State officials wrongly granted a wetland fill permit to Walmart for a proposed super-store in The Dalles, the Oregon Court of Appeals ruled Wednesday in a precedent-setting case.
In issuing a fill permit to Walmart in 2013, the Oregon Department of State Lands (DSL) wrongly stated that it was “inconclusive” whether public need outweighed damage to wetlands, the court ruled.
The court said the state must make a finding that public need outweighs wetlands damage in order to issue a permit. The matter was remanded back to the DSL.
Karl Anuta, attorney for Citizens For Responsible Development in The Dalles, which appealed the granting of the permit, said it was a precedent-setting ruling that will change how the DSL does its work.
“They can’t issue any more permits that don’t have a finding that the public need predominates over the detriments,” Anuta said.
For many years, the DSL has interpreted state law as saying that it doesn’t have to make a finding that public need predominates, Anuta said.
He said the DSL’s approach “has been ‘Yeah, it’s inconclusive, but we’re going to issue anyways.’ This [ruling] clarifies that that’s not OK, ever. It doesn’t matter what kind of political pressure you’re getting or what kind of economic pressure you’re getting.”
“The court has said, very clearly, that you have to find 51 percent on the public benefit side, or you can’t issue,” Anuta said.
He said that’s actually been what the law requires since a state supreme court case was decided in 1979.
He said in the Walmart case, what is at risk of being lost was a “highly rare resource” called vernal pools, which are shallow depressions that fill during the rainy season.
In arguments to the appeals court in 2016, an attorney for the state argued that the law does not require a finding of majority public benefit, and that if it did, no private project would win a wetlands fill permit.
The state argued that relevant law only requires the DSL to “consider” public benefit. It also argued that public benefit rulings are only required if fill would go into an estuary. Anuta argued it applied to all waters, not just estuaries.
Ali Ryan Hansen, spokeswoman for DSL, said, “The department of state lands has received that ruling and is reviewing.”
John Nelson, a member of the citizen group that appealed the permit, said he was pleased with the ruling. “I’m pleased for the environment. I know that it’s not something that everybody in The Dalles is going to like that decision, but I think in terms of what it did for preserving our environment it’s a good thing.”
He hopes Walmart will say “just forget it and move on.”
Tiffany Wilson, Walmart’s director of communications, said, “We are reviewing the court’s decision and potential next steps.”
The 18.1-acre site sits on the northeast corner of the Exit 82 interchange along Interstate 84, on land formerly belonging to Northwest Aluminum, Nelson said.
The site has 49 of the rare vernal pools.
Nelson said people have dismissed the vernal pools as mere “puddles” that shouldn’t stop a project that would bring jobs and economic benefit to the community. He said they’re more than puddles. “Those wetlands have a big function under the earth, under there. They disappear on top, but that’s not what happens in the groundwater.”
The wetlands clean the water, he said, and they work with the hydrology of the water-shed of nearby Chenowith Creek.
In a statement, the Citizens group said, “This decision is a victory for environmental preservation and a referendum on agencies tasked with upholding the mantle of environmental protection.”
Anuta said he showed the court considerable evidence that wetland re-creation often fails. “Most of the time it doesn’t work because we’re not as sophisticated as nature is, and engineers just haven’t quite gotten it down.”
In issuing its permit, the DSL ruled that Walmart had proposed a sufficiently robust mitigation plan that included an element to adapt their approach if initial efforts weren’t working.
The Citizens group first appealed the permit’s issuance to an administrative law judge, which upheld the permit in 2014. The Citizens group appealed that decision to the Court of Appeals in late 2014.
Arguments were held in May 2016.
The state has 35 days from the ruling to appeal to the state supreme court, or 14 days to ask the appeals court to reconsider its own decision. Anuta said both requests are frequently made, but rarely granted.