Or. Shores Conservation Coal. v. Coos Cnty., LUBA No. 2020-002
| Decision Date | 04 May 2021 |
| Docket Number | LUBA No. 2020-002 |
| Parties | OREGON SHORES CONSERVATION COALITION, Petitioner, and CITIZENS FOR RENEWABLES, Intervenor-Petitioner, v. COOS COUNTY, Respondent, and JORDAN COVE ENERGY PROJECT L.P., Intervenor-Respondent. |
| Court | Oregon Land Use Board of Appeals |
FINAL OPINION AND ORDER
Appeal from Coos County.
Anuradha Sawkar filed a petition for review and a reply brief and argued on behalf of petitioner. Also on the brief was Crag Law Center.
Tonia Moro filed a petition for review and a reply brief and argued on behalf of intervenor-petitioner.
No appearance by Coos County.
Seth J. King and Steven L. Pfeiffer filed the response briefs. Also on the briefs were Nikesh J. Patel and Perkins Coie LLP. Seth J. King argued on behalf of intervenor-respondent.
Rick Eichstaedt filed an Amicus Brief on behalf of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians.
RYAN, Board Member; RUDD, Board Chair; ZAMUDIO, Board Member, participated in the decision.
You are entitled to judicial review of this Order. Judicial review is governed by the provisions of ORS 197.850.Opinion by Ryan.
Petitioner appeals a county board of commissioners decision approving reasons exceptions, zone changes, and conditional use permits to widen an existing navigation channel in the Coos Bay Estuary.
The county and other local governments have approved various applications related to intervenor-respondent Jordan Cove Energy Project L.P.'s (JCEP's) proposal to construct a natural gas liquefaction facility and liquefied natural gas (LNG) export terminal (LNG terminal) at Jordan Cove, located within the Coos Bay Estuary.1 See, e.g., Oregon Shores Conservation Coalition v. City of North Bend, ___ Or LUBA ___ (LUBA No 2019-118, July 17, 2020); Oregon Shores Conservation Coalition v. Coos County, ___ Or LUBA ___ (LUBA Nos 2019-137/2020-006, Dec 22, 2020). Jordan Cove is located approximately seven miles inland from the mouth of the estuary. To export the LNG, JCEP proposesto use large, deep-draft LNG tankers, which will access the terminal site via an existing federal navigation channel. The LNG tankers will transit the estuary via the navigation channel approximately 240 times per year (120 tankers per year going to and from the ocean, for a total of 240 transits).
State law generally requires that professional pilots direct the navigation of large commercial vessels entering or exiting the estuary, including the proposed LNG tankers. ORS 776.405(1)(a) (); ORS 776.025(3) (). Pilots board an inbound or outbound vessel and then direct the vessel safely through the estuary via the navigation channel. However, as discussed below, in certain weather conditions, including fog and high winds, the pilots may deem it unsafe to pilot a vessel through the navigation channel due to existing constraints at several points along the channel.2
The existing navigation channel is 300 feet wide and dredged to a depth of 37 feet. The undredged areas of the estuary average approximately 10 feet in depth. The channel enters the estuary between two jetties along a roughly east-west axis. Shortly after the entrance, at River Mile 2, the existing channel doglegsnorth, requiring inbound ships to make an approximately 95-degree turn, followed immediately by an approximately 21-degree turn in the opposite direction. Further north, the channel turns west in two places, at River Miles 4 and 6. At each of these three turns, JCEP proposes to widen the existing channel by dredging the shallow areas adjacent to the channel from their existing depth to the same 37-foot depth as the channel. These three proposed channel expansions are known in the record and decision as Navigational Reliability Improvement (NRI) #1, #2, and #3.3 According to testimony submitted by thelocal pilots association, the NRIs would increase the operational window to safely transit any vessel by approximately 20 percent.
NRI #1 is approximately 10.51 acres in size and is located adjacent to the dogleg in the existing navigation channel near the mouth of the estuary, in an area zoned 59-Conservation Aquatic (59-CA).4 The 59-CA zone is a conservation management unit.5 The management objective for the 59-CA zone is to conservethe aquatic resources in the zone. Maintenance dredging of existing facilities is allowed as a conditional use in the 59-CA zone, but new dredging is not allowed absent an exception to Statewide Planning Goal 16 (Estuarine Resources). We discuss Goal 16 and associated regulations in more detail below.
