News & Features » Cover Story

waters run deep

In serene Green Springs, residents rally to fight a developer's plans in what could be the first skirmish of Virginia's water wars.

by

comment
It could have been shaven of stubble and turned into lawns for 10 "McMansions," as Ely derisively calls the quick-built sprawling houses of the rich. And it still could be punctured by wells, to pipe water to a future 1,200-house development in nearby Zion Crossroads.

Instead, there are cornstalks. Starlings. A few trees. Ely and other residents of the Green Springs National Historic District have worked hard to keep it that way. Most of the 14,000 acres around this field have been protected by strict conservation easements for the last three decades, restricting use of the land to living and farming.

But in October 2001, the state's Department of General Services, which handles the sale of surplus land, sold 140 acres of Green Springs bought for the never-built prison to a developer, Charles D. Kincannon. Now, Ely says, the land could be used as a portal to the abundant underground water that gave Green Springs its name.

In the spring of 2002, the nonprofit representing local landowners, Historic Green Springs Inc., filed a lawsuit against Kincannon and the state. The suit alleges that the state circumvented the Code of Virginia by selling the land for development with no thought given to its planned use or the fact that the land lies in an area federally designated as a national treasure. "It didn't get any more consideration than a vacant lot next to the garbage dump," says David Bailey, counsel to the complainants.

Kincannon, and the state of Virginia, disagree. The sale was legal, they say, and the developer's intended use should have no bearing on the state's decision to sell the land. Furthermore, Kincannon says he has no intention of abusing the land or withdrawing more water than the aquifer can support.

Both sides have presented their cases; the judge is deliberating now. But whether he rules in favor of Green Springs residents or Kincannon and the commonwealth, one thing is clear. This case is just the opening argument in a debate that may rage in Virginia for decades. Recent droughts have made clear that water is not the inexhaustible resource it once seemed to be. Yet Virginia has no laws that govern groundwater's proper use and management. Who owns the streams that course, elusive and invisible, under the earth?



The History

On a map, Green Springs National Historic District is an irregular oval of green in western Louisa County, 60 miles west of Richmond. Moving a little closer, you see a 14,000-acre quilt of rolling hills, farmland and old plantations, stitched through with lines of cedars and wooden fences.

The history of Green Springs began with a bang — or a "big hiccup," Ely says — 200 million years ago, when an underground volcanic intrusion occurred, squeezing deep molten rock up toward the surface. Erosion of the pushed-up rock created a shallow, saucer-shaped depression 5 mile by 7 miles wide. The basin, now Green Springs, was filled with iron-rich soil that farmers later discovered made wheat and tobacco grow as wildly as dandelions. The water still tastes subtly of rust.

The first settlers in the area, in the early 1700s, were Quakers hoping to escape persecution for their antislavery views. A century later, slave owners began to establish their grand plantations there, pushing the Quakers west to Roanoke.

The bloodiest cavalry battle of the Civil War, the Battle of Trevilian Station, took place in fields adjacent to Green Springs. Some of the houses became hospitals for a time, but not a single home was burned or looted. Almost all the original properties remain today.

It took a team of National Park Service photographers three-and-a-half days to document every historic house and structure in the area. "By comparison, Williamsburg has only 88 original buildings," Ely says. "And we have over 250."

And no two are alike. Roaming the narrow roads, you'll see a High Victorian "painted lady," a humble old farmhouse, a Tuscan villa, columned manors. The estates' names speak of another time: Fair Oaks, Hawkwood, Sylvania, Kenmuir and Beau Allyn. (It's considered terrible bad luck to change the name on a house, says Ely. "Woe unto he who makes it Perky Meadows or something.")

The houses range from ramshackle to meticulously restored. One rule holds true, however — nothing looks new. (Except for a futuristic-looking structure in one field, a 15-foot tower supporting a ring of white metal. It's an OMNI-station, a radar-tracking device airplanes use for navigation. A few years back, Ely inquired to see if the Federal Aviation Administration could move the station somewhere more discreet. No problem, they told her, except that its position shows up on every aeronautical map in the world. So the odd-looking structure remains in the cow pasture, silently doing its job.)

The charm of Green Springs, Ely says, is that if you were to remove the cars, tractors and power lines, it would appear exactly as it did a century ago. "Where are we in time?" she asks, looking out over the rolling hills. "You couldn't say."

It is this history that gives Green Springs its distinctive pedigree. In 1973, it became the first area in the nation to be designated a rural historic district, and the only such district that is also a national landmark.

