Expert Sheds Light On Wetland Science At Property Rights Meeting In Tukwila

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by Ralph Nichols

What is a wetland?

This question is often paramount when a new development is planned or property owners want to build or make other changes on their land.

Especially since regulatory agencies – city, county, state, federal – are often quick to classify the property as a “wetland” during the permitting process, and then significantly restrict what can be done or deny the application outright.

Yet many generally accepted definitions used for identifying wetlands may not meet required scientific standards to make wetland determinations accurately, workshop participants were told recently at the annual Citizens’ Alliance for Property Rights (CAPR) conference in Tukwila.

“You can’t make assumptions for something that will adversely affect your property rights,” Steven F. Neugebauer, principal hydrogeologist and engineering geologist with the Duvall-based SNR Company, cautioned them.

“Government regulators don’t realize how serious this is…. Our municipalities apparently do not realize that the use of their police power, based on inaccurate or insufficient scientific study, can unjustly restrict or deny the use of private property.

“We need to step back and look closely at the science that is being used to support wetland determinations and make sure that comprehensive, true, best available science is being used.”

He stressed that property rights are protected by the United States and the State of Washington constitutions. “No law allows property owner’s rights to be ignored” – although local governments sometimes forget that their police powers are limited and that they must have just cause to enforce land-use actions.

“It’s a constant fight,” Neugebauer added, “people who believe that property owner’s rights are limited and that property owners should be forced to give their land to benefit the community vs. people who believe that these actions are tantamount to takings of private property.”

Defenders of property rights cite the Fifth and Fourteenth amendments to the U.S. Constitution and Article 1, Section 16 of the Washington State Constitution to make their case, he noted.

Last year Neugebauer submitted written testimony to the Burien City Council in support of opposition by the Burien Marine Homeowners Association to expanded residential shoreline buffers along Puget Sound.

Wetlands Defined
An easy definition of a wetland is naturally “saturated soil conditions,” Neugebauer said. “What a wetland is not” is an artificially constructed containment such as a livestock or irrigation pond, an irrigation ditch or drainage ditches.

Even so, they are frequently classified as wetlands under the state Growth Management Act and local critical areas ordinances. Furthermore, many of those involved in wetland classification are not professionally licensed to perform all of the studies necessary to make accurate wetland determinations.

“The intent of wetlands regulations” is to protect natural wetland areas that are believed to provide flood storage, pollution prevention and habitat protection, he continued.

However, “these issues often get caught up in public relations battles that don’t focus on whether these functions are actually being provided, or whether the rights of property owners, who have had a wetland identified on their property, are being protected.”

At the scientific level, Neugebauer said, soil characteristics are used many times by regulatory agencies to determine the presence of a wetland – yet, based on the federal and state codes that define what a regulatory wetland is, “soils are not included in these definitions.”

For property owners, “the first thing to protect yourself is be very familiar” with federal and state, as well as local, wetlands and critical areas laws and regulations – some of which are in conflict with each other.

While there are legal avenues to deal with incorrect or improper wetland determinations by regulatory agencies, “the best way to insure that the most thorough and appropriate science is used, and that the persons who conduct these studies are qualified to conduct the level of study necessary, is to get the laws changed.”

Property Rights
Although “protection of critical areas is by and large a good thing,” said attorney Justin Park of Romero Park & Wiggins in Bellevue, it is important to remember that “the property owner is the best steward of his land.”

Because wetlands enforcement should be “fair and balanced,” Park said property owners “must be prepared to educate local decisions makers about laws and regulations” that affect their land.

These include the Growth Management Act and the Shoreline Management Act, both of which are generally enforced locally.

Reminding workshop participants that negotiation is almost always “better than litigation,” Park urged them to “stay focused on the situation actually going on” by working within the local process and getting “the right science” – which is “the most persuasive information.”

At every level of a permitting or appeals process, “you can and should argue the Constitution,” he added.

On another front, the use of eminent domain by government “has not been too controversial when the property condemned is taken for an actual ‘public use,’” said Gig Harbor attorney Paul J. Hirsch.

“The controversy in condemnation law comes mainly from a sleight of hand: ‘public use’ has become public purpose,” Hirsch noted.

“This has led to the government taking private property from one person and giving it to another who will employ the property in a way to generate more tax revenue, employment, etc.”

Historical Perspective
“We live in an America today where the state can take your property and give it to someone else,” said keynote speaker Dr. Matthew Manweller.

Yet “property rights used to be the most protected right of all civil rights in the United States Constitution … the Founding Fathers saw property rights as the most basic civil right on which others were founded.”

