S. HRG. 115–344 

HEARING TO EXAMINE IMPLEMENTATION OF 

CLEAN WATER ACT SECTION 401 AND 

S. 3303, THE WATER QUALITY CERTIFICATION 

IMPROVEMENT ACT OF 2018 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

AUGUST 16, 2018 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S. 3303, THE 

WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018 

U.S. GOVERNMENT PUBLISHING OFFICE

31–623 PDF WASHINGTON : 2019

S. HRG. 115–344 

HEARING TO EXAMINE IMPLEMENTATION OF 

CLEAN WATER ACT SECTION 401 AND S. 

3303, THE WATER QUALITY CERTIFICATION 

IMPROVEMENT ACT OF 2018 

HEARING 

BEFORE THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

AUGUST 16, 2018 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.govinfo.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

SECOND SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware, 

Ranking Member 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

CHRIS VAN HOLLEN, Maryland 

RICHARD M. RUSSELL, Majority Staff Director 

MARY FRANCES REPKO, Minority Staff Director 

(III) 

C O N T E N T S 

Page 

AUGUST 16, 2018 

OPENING STATEMENTS 

Barrasso, Hon. John, U.S. Senator from the State of Wyoming .......................... 1 

Gillibrand, Hon. John, U.S. Senator from the State of New York ...................... 3 

Daines, Hon. Steve, U.S. Senator from the State of Delaware ............................ 18 

WITNESSES 

CJ Stewart, Board Director, National Tribal Energy Association ....................... 20 

Prepared statement .......................................................................................... 22 

Responses to additional questions from: 

Senator Carper .......................................................................................... 25 

Senator Merkley ........................................................................................ 28 

Brent Booker, Secretary-Treasurer, North America’s Building Trades Unions . 30 

Prepared statement .......................................................................................... 32 

Response to an additional question from Senator Carper ............................ 37 

Anthony Willardson, Executive Director, Western States Water Council .......... 68 

Prepared statement .......................................................................................... 70 

Responses to additional questions from: 

Senator Carper .......................................................................................... 86 

Senator Markey ......................................................................................... 99 

Senator Merkley ........................................................................................ 102 

ADDITIONAL MATERIAL 

Report; Environmental and Land Use Hearing Office, Order on Summary 

Judgment .............................................................................................................. 377 

Letter; International Brotherhood of Electrical Workers ..................................... 401 

Report; United States Court of Appeals for the Second Circuit, Petition for 

Review form the Federal Energy Regulatory Commission ............................... 423 

Statement; Senator Daines: Dained Defends Montana’s Right ot Export Coal 

to Asia ................................................................................................................... 521 

Statement; Western Water Council ........................................................................

Statement; Westerm Governors Association ......................................................... 530 

Report: Hon. Robert J. Bryan, Opposition to the Millennium Bulk Terminal 

Port Facility .......................................................................................................... 533 

Report; SEPA Greenhouse Gas Emissions Technical Report ............................... 579 

Letter; International Brotherhood of Electrical Workers ..................................... 700 

Letter; New Jersey Conservation Foundation and The Watershed Institute ..... 703 

Testimony; Western States Water Council ............................................................ 709 

Article; the New Jersey Spotlight: Move in Congress to Weaken Clean Water 

Act Could Have Big Impact in New Jersey ....................................................... 750 

Statement; Washington Building Trades: Resolution in Support of the Millennium Bulk Terminals Project .............................................................................. 752 

Letter; IPAA, Independent Petroleum Association of America ............................ 754 

(1) 

HEARING TO EXAMINE IMPLEMENTATION OF 

CLEAN WATER ACT SECTION 401 AND S. 

3303, THE WATER QUALITY CERTIFICATION 

IMPROVEMENT ACT OF 2018 

WEDNESDAY, AUGUST 16, 2018 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, Washington, DC. 

The committee met, pursuant to notice, at 10:03 a.m. in room 

406, Dirksen Senate Building, Hon. John Barrasso (chairman of 

the committee) presiding. 

Present: Senators Barrasso, Capito, Boozman, Fischer, Rounds, 

Ernst, Cardin, Merkley, Gillibrand, Booker, Markey, and Van 

Hollen. 

OPENING STATEMENT OF HON. JOHN BARRASSO, 

U.S SENATOR FROM THE STATE OF WYOMING 

Senator BARRASSO. Good morning. I call this hearing to order. 

Today, the committee will hold a legislative hearing to examine 

S. 3303, the Water Quality Certification Improvement Act of 2018. 

This bill would improve implementation of Section 401 of the Clean 

Water Act. 

