By Stephen Smoot
Officials in Pendleton, Grant, and Hardy counties continue to voice concerns over developing pressure points along the South Branch River.
Three separate areas of concern have repeatedly come up in regional discussions and requests for assistance or regulatory relief.
Last month, the Pendleton County Commission spent just under $500,000 to acquire the former Franklin Elementary School on a hillside above the downtown of the county seat. This came after years of warnings about the impact of a rising riverbed and reduced carrying capacity in the river for large amounts of water.
Currently a number of County and local offices of the State, including both law enforcement and emergency management, operate from the community building near the river. Heavy rains this summer caused the river to approach flood stage multiple times while drainage systems failed, leaving the nearby Pendleton County Senior and Family Services building literally bailing water for two hours to prevent that facility from flooding. Gillespie shared worries that floodwaters could incapacitate the community building in a disaster.
The new structure will place vital facilities and personnel well above the river’s flood stage. The property could also potentially house in the future the Franklin Volunteer Fire Department and Pendleton County Rescue Squad’s Franklin unit
A different type of danger from debris embedded in the river has developed in recent years in Smoke Hole Canyon.
Mike Alt has a unique perspective on Smoke Hole Tourism. When they come to enjoy the wild river and wilderness scenery, tourists inevitably stop at his Shreve’s Country Store.
If they find themselves in physical danger, they must engage one of his other going concerns. Alt also serves as Training Officer for Pendleton County Emergency Rescue.
“As a local sporting store that relies heavily on tourism, our customers that come here for a variety of water recreational enjoyment will be hindered by the impact of debris filled rivers,” he explained.
Alt has expressed concerns for years over steadily increasing numbers of trees that fall into the river and become embedded. Recently he flew a drone over this section of the South Branch River to determine the extent of the problem.
This creates dangers on both a micro and macro level.
Trees in the fast paced, narrow, and winding Smoke Hole Canyon pose a “micro” threat to each individual rafter, tubist, or kayaker that chooses to traverse the river, especially on the lengthy 16 mile stretch downstream of Big Bend Campground.
Danger from the trees can come quickly on those unprepared to meet it on the river. “A 12-year old had a near death experience from this exact same issue,” Alt said, then asked “is that not a reason enough to address these issues?”
The “macro” effect is even more ominous. Alt shares that “the debris currently is concerning due to the fact of how large it is.” He went on to add that flood levels rise more rapidly in the Canyon and that other debris could catch onto the trees and produce a damming effect and “divert water onto the single lane road into Big Bend Campground,” likely washing it out.
“If this was to occur, who knows the lives in danger with no road access to the campground,” shared Alt. Additionally the narrowness of the Canyon gives those staying in the homes along the river few avenues of escape should a flood close to the level of 1985 recur.
A damming effect would also have unpredictable consequences for those living downstream in Grant County’
Grant and Hardy County, however, have focused their South Branch worries on the threat to the US 220 bridge crossing the South Branch at Petersburg Gap, about halfway between the two regional centers of trade and government.
Grant County Commission President Kevin Haggerty shared that regional elected officials had a direct discussion with Governor Patrick Morrisey at Welton Park, just upstream of the bridge. “While Governor Morrisey was in the region for the Tri County Fair,” stated Haggerty, “the Grant County Commission had an opportunity to talk with him about the debris that is building up near the Gap bridge.”
That debris over four decades has formed unstable islands upstream of the multi-million dollar bridge that serves a heavy daily traffic of commuters, residents, and visitors with millions of dollars of commerce on the line. “The Commission exposed the hazards posed and the possible devastation that could occur if the problem went unaddressed.”
He added that “Governor Morrisey was very receptive and expressed interest in finding a solution.”
“The threat as we see it is real,” shared Dave Workman, Hardy County Commissioner, who went on to note that “we continue to have discussions with DNR (Division of Natural Resources), DOH (Division of Highways), and PVCD (Potomac Valley Conservation District) regarding the river.
“Unfortunatey without money, it is hard to gain any traction,” said Workman. He also explained that beyond the bridge “we see several other potential areas that need attention to prevent soil loss, land and property damage, road and bridge damage.” The Trough area of the river extending downstream into Hampshire County has the potential to develop similar issues as Smoke Hole and face similar consequences in a major flood.
