Ditch legislation

Farmer John Scharf explains the drainage of tile lines from his fields near Amity, Ore., into a ditch. A compromise bill passed by the Legislature would allow farmers to clean out ditches more easily, but it faces a potential veto.

Cleaning out seven miles of ditches isn’t the most enjoyable task on John Scharf’s farm, but it’s not one that can be neglected without consequence.

Unless silt is removed from the ditches on a rolling basis, they’d eventually fill up with dirt. Even before then, the tile lines that drain his fields near Amity, Ore., would clog and water would “blow out” holes in the ground that are hazardous for machinery.

“We don’t do it any more than we have to because it’s expensive, but it’s part of farming,” Sharf said. “We do it annually any year we can afford it, because if you put it off, it gets worse.”

Scharf recently spoke at a legislative work group, which is looking at introducing a bill to streamline regulations for ditch cleaning in 2019.

The problem is that under Oregon law, Scharf and other growers are limited to removing 50 cubic yards of material from ditches in areas that have been designated wetlands.

In effect, that cap prevents Scharf from cleaning out all the silt that’s necessary, meaning the backlog of accumulated dirt keeps mounting.

“I don’t want to jeopardize my tile lines,” he said. “If the outlet is plugged, you’ve got a problem.”

While the Department of State Lands, which regulates wetlands, ostensibly allows for the maintenance of agricultural drainage ditches, many are considered “channelized streams” that fall under the agency’s jurisdiction, said Mary Anne Cooper, public policy counsel for the Oregon Farm Bureau.

If those channelized streams are judged to contain “essential salmonid habitat,” even removing 50 cubic yards a year requires a permit from DSL, she said.

In recent years, the Farm Bureau has noticed an uptick of enforcement activities by DSL over ditch maintenance — in one case, pulling blackberries was considered removing vegetation from a waterway, Cooper said.

The increase seems to mostly stem from complaints by neighbors or other state agencies, she said.

Farmers who want to remove more than 50 cubic yards while avoiding regulatory problems can apply for a “general permit” to work in a waterway from DSL, Cooper said. Even then, they’re currently limited to 100 cubic yards of material, which often “does not scratch the surface” of necessary maintenance.

Removing more than 100 cubic yards would require an “individual permit” from the agency, which involves notifying the U.S. Army Corps of Engineers, the Oregon Department of Fish and Wildlife and clearing steep regulatory hurdles, she said.

“An individual permit is an incredibly complicated process to go through,” Cooper said.

Scharf is conducting a “pilot project” to demonstrate to DSL that more than 100 cubic yards can safely be removed from ditches in the late summer or early fall, but the Farm Bureau hopes to obtain broader relief during next year’s legislative session.

Eric Metz, planning and policy manager for DSL, said the agency is mandated by law to protect the waters of the state, so it tries to avoid, minimize or mitigate work in waterways.

“When we roll it out by the letter, it’s very awkward” when applying permit requirements for ditch cleaning, he said during an Aug. 28 meeting of the legislative work group in Salem, Ore.

The agency feels it’s doing a good job following the letter of the law but it’s not aiming to interfere with farm operations, Metz said. “But we also know there are fish in those ditches, so there’s the dilemma.”

During the meeting, Cooper of the Farm Bureau pointed out that ditch maintenance never occurs in wet conditions and there are environmental benefits to the work.

Growers have been keeping ditches functional for about 100 years, preventing them from filling up, she said. “That habitat won’t exist if we don’t resolve these issues.”

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