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Revised removal-fill permit protects land rights

by: Spotlight file photo From the Legislature-Rep. Brad Witt (D—Clatskanie) represents House           district 31 and can be reached at www.leg.state.or.us/witt/ or at         503-986-1431

This week I want to discuss a bill that, while having achieved overwhelming support in the Legislature, has nonetheless drawn criticism from various segments of the public. The bill I am referring to is HB 2700-B, otherwise known as the 'Linear Projects' Bill. HB 2700-B currently awaits the Governor's signature, having passed both the House and Senate with more than two-to-one margins.

Having read the comments of nearly three dozen constituents who have expressed opposition to the bill, I am convinced that a considerable amount of misinformation, and thus misunderstanding, surround the bill. Let's take a look at what the bill does and doesn't do.

HB 2700-B lays out the process by which permits are obtained from the Department of State Lands to 'remove or fill' earth when constructing a linear project. Typical linear projects include streets, roads and highways; railroad and light rail lines; gas, water and sewer pipelines; and communications and transmission lines.

In order to apply for a permit to build one of these projects, present state law first requires that 'an interest' be obtained in the land upon which the project will be built. Such interest is usually obtained through a purchase of the land, negotiated right-of-way or eminent domain.

This all sounds logical until you realize that the state of Oregon requires linear projects developers to obtain 'an interest' in the land before they can apply for a project permit. Not surprisingly, linear projects usually cross multiple landholdings. As such, any or all of the landowners can and often do refuse to sell or negotiate away their private property interests to the developers. As a result, developers sometimes resort to a condemnation of the land through an eminent domain proceeding against the landowners. Acquiring this interest can require a considerable amount of money.

And here's the biggest rub under current law. The 'interest' purchases and land condemnation must occur before project permits are either applied for or granted. In essence, what we have is a state law that compels linear project developers to buy or condemn other peoples' private property before the projects are even authorized.

In those instances where the Department of State Lands declines to permit a linear project, or in which the project alignment is changed to avoid or minimize effects to water resources, the land that was acquired and the effort that went into the acquisition is largely wasted. Imagine, as a landowner, what it would be like to first lose your property to eminent domain and then for the project to never be permitted. This is an absolute betrayal of private property rights and the chief reason why I support HB 2700-B.

HB 2700-B overcomes these problems by returning Oregon's removal-fill permitting to the process that was in place prior to 2001. Under this approach, whenever a removal-fill permit application is filed by a linear project, the DSL notifies all landowners whose property will be traversed by the linear project as well as all adjacent property owners. DSL then convenes meetings with the developers and the property owners to determine the best routing of the linear project, taking into consideration the effects of the proposed project on waters of the state (streams, lakes and wetlands).

Once the practicable project route with the least effect to waters of the state is identified, DSL completes the last step under HB 2007-B by issuing a removal-fill permit for the project. That permit will include a condition requiring the applicant to obtain an 'interest' in the land or permission from the property owners prior to engaging in removal or fill activities in waters of the state. A DSL permit does not confer right of entry or trespass to the applicant. The applicant must obtain that right from the landowner. In short, HB 2700-B does not impinge upon property owners' rights and in fact protects them.

Several community projects are on tap to benefit from the passage of HB 2700-B. Among them are water projects in Salem, Beaverton, Hillsboro, Forest Grove, Lake Oswego and Tigard. This legislation will also be important for coastal communities that are planning Tsunami evacuation highways and to numerous municipalities that are contemplating flood control projects. All in all, this is a good piece of legislation and an improvement to our state's public policy.