Oregon Coast Alliance v. Curry County

Under ORS. 215.246(3), the scope of the phrase “alternatives” may be interpreted broadly enough to include alternative sources and methods for obtaining irrigation water, in addition to means and routes of transporting it, however, any written explanation by an applicant rejecting identified alternatives will satisfy the statute’s burden.

Petitioner appeals a county decision approving a pipeline carrying reclaimed city wastewater to a golf course for irrigation. To irrigate the golf course, intervenor chose to use reclaimed wastewater from the City of Port Orford. Intervenor proposed constructing a pipeline from city facilities, along several public rights-of-way and across private property, to the subject golf course site. After considering and rejecting, in writing, petitioner’s two alternative pipeline routes and suggestion that intervenor obtain irrigation from groundwater and surface water sources, intervenor obtained city and county approval.

Petitioner first assigned error to the county’s belief that the scope of the phrase “alternatives identified in public comments” under ORS 215.246(3) is limited to alternative routes for transporting reclaimed wastewater to the site. Petitioner argues that, under ORS 215.246(3), the applicant must explain in writing how “alternatives identified in public comments” were considered and, if the alternatives are not selected,  the reasons for not selecting them. Petitioner further argues that the scope of the term “alternatives” is not limited  to alternative transportation routes and should be interpreted with respect to “agricultural process water” in general—which  could be produced and applied to land on the same farm property without being transported from one site to another—and that it is broad enough to include alternative sources and methods for obtaining the desired irrigation or fertilization, such as ground and surface water sources.

In response, intervenor argues that the legislature intended to limit the scope of the term “alternatives” to alternative means and routes of transporting reclaimed wastewater because the uses allowed by the statute include (1) post-application treatment, (2) on-site facilities necessary for the land application, (3) off-site facilities for the transportation of reclaimed wastewater, and (4) the transportation by vehicle of reclaimed wastewater. Because each of these uses concerns equipment, facilities, and transportation methods for wastewater, and not sources of water, intervenor argues that the legislature intended to limit the scope of the phrase “alternatives” to alternative equipment, facilities, or transportation means or routes that might be suggested in public comments. Alternatively, if this is not the case, intervenor argues that it adequately considered and addressed the alternatives suggested by petitioner with a letter explaining how the proposal was not feasible. LUBA agrees with intervenor that, assuming petitioner is correct that the scope of the phrase “alternatives” is broad enough to include alternative sources for irrigation water, intervenor met its statutory burden with its written explanation for choosing to obtain irrigation water from wastewater rather than groundwater or surface water. The record showed that intervenor believed that the use of wastewater would be beneficial for the golf course, the city, and the environment and a superior choice to groundwater or surface water. Because any written explanation would have sufficed under the limited obligation imposed by the statute, the county’s decision is AFFIRMED.