An October report by a county-hired stream consultant confirmed that a small waterway traversing a Rt. 240 parcel—on which the 157-unit Montclair development is to be built—was an “intermittent stream.” This meant that it should be protected by buffers on each side under the county’s Water Protection Ordinance (WPO), a decision that would limit the parcel’s buildable acreage. The consultant’s conclusion seemed to close the book on a year-long effort by Montclair’s neighbors to shield the stream from harm and force the Albemarle County Community Development department to enforce its ordinance. The debate did not end there, however.
Montclair’s developer, Vito Cetta, along with Shimp Engineering, appealed the county’s determination by hiring their own stream consultant, who concluded that most of the stream was “ephemeral”—meaning water flows only during and briefly after precipitation events—and thus not protected by the WPO, which only defines streams as perennial or intermittent. In a January 27 county hearing, the new consultant, Wetland Studies and Solutions, Inc. (WSSI), presented detailed information on how they reached a different conclusion than the county’s consultant, Ecosystem Services (ES).
WSSI asserted that its stream report was “more complete and more accurate” in its findings as compared to ES, by virtue of gathering groundwater monitoring well data over two days rather than one, and by dividing the stream into six stretches (or “reaches”) for study instead of three. Both consultants used “assessment scores” to judge whether each reach of the stream was intermittent or ephemeral by adding up points based on observations and measurements of water flows at various locations in the waterway.
WSSI concluded that, of the six stream reaches, one was intermittent, one ephemeral, and the other four were undetermined or “leaned” ephemeral. The consultant advised, therefore, that only a small portion of the stream nearest Park Ridge Road should have WPO buffers applied to it. However, a close examination of WSSI’s report shows that scores from across its two observation dates classify five out of the six reaches as intermittent under at least one testing methodology. WSSI characterizes those intermittent findings as “inconclusive.”
The debate over the status of this waterway is muddied by earlier action taken by the property owner, represented in county filings as builder Hunter Craig. The owner enclosed and buried (or “piped”) a section of the stream in the summer of 2021, just before applying for the Montclair project approval. While piping a stream is not prohibited by the county’s WPO, the developer and WSSI are now relying on the lack of steady water flows—throttled by the piping—to claim there is no viable stream on the parcel.
Western Ridge resident Eric Schmitz, who is also president of the community group Crozet United, said the whole debate revolves around whether the county is truly interested in protecting the environment, or not. “The developer’s appeal boils down to this: When they piped the stream in 2021, they starved it of most of its water, and what’s now left of the stream isn’t worth protecting. While it is a shameless argument, their legal team is asserting that they piped it lawfully, due to a loophole in our Water Protection Ordinance. Their lack of integrity is truly despicable, and I hope citizens will remember this the next time they propose work in Crozet.”
Schmitz wonders how this debate got to such an esoteric point, given the Water Protection Ordinance’s clear purpose—protecting county waterways—and the fact that it does not recognize ephemeral streams at all. “What’s even more shameful is that our Supervisors don’t necessarily disagree,” Schmitz continued. “They know all too well about the loophole but continue to make excuses for why they haven’t fixed the problem and won’t fix it anytime soon. Why won’t they simply close the loophole? Your guess is as good as mine.”
At the hearing, County Engineer Frank Pohl asked WSSI a simple question: “How would you explain to somebody the presence of water in your scoring, and still come up with the ephemeral designation?” His point was that if the stream was ephemeral (only flowing after rain events), how can there be water present on a day that was not near a rain event? WSSI consultant Robert Wright answered that in a precipitation-driven system, the water must have been blocked from exiting, or stagnant.
Jodie Filardo, Community Development Director, ran the hearing and served as the judge in the case. She conducted field visits, walking the stream bed twice in February and observing water in all reaches of the stream. She announced on February 24 that she rejected Cetta’s appeal and affirmed Pohl’s original determination of a protected, intermittent stream on the Montclair parcel.
Her decision read: “Following the controlling definition of ‘Intermittent Stream’ from Albemarle County Code §17-205, observations of water in all reaches from my site visits in February 2023, and a review of documents provided, all reaches of the Subject Stream have “a defined bed and defined banks within which water flows in response to precipitation, through near surface groundwater flow, or from springs. Therefore, because all reaches of the Subject Stream meet the definition of ‘intermittent stream’ in County Code §17-205, I am affirming the October 19, 2022 determination of the County Engineer.”
Impacted parties may, once again, appeal the decision.
