HomeMy Public PortalAbout2023-11-17 - FINAL FPDP-23-01 MCC Notice of AppealNOTICE OF APPEAL FPDP-23-01
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Mailing Address: P.O. Box 1066, McCall, ID 83638
Physical Address: 706 North First St., McCall, ID 83638
STEVEN J. MILLEMANN (sjm@mpmplaw.com) TELEPHONE (208) 634-7641
AMY N. PEMBERTON (amy@mpmplaw.com) FACSIMILE (208) 634-4516
AMY K. HOLM (aholm@mpmplaw.com)
JEANNE C. BAUGHMAN (jbaughman@mpmplaw.com)
HANNAH R. DRABINSKI (hdrabinski@mpmplaw.com)
FREDERICK CORIELL (fcoriell@mpmplaw.com)
NOTICE OF APPEAL
November 17, 2023
City of McCall
McCall City Clerk and Council
216 East Park Street
McCall, Idaho 83638
Re: Appeal of FPDP-23-01 Floodplain Development Permit Application for River’s Crossing Lot
19 Block 2, Application filed January 23, 2023, Administrative Denial emailed March 31, 2023,
Planning & Zoning Commission Findings of Fact, Conclusions of Law, and Decision upholding
the Administrative Denial dated November 13, 2023
Dear Madam Clerk and Councilmembers:
On behalf of our clients Dwain and Cindy Sanders, and pursuant to McCall City Code
Section 3.15.09, this letter shall serve as an appeal of the McCall Area Planning and Zoning
Commission’s Findings of Fact, Conclusions of Law, and Decision for the Appeal of Denial of
Floodplain Development Permit Application FPDP-23-01 for River’s Crossing Lot 19 Block 2,
which is referred to herein as “P&Z’s Denial.” The Sanders request that a public hearing be set
before the McCall City Council for this to be heard on January 25, 2024, or thereafter, based on
the availability of the Sanders’ counsel. The Sanders respectfully request that McCall City
Council reverse the Planning and Zoning Commission’s decision and enter findings and
conclusions granting the Sanders’ Floodplain Development Permit Application.
NOTICE OF APPEAL FPDP-23-01
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Factual Background of FPDP-23-01
Dwain and Cindy Sanders own an approximately 5.3-acre vacant lot, Lot 19 in Rivers
Crossing Subdivision, that is adjacent to the North Fork Payette River (the “Property”). They
applied for FPDP-23-01 on January 23, 2023, as part of the Conditional Letter of Map Revision
(“CLOMR”) Application process to remove a 0.48-acre portion of the 5.3-acre Property from the
Special Flood Hazard Area (“SFHA”). This process, which is administered by FEMA and
recognized by McCall City Code in Title IX, Section 8, allows property owners who elevate
small areas of their property within the SFHA above the Base Flood Elevation to receive a letter
from FEMA stating the property’s changed elevation will meet minimum National Flood
Insurance Program Standards. To obtain a CLOMR, the Sanders need to place fill material on
0.48 acres of the Property, of which 0.15 acres are wetlands within the SFHA. Although the
remaining 0.33 acres contains no wetlands, it too is within the SFHA.
Because the fill will be placed on wetlands subject to federal jurisdiction under the Clean
Water Act (CWA), the Sanders must also obtain a Section 404 permit from the United States
Army Corps of Engineers (“Corps”). Section 404 of the CWA prohibits the discharge of dredged
or fill material into Waters of the United States (“WOTUS”), including wetlands subject to
federal jurisdiction, without a permit.1 If a project proposes minor discharges of dredged or fill
material that “will have only minimal individual or cumulative net adverse effects on the
environment,” the Corps may issue a Nationwide Permit.2 Because of the length of time this
process has taken, the Sanders are currently working with the Corps to either extend their
original Section 404 Nationwide Permit or apply for a new one. In either case, to comply with
the federal CWA, the Sanders will obtain a permit from the Corps and be subject to all of that
permit’s conditions prior to placing the proposed fill on the Property.
FDPD-23-01 seeks only to place fill on 0.48 acres of the Property. The Sanders do not
intend at this point to build any structures, but they have applied for a building permit to protect
their interest in obtaining FPDP-23-01. Although the Sander’s contend that P&Z’s Denial erred
in requiring a building permit to merely place fill on the Property, applying for a building permit
was necessary 1) to ensure all administrative remedies are exhausted in this process and 2) to
preserve all the issues that are outlined in more detail below, should this appeal be denied.
