Waterkeeper v. Port of Coos Bay Or.

423 P.3d 60, 363 Or. 354
CourtOregon Supreme Court
DecidedJuly 26, 2018
DocketSC S064934
StatusPublished
Cited by9 cases

This text of 423 P.3d 60 (Waterkeeper v. Port of Coos Bay Or.) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waterkeeper v. Port of Coos Bay Or., 423 P.3d 60, 363 Or. 354 (Or. 2018).

Opinion

BALMER, J.

*62**356In this case, we review a final order of the Department of State Lands (DSL) that granted a permit to the Port of Coos Bay (Port) in connection with the construction of a deep water marine terminal in Coos Bay. The permit allows the Port to dredge 1.75 million cubic yards of material from the bay, while also imposing a number of conditions to address environmental concerns. Petitioners are environmental advocacy groups who argue that the Port's application did not meet the requirements for issuing a permit set out in ORS 196.825. An administrative law judge (ALJ) held a contested case hearing and rejected petitioners' arguments. DSL reviewed the conclusions of the ALJ and issued a final order affirming the permit. The Court of Appeals affirmed DSL's final order. Coos Waterkeeper v. Port of Coos Bay , 284 Or. App. 620, 395 P.3d 14 (2017). Petitioners contend that DSL erred in failing to consider evidence of certain negative effects of the construction and operation of the terminal in the permit application review process. On review, we hold that DSL properly considered the criteria set out in ORS 196.825 and did not err in granting the permit. We therefore affirm.

I. FACTS AND PROCEEDINGS BELOW

In 2007, the Port submitted an initial application to DSL proposing to construct a new multi-berth, multi-user marine terminal in Coos Bay. Over the next few years, the department requested more information on various aspects of the project, and the Port responded with additional plans and studies refining and supporting its chosen site and design, the public need for the terminal, the placement of removed material, the effects on aquatic life, and other aspects of the development.

Ultimately, the finalized plan called for construction to occur in two phases. The "freshwater phase" would involve excavating a slip and constructing facilities to accommodate vessels and cargo. That excavation would occur in an upland area, separated from the bay by an existing earthen berm. After the slip's completion, the berm would be removed and the slip would become part of the bay. Because the excavation and construction of the freshwater phase would not **357occur in wetlands or waters of the state, the Port did not seek, and DSL did not issue, a removal fill permit for that work. The "saltwater phase," in contrast, would consist of removing the berm, dredging an access channel from the slip to the existing navigation channel in the bay, and per-forming a small amount of in-water construction necessary to complete the cargo wharf. Dredging the access channel would submerge approximately 13 acres of intertidal area and remove 1.75 million cubic yards of material. For those activities, the Port sought a removal fill permit.

The department considered the permit application under Oregon's removal fill law, ORS 196.800 - 196.990, and the department's rules implementing that statute, OAR chapter 141, division 85. In findings that accompanied the permit, the department noted that its authority is limited to the removal from and fill of waters of the state and that it "has no authority to determine whether a particular project (other than the portion that involves removal/fill within waters of the state) is good for the State of Oregon." The permit explained that the Port had considered eight alternative sites and designs for the project, and that the preferred alternative had the least impact on water resources. The permit also required the Port to mitigate the effects on wetlands through the creation, restoration, and enhancement of over 40 acres of wetlands, under Oregon's Removal-Fill Mitigation Fund Act.

The findings accompanying the permit also discussed the use of the terminal, explaining that the Port had a preliminary commitment from the Jordan Cove Energy Project to use one of the two cargo berths for importing or exporting liquefied natural gas (LNG) and also had received expressions of interest from other potential users of the facility. It noted that, in issuing the permit, "the Department is not making a finding regarding need for or public benefit from a terminal *63facility that would import or export LNG." It also observed, however, that the legislature has designated the development of deepwater port facilities at Coos Bay as a "state economic goal of high priority." ORS 777.065.

Petitioners appealed the permit, and in 2012 an administrative law judge held a hearing. The parties filed **358cross-motions for summary determination, and the ALJ issued a proposed order upholding the permit. Petitioners then appealed that proposed order to the department. The department issued a final order that adopted in full the findings of fact and conclusions of law of the proposed order.

Petitioners appealed to the Court of Appeals and made two arguments. First, petitioners asserted that the "freshwater phase" required a removal fill permit, and the department's decision otherwise was error. The Court of Appeals rejected that argument, holding that DSL "lacked authority to regulate the freshwater phase of the project." Coos Waterkeeper , 284 Or. App. at 640, 395 P.3d 14. Petitioners do not renew that argument here. Second, they asserted that the department should have considered the effects of the operation of the terminal when deciding whether to issue the permit. The court also rejected that argument, explaining that the statute does not require DSL to consider the "effects of post-construction operation of the development." Id. at 636, 395 P.3d 14. Petitioners sought review, and we allowed the petition.

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Cite This Page — Counsel Stack

Bluebook (online)
423 P.3d 60, 363 Or. 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waterkeeper-v-port-of-coos-bay-or-or-2018.