McCaffree v. Coos County

Modification of a permit condition for a natural gas pipeline that crosses over estuarine lands does not need to satisfy Estuary Management Plan policies where the policies were not invoked in the establishment of the condition and not implicated by the modification.

In September 2010, Coos county approved a conditional use permit for a pipeline to connect to Pacific Connector Gas Pipeline LP’s (PCCP) terminal in Coos Bay. The approval contained a condition that the permits would not be used for the export of liquefied natural gas. In 2013, PCCP sought and received approval to modify the condition from the board of county commissioners to allow for the “transportation of natural gas.” McCaffree appealed to LUBA, arguing that after modification, the condition must satisfy Coos Bay Estuary Management Plan policies 5(I)(b) and 5a. LUBA found that the two policies cited by McCaffree do not apply to the export condition being neither “dredge and/or fill” or “temporary alterations” and that the condition was not imposed to comply with these policies. Therefore the Board held that the condition did not need to satisfy the policies after modification. McCaffree next argued that after modification of the condition to allow two-way flow, the pipeline was not a “new distribution line,” authorized for conditional use in lands zoned Forest under OAR 660-006-0025(4)(q). LUBA held that the argument was waived for failure to preserve the issue, but that even if properly preserved the argument would have failed because McCaffree’s characterization of the pipeline as a “gas transmission line” was inapposite. Despite the direction of flow, the line would still be a “new distribution line.” Further, the fact that the statute singles out “new electric transmission lines” for wider rights-of-way does not mean that other utilities are not authorized. Denying both assignments of error, the Board affirmed the county’s decision. AFFIRMED.