Federal court rules in favor of Ecology – Dec. 11, 2018
A U.S. District Court dismissed portions of a lawsuit on Tuesday, Dec. 11, that were filed against Ecology by Lighthouse Resources Inc., a company seeking to build and operate a coal export terminal (Millennium Bulk Terminal) on the Columbia River. Lighthouse argued two federal laws preempted Ecology’s ability to deny a water quality permit for the proposed terminal.
Federal District Court Judge Robert Bryan found that those federal laws do not apply to the proposal and therefore would not preempt Ecology’s authority under the federal Clean Water Act to deny a water quality certification for such projects.
Millennium Bulk Terminals denied water quality permit
In September 2017, Ecology denied a water quality permit because of the project’s potential harm to the Columbia River and surrounding environment.
Under the federal Clean Water Act, Millennium cannot build the a proposed coal export terminal without the required water quality permit.
Millennium appealed our permit denial to Cowlitz County Superior Court and the Washington State Pollution Control Hearings Board. Superior Court dismissed Millennium's appeal, while the Hearings Board upheld Ecology’s decision in August 2018. Millennium has since appealed the Hearings Board decision to Cowlitz County Superior Court where a court date is set for December 2018.
Basis for denying the water quality permit
Since 1972, Section 401 of the federal Clean Water Act has given states the responsibility to issue a water quality certification for projects requiring federal permits or licenses. The Clean Water Act directs states to use both federal and state standards in determining whether there is reasonable assurance that a project will not harm water quality.
We reviewed Millennium Bulk Terminals' Section 401 application and found that the proposed project would cause irreparable and unavoidable harm to the Columbia River. Specifically, our review found that the project would:
- Require driving 537 pilings into the riverbed.
- Destroy 24 acres of wetlands.
- Eliminate five acres of aquatic habitat.
- Increase ship traffic on the Columbia River by 1,680 trips a year.
- Impair tribal access to protected fishing sites.
Based on these findings and the broader unavoidable significant environmental impacts found in an Environmental Impact Statement prepared by Cowlitz County and Ecology, we rejected Millennium’s 401 water quality certification.
Because we believe the environmental harm potentially caused by the project cannot be mitigated, we rejected the application “with prejudice,” meaning that the company cannot reapply to build and operate the same proposal.