By Whitney Pipken, Bay Journal News Service
The Virginia State Supreme Court has ruled that a waterman does not have the right to be compensated for property damages if the oyster grounds he leases from the state are regularly polluted by a local sewage treatment facility.
Robert Johnson, who owns Johnson and Sons Seafood in Suffolk, VA, last year appealed to the state supreme court on behalf of oystermen, contending that the City of Suffolk and the Hampton Roads Sanitation District’s routine pollution of the Nansemond River — via sewage overflows from outdated infrastructure — amounts to damaging both property and livelihoods.
But Justice Stephen R. McCullough wrote in his December 10 opinion that neither existing statutes nor case law, nor the oyster leases themselves, grant oystermen “the right to grow oysters in conditions free of pollution.”
The court found that this case was similar to one from 1919, Darling v. City of Newport News, that did not grant oystermen such damages under similar circumstances.
The lawyer representing Johnson and other oystermen in the lawsuit, Joe Waldo, testified in November that a lot has changed over the last century when it comes to clean water and environmental laws.
“Back in the old days, it was a practical necessity that localities had to [discharge sewage], but the law now says you can’t do this anymore,” he said during the online court case.
The sanitation district has several projects in the works to replace or fix aging pipes running to 18 wastewater plants in the region. But while the district has been working under a consent decree with the U.S. Environmental Protection Agency since 2010 to reduce its sewage overflows, the decree does not include deadlines for completing the work.
In his opinion, the judge conceded that water quality laws have changed during the last century but still reasoned that, based on existing laws, the city and sanitation district “did not remove or physically destroy the oysters themselves,” and that the oystermen do not own the waters flowing around the oysters. Therefore, they are not owed damages, he wrote.
Johnson said he was disappointed about the court’s decision but is running out of options amid ongoing pollution-related closures. In January, a main line carrying untreated wastewater to a treatment plant in Newport News burst, spilling an estimated 29 million gallons in the area. Johnson said the spill closed 20,000 acres of oystering area, much of it remaining closed to harvest until mid-March.
“To have — especially at this day in time — human waste going into the watershed,” Johnson said. “It’s hard to get your head around, and yet the Supreme Court of Virginia says that’s OK.”
