An Oregon farmer faces a $6,000 penalty for planting willows into materials he placed next to a stream, which state regulators allege violated fill-removal laws.
Kelly Sampson, who grows hay and nursery stock on 80 acres near Canby, Ore., said he put hay bales onto rocks next to the creek to retain moisture for the young trees.
“My goal here is to do good things for fish,” he said.
Ordinarily, landowners don’t need a fill-removal permit from the Oregon Department of State Lands if they’re adding or removing less than 50 cubic yards of material in a waterway or wetland.
In this case, however, Milk Creek — a tributary of the Molalla River — is designated as “essential salmonid habitat,” so any amount of disturbance requires a permit, according to the agency.
“Planting vegetation into a bank doesn’t require a permit, but when you add substrate, you may need a permit,” said Lori Warner-Dickason, field operations manager for DSL.
A complaint received by DSL indicates that Sampson placed hay bales as well as “horse manure and barn cleanout” below the creek’s ordinary high water market, she said.
“I think his intent was probably to plant some willow cuttings, but he needed a permit to do that,” said Warner-Dickason.
Sampson said he’s disappointed by the potential enforcement action because the DSL’s website states that habitat restoration projects are exempt from fill-removal laws.
The agency doesn’t make it sufficiently clear that a permit may still be required under certain circumstances, he said.
“I feel like I’m getting hustled here,” Sampson said. “I’m planting willows and it’s like you’re talking to a drug dealer here.”
Vegetation along streambanks is often seen as having a positive impact on streams, since it cools the water to the benefit of sensitive fish.
However, whenever you’re working in or near a stream, it’s worthwhile to seek guidance from the Oregon Department of Agriculture, the local soil and water conservation district, or an Oregon State University Extension agent, said John Byers, manager of ODA’s agricultural water quality program.
“Natural resource agencies want to help citizens do the right thing,” Byers said.
For example, if the ODA requires a landowner to rectify a water quality problem with vegetation, the agency will develop a planting plan, he said.
“What should you grow here, and what should that look like,” Byers said of the plans.
Using hay bales or other materials may or may not be appropriate in certain situations, but such decisions should be made with the help of a professional, he said.
“There are standard practices, standard protocols for everything,” said Byers.
The Department of State Lands receives roughly 100 complaints a year about potential fill-removal law problems, with about half of those ultimately determined to be violations, said Warner-Dickason.
“There’s very few violations that are intentional,” she said.
Most violations pertain to filling of wetlands that landowners didn’t realize were classified as such, she said. About 10 percent of the violations relate to placing rocks or other materials along a stream bank.
Most fines are waived by the agency if the landowners are willing to remove the offending materials from the wetland or waterway, Warner-Dickason said.
If they’re able to remove some but not all of the material, then DSL will typically reduce the fine, she said. Otherwise, landowners can challenge the violation before an administrative judge.
Before conducting work in wetlands or waterways, landowners should consult with DSL and study agency maps that show where “essential salmonid habitat” is located, Warner-Dickason said.
“Give us call and we can advise them,” she said. “If they proceed without confirmation from us, they do so at their own risk.”