Citizens for Renewables v. City of North Bend

Intervenor applied for a permit to install a natural gas transmission pipeline under an estuary to serve a liquefied natural gas (LNG) export terminal outside the city. The city council approved the application. This appeal followed.

Under the Coos Bay Estuary Management Plan (CBEMP), “low-intensity utilities” are allowed in all of the management units that the pipeline would have crossed. CBEMP 3.2 defines low-intensity utilities as “public service structures” including “gas lines.” In approving the application, the city council concluded that the pipeline was a gas line and therefore a low-intensity utility allowed in all of the relevant management units. Petitioners argued that the city council misconstrued CBEMP 3.2 in concluding that the pipeline was a “gas line” because the gas would be exported overseas and therefore not serve local end-users. Petitioners also argued that the city council misconstrued CBEMP 3.2 in concluding that the pipeline was a “public service structure” because it would have merely transported gas to the terminal and therefore would not have provided a “public service.” Although the CBEMP was prepared by a different local government and subsequently adopted into the city’s land use legislation, LUBA rejected petitioners’ argument that the city council’s interpretations of the CBEMP were not entitled to deference under ORS 197.829(1) and Siporen v. City of Medford. In turn, because nothing in the text or context of CBEMP 3.2 distinguishes between different types of gas lines or different destinations for the conveyed gas, LUBA concluded that the city council’s interpretation that the pipeline was a “gas line” was plausible. In addition, because small amounts of gas would have been made available to the general public and used to power the terminal itself, and because nothing in the text or context of CBEMP 3.2 requires a minimum number of local end-users or that a minimum quantity of the conveyed gas be made available to local end-users, LUBA concluded that the city council’s interpretation that the pipeline was a “public service structure” was also plausible.

The CBEMP distinguishes between “uses” and “activities.” Under CBEMP 3.2, activities are actions “taken either in conjunction with a use or to make a use possible. Activities do not in and of themselves result in a specific use.” Activities must be analyzed separately from uses. Both Goal 16 and CBEMP 3.2 list “dredging” as an example of an activity. Traditionally, pipelines were installed through open trenching, which began with dredging. However, intervenor’s application proposed to install the pipeline using horizontal directional drilling (HDD). Because the HDD process directly results in the installation of a pipeline, the city council concluded that HDD was simply a construction technique, not an “activity,” and it therefore did not analyze HDD separately from the pipeline “use.” Because the CBEMP’s distinction between “uses” and “activities” implements Goal 16, LUBA concluded that no deference was due to the city council’s interpretation. In turn, because the fact that the steps of the HDD process occur more simultaneously than open trenching makes no difference for purposes of protecting estuarine resources under Goal 16, and because, like traditional dredging, HDD involves removing soil under the seafloor, LUBA concluded that HDD is an “activity” that the city council was required to analyze separately from the pipeline “use.” Although the city council adopted findings regarding the risks and potential biological impacts of HDD, because it did not tie those findings to the approval criteria for activities, LUBA concluded that remand was necessary for it to do so.

A portion of the pipeline would have been in the 47-Urban Water-Dependent (47-UW) management unit. Non-water-dependent uses are permitted in the 47-UW management unit pursuant to CBEMP Policy 16. Under CBEMP Policy 16(III)(2), non-water-dependent uses are allowed in the 47-UW management unit if they are “in conjunction with and incidental and subordinate to a water-dependent use.” Under CBEMP Policy 16(III)(2)(a), which implements Statewide Planning Goal 17 (Coastal Shorelands) and OAR 660-037-0080(3)(b)(A), such non-water-dependent uses must “be constructed at the same time as or after the water-dependent use of the site is established.” In a prior appeal, LUBA concluded that the LNG terminal was a water-dependent use. The city concluded that the pipeline would have been incidental and subordinate to and constructed at the same time as or after the LNG terminal, so CBEMP Policy 16 was satisfied. Petitioners argued that the city misconstrued CBEMP Policy 16(III)(2)(a) because that provision implicitly allowed non-water-dependent uses only on the same site as the water-dependent use and because the pipeline and terminal would not have been on the same site. LUBA agreed with the city and intervenor that the policy underlying CBEMP Policy 16(III)(2)(a) and OAR 660-037-0080(3)(b)(A) is concurrency and that, while those provisions refer to “water-dependent uses of the site,” they do not expressly require co-location of the water-dependent and non-water-dependent uses. Because a purpose of Goal 17 is to allow the use of coastal shorelands for water-dependent uses, and because an implicit co-location requirement would have made it difficult to develop water-dependent uses that must be served by linear utilities, LUBA rejected petitioners’ argument.

The city conditioned its approval on intervenor obtaining all “necessary” state and federal permits. Prior to the city’s decision, the Oregon Department of Environmental Quality (DEQ) denied intervenor’s application for a water quality permit. Petitioners argued that, given the DEQ denial, the city was required but failed to adopt findings that it was “feasible” for intervenor to obtain the DEQ permit. LUBA agreed with intervenor that, where a local government imposes a general condition of approval requiring an applicant to obtain all required state and federal permits, the applicant need only demonstrate that obtaining those permits is not “precluded as a matter of law.” The DEQ denial expressly stated that it was without prejudice and that intervenor could re-apply for the permit. Because petitioners provided no countervailing evidence that intervenor would be unable to obtain the permit as a matter of law, LUBA concluded that nothing more was necessary. For the reasons explained above, the city’s decision was REMANDED.

Board Member Rudd, concurring, agreed with the majority that remand was necessary for the city to adopt adequate findings. However, Board Member Rudd agreed with the city that Goal 16 expressly allows pipelines and a means for their installation, that HDD is simply a means of installing the pipeline, and that HDD need not be analyzed as an “activity” separately from the pipeline “use.” Board Member Rudd noted that HDD was distinct from traditional dredging in that, while dredging can be conducted separate from a “use,” as when a navigation channel is dredged to allow for navigation by deep-draft ships, the HDD process directly results in the installation of a pipeline. In addition, unlike traditional dredging, HDD does not remove soil from the top layer of the seafloor. Although Goal 16 requires that the impacts of uses and activities be “consistent with the resource capabilities of the area,” Board Member Rudd concluded that, on remand, the city might be able to demonstrate that the impacts of HDD were already considered when the city adopted the CBEMP into its land use legislation, since the CBEMP allows pipelines outright in all of the relevant management units.