Experts fault commissioner’s wetland study

Island County Commissioner Kelly Emerson and her husband lost their lawsuit against the county and no longer want to build a sunroom on their Camano Island home, but the controversy surrounding the project built without a permit lives on.

Scientists from the county planning department, the Department of Ecology and Oregon State University identified what they described as numerous and significant flaws in the rambling 130-page wetland report that the Emersons submitted in July, more than nine months after they were ordered to do so by the code enforcement officer.

“This report contained much extra information, and did not provide relevant information to determine the presence or absence of wetlands on the site. Ecology identified these problems at the county’s request,” Susan Meyer, a wetland specialist with the Department of Ecology, said.

The Emersons hired hydrogeologist Steven Neugebauer of the Duvall-based SNR Company to do the wetland study. He’s known in the region for giving presentations about wetland science, usually for property-rights groups. This isn’t his first brush with the Department of Ecology, which had previously been asked to review SNR Company wetland reports by four different jurisductions. He said the department filed a complaint against him with the geologist licensing board and he’s filed complaints against the department.

Neugebauer stands by his report on Emerson’s property and claims that under-educated employees at the Department of Ecology misunderstand wetland science and have inappropriately relied on a manual that should only be a guide.

“We are following science as it is supposed to be done. They don’t do the science correctly,” he said, adding that he’s asked a couple of independent hydrogeologists to review his report. He also plans to file another complaint against the department for practicing geology without a license.

But according to the Department of Ecology and the Island County planning department, Neugebauer is misleading clients when he claims a geologist license is required to perform a wetland delineation. He cites several RCWs and WACs that give no clear answers, but the Geologist Licensing Board’s website states that a license is not required for the “collection of groundwater level data for the sole purpose of wetland delineation.”

Moreover, Christine Anthony, spokesperson for the Department of Licensing, said there’s nothing in state law that regulates who can create a wetland report or stream delineation. In fact, she said the state’s Model Critical Areas Ordinance says that it’s up to each local jurisdiction to decide the qualifications for a wetland professional.

As a result of the controversy, it’s still an unanswered question as to whether there’s a stream or regulated critical area on the Emersons’ property. Such a feature could affect the building permit for the sunroom — if they still wanted it — as well as other structures that the Emersons may have built too close to the alleged stream. Under the county’s critical areas ordinance, buffers are required between wetland and development.

In addition, still to be resolved is the $37,000 in fines that the Emersons were assessed by the planning department for violations of the building code, planning code and critical areas code. Commissioner Emerson said she and her husband haven’t had time to meet with planning officials to negotiate the fine.

The Emersons filed a lawsuit last fall against the county, a couple of county employees and a former commissioner, claiming that officials trespassed on their property when posting a stop-work order, among other allegations. A judge threw out the lawsuit, finding the allegations without merit.

Island County Planning Director Bob Pederson sent the Emersons a letter last week outlining the deficiencies in the wetland report and offering them a couple of possible courses of actions if they want to proceed. They can either revise and resubmit the report after fixing the deficiencies, or obtain an independent peer review.

Pederson wrote that normally the planning department would be willing to share in the cost of a third-party peer review, but in the Emersons’ case they would first have to pay their fines.

“Frankly, I cannot justify further expenditures of public funds on additional peer review unless the outstanding civil penalty of $37,000 is paid,” Pederson wrote.

The planning director wrote that the Emersons could also ask for a final decision on the building permit application, but warned it would be denied because of the unresolved wetland and stream issues.

Monday, Commissioner Emerson said she wasn’t surprised when she received the letter from Pederson and believes that certain power brokers in county government are trying to keep the controversy going.

“It’s obvious there are some people at the county who want it to go on,” she said. “...It’s very unlikely that we will be able to pursue our happiness on Camano.”

Emerson said that the structure her husband had started building without a permit last year has rotted since a county official slapped a stop-work order on it. She said he would have to tear it down and start over if they ever got a permit.

“We’re pretty sick of the idea anyway,” she said.

Emerson said she and her husband haven’t decided what their next step will be in regards to the wetland report. She previously said their wetland study cost $12,000.

Neugebauer’s wetland study was thoroughly criticized by county and state specialists.

Justin Craven, the county’s critical areas planner, describes the document as “the most convoluted report that has been received by this department.” In addition, he takes issue with Neugebauer’s claim that the water feature on the Emersons’ land isn’t a stream because it contains stormwater and naturally ephemeral‚ — or temporary — drainage, and since the historic channel has been moved some time in the past.

“Many streams in Island County have historically been diverted, ponded, placed in culverts, convey some amount of stormwater, or have been otherwise altered; these alterations do not cause a feature to no longer be a stream,” he wrote.

In addition, Craven wrote that Neugebauer was incorrect in asserting that 10 meters of ponded water is necessary for an area to have wetland hydrology. The regional supplement to the Army Corps’ manual, he wrote, states that “for wetland delineation purposes, a soil layer is saturated if virtually all pores between soil particles are filled with water.”

The Department of Ecology’s comment letter went into greater detail about the alleged errors in Neugebauer’s report, claiming that the inconsistencies with the Corps of Engineers Wetlands Delineation Manual and the regional supplement, called the WMVC, are “too numerous to discuss in detail,” but they provided a few examples.

In addition, Paul Adamus, a wildlife biologist and professor at Oregon State University, weighed in the report. He was hired by the former, Republican-dominated Board of Island County Commissioners to do extensive wetland research as part of the development of the county’s wetlands ordinance.

Adamus reviewed Neugebauer’s report and agreed with the Department of Ecology’s comment letter. He wrote that he “does not differ with them on any of the inadequacies they note regarding the SNR report.”

Neugebauer countered that Adamus is a wildlife biologist, not a licensed geologist. Also, the two men have long-standing disagreements over issues of wetland science.


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