There are a few famed properties in its bounds — like Boswell's Tavern, built in 1735, which was visited by Patrick Henry, Thomas Jefferson and the Marquis de Lafayette. And Prospect Hill, a four-star inn on a 1700s estate, with millstones embedded in the walks and fragrant walls of boxwoods framing the path to the front door. And St. John's Chapel, a tiny Carpenter Gothic church that looks as if it came from the pages of a storybook.

But it is the integrity of Green Springs as a whole that won it the rare historic designation. Thirty years ago, after the defeat of the state's bid to build a prison in the district, owners of the 90 properties here realized that Green Springs was not immune to change. With the urging of then-Gov. Linwood Holton, many acted to preserve the area's integrity by placing conservation easements on their land — agreements that allow landowners to permanently limit development on their property while retaining private ownership. These easements, now covering 10,000 acres of Green Springs, mean construction is severely controlled, and the earth may be used only for farming — mostly cattle grazing, wheat, corn and soybeans.

In 1973, farmland seemed as plentiful as water. No one understood why those landowners had forever given up their right to eke more money from the land. "Everybody thought that it was crazy," Ely says. But those easements, she says, now ensure Green Springs' future.

A fortunate few, about 200, have staked a claim here. They're a different breed from the Southern slaveholders who built the grand old houses with their romantic names. The residents of Green Springs are young and old, both wealthy and of modest means. Some still live in the homes their great-grandfathers built, some unexpectedly inherited their property from relatives, and some are wealthy refugees from the pounding of city life.

As a result, Ely says, there's "a cross section of levels of interest" in what happens to Green Springs. Some don't care much about the current fight for the 140 acres, while others have worked hard to pay for other legal battles over the years by begging and borrowing, holding bake sales and house tours. Litigation to prevent development in Green Springs has lasted 33 years and cost millions, all told. Ely, who accepts no pay working on Green Springs' behalf, estimates that for "the total value of what has been given here," including the legal services donated, "we could have bought and sold this whole area three times over."

Over the years, many of the staunchest supporters of Green Springs have died. But somehow, new people always arrive to take up the cause.

Like David and Jeanne Troast, two avid riders who recently bought the 383-acre Green K Farm adjacent to the disputed 140 acres. They moved to Green Springs from the farm they owned in New Jersey, which "was getting under too much development pressure," David Troast says. "So we thought we'd come where there was no development."

It surprises him how many people, even in nearby Charlottesville, have no idea where Green Springs is. But that's not a bad thing, Ely responds quickly. "Anyone who hasn't found us, can't hurt us."

"Everyone's an enemy until proven different," Troast says.



The Developer

Charles D. Kincannon says he's all for historic preservation, in general. "I agree with it," he states on the witness stand. "I agree with it 200 percent."

Born and raised in Louisa, Kincannon cut hay on Green Springs farms as a boy. His family has long supported the protection of the area, he says. Kincannon, dapper in a navy suit, with thick white hair combed back, has worked in Virginia real estate for 35 years. Historic properties are one of his interests — "and not to destroy them," he adds.

Kincannon says he never expected such fierce opposition to his purchase of the state land. "I did not," he says, "and the reason why I did not was they did not offer the same resistance to the county of Louisa when they bought their property. … I did not think there would be an objection if it was used in a responsible manner."

Louisa County bought the 50-acre plot adjacent to his 140 acres (both were originally state property) just this year, for the same purpose of tapping into the aquifer. Three wells are already pumping water to Zion Crossroads, a formerly sleepy corner of Louisa that's now the site of a 600-employee Wal-Mart distribution center, which began operations this month.

However, there's a fundamental difference between the county's plans and Kincannon's, says Dr. David Morgan, county supervisor for the Green Springs District. The county's intent only was to supply water for the commercial and industrial growth in that area, Morgan says, a use it judged the aquifer could sustain. The Board of Supervisors told Kincannon he alone would be responsible for finding water for Spring Creek Development, his proposed 1,200 homes, 18-hole golf course and business park.

They never expected him to tap Green Springs water, right next door to the county wells. That "kind of caught us off guard," says Charlie Taylor, who has served on the Louisa County Planning Commission for eight years. "It was never our intent at the planning commission that he would go this far to mine water," he adds.

Kincannon objects to the use of the word "mining" — that means taking nonrenewable resources from the ground, he says. "Water is a renewable resource," he says. "The water always recharges itself. … So unless it stops raining, the rainwater comes from heaven and goes down into the aquifer."

That's no comfort to the many Green Springs residents whose trees died and faucets sputtered in last summer's drought. "We eked through the year before," says Martha McIntire, owner of the 1770 farmhouse Ionia. She had not yet dug a new, deeper well when the 2002 drought hit. For six weeks, McIntire carried water from an agricultural well across the road for bathing and drinking. The drought hadn't ended when her husband died in August — she will forever remember the odd incongruity of grieving in a dry house. She and others fear that additional wells would deplete the aquifer further.

