Dear Ms. Gregory and Mr. Whitehurst:

On behalf of the members of Rapidan Camps, Inc. ("Rapidan Camps"), we ask that the State Water Control Board decide not to initiate a rulemaking to designate the Rapidan River as a Tier III Exceptional Water.

SUMMARY

After a public hearing on this proposal, the Madison County Board of Supervisors voted unanimously to oppose a Tier III designation of the Rapidan River. As Board Chairman David C. Jones said, "If there's ever an area of the country that doesn't need it [a Tier III designation], this is that area."¹ Indeed, one of the parties that joined the U.S. EPA's January 2001 Tier III nomination, the Superintendent of Shenandoah National Park, observed, "This [Tier III nomination] is a case study in how not to do something."²

As these comments recognize, the Nominating Parties³ failed to present any valid reason for a Tier III designation. They showed no need to impose additional protections upon a watershed that is already protected by Virginia State regulations and has remained unspoiled for decades. Nor did they show what impact Tier III designation would have upon riparian landowners and the public. Indeed, no one can know the consequences of a Tier III designation since the implementing regulations have not yet been determined.

DISCUSSION

I. There Is No Need For A Tier III Designation

Instead of explaining why a Tier III designation is needed, the Nominating Parties content themselves with praising the region's beauty and its trout fishery. Rapidan Camps, Inc., the only private riparian landowner on this stretch of the River, shares this appreciation of the Rapidan River. Indeed, for nearly half a century, Rapidan Camps has been instrumental in allowing the public to enjoy the River's charms in an environmentally-sound manner.

Four of Rapidan's five cabins were built in 1931 as part of the Hoover Administration's presidential retreat. Because of a surveying error, these four cabins were accidentally built on private property and, in 1953, were purchased by Rapidan Camps, Inc., a private co-op. To this day, the co-op's members consist of fly fisherpersons, hikers and nature lovers who limit themselves to activities that protect and enhance the area. The co-op also offers short-term rentals to nature-minded families and individuals, to organizations like the Boy Scouts and Trout Unlimited, and to carefully-screened hunting groups.

The Rapidan River's pristine beauties are already protected by National and Virginia State regulations. State and federal rules enforce environmentally friendly hiking and camping. For example, the Virginia Department of Game and Inland Fisheries already classifies the Rapidan River, Stanton River, and Garth Spring Run as protected areas. Indeed, in these areas, bait fishing is prohibited by regulations that allow only catch-and-release fishing with single, barbless hooks.⁴ U.S. Park rangers and State game wardens frequently patrol the area to enforce the law.

Such measures protect the Rapidan River's beauty that the Nominating Parties praise. The Rapidan's preserved state is proof that the area is already protected adequately--not a justification for new restrictions in the form of Tier III designation. That is why David C. Jones, Chairman of the Madison County Board of Supervisors, said, "If there's ever an area of the country that doesn't need it [a Tier III designation], this is that area."⁵

II. There Is No Showing of The Tier III Designation's Impact Contrary to The Requirement of Virginia Law

Before formalizing any proposed regulation, Virginia agencies are required by statute to make detailed findings (in cooperation with the Department of Planning and Budget) about the economic impact of any proposed Tier III designation. ⁶As a result, the regulations of the Virginia Department of Environmental Quality (DEQ) require Nominating Parties to show whether Tier III designation would be harmful to affected persons.⁷

In their January 16, 2001 Nomination, however, those Parties did not include a single word about impact.

Recognizing that this omission was fatal, DEQ deemed the Nomination to be incomplete. DEQ therefore returned the Nomination to its sponsors with the "request that you submit the statement of impact … required by" the rules.⁸

But the Nominating Parties made no serious attempt to comply. We understand that, before it submitted the Nominating Petition, the U.S. Environmental Protection Agency never even sent its employees to inspect the Rapidan River. Indeed, that petition takes a crude shotgun approach that lumps together five widely separated stream river systems, with no recognition of the Rapidan River system's unique characteristics.⁹

In any event, in their March 22, 2001 resubmittal, the Nominating Parties simply said that, for the Upper Rapidan, "Impact to landowners is none."¹⁰ But the Nominating Parties apparently based this conclusion upon its mistaken belief that the Upper Rapidan "is contained entirely in a National Park and State Wildlife Area Park."¹¹ In fact, of course, Rapidan Camps is situated on private property on the banks of the Upper Rapidan. Because the U.S. Environmental Protection Agency was apparently oblivious to Rapidan Camp's existence, the Agency's assessment of non-impact lacks credence.

The truth is that no one--not the federal agency, not Rapidan Camps, not the Water Board--can now determine the impact of a Tier III designation. The U.S. Environmental Protection Agency insists that "[t]he analysis of [a Tier III] designation impacts must be based on" a Virginia anti-degradation regulation that it quotes.¹² The federal agency is, however, apparently unaware that the anti-degradation regulation is in the process of being significantly revised. As DEQ recently advised the County Administrator of Madison County, until that rulemaking is completed, "we are uncertain of the impacts to local governments and riparian landowners resulting from an [Tier III] exceptional waters designation."¹³

The anti-degradation rulemaking will not be complete for a long while, with the amended regulations not becoming final, probably, for another eighteen months or more. Consequently, the Nominating Parties' proposal cannot now be endorsed.