Clearly, if the Sanders or any future owner of the Property desire to construct a home, a
building permit would be required to ensure compliance with building standards and setbacks,
including the 50-foot Shorelines and River Environs Zone setback. Moreover, assuming placing
fill as contemplated in FPDP-23-01 is permitted, any future structures on the property would
need to be sighted approximately 400-feet away from the North Fork Payette River—much
farther away than any of the neighboring homes.
During this process, the Sanders engaged experts in wetlands and aquatic resources
management to assist in designing their proposal to minimize the risk of harm and mitigate
impacts to the greatest extent practicable. If allowed to proceed, and in addition to complying
1 33 U.S.C. § 1344(f).
2 33 C.F.R. § 330.1(d); see also 33 U.S.C. § 1344(e).
NOTICE OF APPEAL FPDP-23-01
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with the conditions of a Section 404 permit, the Sanders are committed to adhering to the
recommendations of these experts, including use of best management practices before, during,
and after placing the fill to preserve and protect water quality, aquatic resources, and the
remaining 2.55 acres of wetlands on the Property.
As noted, FPDP-23-01 was filed on January 23, 2023. On March 31, 2023, the
Floodplain Administrator denied FPDP-23-01. The Sanders appealed that decision before the
McCall Area Planning & Zoning Commission and a public hearing was held on September 12,
2023. The Commission issued a signed Findings of Fact, Conclusions of Law, and Decision on
November 13, 2023, which upheld the Administrator’s Denial. The Sanders contend that P&Z’s
Denial erred as a matter of law and undisputed fact and is arbitrary and capricious in several
significant ways, including the following:
1. P&Z’s Denial misinterprets McCall City Code because it erroneously assumes that a
building permit is required in addition to a floodplain development permit for the sole
action of placing fill within the Shoreline and River Environs Zone to facilitate the
CLOMR process.
2. The P&Z’s Denial is erroneous as a matter of law because the provisions of the
Shoreline and River Environs Ordinance do not apply to FPDP-23-01; and, even if
found to apply, P&Z’s conclusion that placing fill in wetlands unconditionally
constitutes “harm,” even if such fill is placed pursuant to a Section 404 permit, is
erroneous as a matter of law.
3. The record establishes that placing fill as proposed in FPDP-23-01 will not cause
“harm” as that term is defined in MCC 3.7.023(C)2.
4. P&Z’s Denial and any decision by the City of McCall upholding P&Z’s Denial
violates Article XII § 2 of the Idaho Constitution and Idaho Code § 50-301 because
Idaho law prohibits the City of McCall from imposing conditions that are more
stringent than those required by the federal Clean Water Act.
1. A building permit is not required to obtain FPDP-23-01 because the proposed
development activity is only to place fill material within the SFHA in aid of a
CLOMR Application and pursuant to a Section 404 permit.
P&Z’s Denial erred in requiring the Sanders to also obtain a building permit as part of the
floodplain development permit application process. Title IX of the McCall City Code states that
“[a] floodplain development permit shall be required in conformance with the provisions of this
chapter prior to the commencement of any development activities within the special flood hazard
areas determined in accordance with the provisions of section 9.8.043 of this chapter.”3 Under
MCC 9.8.043, “[a]pplication for a floodplain development permit shall be made to the
Floodplain Administrator prior to any development activities located within special flood hazard
3 MCC 9.8.033.
NOTICE OF APPEAL FPDP-23-01
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areas,” and must include, among a detailed list of other requirements, “a complete description of
all development to be permitted under the floodplain development permit,” which includes
“dredging” and “filling,” as well as “[c]ertification that all other local, State, and Federal permits
required prior to floodplain development permit issuance have been received.”4
Although P&Z’s Denial properly recognized FPDP-23-01 complied with most relevant
application requirements, it erred in finding that under MCC 9.8.043(A)1(g):
The applicant has not received a building permit as required by McCall Code
Section 3.8.02(G). Because the application has not demonstrated compliance with
the Shoreline and River Environs Requirements for Development (McCall City
Code Section 3.7.023), a building permit cannot be issued for the proposed
placement of fill.