Property rights, Manweller continued, give citizens independence from the state, lead to equality, foster self-reliance, and foster prosperity.

“Where there are property rights there is prosperity. Where there are not property rights, there is poverty. Property rights create democracy – if you can protect them.”

Manweller is professor of constitutional law and economics at Central Washington University, which offers four-year degree programs at Highline Community College.

SeaTac City Councilman Rick Forschler is also president of the King County chapter of CAPR.

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6 Responses to “Expert Sheds Light On Wetland Science At Property Rights Meeting In Tukwila”
  1. fish says:

    it’s always nice to have more CAPR press releases published in their entirety on the B-town Blog. how about some posts by scientists who aren’t on the payroll of wealthy shoreline property owners? how about columnists who aren’t right-wing idealogues?

    • fred kelly grant says:

      First, “fish” is dead wrong in categorizing Ralph Nichols as an “idealogue” unless it is in the realm of being a conscientious American. You may consider him “right wing” because his stories are objective, and heaven knows lets not ever offend the righteous with the truth as it occurs. I have known Ralph and followed his stories for thirty years and I can count an even number of “right wingers” and “leftists” who were upset with his reports because he simply reported objectively.

      As for scientists on the payroll of wealthy owners, I can only say that people in glass houses should not throw rocks—-it seems to me that I remember a scientist who made a report that caused water to be shut off to the farms in the Klamath Basin only to later admit that his report was flawed and incorrect (a scientist at Utah State University who opined incorrectly on the sucker fish to which farming was sacrificed).

      Incorrect, flawed, and biased science from the left caused Congress to pass the Data Quality Act.

      I found this report very informative and timely siince the “wetlands” issue is sweeping the nation as more and more efforts are made to control land and water.

  2. Ed K. says:

    I’m not on the payroll of any wealthy landowners. I’m not a right-wing idealogue either. Twenty years ago, I resigned from my international marketing management job in London to return to my first loves … geology and environmental science. I didn’t do it for the pay, that’s for sure.

    But over the years, I’ve realized that most people are in it for the pay … that goes for the environmental industry too. The idea that one side has purer motivations than the other is naive. Most environmentalists, regulators, and consultants are just as self-interested and money-chasing as homeowners, if not more so. I think that is largely to blame for the modern syndrome of seeing environmental problems and threats everywhere. It provides a continuous stream of justifications for big environmental bureaucracies to “help” us.

    The kind of regulatory programs that protect us from the environmental abuses of big industry and government won’t work, in my opinion, against homeowners. The “average Joe” homeowner is not the enemy. Generally, “Joe homeowner” is much more knowledgeable about his property and the things that live on it than any regulator. It is a profound mystery to me why anyone would want to target homeowners as an environmental threat … instead of trying to recruit and incentivize homeowners into being an even greater source for good than they already are.

    I agree with every word in the above blogpost. It was a good read and full of lots of common sense.

  3. Feraldog says:

    “Especially since regulatory agencies – city, county, state, federal – are often quick to classify the property as a “wetland” during the permitting process, and then significantly restrict what can be done or deny the application outright.”
    But then,
    all the sudden the term wetland doesn`t mean jack when it`s being applied to anything to do with any type of construction by any government, be it city, state, county, etc unless
    of course it`s a property owner wanting to do something with their own land.
    And property rights don`t mean jack when the government decides they want YOUR land.

  4. Ralph Nichols says:

    Too often there are too many inaccuracies, distortions and outright fabrications posted in blogs of all stripes. And what “fish” posted begs 2 responses:

    1. Steve Neugebauer – a highly qualified and very reputable scientist – was not nor is not “on the payroll of” the Burien Marine Homeowners Association. Nor was he ever retained as a consultant for them, as far as I know.

    (So what if he had been? Are only those whose positions align with Futurewise allowed to have public input on environmental issues? Are claims by Futurewise and associates really factual beyond reasonablle doubt? And why is class envy even raised as an issue?)

    In fact, my report above actually overstated the matter. A paper on buffers and setbacks in the Puget Sound area – prepared independently by Mr. Neugebauer – was submitted by a Highline-area resident to the Burien City Council for consideration during its process of updating the SMP.

    2. At no time – before or after – did CAPR issue a news release on this event. For the record, I attended all 6 hours of the workshops as a reporter, as well as the evening banquet, and subsequently wrote and posted this story.

    Finally, a personal note: if believing in, supporting and defending the U.S. and Washington consitutions makes me a right-wing idealogue, then I wear that badge proudly.

    • Coverofnight says:

      Ralph, you got an extra badge that I can wear, too? Great article and good responses, too (except for fish…..who’s all wet!).

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