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