Section 401 of the Clean Water Act empowers states with an important role in protecting water quality within their borders. Anyone applying for a Federal license or permit must ask the State to 

certify that resulting discharges into water will not degrade water 

quality. For decades, States have reviewed projects and issued 

water quality decisions. 

Generally, this process works well. States and Washington, DC. 

work together, with clear and defined roles, to solve problems at 

both the regional and the national level. The State makes sure discharges will not negatively affect water quality. The Federal Government then issues the permit or license with the State’s blessing. 

This shared authority has been a good example of cooperative 

federalism. The vast majority of States have honored this shared 

responsibility. Recently, a few States have hijacked the water quality certification process in order to delay important projects. 

The State of Washington has abused their authority to block the 

export of coal mined in Wyoming, Utah, Colorado, and Montana. 

The State of Washington has refused to grant a water quality certification for the Millennium Bulk Terminal project. The project 

would enable the export of Western coal to markets in Asia. 

2 

Japan, South Korea, and other countries want and need this 

American energy. By preventing this project from moving forward, 

Washington State has hurt the economy of the entire region and 

the Nation. 

The delay of the export terminal does not just affect the coal industry. The Millennium Bulk Terminal project creates jobs and directly benefits families in Wyoming, Washington, and other Western States. That is why local unions and Cowlitz County, the county where the terminal would be built, support the project. 

Washington State’s refusal to issue the permit is not just bad for 

our economy; it is also bad for the environment. Wyoming produces 

the cleanest burning coal in the United States in a sustainable and 

safe manner. 

The Asian market will continue to use coal even if it cannot get 

American coal. By refusing to allow Wyoming to export its coal, the 

State of Washington is pushing these Asian markets to use coal 

from non-American sources, sources that are not as clean or safe. 

Washington State hired a consultant to evaluate greenhouse gas 

effects as part of its environmental review process. That consultant, hired by the State of Washington, concluded that mining and 

exporting American coal could reduce total global greenhouse gas 

emissions by displacing coal mined elsewhere. 

Washington State’s actions infringe on interState and international commerce. That is why Wyoming, and other States, have 

joined together to take legal action against Washington State. 

The State of Washington’s obstruction is about politics. It has 

nothing to do with clean water. The nine reasons that Washington 

used to deny certification had nothing to do with water quality. 

The State of Washington’s own environmental impact study for the 

project found there would be no significant impacts to water quality. 

The State of New York has taken similar steps to block construction of natural gas pipelines. America is the world’s No. 1 producer 

of natural gas. Pennsylvania has abundant supplies of this resource but New York is blocking gas pipeline projects which would 

supply States in New England. 

In January, power plants and utilities in New England had to 

take the dramatic and drastic step of importing liquefied natural 

gas from Russia to meet their energy demands. It makes no sense 

for America to import liquefied natural gas from our adversaries, 

Russia, when we have that resource right here at home. 

Using the Clean Water Act simply to delay important projects 

was clearly not what Congress had in mind when Congress passed 

the law. That is why I, along with Senators Capito, Inhofe, Daines, 

and Enzi, sponsored the Water Quality Certification Improvement 

Act of 2018. 

The bill amends Section 401 of the Clean Water Act to clarify the 

appropriate scope of review for a water quality certification. It 

clarifies that these reviews are limited to water quality impacts 

only. It would also put in place procedural guardrails and notice requirements to prevent future abuses. 

Under our legislation, States, when evaluating water quality, can 

only consider discharges from the federally permitted or licensed 

activity itself, not from other unrelated sources. No longer will a 

3 

State be able to abuse this authority in order to stop a project from 

moving forward. 

This bill is commonsense legislation to clarify current law, ensure a more predictable permitting process, and to prevent costly 

delays. Our legislation defends interState commerce and returns 

the certification process to what it was originally designed for, to 

protect the quality of America’s water. 

Before I introduce our witnesses for today, I would now like to 

turn to Senator Gillibrand for her remarks. 

OPENING STATEMENT OF HON. KIRSTEN E. GILLIBRAND, 

U.S SENATOR FROM THE STATE OF NEW YORK 

Senator GILLIBRAND. Thank you, Mr. Chairman. 

I join you in welcoming our witnesses here today and our colleague, Steve Daines. 

When it comes to protecting the environment, we have a solemn 

responsibility to do everything we can to protect clean water. Unfortunately, the bill we are hearing testimony on today, the Water 

Quality Certification Improvement Act of 2018, would fundamentally alter the role States have in permitting projects that cross rivers, streams and wetlands. 

