Tuesday, September 3, 2013

Wetland Struggles

Over the weekend a couple of wetland struggles were making the news and social media rounds. The first was regarding a forested wetland at Panghorn Bog east of Lynden that I had previously posted on after a State Court of Appeals ruling (wetlands-and-farms-one-example). The farm had cleared the forest and drained the wetland without permits and has yet to act on restoration despite the court ruling. Now the Environmental Protection Agency has sued the farm to repair the damaged wetland (EPA-sues-Lynden-farm-over-land-clearing). There is no discussion in the article regarding downstream impacts to other farmers having larger volumes of water flowing through the down stream and ditch system. 

The other wetland struggle, this time west of Lynden and east of Blaine, is being circulated in this Freedom Foundation Video. I was alerted to the video via a Facebook post by Sam. There is a bit more to this story than the video suggests. Mr. Remenar's property is Lot 3 of H Street Meadows. The lot is part of a short plat (small subdivision of land). During the division of land, wetlands on the site were delineated and building areas on each of the new lots were designated. The plat map recorded with the Whatcom County Auditor (Auditor File # 2041200228) contains the following statements:

Jurisdictional wetlands and associated buffers occur throughout this property. A partial wetland delineation was conducted in order to identify building areas on each lot as depicted on the mylar. No development or maintenance activities shall take place outside the approved building areas without further critical areas review. Development and maintenance activities include but are not limited to the following: construction, clearing, grading filling landscaping, mowing, burning, and chemical maintenance of plants.

Mr. Remenar stated in the video he was unaware of wetlands on his property. I have no reason to doubt his statement, but the lot his home is built on has the wetlands designated and on file with the County Auditor with the conditions as shown above, and the excavation of the pond as well as other land clearing and vegetation management (mowing) within the wetland and wetland buffer is not consistent with the conditions placed on the lot at the time the lot was created.

Plat showing wetlands on Lot 3

2009 aerial (USGS) Wetland line derived from plat map. Conditions on the plat regarding wetlands apply to the portion of the property west of the blue dashed line

20011 (Google Earth) showing pond well within wetland boundary

The conditions on the lot as recorded with the County Auditor do not prohibit work being done within the wetland or wetland buffer, but does require a critical areas (in this case wetland) review. This sort of unpermitted thing happens and presents a headache for all involved. Perhaps a pond is a perfectly fine addition to this wetland area. But without a review and some thought it might cause harm to the wetland system. This is the headwaters area of a fairly large stream system that does have some problems with water quality. Downstream of this area are forested wetlands with beavers.

How to implement and carry out wetland regulations is not an easy business - a very tough question for local governments and probably a worthwhile question to periodically ask, Is there a better way?

Federal law requires wetland protections and have been around for a long time. States manage wetlands consistent with federal law by a variety of approaches. Washington State brings a lot of wetland regulation down to a local level as a requirement for counties and cities under the growth management act. This puts a lot of pressure on local electeds and creates a lot of misperceptions regarding wetland regulation. In the social media context, I was blamed by one commenter for the rules restricting the pond construction (I was on the Whatcom County Council for 8 years). However, the rules that applied to this plat and lot were passed in 1997 - before I was on the council and obviously the enforcement is taking place without any help from me.

I do not do wetland consulting work other than rare instances when there are some geology questions. However, I have worked on projects where clients have done work within geology hazard zones on their property and have received letters from the local government - always a tough issue, but in a way much easier as with geology hazards there is usually a great deal more deference given to the geologist. With wetlands, the fixes have to be consistent with federal law and there not as much flexibility.

Vast swaths of Whatcom County are underlain by glacial marine drift deposits with low permeability and hence vast areas have wetland issues. As such there will be far more inadvertent as well as purposeful violations of wetlands codes versus geology hazard regulations. 



Geoffrey Middaugh said...

Good solid, analytical article. Nothing bothers conspiracy theory more than relevant facts. I do believe that you blame to much on the feds, however, because WA law has gone beyond the delegation of the CWA with Shoreline, GMA and salmon recovery.

wynneforplants said...

I linked your article in a comment on a facebook posting by Kathy Kershner of this video, as well as the infamous Nissa slipclay slide.

Property owners have responsibilities, not just 'rights' (AKA entitlement). And most of us are, frankly, clueless about the geological & hydrology on and around our properties.