Justin Curtis – C-VILLE Weekly

In deep: Allegations of mismanagement complicate Louisa’s demand for water

By Spencer Philps

A host of issues have emerged in recent months that look to complicate the James River Water Authority’s plans to construct a water pump station at the confluence of the James and Rivanna rivers. The site, today referred to as Point of Fork, is also the location of Rassawek, the historic capital of the Monacan Indian Nation.

As development has boomed in Zion Crossroads, despite a dwindling supply of groundwater, Louisa and Fluvanna counties have sought an alternate long-term water source, and formed the authority to pump water to the area from the James.

The Monacans, a tribe federally recognized in 2018, have fiercely opposed the construction project, saying it will irreparably harm the culturally significant site, as well as disturb the remains of Monacans likely to be buried there. More than 1,300 individuals and organizations have signed a letter sent to the U.S. Army Corps of Engineers and Governor Ralph Northam opposing the project.

Although the JRWA has able to secure two permits for the pump station, it still needs at least two more: one from the U.S. Army Corps of Engineers for impacts to streams and wetlands under federal jurisdiction, and one from the Virginia Department of Historic Resources for a second anticipatory burial permit in case the water authority encounters burial sites or human remains during excavation.

The JRWA has faced roadblocks for both permits. On September 6, the Virginia Department of Historic Resources issued a letter stating that it would be unable to issue a permit in part because it had deemed the archeological consultant on the project, Carol Tyrer and her firm, Circa Cultural Resource Management, lacked the necessary qualifications.

On September 10, the U.S. Army Corps of Engineers issued a letter to the JRWA saying it had become aware of the issues with Carol Tyrer and her firm, and based upon the “concerns and uncertainty regarding the proposed project’s impact to historic properties,” was now requiring JRWA to undergo a more comprehensive individual permitting process for the project.

Things grew increasingly fraught in October, when a former employee of Circa Cultural Resource Management brought forward allegations of wrongdoing at the Rassawek site. The whistleblower, Eric Mai, alleged that Circa sent an unqualified and untrained crew to survey and excavate at the site, lied to DHR officials, produced misleading and plagiarized reports, and did not provide appropriate resources or equipment for workers, resulting in the maltreatment of artifacts. Mai alleges that Circa went so far as to alter his resume to give him qualifications he did not possess, unbeknownst to him at the time.

“The whistleblower came forward with more information with what happened out there at the archeological study at Point of Fork, which was just devastating,” says attorney Marion Werkheiser, whose firm represents the Monacan Indian Nation. “It’s clear that they were using construction workers to excavate the most sensitive parts of the site, who had no training, no supervision. We’ll never know what was lost in that process.”

John Smith documented the Monacan capital Rassawek at the confluence of the James and Rivanna rivers in 1612. PC: Library of Congress

Justin Curtis, the lawyer representing the JRWA, says there is still an ongoing investigation into the allegations raised by Mai.

“Nothing has been stated publicly about that process because we are still evaluating the information and haven’t come to any conclusions at this time.” Curtis says. “Everything is being fully vetted and fully evaluated.”

As a result of the whistleblower report, the Monacan Nation is now arguing that the U.S. Army Corps of Engineers is legally barred from giving a permit to the JRWA per Section 110(k) of the National Historic Preservation Act, which states that federal agencies are forbidden to issue a permit to an applicant who has “intentionally significantly adversely affected a historic property to which the grant would relate.”

“The way that we read that whistleblower complaint, it was clear that there had been destruction of the site as a result of Circa’s work there,” Werkheiser says.

Curtis says he strongly disagrees with this conclusion.

“That section…is intended to prevent unscrupulous parties from going out and intentionally destroying historical or cultural resources and then claiming ‘Oh, there’s no resources here’ after they’ve already gone out and destroyed them. That’s clearly not what’s happened here.” he says.

The Monacan Nation has notified the Army Corps of Engineers about its concerns, but Werkheiser says it does not expect a response until the water authority completes its application.

Meanwhile, in November, the JRWA filed a lawsuit against the Virginia Department of Historic Resources, contesting the department’s conclusions about Tyrer’s qualifications and arguing that it was not involved in processes that ought to have been afforded it under state and departmental regulations. And Tyrer has filed her own lawsuit against the DHR in the Virginia Circuit Court for Williamsburg and James City County. She declined to comment for this story.

Curtis says that he is optimistic that the issue can be resolved “through further discussions with DHR,” and believes that the JRWA will be able to submit its completed permit application to the U.S. Army Corps of Engineers by January.

