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.

Back Bay Restoration Foundation Successful – Army Corps Permit on Hold

Tuesday, July 9 – This afternoon Back Bay Restoration Foundation (BBRF) attorney, Doug Kahle, was pleased to announce that the Back Bay Restoration Foundation was successful in its efforts to obtain an injunction against the US Army Corps of Engineers regarding the permit for Ashville Park.

“Upon receipt of our Motion for Preliminary Injunction and Complaint, the DOJ [Department of Justice] spoke with the Corps and the developer. Clearly the DOJ believed we would prevail on our Motion for Preliminary Injunction so the DOJ convinced the Corps and the developer to refrain from conducting any work otherwise authorized by the permit until December, 2019, (and upon 30 days advance notice) by which time the Court will have ruled on our case in chief”, he said.

On June 20, 2019, the Back Bay Restoration Foundation (BBRF) filed a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Virginia, to force the US Army Corps of Engineers (Corps) to rescind their permit allowing the City of Virginia Beach and a California developer from destroying wetlands in the Back Bay watershed for parking lots.

“We are pleased that the DOJ implicitly acknowledged that a preliminary injunction, recognized as an extraordinary form of relief, was likely to be granted thereby protecting these resources while the Court considered the merits our of case”, said Jared Brandwein, Executive Director of the Foundation.

Although BBRF has proposed solutions that would restore and increase wetlands in Ashville Park, a development in Virginia Beach, neither the Corps, the City nor the California Developer have allowed for a transparent process for public participation and alternative analysis. Faced with no avenues for discussion and actions by the Corps otherwise not in accordance with the laws and in violation of the Administrative Procedure Act, BBRF had no options other than to pursue legal action. “As the only non-profit group with a mission to conserve Back Bay, BBRF will continue to pursue legal relief until the Corps, City and developer agree to consider alternatives to outdated housing project development schemes”, said David Johnson, Board President.

Exactly one month ago I wrote a blog entitled “Why Ashville Park?” The blog began with, “Why not Heritage Park, or even Lago Mar? For that matter, why not the early farmers who cut, ditched and drained the mostly forested wetlands that historically comprised a good portion of the Back Bay watershed? And don’t forget the Civilian Conservation Corps, who “stabilized” dunes up and down the mid Atlantic coast, preventing barrier island migration, wash overs, and all kinds of natural, dynamic processes… why not blame them for the current state of Back Bay?”

This past Thursday, the Back Bay Restoration Foundation (BBRF) filed a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Virginia, to force the US Army Corps of Engineers (Corps) to rescind their permit allowing the City of Virginia Beach and a California developer to destroy wetlands in the Back Bay watershed for a parking lot. The permit the Corps issued was for Ashville Park.

Back in February, during the public comment period, BBRF and other concerned citizens submitted detailed comments to the Corps including reference sources about potential impacts from the permit, and requested a public hearing and an Environmental Impact Statement (EIS). We followed up our comment letter with both phone and emails to the Corps, always requesting public participation/consideration and for a complete EIS to be conducted prior to permit issuance.
On May 28th, BBRF held a well-attended public meeting/listening session where we proposed several environmentally sound alternatives (see the solutions section of our web site) to the full buildout the City, developer and Corps were proposing in their permit notice. We spent most of that meeting listening to others who value the Back Bay watershed, vetting various ideas. We were doing our homework so that when the Corps/City/Developer asked, we would be ready to present solutions and alternatives for consideration. Solutions that are endorsed by citizens who care.

Unfortunately, that opportunity never happened and, on May 23rd, the Corps issued the same form letter to every person and organization who had taken the time and effort to put pen to paper. That form letter summarily dismissed our requests for public participation and an EIS without explanation.

It is important to know that our request for an injunction has nothing to do with existing homes in the Ashville Park housing project, and everything to do with the future conservation of the Back Bay watershed. The law suit has everything to do

with how our governments make decisions and involve the public to find innovative solutions. It has everything to do with ending business as usual, where decisions are made behind closed doors to the benefit of individuals at the expense of the very watershed that lines their pockets. The old expression “don’t kill the goose that lays the golden egg,” comes to mind.

With the Corps issuance of a permit to destroy wetlands for a parking lot, with no justification other than a one page form letter, the BBRF Board felt they had no option other than to file for an injunction. We are hopeful that if successful, the Corps, City and Developer will choose to finally engage in transparent discussions about environmentally sensitive land uses and policies in the Back Bay watershed specifically, and Virginia Beach generally.