NRI #2 is approximately 10.53 acres in size and is located adjacent to the channel at River Mile 4, in an area zoned 2-Natural Aquatic (2-NA).6 The 2-NA zone is a natural management unit. The 2-NA zone does not allow any dredging, even maintenance dredging, absent an exception to Goal 16.
NRI #3 is approximately 2.18 acres in size and is located adjacent to the channel at River Mile 6, in an area zoned 3-Development Aquatic (3-DA).7 The3-DA zone is a development management unit. The 3-DA zone allows new and maintenance dredging as a conditional use. However, for reasons that are unclear to us, JCEP seeks to rezone NRI #3 from one development management unit to a different development management unit.
JCEP applied to the county to approve (1) post-acknowledgment plan map and text amendments based on proposed reasons exceptions to Goal 16 for NRI #1 and #2, (2) zoning map changes to Deep-Draft Navigation Channel (DDNC-DA) for all three NRI sites, and (3) conditional use permits (CUPs) to dredge all three NRI sites. The county hearings officer recommended approval. The county board of commissioners conducted hearings and, on December 18, 2019, adopted an ordinance approving the applications. This appeal followed.
The Confederated Tribes of Coos, Lower Umpqua and Siuslaw Indians (Tribes) move to file an amicus brief supporting the petition for review and providing the Tribes' perspective on a comprehensive plan policy that requires coordination with the Tribes. OAR 661-010-0052. There is no opposition to the motion and it is granted.
Petitioner and intervenor-petitioner Citizens for Renewables (Citizens) each filed reply briefs that conform to OAR 661-010-0039, which limits reply briefs to 1,000 words unless LUBA grants permission for a longer brief. Citizens also filed an overlength, 2,750-word reply brief and a motion requesting that we accept the overlength reply brief. We conclude that a longer reply brief would not materially aid resolution of the issues raised in this appeal. Accordingly, Citizens' motion to file an overlength brief is denied. We will consider petitioner's and Citizens' conforming reply briefs.
JCEP requests that we take official notice of a letter from the National Park Service (NPS) returning the Tribes' proposed nomination of the Q'alya ta Kukwis shichdii me Traditional Cultural Property Historic District to the National Register of Historic Places. JCEP argues that the NPS letter is relevant to matters raised by the Tribes.
ORS 40.090(2) defines "[l]aw judicially noticed" to include "[p]ublic and private official acts of the legislative, executive and judicial departments of this state, the United States, any federally recognized American Indian tribal government and any other state, territory or other jurisdiction of the United States." Petitioner opposes the motion, arguing that, even if the NPS letter is an "official act," JCEP does not explain what relevance that action has to any issue in this appeal.
The Tribes' amicus brief mentions the Tribes' proposed nomination of the historic district only to establish that the Tribes have an interest in protecting cultural resources in the estuary, which in turn supports the Tribes' status as amicus. Because no party challenges the amicus brief or the Tribes' status as amicus, we agree with petitioner that the NPS letter has no apparent relevance to any issue in this appeal. Accordingly, JCEP's motion to take official notice is denied.
Citizens requests that we take official notice of two state agency decisions: (1) a May 6, 2019 Oregon Department of Environmental Quality (DEQ) decision denying without prejudice JCEP's request for a water quality certification under the federal Clean Water Act (CWA) and (2) a February 19, 2020 decision by the Oregon Department of Land Conservation and Development (DLCD) objecting to JCEP's certification of consistency with the federal Coastal Zone Management Act (CZMA).
JCEP does not dispute that the DEQ and DLCD decisions are types of "official acts" subject to judicial notice under ORS 40.090(2). However, JCEP argues, and we agree, that judicially cognizable state agency actions cannot be cited to establish facts for the purpose of supporting or challenging findings of compliance with applicable land use approval criteria. Tualatin Riverkeepers v.ODEQ, 55 Or LUBA 688 (2007). With that caveat, Citizens' motion to take official notice is granted.
Citizens also requests that we take into evidence the DEQ and DLCD decisions plus two other documents: (1) JCEP's notice of appeal of DLCD's objection to the CZMA consistency certification to the United States Department of Commerce and (2) JCEP's petition to the Federal Energy Regulatory Commission seeking a waiver of the requirement to obtain a CWA permit. OAR 661-010-0045.8 As grounds for the motion, Citizens argues that the four documents are evidence of "procedural irregularities not shown in the...
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