SUFFOLK, Va. (WAVY) — Oystermen are fighting back against the City of Suffolk and the Hampton Roads Sanitation District after losing to them in Suffolk Circuit Court. 

As was once said, “It’s not where you start, it’s where you finish.” The oystermen are going to a higher court to fight their battle.  

The Supreme Court of Virginia has decided to hear the case. 

The issue to be decided in this case: Can the city of Suffolk and HRSD discharge wastewater and stormwater into the Nansemond River and other waterways? The oystermen allege Suffolk and HRSD are doing it — and polluting the waters — in violation of a consent agreement saying they wouldn’t.

Preventing pollution is the bottom-line issue in this case, according to the oystermens’ attorney Joe Waldo.

“The hubris of the City of Suffolk and HRSD that we are the government and we are above the law.  To say the consent decree doesn’t matter, and we have a 100-year-old case that says 100 years ago you can pollute because there was no technology to handle the waste,” Waldo said. 

Suffolk oysterman Robert Johnson told WAVY News in January 2019 that there were several hundred acres of oyster beds that have been condemned by the Virginia Department of Health because of bacterial pollution.

It’s true, the Virginia Department of Health website shows the massive areas of condemned and conditionally condemned shellfish areas in the upper Nansemond River. 

Waldo’s client is Johnson. Waldo is a nationally-recognized eminent domain attorney,  

“How can you possibly defend the position that says it’s OK in this modern age to discharge raw sewage into the river that belongs to the people of Virginia? That’s the question here. That’s why the Supreme Court is hearing this case,” Waldo alleged.

That’s because the oystermen lost at the lower court after the judge used a 1919 U.S. Supreme Court case that “held an oyster bed lessee’s right to use river bottom is subordinate to the locality’s right to pollute the waterways.” 

Waldo says the Clean Water Act did not prevail.

“The law says governments can pollute the waterways… It’s not 100 years ago.  It is today, and the issue will always be, how can you put untreated raw sewage into a river that people fish, raise oysters, and swim, and boat in?” he said.

The attorney for Suffolk is Dave Arnold with Pender & Coward, which also specializes in eminent domain and right-of-way issues, emailed us.

“As WAVY-TV reported in January of 2019, we staunchly dispute that the City of Suffolk is in violation of a consent order or that it has committed any wrongdoing.  A judge has since ruled in the City’s favor and dismissed the case.  The plaintiffs have now appealed their defeat, and the City continues to deny these false allegations.” 

Waldo continues to argue.

“The Constitution of Virginia, it says you can’t damage or take private property without just compensation,” he said. “We have the ability to treat the sewage and in fact the City of Suffolk is under an order from EPA and DEQ to not discharge into the Nansemond River.” 

Waldo says the court will likely put this case on the September or November docket.

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