With the challenges Back Bay faces (increasing impervious surfaces, increased wind tides, land subsidence and sea level rise), we believe the opportunity exists for new approaches to land use policies and practices. Certainly, business as usual will only serve to delay our ability to address future challenges. We believe that Ashville Park presents the perfect opportunity for Virginia Beach to implement some of the natural solutions they tout publicly.

While BBRF absolutely does not oppose development, and respects private property rights, we absolutely DO oppose using Back Bay as a convenient BMP, or as justification for ignoring predevelopment hydrology. Back Bay is a precious resource at its tipping point, not a toilet bowl to be flushed by unplanned impervious surfaces as far as the eye can see.

Post Script:
BBRF is fortunate to have one of the most dedicated, knowledgeable, conservation Boards in Virginia. We have always operated a modest organization with every donated penny directly supporting the conservation of Virginia Beach’s two southern watersheds.

Taking legal action against the government is a very expensive endeavor and something that a nonprofit such as ours seldom attempts. In challenging the “business as usual” attitude, the BBRF Board has shown their commitment to changing how we treat the land that has provided generations the bounties of nature.

The Board also showed their confidence that those who cannot afford to take on the business as usual attitudes on their own, but will step up and contribute to our legal defense fund. Your donation, large or small, will be greatly appreciated.

On June 20, 2019, the Back Bay Restoration Foundation (BBRF) filed a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Virginia, to force the US Army Corps of Engineers (Corps) to rescind their permit allowing the City of Virginia Beach and a California developer from destroying wetlands in the Back Bay watershed for parking lots.

“Despite our submittal of five pages of comments, and many individual letters of our members imploring the Corps to accept public input at public hearings and for them to fully evaluate alternatives in an Environmental Impact Statement, the Corps issued the same, nonresponsive form letter to all commenters on May 23, 2019”, said Jared Brandwein, executive Director of the Back Bay Restoration Foundation.  The form letter, without rationale, served as public notice that the Corps has issued a permit to destroy natural wetlands for a parking lot in the Ashville Park housing projects in Virginia Beach, VA.

Although BBRF has proposed solutions to restore and increase wetlands in Ashville Park, a development in Virginia Beach, neither the Corps, the City nor the California developer have allowed for a transparent process for public participation and alternative analysis.

The Corps’ action in issuing the Permit violates the Clean Water Act, the National Environmental Policy Act (NEPA) and is arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with the law in violation of the Administrative Procedure Act. “As the only non-profit group with a mission to conserve Back Bay, BBRF will continue to pursue legal relief until the Corps, City and Developer agree to consider alternatives to outdated housing project development schemes”, said David Johnson, Board President.

About the Back Bay Restoration Foundation

The mission of the Back Bay Restoration Foundation is to serve and protect the residents of the Back Bay and the fragile Southern watersheds which are subject to increasingly severe flooding and to create solutions which foster responsible development.

Inquiring minds want to know… why Ashville Park? Why not Heritage Park, or even Lago Mar?  For that matter, why not the early farmers who cut, ditched and drained the mostly forested wetlands that historically comprised a good portion of the Back Bay watershed? And don’t forget the Civilian Conservation Corps, who “stabilized” dunes up and down the mid Atlantic coast, preventing barrier island migration, wash overs, and all kinds of natural, dynamic processes… why not blame them for the current state of Back Bay?

As BBRF prepares for our Public Meeting/Listening Session, we’ve been trying to gather, and focus our thoughts on the best ways to capture new ideas about this complex watershed. Most importantly, how do we focus on actions and decisions, that will impact the watershed in the future?  What actions/decisions should be made today, that will serve to conserve the watershed well into the future?  How do we improve water quality and mitigate the long term impacts of Sea Level Rise (SLR)?  With the City’s SLR meetings beginning on May 29^th, we wanted to give those concerned about Back Bay a way to talk and listen to each other.

And in that preparation, it became abundantly clear that our meeting could not be about the past.  Sure, we need to learn from our past decisions, but only as they inform solutions.  In the continuum of land use history, it’s impossible to mark a point in time when things started to go “wrong” in the watershed.  It’s also not productive.

So…. Why Ashville Park?  The answer is simple.  Ashville Park is only partially developed.  Ashville Park can serve as an example, proving ground, and focus area for Virginia Beach to show how we use science to actually implement new policies. Back Bay is almost certainly at or near it’s “tipping point”, and Ashville Park could be the land that nurses the watershed back to health.