A Permit Runs Through It
Often, the biggest impediments to conservation are the conservation agencies.
NOTE: this article was originally published to PERC.org on December 6, 2018. It was written by Martin Doyle.
Oregon ranchers who set out to restore streams in Silvies Valley find regulatory purgatory
Colby Marshall has given up on calling this area “eastern Oregon.” Most people hear that phrase and conjure mental images of Bend, a rapidly growing community of nearly 100,000 people in the central part of the state where retirees and millennials are moving in droves. He instead refers to this region as “Frontier Oregon,” which does a much better job of capturing its landscape, population, and realities of land management.
Marshall is the livestock manager of the 140,000-acre Silvies Valley Ranch, which sits in the high desert between John Day and Burns, Oregon—closer to Idaho than Bend. With only 10 inches of rain per year, Marshall must grapple with perpetual droughts, recurrent forest fires, and the vagaries of cattle prices. With a ranch of this scale, he has to think of ways to do things differently than they may have been done before. He has to constantly be on the lookout for innovations.
Marshall and the ranch owners, Scott and Sandy Campbell, have set their goal on proving that ranches in Frontier Oregon can be sustainable and resilient, particularly in economic terms. And they have done so by making the ranch a hub of environmental innovation. This approach is, in fact, a key advantage of a ranch of this size, because large ranches—those that are tens of thousands of acres—under single ownership allow for experimenting: trying things in one area of the ranch to see what works, and then replicating throughout the ranch what does and abandoning what doesn’t.
The Campbells and Marshall have tried all types of experiments on Silvies Valley Ranch. They have gradually shifted toward smaller cows of around 1,150 pounds, more like what was initially raised here decades ago. They’re also trying out goats—lots and lots of goats—with their herd now reaching more than 4,500. The goats are well-adapted to the Oregon high desert, having evolved in the same type of climate in Central Asia; they can eat what cattle cannot, and they are easier on streams and soil. There is also a large and rapidly growing global demand for high-quality chevon—meat from adult goats—making this new venture quite profitable.
The experiment came with a big surprise: The native grasses that once grew in these valley bottoms came right back once moisture returned to the soils. The raised water table helped drown the sagebrush, which was quickly replaced with thick grassy meadow.
But their biggest and most successful experiment has been with beavers, or at least the effect of beavers. Scott Campbell—a native of Frontier Oregon and a voracious reader of its history—found reference to Silvies Valley in the journals of Peter Ogden, one of the West’s most prolific trappers and traders. Ogden passed through the valley in the early 19th century at least three times and estimated that the catchment had somewhere near 200,000 beavers. When beavers populated the West, their ubiquitous dams backed up water, and their ponds gradually filled with sediment. Over time, the accumulated silt became meadows, and water slowly passed through the silty sediment on its way through the valley. The dams, meadows, and ponds kept the water table high and, when combined with the slow-moving water meandering through the meadows, worked to sustain springs late into the summer and fall. The landscape back then was a quilt of sagebrush on the hillsides with grassy meadows, wetlands, and streams threading through the valleys, punctuated by ponds and dams maintained by the incessantly working beavers.
Then came trappers like Ogden, who did a remarkably thorough job. When the workaholic beavers were removed, their dams decayed, and streams throughout the West incised into their valleys, eroding and flushing out the sediment that had accumulated over centuries. As the streams lowered, so did the local water tables. Wet meadows dried out and became gullies and washes, which flowed only for brief periods in late spring or summer. Sagebrush moved from the hillsides into the now-dry valley bottoms, leaving behind the landscape that we now associate with the high desert: a sagebrush sea.
Resilient Restoration
The Campbells wanted to restore the resilience of the ecosystems native to Frontier Oregon, and they reasoned that beavers—or at least the effect of beavers—were likely the right starting point. Beavers couldn’t just be parachuted into Silvies Valley, however, because there wasn’t enough riparian vegetation. Instead, Scott Campbell took rock from local hillsides and built what he calls “artificial beaver dams,” which look a lot like road crossings that proliferate on most ranches. These artificial dams pond up water just like a beaver dam but let the baseflow percolate through the rock and flow on downstream, albeit very slowly. By building a series of dams along a valley, he created a series of ponds that looked and functioned a lot like real beaver ponds.
By slowing down the water, the snowmelt and early spring rains had the chance to percolate down into the remaining riparian soils rather than rush through the gullies. It was an experiment, and it came with a big surprise: The native grasses that once grew in these valley bottoms came right back once moisture returned to the soils. The raised water table helped drown the sagebrush, which was quickly replaced with thick grassy meadow.
With initial success, Campbell began to replicate the experiment in other valleys of the ranch, with similar results. Colby Marshall, the livestock manager, says that they can now bail hay in the late spring and still graze their cattle into the late summer, all on what had previously been marginally productive grazing land. Restoring the stream increased the ranch’s core business: cattle.
