SUFFOLK, Va. (WAVY) — A Suffolk oysterman who has raised oysters for 40 years is suing the City of Suffolk and Hampton Roads Sanitation District for polluting his leased oyster beds.

In his lawsuit, Robert Johnson claims 1,000 of 3,000 acres of leased oyster beds are affected by condemnation declared by the Virginia Department of Health. 

This lawsuit alleges what’s in the water is, pollution, and that Suffolk and HRSD discharged wastewater, and stormwater into the Nansemond River and other waterways in violation of a consent agreement that they wouldn’t do that. 

The City of Suffolk and HRSD deny that, but Johnson puts it this way.

“We have several hundred acres of oyster beds that have been condemned by the Virginia Department of Health because of bacterial pollution … it is being caused by the City of Suffolk and HRSD because of an unwillingness or inability to do the job they are charged with.” 

That is why Johnson says he filed the lawsuit asking a Suffolk Circuit Court judge to declare Suffolk and HRSD are indeed polluting.

“The Virginia Department of Health said the city is polluting these grounds,” said Johnson’s attorney Joe Waldo. “The oysters are not harvestable, and they don’t want consumers to get the oysters.”

In fact, the Virginia Department of Health website shows the massive areas of condemned and conditionally condemned shellfish areas in the upper Nansemond River.  

Attorneys for Suffolk and HRSD claim improvements have been made, and the violations are outside the three year statute of limitation period, but don’t tell that to Johnson. He claims 1,000 of his 3,000 acres of leased oyster beds are condemned today.

“They are polluted right now. Every day. It is constant right now, and we have a pollution issue that is ongoing,” he added.

Waldo also argues the city and HRSD are in violation of a consent decree which they have not lived up to.

“They entered into a consent decree, in essence they said we’ll clean it up and they haven’t cleaned it up.”

Suffolk’s attorney Dave Arnold wants the court to dismiss the case for failure to state a valid claim, and emailed us:

“As you know, the City of Suffolk has filed a motion asking the Court to dismiss the case against it for failure to state a valid claim.  We staunchly dispute that the City is in violation of a consent order or that it has committed any wrongdoing in this matter.  However, given that the Court has not had an opportunity to review or decide upon our motion to dismiss, it would not be appropriate for us to comment further at this time.”

We also received this from the attorney representing HRSD:

“While we do not anticipate making further statements during litigation of this matter, with respect to your inquiry today our response on behalf of our client, HRSD, as follows:

“In the Nansemond River like many tidal waters, there are many sources of bacteria including septic tanks and runoff from private residences yards and farm fields.  The State Health Department’s closures of state-owned oyster grounds is a widely-used, decades-old public health precaution that requires oysters to be transferred for purification before being sold to the public.  HRSD’s position is that it is not the cause of any chronic bacteria issue in the Nansemond River or the precautions the State imposes on State-owned oyster grounds.”

Christopher D. Pomeroy

President – AquaLaw PLC

As for the condemned shellfish areas, Johnson is not optimistic.

“I have no hope of it getting any better because of where the city and HRSD have taken thus far.”

This case is scheduled to be heard in Suffolk Circuit Court on April 9.