This illogical interpretation of the City Code not only renders some of its provisions in
conflict with one another but reads others straight into oblivion. Such a construction of the Code
leads to the ridiculous and unlawful result that within the City of McCall a property owner is per
se forbidden from ever seeking a CLOMR if the CLOMR requires filling wetlands.
Courts generally presume validity of the actions of zoning boards, including when those
boards interpret their own zoning ordinances.5 However, when an ordinance is ambiguous—that
is, subject to more than one reasonable interpretation—“[c]onstructions that would lead to absurd
or unreasonably harsh results are disfavored.”6 “All sections of applicable statutes must be
construed together so as to determine the legislature’s intent,” and be read so that “no part is
rendered superfluous or insignificant.”7
There are two incorrect interpretations of McCall City Code at issue here: A) application
of the Shoreline Rivers and Environs Zone Requirements (“SREZ”) for Development to FPDP-
23-01, and B) application of the General Development Prohibited Uses to require a building
permit for placing fill in the SFHA. Each are addressed in turn below.
A. The Shorelines and River Environs Zone Requirements for Development only
apply when the applicant is “building”—in other words, constructing a
“structure”—within the SFHA.
Applying the Shoreline and Rivers Environs Zone Requirements for Development to
FPDP-23-01 is incorrect because those requirements only apply to the building of structures. The
purpose of the SREZ is to “regulate development along and alterations of . . . the banks and
immediate vicinity of the [North Fork] Payette River in order to protect and maintain water
quality, fish and wildlife habitat, edge and forest habitat, vistas, and public visual and physical
access.”8 “Development” for purposes of Title III, and which is also a word used extensively
4 MCC 9.8.043(A)2(a); MCC 9.8.043(A)1(g)
5 Chisholm v. Twin Falls Cnty., 139 Idaho 131, 136 (2003).
6 Payette River Property Owners Ass’n v. Bd. of Comm’rs of Valley County, 132 Idaho 551, 557 (1999).
7 Friends of Farm to Market v. Valley Cnty., 137 Idaho 192, 197 (2002).
8 MCC 3.7.020.
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throughout Title III, is defined as “[a]ny construction or activity that changes the existing
character or use of land upon which such construction or activity occurs.”9 Even so, the
permitted uses in the SREZ are “[a]ll those uses permitted in the underlying zones upon which
this zone is superimposed . . . provided they satisfy the special conditions set forth in this
chapter, except that . . . No building and no land filling shall be permitted within a floodway and
no building within an area of special flood hazard . . . unless the applicant complies with the
standards set forth in” Title IX, Chapter 8.10
Thus, the SREZ Ordinance narrows the definition of “development” for activities, and
specifically for activities occurring within the SFHA, to only those that involve “building.” The
next exception to permitted uses in the SREZ makes this point abundantly clear: “Any structure,
wholly or partially within this zone . . . and any part of which is within” one hundred fifty feet of
the highwater mark of the North Fork Payette River, “notwithstanding that portions of the
structure are not on land that is within this zone” is subject to the SREZ Requirements for
Development.
Obviously, the plain text of MCC 3.7.022(B) prohibits both “building” and “filling”
activities in the floodway, but it requires compliance with Title IX, Chapter 8 for “building”
within the SFHA. The ordinary meaning of the word “build” or its present participle form
“building” is “to form by ordering and uniting materials by gradual means into a composite
whole,” such as “birds building nests” or building new houses by the river.11 That is why one
does not build fill material on wetlands, rather such material is placed on wetlands—at least in
the ordinary sense of the word. The only other provision mentioning “fill” or “filling” in the
SREZ Ordinance are where it defines “harm” as “filling or dredging lake bottoms or wetlands”
and where it contemplates compliance with federal law with respect to WOTUS and the CWA.12
Clearly, the ordinance recognizes a distinction between development activities that are
“building” and development activities that are “filling,” which is necessary because the SREZ
Ordinance only applies to development activities proposing to build structures—and certainly
does not categorically prohibit filling within the SHFA.