Then, other surprises began showing up, creating additional benefits. The Campbells own all the water rights in the valley. Because the artificial dams allowed them to grow hay with existing spring soil moisture, they didn’t need to divert water for irrigation in the early summer. They could let water pass by while still growing spring hay. This increased the water available for downstream ranchers, who have begun noticing the change in water in the river. And all of this is water that would have previously rushed by during the spring snowmelt; the dams have simply slowed the water long enough to make it usable. As the meadows on Silvies Valley Ranch fill with organic material, the amount of water that can be retained will continue to increase through time.
In 2015, the experiment with artificial beaver dams created another critical, yet entirely unexpected benefit: fire breaks. On Camp Creek, Campbell built more than 100 artificial beaver dams along 3.5 miles of stream. Before the dams were constructed, the valley bottom was dry sagebrush and juniper, just like the hillsides all around. And with this vegetation, the bottom was just as susceptible to burning as the surrounding forests. But after building the dams along the valley, the bottom became wet meadow. During the peak of fire season, a controlled burn got loose, eventually scorching more than 5,000 acres. But when the fire got to Camp Creek, it couldn’t jump the now-wet valley. The restored stream and riparian valley was a natural fire break. The fire reached the wet meadow and burned itself out, saving many more acres and a number of buildings.
The Silvies Valley experiment worked. And with such widespread benefits, the Campbells looked to use artificial beaver dams elsewhere and considered helping other ranchers try them out as well.
Regulatory Tautology
And then all hell—permitting hell—broke loose for the ranch.
It began with the fact that Campbell had never asked for permission to put rock and gravel in the gullies of his ranch; he had never asked for permission to restore the streams on his property. Normally, to put rock or dirt into a stream would require a permit from the federal government, specifically the Corps of Engineers. This agency regulates impacts to “waters of the United States” under the Commerce Clause of the Constitution; thus, any activity that might affect interstate commerce on waterways falls under the corps’ jurisdiction.
But this region of Oregon is a geographic peculiarity. Campbell’s ranch sits in the northernmost part of the Great Basin—the region of the western United States that drains internally and never reaches an ocean. In addition, the streams here don’t feed into rivers that cross state borders, and so the streams aren’t considered an extension of interstate waterways. Because of this, the streams don’t fall under federal jurisdiction. Instead, streams of Silvies Valley are considered waters of the state of Oregon, and the state maintains its own permit program. If you want to do work on a stream in Frontier Oregon, then you have to get a permit from the Department of State Lands rather than the Corps of Engineers.
Here is where things get tricky for regulators. What is a stream, and what is not? The same question plagues the federal government’s own permit programs, resulting in a morass of law reviews, opaque scientific studies, and impenetrable court opinions. The state of Oregon, through its own permit program, has had to wrestle with the question as well, and like many other regulatory agencies, it has attempted to do so by avoiding the pitfall of specificity.
Beyond fines and political wranglings, the end result of this permitting perversion is perpetual uncertainty for ranchers like the Campbells as to what regulations apply to which activities on which particular parts of their ranch.
When Scott and Sandy Campbell began their stream work, the brochure for landowners from the state agency said that a landowner needed a permit if the work was on a perennial stream—one that flows year round—or an intermittent stream with anadromous fish, like salmon, which migrate from streams to the ocean. With no hydrologic connection to the ocean, and thus no anadromous fish, intermittent streams were out. This left perennial streams as the only type for which the Campbells would need a permit from the state agency.
But when they began working on their first restoration project, Camp Creek was a desert gully that only flowed for a few weeks during snowmelt. The creek couldn’t support any type of fish because most of the year it was little more than a desert wash with moist sand. So, pre-restoration, Camp Creek was far outside what could reasonably be considered a perennial stream, much less a stream that supported anadromous fish (even if a connection with the ocean did exist).
After restoration, with the artificial dams having restored the local water levels and slowed the water in the riparian soils, Camp Creek flowed year round and supported many species of fish. The Campbells created a perennial stream. Thus, they were caught in a regulatory tautology: Their work required a permit after the work was done, but not before. If restoration didn’t work, then a permit was never needed; but if restoration did work, then you needed a permit for what you had already done.
As if that weren’t enough, after all this work had been done at the ranch, the state changed the requirements. It decreed that permits were needed for work done on waterways that supported “migratory fish,” the definition of which was broad enough to include virtually every fish, since all fish move around to some degree. There were other rule changes as well, many of which might be reasonable in Portland or Bend but bordered on the absurd in a rural landscape like Silvies Valley. When applied to the high desert, each of these requirements for permits were fickle in their rationale but consistent in their effects: maximizing the discretion of regulators while minimizing the discretion of landowners—particularly those interested in restoration.