III. If the Agency Decides To Initiate a Rulemaking It Must Hold Public Evidentiary Hearings

The Board should also decline to initiate a rulemaking proceeding concerning the Rapidan River because that would be an expensive waste of the Board's time.

To begin, the Board cannot issue any final regulation at its September meeting. Instead, at most, the Board could issue a Notice of Intended Regulatory Action (NOIRA).¹⁴

That notice would trigger complex hearings. In the NOIRA, the Board must state whether the agency "plan[s] to hold a public hearing on the proposed regulation."¹⁵ Even if the Board states in the NOIRA that it does not plan to hold a hearing, it must nonetheless do so if "the agency receives requests for a public hearing from twenty-five persons or more."¹⁶ At a public hearing, the Madison County Board of Supervisors and many County citizens denounced the Tier III proposal. Thus, it is certain that twenty-five or more persons would demand a public hearing, forcing one to be held.

That hearing would be protracted. The Rapidan parties would be sure to insist upon "a public evidentiary proceeding," at which they would have "an opportunity to submit data, views, and arguments" on all issues, including the "economic impact" of the proposed regulation on businesses and landowners.¹⁷ For the sake of administrative economy, the Board should end consideration of Tier III designation for the Rapidan River now.

CONCLUSION

Some Madison County residents believe that, by its sponsorship of the Tier III designation, the Federal Government hopes to force Rapidan Camps to leave its four-acre property, clearing the way for expanding the National Park. The Federal Government has the power to take the Rapidan Camps property by exercise of its power of eminent domain. If the Government exercises that power, however, it would have a constitutional obligation to pay just compensation. Surely the Federal Government should not be allowed to do indirectly--through a Tier III designation--what it is unwilling to do directly through its power of eminent domain.

In any event, the Nominating Parties' proposal lacks an adequate showing of need, of lack of impact, or of any other factors that would justify initiating a rulemaking proceeding. For these reasons, we believe that the State Water Control Board should decline to initiate a rulemaking to designate the Rapidan River as a Tier III Exceptional Water.

Respectfully Submitted,

____________________
The Board of Directors,
Rapidan Camps, Inc.

By: Richard Littell
Secretary
Rapidan Camps, Inc.
Susan A. Littell
Member
Rapidan Camps, Inc.

CERTIFICATE OF SERVICE

The undersigned hereby certified that a copy of the foregoing document was mailed upon the following participants in this proceeding by first class United States mail, postage prepaid, this 25th day of July, 2001:

Douglas K. Morris
Superintendent
Shenandoah National Park
National Park Service
Department of the Interior
3655 US Highway 211 East
Luray, VA 22835

Jay Henderson
Trout Unlimited
Virginia Council Chairman
409 Marion Avenue
Tazewell, VA 24651-1534

Marcia Woolman
President
Rapidan Chapter, Trout Unlimited
3085 Burrland Lane
The Plains, VA 20198

Robert A. Koroncai
United States Environmental Protection Agency
Region 3
Mail Code 3WP12
1650 Arch Street
Philadelphia, PA 19103-2029

_______________________
Susan A. Littell

1. Oral comments of David C. Jones, Chairman of the Madison County Board of Supervisors, at the Public Hearing of the Madison County Board ofc Supervisors, July 10, 2001.
2. Oral comments Douglas K. Morris, Superintendent of Shenandoah National Park, at the Public Hearing of the Madison County Board of Supervisors, July 10, 2001.
3. The Nominating Petition was filed by Region III of the U.S. Environmental Protection Agency and was also signed by the Superintendent of Shenandoah National Park and officers of Trout Unlimited's Virginia Council and Rapidan Chapter.
4. 2001 Virginia Fresh Water Fishing Regulations.
5. See footnote 1.
6. Virginia Administrative Practice Act, Virginia Code §9-6:14:7.1G.
7. Virginia Department of Environmental Quality's Public Participation Guidelines, 9 VAC 25-10-20.C.6.
8. Letter from Virginia Department of Environmental Quality to Acting Regional Director of the U.S. Environmental Protection Agency, dated March 8, 2001.
9. In addition to the Rapidan River, the U.S. Environmental Protection Agency nominated the following four other river systems: Bottom Creek, Little Stony Creek, Passage Creek, and Whitetop Laurel Creek. See Letter from U.S. Environmental Protection Agency to Director, Virginia Department of Environmental Quality, dated March 22, 2001 at 2-3.
10. Id. at 2.
11. Id.
12. Id at 1.
13. Letter from Virginia Department of Environmental Quality to Stephen L. Utz, Madison County Administrator, dated May 22, 2001 at 2.
14. See Administrative Process Act, Virginia Code §9-6.14:7.1 B.
15. Administrative Process Act, Virginia Code §9-6.14:7.1 C.
16. Administrative Process Act, Virginia Code §9-6.14:7.1 C.
17. Administrative Process Act, Virginia Code §§9-6.14:7.1E; 9-6.14:7.1G; §9-6.14:8 (emphasis added).