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 proposed coal export terminal without the required water quality permit.
Decisions appealed
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.
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 (EIS) prepared by Cowlitz County and Ecology, we rejected Millennium’s 401 water quality certification.
Because we think 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.
December 3
Millennium's parent company Lighthouse Resources inc. petitioned for Chapter 11 bankruptcy.
March 17
The Washington Court of Appeals affirmed a decision by a Cowlitz County Hearing Examiner that denied shoreline permits for the Millennium Bulk Coal Terminal project.
February 25
The Washington Court of Appeals upheld a 2018 Thurston County Superior Court ruling that Ecology had not violated the Public Records Act.
January 21
Montana and Wyoming requested the U.S. Supreme Court hear a challenge to Ecology's denial of the Section 401 Water Quality Certification for Millennium. They claimed that the denial violated the Dormant Commerce Clause and the Foreign Commerce Clause of the U.S. Constitution.
January 8
The Washington State Supreme Court denied a petition from Northwest Alloys to review a Court of Appeals decision which upheld the Washington State Department of Natural Resources' denial of a sublease for Millennium's proposed coal terminal on the Columbia River.
December 24
Ecology filed a request for discretionary review with the Washington State Court of Appeals of the Oct. 4, 2019 Cowlitz County Superior Court decision. A response to that request for review was due from Millennium by Jan. 21, 2020. Argument on the motion was scheduled for Feb. 12, 2020.
October 4
Cowlitz County Superior Court denied Millennium's motion for summary judgement. It also denied Ecology's motion for summary judgement, but granted that the Pollution Control Hearings Board's decision upholding the denial of the 401 water quality certification was still binding in this case. Parties were asked to submit briefings.
August 20
The Washington State Court of Appeals reversed the Cowlitz County Superior Court decision that concluded that the Washington Department of Natural Resources acted arbitrarily and capriciously when they denied Millennium an aquatic lands sublease on the Columbia River.
August 9
Cowlitz County Superior Court dismissed Millennium’s claim for review of the Pollution Control Hearings Board decision. Millennium’s remaining two claims were set for hearing on October 4, 2019.
May 10
Lighthouse filed appeal of District Court’s stay order in the Ninth Circuit Court of Appeals.
April 1
U.S. District Court in Tacoma ruled in favor of Ecology’s motion to dismiss the portions of the plaintiff's case relating to the Foreign Commerce Clause.
December 11
U.S. District Court in Tacoma sided with Ecology and dismissed plaintiff's claims that the water quality permit denial was preempted by two federal laws: the Interstate Commerce Commission Termination Act, and Ports and Waterways Safety Act.
November 27
Cowlitz County and the Washington State Department of Health issued its Health Impact Statement that outlines the health effects the proposal would have had on residents of Longview, Cowlitz County.
November 21
Washington State Attorney General sent a letter expressing concern to U.S. Army Corps of Engineers' Lieutenant General about the decision to restart the federal permitting and environmental review process.
October 23
U.S. District Court dismissed claims against Washington Department of Natural Resources Commissioner Hilary Franz in the Lighthouse Resources lawsuit filed in U.S. District Court against Franz, Ecology Director Maia Bellon, and Governor Jay Inslee.
October 12
Washington State Court of Appeals agreed to Ecology’s request to hear Millennium’s appeal of the Shoreline Hearings Board’s decision, which upheld Cowlitz County’s denial of shoreline permits.
September 6
Millennium filed petition with Cowlitz County Superior Court for review of the Pollution Control Hearings Board’s decision upholding Ecology’s Clean Water Act Section 401 water quality permit denial.
August 30
Washington State Court of Appeals agreed to hear the appeal of Thurston County Superior Court’s ruling in favor of Ecology on the public records lawsuit.
Millennium withdrew its appeal of Cowlitz County Superior Court’s decision to dismiss Millennium’s appeal of Ecology’s Clean Water Act Section 401 water quality permit denial.
August 17
Millennium appealed Thurston County Superior Court’s ruling in favor of Ecology on the public records case to the Washington State Court of Appeals.
August 15
Washington Pollution Control Hearings Board ruled in favor of Ecology and upheld Ecology’s water quality permit denial.
June 8
Thurston County Superior Court ruled in favor of Ecology and dismissed Millennium’s public records lawsuit.
