Local Government Protection of Riparian Corridors: Goal 5 and Endangered Species

By Edward H. Trompke

In 1996 LCDC adopted a rule which requires local governments to inventory their stream corridors, determine the significance of such corridors, and to determine which to protect, which to partially protect, and which to open for development. This is the "Goal 5 Process," arising under Oregon's land use Goal 5.

The Goal 5 Process is independent of, and unrelated to the listing of salmon and steelhead as a threatened species under the Endangered Species Act. Because of timing, the two processes overlap and are being treated as one process. For example, Washington County and other local governments are working on its "Watersheds 2000" inventory of riparian corridors, which analyzes the natural resources of virtually all watersheds in the county. The information will be used by the county to help satisfy both ESA and Goal 5.

Metro, the regional government, saw a need to standardize all local government rules in the metro area. In December 1999, Metro proposed a "Streamside CPR" program to conserve, protect and restore riparian corridors throughout the metropolitan area. Buffers of approximately 200 feet (with some variation) were the norm. Streamside CPR was originally proposed to satisfy the Goal 5 Process, but has been changed to incorporate ESA standards.

In the Fall of 2000, MPAC, the arm of Metro that is made up primarily of elected officials of local governments decided to refocus the Streamside CPR process, and to make it better comply with the Goal 5 requirements of the state. In the meantime, Washington County, all of the cities in Washington County, Unified Sewerage Agency, and the Tualatin Hills Park and Recreation District, entered into inter-governmental agreements to study their riparian corridors in Watersheds 2000.

As a result, Metro is now determining which riparian corridors have "metropolitan significance," and what "metropolitan significance" means. The Washington County consortium is moving forward with an inventory and evaluation of all riparian corridors so that, after the riparian corridors have been identified, all local governments can balance the needs of protection and conservation against the needs of the community for housing, commercial use and other development.

Separate from, but related to these Goal 5 programs, local governments will consider the impacts of development on the habitat of threatened species of salmon and steelhead. These ESA considerations are not driven by Oregon's land use laws. But, local governments must make their ordinances comply with the 4(d) rule of National Marine Fisheries Service (NMFS).

Then, the local ordinances (either separately or together with a Metro ordinance) must be submitted to NMFS that a determination that the ordinances comply with the 4(d) rule NMFS has promulgated. If that determination is made, then development and building permits issued pursuant to the local rules will be deemed to comply with the 4(d) rule and any affect on the threatened species or their habitat will be permissible, so long as there are no violations of the local ordinances.

On December 4, 2000, NMFS reviewed Portland's development plan for the North Macadam District, on the Willamette River. NMFS will require that the city provide a 200 foot set back from the river as a minimum, and, in addition, provide wildlife corridor connections to upland habitat areas. (The area lies between the river and I-5 freeway.) NMFS referred to Metro's Streamside CPR plan for support of its 200 foot set back. In addition, NMFS wants the city to require other measures, including an "eco-roof" concept that has vegetation growing on the roof to absorb storm water. NMFS expressly asked that the concept be expanded to Parking garages. NMFS's reliance on Metro's work should not be surprising, given that staff have moved between the agencies.

Even compliance with the strict levels of NMFS's proposals will not, however, prohibit citizen lawsuits to stop development. Under the Endangered Species Act, citizen lawsuits may be commenced regardless of an agency's determination that the development complies with the 4(d) rule. The determination would be evidence that a judge could consider, but oftentimes development may be rendered uneconomic by such lawsuits. Since attorneys fees can be awarded to citizens who bring such lawsuits if a judge finds that there is noncompliance with ESA, the stakes can be very high.

For these reasons it is important that NMFS develop a structure to determine whether local ordinances comply with the 4(d) rule so that approvals can be granted. Then, judges must be persuaded that the plans are sufficient to deny neighbor lawsuits. However, NMFS states that it has no, or an inadequate structure in place to review local ordinances, and is unlikely to have one in the near future. Given the wholesale adoption of Metro's 200 foot corridors as a minimum, Until such time, approvals of individual projects will be sparingly issued.

This article is intended to inform the reader of general legal principles applicable to the subject area. It is not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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