Wetland dispute prompts viral video

(Editor’s Note — This story has been updated to note corrections; the second wetlands report done for Charles Dalton was provided at no charge by SNR. Ed Kilduff of Lopez Island has worked for SNR as an independent contractor.)

Charles Dalton plants blueberries, hazelnuts, apples and pears because perennials are easier to maintain.

The plants have not been a problem – permits, the county and wetlands are what Dalton says have been making his dream farm a nightmare.

Dalton shares a four-acre property with another islander on Orcas Island, and said his troubles started because he made a mistake when he built a barn and a shed without a permit. Since that time, he has faced citizen complaints and county enforcement action over possible construction in wetlands on the property.

Dalton, owner of the Kitchen restaurant in Eastsound, recently appeared in a film produced by the Citizen Action Network, entitled “San Juan County regulations are not friendly towards a small organic farmer,” in which he details the last two years and his frustrations with the Friends of the San Juans organization, San Juan County and the state Department of Ecology.

As of Monday, the video had been viewed by 2,560 people on YouTube. One comment on the Youtube site, written by a “Mr. Avocats,” claims Dalton’s buildings are not getting permitted because “his neighbor (a New York financier or some such on a multimillion dollar waterfront parcel) has ‘friends’ in high places, and so the war goes on.” He goes on to accuse Friends of the San Juans of “protecting the 1 percent, not the 99 percent,” a reference to the Occupy movement.

Dalton said he was reported to the county by Friends about two years ago for not having proper permits for his operation.

But the issue, according to Friends, is not about farming as the video suggests, but about following the rules and getting construction permits before developing.

Friends last week released a statement saying that its executive director, Stephanie Buffum, filed a complaint with the county after receiving calls concerned about the construction of a freshwater well in a stream, with muddy water entering into the East Sound bay, and that three structures – a house, barn and shed – were built near a wetland or a stream. The single-family residence built by the property’s other owner was properly permitted.

A stream, which continues onto other properties, may have been tampered with on Dalton’s property, according to Friends.

“Activities that happen upstream, including diverting water or changing sediment patterns, can cause harmful impacts to neighbors and critters downstream,” the Friends statement says. “The Wild Fish Conservancy found fish downstream on the adjacent property.”

Friends made numerous complaints, according to Dalton, some that he says aren’t true.

When he did maintenance work on the well on his property, he said Buffum complained to the county that he was drilling a new one.

“They are clearly against me and have attacked me through county channels,” Dalton said.

Wetlands at issue

The county issued a stop-work order in 2010, and Dalton said that he immediately went into compliance to permit the buildings. He didn’t know then that anyone would consider the ditches and pond on his property to be part of a wetland. Two years later, he’s still not sure exactly what the county defines as a wetland.

As defined by county code, wetlands are an area not necessarily wet year-round, but wet enough to allow a prevalence of vegetation typically adapted to life in saturated soil conditions. This does not include man-made ponds.

County Prosecuting Attorney Randy Gaylord said islanders can contact the county to view a “wetland inventory map” and if a wetland is shown on your property, and you disagree, it’s up to you to disprove it.

Dalton said in December 2010 he paid $3,600 for his first wetland report, which was done by local consultants. They found that a building had been constructed within both a wetland buffer and a stream zone. The county accepted that report and its findings.

A mitigation plan required Dalton to plant specific buffer shrubbery and build deer fences, which he said he did. But when the county wanted him to remove the building — his shed — he said he dragged his feet.

“The shed had a function,” he said.

So he got a lawyer, and then a second wetlands report in 2011. The second report was done by Duvall-based SNR, which said there is no wetland on Dalton’s property.

“Not wetlands, artificial surficial drainage, not natural or wetland-like about it,” Ed Kilduff, a hydrogeologist and engineering geologist, who has done work for SNR as an independent consulting geologist, said in the Citizen Action Network video.

The second, more extensive wetlands report, which Dalton said would have cost $20,000, was done at no charge.

Because the two reports were contradictory, the county asked the state Department of Ecology to evaluate both reports. DOE’s experts did not agree with the findings of the second report.

The county did not send the first report to DOE. Gaylord said he’s unsure why DOE was not asked to be involved initially.

“Now I’m in limbo,” said Dalton, who is applying for after-the-fact permits. “But I feel like I am part of a bigger thing.”

Dalton said he’s concerned about the pending update of the county’s critical areas ordinance because potential wetland buffer zones may require property owners to build not just 25- 50 feet from the zone, but “more like a football field length.”

The county’s critical areas are environmentally sensitive natural resources that have been designated for protection and management in accordance with the requirements of the state Growth Management Act. The county is currently in the process of updating the CAO.

Dalton said the whole process has been a learning experience to not jump in blind into building or creating a garden.

“I’m very hopeful things will work out,” he said.

Gaylord said at this point Dalton faces enforcement action for having an unpermitted agricultural building, and a building near a wetland that must be moved or demolished. If Dalton does not get a permit and remove the second building he will be taken to court, but Gaylord said there’s no reason why he wouldn’t be approved for an after-the-fact permit for the barn.

Dalton has yet to apply for a permit, he said.

If Dalton would have found out in advance that wetlands were on his property, Gaylord said, he could have built the shed somewhere else and the problem would have been avoided.

— Editor’s note: Filed in July 2011 by the county, a lawsuit is pending in Superior Court against Charles Dalton, and fellow property owner, Stephanie Iverson, in connection with the dispute over land-use, permits and wetlands on their Orcas Island property.

To watch the YouTube video, visit http://www.youtube.com/watch?v=iYxrLNaffEg&list=PLF2AD66FE7BDE8D4E.