By Jeff B. Feaga
West Virginia, for those that have never been there, is deserving of its famous description. Indeed, the Mountain State is wild and wonderful, with varied terrain, unique habitats and pristine streams. A particularly remarkable area is the high elevation plateau located in the northern part of the Monongahela National Forest, just under three hours west of the United States capital. Throughout this laurel covered wilderness on the Eastern Continental Divide, the headwaters of the Potomac and Cheat Rivers flow through countless wetlands, bogs, glades and high gradient streams before ultimately forming well-known rivers. Although far from any major population centers, these wetlands are important to wildlife and to water quality far downstream. Figure 1 shows Red Creek, a tributary to the Cheat River, while Figure 2 shows one of numerous mid-size tributaries located throughout the laurel covered highlands.
Unfortunately, many of these wetlands are at risk of degradation due to current and future development pressures. Many of these potential wetland impacts will be avoided due to laws set forth in Section 404 of the Clean Water Act, which regulates Waters of the United States, including wetlands, and is enforced by the Army Corps of Engineers (COE). However, a great many impacts to wetlands will occur unnecessarily because of subjective interpretations of these wetland areas as being isolated, i.e., not connected to a stream or other wetlands by a distinctive surface water connection. You see, unlike its neighboring states of Maryland, Pennsylvania, and Virginia, West Virginia has no adequate method to regulate isolated wetlands.
To be clear, the COE does not regulate isolated wetlands, and this protocol is based on solid reasoning. Originally, the concept of Jurisdictional Waters of the United States was based upon navigability. Later, the definition was expanded to include waters, such as wetlands, that flow into navigable waters via a distinct surface connection. In practice, a surface connection can be a small stream, surface erosion, or even adjacency to the flood plain of a stream or river. As implied by the definition of isolated waters, a hydrologic connection by groundwater is a very difficult thing to prove, and this type of connection is only rarely applied when the distance between subjective waters is negligible. In addition, the definitions of navigable waters, jurisdictional wetlands, and hydrologic isolation were being disputed in the highest courts of law as recently as 2006 when the cases of Rapanos vs. United States and Carabell vs. US Army Corps of Engineers were argued in the United States Supreme Court.
Meanwhile, functioning wetlands all over the state of West Virginia, including the northern portions of the Monongahela National Forest, are being labeled isolated. Why is this? In part because of the unique geology, thin soils, large amounts of snow melt, and abrupt variations in slope, to name a few factors. In addition, former land activities such as logging, road building, and mining reclamation have changed the drainage landscape of many areas and have resulted in the prevalence and persistence of isolated wetland systems. Whatever the reason for a wetland being deemed “isolated”, such a label can result in negative impacts to a valuable natural resource when associated with a project that proposes impacts in or near wetlands or waterways.
To illustrate how various factors can complicate the jurisdictional status of a wetland, a description of a two suspect isolated wetlands are useful. These personal case studies are only qualitative in nature and were compiled during my time employed as a wetland delineation specialist. Nonetheless, these observations are based upon scientific reasoning and apply to such extensive land areas in Northern West Virginia that should not be underestimated.
Scenario number one takes place within an area that has not been altered by humans with the possible exception of low impact logging. Geology is typical of many high elevation areas in northern West Virginia and consists of thick sandstone with fissures and colluvial boulder fields due to rock slides and weathering processes. Also apparent in this scenario is the convergence of runoff water from uplands into an incised channel with a bed and banks (incidentally, this is similar to the COE definition of a stream). In the headwaters, this stream behaves as all other small streams do; it meanders, creates pools and riffles, and erodes the stream banks. Downstream; however, the typical stream scenario breaks down. The concentrated hydrology hits an extended boulder field and infiltrates underneath the rocks, sometimes for lengths of hundreds to thousands of feet. If no hydrology connection is apparent on the surface, this headwater stream and any wetlands associated with it would be considered isolated and non-jurisdictional by the COE.
For a well-known example of the hydrologic phenomena outlined in scenario number one, yet at a grander scale, a person needs only to hike to Fischer Spring at Dolly Sods Wilderness. Within one reach, this large creek widens to approximately 100 feet and flows entirely under large boulders for several hundred feet. This process is especially evident during the summertime. Of course, no one would question Fischer Spring’s connection to Red Creek once the spectacular hydrology of their confluence is considered. Nonetheless, numerous small streams and associated wetlands dissipate and possibly become jurisdictionally isolated by the same process occurring at Fischer Spring. Figure 3 dramatically illustrates shallow groundwater flowing just below the surface as visible through a small hole eroded in the ground surface. Note that the soils and vegetation in the vicinity of the hole are not clearly indicative of wetland conditions.
Scenario number two involves wetlands that have been created or altered due to road building or mining reclamation. Let us suppose that rain or snowmelt hydrology from numerous small drainage ways has been intercepted within a roadside ditch. After flowing alongside the road and collecting other runoff, the hydrology is discharged under the road through a culvert and creates a thriving wetland on the downstream side. Similar to scenario number one, water flowing through this wetland slowly infiltrates into rock downstream, only to dissipate before reaching another waterway. The lack of a clear hydrology pathway is often augmented by the fact that original and natural drainage ways are often abandoned for newer, man-made ones that are not at equilibrium with the landscape and complicate hydrology because of increased infiltration into altered soils/fill (Figure 4).
In the case of reclaimed surface mines, discharge often occurs between layers of fill and frequently contains high iron concentrations. Wetland areas downstream from this acid mine drainage are efficient at stabilizing the pH of these waters by increasing the residence time available for biochemical processes. Again, the reoccurring theme of infiltration can occur due to expansive layers of rocky fill material or natural boulder fields, effectively isolating the wetland that has the potential to be important to water quality through the mitigation of acid mine drainage.
From these examples, it is apparent that the most typical reason for a wetland area to appear isolated from other waterways is infiltration into the ground. In reality, any hydrologist knows that hydrology within a wetland is in almost all cases connected to other waterways downstream; however, this is not enough for protection under Section 404 of the Clean Water Act. This is frustrating for many conscientious wetland delineators, because finding a surface hydrology connection is often impossible and puts the delineator in a difficult position. Most wetland delineators are employed by developers or landowners, and it is very difficult for the delineator to justify retaining isolated wetlands that are scattered throughout a site when there are no legal reasons to do so.
The good news it that there are feasible solutions for this lapse in practical environmental regulation. A scientific test of hydrologic connectivity between suspect isolated wetlands and downstream waterways could be achieved using a dye tracer test. This method could be used to prove groundwater connections between many waterways, although the previously mentioned litigation involving the United States and the COE has the potential to further limit the ability of the federal government to regulate isolated waters using a groundwater connection. With our realization that other options need to be considered, another potential scenario would be for the West Virginia Department of Environmental Quality to begin to regulate isolated wetlands. Even more practical, or at the least site specific, local governments can regulate isolated wetlands indirectly by creating sensitive area ordinances based upon slope, drainage capacity, or soil type.
I conclude by reminding the reader that management decisions are less effective when only applied to the mainstem of streams and rivers. To maintain good water quality and productive habitat throughout the river continuum, the headwaters of watersheds need to be protected. To accomplish the goal of healthy headwaters, wetlands need to be preserved with no discretion between isolated wetlands and federally regulated wetlands.