Oregon barn fire leads to wetland dispute
JUNCTION CITY, Ore. — Hay exporter Jesse Bounds knew it’d be a rough summer when two of his barns burned down in mid-July.
A fire ignited spontaneously in his field and soon consumed the structures, which contained roughly $500,000 of straw.
“It was so windy that day that it blew through the buildings in like five minutes,” said Bounds, who also bales straw and compresses it at his facility here.
Problems with the insurance company left Bounds short of money to rebuild both barns at a time when his income was drastically reduced from the loss of straw, he said. “I’m just bleeding to death.”
Then came a blow from an unexpected direction: Oregon’s Department of State Lands notified Bounds he’d violated Oregon’s removal-fill law by attempting to rebuild in a wetland.
The letter came as a shock. “I was literally sick to my stomach,” Bounds said.
His surprise sprang from the fact the property isn’t identified as a wetland on county maps and he’d received the necessary county permits to begin construction.
“The problem is the county and state don’t work on this issue,” he said. “If they’re really trying to protect wetlands, why would they allow the county to give me building permits again?”
Bounds suspects that DSL’s interest in the property was sparked by a complaint from a neighbor with whom he’s had disagreements, since the agency did not protest when he first built the storage facilities in 2014.
He’s already rebuilt one barn but worries he’ll still be required to spend roughly $57,000 on wetland mitigation on each of the 12 acres that DSL claims are wetlands because they contain hydric soils. Generally, such mitigation involves buying credits from a wetland bank that’s been developed elsewhere.
Bounds said the agency effectively declared the area a wetland and then forced him to prove it’s not.
“They come at you like they’re the police. They automatically think you’re in violation,” he said.
Julie Curtis, public information manager for DSL, acknowledged “the timing of our enforcement action was unfortunate due to Mr. Bounds’s recent fire.”
“However, as a regulatory agency, the Department of State Lands is bound by its statutory and rule responsibilities with regard to protecting Oregon’s wetlands and waterways,” Curtis said in an email. “We always strive to resolve violations in a way that ideally will facilitate accomplishing the applicant’s goals, while meeting the state’s requirements to protect Oregon’s wetlands and waterways.”
DSL acknowledged that a “forensic wetland delineation” on the property would be difficult and therefore the agency was willing to discuss alternative methods for defining the area where mitigation would be required, according to an agency email sent to a wetland consultant hired by Bounds.
The agency has agreed to postpone taking any action in Bounds’ case until the end of the 2017 legislative session next July, when it will be “re-engaging with Mr. Bounds to determine how to resolve the matter,” Curtis said.
Oregonians In Action, a nonprofit property rights group, believes it may have a legislative solution that would solve such problems for Bounds and other farmers in similar situations.
The underlying problem is that state and county maps may show that a property isn’t a wetland, but that doesn’t necessarily mean DSL can’t later determine it’s actually a wetland, said Dave Hunnicutt, the group’s executive director.
“DSL isn’t limited to the places listed on their state and local wetland inventory,” he said. “The maps are misleading to the public and can’t be relied upon.”
It’s unfair to expect landowners to pre-emptively check whether every portion of their property is a wetland, particularly since such determinations are often based on soil tests rather than stereotypical wetland characteristics, Hunnicutt said.
“It’s not a pond, it’s not a marsh, there are no cattails. It’s just a field,” he said. “If you can’t rely on the maps, then why do they have them in the first place?”
It’s also unrealistic for DSL to examine every property that’s permitted for development, which is why the process is largely complaint-driven, Hunnicutt said.
Hunnicutt plans to ask a legislator to introduce a bill clarifying that properties not classified as wetlands on local and state inventories are exempt from the removal-fill law.
In the alternative, the exemption would be narrowed to the rebuilding of agricultural buildings, which would be more specifically tailored to Bounds.
“The Legislature needs to step in and make sure what’s happening to Jesse doesn’t happen to anyone else,” Hunnicutt said.