Month:

March, 2012

Keeping Watch on the DSL

Editorial Comments

by Deborah Steele Hazen

It’s easy to complain and be skeptical about our elected leaders.

A couple of weeks ago, we wrote in this column about the 2012 legislative session, and expressed the hope that the legislation which was passed – quite a bit on some complicated issues – would ultimately do more good than harm. We stand by that skepticism, but we also need to give credit when it is due.

We recently received notice of a meeting April 3 in Astoria (see the story at right for more information) called by the Department of State Lands (DSL) staff “regarding the land management and removal-fill programs,” and focussing on “recent legislation requiring rulemaking.”

The “recent legislation” to which the DSL notice refers was passed during the 2011 legislative session and includes House Bills 2189 and 2700 and Senate Bills 518, 600 and 766.

Four of those bills deal directly with regulations and requirements of the DSL. The fifth, SB 766, requires the designation of between five and 15 “regionally significant industrial areas” around the state and the streamlining of the permitting process. Permit streamlining would require some changes in the way the DSL does business, and may also include some discussion of having the DSL take over some of the permitting work now done by the U.S. Army Corps of Engineers. That should be given some careful thought.

As just about anyone who has had to deal with the DSL knows – especially in recent years – it is a difficult bureaucracy. The DSL has legal jurisdiction over the “waters of the state” which are defined as “natural waterways including all tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands and other bodies of water in this state, navigable and non-navigable, including that portion of the Pacific Ocean that is in the boundaries of this state.”

There are certain narrow exceptions to the law, including if the land under water was deeded into private hands by the federal government prior to Oregon statehood.

An Expensive Compromise

It was on that point that five private property owners within the City of Clatskanie and the city itself, took on the DSL, which was attempting to impose leases on commercial and city-owned structures and facilities along the Clatskanie River.

After a couple of years of battling the DSL on our own, with the agency ignoring our evidence of pre-statehood ownership of the land and subsequent manmade changes in the course of the river, and having our historical facts and documents countered by intimidation and inaccurate studies, the six parties hired an attorney and a researcher experienced in battling the DSL.

It took roughly $70,000 divided between the five private property owners and the city, but we battled the bureaucracy to a compromise we could live with. When you’re dealing with the DSL that’s a victory.

For the area in question – roughly between Grannis Square and the Nehalem Street Bridge – the DSL got clear title to the bed of the Clatskanie River below the mean high tide mark – which it had never had before – and the property owners, including the city, got the right to be left alone by the DSL on the footprints of our current structures – for perpetuity.

We would like to know how much the DSL spent of our money on staff time and flawed studies trying to take away our property rights. “Flawed,” by the way, is giving some of the DSL’s tactics and misinformation the benefit of the doubt. One might substitute another word that rhymes with “flawed.”

Legislators Respond

There are many landowners throughout Oregon – but especially in Northwest Oregon where there is so much water – that have felt the heavy hand of the DSL, individually and as representatives of local public entities, particularly drainage improvement districts.

Some of them packed several meetings held in late 2009 and again in the spring of 2010, giving DSL staff members an earful. Our State Senator Betsy Johnson was there, hearing the public comments and lending her own voice to the fight against a DSL “rulemaking” effort to extend fees to include such things as “riprap” used to prevent erosion along waterways, tidegates and other facilities owned and maintained by drainage districts.

Besides the expansion of the DSL’s control over our lives and property, and the additional costs that expansion would mean to local property owners, what was particularly grating about that round of “rulemaking” in 2009 and 2010 was the DSL’s stated reason for doing it – “to recover more of the costs it incurs to administer its registration program.”

After a series of meetings throughout the winter of 2009-10 which were facilitated by Senator Johnson, the DSL suspended efforts to update its administrative rules governing waterway authorizations in April of 2010.

The next fall they were back with new rules regarding “general authorizations” for removal and fill.

About 50 landowners and drainage district representatives from Columbia and Clatsop counties overflowed the Clatskanie city hall to hear what the DSL staff had to say and to give them another earful.

During that meeting, undoubtedly feeling the anger and passion of the crowd regarding DSL issues, Bill Ryan, who had just been appointed assistant director for removal and fills in wetlands and waterways for the DSL, repeatedly told the crowd that he had only recently joined the DSL staff and, hence wasn’t responsible for the way they had been treated by the agency in the past.

During that two-and-a-half-hour-long meeting on Oct. 27, Senator Johnson pledged to work with local drainage districts and DSL staff to craft legislation to address some of the issues raised.

She was as good as her word. In the 2011 legislative session, she introduced Senate Bill 600 which ultimately was passed and signed by the government.

SB 600 addresses several of the concerns that were brought up by local residents  during the 2009 and 2010 meetings including exempting structures maintained by drainage districts, riprap and voluntary habitat restoration work. However, Senator Johnson acknowledges that she did not get the DSL to back-off as far as she would have liked.

She did not support SB 518, which prescribes two procedures by which the DSL may establish a general permit for removal or fill.

Both House Bills 2189 and 2700 were either sponsored or supported by our State Representative Brad Witt.

HB 2189 allows authorized users to change the point of diverting surface waters without the need to obtain a removal-fill permit  if there is a valid water right from the Water Resources Department and if changing the point of water diversion is necessary to adjust for movement of the waterway.

HB 2700 includes a removal or fill process for linear facility maintenance projects within the DSL’s removal-fill permitting program. While Representative Witt supported this, Senator Johnson did not, because she is concerned about giving corporations, such as pipeline companies, too much control over other private property owners.

No matter how good the intentions of our legislators, it is important to remember that bills have to go through a committee process that is influenced by the bureaucracies, they are frequently amended, and then they must be passed by the committee to which they’ve been assigned, before making it onto the floor of the Senate or House of Representatives. Both of those bodies have to pass them, frequently adding amendments, and they have to be signed by the governor.

We have tried to read these bills that the DSL says it will be addressing at next week’s meeting, but we readily admit that we do not understand all aspects of them. We do believe, however, that Senator Johnson and Representative Witt have tried to be responsive to the concerns of their constituents regarding the DSL.

At Tuesday’s meeting, the DSL staff will make presentations, and then the public will have the opportunity to comment.

Our legislators have kept their word in regard to doing their best to respond to DSL-related issues.

Now it’s time for us to attend next week’s meeting and formal rulemaking hearings beginning in mid-May, and do our part to help shape the process and keep a careful watch on the DSL.

Continue reading

Copyright © The Clatskanie Chief 2014. All Rights Reserved.
Powered by WordPress