Citizens for Renewables v. Coos County

Intervenor applied for a post-acknowledgment plan amendment (PAPA) and various permits to install a natural gas transmission pipeline under an estuary to serve a liquefied natural gas (LNG) export terminal. Intervenor’s application proposed to install the pipeline using horizontal directional drilling (HDD). The board of commissioners approved the application. This appeal followed.

The Deep-Draft Navigation Channel (DDNC-DA) management unit did not previously allow utility uses. Intervenor’s application proposed a PAPA to allow subsurface, low-intensity utilities such as pipelines in the DDNC-DA management unit. Under Statewide Planning Goal 16 (Estuarine Resources), “pipelines, cables and utility crossings, including incidental dredging necessary for their installation,” are permitted “[w]here consistent with the resource capabilities of the area and the purposes of th[e] management unit.” Under Goal 16, Implementation Requirement 1, “actions which would potentially alter the estuarine ecosystem shall be preceded by a clear presentation of the impacts of the proposed alteration.” Another portion of the pipeline would have crossed the 7-Natural Aquatic (7-NA) management unit. The 7-NA management objective is to “protect natural resources.” Still another portion of the pipeline would have crossed the 13A-Natural Aquatic (13A-NA) management unit. The 13A-NA management objective is to “protect[] the productivity and natural character of the aquatic area.”

To demonstrate the impacts of the pipeline and HDD on the estuary, intervenor submitted a variety of reports. Based on those reports, the county concluded that the pipeline and HDD would not adversely impact the estuary’s natural resources because the pipeline would be buried beneath the seafloor, the pipeline would have been unlikely to leak or have other accidents, there was a low risk of inadvertent releases of HDD drilling fluids, and intervenor had a plan to contain such releases if they occurred. In addition, because LUBA had previously interpreted “protect” in the Goal 16 context to allow de minimis or insignificant impacts, and because low-intensity utilities were allowed in 7-NA and 13A-NA management units, which necessarily allowed the construction methods used to install them, the county concluded that the pipeline and HDD complied with the 7-NA and 13A-NA management objectives.

Because the Department of Land Conservation and Development objected to the application’s certification as consistent with the federal Coastal Zone Management Act, because the Department of Environmental Quality (DEQ) denied intervenor a permit under the federal Clean Water Act (CWA), and because both agencies critiqued intervenor’s reports as preliminary and requested further information, petitioners argued that the county’s conclusions that the pipeline and HDD would not alter the estuarine ecosystem and would protect natural resources were not supported by substantial evidence. LUBA agreed with intervenor that the fact that state agencies determined that intervenor’s reports were insufficient to support state and federal permits did not undermine the reports such that a reasonable person would not rely upon them to conclude that the county’s decision was “preceded by a clear presentation of the impacts of the proposed alteration,” as required by Goal 16, Implementation Requirement 1, or that the pipeline and HDD would be unlikely to have significant adverse impact on the estuary or its wildlife.

Under Statewide Planning Goal 6 (Air, Water and Land Resources Quality), “waste and process discharges from future development, when combined with such discharges from existing developments shall not threaten to violate, or violate applicable state or federal environmental quality statutes, rules and standards.” The county concluded that there was a “reasonable expectation” that subsurface, low-intensity utilities would be able to comply with state and federal environmental quality standards in the DDNC-DA management unit and that the PAPA therefore complied with Goal 6. Petitioners argued that the county erred by failing to evaluate whether the specific pipeline and HDD proposed by intervenor complied with Goal 6. Because the record included sufficient information to assess the waste and process discharges from intervenor’s proposed pipeline and HDD, LUBA disagreed with intervenor that the county was not required to apply Goal 6 directly to those specific developments. In addition, because DEQ had denied intervenor’s application for a CWA permit, LUBA agreed with petitioners that the record did not contain substantial evidence to support a “reasonable expectation” that intervenor’s proposed pipeline and HDD would be able to comply with state and federal environmental quality standards and therefore comply with Goal 6, even though the DEQ denial was without prejudice and intervenor would have been able to re-apply.

A portion of the pipeline would have crossed an Exclusive Farm Use (EFU) zone. Under ORS 215.283(1)(c), “[u]tility facilities necessary for public service” are allowed in EFU zones. Under ORS 215.275(1), a utility is “necessary for public service” if it must be sited in an EFU zone in order to provide the service. ORS 215.275(2) to (5) provide factors for determining whether a utility must be sited in an EFU zone in order to provide the service. However, under ORS 215.275(6), interstate natural gas pipelines authorized and regulated by the Federal Energy Regulatory Commission (FERC) are exempt from the requirements at ORS 215.275(2) to (5). The county concluded that, because intervenor’s proposed pipeline was an interstate natural gas pipeline, it was exempt from ORS 215.275(1) to (5). Because ORS 215.275(6) expressly exempts interstate natural gas pipelines only from ORS 215.275(2) to (5), petitioners argued that the county erred by failing to determine whether intervenor’s proposed pipeline provided a “public service,” as required by ORS 215.275(1). Because compliance with ORS 215.275(1) depends on the factors at ORS 215.275(2) to (5), LUBA concluded that the exemption at ORS 215.275(6) would be meaningless if interstate natural gas pipelines were required to comply with ORS 215.275(1). Accordingly, the county correctly concluded that, if the exemption at ORS 215.275(6) applies, then ORS 215.275(1) imposes no substantive requirements. Because FERC had previously issued a decision determining that intervenor’s proposed pipeline was subject to FERC’s jurisdiction and that it complied with federal law; because that determination was a legal conclusion subject to official notice rather than an adjudicative fact; because nothing required LUBA to review the legal correctness of FERC’s conclusion that the pipeline qualified as an “interstate natural gas pipeline,” even though the pipeline would have been located entirely within the state of Oregon; and because nothing indicated that ORS 215.275(6) did not apply unless FERC’s decision was final and unappealable, LUBA concluded that the county did not err in concluding that the exemption at ORS 215.275(6) applied.

A portion of the pipeline would have crossed the 7-Development Shorelands (7-D) management unit. The 7-D management objective provides that “development shall not conflict with state and federal requirements for the wetlands located in the northwest portion of this [management unit].” The county conditioned its approval on intervenor obtaining all “necessary” state and federal permits. Petitioners argued that the local government was required but failed to adopt findings that it was “feasible” for intervenor to obtain the CWA permit from DEQ upon re-application. In prior cases involving the same LNG terminal, LUBA held that, where a local government imposes a condition requiring an applicant to obtain state or federal permits, the local government need only find that such permits are not “precluded as a matter of law.” LUBA had also held that, where such a condition is imposed for concurrency reasons and is not imposed to satisfy an applicable criterion, the local government does not err by requiring the applicant to obtain “necessary” permits rather than identifying the specific permits that the applicant is required to obtain. Although the condition here was imposed to satisfy an applicable criterion, the 7-D management objective, LUBA still concluded both that the county did not err by not specifically requiring intervenor to obtain the CWA permit and that the county was only required to find that obtaining the CWA permit was not precluded as a matter of law. Because the DEQ denial was without prejudice, petitioners’ argument provided no basis for reversal or remand.

Many of petitioners’ remaining arguments were either undeveloped or were similar to arguments addressed in prior cases involving the same LNG terminal. For the reasons explained above, however, the county’s decision was REMANDED.