Kincannon says there's nothing to worry about. "Droughts are usually short-term events," he says, that affect streams and surface water more than the underlying water table. "You protect the water by making sure that your use of the water does not exceed the recharge."

Extensive testing has yet to be done to see how much water could be safely withdrawn on the Green Springs acres, he says. But state studies, done when the land was being considered for the prison, showed plentiful supplies. Kincannon says he would turn the water rights over to the Louisa County Water Authority anyway.

However, "We wouldn't necessarily accept them," says Morgan, the county supervisor. The wells that Kincannon's offering to convey to the county would be drawing from water the county's already using, he points out. "If we're obligated to provide water for 1,200 residential connections," he says, "we have no water left for economic development purposes."

The outcome of the court case will determine if those 1,200 houses ever appear. With no other ready sources of water in sight, Kincannon's got a lot to lose. Yet he seems unconcerned about the issue. He stresses that the lawsuit isn't a case where "the bad guy is a bad guy and he's committing a crime." It's just a business disagreement, he asserts, in which both parties want "a compromise that will protect the property first and foremost." He predicts the judge will ask for some kind of safeguard on the land through restrictions and easements, and not for a rescinding of the sales contract.

The planning commission, which serves solely as an advisory group, doesn't have the power to do anything, Taylor says. Nor does the county, at this point. "It would take an act of Richmond to change it," he says.



The Fighter

Or an act of Rae Ely.

Everyone in Green Springs knows her, although she is, as locals say, "a come-here." A Florida native, Ely moved to Green Springs 35 years ago when she and her husband found their dream farm opposite the now-contested land, a tree-veiled house built in the style of a Tuscan villa. "I came here thinking this would be the most peaceful place on earth. Surprise," she says wryly.

She has since weathered every battle for Green Springs' preservation: four years of litigation to derail plans for a maximum-security penitentiary on the state's acres;. eight years confronting a company that wanted to mine vermiculite, a rare fireproof mineral, on land its competitor donated to Green Springs. And now, she's facing down Kincannon and the commonwealth over water.

Short and self-assured, with long red hair and a weighty turquoise ring, Ely traded a life as a housewife and mother for a law degree 20 years ago, all for the sake of saving Green Springs. A diploma from the University of Virginia Law School now hangs on the wall of her office, in a 200-year-old house across the street from the Louisa courthouse. Her law firm deals primarily with conservation work, historic preservation and environmental litigation, and she has won numerous awards as a preservationist.

Neighbors know that if there's a fight brewing in Green Springs, she'll be there. "I guess she enjoys it," says neighbor Rex Murphy. But her contentious nature is a boon to Green Springs. Without Ely, Murphy says, the area wouldn't be in such a pristine state — "When you're marking up beautiful, she gets a lot of the credit."

Ely is warm with neighbors and strangers alike, and delights in giving tours of Green Springs. She also demands rapt attention from her listeners, insisting they realize exactly what an unusual place surrounds them.

"A nickel to anyone who can tell me what this was," she says, stopping on the road by a wood-sided house alone on a hill. The house stands oddly tall and straight, with a long porch on one side.

A barn? A store? Ely scoffs at her guests' feeble guesses — It was a Victorian railroad depot, she says, saved from demolition in 1907 and dragged 20 miles on oxen-drawn sledges. Duh, her tone implies. But she's glad you know the answer now.

One bright afternoon, Ely stops by to visit Henry Javor, owner of the estate called Grassdale. She leans out the window of the Rover, brimming over with news about the ongoing lawsuit. He stops her and says slowly, "In three sentences, what's it all about?"



The Case

Three sentences is hard. Three hundred might do.

The land in question lay quiet for 30 years in the hands of the state Department of Corrections. A few years ago, when the department's budget became pinched, the 140 acres was transferred to the Department of General Services, the agency responsible for disposing of surplus state property.

The proposed sale was kept pretty quiet, government officials say. Kathleen Kilpatrick, head of the Department of Historic Resources, testifies that she first heard about it in early August 1999. She was concerned about the ramifications of an unrestricted sale of Green Springs land, she says, but then-Secretary of Administration Donald Mosely, who reviewed all such sales, didn't want to hear about it. He told her, "People in Green Springs are wackos and crazies and part of a fringe element," Kilpatrick testifies.

Kilpatrick wasn't satisfied. The plot in question may not have much historical significance of its own but, she says later on the witness stand, it's still not acceptable to even that 140 acres. "It's like asking me, 'Is it OK to rip off the door on the Capitol. Is that OK? Or is it OK to take off the cupola?'"