The bill substantially robs States of the rights they exercise 

under the Clean Water Act and abandons the cooperative federalism approach that has been a centerpiece of Federal environmental law. 

Do not just take my word for it. The Western Governors Association and nine other organizations representing State governments 

wrote a letter last week raising concerns with the legislative approach. 

They wrote ‘‘We urge Congress to reject any legislative or administrative effort that would diminish, impair or subordinate States’ 

ability to manage or protect water quality within their own boundaries.’’ The bill we are discussing today would do just that. 

I ask unanimous consent to submit their letter for the record. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

4 


31623.490

6. Do you anticipate an increase in the number of 401 certification requests in the future, and what 

might be the impact on State administrative resources? 

Most states do not anticipate a significant increase in 401 certification requests. Some do. Some states 

have actually seen significant declines in requests. Again, most requests appear to be related to 404 

permitting, which in turn increase with general economic conditions and related construction starts, oil 

and gas development, etc. 

[Expansion of CWA jurisdiction as may be proposed by new rules could have an undetermined impact an 

the number of requests related to any increase in Section 404 permitting requirements.] 

California expects an increase in requests due to FERC relicensing, license amendments, and new 

projects. Further, as described post-licensing monitoring of conditions, as well as non-hydropower 

certification requests will significantly impact the State's administrative resources. FERC currently lists 

115 non-federal hydropower projects in California, not including transmission line projects, with varying 

expiration dates. Since 2000, 22 FERC project licenses have expired, and another 26 will expire through 

2029, necessitating either relicensing or surrender oft he license. Decommissioning can also have water 

quality impacts. SWRCB is already involved in a number of relicensing pre-application activities. The 

Division of Water Rights Water Quality Certification Program also certifies non-hydropower projects that 

involve water rights. 

Colorado does not anticipate a significant increase in the number of requests, but does anticipate 4-5 

very large and complex project certification requests from water diversion and storage projects over the 

next 3-4 years. 

Idaho does expect an increase in requests, as well as additional review requirements related to 

antidegradation reviews and analyses associate with federal permits, placing greater demands on static 

staff. 

New Mexico noted drought limits the viability of hydropower projects. 

Oregon has certified several projects through the federal relicensing process over the past several years. 

Currently there are only a few projects under relicensing review. Oregon anticipates ongoing interest in 

retrofitting both irrigation and drinking water systems with hydro turbines, but many will be exempt 

from licensing and no 401 certification will be required. Many preliminary permit applications have not 

proceeded to licensing, making certification requirements difficult to estimate. 
5 


31623.491

WIR WESTERN 

INTERSTATE 

REGION 

August 9, 2018 

The Honorable Paul Ryan 

Speaker of the House 

U.S. House of Representatives 

H-232 U.S. Capitol 

Washington, D.C. 20515 

The Honorable Nancy Pelosi 

Minority Leader 

U.S. House of Representatives 

H-204 U.S. Capitol 

Washington, D.C. 20515 

ASSOCIATION uf 

fiSH &wllDLIH 

AGI:NCfES 

WI->.!1-R'\,',!:\I!--,'-, 

\\<i\!H-1.. (\_ll!N(:!t 

The Honorable Mitch McConnell 

Majority Leader 

United States Senate 

S-230 U.S. Capitol 

Washington, D.C. 20510 

The Honorable Charles Schumer 

Minority Leader 

United States Senate 

419 Hart Senate Office Building 

Washington, D.C. 20510 

Dear Senators McConnell and Schumer, and Representatives Ryan and Pelosi: 

We write to express our concerns about various proposals to alter the state certification process 

under Section 401 of the federal Clean Water Act (CWA). Because each state is unique, we need the 

flexibility and authority to address our individual water needs. We urge Congress to reject any 

legislative or administrative effort that would diminish, impair or subordinate states' ability to 

manage or protect water quality within their boundaries. 

States have primary legal authority over the allocation, administration, protection and development 

of their water resources. Responsible growth and development, as well as proper environmental 

management, depend upon the recognition and preservation of state stewardship. 

