Summary of a Recent
Judicial Development in
Clean Water Act

Fill Material Added to Wetlands to Repair Farm Road
Exempted from Permit Requirements

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Owen v. Division of State Lands, 76 P.3d 158 (Or. Ct. App. 2003), the Oregon Court of Appeals reversed the decision of the Oregon Division of State Lands (DSL), which upheld a cease and desist order requiring landowners to stop adding fill materials to a marsh to create a road. The court of appeals held that the work was "maintenance," and thus exempt from permit requirements pursuant to Oregon Revised Statute § 196.905(4)(b).

Background

Owen, a landowner, owned a nonprofit corporation formed to protect wetlands. Id. at 159. The nonprofit purchased uninhabited property zoned exclusively for farm use. Id. To access the upland portion of the property, Owen had to travel a road that crossed a marshy area. Id. at 160. In late 1999 or early 2000, part of the road was submerged because of a silt issue in the Williamson River that caused an unprecedented large accumulation of water to flood the property. Id. Owen hired a contractor to place approximately 2,600 cubic yards of fill material on the road to remedy the flooding. Id. Prior to completion, the DSL issued a cease and desist order to stop the filling. Id. Owen sought a hearing on the matter in which the DSL concluded that no permit exemption applied. Id. Owen sought judicial review. Id.

Arguments

Owen argued that the proposed roadwork was exempt from the permit requirements of Or. Rev. Stat. § 196.801 under the exemptions provided by § 196.905(4)(b) and § 196.905(6). Id. at 159. Those exceptions apply to the maintenance of farm roads in a manner that does not adversely affect wetlands and maintenance of certain structures serviceable in the past five years in a manner that does not adversely affect wetlands to a greater extent than the original construction, respectively. Id.

The DSL reasserted its final order's position arguing that for the purpose of the exemption in Or. Rev. Stat. § 196.905(4)(b), "maintenance" did not include reconstruction. Id. at 160. According to the DSL, the only type of road reconstruction that was exempt from fill requirements was emergency reconstruction of recently damaged parts of currently serviceable roads as provided in ORS § 196.905(7). Id.

Analysis and Holdings

The Oregon Court of Appeals focused exclusively on the meaning of the term "maintenance" pursuant to Or. Rev. Stat. § 196.905(4)(b). Id. Because the Oregon state legislature had not defined the term "maintenance," the court looked to Webster's Dictionary, which defined the term as "[to] care [for, or] upkeep," or the labor of keeping something in a state of repair or efficiency. Id. at 161. The definition suggested that the thing being maintained has "a sound or functional baseline condition." Id. The court reasoned that the road's baseline state of repair or efficiency was a passable, above-the-water roadway, which was impaired by the rise in the marsh's water level. Id. The court concluded that "maintenance" included "restoration to the previously sound and efficacious condition of structures that recently have been lost" and held that the proposed filling work constituted farm road maintenance within the meaning of Or. Rev. Stat. § 196.905(4)(b). Id. at 164.

The case was decided on September 10, 2003.