.

Now, Gen. Stephen Rhoades of the corps in Brooklyn, N.Y., will review the decision, and a 60-day public-comment period will begin.

"The fact that there is a preliminary decision of this sort means there will be a lot of scrutiny of it," says Christopher Foreman, an expert on the issue and a professor at the University of Maryland at College Park. "Activists are looking hard for places where there is some traction and areas where they can generate favorable administrative precedent."

When the Army corps turned the city down, officials in Newport News were stunned. "We tried to work with the Mattaponi and be sensitive from Day 1," says Dave Morris, project manager for the reservoir. He ticks off the things the city has done, from hiring a local tribe member to identifying archaeological sites. But, he says, "It's a problem getting them to understand the issue."

Mr. Custalow says he understands the issue just fine. He had two years of engineering before he went to medical school. "The way I see it, they won't look at alternatives, like conserving water, instead of destroying natural resources."

Yet Newport News says it needs the water because it is close to using 80 percent of its capacity. Without new water, it won't be able to attract new industry or allow new houses to hook up to the city's water system.

The state, which also had to approve the operating permit, maintains it has set up enough checks to ensure that the shad are fine and the wetlands survive. "We believe the permit to operate has very strict requirements for the operation of the facility that would make certain there are no bad effects on the water quality, particularly on the Mattaponi River," says John Paul Woodley Jr., secretary of natural resources for the state.

In fact, Mr. Woodley notes that the city appealed the state's restrictions in court and lost.

According to the city, the water transfer won't effect the shad. It says it would only withdraw water during periods of high flow, such as in the spring or winter. It would also use state-of-the-art techniques to prevent the shad larvae from being sucked into the reservoir.

The city is also proposing to create two acres of wetlands for every acre it destroys by building the reservoir. "We are balancing nature," says Mr. Morris.

But the Virginia chapter of the Sierra Club says the destruction of more than 400 acres of wetlands is too much to sacrifice. Glen Besa, executive director, says it contains a rookery for great blue herons and at least two threatened-plant species.

"It would be the largest loss of wetlands in the state since the passage of the federal clean water act of 1972," says Mr. Besa, who points out this is "forested wetlands," an endangered area. "You just can't plant saw grass and replace it - these are 100-year-old trees."

And it's not just the trees that matter, says Custalow. He says the wetlands have a lot of meaning to the tribe, which took cover in them during Bacon's Rebellion in 1676. That's when Nathaniel Bacon tried - unsuccessfully - to kill all the Indians so the English would have no one to protect.

"It's where our people hid to try to keep from being annihilated," says Custalow. "They are very important to us."