And in the case of streams in Silvies Valley, the definition of “perennial” kept changing depending on who was in charge or which agency personnel happened to be sent to the ranch for an inspection. In the process of seeing these requirements change, the Campbells have had to jump through a range of regulatory hoops to sustain and replicate their restoration projects. They had to start by paying fines for doing past work without a permit. They’ve even had to go through the arduous process of trying to get state legislation passed that allowed them to do such restorative work on their ranch. (One such bill passed, but then the Campbells agreed to have it removed so that agencies could address the issue through rule-making. But that process didn’t work, so the Campbells are back to working on specific legislation.) Even if legislation eventually resolves the Campbells’ issues, it is unclear whether it would apply to other ranches where similar restorative work is needed. A rancher from outside Paulina recently reached out to the Campbells to see if they had any insight for how to get restoration work through the permitting process.
Beyond fines and political wranglings, the end result of this permitting perversion is perpetual uncertainty for ranchers like the Campbells as to what regulations apply to which activities on which particular parts of their ranch. That’s a local problem, and one that the Campbells are growing used to dealing with. But the bigger problem is what effect these permitting requirements have on innovation more broadly.
Permissionless Conservation
Regulatory purgatory is not unique to Oregon, nor is it unique to streams. Landowners trying to do innovative resource management often develop a tolerance for the absurd regarding permitting. But there are two critical lessons of the Silvies Valley Ranch experience. The first is the importance of federalism, even at the state level. One of the elegant natures of federalism at the national level is the recognition that what makes sense in Massachusetts might not make sense in Nevada. So we might set national level goals but leave their application at the local level to be worked out and specified in a way that makes sense for local conditions. Indeed, the fact that the (now restored) streams in eastern Oregon were not regulated by the federal Corps of Engineers but would have been in the Mississippi Delta indicates how this approach can work well: The United States is physiographically diverse, and regulations should reflect that reality.
The same is true within many states, particularly large, geographically diverse ones like Oregon. The aridity of the high deserts in Frontier Oregon are more akin to Nevada or Idaho than to Portland or Eugene; yet regulators at the state level often develop a myopic view of the goal of natural resource management being to curb the impacts of suburban sprawl on the patchwork of remnant natural ecosystems. These regulators tend to under-consider the hinterlands of their purview, often because of a lack of appreciation, or a simple lack of exposure.
A great example of this is Oregon’s regulation of impervious surfaces such as rooftops and parking lots, which have proliferated in population centers such as Portland, Eugene, and Bend. The state has developed requirements for offsetting any expansion of impervious surfaces, perhaps a logical approach with clear rationale amidst suburban sprawl. But the state requires the same compliance in Burns, John Day, and on the Silvies Valley Ranch, where cattle outnumber buildings by several orders of magnitude. This approach applies uniformity to a non-uniform landscape. Instead, states should follow a federalist model that sets goals and principles but recognizes the staggering diversity of their own landscapes and whether those regulations conform to the realities of all regions, counties, and even cities. To paraphrase Louis Brandeis, let counties, towns, and cities be laboratories for democracy at the state level, just as states are laboratories for democracy at the federal level. So long as state governments apply regulations uniformly, they undermine the potential for such experimentation by their subsidiaries.
The more long-term damaging effect of permitting hell is how it undermines experimentation of management at the individual level. The cruel reality for any regulator—from federal to local—is that there is no one best approach to managing land, streams, and forests, whether in the arid streams of Frontier Oregon or the sloughs and swamps of Coastal Carolinas. What is most needed is for landowners to be encouraged to constantly experiment to find what works. Scott and Sandy Campbell have every incentive to figure out how to restore streams; they just need leeway to be able to test new approaches, and to see what variations of existing approaches might work with a few tweaks here and there. With ranches as vast as Silvies Valley and its equally expansive neighbors, there are ample opportunities for landowners to conduct genuine experiments across the region, largely on private land.
The only way that this can happen is for regulators to be as innovative with permitting as landowners are with management. For regulators to do this, they have to be more focused on the end results than on the process; they must hold landowners accountable for the condition of the resource rather than for the specifics of the actions. This will require agency-representing watchdogs to take the time to get to know not only individual landowners but also the many particular landscapes, regions, and ecosystems over which they yield the scepter of regulation. Only with such an investment of time, along with a healthy dose of humility, can regulators recognize and encourage innovation. The innovations at the Silvies Valley Ranch proved to be extremely low cost, yet they restored native fish and bird populations and riparian vegetation, as well as increased summer springs flowing through the ranch.
Without such innovation, we will spend the coming decades living in a chronically degrading environment that is strictly regulated by platoons of policy-deploying automatons. Better to live in one that embraces not only the innovation of individuals but also the staggering variety of landscapes and ecosystems that make the West, and the nation, so uniquely diverse.