What the Sanders propose here under FPDP-23-01 involves no building of structures
whatsoever, nor does it require a Conditional Use Permit. In its decision upholding the
Administrator’s denial, the P&Z Commission failed to abide by the Code’s limit on its power
because the Code provisions cited above apply the SREZ Development Requirement’s “Permit
Criteria” only to those activities that either require a Conditional Use Permit or a building permit
for purposes of the SREZ.13 FPDP-23-01 requires neither. Indeed, reading the specific activities
(“development, grading, or alteration of any land”) following the words “nor is any” in MCC
9 MCC 3.02.02.
10 MCC 3.7.022(B).
11 See https://www.merriam-webster.com/dictionary/build.
12 MCC 3.7.023(C)2(d).
13 MCC 3.7.022(B) states: “No conditional use or building permit shall be issued, nor is any development, grading,
or alteration of any land within this zone permitted, unless the applicant establishes to the satisfaction of the
commission or council in the case of a conditional use, or of the administrator in the case of a building permit that”
six enumerated criteria are met.
NOTICE OF APPEAL FPDP-23-01
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3.7.023(B) as defining the activities that require a building permit renders the critically important
first part of the sentence completely out of the ordinance. That part specifically declares the
limits on the commission’s, council’s and administrator’s power as to what permits can be held
subject to the SREZ Ordinance: building permits and Conditional Use Permits. P&Z’s Denial
enlarges the activities for which a building permit is required in the SREZ and thus aggrandizes
the power of the Administrator and Commission. Neither of them had any legal right to do this
because FPDP-23-01 only proposes to fill, and not build, wetlands within the SFHA. The
Administrator’s and Commission’s legal authority stem from and are strictly limited by the
language of the Code, which in this case is clear. As one notable jurist put it, the legislature “does
not hide elephants in mouse holes.”14 This maxim is true because applying a law or regulation
contrary to what it actually says is the essence of arbitrary government action.
Nor does the abrogation clause in MCC 9.8.035 change this result. Title IX, Chapter 8
does not “remove the necessity of compliance with any other laws, ordinances, regulations,” etc.
But because the development activity proposed in FPDP-23-01 is not covered by the SREZ
Ordinance, there is no non-compliance issue. Furthermore, since the SREZ Ordinance does not
apply, there can be no “conflict or overlap” where “more stringent or greater conditions shall
control.”
Finally, interpreting McCall City Code as in P&Z’s Denial leads to the absurd and
unreasonably harsh result that no floodplain development permit seeking to place fill in wetlands
in aid of a CLOMR Application can ever be obtained—regardless of whether such wetlands are
subject to federal jurisdiction and regardless of whether the applicant has a valid Section 404
Permit. Under the Administrator’s and P&Z’s erroneous interpretation, there simply would be no
possible way to take actions that remove one’s property from the SHFA in accordance with a
legitimate and often used federal process—not to mention pursuant to a federal Section 404
permit—intended to assist property owners who just so happen to own low-lying property
subject to an increased risk of flooding.
Because P&Z’s Denial applied the SREZ Ordinance to FPDP-23-01, which seeks only to
place fill material within the SFHA in aid of a CLOMR Application and pursuant to a Section
404 permit, its finding denying the permit on the basis that FPDP-23-01 failed to comply with
the SREZ Requirements for Development was unlawful, and in any event, arbitrary, capricious,
and not in accordance with a reasonable interpretation of the ordinance’s plain text.
B. FPDP-23-01 does not require first obtaining a building permit before placing fill
material in aid of the CLOMR Application process and pursuant to a 404 permit.
P&Z’s Denial found that the “applicant has not received a building permit as required by
McCall Code Section 3.8.02(G).” That section prohibits starting “construction work, including
grading, blasting, filling, trenching, tree removal, etc.” without a valid building permit. Notably,
although a building permit is required for “construction work” that includes “tree removal,” it is
not necessary for certain “Timber Harvest” activities that that would certainly fall within the list
following the word “including” in MCC 3.8.02(G). In that regard, another way to state the
14 Whitman v. American Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Scalia, J.)
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above-noted jurist’s maxim is that the greater includes the lesser, but not the other way around.
In other words, while a building permit necessarily covers a broad range of construction
activities, those activities individually do not trigger the requirement for a building permit.
Failure to adhere to this rule caused P&Z’s Denial to err by requiring a building permit for the
activity proposed in FPDP-23-01.
