BY MARCY STAMPER
Landowners who allow river-habitat projects to be built on their property cannot be held liable for property damage downstream, as long as the project meets strict engineering standards, under a state law that takes effect at the end of July.
But the stricter standards mean that some projects may be delayed for redesign or not built at all, according to local organizations involved in salmon recovery.
To be exempt from liability, a project must meet the following criteria:
• be designed by licensed engineers or geologists experienced in river work.
• be designed to withstand a 100-year flood.
• not be within one-quarter mile of a downstream boat launch.
• be designed so that boaters have time to avoid structures placed in the river.
• have identifying numbers on all root wads or logs more than 10 feet long and 1 foot in diameter, so they can be traced in the event of failure.
Because of the July 28 implementation date, even projects scheduled for construction this year – which have already undergone years of design and engineering – will be covered by the law, according to Derek Van Marter, executive director of the Upper Columbia Salmon Recovery Board (UCSRB).
The UCSRB works with a dozen partners, including Methow Salmon Recovery Foundation (MSRF), the Yakama Nation Fisheries, the U.S. Bureau of Reclamation, and Trout Unlimited in the Methow subbasin. All partners will inform landowners about the new legislation, which could mean that some projects may have to be redesigned. In other cases, landowners may elect to waive some provisions of the law, said Van Marter.
The law states that allowing property along a river to be used for one of these projects is voluntary.
The Salmon Recovery Board’s partners have their own policies about project design and how they will handle the new requirements, according to Van Marter.
The protection afforded by the law is important because some property owners have declined to participate due to liability concerns over the past two decades, according to Chris Johnson, president of MSRF. But stricter design requirements may make some projects inappropriate for a particular site, said Johnson. MSRF has decided to follow the letter of the law and will not build projects where they do not believe the strict engineering requirements are appropriate, he said.
For example, the requirement that wood structures withstand a 100-year flood is not always appropriate from an engineering standpoint, since the river itself could move to a completely new channel, while the wood remains in place, said Johnson. In some instances, such a solid structure could contribute to moving the river to a new location unacceptable to a landowner, he said.
The Yakama Nation Fisheries have always designed projects to meet the 100-year-flood standard, so the requirements of the liability law will not affect this aspect of their restoration work, said Van Marter.
Supporters sought more flexibility
Supporters of legislation addressing liability concerns had hoped the law would reference technical guidelines, rather than include five specific provisions that must be met by all projects, said Van Marter. Nevertheless, the law addresses an important issue in habitat restoration, he said.
“We fundamentally were trying to address concerns – perceived or real – by landowners, who are key to the success of these projects. So it is important to have a law on the books,” Van Marter said.
In almost 400 projects over 15 years, liability was not an issue until the past several years, when landowners started raising concerns, said Van Marter. Nine projects were delayed to address these concerns; three were ultimately built but the others were dropped, he said.
MSRF’s policy about building structures to withstand a 100-year flood means that two engineered logjams will not be built in the large floodplain project in the Methow River on the Old Twisp Highway, but the other 22 wood structures will still be constructed, said Johnson. The project is on Washington Department of Fish and Wildlife (WDFW) and private land.
The WDFW habitat project, which MSRF started two weeks ago, is expected to be complete in early October. The project is intended to reconnect the river to its floodplain and increase in-stream habitat for endangered fish. The Old Twisp Highway will be open again to traffic in mid-July, after installation of a culvert is complete, said Johnson.
Van Marter said they will track the effectiveness of the law and its impact on their ability to do restoration work.