Changes to wetland rules take a coastal focus

CHESAPEAKE

"Can you hear the sand in there?" asks Greg Culpepper, rubbing a glob of dark soil between his fingers.

Culpepper, an environmental scientist with the Army Corps of Engineers, is standing over a small hole in a tangled forest, explaining how he determines whether this spot is a wetland or not.

The sand that he hears - yes, it does give off a low, grating hiss, like a snare drum being lightly brushed - is one factor among dozens that Culpepper and other corps scientists use to decide whether a piece of property is a wetland or a simple field or forest.

To developers, builders and landowners, his call is crucial. If deemed a wetland, the site will require state and federal environmental permits that can take months to obtain. Compensation for lost wetlands must be arranged before construction can begin.

Experts must be hired. Costs go up. Time drags on.

Wetland delineation is part science, part art, with a dash of personal judgment added in. The recipe has long driven developers nuts, can lead to pain-

staking lawsuits, and spurs environmental groups to action.

Now, for the first time in two decades, federal guidelines for making wetland decisions have changed.

The corps today is following a new regional approach in coastal Virginia, east of Interstate 95, that aims to give local factors more sway and remove some of the gray areas from the equation.

New rules for the rest of Virginia, west of I-95, are expected to be published this fall. Engineers and consultants are watching closely.

"It's about making more consistent calls, more scientifically sound and legally defensible," said David Knepper, another corps scientist based in Norfolk, with more than 20 years of experience in the field.

The wetlands in question are not tidal wetlands, those squishy bogs that lie next to creeks and rivers and are easily spotted by their cattails, standing water and marsh grass.

These are nontidal wetlands, which can be found hundreds of yards - even miles - from free-flowing creeks, streams or ditches.

To the untrained eye, nontidal wetlands can look like basic forests and fields. They often are located steps away from these other, unregulated land features.

Still, nontidal wetlands are ecologically significant and are protected by the corps and the Virginia Department of Environmental Quality. They provide wildlife habitat, control flooding, supply groundwater and filter pollutants.

The three main factors that go into delineating wetlands remain the same: nearby vegetation, soil type and local hydrology, or water levels on site.

The difference is that corps scientists now have more signals, more details, within the three main categories to u se when evaluating a property.

If they see a dried mat of algae, for example, they now can count that as "a primary indicator." It takes the presence of one primary indicator and two secondary indicators to make a positive wetland identification.

Scientists also can consider "a concave surface," or a small depression that could become a water basin, as part of their analysis.

Loblolly pine trees growing near a site in question can now be considered a wetland symbol; before, the tree was an upland species.

Engineering consultants hired by developers and landowners, often to conduct separate delineations to counter those by the corps, say the new rules have not caused any controversies - yet.

Kristen Shacochis-Brown, a Virginia Beach consultant and president of the Virginia Association of Wetland Professionals, said the biggest difference seems to be time.

"It takes a lot longer to do a delineation," she said, noting that an evaluation form now covers three pages instead of two.

That extra calculating can mean more expenses for landowners, Brown said, especially when a large tract of land is under scrutiny.

"The calls the corps makes remain about the same," Brown said last week. "But there is some grumbling, some worries out there in the regulated community, that this could change the game."

Until now, the corps relied on a set of guidelines published in 1987 to determine wetlands. A stricter code was issued in 1989, but under political pressure, Congress nixed it.

Then, in 1993, Congress asked the National Academy of Sciences to study whether wetland calls were truly based on good science. The resulting report said yes, those decisions largely were appropriate.

But one recommendation called for regional rules to better account for the wildly different landscapes and conditions across the country. The new rules for eastern Virginia, published earlier this year, also apply to coastal environments in North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana and the Texas Gulf Coast.

To show how the new rules work locally, three corps scientists from the Norfolk district toured two nontidal sites in southern Chesapeake, with news media in tow.

One site off Jolliff Road that's owned by The Nature Conservancy was fairly obvious: The soil was dark and wet just a few inches below the surface. Giant cane, a bamboo-like plant, was abundant. And there was a mucky layer of leaves and organic material within the soil.

Ticks and chiggers were common, but as the scientists said, the presence of insects or animals cannot be used in making a wetland call.

The second site, owned by the city of Chesapeake near the Chesapeake Expressway, was different.

There was little groundwater even 30 inches below the surface. Loblolly pine grew nearby, but the site resembled a dense forest.

Still, the scientists said, this was definitely a nontidal wetland.

They noted, though, that such a site might be one of those that a developer and the developer's consultant would challenge.

A common move in such cases, the corps scientists said with wry grins, would have the consultant intentionally seeking a delineation during the hot, dry summer months, when groundwater is low and the soil hard.

An inexperienced regulator might miss other, more subtle signs and declare the site an upland.

"There's definitely gamesmanship that goes on," said Culpepper, one of the corps scientists on the tour. "That's where experience - and the new rules - come in."

As Culpepper dug a small hole, he pinched a sample of gray soil, sprinkled it with bottled water, and matched it to a color chart that all corps scientists carry.

"See?" he asked. "See how you can match this with the wetland-indicating types?"

Well, sort of, a reporter answered.

"It is complicated," Culpepper said. "But the more you work with it, the easier it gets."

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com