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Steve C. Morasch
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A new law recently enacted by the Oregon Legislative Assembly creates a better process to resolve disagreements over wetland determinations between property owners and the Department of State Lands (DSL) in Oregon. Among its many duties, DSL is responsible for administering the State of Oregon's removal-fill law, which regulates alteration of waterways and wetlands.
But what happens when a property owner and DSL disagree over whether the land in question is really a wetland? The recently enacted Senate Bill 1582 creates a new process for a binding "independent" review for these types of decisions which DSL is called upon to make concerning wetlands on a landowner's property.
Prior to the adoption of Senate Bill 1582, there was not a clear and simple process for challenging DSL's technical findings. Landowners were forced to raise any objection to DSL findings in an administrative hearing process that can be very time-consuming and expensive. In addition, this type of hearing process is not really an "independent" review because administrative agencies like DSL are given substantial deference by the state hearings officers and the courts. The new independent review process authorized by Senate Bill 1582 is conducted by a panel of three independent reviewers, and does not require a full-blown hearing. One of the reviewers is selected by DSL, another reviewer is selected by the landowner, and the third reviewer would be jointly selected by the other two. The costs of retaining the reviewers would be split evenly between DSL and the landowner, and the results of the independent review are binding.
Senate Bill 1582 also makes other changes to the way DSL makes determinations concerning wetlands. It requires DSL determinations to be made by a staff person with "expertise" in wetlands. It also allows a wetland determination to be extended beyond the current five-year limit if the conditions at the site have not changed. Finally, the new law will require DSL to adopt rules for wetland determinations and delineations that "comport with" federal standards and procedures used by the U.S. Army Corps of Engineers for similar evaluations.
Senate Bill 1582 has a sunset provision and expires in ten years if not renewed.
For further information or questions regarding Senate Bill 1582, please contact the Schwabe attorney with whom you work, Martha Pagel at 503-540-4260 or mpagel@schwabe.com or Steve Morasch at 360-905-1433 or smorasch@schwabe.com.
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