CUMBERLAND – Current Cumberland supervisors have begun to express concerns about the Memorandum of Understanding (MOU) with Henrico County regarding the Cobbs Creek Reservoir project. The MOU was approved by a previous board in 2010. During the past three meetings of the board, supervisors have discussed questions regarding Cumberland County's future liability and whether the MOU is an enforceable contract. Only one current board member, Bill Osl, supervisor of District One, where the reservoir will be located, was on the previous board that agreed to the MOU although he voted against it.

Osl recently stated to The Herald that although he was a leader in getting the reservoir in place for many years and approved the Guiding Principles, “I didn't approve the MOU because I believed the financial deal was the big elephant and Henrico pushing Cumberland around and the board caving in to a minimum offer… I don't think we got a good deal. And I think we have exposure and risk in the future.”

History of the MOU

After many years of research and at great expense to the County, Cumberland submitted a joint permit request for the proposed Cobbs Creek Reservoir in 2005. The permit was approved by the Virginia Department of Environmental Quality in 2007.

Negotiations with Henrico and Powhatan were rocky at times, with the two counties announcing they were withdrawing from the project in 2009. This caused the viability of the permit to be called into question by the DEQ, who threatened to terminate it in a letter sent during the spring of 2010.

However, by the summer, negotiations with Henrico were back on the table and the Cumberland Board of Supervisors approved a set of Guiding Principles which were intended to outline Cumberland's requirement for the project. The Guiding Principles include a desire to enter a Memorandum of Understanding with Henrico and covered such topics as cost, water allocation, recreational use, public access areas and Henrico's payment in lieu of taxes. The Guiding Principles were discussed in closed session and then approved unanimously.

During a special called meeting nine days later, the Board of Supervisors approved a Memorandum of Understanding with Henrico County. Supervisors Osl and Van Petty, then supervisor of District Three, did not vote in favor of the MOU, raising concerns at that time of conflicts between the Guiding Principles approved the previous week and the MOU.

The motion approving the MOU clearly states that the Guiding Principles adopted the previous week were “superseded to the extent it is inconsistent with this Resolution or the provisions of the MOU.” According to the current County Administrator and Attorney Vivian Giles, this means that anything from the Guiding Principles that did not make it into the MOU is not part of the agreement between Cumberland and Henrico.

Since the year the MOU was approved, the County has been receiving $1,131,900 from Henrico. It is slated to receive this amount yearly until 2050.

Henrico also reimbursed Cumberland for the expense of permitting the reservoir, calculated in the MOU to be $2,104,646.09, as well as assumption of the expense of a wetland mitigation bank, calculated in the MOU to be over half a million dollars.

Exposure to the County

During the September Board of Supervisor's meeting Parker Wheeler, District Five, asked Giles if she had could look over the MOU and “get back to us on how it will effect the county over all?… I have great concerns about it.”

The next month, Wheeler stated again that he had “great concerns about the end of it. I have some great concerns about the water allotment for Cumberland… I think there is some stuff in there that is not good for Cumberland County.”

Osl went on to express concern that quite a bit of thought, time and resources went into developing the Guiding Principles. However, he was worried that “if many of them were not included (in the MOU), then there is exposure or risk potentially to Cumberland County.”

During the November meeting, Giles stated, “most of the exposure that I see could potentially be environmental.”

Wheeler later clarified to The Herald that he was particularly concerned about expenses to the County after the construction of the reservoir, such as road maintenance.

Osl also suggested the environmental liability of pollution in the reservoir. He pointed out that the Watershed Protection Plan would be established by Cumberland to prevent pollution, but stated that he did not want to have to go to a court of law to figure out who pays to deal with other pollution that might get into the reservoir that does not coming from the surrounding land.

Osl added that the intention of previous boards was to structure “an MOU as a framework for future contractual relationships between the counties.” He is frustrated however that those future contractual agreements have not yet been put in place.

MOU As Contract

During the October meeting, Osl asked Giles, as the county attorney, if the MOU is an enforceable contract. She said that it was not. He went on, “so we have a unilateral kind of activity going on here with kind of a gentleman's understanding about it.”

Giles clarified that there are other principles of law and theories under the law that would protect the County. She added that “many agencies in the state, localities, and the like enter into these memoranda routinely and treat them as contracts.”

Kevin Ingle, District Three, confirming that Cumberland had already received money from Henrico, expressed frustration, asking, “Where are we sitting right now? We're not in the driver's seat… How can we back up and look at an agreement that was made last year and then try to add more to it when we don't have the dog by the collar?”

Giles stated that even though she has only been around for a few months and regardless of the legal standing of the document, Henrico has acted consistently with the MOU, including making timely payments and absorbing legal fees.

Greg Baka, director of economics and community development, added that there are four documents which Cumberland will be able to craft and receive public comment on in the future which all involve the reservoir: the Comprehensive Plan update, the Zoning Ordinance update, the Watershed Protection Plan and the Buffer Management Plan.