She proposed, she says, an alternative plan. What if the Virginia Land Conservation Foundation purchased an easement on the land, with the proceeds given to the Department of Corrections, then sold the 140 acres to an adjacent property owner? Then the land would be protected and the state's financial needs met, she says. But no state officials responded to Kilpatrick's proposal.

In court, Richard Sliwoski, director of the state's Division of Engineering and Buildings, has testified that the historic setting of the 140 acres was not considered in the sale process, nor was the state aware of any specific intended use of its groundwater. "I was trying to maximize the value to the commonwealth," he said, and when asked to clarify responded, "Get the most amount of money per acre that I could."

Green Springs landowners neighboring the property heard the land was for sale in May 2001. In August 2001, Kincannon's Virginia Western Land Co. offered to buy it for $385,000. The price was later reduced to $315,000 when the contract was rewritten to permit the building of no more than three houses on the land. Yet the Department of Corrections didn't even get much money out of the deal, Ely says — the law required it to give half the money to the state parks program, leaving only about $157,000 profit for the sale of the land. When Ely relates the story, her voice makes the sum sound like 60 pieces of silver.

Neighboring landowners joined Historic Green Springs Inc. in obtaining an injunction to temporarily stop any activity on the property, then filed suit in the spring of 2002 to void the sales contract.

In short, the suit claims the commonwealth of Virginia betrayed its longstanding partnership with the Green Springs community by failing to consider "the best interests of the citizens of the commonwealth" when selling the land. The Code of Virginia requires the governor and the secretary of natural resources to give final approval when selling any surplus property, to ensure nothing of historical importance is lost. The Department of General Services never got that approval, the suit states. It never notified any state agencies concerned with historic properties, nor did it conduct any groundwater studies, nor did it consider anything but the price the land would bring, the suit charges.

Kincannon's attorney, Edward B. Lowry, counters every claim. The part of the code requiring the governor's approval of General Services' land sales wasn't made law until three months after the lawsuit was filed, he says, so has no bearing on this sale. There was no need to notify the Department of Historic Resources, he says, because the 140-acre plot is not historic in itself, and Kincannon's planned use would not jeopardize the historic district. No state agencies had expressed interest in acquiring the surplus property themselves and, Lowry says, there is no evidence that government officials would have acted any differently had they known about Kincannon's plans. And no law requires the purchaser of a property to tell the seller what he intends to do with that property.

That last is true, responds David Bailey, the attorney for Green Springs. But the uses the purchaser initially stated were false, he says. Although the contract contained language about how many houses would be permitted on the land, "this guy wants the water," he says. "That's what this sale is about."

Lowry claims Bailey is simply trying to "conjure up images of unfeeling industrialists." Kincannon is a responsible developer, he says, who would convey the water rights to the county. The court should not be "micromanaging" state procedures, he says.

And on and on the argument goes, for two spring days in the Louisa County courtroom. Long-departed generals, judges and doctors watch the proceedings from oil paintings on the walls, along with the audience of seven or eight sitting on the hard wooden benches.

One of those is Rex Murphy, a Green Springs landowner named as a complainant in the suit. The 218-acre farm he bought in 1974, Aspen Hill, abuts the property in dispute. A former financial consultant, he now passes the days peacefully with his wife, Stuart, tending his six Simmental heifers and four English spaniels ("Too many," he says gruffly as the dogs prance, ears flopping, around his feet). Murphy knows the area as well as any — although he's had twin hip and knee replacements, he walks for an hour and a half every day.

The water issue concerns him, especially since he's heard no hard numbers about how much water remains below and how much Kincannon intends to withdraw. "Where's the end of the aquifer?" he asks. "It may be good for a year, a year and a half. … Those are things hard to gauge."



The Future

The whole situation is, indeed, hard to gauge. Green Springs is only a tiny part of Virginia, and its precious water only a drop in a river. Yet the fight over who owns that water, and what it is worth, is a harbinger of what's to come.

Gov. Mark Warner emphasized a need for water management in his 2003 Reform Agenda, to implement, for the first time in Virginia history, long-range water-supply planning. The recent drought showed how the state had abdicated its responsibility to manage Virginia's water supply, leaving decisions about water to local governments, the agenda states. Now, the state will have to confront the issue and start making policy about individuals' and companies' rights to the water we all share.

Residents of Green Springs just hope their wells stay wet, their fields green. Charles D. Kincannon hopes to see water flowing to a prosperous plot of 1,200 homes. The Hon. F. Ward Harkrader Jr., a Louisa county judge who came out of retirement to hear the Green Springs case, is now deliberating. He's expected to deliver his decision in a few weeks. The larger decision on who controls all of Virginia's water, that most abundant, most elusive three-atom elixir, will be a long time coming.

Add a comment