Under McCall City Code, it is “unlawful for any person to do, or cause or permit to be
done . . . any construction, improvement, extension, alteration or demolition of any building,
residence or structure, coming under the purview of this title, within the McCall area without
first procuring a permit authorizing such work to be done.”15 Of course, there is an extremely
high likelihood that constructing, improving, extending, altering, or demolishing any building,
residence, or structure would require undertaking activities that alter the land, such as by
grading, filling, dredging, scraping, etc. But just because a building permit is required before
undertaking construction of a building (the greater) that necessarily involves other activities (the
lesser) in furtherance of the greater in no way leads to the conclusion that a building permit is
required to conduct only the other lesser activities. This is especially true where, as here, the
McCall City Code nowhere requires a building permit for the standalone activity of “filling”
wetlands.
As is relevant here, a floodplain development permit is required before commencing
development activity within the SFHA. There is no mention whatsoever that a building permit is
also required prior to commencing development activities. True, “development activity” for the
purpose of Title IX, Chapter 8 includes “[a]ny activity defined as development which will
necessitate a floodplain development permit; such as: the construction of buildings, structures, or
accessory structures; additions or substantial improvements to existing structures; bulkheads,
retaining walls, piers, and pools; the placement of mobile homes; or the deposition or extraction
of materials; the construction or elevation of dikes, berms and levees.” But neither this
definition, nor the definition of “development” in Title IX, Chapter 8 have anything to do with
defining the activities that require a building permit. These definitions simply state when a flood
plain development permit is required, not when a building permit is required, and they certainly
do not define the critical question of whether a building permit is required in addition to a
floodplain development permit.
The inescapable conclusion is that P&Z’s Denial does not and cannot point to any
provision in the McCall City Code that requires a building permit for the activities proposed in
FPDP-23-01. Yes, the activity of placing fill upon wetlands if conducted in conjunction with
building a residence would be covered by an issued building permit (and others such as a Section
404 permit and floodplain development permit.) But there is no construction, alteration, or
demolition of a building proposed in FPDP-23-01. P&Z’s Denial is unlawful because it requires
a permit where no permit is required and denies FPDP-23-01 on that basis.
15 MCC 2.1.040.
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2. The P&Z’s Denial is erroneous as a matter of law and is arbitrary and capricious
because it unconditionally defines placing fill in wetlands as constituting “harm”
even if such fill is placed pursuant to a Section 404 permit.
As has been argued above, a building permit is not required for the activities
contemplated by FPDP-23-01, nor are the provisions of the SREZ Ordinance applicable to those
activities. Without in any way waiving those arguments, even if the provisions of the SREZ
Ordinance were found to be applicable to FPDP-23-01, the P&Z Commission’s conclusion that
any placement of fill in wetlands constitutes “harm” and therefore violates the SREZ Ordinance,
regardless of whether done pursuant to a valid Section 404 Permit, is erroneous as a matter of
law and arbitrary and capricious.
Unconditionally defining filling of wetlands as “harm” renders other processes
contemplated and required by the McCall City Code meaningless. The SREZ Ordinance is
intended to regulate development more stringently within a certain area of land adjacent to and
extending away from enumerated water bodies that are “distinguishing features of this area
making it a destination resort for tourists and summer residents.”
The principle flaw in the aforesaid legal conclusion in P&Z’s Denial is that it wholly
ignores the SREZ Ordinance’s Permit Criteria that require either a letter certifying “that no
wetlands related issues or issues related to fill of navigable waters were presented by the
proposed development; or that a section 404 permit has been issued or is forthcoming by the
corps of engineers, whichever is appropriate.”16 The SREZ Ordinance and Floodplain
Development Permit Ordinances both contemplate that, where federal jurisdiction exists over
jurisdictional Waters of the United States (“WOTUS”), compliance with those regulations is
sufficient to avoid a finding that filling of wetlands constitutes “harm” as defined in MCC
3.7.023(C)2.
Thus, a finding of harm cannot be made as to FPDP-23-01 provided that the Applicant
obtains a Section 404 permit prior to the placement of the fill. Doing so would render MCC
3.7.023(B)3 superfluous. In other words, there would be no reasons to make “city approval(s)
under this title and title IX of this code contingent upon all applicable section 404 permit
requirements being met.” If the city can simply deny a floodplain development permit
application for fill or a building permit to construct a building in the SFHA even if all applicable
404 permit requirements are met, then this section of Code is just a Trojan Horse to tempt
unsuspecting property owners seeking to develop property to comply with federal law only to be
collaterally attacked by the City of McCall’s denial of a permit that in all respects complies with
federal law.
