whatCurrent land-use regs failed to protect nearly a quarter mile of urban wetlands. OSB1582 will lessen protections.
I’m headed to Salem Tuesday (2/14/2012) to ask some questions about a proposed piece of legislation, OSB 1582. I’m pretty excited about the prospect because (1) I’ve never attended a senate level legislative activity and (2) it is Oregon’s 153rd birthday. Oh, and it is Valentine’s day, but no biggie about that. Here’s a general summary of the bill as provided by the state:
Creates process by which applicant for permit to remove material from beds or banks of waters of this state, or for permit to fill waters of this state, may request arbitration of final order issued by Director of Department of State Land.
Changes certain processes related to wetlands delineation.
Declares emergency, effective on passage.
Here are some portions of the proposed bill’s language that pique my curiosity:
Section 2. (1) An applicant for a permit to remove…or fill any of the waters of this state, may request arbitration of a final order issued by the Director of State Lands…
Currently if an applicant for a cut/fill permit gets turned down s/he can appeal the decision through the DSL appellate process. If the appeal fails (“final order”) the applicant still has the right to seek other remedies, including submitting a new plan or taking the DSL to court. Neither of these are especially attractive alternatives, I’ll agree; but they are exactly the same alternatives that are available to anyone or any group that may have opposed the particular application in the first place. If I understand the bill at all (and I am pretty sure I do) it would establish a dispute-resolution option that is exclusively limited to the applicant. Why? Where’s the fairness in that? Doesn’t that effectively disenfranchise those who may be in opposition to the proposed cut/fill activity?
(2) Arbitration under this section must be conducted by a panel of three individuals…The arbitrators must be certified and in good standing with the Soil Science Society of America…
As Butch said to Sundance, “Who are these guys?” No offense intended towards the SSSA, but why doesn’t the bill specify a more water-oriented organization, the AIH (American Hydrological Society) for example, or maybe the SWS, the Society of Wetlands Scientists? If having the word “water” mentioned directly in the name of an organization isn’t important, then why is it that here in Oregon we have something called the Soil AND WATER Conservation District?
The arbitrators…shall be selected in the following manner:
(a) The department of State Lands shall select one…
(b) The applicant shall select one…
(c) The department and the applicant shall jointly select one…
Isn’t this a little like putting the coyote in the henhouse to make sure the fox doesn’t run off with the hens?
(5) The decision of the panel of arbitrators is limited to…affirming or setting aside…the director’s final order.
Why doesn’t the bill encourage the arbitrators to arbitrate instead of requiring them to judge? Why does this bill limit them to only one of two conceivable outcomes to the resolution of the dispute? Where’s the opportunity for these “certified” arbitrators to exercise their professional insights and/or wisdom? And a further question here: What constitutes a decision either way, 2/3 majority or consensus? What happens if there’s a split vote and the third arbitrator can’t decide?
Fees are discussed in (5)(a) through (6)(b). I spent some time trying to imagine how this kind of process might actually work, given all the unaddressed variables involved, until a much larger question thrust itself upon me: Why should taxpayers pay for even a portion of a process that essentially disenfranchises the public and further fetters an important state agency in the bargain? Doesn’t this suggest that the DSL bears some sort of culpability simply for upholding its mandate whenever it denies a permit?
Section 5: ORS196.674 is amended…
This existing law addresses Wetland Delineation. The proposed amendments begin with the following language:
(3) A system of delineating wetlands adopted by the Department of State Lands…must comport with:
(a)The United States Corps of Engineers Wetlands Delineation Manual of 1987; and (b) any subsequent federal supplements to the manual…provided that in no event may any rule (imposed by the State of Oregon) specify any guidelines or methods that exceeds those specified…by the United States Army Corps of Engineers.
Why do the provisions for the delineation of wetlands need to be amended as part of this proposed bill’s passage? Why adopt a maximum criteria for Oregon’s interests based upon a minimum criteria established at the federal level? Can’t we (and shouldn’t we) do better than that?
Section 5(5) further amends ORS 196.674 to provide a mechanism for removing land from the state’s inventory of wetlands if and when “…the vegetation, soil or hydrology of an area is sufficiently altered by recent human activities or natural events in such a manner that the vegetation, soil or hydrology indicates a wetland is not present…”
Right away I have to wonder what happened to this area in the first place. We haven’t been inventorying wetlands for much longer than we’ve been trying to protect them. What went wrong and why isn’t something being done to redress the situation?
The process for determining whether or not a wetland should be removed from the inventory looks somewhat like the arbitration idea discussed above. Making the call will require the services of another triumvirate:
- a botanist, one who is certified by a third-party that certifies experts in botany;
- a soil classifier certified by the Soils Science Society of America (Who are those guys?);
- an expert in soil water who is certified by a third party that certifies – wait for it – experts in soil water.
What is “an expert in soil water” called and who might certify one? (You guessed it, the SSSA.) And to pick a little more nit, how do the other life and geological specialties get addressed? You could end up with a panel rather than a trio, especially if you wanted to do a good job of the process. Why not just cut to the chase and get three individuals certified in wetlands science?
Section 5 is also worrisome because using the Corps standards would mean that a wetlands delineation would be good for ten rather than five years. The dynamics of watersheds these days is particularly volatile, especially in urban areas. We’d be better served with a shorter rather than longer life-span for these critical assessments.
Finally:
Section 10. This 2012 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist` and this 2012 Act takes effect on its passage.
What’s up with that? Is this just some piece of boilerplate that legislators put on the ends of their bills to attract attention or is there genuine crisis out there that passing this bill and its amendments might impact? Maybe I’ll know more about that after I've attended Tuesday’s session.
Getting ready for the meeting and preparing my comments has taken a lot more time than it took to write the analysis/commentary above. I think it’s ok for me to shoot from the hip in my blog, but commenting more formally within the context of state business certainly requires a great deal more maturity, discipline and brevity. I’ll post a PDF of my testimony later today, after I’ve had a chance to review it more fully. If you’d be interested in commenting on the bill I urge you to visit
HOLD THE PRESSES!
After working on both this blog and my testimony for much of the last four days, moments ago (3:00 PM 2/13) a copy of an amended version of the bill showed up on my laptop. Given that it had taken the better part of two days to plow through both the bill’s language and the various ORSs and other documents it references I now have to regroup – and in a considerable hurry at that. This new bill is a little less directly worded than the first version.
Stay Tuned!
