Posted on

OP-ED: Court: public need required for wetland and waterway fill permits

http://djcoregon.com/news/2019/01/09/op-ed-court-public-need-required-wetland-waterway-fill-permits/

The Oregon Department of State Lands (DSL) requires a “removal-fill permit” for any activity that involves filling or removing 50 cubic yards of material or more in a wetland or a waterway. The purpose of the law, enacted in 1967, is to ensure protection and the best use of Oregon’s water resources for residential, commercial, wildlife habitat, public navigation, fishing or recreational uses.

The obligation to obtain a permit applies to all landowners, whether private or public. The general goal for requiring review is to evaluate and determine that the fill proposal represents a practicable alternative that will have the least amount of impact on wetlands or waterways. State law sets forth criteria for issuance of a permit and requires a finding that the fill proposal is consistent with “the protection, conservation and best use” of the water resources, among other things.

The permit criteria go on to set forth an additional nine factors that DSL must “consider” when issuing a permit. One of these factors is: “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.”

Up until last month, the DSL’s long-standing practice was to evaluate the public need and benefit from a fill proposal but not require a finding that a proposed project serves a public need. Last month, in Citizens for Responsible Development in The Dalles v. Wal-Mart Stores, the Oregon Court of Appeals rejected DSL’s approach.

This case grew out of a challenge to a fill-removal permit issued to Wal-Mart allowing it to fill a series of vernal (seasonal) pools in order to construct a new store. DSL issued the permit and made findings that: “The record is inconclusive with regard to whether the project, for which the fill or removal is proposed, will address a public need.” The findings went on to note the market demand that may drive the need for a Walmart store as well as question the long-term economic benefits for such a project. Ultimately, notwithstanding its conclusion that “the record was inconclusive with respect to public need,” DSL found that the proposal included sufficient conservation efforts, minimized impacts and adequate mitigation measures to approve the request.

On appeal, the petitioner argued that Wal-Mart failed to meet its burden to demonstrate that the project would fulfill a public need. Relying on precedent from an Oregon Supreme Court case in 1979, the petitioner argued that DSL must make an affirmative finding that the project would serve a public need before it may issue a permit. DSL’s responses included pointing out changes in the statutory language since the 1979 case was decided, most notably altering the requirement from finding a public need to “consider” the public need for the proposed fill.

Rather than focusing solely on the change in the plain language, the court looked to the legislative history for the amendment was to “just follow” the precedent set in the previous case – allowing some level of fill “as long as the director had weighed the extent of the public need for that fill against the interference of the water or non-water use.” Relying on this legislative history, the court found that DSL was required to find that “the public need predominates over the loss of the waters of the state caused by the proposed project.” Because DSL found the evidence of public need inconclusive, DSL should not have issued the permit.

It is not clear whether DSL will seek review of this decision by the Oregon Supreme Court or ask the Legislature to amend the review criteria further. What is also not known is what can be included in the consideration of public need. The statutory context suggests that the “project” for which the public need is evaluated is to be directed to the fill project alone and not to the ultimate development or use for the land after the waterway is altered. However, separating the fill itself from the proposed use may prove to be difficult, if not impossible, to establish a public need.

In other words, how can any fill provide a public benefit without taking the end result into account? Does this decision place DSL in a position of making broader public policy judgments about issues that go beyond simply protecting wetlands and waterways for recreation and navigation purposes? In any event, this case represents a significant change in how the Department of State Lands has reviewed permits and may have the effect of preserving the status quo for many potentially affected water resources.

Edward Sullivan is a retired practitioner of land use and municipal law with more than 45 years of experience. Contact him at esulliva@gmail.com.

Carrie Richter is an attorney specializing in land use and municipal law at Bateman Seidel. Contact her at 503-972-9903 or crichter@batemanseidel.com.