http://www.dailypress.com/news/local/dp-00602sy0jun06.story?coll=dp%2Dnews%2Dlocal%2Dfinal

Corps to appeal Newdunn ruling

Loss would extend ruling's effect

By Christopher Schnaars
Daily Press

June 6 2002

NEWPORT NEWS -- The U.S. government may ask a federal appeals court to reverse the ruling of a Norfolk judge who said the government has no authority to stop a developer from filling nearly 40 acres of wetlands in Newport News.

The U.S. Justice Department, the U.S. Army Corps of Engineers and the Virginia Department of Environmental Quality didn't want Newdunn Associates to tamper with the wetlands property near Peninsula Industrial Park. But three months ago, U.S. District Court Judge Henry "Coke" Morgan Jr. ruled that the federal Clean Water Act does not give state and federal environmental officials the authority to regulate the property.

On Friday, the Army corps gave notice that it would appeal Morgan's ruling to the 4th U.S. Circuit Court of Appeals. The state filed its notice of appeal on May 7.

Doug Kahle, Newdunn's lawyer, said the appeals court could hear arguments and rule before the end of the year. Kahle said he is confident Newdunn will win the case on appeal.

If the Army corps did not appeal, Morgan's ruling only affects the eastern district of Virginia, Kahle said. If Newdunn wins the appeal, however, the ruling would affect the rest of the state, as well as Maryland, West Virginia, North Carolina and South Carolina.

"The Corps of Engineers has repeatedly refused to accept any court's decision," Kahle said. "They just refuse to, so it doesn't surprise me that they've appealed."

Army corps officials declined comment.

The dispute landed in court last year when Newdunn tried to fill the wetlands, add ditches and remove trees. Wetlands can soak up floodwaters, filter pollutants from water and provide food and shelter for waterfowl, shellfish and small mammals.

The developer, which has owned the undeveloped property for decades, wanted to do that work before Oct. 1, when the state got more authority to regulate wetlands like the Newdunn property. No plans for developing the property have been disclosed, but Kahle has said it could be worth up to $4 million, if developed.

Christopher Schnaars can be reached at 247-4768 or by e-mail at cschnaars@dailypress.com