When Is a Stream Not a Stream?

When Is a Stream Not a Stream?

Disputed stream on Wedderburn property could impact environment and development.

When Jane Leppin was a girl, she used to play in a stream that ran through her family's land. The stream, an unnamed tributary of the Buck Branch, started north of what is now the Washington & Old Dominion Trail (W&OD), which forms the northern edge of the Wedderburn property (sometimes called Midgetville). "I used to play. I found stones and glass in the stream," Leppin said.

When Fairfax County adopted its stream protection ordinance as part of a state-mandated program to protect the Chesapeake Bay, it classified the stream as “perennial,” one that has a year-round flow.

Leppin, who lives on the property, disputed that finding. The stream, said Leppin, had drained a marshy area which is now occupied by houses on Reflection Lane. "In 1975, they backfilled the marsh," Leppin said. Now, she said, it is little more than a storm-water drainage ditch.

Leppin applied to have the stream classified as “intermittent” and was successful in her application.

The difference is a critical one. The presence of a perennial stream creates a Resource Protection Area (RPA), which means that no development can occur within 100 feet of either side of it in order to protect the Chesapeake Bay from runoff. The stream flows into the Accotink Creek, then to the Potomac River, then ultimately, the Chesapeake.

A GROUP of nearby residents claims that the decision and the process surrounding it are flawed. "Learning the details of the stream-designation process demonstrates just how arbitrary and capricious the county's policies are," said David Levy, one of the concerned neighbors.

Stream designations, he said, seem to favor land developers over environmental regulations. In order to have a stream classified as perennial, Fairfax County staff must analyze the stream based on more than 25 separate criteria. They aggregate the results of the study and determine whether the stream is perennial. "They have to go through this very involved process," Levy said.

In order to have a stream declassified, the process is much simpler, Levy said. "In this case, all the applicant had to do was submit half a dozen photographs showing the stream was dry," Levy said. "The process that was followed was suspect at best."

From an environmental perspective, Levy said the classification really shouldn't matter. "Even if it is intermittent, that water still goes into the Chesapeake Bay," he said.

According to Fairfax County policy, streams can only be declassified based on "observational data." The data must be gathered by a professional engineer, land surveyor, landscape architect, soil scientist or wetland delineator certified or licensed to practice in Virginia. The declassification study must also be conducted during a non-drought period.

What the data are, however, is not defined. It can vary on a case-by-case basis depending on the details of a given RPA, said Debra Bianchi, a spokesperson for Fairfax County.

In the case of the Wedderburn Property, the data consisted of a letter and photos showing that there was no flowing water on Sept. 2 and 4, 2004. "It dried out for about three weeks from August into September," Leppin said.

COMPLICATING the issue further is a plan to redevelop the property. Leppin is proposing to rezone the property and have the existing small houses removed and new houses built. [See down-zoned sidebar.]

According to current zoning, Leppin could build 13 houses by right, but she has filed a rezoning application that would allow her to build 29, she said at a recent meeting of the Area Plan Review Task Force, which examined the property.

If the rezoning is accepted, the development will include as a proffer — a concession financed by the developer — new storm-water-management facilities that will meet modern standards.

The facilities at the other, older developments surrounding the area, while meeting the standards of their time, would not be sufficient currently. "It satisfied the standards of the time, but we've learned a lot," said Lee Fifer, an attorney assisting Leppin. This leaves current property owners having to make up for past mistakes, said Fifer.

Leppin asserted that the proposed storm-water-management plan would be attractive and would ultimately be beneficial.

"It's also going to bring [runoff] levels back down to forested levels," said Frank Graziano, an engineer with Wetland Studies and Solutions Inc., the company Leppin hired during the declassification process.

Leppin's neighbors claim that the impact from the additional development would be too great. Even though the county would receive proffers that help to offset the development and environmental impacts, the neighbors said they would be ineffectual. "The county cannot possibly extract an equivalent number of concessions from the developer," Levy said.

Levy acknowledged that the development and the stream are intertwined issues but noted that the neighbors can reasonably be upset about both. "It is a NIMBY [Not In My Back Yard] issue, but it's also an environmental issue," he said. "It's an attempt to bring attention to the desecration of our natural areas, also to help reduce the intensity of the development."

The only person who can appeal the decision, now that it has been made, is Leppin. "One thing is clear. When a stream is declassified, concerned neighbors are not allowed a role in the process," Levy said.

The established process has been followed, said Fifer. "The truth of the stream's character was established," he said.

Levy and the group of neighbors, however, are continuing to work to re-establish that the stream is perennial. "I think that what an administration can do, an administration can undo," he said.