May 30
U.S. District Court decided to proceed with additional factual discovery in Lighthouse Resources’ lawsuit against Ecology Director Maia Bellon, Washington Department of Natural Resources Commissioner Hilary Franz, and Governor Jay Inslee.
May 18
Millennium appealed the Washington Shoreline Hearings Board’s ruling upholding the Cowlitz County hearing examiner’s denial of two shoreline permits to Cowlitz County Superior Court.
April 20
Washington Shoreline Hearings Board upheld the denial of the shoreline permits.
March 27
Millennium appealed Cowlitz County Superior Court’s dismissal of the water quality permit denial to the Washington State Court of Appeals.
March 2
Cowlitz County Superior Court dismissed Millennium’s appeal of the water quality permit denial, affirming that the appeal must first be heard by the Pollution Control Hearings Board.
January 3
Millennium’s parent company, Lighthouse Resources, filed lawsuit in U.S. District Court against Ecology Director Maia Bellon, Washington Department of Natural Resources Commissioner Hilary Franz, and Governor Jay Inslee.
December 4
Millennium appealed Cowlitz County’s shoreline permits denial to Washington Shoreline Hearings Board.
Millennium filed public records lawsuit against Ecology in Thurston County Superior Court.
November 14
Cowlitz County denied two shoreline permits to Millennium.
October 24
Millennium appealed Ecology’s water quality permit denial to Cowlitz County Superior Court and to Washington’s Pollution Control Hearings Board.
Washington Department of Natural Resources denied property owner NW Alloy’s "Consent to Place Improvements" request for site improvements on aquatic lands lease.
September 26
Ecology denied the water quality permit to Millennium.
July 19
Cowlitz County issued the critical areas permit to Millennium.
June 22
Millennium withdrew its water quality permit application and reapplied for the permit to extend the review window.
May 22
Millennium applied for a critical areas permit from Cowlitz County.
April 28
Cowlitz County and Ecology issued final Environmental Impact Statement under the State Environmental Policy Act.
July 2016 – April 2017
Cowlitz County and Ecology considered public comment, conducted additional analyses, and developed the final Environmental Impact Statement for the proposed project, with help from a third-party contractor hired by Cowlitz County.
February 2
NW Alloys and Millennium appealed to Cowlitz County Superior Court the Washington Department of Natural Resources’ denial of the aquatic lands sublease to Millennium.
January 5
Washington Department of Natural Resources denied request from NW Alloys to sublease aquatic lands to Millennium.
July 18
Millennium reapplied for a water quality permit from Ecology.
June 13
Cowlitz County and Ecology received an unprecedented 267,000 public comments on the draft Environmental Impact Statement.
April 29
Cowlitz County and Ecology published a draft Environmental Impact Statement for public review and comment.
March 2014 – April 2016
Cowlitz County and Ecology developed the draft Environmental Impact Statement for the proposed project with help from a third-party contractor hired by Cowlitz County.
August 2013 – February 2014
Cowlitz County and Ecology received an unprecedented 215,000 comments during the scoping public review period, and determined the scope of what should be studied as part of the state and federal environmental review processes.
August 16
Cowlitz County, Ecology, and U.S. Army Corps of Engineers began the scoping period and soliciting comments on what should be studied as part of the state and federal environmental review processes.
August 9
Cowlitz County determined the project would have significant environmental impacts and that a full environmental review was required. Ecology agreed.
February 6
Millennium withdrew its request for a water quality permit from Ecology, indicating that it would resubmit at the end of the environmental review process.
April 26
Cowlitz County requested Ecology’s help as a co-lead to conduct an environmental review and develop an Environmental Impact Statement that would follow the Washington State Environmental Policy Act (SEPA).
February 22-23
Millennium Bulk Terminals applied to Cowlitz County, Ecology, U.S. Army Corps of Engineers, and others for permits to export 44 million metric tons of coal per year.
Frequently asked questions
No, Millennium cannot build the largest coal export terminal in North America without the required water quality permit.
The water quality permit was one of 23 required permits or approvals needed from local, state, and federal agencies in order to build the project.
To date, Millennium has been denied three separate permits:
Two shoreline permits from the Cowlitz County Hearing Examiner.
One water quality permit from us.
Additionally, the Washington Department of Natural Resources denied Millennium a lease of the underwater land required to build and operate the proposed facility.
Although the Army Corps of Engineers announced that it will restart its permitting process on the project, according to the federal Clean Water Act, it can’t legally issue a federal water quality permit after a state has denied a water quality permit. It’s not clear what the Corps hopes to accomplish by continuing its work.
