Sunnyside Wetland

One of my projects made the front page of the Yakima newspaper. Since the paper tends to paywall these things in short order, I thought the blog would make a handy archive.

The picture here is from the project site. The retaining wall in the picture was placed by the county in order to keep the road apron from impacting what was presumed from USFWS-NWI reconnaisance mapping to be a jurisdiction wetland. That mapping plus the observed standing water and the wetland vegetation seemed to the county to be proof positive that clearing the land was a violation of the county critical areas code. It wasn't.

Published on Monday, September 10, 2007

County learns lessons from fight with farmer
By PAT MUIR
YAKIMA HERALD-REPUBLIC

SUNNYSIDE -- Don Young didn't think his neighbor's irrigation water leaking into his property should qualify it as wetland, and after a yearlong fight, Yakima County agreed with him.

The saga, which Young documented in a meticulous inch-thick file he says makes him feel like an attorney, cost him about $6,000 by his count and kept him from using the land until last month. It also forced county leaders to rethink the way they apply the county's Critical Areas Ordinance. The ordinance, which has been under review for five years and is nearly finished, still will be enforced as mandated by state law, county Public Services Director Vern Redifer said.

"But where you can construe the law in the favor of property owners, we'll construe it that way," he said.

That's good news to Young, a self-described "stubborn old farmer" who believes he might not have prevailed in his dispute if he hadn't had the money for a consultant to make his case.

"This is a story that needs to be told, not for my benefit but for the taxpayers and the public," the 73-year-old retired rancher said.

The whole thing began when a county road crew spotted Young pulling up vegetation on the edge of his property. The county issued a cease-and-desist order in May 2006, about seven months after Young bought the 4-acre property south of Sunnyside. To his thinking, the Russian olive trees and other vegetation he removed were just trash like the piles of tires and garbage that were also on the property.

Thinking he was actually improving the land, Young took umbrage to the county's order, which included the possibility of $1,000-a-day fines.

"Nobody ever said anything about it being a wetland," he said.

He also didn't like the way county staff treated him when he disputed the matter. It was clear enough to Young that the land in question wasn't a wetland because the only source of water was the neighbor's irrigation runoff, or what his hired consultant labeled "water trespass." But he couldn't get the county to see it that way.

"The heading of their letter is 'public services,'" Young said. "I told them they need to change that, because there is no way in this world that they are serving the public."

The county's opinion on the matter didn't change until Young received a report he'd commissioned on the matter by wetlands delineation expert Phil Small of Spokane. Small's report, written after a visit to the property during which he drilled holes to measure groundwater levels, found there was no source of water other than the irrigation runoff. The county considered it a persuasive argument and in a July 31 letter lifted the cease-and-
desist order.

"What I want to know," Young said, "is why didn't the county have to hire him to prove it was a wetland instead of me having to hire him to prove it's not."

In the county staff's defense, the property did have signs of being a wetland, such as reeds, bulrushes and the Russian olive trees, Redifer said. The staff was simply following its procedures as laid out in its own policy and didn't err in that regard, he said.

County officials tried to work with Young along the way, planning manager Steve Erickson said. But the county's suggestion that Young "wait and see" if his property was a wetland based on whether groundwater returned even without irrigation runoff didn't fit into Young's schedule, Erickson said. That meant Young had to hire his consultant to force the issue, but that was up to him, Erickson said.

Where things might have been done differently, and will be in the future, is in the way county staff deals with people in such disputes, Redifer said.

Comparing it to baseball, in which "ties go to the runner," he said if there are questions about whether to act on a possible wetland scenario like Young's, the landowner will be "the runner." That is in line with the Yakima County Commissioners philosophy of a more user-friendly Critical Areas Ordinance application, which they have espoused during deliberations on the ordinance.

Staff also might call people in the future or knock on their doors, rather than sending formal letters specifying possible fines.

"I think (the letter) made him feel like a big lawbreaker, and that certainly wasn't the intent," Redifer said.

"That's another lesson learned -- how we go about engaging someone with a potential violation," Erickson added.

While he would be happy to see such changes, Young still isn't sure the county has done right by him. He's contemplating filing a claim to recoup the money he spent fighting the initial ruling. In the meantime, though, he's working the land for the first time in about a year.

He's put manure down and hopes to have the whole thing seeded for pasture by the end of September.

"I lost the production of that land for a year already," he said. "Over a year."

* Pat Muir can be reached at 577-7693 or pmuir@yakimaherald.com.