Here, P&Z’s Denial upheld the Administrator’s Denial because it found the proposed
placement of fill will create harm as defined by McCall City Code Section 3.7.023(C)2. It listed
three bases, 3.7.23(C)2b, c, and d, for finding “harm.” Yet, each of these is an activity defined as
a “discharge” under Section 404 federal guidelines and therefore are permitted activities subject
16 MCC 3.7.023(B)3 (emphasis supplied).
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to issuance of a Section 404 permit.17 In this case, a Section 404 permit previously was issued,
and the Sanders are currently in the process of obtaining an extension or new Nationwide Permit.
Certainly, if the Section 404 permit is not issued, the City can revoke any approval to conduct
development activities within the SFHA under MCC 3.7.023(B)3. And it is always the case that
any applicant who caused the discharge of pollutants into WOTUS without a permit would be
subject to federal enforcement actions or the citizen suit provision in the CWA. Therefore, the
unconditional finding of harm has stymied all lawful procedure for FPDP-23-01 because P&Z’s
Denial fails to recognize the process set forth in McCall City Code for developing in the SREZ
subject to a duly issued Section 404 permit.
3. The P&Z Commission’s finding that placing fill as proposed in FPDP-23-01 will
cause “harm” is wholly unsupported by the record.
The record contains no evidence that the proposed placement of fill would “harm”
wetlands.18 While P&Z’s Denial dutifully regurgitates the language in MCC 3.7.03(C)2 as the
reason for denying FPDP-23-01, it fails to elaborate on how it reached these conclusions other
than to claim reliance on “Application materials, including detailed proposed construction
drawings and plans; Testimony from the Applicant and the Applicant’s Attorney; and Staff
testimony by Brian Parker, City Planner.”
A review of the record indicates that the only evidence provided by the City to support a
finding of harm are two statements by the City Planner that “the filling of lake bottom of
wetlands” is unequivocally harm and that “since they have not included what sort of building
they would like to do, and are just purely placing fill, any placement of fill or modification of
natural vegetation would be excessive because they are not proposing any sort of
development.”19 The City Planner then concluded “that is the extent of the reasoning” to find
harm.20
In contrast to the City’s dearth of evidence, the Sanders provided a thirty-three-page
expert report developed by Forsgren Associates, Inc. to analyze the extent of potential harm and
outline measures to minimize any environmental harm that could be posed by the placement of
the fill on the Property. Importantly, that report noted that the protection of water quality is (or
would be) addressed in the conditions of the Section 404 permit and that by implementing best
management practices (BMPs) FPDP-23-01 would presumptively comply with state water
quality standards, including Idaho’s Antidegradation Policy, by maintaining and supporting the
beneficial uses designated for the section of the North Fork Payette River that runs adjacent to
the Property. The report also found that the proposed BMPs would protect adjacent wetlands that
would remain undisturbed and prevent impermissible runoff from occurring. Additionally, the
placement of fill has been designed to protect higher functioning older forested wetlands on the
17 See 40 C.F.R. § 232.2; 33 U.S.C. § 1344(f).
18 See Spencer v. Kootenai Cnty., 145 Idaho 448, 456 (2008) (“Substantial and competent evidence is less than a
preponderance of the evidence, but more than a mere scintilla.”)
19 McCall Area Planning & Zoning, at 2:05:10 to 2:06:06, YOUTUBE (Sept. 12, 2023)
https://www.youtube.com/watch?v=Q49Um0A-IZo.
20 Id. at 2:06:07 to 2:06:10.
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Property and will primarily impact what are characterized as scrub/shrub wetlands, which
typically consist of woody vegetation that is less than six feet tall.
It is also important to recognize that the mere fact that a Section 404 permit can and will
be issued for the proposed placement of fill is substantial evidence that no harm, as that term is
defined by MCC 3.07.023(C)2, will occur. As stated in the previous section, that code provision
primarily defines “harm” as activities that may be conducted pursuant to a Section 404 permit,
which not only allows for the fill to be placed in wetlands subject to federal jurisdiction but also
imposes conditions on activities conducted before, during, and after placement of the fill.
