Flawed soil designation bill impacts rural property owners

By Dave Hunnicutt
Oregonians In Action

If you own rural property, you need to monitor House Bill 2761, a bill that could make it much more difficult to change a flawed soils designation on farm or forest property in Oregon.  In Oregon, farm and forest land zoning is based on soil types determined by the Natural Resources Conservation Service (NRCS), a division of the United States Department of Agriculture.  The NRCS divides soils into eight classifications, with Class I soils being the best for agricultural and forest uses, and Class VIII being incapable of supporting agricultural or forest uses.

As a result of an extremely broad definition of “agricultural land” and “forest land” in Oregon administrative rules (specifically, LCDC’s Goals 3 and 4), nearly 97% of all privately owned rural land in Oregon is zoned for farm and forest uses.  The end result is that thousands of acres of private property in Oregon is miszoned as farmland or forestland based solely on NRCS soil classifications, regardless of whether the property has ever been used for commercial agriculture or forest uses.  These miszonings have devastating impacts on private property owners, who are stuck with property that cannot be used for any productive use as a result of NRCS soils data and LCDC zoning.

The massive miszoning problem is even more troubling when you consider that, in most cases, NRCS determines soil types for properties based upon aerial photographs.  The NRCS does not have the staff to do an on the ground analysis of soil types for each property in Oregon, and therefore uses aerial photographs and topographic data to make a best guess as to the soil type on the property.  Because of this inexact method, the soil types listed by NRCS for any particular piece of property in Oregon may be wildly inaccurate.  For the property owner, an error in the soil types could have a huge impact on the potential uses of the property.

Under current law, a property owner wishing to challenge a NRCS soils map can do so by hiring a soils expert to conduct a soils analysis.  Based on this analysis, a property owner may demonstrate that the NRCS soils data is inaccurate.  This information can then be used to change the zoning of the property, or to allow a different use of the property, rather than having the property stuck in a farm or forest zone with no prospect of being able to use the property for farm and forest uses.

HB 2761, as currently written, allows (but does not require) a property owner who wishes to challenge a NRCS soils map to request that the Oregon Department of Land Conservation and Development (DLCD) arrange for a certified professional soil classifier to work with the property owner to conduct an on the ground analysis of the soils on the property.  This bill made a positive change to the law, and gave the property owner the choice to work directly with DLCD in hiring a soils analyst.  Because of this, there was no opposition to the bill, and the bill passed the House with a unanimous vote.

Unfortunately, when HB 2761 was sent to the Oregon Senate, amendments were proposed to the bill that would allow DLCD to require a property owner who dared to challenge the NRCS soils data for his property to use the DLCD process established in House Bill 2761.  In other words, any property owner who wished to challenge the NRCS mapping would not be allowed to hire his own consultant, but would instead be forced to go to DLCD and use the system established by the bill.

HB 2761 is a fine bill without the amendments.  Many property owners with miszoned land would be happy to work directly with DLCD to have their soils analyzed, knowing that once the analysis is finished, DLCD will almost certainly accept the results.  However, a property owner should not be forced to use DLCD’s method, and should have the option of using another soils expert who is not affiliated with DLCD.

Fortunately, the amendments to HB 2761 were rejected in the Senate Environment Committee, and the bill was referred to the Joint Ways and Means Committee for a fiscal analysis.  However, amendments to HB 2761 may be introduced in the Ways and Means Committee, so the amendments may come back.  Without the amendments, HB 2761 is a fine bill.  With the amendments, HB 2761 could become a real disaster for those property owners who believe that the NRCS soils maps for their property are wrong.

This is a bill to keep an eye on.

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