06 Public Record Pages 1021-1272

this "top of bank" delineation is also appropriate because it reflects the applicant's intentions to remove the spoils from the edge of the bank and restore the "natural" topography of the site. 16 Staff disagrees, arguing that with respect to the bermed area, the "top of high bank" is not discernable, because the berm is not at the same elevation as the surrounding topography, and therefore the transition from the steeper grade to a less steep grade at the edge of the berm does not accurately identify the "top of high bank" under EC 9.4920(1)(c)[ 1 Staff then relied on EC 9.4920(1)(c)(2), which provides the methodology where there is no discernable "top of high bank." EC 9.4920(1)(c)(2) provides that if the top,of high bank is not discernable, the conservation setback is measured horizontally from the line of ordinary high water. In The Picullel Group slip op 6-7, LOBA interpreted the provisions of EC 9.4920(1)(c)[ 1 ] [a] as follows: "Clause 1 includes a general description of the "top of high bank," that is "the highest point at which the bank meets the grade of the surrounding topography[.]" That general description is significantly qualified by Clauses 1(a) and 1(b), which set out specific descriptions of how the "top of high bank" is "characterized." Clauses 1(a) and 1(b) are joined by a conjunction, indicating that the "top of high bank" must be characterized by both specific descriptions. However, the applicability of Clause 1(b) is expressly contingent on circumstances "where natural conditions prevail." Thus, the top of high bank must be characterized by Clauses 1(a) and 1(b), or, where Clause 1(b) does not apply, by Clause 1(a)." LUBA's opinion makes it reasonably clear that the first clause of EC 9.4920(1)(c) cannot be applied in isolation; the "top of high bank" must include at least one of the constituent characteristics described in EC 9.4920(1)(c)[ I]. The hearings official concludes that the "top of high bank" is discernable, because there is "an abrupt or noticeable change from a steeper grade to a less steep grade" from the steep slope of the trench and grassy ledge that abuts it. Having resolved that question, the next issue is whether the "surrounding topography" in this case refers to the top, of the berm or the western side of the berm, where the applicant argues the "bank" meets the grade of the surrounding topography. As with much of EC 9.4920(1)(c)(1), the word "bank" is ambiguous. It is defined as: "1 : a mound, pile, or ridge raised by natural processes or artificial means above the surrounding level, "2 : the margin of a watercourse : the rising ground bordering a lake, river, or sea or forming the edge of a cut or other hollow," or "3 : a steep acclivity (as the side of a hill, pile or mound : GRADE, SLOPE." Webster's Third New Int'l Dictionary, (2002 ed.) 172. The first definition supports the applicant's argument; the second and third tend to support the idea that the "top of bank" is the top edge of the slope rising from the water to the higher ground. While the question is a close one, the hearings official concludes that the latter interpretation is more consistent with the overall provisions of EC 9.4920(1)(c), which requires that the decision maker identify a visible change from a steeper grade to a less steep grade from which to establish the applicable conservation setback. Further, there is nothing in EC 9.4920(1)(c)(1) that requires that the bank's "surrounding topography" match the natural elevation in the area. 16 Again, the word "natural" must be somewhat qualified The record indicates that the site was once part of a larger agricultural operation From that the hearings official infers that the site has been graded over time to accommodate crops, and the drainage area has been modified and/or moved to improve agricultural productivity Therefore, the site is unlikely to be natural in the sense that it is untouched by human hand. Alder Woods PUD (PDT 07-5 & SDR 08-2) Page 15 Laurel Ridge Record (Z 15-5) Page 1143