New Oregon Legislation Protects Agricultural Construction In Wetlands

July 10, 2017
By Michael J. Gelardi

The Oregon Legislative Assembly has provided some protection to agricultural buildings and farm dwellings located in designated wetlands.  2017 House Bill 2785 allows for the repair and replacement of agricultural buildings and dwellings in farm and forest-zoned wetlands without a state permit, if the existing use of the land predates 2017.

HB 2785 is a reaction to Oregon Department of State Lands (“DSL”) enforcement policy and confusion about the overlap between county land use rules and state law governing construction in wetlands and other state waters.  Oregon land use rules generally require local governments to notify DSL when a landowner applies for land use or building permits to construct facilities in wetlands, but there is no consensus about which lands are considered wetlands under federal, state and local law.

As a result, some farm business owners have faced potential penalties from DSL for failing to obtain a wetland “removal-fill” permit before constructing farm buildings, even though the affected lands are not designated as wetlands on county maps and the local government had issued permits for the facilities.

HB 2785 does not apply to new residential and agricultural uses established after January 1, 2017, and it does not shield landowners from federal permitting under the Clean Water Act.  Federal policy regarding construction in “waters of the United States” remains uncertain, though it appears that the Trump Administration intends to repeal recent Obama Administration regulations in this area.

Michael Gelardi practices agribusiness, land use and natural resources law in Oregon and Washington.  He will give a presentation about federal and state wetland law at Half Moon Education’s Wetland Law and Compliance Seminar in Portland, OR on October 4, 2017.  Please contact Half Moon Education for more information.