We recognize the importance of partnerships between states and the federal government. To 

implement the CWA, Congress purposefully designated states as co-regulators under a system of 

cooperative federalism that recognizes state interests and authority. Congress recognizes the legal 

position of states in the CWA; Section 101 clearly expresses Congress's intent to: 

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources, and to 
6 


31623.492

The Honorable Paul Ryan 

The Honorable Mitch McConnell 

The Honorable Nancy Pelosi 

The Honorable Charles Schumer 

August 9, 2018 

Page 2 

consult with the Administrator in the exercise of his authority under this 

chapter ... Federal agencies shall co-operate with state and local agencies to develop 

comprehensive solutions to prevent, reduce, and eliminate pollution in concert with 

programs for managing water resources. 

A balanced system of cooperative federalism has enabled states to implement the CWA effectively 

and with flexibility. The CWA correctly recognizes that a one-size-fits-all approach to water 

management and protection does not accommodate the practical realities of geographic and 

hydrologic diversity among states. 

A vital component of the CW A's system of cooperative federalism is state authority to certify and 

condition federal permits of discharges into waters of the United States under Section 401. This 

authority has helped ensure that activities associated with federally permitted discharges will not 

impair state water quality. The U.S. Supreme Court has addressed this issue of state authority and 

concluded that, "(s]tate certifications under (Section]401 are essential in the scheme to preserve 

state authority to address the broad range of pollution." S.D. Warren Co. v. Maine Board of 

Environmental Protection, 547 U.S. 370 (2006), citing 116 Cong. Rec. 8984 (1970). 

Curtailing or reducing state authority or the vital role of states in maintaining water quality within 

their boundaries would inflict serious harm to the division of state and federal authorities 

established under the Constitution and recognized by Congress in the CW A. Any legislative or 

regulatory effort to streamline environmental permitting should be developed in consultation with 

states and must not be achieved at the expense of authority delegated to states under the CWA or 

any other federal law. Any such effort must also recognize, and defer to, states' sovereign authority 

over the management and allocation of their water resources. We implore you to ensure that the 

CWA continues to effectively protect water quality while maintaining the proper balance between 

state and federal authorities. 