Evidence of a Section 404 permit either issued or forthcoming is more than sufficient to
overcome the “extent of the reasoning” provided by the City Planner to conclude that FPDP-23-
01 would cause harm.
Because evidence in the record shows that no harm will be caused by FPDP-23-01,
P&Z’s Denial must be reversed.
4. P&Z’s Denial and any decision by the City of McCall upholding P&Z’s Denial
violates Article XII, § 2 of the Idaho Constitution and Idaho Code § 50-301 because
Idaho law prohibits the City of McCall from imposing conditions that are more
stringent than those required by the federal Clean Water Act.
P&Z’s Denial is based on the finding that FPDP-23-01 will create harm because:
the facts in the record show that the proposed development will involve excessive
clearing of natural vegetation or change of natural land forms within the area
between the water pool shore contour or high-water mark and the fifty-foot (50’)
setback line . . . the facts in the record, and specifically the proposed plans and
testimony of the applicant and City Staff show that the proposed development will
involve the removal, burial, or destruction in whole or part of boulders, sandy
beaches, rocky shores, or other features of the water pool shore contour or high
water mark, the land below the same, or the immediate upland edge and the filling
or dredging of lake bottom or wetlands.21
As discussed in Section 2 above, these three bases are all activities that if occurring into
WOTUS would require a Section 404 permit. However, since a Section 404 permit can be issued
for the proposed dredge and fill of wetlands, FPDP-23-01 meets the requirements of the CWA to
discharge dredged or fill material into WOTUS. Thus, the only way to interpret P&Z’s Denial of
FPDP-23-01 is as a determination that a Section 404 permit is insufficient to prevent “harm” as
required by the McCall City Code. Consequently, the McCall City Code necessarily imposes
conditions on the placement of fill in wetlands subject to federal jurisdiction that are more
stringent than what is required by CWA .
The CWA sets a national floor for the control of water pollution below which “States or
political subdivisions thereof” cannot go.22 The CWA does not restrict States from allocating
21 Appeal of FPDP-23-01 – Findings of Fact, McCall Planning and Zoning Commission, at 6 (Nov. 7, 2023).
22 33 U.S.C. § 1370.
NOTICE OF APPEAL FPDP-23-01
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water resources within their boundaries nor from regulating land use within their boundaries
even if the areas regulated are also subject to CWA jurisdiction.23 In short, although States and
political subdivisions thereof are prohibited from adopting or enforcing standards or limitations
respecting the “discharge of pollutants” (as that term is defined in 33 U.S.C. § 1362) into waters
of the United States that are “less stringent than” the CWA, they are free to impose more onerous
standards subject to the limitations of other state and federal law.24
In Idaho, there are two limitations on the power of a local government to impose more
stringent standards than the CWA prescribes: express and implied preemption under the state
constitution and Idaho Code § 50-301.
A. State law expressly preempts local governments from regulating discharges subject
to the CWA more stringently than the requirements of the CWA.
Article XII, § 2 of the Idaho Constitution permits an incorporated city or town to “make
and enforce within its limits, all such local police, sanitary and other regulations as are not in
conflict with its charter or with the general laws.”25 Similarly, Idaho Code § 50-301 allows cities
to exercise all powers and perform all functions of local self-government in city affairs as are not
specifically prohibited by or in conflict with the general laws or the constitution of the state of
Idaho.” While a city’s “ability to act is not confined to only those actions specifically mentioned
in LLUPA,” such ability is constrained when the legislature says so.26
With respect to the CWA, Idaho Code § 39-3601 is a general law that expressly prohibits
local governments from imposing more stringent conditions than what is required by the CWA:
It is the intent of the legislature that the state of Idaho fully meet the goals and
requirements of the federal clean water act and that the rules promulgated under
this chapter not impose requirements beyond those of the federal clean water act.27
Additionally, Idaho law provides:
The legislature cannot conveniently or advantageously set forth in this chapter all
the requirements of all of the regulations which have been or will be established
under the clean water act. However, any state permitting program must avoid the
existence of duplicative, overlapping or conflicting state and federal regulatory
systems. Further, the board may promulgate rules to implement a state permitting
program but such rules shall not impose conditions or requirements more stringent
or broader in scope than the clean water act and regulations adopted pursuant
thereto. Further, the department will not require Idaho pollutant discharge
23 Id.; see also Prosolino v. Nastri, 291 F.3d 1123 (9th Cir. 2002).
24 33 U.S.C. § 1370.
