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Waterkeeper v. Port of Coos Bay Oregon

Court of Appeals of Oregon

April 5, 2017

COOS WATERKEEPER Former Petitioner,
v.
PORT OF COOS BAY OREGON and Department of State Lands, Respondents. and SIERRA CLUB, Greenpeace, and Friends of Living Oregon Waters, Petitioners,

          Argued and Submitted March 6, 2015

         Office of Administrative Hearings 1202690

          Jan Hasselman, Washington, argued the cause for petitioners. With her on the briefs were Janette K. Brimmer, Earthjustice, Karl G. Anuta and Karl G. Anuta, P.C.

          Carson L. Whitehead, Assistant Attorney General, argued the cause for respondent Department of State Lands. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, Inge D. Wells, Assistant Attorney General, and Matthew J. Preusch, Assistant Attorney General.

          David A. Bledsoe, Steven L. Pfeiffer, Teresa Jacobs, and Perkins Coie LLP fled the brief for respondent Port of Coos Bay Oregon.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and DeHoog, Judge. [*]

         Case Summary:

         The Department of State Lands (DSL) issued a permit authorizing the Port of Coos Bay to dredge 1.75 million cubic yards of material from Coos Bay. Petitioners challenged that permit in a contested-case hearing, and the parties fled cross-motions for summary determination. After further administrative proceedings, the director of DSL issued a final order affirming the fill/removal permit. Petitioners seek judicial review of that final order, challenging the director's ruling on the cross-motions for summary determination on two grounds. First, petitioners argue that the director erred in concluding that DSL was not required to consider the effects of operating the marine terminal when it evaluated and approved the Port's application for the fill/removal permit. Second, petitioners argue that the director erred in concluding that DSL's authority to regulate fill/removal activities in "waters of the state" did not extend to the upland portions of the proposed construction. Held: None of petitioners' challenges to the final order establish that the director erred in granting summary determination to respondents, in denying petitioners' motion for summary determination, or in issuing the final order. The director correctly concluded that DSL was not required to consider the effects of operating the terminal when it evaluated the Port's application for a fill/removal permit and issued the requested permit. Nor did the director err in concluding that DSL lacked authority to regulate the upland phase of the project.

         Affirmed.

          HADLOCK, C.J.

         In 2007, the Oregon International Port of Coos Bay (the Port) began the process of applying to the Oregon Department of State Lands (DSL) for a permit to dredge part of Coos Bay to create a new multipurpose slip and marine terminal, along with an access channel connecting Coos Bay with that slip. After responding to DSL's requests for additional information, the Port submitted its completed application in December 2010. The next year, DSL issued a permit authorizing the Port to dredge 1.75 million cubic yards of material from Coos Bay. Specifically, the permit authorized the fill/removal activity of "excavating the access channel, placing dredge soil in a small non-tidal wetland, " and undertaking mitigation measures. Petitioners' challenge to that permit led to a contested-case hearing and the parties' filings of cross-motions for summary determination.[1] After further administrative proceedings, the director of DSL issued a final order affirming the fill/removal permit.

         Petitioners seek judicial review of that 2013 final order, challenging the director's ruling on the cross-motions for summary determination on two grounds. First, petitioners argue that the director erred in concluding that DSL was not required to consider the effects of operating the marine terminal when it evaluated and approved the Port's application for the fill/removal permit. Second, petitioners argue that the director erred in concluding that DSL's authority to regulate fill/removal activities in "waters of the state" did not extend to the upland portions of the proposed construction. For the following reasons, we affirm.

         I. THE STATUTORY AND REGULATORY FRAMEWORK

         To provide context for the parties' arguments, we briefly describe the statutory and regulatory framework governing DSL's authority to issue fill/removal permits as it existed in December 2010, when DSL received the completed permit application.[2] Generally, "a person may not remove any material from the beds or banks of any waters of this state or fill any waters of this state without a permit issued under authority of the Director of the Department of State Lands." ORS 196.810(1)(a).

         The term "waters of this state" is statutorily defined to mean

"all natural waterways, tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, that portion of the Pacific Ocean that is in the boundaries of this state, all other navigable and nonnavigable bodies of water in this state and those portions of the ocean shore, as denned in ORS 390.605, where removal or fill activities are regulated under a state-assumed permit program as provided [by federal law]."

         ORS 196.800(14). DSL has adopted a rule that expressly includes estuaries and tidal bays, up to "the elevation of the highest measured tide, " within its own definition of "waters of the state." OAR 141-085-0510(89); OAR 141-085-0515(2).[3]

         Coos Bay is a tidal bay and therefore is, under those definitions, a water of the state. Accordingly, the Port was required to obtain a permit from DSL before either removing any materials from the beds or banks of Coos Bay or filling that body of water.

         In determining whether to issue the Port's requested fill/removal permit, DSL was required to consider certain criteria pursuant to ORS 196.825. That statute provided, in part:

"(1) The Director of the Department of State Lands shall issue a permit * * * if the director determines that the project described in the application:
"(a) Is consistent with the protection, conservation and best use of the water resources of this state as specified in ORS 196.600 to 196.905; and
"(b) Would not unreasonably interfere with the paramount policy of this state to preserve the use of its waters for navigation, fishing and public recreation.
"(2) In determining whether to issue a permit, the director shall consider all of the following:
"(a) The public need for the proposed fill or removal and the social, economic or other public benefits likely to result from the proposed fill or removal. ***
"(b) The economic cost to the public if the proposed fill or removal is not accomplished. "(c) The availability of alternatives to the project for which the fill or removal is proposed. "(d) The availability of alternative sites for the proposed fill or removal.
"(e) Whether the proposed fill or removal conforms to sound policies of conservation and would not interfere with public health and safety.
"(f) Whether the proposed fill or removal is in conformance with existing public uses of the waters and with uses designated for adjacent land in an acknowledged comprehensive plan and land use regulations.
"(g) Whether the proposed fill or removal is compatible with the acknowledged comprehensive plan and land use regulations for the area where the proposed fill or removal is to take place or can be conditioned on a future local approval to meet this criterion.
"(h) Whether the proposed fill or removal is for stream-bank protection.
"(i) Whether the applicant has provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal in the manner set forth in ORS 196.800. ***"

(Emphasis added.) The word "project" is not defined in ORS chapter 196.

         Pursuant to its general rulemaking authority, [4] DSL promulgated rules that established regulatory standards for its review of permit applications. See OAR 141-085-0500 to OAR 141-085-0785. DSL's rules largely echo the statutory criteria announced in ORS 196.825. OAR 141-085-0565(3), (4).

         II. FACTS

         Our summary of the pertinent facts reflects the facts as described in the final order.[5] In 2007, the Port began seeking DSL's authorization to conduct removal and fill activities associated with constructing a marine terminal in Coos Bay. The Port's purpose is to develop "a multi-berth, multi-purpose shipping facility that will accommodate large vessels." The Port plans to dredge an access channel to connect a newly constructed slip to the bay. Although the project was initially configured to accommodate shipping of liquefied natural gas (LNG), DSL determined that ...


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