How much of this was delineated as a wetlands? Apparently not enough to keep it from becoming the future site of a 400' bridge.
This last Tuesday (2/14/2012) I gave testimony before the Senate Committee on Environment and Natural Resources. I spoke against the passage of OSB 1582. The bill had been re-amended in a manner that eliminated many of the main points I addressed in my rant of a couple days ago. It still represents a threat to wetlands and waterways but now it is just a less direct.
MEMORANDUM
To: Chair/Senate Environment and Natural Resources Committee and members of the committee
From: Eric L. Lindstrom, EdD
Date: 2/14/2012
Re: OSB 1582 / Arguments Against
OSB 1582 will lead to further degradation of the waters of the state by reducing the scope, authority and resources (both human and fiscal) of The Department of State Lands (DSL).
OSB 1582 requires the DSL to enter into arbitration without option if and whenever a person so requests. In this manner any “final” decision by the director is inherently anything but final.
By specifying that the Corps of Engineers 1987 manual (etc.) will be the maximum standard for Oregon’s approach to watershed delineation procedures, OSB 1582 binds the state to a minimum standard for the rest of the country.
Given the ever-changing nature and inherent volatility of contemporary wetlands, particularly those in urban areas, any wetland delineation, no matter how expertly accomplished, should automatically expire in three years, not ten.
The fiscal and administrative burden that passage of this bill could place upon an already heavily obligated agency could be ruinous, particularly since (1) the DSL is required to participate and (2) the mediators themselves will be allowed to determine the cost of mediation. All this is to say nothing of the foreseeable negative impact on morale.
Finally, OSB 1582 specifically and exclusively favors only the applicant. Neither the DSL (the State) nor the citizens of the state can possibly benefit from this process. Indeed, the citizenry is inherently excluded from it.
The EPA calculates[1] that there are 114,823 miles of rivers and streams in Oregon. To date only 46,035 of those river and stream miles have been assessed. Of the assessed miles, 31,060 are either environmentally threatened and/or impaired. Closely associated with those impaired river and stream miles, and generally impaired themselves, are thousands of acres of wetlands too small to attract surveys but too large not to have significant impact upon the waters to which they ultimately commute. The negative impact of OSB 1582 on these already at-risk waters is potentially staggering.
Fanno Creek, the urban stream that I have studied for the last five years could be the poster-child for all the other streams and rivers in the EPA’s list of impaired miles of waterways in the state. In the late 1960s the stream was so badly polluted that locals called it Drano Creek. If the wind was right you could smell it before you could see it. One of the major factors contributing to its near demise was the unbridled cut and/or fill practices of the pre-Environmental Enlightenment era. Even with today’s regulatory practices significant chunks of the Fanno Creek watershed continue to be harmed or vanish completely on a far too regular basis. SBO 1582 will only serve to insure that Fanno Creek and the other 31,045 miles of Oregon streams in similar trouble will be less protected tomorrow than they are today.
[1] http://iaspub.epa.gov/waters10/attains_state.control?p_state=OR#STREAM/CREEK/RIVER
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After I delivered my remarks Senator Hass asked me why I was studying Fanno Creek. Hadn’t its condition improved considerably? The creek is in his district so the the question was obvious and natural and I should have been prepared for it. I wasn’t, however and as a result I fumbled with my response. Too bad, because it was a perfect chance to get right down to the heart of the creek’s issues and I’m afraid I didn’t, at least not as clearly and effectively as I might have.
Several other people testified against the bill including Sue Marshall. She delivered her remarks in a clear and seemingly effortless manner, I was envious and am sure her testimony was the most well crafted, reasoned and potentially effective of the lot. She was questioned pretty hard by Senator Olsen who, from his remarks seems to see protection of wetlands on private property as a kind of “takings.” She fought him off quite well, I’m happy to say. But in the end the combined testimony against it wasn’t enough to sink the bill, at least to the extent that it would die in committee. Instead it was forwarded to “ways and means without recommendation.” Exactly what that means in legislative-speak I am not sure, but I suspect the bill will ultimately make its way to the floor of the senate for a vote. If there is another chance to attack it I will give it a go; but given that the arguments put forth in committee did not prevail this time ‘round I’m not convinced they would have a better chance in the full senate.
I think a major selling point for the bill was the idea that the decision as to whether a wetlands actually exists on a piece of private property can now be decided by a group of science minded people rather than by a judge. I can see some real positive attributes to that aspect of the bill and if access to the remedy it provides to private parties was also there for the public I could actually support most of it. But the latest revisions are still focused on applicants for wetlands cut and fill permits to an extent that potential opponents would left out in the cold. Or at least that’s my understanding to this point.
Interestingly enough the DSL supports this bill. They don't believe that it will add much if anything tot the cost of doing business because they don't anticipate that the option will be used all that much. I think. If I understood the testimony of the department's spokesperson, that belief is based upon the fact that rarely do applicants seek remedies to DSL determinations using the current process, e.g., bringing suit. But this additional option (exclusively available to the applicant for a permit) would be considerably less expensive than bringing a law suit and yet its outcome would be every bit as binding. I would not be surprised to see the option used quite frequently.
Perhaps more than anything else this experience helped me recognize that I am at a tipping point with regard to the nature and scope of my involvement with wetlands issues. In the days leading up to the committee meeting I sunk considerable time and energy into working on my knowledge of the various OSBs, RSOs and other regulatory aspects involved in the case. Even so I felt almost completely unprepared for the exercise. If I am to function effectively, much less comfortably in such environments I will need to deepen my understanding and refine my insights considerably. That means time spent away from the creek and out of the watershed. Furthermore I am not certain that I could ever be very effective working in the political frame, even on an occasional basis.
On Monday I start work on what I hope will be the last pre-publication edit of my book. I won’t be blogging again, or doing much else for that matter, until I’m finished. When I finally get UP FANNO CREEK off my laptop and out into the world, I plan to take a trip over to the Eastside and spend a few days "witnessing.” I need to clear my head somehow before I grapple with how best to go forward with my future work in support of Fanno Creek and places like it.
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