Developer’s environmental violations at historic Richmond County cliffs referred to attorney general

Environmental violations at the site of a planned luxury golf course development, where illegally cleared land has caused the culturally, biologically and historically significant Fones Cliffs above the Rappahannock River to erode, have been referred to Virginia Attorney General Mark Herring for enforcement.

Virginia Department of Environmental Quality spokeswoman Ann Regn confirmed Thursday that the department’s director, David Paylor, had referred a case “a month or so ago” involving violations of state water control regulations by the Virginia True Corporation at the Richmond County site to the attorney general’s office.

A four-mile stretch of land above the Rappahannock River, Fones Cliffs are notable for their white coloration, which is due to the presence of diatomaceous earth, and for the large concentration of bald eagles that both live at the site and migrate there throughout the year.

In November 2017, Richmond County issued a stop-work order against Virginia True, which has proposed the golf resort and hundreds of housing units for the site, after it cleared 13.5 acres of forested land near the cliffs without a permit. Since then, significant erosion has occurred on the site, including landslides from the cliffs into the Rappahannock below.

“After public promises to protect the environment, the developer flagrantly bulldozed 13 acres atop the cliffs,” said Peggy Sanner, an attorney with the Chesapeake Bay Foundation, in a statement. “Even after being ordered to stop work, the developer delayed for months before installing required sediment and erosion controls. Predictably, rains this year on exposed land have led to massive erosion of the cliffs and discharged sediment pollution into the Rappahannock.”

The stop work order was subsequently followed, in February and then April 2018, by two notices of violation from Virginia DEQ. On May 31, Howard Kleinhendler, a New York litigator and executive vice president of Virginia True Corporation, signed a consent order with DEQ in which he agreed that the company would pay a civil penalty of $42,000, take measures to stop ongoing erosion and submit a stormwater management plan to the department.

Asked about the consent order, Regn said that it is “what the parties have agreed to at this point, but the final phase of penalties, that’s yet to be decided.”

Kleinhendler could not be reached for comment.

According to DEQ’s enforcement manual, cases may be referred to the Office of the Attorney General when there is a serious threat to human health or the environment, when there has been difficulty bringing a party into compliance, when a consent order has been violated or when violations have been ongoing.

In an email, Regn said the referral of the Fones Cliffs case “was based on recent history of ongoing issues.”

CLIFFS ‘CONTINUE TO ERODE’

State and local environmental groups such as the Friends of the Rappahannock and the Chesapeake Conservancy have been active in monitoring the site disturbances and pushing for remedial action.

The conservancy, which opposed any development of the site, is pushing for the area to be stabilized and replanted with trees.

“We want it to be forested again like it was, both for the ability of the trees to diminish the erosion … and also to put back the habitat that was lost,” said Joe McCauley, a senior adviser for the Chesapeake Conservancy.

Minutes from the July 18 meeting of the Richmond County Board of Supervisors report that sections of the cliffs “continue to erode” and that weekly inspections have revealed “more evidence of land (3–5 feet in width) that continues to separate and fall from the top edge.”

Besides erosion, the conservancy has expressed concern about the impacts of the unpermitted land clearing on bald eagle populations at the site and the potential destruction of archaeological evidence of Native American habitation.

Fones Cliffs is “an unusually important area for bald eagles,” said McCauley.

Center for Conservation Biology Professor Bryan Watts, who has opposed the development of the cliffs, described their importance in a blog post as not only “supporting one of the highest breeding densities throughout [bald eagles’] range,” but also serving as a seasonal home for nonbreeding eagle populations.

Historically, Fones Cliffs was the site of a hostile encounter between Capt. John Smith and members of the Rappahannock tribe that took place on Aug. 18, 1608, and was recorded by Smith in detail in his journal. The location of the ambush is identifiable in Smith’s description of “white clay clifts” across the banks from “a low playne marish, and the river there but narrow.”

The 13.5 acres on the cliffs that were cleared without a permit are part of a 976-acre site comprising three parcels of timberland that were previously owned by the Diatomite Corporation of America.

In November 2015, the Richmond County Board of Supervisors approved a rezoning of parcels to allow the development of a golf course and luxury resort that would include banqueting facilities, rental cottages, a conference room, a spa and other structures.

Along with the rezoning, the Diatomite Corporation agreed to 24 proffers. One pledged that the applicant would consult with the Board of Supervisors during the second phase of the zoning process “to obtain preliminary approvals for erosion control measures before proceeding with additional engineering plans.”

Another declared that the applicant would comply with the provisions of the federal Bald and Golden Eagle Protection Act.

According to the U.S. Fish and Wildlife Service, this act prohibits anyone without a permit from “taking” bald eagles, a definition that includes any actions that can cause a “decrease in its productivity” or nest abandonment “by substantially interfering with normal breeding, feeding, or sheltering behavior.”

In May 2017, the Diatomite Corporation sold the land for $12 million to Virginia True Corporation, an entity that State Corporation Commission records show as having four directors: Kleinhendler, New York real estate developer Benito Fernandez, and New York construction company owners Domenick and Anthony Cipollone.

Conservation groups see the referral to the attorney general’s office as a nod to the seriousness of the violations and their consequences.

“We urge consideration of a substantial penalty for damage to the cliffs, a Virginia treasure,” Sanner said.