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  • A riparian runs through it

    Rogue River setback violation lands neighbor in hot water over land protection
  • This past spring, James Harkcom fired up his chainsaw to cut tree limbs along his 532-foot-wide riverfront property bordering the Rogue River half a mile upstream from Shady Cove.
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  • This past spring, James Harkcom fired up his chainsaw to cut tree limbs along his 532-foot-wide riverfront property bordering the Rogue River half a mile upstream from Shady Cove.
    He trimmed about a dozen trees, including what appear to be cottonwoods and at least one oak.
    "You can see where I cut the limbs," said Harkcom, 61, as he surveyed the work done at the water's edge. "Those trees are doing fine. They are growing. They look good."
    He left the branches under the trees where they fell, intending to pile and burn them this fall.
    "Last time I did this, I burned the limbs on the rocks here — nobody said nothing," he said, noting that was back in 2004. "And they didn't say anything when I used a Weed Eater to trim the grass that was 3 or 4 feet tall.
    "I thought I was doing everybody a favor — myself, state police, boaters," he added. "I think these trees look quite happy."
    Whether the trees are happy is unclear, but the county and state, both citing riverside degradation, definitely are not.
    On the same day he cut the limbs — April 16 — Harkcom was cited by a Jackson County Development Services code enforcement officer for violation of the county's riparian setback ordinance.
    "Removal of riparian vegetation without landscape plan and approval," the citation read.
    If found guilty, Harkcom could be fined a minimum of $200 or a maximum $600 for the first offense. A second offense could result in a $10,000 fine, he was warned.
    Harkcom will plead his case before a county hearings officer at the county courthouse on July 30.
    "I'm going to plead not guilty because I didn't know about it," said Harkcom, a registered nurse who has owned the 10-acre parcel divided by Highway 62 for more than a decade. "I had never heard the term 'riparian setback' before. I did not fully remove anything or cut anything down. I just removed the branches.
    "I didn't know I was breaking any regulation," he repeated. "I thought I was doing a good thing."
    But officials say ignorance of the law is no excuse, noting it is incumbent upon property owners to learn what the regulations are before removing stream-side vegetation.
    "Ignorance is not a defense," said Kelly Madding, director of Jackson County Development Services, which enforces the ordinance. "With the riparian setback, you really can't do anything without coming in to the county for a permit."
    While the problem isn't increasing, it surfaces about once or twice a month, Madding said.
    "It doesn't reflect the majority of our compliance problems but it's an ongoing issue," she said. "I don't think people purposely violate the law. Usually, it is because they just don't know there is a riparian setback."
    On the Rogue River, the county setback ordinance is 75 feet from the top of the bank, Madding said. On other streams in the county, including the Applegate River and Bear Creek, it is 50 feet, she added.
    "The ordinance is implemented and administered by the county but it is a state requirement," she said. "We are the vehicle for the requirement."
    She was referring to state laws requiring counties and cities to provide protection for important natural features such as waterways. One person cutting a few limbs along the river will have little impact, but numerous property owners removing vegetation would have an accumulated impact that would cause severe damage to the river corridor, officials warn.
    The issue has nothing to do with the argument over whether a private property line ends at the high-water mark or at the center of the river, Madding said, referring to an issue that is unsettled in some quarters.
    "This is about regulating use," she said. "People think they are removing a nuisance, but that vegetation is helping mitigate erosion along the river. This is a water-quality issue.
    "You can't remove any vegetation unless you have a permit and a plan for replanting with riparian vegetation," she added.
    She encourages anyone with stream-front property to call her department at 541-774-6900 before removing any vegetation in the riparian zone.
    "We strive for voluntary compliance," she said. "Our preference is to work with people to come into compliance and not to cite them."
    When a property owner receives a permit to remove non-native vegetation in the riparian area, the department sends them to the Oregon Department of Fish and Wildlife, where they will receive guidance to formulate a replanting plan, she said.
    Like the county, the state agency deals with the issue periodically, said David Haight, assistant district fisheries biologist for ODFW in Central Point.
    "The most obvious benefit from the vegetation is to provide shade to the stream," he explained.
    "A lot of streams here get pretty warm in the summer, often to the upper threshold where salmon and steelhead can't survive," he added. "In some of the tributaries, the riparian shading covers the length of the stream, keeping the water cooler."
    Just as the overstory shades the area, the understory also serves as a thermal buffer, he added.
    "It creates a micro climate down near the water," he said. "It keeps hot air from blowing over the water."
    Removing the shorter vegetation from the riverbank leaves soil or rock that heats up, baking the river's edge, he noted.
    In addition, vegetation reduces erosion, slows water flow, retains stream-side groundwater longer, helps create spawning areas and provides habitat for various creatures, he said.
    "People need to remember they can retain the riparian vegetation and still have nicely landscaped property," he said. "You can get approval to remove non-natives like Himalayan blackberries and replace them with native plants. It can be quite attractive."
    Back on his property, Harkcom stressed that he is not a scofflaw.
    This marks the second year he has allowed Oregon State Police game wardens to use his property to nab poachers on the river, he said. Removing the limbs would provide them a better view, he reasoned.
    "When the guy from the county told me I was in violation of some ordinance, I told him I didn't know what he was talking about, that I just trimmed my trees," he said.
    "I asked him, 'Is that a crime?' He told me, 'Yeah, it is.' "
    Harkcom told him it was the first time he had heard about the regulation after living along the river for more than a decade.
    "They sent me a letter stating I needed to comply and replace the trees," he said. "I wrote them back that I did not remove anything but just trimmed the limbs that were hanging down."
    He planted seven pine saplings along the river, although they don't appear to have survived the recent hot spell.
    "To me, this is all about education," he said. "People along the river need to know about this riparian setback. Otherwise, something like this happens."
    Reach reporter Paul Fattig at 541-776-4496 or pfattig@mailtribune.com.
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