At their March 15 meeting, the Port Orford City Council voted narrowly to provide the city’s treated effluent to Elk River Property Development for a golf course they propose to build north of the city. In a move that surprised most of the councilors and members of the audience, former mayor Jim Auborn read the following:

I make a motion to provide the city’s treated effluent to Elk River Property Development to be the first and main source of irrigation for the Pacific Gales Golf Course at no cost to ERPD with full recommendations for future engineering work to maintain the current ocean outfall viability, and in turn ERPD will allow the City of Port Orford the ability to cross their property adjacent to the sewer treatment plant, both water and sewer infrastructure, at no cost to the city for use of the property for the city’s infrastructure. This motion also directs city staff to work with the engineers to move forward with a secondary outfall project, including the ability to accommodate all outfall should the ocean outfall be no longer viable.     [from video of the meeting, https://archive.org/details/CityCouncilMtgP103152018; punctuation and emphasis supplied]

Discussion was contentious during the appearance of ERPD’s Troy Russell before the council and continued after the motion was made. State Representative David Brock Smith advocated in favor of the deal for effluent, and he stated that the effluent pipeline project had been fully approved, in spite of the appeal of Curry County’s decision that is now before LUBA.

Smith’s assurances were contradicted by local resident Penny Suess, who told the council:

The permit for the golf course expired in January 2016 because [ERPD] failed to ask for an extension. This was condition number 1 of the permit, but they overlooked or ignored this very basic, easy to fulfill requirement. Since the permit was granted, in 2015, ERPD has made at least two major changes to the plan for the golf course: They decided that they need reclaimed water to be piped from Port Orford for irrigation, and they decided to add housing. The permit was not modified to include these new components. Therefore, there is no single oversight mechanism on the project in the future. . . . Last fall, the county planning commission denied ERPD’s pipeline request. The decision was based on a cascade of dominoes resulting from the expiration of the permit. The commission determined that necessary state permits for piping reclaimed water could not be obtained when no approved project existed. A golf course is not an allowed use outright. It must have a valid permit. In other words, you can’t get approval to build a theoretical pipeline to a nonexistent, unpermitted golf course. When ERPD appealed, the Board of Commissioners upheld the appeal – but for the wrong reasons. The commissioners gave little attention to the underlying state laws and county zoning codes in making this decision. They relied on the same vague, unsubstantiated claims that ERPD and its supporters have been making for the past four years . . . On March 14, Oregon Coast Alliance gave notice to the BOC of their intent to appeal the pipeline decision to the Land Use Board of Appeals . . . This back-and-forth process is going to continue until all of the legal questions have been fully litigated. 

It was also said by Smith that no appeal to LUBA by ORCA has succeeded. However, of the four appeals to date, one did not move ahead because ERPD asked the county to withdraw the decision so they could refile the application; two were remanded back to the county (a remand for reconsideration is a win); and one was denied by LUBA. Yet Smith said: “ORCA is the most unreputable environmental for-profit nonprofit [sic] I’ve ever dealt with in the state legislature.”

Notice of Intent to Appeal

Pay particular attention to pages 5 through 10 of the NITA embedded above. The county failed to create a proper final order stating their decision and the right of appeal, and they failed to send it to all interested parties, as required by law. They created the final order and sent it out only after a request was made by ORCA – on the final day allowed for appeals.

Councilors Rohrbach, Webb, and Clancy voted NO on the motion; Auborn, Campbell, and Cox voted YES. Mayor Pogwizd broke the tie with a YES.

From the February 2018 Oregon Coast Alliance Newsletter :

“Elk River Property Development requested a permit from Curry County for a pipeline to carry effluent from the City of Port Orford to the proposed golf course at Knapp Ranch. During the hearings process in Fall 2017, planning commission members discovered that ERPD’s permit for the golf course, issued by the Board of Commissioners, expired. The permit required the applicants to apply for and receive a time extension within one year – by January 2016. They never did so, and the permit expired on its own terms two years ago. The planning commission therefore denied the ERPD pipeline application.

“Fast forward to February 2018. The applicants appealed to the Board of Commissioners. Unsurprisingly, they granted ERPD the permit for the pipeline [on February 14]. But it was very surprising indeed to hear the Curry County Planning Director, Carolyn Johnson, state openly that ERPD did not need a time extension. BOC decided simply to ignore the condition, trying to keep the original permit valid by fiat. But the law does not work like this; it has rules that must be followed.  [emphasis added]

“The applicants argue the permit is valid because Curry County ordinances under some circumstances allow ‘substantial construction’ on the project to stand in for getting a time extension. However, the County ordinance (CCZO 7.050.4) also allows the Director or Commission at its discretion to issue conditional use permits which must be periodically reviewed to make sure the permit conditions are being complied with. Using this provision, the BOC-approved permit required a time extension in one year, which the applicants failed to get. That is the project’s death knell – unless they apply for a new permit.

“But let’s look at the applicant’s argument – did they initiate development before the permit expired? ERPD argues that clearing part of the land of gorse, for which they spent approximately $16,500, and sinking two wells costing about $12,000, both in 2015, constitutes ‘starting development.’ This is very questionable.

“The 2015 golf course permit required the applicant to submit a wetland delineation report to the Department of State Lands for review and approval. The applicants never submitted one. DSL regulations warn applicants that if they begin work in wetlands without a permit, the landowner may be subject to enforcement action. It is very likely that in the gorse-clearing activities, ERPD violated this regulation.

“So what does this all mean? It all means that BOC approved an effluent pipeline based on an invalid permit, and gave the developers a green light which the law does not in fact allow them. This invalid permit problem will crop up again and again if ERPD continues to try and get other necessary permits to continue the long-expired project.”