Clearing blackberry bushes and leveling about 4 acres of land has proven costlier than expected for Oregon farmer Jack Scott.

Though Scott didn’t notice saturated soils or standing water on the parcel, state regulators accused him of destroying a wetland.

Restoring the property to their specifications would cost more than it’s worth, he said. “It would probably bankrupt me to have to do it.”

Lawmakers recently decided against moving forward with a bill that would prohibit Oregon’s Department of State Lands from requiring landowners to enhance wetland areas beyond their original condition after a fill-removal violation has occurred.

Instead of voting on House Bill 2246, the House Agriculture and Natural Resources Committee will form a work group that will recommend another bill for next year’s legislative session.

Such wetland restoration requirements are “a small subset of a significant problem” with DSL’s fill-removal enforcement, said Dave Hunnicutt, executive director of the Oregon Property Owners Association.

Landowners don’t have a reliable, clear-cut way to check whether their property contains a wetland, leading to costly fill-removal fines and remediation, he said.

“It’s not sophisticated people who develop land who deal with this issue all the time. It’s typically a problem for a farmer, a husband and wife who own a piece of property, who don’t really understand the law,” Hunnicutt said.

Inventories kept by county governments and DSL often don’t include areas that are later determined to be wetlands, even though they appear to be ordinary fields, he said.

“You end up with unsuspecting property owners doing work, only to find out subsequent to that, that what they’ve done is wrong,” he said.

Although DSL didn’t take a position on HB 2246, the agency said it already lacks authority to require wetland enhancements.

“The department does not require wetlands damaged by fill-removal violations to be restored or mitigated to create functions and values that did not exist prior to the fill-removal activity,” said Bill Ryan, its deputy director.

While removing invasive species doesn’t violate fill-removal law, it often involves excavation or adding dirt, which are violations that require remediation, he said.

The agency requires that landowners restore wetlands to their original state, which typically involves an investigation into the property’s pre-violation condition using aerial photos and other tools, Ryan said.

“Sometimes people disagree as to what that is, but there is an administrative process to address that,” he said.

The Oregon Farm Bureau has found such wetland restorations to be a “persistent problem” for farmers because the work involves planting native species on parcels that were previously neglected.

“They’ve grown into noxious weeds or vegetation we don’t want on the property, so they’re asked to replace it with something more or different than what had been there before,” said Mary Anne Cooper, the group’s vice president of public policy.

In Jack Scott’s case, he had leveled and removed the vegetation from the property in preparation for a larger hazelnut-planting operation.

In 2019, Oregon’s Department of State Lands imposed a $6,000 civil penalty on him for altering a wetland without a fill-removal permit.

Though Scott has paid the fine, he’s reluctant to comply with the agency’s restoration requirements.

Scott said he’d have to revegetate about 6 acres of property with native plants, maintain them for five years and build a pond.

The Department of State Lands said it’s inaccurate that Scott was required to create a pond, only that he’d have to replant the affected wetland area.

Native plants are expensive to buy and maintaining them is also problematic, Scott said.

“You’d have to be out there hoeing every year,” he said. “And you’d have to irrigate to get them going.”