When Is a Stream Not a Stream?

When Is a Stream Not a Stream?

County considers more stream protection.

Environmentalists and the building industry are butting heads over a proposal to change the way Fairfax County defines a stream.

State law forbids development within 100 feet of either side of a perennial stream — one that flows year-round. However, if the stream runs dry, even for just a few days a year, it is considered intermittent, and no longer enjoys those protections.

When the protections on perennial streams were first adopted in 2003, they restricted development on more than 10,000 acres, nearly 4 percent of Fairfax County.

Property owners who have a perennial stream running through their land can seek to have the stream reclassified as intermittent in order to increase the development potential of the land.

Countywide, three segments of streams which had been perennial have been reclassified at intermittent.

Property owners say they are simply protecting their rights by removing unwarranted regulation. Environmental advocates say that the buffers are necessary to protect the health of the streams, and of the Chesapeake Bay.

After a series of controversial reclassifications, Fairfax County is proposing a package of changes to the process, which will make it more difficult to reclassify streams from perennial to intermittent. "It will provide that reclassification is appropriate and there is transparency in the process," said John Friedman of the Department of Public Works and Environmental Services.

The Fairfax County Planning Commission had a public hearing about the proposed changes on June 15.

The proposed regulations focus on two aspects of stream reclassification. One includes detailed criteria that county officials would use to determine if there is flowing water in the stream. The other expands the number of residents who would be notified prior to an attempted change.

UNDER CURRENT LAW, a stream can be classified as intermittent if there is no visibly flowing water, for even a brief period, during a time when there is no drought.

The new system would require that there be two observations at least seven (and no more than 30) days apart. Additionally, the U.S. drought monitor must not show a drought in the area for 20 days before the first test and 20 after the second.

The development industry opposes the length of this time frame. The drought monitor updates its observations weekly, said Mike Rolband, speaking on behalf of the National Association of Industrial and Office Properties. He also owns an engineering firm which studies streams and had been involved in the reclassification of the Wedderburn stream, one of the most controversial in the county.

The Wedderburn stream runs through the area just outside of Vienna, colloquially known as Midgetville. It had been classified as a perennial stream in 2003, but the property owners had it reclassified as intermittent, allowing more intense development of the property.

Neighbors opposed the reclassification saying it was not based on sound environmental principles, however, it met with county guidelines at the time.

Rolband, whose company performed the study that reclassified Wedderburn, advocated changing the guidelines to look at the drought monitor only one week before and after the test.

Another aspect of the changes will force engineers to dig below the surface of the stream to see if water is flowing underground.

Eileen Watson of the Northern Virginia Building Industry Association said that the proposals are too complex. She said that the system should be more flexible in order to accommodate natural changes to water flow. "Hydrology changes over time," Watson said.

Deborah Reyher, an environmental advocate and member of Friends of the Accotink Creek, said the changes are a "vast improvement." In order to classify a stream as perennial engineers must use a system that analyzes streams on 26 different criteria. "When you reverse it … you can't just eyeball it. You've got to get down in there," said Reyher, who had also been involved in the Wedderburn case.

Occasionally, even though water may not be visibly flowing, subsurface flow can sustain the stream's microscopic organisms. Engineers will now be permitted to use dye tests to determine if water is flowing, but too slowly for people to notice. "Very, very minute amounts of water will sustain this life," Reyher said.

Others agreed with Reyher. "The engineering and development community would like nothing better than to be totally unregulated," said Frank Crandall, a member of the county's Environmental Quality Advisory Council. "There are very sound scientific reasons for going below the surface."

ENHANCED NOTIFICATION is the other facet of the proposed changes. Developers will need to notify all property owners abutting and across the street from the water body in question. They must also notify the homeowner's association, the district supervisor and the Board of Supervisors chair.

Industry is opposed to this change. Watson said the number of people who must be notified makes the process cumbersome. She further said that if a stream is being reclassified, it is because the county made a mistake in the initial classification, and developers who are trying to reclassify a stream are paying for that mistake.

She also fears that the notification might make the process political by alarming neighbors who would oppose the development. "Whether or not a stream is perennial should be based on science, not a political process," Watson said.

Crandall noted that there have only been a handful of changes to stream classifications, and therefore the notifications proposed will rarely be an issue. "It isn't going to be that onerous for the development community," he said.

Reyher said the notifications don't go far enough. "It is the entire watershed that is affected by out streams," she said. "People outside the immediate area are going to be affected."

The Planning Commission deferred its decision on the proposed changes until July 13. They will then go to the Board of Supervisors for another public hearing and a final decision, scheduled for July 31.