We denied the water quality permit because the project would have caused unavoidable, harmful impacts to the Columbia River and the environment.
Millennium also failed to provide reasonable assurance that it would, or even could, implement the identified mitigation steps necessary to protect clean water.
The largest proposed coal terminal in North America would have posed a significant threat to the Columbia River's water quality. The project would have required:
Filling 24 acres of wetlands.
Dredging 41.5 acres of the Columbia riverbed.
Installing 537 pilings in the riverbed for a new trestle and docks.
Yes. Since 1972, the federal Clean Water Act has given states the authority to evaluate the water quality impact of projects applying for federal permits, including using state environmental laws like Washington’s State Environmental Policy Act (SEPA).
In addition to the water quality impacts, the project would have caused a long list of unavoidable impacts, like:
Increased cancer risk from diesel pollution.
Worsened traffic congestion and delayed emergency response times.
Increased vessel traffic on the Columbia River.
Limited tribal fishing access.
We denied the water quality permit with prejudice — a legal term that means that the decision is final and the applicant cannot reapply.
Yes. Millennium appealed our permit denial to an independent hearings board, Superior Court, and a federal district court. To date, all legal bodies that have reviewed the case have ruled in our favor. (See our project timeline for specific rulings.)
We are confident in the strong science and objective process that led to our decisions and think that our denial will continue to stand up in state and federal courts.
Millennium has filed five lawsuits against Ecology and one against Washington Department of Natural Resources. Every legal body that has made a final decision on permit denials in these cases has affirmed the permit decisions.
Federal lawsuit: Lighthouse Resources vs. Governor Jay Inslee, Washington Department of Natural Resources Commissioner Hilary Franz, and Ecology Director Maia Bellon. Millennium’s parent company alleged the state, in denying required permits, violated the foreign and interstate commerce clause, and preempted both the foreign affairs doctrine and the federal railroad and vessel law. U.S. District Court in Tacoma ruled in favor of Ecology’s motion to dismiss the portions of the plaintiff's case relating to the Foreign Commerce Clause. Lighthouse filed appeal of District Court’s stay order in the Ninth Circuit Court of Appeals.
Superior Court lawsuit challenging Ecology’s denial of water quality permit: After Ecology denied the permit, Millennium appealed to Cowlitz County Superior Court. The court dismissed the case saying the appeal would properly be heard by the Pollution Control Hearings Board.
State lawsuit challenging Ecology’s denial of water quality permit: After Ecology’s denial was upheld on appeal to the Pollution Control Hearings Board, Millennium appealed the decision to Cowlitz County Superior Court. Superior Court dismissed Millennium’s claim for review of the Pollution Control Hearings Board decision. Millennium’s remaining two claims were set for hearing on October 4, 2019.
State lawsuit challenging Cowlitz County’s denial of shoreline permits: After Cowlitz County’s denial was upheld on appeal to the Shoreline Hearings Board, Millennium appealed the decision to Cowlitz County Superior Court. Ecology then asked and the Washington Court of Appeals agreed to hear the case. A hearing is pending.
State public records lawsuit against Ecology: Millennium alleged Ecology failed to comply with Washington’s Public Records Act to Thurston County Superior Court. This court ruled in favor of Ecology and dismissed all counts of Millennium’s complaint. Millennium appealed the Superior Court decision to the Court of Appeals. A hearing is pending.
State lawsuit challenging Washington Department of Natural Resources’ sublease denial: The Washington Department of Natural Resources (DNR) denied an aquatic lands sublease to Millennium, which was appealed to and reversed by Cowlitz County Superior Court. DNR appealed the Superior Court decision to the Court of Appeals. The Court of Appeals reversed the Superior Court decision and affirmed DNR's denial of the sublease for the coal terminal on the Columbia River. The Washington State Supreme Court denied a petition to review the Court of Appeals decision that affirmed DNR's denial of the sublease for the coal terminal.
No, the Environmental Impact Statement (EIS) does not say that. The EIS says that some impacts to water quality could have been reduced, but not eliminated. Nothing in the EIS holds the company accountable for implementing those impact reduction measures. The EIS is not a permit or an approval. It’s a scientific document developed to inform permit decisions.
The permit denial details specific damages to water quality.
A Health Impact Study conducted by Cowlitz County and the Washington Department of Health confirmed the project would have detrimental effects on people locally.