25 IDAHO CONST. art. XII, § 2.
26 Cisek v. Kootenai Cnty. Bd. of Comm’rs, 254 P.3d 24, 32 (Idaho 2011)
27 I.C. § 39-3601.
NOTICE OF APPEAL FPDP-23-01
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elimination system (IPDES) permits for activities and sources not required to have
permits by the United States environmental protection agency.28
When the City of McCall increases the regulatory burden beyond what is required by the
CWA , such as P&Z’s Denial of FPDP-23-01, it renders the City’s action “in conflict with . . . the
general laws” of the state of Idaho. Moreover, the authority to make standards under the CWA is
clearly delegated to the Board of Environmental Quality and IDEQ, not city governments.
Therefore, under both Article XII, § 2 and Idaho Code § 50-301, the City of McCall has acted
ultra vires because the legislature has limited the extent that local regulation can exceed the
requirements of the CWA.29
B. Even if the City of McCall is not expressly preempted, it is impliedly preempted
from regulating more stringently than what is required by the CWA.
The doctrine of implied preemption is a principle of long-standing in the State of Idaho. It
derives from the language in Article XII, § 2 that limits the police power of local governments to
making and enforcing laws that are not in conflict with laws enacted by the legislature and arises
when the legislature “intend[s] to occupy the whole field” of regulation.30
Implied preemption occurs where, despite the lack of specific language preempting or
empowering local government regulation, “the state has acted in the area in such a pervasive
manner that it must be assumed that it intended to occupy the entire field of regulation.”31 Intent
may be assumed where 1) state law indicates the subject matter is to be “regulated by means of
one, uniform statewide scheme enabling the state to enter into meaningful interstate agreements,”
or 2) the laws regulating the subject matter are a “comprehensive statutory scheme” that
“demands a statewide, rather than local approach.”32 Even if the ordinance and statute are
identical, “it is obvious that the field sought to be covered by the ordinance has already been
occupied by the state legislation.”33
The City of McCall is impliedly preempted from more stringently regulating activities of
property owners that are otherwise subject to (i.e., in the same field as) the permitting
requirements of the CWA. Title 39, Chapter 36 of the Idaho Code is a comprehensive legislative
scheme implementing Idaho’s obligations and duties under the CWA and indicates that the
subject matter is to be regulated to “avoid the existence of duplicative, overlapping or conflicting
state and federal regulatory systems.”34 If the City of McCall imposes more stringent conditions
on property owners who are otherwise subject to the requirements of the CWA, it necessarily
infringes on the State of Idaho’s ability to manage and enforce the state’s water quality standards
in a comprehensive and statewide manner that respects the fact that water ways flow through
28 I.C. § 39-175B.
29 See Black v. Young, 834 P.2d 304 (Idaho 1992).
30 See, e.g., Caesar v. State, 610 P.2d 517 (Idaho 1980); Clyde Hess Distributing Co. v. Bonneville Cnty., 210 P.2d
798 (Idaho 1949).
31 Envirosafe Services of Idaho, Inc. v. Owyhee Cnty., 735 P.2d 998, 1001 (Idaho 1987)
32 Id.
33 Id. at 1002.
34 I.C. § 39-175B.
NOTICE OF APPEAL FPDP-23-01
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multiple jurisdictions within and outside of the state. Therefore, the City of McCall is implied
preempted from more stringently regulating and thus denying FPDP-23-01 when the activities
proposed in FPDP-23-01 are permitted pursuant to a validly issued Section 404 permit.
Because both the state constitution and state law prohibit the City of McCall from
regulating more stringently than what is required by the CWA, P&Z’s Denial of FPDP-23-01 is
in violation of both constitutional and statutory provisions.
Conclusion
For the foregoing reasons, the Sanders respectfully request that the McCall City Council
REVERSE the McCall Planning and Zoning Commission’s decision and GRANT FPDP-23-01.
Sincerely,
Amy Holm
Steven J. Millemann
Fred Coriell