One SUP would allow the James River Water Authority (JRWA) to construct a raw water supply system, including an intake station, on the Point of Fork near Columbia. Some residents oppose the intake station’s location, claiming it would harm an area of historic importance. The other SUP would allow the Louisa County Water Authority (LCWA) to build a raw water pipeline northeast through Fluvanna.
Recently touted as major votes to approve or deny the James River water project, the SUP votes are zoning matters. The actual agreement to construct the James River water project was signed two years ago in October 2013 by Fluvanna, Louisa, the JRWA, and the LCWA.
“This agreement constitutes the legal, valid, and binding obligation of each of the parties, enforceable against each of the parties in accordance with its terms,” states the agreement.
By signing the agreement, Fluvanna legally bound itself to “take all necessary and legally permissible steps to ensure that the James River pipeline and its facilities are and remain permitted under its zoning ordinance,” the agreement states.
Fluvanna must permit the pipeline’s zoning even if it “passes through an area that is subject to a county conservation easement or an agricultural and forestal district,” according to the agreement. Point of Fork and much of the pipeline’s proposed route is zoned agricultural.
“By executing this agreement, Fluvanna authorizes JRWA and LCWA to establish, construct, use and maintain the facilities contemplated in this agreement,” the agreement states.
If supervisors deny the SUPs for construction on Dec. 2, the other parties – Louisa County, the JRWA, and the LCWA – may see Fluvanna’s actions as a breach of the agreement. “The parties agree that, in the event that there is a disagreement between them regarding compliance with the terms and conditions of this agreement, prior to filing any suit the disagreement will be submitted by the parties to a neutral mediator for at least 60 days,” states the agreement.
Any party that perceives a breach or threatened breach in the agreement is entitled “to seek and obtain a decree or order of specific performance to enforce the observation and performance” of the agreement, according to the document. It can also seek and obtain “an injunction restraining such breach or threatened breach.”
When asked if Fluvanna could argue that it had grounds to deny these two specific SUPs in favor of other SUPs selecting different pipeline locations, County Attorney Fred Payne said, “I’m really reluctant to comment on that. I think the language [of the agreement] is pretty clear.”
When asked if Payne will counsel supervisors to vote for the SUPs rather than face potential litigation for breach of contract, Payne said, “I can’t tell you what legal advice I give the Board of Supervisors. I never share with the public the legal advice I give my clients. It’s my duty as a lawyer.”
Could Fluvanna credibly claim that the current proposed intake and pipeline locations are unacceptable, but other locations would be? If so, on what grounds would Fluvanna base that claim?
“I don’t have an opinion on that. It’s really an engineering issue,” said Payne. “Sure, it’s always a possibility that engineering would make it an unacceptable route, if there were some technical reason why it wouldn’t work… I’m not aware of any.”
If Fluvanna denies the SUPs, who would bear the burden of proof in potential litigation for showing that the current proposed route was unacceptable? “Any time a party is alleging a breach of contract the burden of proof is on him,” said Payne. “Could that turn around in the course of litigation? Litigation does a lot of strange things.”
Payne declined to comment if Louisa would have a difficult or an easy time in proving breach of contract if Fluvanna were to fail to pass the SUPs.
The general location outlined for the pipeline is “pretty clear,” said Payne. “The Comprehensive Plan was amended to show that.”
The agreement dictates that the water pipeline will originate from a point on the James River near Columbia. The permit dated Nov. 20 from the Department of Environmental Quality (DEQ) has the Point of Fork as its intake location. If supervisors were to find the Point of Fork to be an unacceptable location for the intake station, County Administrator Steve Nichols said the permit could be difficult to modify.
“It is conceivable and possible that the DEQ could consider a location move, but it depends on the scope of the change,” said Nichols. “Three miles up the stream is a major change and could take another year, year and a half. One hundred yards would be a minor modification and likely would not create a particular problem with DEQ, but it would still take time. We’d have to apply for a permit modification, and there’s no way to tell how long it would take. We thought this permit would be issued in nine to 12 months and it took 18 months. And nothing is getting easier about permits in the world.”
Moving the intake location would require starting the SUP process from scratch, Nichols noted, which takes two to three months at an “absolute minimum.”
The agreement uses general language to discuss a time frame for compliance but no dates are specified. How long does Fluvanna have to comply with the agreement before Louisa gets antsy? “I don’t know,” said Payne.
An addendum to the agreement passed Nov. 18 by Fluvanna supervisors states that Louisa will have at least 400,000 gallons per day of treated water to Zion Crossroads by the end of 2018 for Fluvanna’s use.
“The plain language of the contract speaks for itself,” Payne said. “I think the language is pretty clear.”
Supervisors are expected to vote on the two SUPs after public hearings Dec. 2.
The agreement and the addendum can be found on the county’s website.
