The state has asked the Oregon Supreme Court to reverse an appeals court ruling against Walmart, saying it created a “dramatic change” in the way wetlands fill projects are considered.
In its petition for review, the Oregon Department of State Lands (DSL) said if the appellate court ruling stood, it would preclude “many, if not most” fill permits for private projects.
Last December, the Oregon Appeals Court ruled DSL wrongly granted a fill permit for a project to build a Walmart on private property in The Dalles.
The property, near Exit 82 off Interstate 84, has vernal pools, which are rare, seasonal wetlands. The appeals court ruled that the DSL must find that a public need for the project predominates over the harm to “waters of the state” before it can issue a fill permit.
In Walmart’s case, the DSL issued a fill permit after finding that the record was inconclusive on whether there was a public need or benefit for the project.
The DSL argued in its March 20 petition for review to the Supreme Court that state law says it “shall consider” public need for a project. The law does not say it “shall find” public need, it said.
The DSL said the plain text of the relevant law, the legislative history behind it, and a recent Supreme Court ruling show public need is a factor that must be considered, but is not a required finding.
“The Court of Appeals’ decision is contrary to the text of the statute and to DSL’s longstanding practice in assessing permit applications,” the petition stated.
Karl Anuta, attorney for the Citizens for Responsible Development in The Dalles, the group opposing Walmart, said of DSL’s petition, “It’s exactly the same arguments they made to the court of appeals and the court of appeals disposed of in their opinion, and astonishingly they make the same arguments they made to the court of appeals to the supreme court.”
He said the DSL also argues the ruling is inconsistent with a recent state supreme court decision, but the appellate court “specifically had a whole paragraph on why it wasn’t inconsistent with that decision, and DSL completely ignores that.”
Anuta said the state commonly petitions for review of appellate decisions, but it is uncommon for the supreme court to grant them.
Anuta said he didn’t feel the DSL petition justified a response and he wouldn’t be filing one. He said he would respond if the supreme court grants review.
The DSL is tasked with determining if fill projects are consistent with protection, conservation and the best use of water and that the project would not unreasonably interfere with the state’s policy to protect and preserve the use of state waters for navigation, fishing and recreation.
In the Walmart case, the DSL found that mitigation done by Walmart would minimize harm to wetlands.
The DSL argued that the Supreme Court should review the appellate decision “and determine whether such a dramatic change in the way those projects are considered is required.”
The DSL said the “plain terms” of the relevant law — Oregon Revised Statute 196.825 — ¬-say DSL “must consider” whether a project has a public need or benefit, and it “must determine” that the project is consistent with conservation of water resources.
But it is not required to find public need predominates over water loss in order to issue a fill permit, it said.
Walmart applied for the fill permit in 2009, and it was issued by the DSL in 2013. The group, Citizens for Responsible Development in The Dalles, (CFRD) challenged the permit issuance in a contested case hearing.
The DSL prevailed at that level, and CFRD appealed that to the Oregon Court of Appeals.
The DSL said the appellate court’s ruling carried “statewide importance.” It noted it issued or renewed over 500 removal-fill permits statewide and many concerned activities on private land involving wetlands, which are “extensive” in Oregon.
The DSL said the appellate decision may limit the ability of private landowners to develop property with wetlands, even if harm to the wetlands can be mitigated.
It noted the language that the DSL “shall consider” public need for a fill project has been in effect for 40 years and the DSL has never interpreted the language to “require a finding” of public need.
It said the state legislature has never required the DSL to find a public need for a project in order to issue a permit. Rather, the DSL may issue a permit when the record is inconclusive as to public need as long as harm to wetlands or waters is mitigated.
“Were it otherwise, then very few private projects could ever receive a removal-fill permit. There is no indication that the legislature intended that result,” the petition stated.
The DSL also said the ruling would affect existing land use plans with regard to wetlands.
Further, the DSL said the court case the appellate court relied on applied only to estuaries, not wetlands, and further, that wetlands were not added to the removal-fill statute until 1989.