Coos Waterkeeper v. Port of Coos Bay

Use of the word “project” in ORS 196.825(1) does not require the Department of State Lands to consider post-construction operational effects of a proposed development when determining whether to issue a fill/removal permit in conjunction with that development.

Petitioners appealed a final order from the director of the Department of State Lands (DSL) affirming a fill/removal permit granted by DSL to Respondent to dredge 1.75 million cubic yards of material from Coos Bay to create a new marine terminal. Petitioners assigned error to the director’s conclusion that DSL was not required to consider the effects of operating the proposed terminal when it evaluated and approved Respondent’s application for the permit. Specifically, Petitioners argued the word “project” in ORS 196.825(1)—which provides that the director shall grant a fill/removal permit if she determines “the project” described in an application is consistent with state policy to preserve and conserve water resources—encompasses ongoing operations. Respondents contended the term “project” does not include ongoing operations. After examining the text, context, and legislative history of ORS 196.825(1), the Court found the term “project” relates only to the construction of a proposed development, and does not include the effects of operating that development after it is completed. Therefore, the Court concluded the director correctly concluded that DSL was not required, under ORS 196.825, to consider ongoing operations of the proposed marine terminal when evaluating Respondent’s application for a fill/removal permit. Affirmed.