Unfortunate confluence: Ancient Monacan site intersects with Louisa’s growing thirst

In John Smith’s 1612 map of Virginia, at the point where the Rivanna River meets the James, he marked Rassawek, the capital of the Monacan Indians. Jump forward 400 years and the site is on another map, this one targeting it as a pump station to quench Zion Crossroads’ thirst.

Louisa and Fluvanna counties joined forces in 2009 to form the James River Water Authority to pump water from the James for a long-term water supply for growth-booming Zion Crossroads, which depends on wells for its water, says AquaLaw attorney Justin Curtis, who represents the water authority.

“There is a real and immediate need for water in the area,” says Curtis. “This is not a problem that’s getting better. It will only get worse.”

The water authority applied to the Army Corps of Engineers for a water intake and pump station permit at Point of Fork, the modern-day designation for Rassawek. That triggered Section 106 of the National Historic Preservation Act, which requires the Corps to consider adverse effects to the Monacan site and “avoid, minimize, or mitigate,” says Marion Werkheiser with Cultural Heritage Partners, which represents the Monacans.

The James River Water Authority knew the land was a significant historic site, says Werkheiser. “They ignored it and bought it anyway” in July 2016. “They didn’t reach out to the tribe until May 2017.”

Rassawek today is called Point of Fork. Carrie Pruitt

The Monacan Indian Nation received federal recognition in January 2018. “Archaeological testing shows artifacts that go back 200 generations,” says Werkheiser.

“Rassawek was the capital of the Monacan confederacy, and several other towns paid tribute to Rassawek,” says Monacan Chief Kenneth Branham. “It is where we conducted ceremonies, lived, and died, for thousands of years.” To build the pump station, a four-acre site will be excavated, says Werkheiser. “That is not acceptable to the Monacans,” who want the Army Corps of Engineers to deny the permit, and also want Virginia’s Department of Historic Resources to deny a permit for anticipatory burial, in the event human remains are found.

Curtis acknowledges that possibility is a “sensitive” issue. “We’re all hoping no human remains will be disturbed,” he says. “Historically people haven’t buried their dead at the confluence of two rivers. We’ve already done a number of archaeological digs and haven’t found any.”

If the project is approved, archaeologists will go into the site first “to learn as much as they can about the people who were there first,” says Curtis. Artifacts will be turned over to the Monacans, and the James River Water Authority has pledged $125,000 to the Monacan Ancestral Museum, he says.

The Monacan Nation has been asked to provide its protocol if remains are found, says Curtis. “They will be treated respectfully,” and the Monacans can re-inter them in Amherst, where many live in the 21st century.

“We have been through reburials before, and it is a traumatic experience for all involved,” says Branham. ”I can’t ask our tribal members to go through that again for a pump station that could be built elsewhere.”

He asks the Army Corps and Governor Ralph Northam “to respect our tribe and to work with the water authority to find a location for their project that does not disturb our ancestors.”

There’s always the possibility construction could disturb burial sites, whether African Americans or colonists, Curtis says.

In fact, the U.S. 29 Western Bypass was kiboshed in 2013 when a historic African American cemetery was discovered in its path.

Curtis says there are historically significant sites all along the James River. Point of Fork has been “occupied for thousands of years for the same reasons we need to be there now: It’s a source of water.” He adds, “No one disputes it’s a very important site.”

If the Rassawek site is not used, what would be a nearly mile-long pipeline would grow to 5 or 10 miles, says Curtis.

Not only does Louisa have a connection pipe waiting, it’s also built the Ferncliff water treatment plant, which has no water to treat at this point, says Curtis.

And that points to Louisa’s biggest problem: development without the water to support it.

Rae Ely has her own beef with Louisa County’s handling of water resources. “There is no groundwater at Zion Crossroads. They’ve tested and tested. That didn’t stop them and they did all that building.”

Ely lives in Louisa’s historic Green Springs district. In 2006, the county built a three-mile pipeline to Green Springs, and said, according to Ely, “We’ll pump out their groundwater.”

Green Springs residents have been tracking the depletion of their groundwater for 13 years, she says. “It’s dropping like a rock.”

She alleges that “the powers that be have been lying and claiming the James River water will be here any day now, while failing to say the Monacans opposed it.”

Ely, who has been an attorney for more than 30 years, says, “I know federal law favors the Monacans. They’re going to win. That’s a nonstarter.” And her neighbors are prepared to seek an injunction to stop Louisa from pumping out Green Springs’ groundwater, she says

“Louisa County got out over its skis and built all this commercial development,” says Ely. And it has 2,000 homes and apartments ready to be approved, “all looking for water and it’s not there,” she says.

Ely compares the development going on in Louisa, based on water from the James that isn’t coming any time soon, to a gold rush. She offers a one-word piece of advice to the county: “Moratorium.”