In the wake of a concerted effort by Western Ridge and other near neighbors to determine whether existing streams on the proposed Montclair development on Rt. 240 are protected, Albemarle County officials have responded with an explanation of the waterway’s status. The neighbors have spent the last several months asking the county why a visible stream on one of two parcels in the plan does not fall under the county’s Water Protection Ordinance (WPO).
The WPO mandates that all intermittent or perennial streams within the county’s water supply watersheds must have 100-foot buffers on either side. If the Montclair stream requires buffers, its proposed development—which envisions building up to 157 dwellings on 14 acres—would have to be significantly altered. (The landowner is Highlands West Limited Partnership, represented in county filings by Hunter Craig of Craig Builders.)
On Montclair’s plan, one section of the stream is denoted and buffered on the southeastern portion but disappears in the center of the development. The northwestern segment of the stream was removed from the county’s conservation map in an update just after the Crozet Master Plan process was completed last fall. County planners said this was done when County Engineer Frank Pohl and U.S. Army Corps of Engineers (ACOE) representative Vincent Pero inspected the property in September, after the landowner had enclosed and buried (“piped”) a section of the stream over the summer.
Jodie Filardo, the county’s Director of Community Development, sent the following statement and accompanying map to the Crozet Gazette in response to multiple questions about the piping and its effect on the stream’s status:
“1. The owner … obtained a Non-Reporting Nationwide 18 permit from the United States Army Corps of Engineers (USACE) to fill-in and pipe Segment 1 of the stream (solid green line). This activity resulted in ~6,000 square feet of land disturbance, filling of ~200-ft of stream, and ~10 cubic yards of fill below the mean waterline. As the land disturbance associated with piping Segment 1 was below the County threshold of 10,000 square feet of land disturbance in the Water Protection Ordinance (WPO), a County land disturbance permit was not required and the County could not prohibit the activity.
2. As a result of piping Segment 1, the USACE reclassified Segments 2 and 3 (dotted blue line) as ephemeral streams because the water source was redirected to the piped system.
a. Per Virginia state code 4VAC25-130-700.5 definitions, an ephemeral stream is one “that flows only in a direct response to precipitation in the immediate watershed or in response to the melting of a cover of snow and ice, and that has a channel bottom that is always above the local water table.”
b. Since segments 2 and 3 were no longer considered intermittent streams by the USACE, they are no longer regulated or considered “waters of the U.S.” and the County’s WPO no longer applies to these segments.
As a result, the draft Crozet Future Land Use map, which identified WPO buffers as ‘Green Systems’, was updated to remove this area from the ‘Green Systems Land Use’ designation and change it to Middle Density Residential and Neighborhood Density Residential land use designations consistent with the adjacent land. This draft was subsequently adopted by the Board of Supervisors in October 2021.”
In the county’s explanation, the stream segments’ current lack of protection hinges on those segments now being designated as “ephemeral,” rather than perennial or intermittent, because they flow only after precipitation or snow melt. As ephemeral streams are not considered “waters of the U.S.,” the county asserts that its Water Protection Ordinance (WPO) does not apply in this case. The ACOE’s Pero confirmed to the Gazette that “the county is correct in their assessment.”
For the neighbors, questions remain about whether piping a stream in this manner should be allowed—as it currently does—to facilitate a development project. The county’s Board of Supervisors would have to address that issue formally in its WPO, and any change in the ordinance would not impact the county’s current assessment of the Montclair project’s streams.
