SALEM — Oregon landowners don’t have a simple, reliable method to find out whether their property is considered a wetland.
That’s potentially a big problem if a structure is built on a parcel that state authorities later determine is a wetland, thus making the landowner liable for costly mitigation measures.
Jesse Bounds, a hay exporter near Junction City, Ore., learned that lesson the hard way.
Upon trying to rebuild two barns that had burned down last summer, Bounds was told by Oregon’s Department of State Lands the construction was unlawful because he hadn’t obtained a fill-removal permit. The permit is required when disturbing wetlands.
Bounds was shocked by the notification, since his 12-acre parcel wasn’t identified as a wetland under the State Wetland Inventory and he’d obtained all necessary building permits without a hitch.
Oregon lawmakers are now contemplating two bills that would resolve the problem.
One is aimed specifically at Bounds’ situation, while the other seeks to dispel the broader confusion over which properties fall under DSL’s wetland jurisdiction.
House Bill 2785 takes the narrow approach, by exempting the replacement of a farm building “destroyed by fire or other act of God” from state fill-removal laws.
House Bill 2786 is more expansive, creating an exemption for any property that’s not designated as a wetland under the State Wetland Inventory.
Much of the discussion during a Feb. 21 hearing before the House Agriculture Committee focused on the latter bill.
Proponents argue that landowners may believe their property isn’t subject to fill-removal laws — based on the State Wetland Inventory — without realizing that DSL can nonetheless arrive at a different conclusion.
“They have no idea the map is not right,” said Mary Anne Nash, public policy counsel for the Oregon Farm Bureau.
Landowners such as Bounds, who think they’ve followed all the applicable laws, may never hear from DSL unless a neighbor makes a complaint, said Dave Hunnicutt, executive director of the Oregonians in Action property rights group.
“Unfortunately, that’s the way that DSL exercises its jurisdiction,” Hunnicutt said.
While a housing developer may be able to afford wetland mitigation credits, that option is often too costly for farmers, he said.
Such credits, which effectively pay for the creation of wetlands elsewhere, cost about $77,000 to $81,000 per acre, according to DSL.
“Someone in Mr. Bounds’ position, it puts him out of business,” said Hunnicutt.
Opponents of HB 2786 claim the bill would jeopardize wetlands across Oregon because many aren’t included in the State Wetland Inventory.
The State Wetland Inventory only includes a “small subset” of wetlands that are under both state and federal jurisdiction, said Tom Wolf, executive director of the Oregon Council of Trout Unlimited, a group that advocates for fish habitat.
“It’s too broad a bill,” Wolf said.
The League of Women Voters of Oregon believes the wetland designation process should be made clearer but worries HB 2786 sets a definition that’s too limited, said Peggy Lynch, the group’s natural resouces coordinator.
“We need to have something more than the State Wetland Inventory to consider,” she said.
Several members of the House Agriculture Committee said they sympathized with Bounds’ predicament and the need to clarify wetland designations, including Rep. Brian Clem, D-Salem, the committee’s chair.
Clem said he favored a simpler alternative to the current system of identifying wetlands, under which parcels are evaluated on a case-by-case basis.
“That to me sounds horribly tiresome and painful,” he said.