Oregon wetland inventory raises regulatory concerns

An inventory of Oregon’s wetlands is intended as an “early warning system” to prevent regulatory conflicts but some lawmakers worry it effectively expands government jurisdiction over farmland.

The Oregon Department of State Lands is developing a statewide wetlands inventory map using multiple sources of information to show where wetlands are located.

The question is significant for farmers, who must obtain fill-removal permits from DSL before starting major ground-disturbing projects within wetlands.

However, current inventories maintained by the federal government and local governments are incomplete, raising the possibility that landowners may not know they’re filling or removing material from a wetland.

A statewide wetland inventory would reduce the likelihood of such “false negatives,” said Bill Ryan, deputy director of operations for DSL.

In 2016, for example, a Willamette Valley farmer began replacing hay barns destroyed in a fire with local government permission, only to have DSL claim he was building in a wetland.

One of the criteria to determine the existence of a wetland is whether the property contains hydric soils, which form when ground is regularly inundated with water for lengthy periods, Ryan said during a May 21 hearing before the House Agriculture Committee.

“The Willamette Valley in particular has a lot of these hydric soils,” he said.

Hydric soils will serve as a “wide net” for analyzing lands, but the agency will rely on the area’s current hydrology and other technical factors to decide whether it’s currently a wetland, Ryan said.

Rep. Brian Clem, D-Salem, said he was concerned about DSL going beyond what’s currently considered a wetland by the federal government, particularly since development on farmland is already restricted under Oregon’s land use system.

The agency should be careful not to exceed the boundary of its statutory authority in developing the statewide wetland inventory, Clem, the committee’s chair, said. “I would put this whole program under review.”

Other committee members also expressed worries about the inventory.

While obtaining a fill removal permit in a designated wetland is possible through the purchase of mitigation credits, that’s not always financially feasible, said Rep. Sherrie Sprenger, R-Scio.

“Being able to afford it is something totally different,” she said.

Rep. Brock-Smith, R-Port Orford, said landowners may lack the personnel to deal with the permitting process, while Rep. Brad Witt, D-Clatskanie, requested an economic impact study of the statewide inventory and its effects.

While certain wetlands may be missing from the national inventory map maintained by the federal government, that doesn’t mean that federal agencies don’t have authority over them, said Ryan of DSL.

Areas not on the federal map can still be regulated under the Clean Water Act and state officials would use the same parameters to decide whether property contains a wetland, he said.

The goal of the statewide inventory is to show people where the agency has wetland authority so they don’t unintentionally break the law, Ryan said.

“That is really what this inventory is for,” he said. “We’re not increasing our jurisdiction at all.”

The Oregon Farm Bureau wouldn’t necessarily oppose DSL’s mapping project but it’s concerned about how broadly the agency is defining wetlands, said Mary Anne Cooper, the group’s public policy counsel.

The statewide inventory would presume many properties are wetlands until the landowner proves they’re not, she said.

“We think they’ve taken a very expansive view of their jurisdiction and have not honored some of the carve-outs that legislators have made to reduce their jurisdiction,” Cooper said.