Gorge Commission finds gabions, culverts and drainage improvements meet definition of 'structure'; orders further inquiry on seeps and springs

The Columbia River Gorge Commission on Wednesday issued two decisions during a continued hearing in Friends of the Gorge v. James Housley (COA‑CD‑23‑01) in Clark County. First, the commission found that the hearings examiner erred in concluding that gabions, culverts and other improvements to the property's drainage system were not a structure under Clark County Code. Second, the commission found error in the examiner's conclusion that the applicant need not investigate whether multiple seeps and springs on the property create protected water resources, and directed further consideration.

What the commission decided

- Structure finding (motion passed): Commissioners voted to reverse the hearings examiner on whether gabions, culverts and related drainage improvements qualify as a structure under the county code. The motion, offered by Commissioner Robert Liberty, read in part: “I move that the hearings examiner erred in interpreting the code in finding that the gabions, culverts, and other improvements to the drainage system were not a structure.” The motion was seconded by Chair Michael Mills. The motion passed on roll call 7 yes, 3 no, 1 abstention (Commissioner Thompson abstained). Yes votes: Liberty; Corina Miller; Jim Morgan; Patu Pitt; Nathan Reynolds; Amy Weisfeld; Michael Mills. No votes: Elaine Aldrich; Laura Brennan Bissell; Valerie Fowler. Outcome: approved.

- Seeps and springs / burden of evidence (motion passed): Later, Commissioner Jim Morgan moved and Commissioner Nathan Reynolds seconded a motion that the hearings examiner erred by concluding the applicant need not investigate or evaluate whether the multiple seeps and springs on the property generate any water resource. That motion passed on roll call 10 yes, 1 no (Commissioner Elaine Aldrich voted no). Outcome: approved.

Why the commission acted

Commissioners who supported the first motion said the project’s drainage features — culverts, gabions, riprap and connected channels — fit the Clark County Code definition of "structure," which the hearings examiner had described as items that are “built up or composed of parts joined together.” Commissioner Liberty argued that the gabions, culverts and other constructed drainage components were “a piece of work artificially built up, composed of parts joined together,” language he cited from the county code during deliberations.

Commissioners who opposed reversing the hearings examiner urged caution and preferred remanding the matter to the hearings officer for a more fulsome interpretation exercise. Commissioner Elaine Aldrich explicitly recommended a remand for the hearing officer to reconsider specific county code definitions (including the definition of “structure”) and the context of the applicable site plan requirements before substituting the commission’s own legal conclusions.

On the second motion, several commissioners raised concerns about unequal access to evidence: the applicant had the ability to provide on‑site documentation and photographs that other parties could not empirically replicate without site access. Commissioners Reynolds and Morgan, both with backgrounds in ecology/field assessment, pointed to lidar and vegetation evidence in the record that they said showed persistent channels and vegetation consistent with a channel or wetland, arguing the record lacked sufficient analysis to support the examiner’s conclusion that seeps and springs produced no water resource.

Legal and procedural context

Commission counsel Jeff Litwack reminded the commission of its appellate role under the National Scenic Area Act: the commission reviews county land‑use decisions and may modify, terminate or set aside a county decision. Litwack also clarified that Robert’s Rules generally limits the commission to one pending motion at a time, though commissioners had discussed and agreed earlier in the meeting to trial a flexible “parking‑lot” approach for proposed but unseconded motions.

What the commission will do next

Counsel Litwack said staff will prepare a final written order reflecting the commission’s rulings; the commission must issue a final order within 90 days. Commissioners also discussed enforcement of a 1997 consent decree tied to this property; staff indicated enforcement questions and site‑inspection history could be addressed in subsequent steps.

Key quotes

“I believe the hearings officer erred in finding that this was not a structure,” Commissioner Robert Liberty said while pointing to the county code definition for “structure.”

“The commission is directed by the National Scenic Area Act to be an appellate body, to review county decisions,” counsel Jeff Litwack said when a commissioner asked whether the decision would change relationships with the counties.

Votes at a glance

- Motion 1 (structure): Mover — Commissioner Robert Liberty; Second — Chair Michael Mills; Vote — 7 yes (Liberty, Corina Miller, Morgan, Pitt, Reynolds, Weisfeld, Mills), 3 no (Aldrich, Brennan Bissell, Fowler), 1 abstain (Thompson); Outcome — approved.

- Motion 2 (seeps & springs / evidence): Mover — Commissioner Jim Morgan; Second — Commissioner Nathan Reynolds; Vote — 10 yes, 1 no (Aldrich); Outcome — approved.

Proper names and authorities cited in the hearing

- Clark County Code (sections cited in transcript: 42.40.050; code definition references at 42.40.0040 / 42.40.0070 in the hearing record) - National Scenic Area Act (statute cited as the commission’s directing statute) - 1997 consent decree referenced in the record

Ending / next steps

Staff will draft final orders implementing the commission’s rulings within the statutory timeframe and will consult commissioners if drafting questions arise. The commission also identified enforcement of the 1997 consent decree and any needed site inspections as follow‑up items for staff and counsel.