Workman echoed the frustration of other officials when he said “seems we will have to wait for an emergency situation before things get done
Gerald Sites with the Potomac Valley Conservation District has also tried to bring pressure at every level for many years to get relief. He has shared that he could find contractors to do the Petersburg Gap work at low cost to the taxpayer as well.
Workman cited the need for money to address the problem. It is difficult to determine just how much cost would have to go into navigating the Byzantine maze of federal regulations to even put together a permit application that had a possibility of acceptance. That likely goes well beyond the resources of all three affected counties combined.
Over time, the federal government assumed more and more authority over waterways in the United States. The most important step came in the legal expansion of the scope of the Interstate Commerce Clause contained in the original United States Constitution.
During the Civil Rights era, the federal government won in court the ability to expand the ICC to include anything even remotely related to commerce crossing state lines. This enabled the federal government to attack racial discrimination in employment and contracting. Courts did not restrict the expanded interpretation to just civil rights, however. This led to the unparalleled expansion of federal government power ever since.
Only through the expansion of the ICC can the federal government enforce laws related to the environment, drug enforcement, and other issues previously seen as sovereign powers of the states alone.
This begins with what the United States Environmental Protection Agency is permitted to define as “Waters of the United States.” For years, Presidents Barrack Obama and Joe Biden pushed an interpretation that would include not only rivers, streams, and creeks, but also an expansive definition of “wetlands” that would include almost any other area containing water at any time.
In a 2023 case, the United States Supreme Court ruled that WOTUS could only include bodies of water in permanent connection to each other on the surface of the land. According to the Federal Register, this means “the [Clean Water Act]’s use of `waters’ encompasses `only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic[al] features’ that are described in ordinary parlance as ‘streams, oceans, rivers, and lakes.’”
This, of course, includes the three major rivers of the South Branch of the Potomac watershed.
Section 404 of the Clean Water Act governs the process needed to remove materials from riverbeds. It requires specific permitting that follows the following guidelines. As the EPA website states, “the basic premise of the program is that no discharge of dredged or fill material may be permitted if: (1) a practicable alternative exists that is less damaging to the aquatic environment or (2) the nation’s waters would be significantly degraded.”
The page goes on to state that “in other words, when you apply for a permit, you must first show that steps have been taken to avoid impacts to wetlands, streams and other aquatic resources; that potential impacts have been minimized; and that compensation will be provided for all remaining unavoidable impacts.”
This is what any entity, be it a private sector operator, municipality, county, State of West Virginia, Potomac Valley Conservation District, or anyone else must tackle before conducting work that could release materials into the stream.
Harrison County, for example, is working with Thrasher to conduct work on a property recently acquired by their County Commission. The site will be evaluated to determine what would meet the Supreme Court definition of Waters of the United States. To obtain their permit, they must present their case to the Army Corps of Engineers that the water that collects on the land from time to time is not permanently connected to other waterways. It will take many months to work through the process before they can improve the land.
Rivers in the Potomac Highlands do meet that interpretation, so those applying for permits will have to undergo the full process.
One of the most complex aspects to the process comes in the form of mitigation, which usually means compensating for the damage done during the process of removing debris. In April of 2008 came “more comprehensive standards for compensatory mitigation” from the Army Corps of Engineers. It covers 113 pages and contains an extraordinarily complex series of specific directions.
Intentionally or not, the extensive regulatory requirements on mitigation alone create an almost impassable barrier for local governments or regional organizations such as the Potomac Valley Conservation District or Region Eight Economic Planning and Development to overcome. Only years of costly, difficult, and laborious paperwork or an Act of Congress would provide relief.
According to the EPA, one cannot obtain a waiver for requirements of Section 404 of the CWA and removing debris directly from the river does not fall under the exempted activities.
Alt, however, proposes that the federal government take a more proactive stance, saying “we need to work with a plan similar to the 1980s where the Army Corps of Engineers would dredge the river basins and banks to reduce all these types of issues.”
The one entity in the United States with the legal ability to ignore any environmental law or regulation is, after all, the federal government itself.