Sincerely, 

~~~ President "i':c:tive 

n~ Director 

Association of Fish and Wildlife Agencies Association of State Wetland Managers 
7 

Senator GILLIBRAND. Thank you. 

I also ask to submit for the record a letter from the New York 

State Department of Environmental Conservation and the State 

Attorney General’s Office. Those offices State that this bill would 

‘‘curtail and limit the authority of New York and other States to 

protect their own water quality resources and the health, safety 

and welfare of their residents. 

‘‘Put another way, the Improvement Act undermines the balanced cooperative federalism intended by Congress in the Clean 

Water Act.’’ 

I ask unanimous consent. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

8 


31623.726

example, S.3303 could preclude a stale from considering environmental review developed by 

federal agencies pursuant to the National Environmental Policy Act in its Section 401 

determinations. 

Further, 8.3303 proposes to amend Section 40 I to require states to "grant or deny" an 

application on limited bases within one year ofinitial application. However, in New York's 

experience, federal agencies' environmental review rarely is completed within one year. 

Accordingly, an applicant's early request for state Section 401 certification could commence the 

one-year state review period that would expire before the federal agency's NEPA review 

obligations are completed, depriving a state of critical infonnation for its Section 401 review. 

For example, the Federal Energy Regulatory Commission (FERC) often relies on state 401 

certifications and related state environmental pennitting as mitigation for federally-permitted 

projects. The Improvement Act's absolute one year requirement not only could eliminate a 

state's ability to make a reasoned, infonned decision based on a completed environmental 

review, it would also make the state review and federally-directed mitigation meaningless. This 

is hardly the cooperative federalism Congress intended in the Clean Water Act, and contrary to 

how federal agencies authorize projects in real world practice. 

Lastly, the sponsors of this legislation have proclaimed that states including New York 

have "abused" the Clean Water Act 401 certification process to "block or slow construction" of 

projects such as natural gas pipelines. 1 New York has denied Section 401 certification only 

where natural gas pipeline projects fail to demonstrate compliance with water quality standards. 

New York and other states must continue to have the right to review projects on a case-by-case 

basis, to ensure that a proposed project would meet water quality standards and not have 

unacceptable impacts on a slate's own resources. 

The Water Quality Certification Improvement Act of2018 threatens to upend the 

balanced ~-ooperative federalism Congress ingrained in the Clean Water Act by curtailing and 

limiting the primary authority granted to New York and other states to ensure the protection of 

their waters and the health, safety, and welfare of their residents. We urge you to strongly 

oppose this unwarranted intrusion into New York's ability to protect its residents and 

environment. 

~~ ~~g~ironmental Protection Bureau 

Sincerely y~ 

1.,~1:)_ New York State Office of the Attorney General 

Deputy Commissioner and General Counsel 

New York State Department of 

Environmental Conservation 

1 hltps://www.epw.senate.gov/public/index.cfm/press-releasesrepublican?ID:D957F5 FF ·DOFF-49D8-825E-24D9F9711 EA4 
9 


31623.725

IPAA appreciates your attention to this important issue. We request that this letter be submitted to the 

record for the August 16 legislative hearing on S. 3303. 

Respectfully submitted, 

o~ u)li~ Susan Ginsberg 

Vice President 

Crude Oil & Natural Gas Regulatory Affairs 

202-857-4728 
10 


31623.727

State of New York State 

Office of the New York State Attorney General 

Senator Kirsten Gillibrand 

478 Russell Senate Office Building 

Washington, DC 205 I 0 

August 15, 2018 

Re: Water Quality Certification Improvement Act of201 8 

Dear Senator Gillibrand: 

We write to express the serious concerns of the State of New York and the Office of the 

New York State Attorney General about proposed bill S.3303, the Water Quality Certification 

Improvement Act of2018. Under the guise of''improving" and ''clarifying" Section 401 of the 

tederal Clean Water Act, this legislation would instead curtail and limit the authority of New 

York and other states to protect their own water quality resources and the health, safety and 

welfare of their residents. Put another way, the Improvement Act undermines the balanced 

cooperative federalism intended by Congress in the Clean Water Act. Accordingly, we strongly 

oppose S.3303 and its unwarranted intrusion into the rights of the State of New York and other 

states, and urge you to do the same. 

The Clean Water Act reflects a federal policy of preserving the states' primary right and 

responsibility to plan the development and use of water resources, and to prevent, reduce, and 

eliminate water pollution in cooperation with federal and local agencies. 33 U.S.C. §§ 

125l(b),(g). The Act entrusts the states with the primary responsibility and authority to protect 

the waters within their borders, and reserves states' rights to implement more stringent measures 

if federal floors are not sufficient to protect their waters. 33 U .S.C. § 13 70. 

The balanced cooperative federalism directed by Congress is embodied in Section 401 of 

the Act. Section 401 requires an applicant for a federal license or permit to undertake an activity 

that may result in discharges into navigable waters to obtain a certification from the state in 

which the discharge would occur that the activity would comply with applicable water-quality 

standards. 33 U.S.C. § 1341(a)(l). A state may exercise its Section 401 authority to certify with 

conditions to ensure that impacts of the discharges are appropriately mitigated and will not 

impair the affected water resources. Indeed, the water quality impacts of federally-permitted 

projects are often localized, and are best assessed and managed at the state level by state resource 

experts. In this regard, the Clean Water Act recognizes the need for state-level review and 

entrusts state resource experts to protect their own resources. 

The proposed legislation's broad-brush, one-size-fits-all approach would limit New 

York's ability to ensure the protection ofits waters and residents with respect to a wide range of 

activities. First, it would exclude review elements that the state relies upon to detennine whether 

a federally-permitted project would comply with the state's water quality standards .. For 
11 

Senator GILLIBRAND. Thank you. 

InterState pipeline projects often traverse hundreds or even 

thousands of miles, cross hundreds more streams and impact wetlands in ways to have a cumulative impact on the ability of the 

State to meet its water quality standards. 

Some critics have pointed to a handful of high profile examples 

where States denied Section 401 certification for major interState 

projects. They argue that the States are abusing their role by 

issuing denials and therefore, the State’s role should be restricted. 

Those assertions ignore the fact that New York State has denied 

Section 401 certification only in those instances where the project 

failed to demonstrate compliance with water quality standards or 

failed to provide sufficient information to demonstrate compliance. 

In 2017, New York State issued approximately 99.9 percent of all 

requested water quality certifications. Congress intended for States 

to have significant authority to protect their water quality under 

the Clean Water Act by setting standards more stringent than 

those set by the Federal Government. States have a responsibility 

to make sure those standards are enforced by setting conditions on 

federally permitted activities to protect State water quality. 

I am concerned that the changes to the Section 401 certification 

process envisioned in the bill would create a situation where applicants are given Federal permits to violate State water quality 

standards. That should not happen. 

I am also concerned that this bill would set an arbitrary and unrealistic 90-day timeline for States to determine whether an application is complete. This is inconsistent with State and Federal 

practices and ignores the fact that these projects often change during the course of the review requiring new or different information. 

Additionally, the bill would prevent States from denying water 

quality certifications if an applicant fails to provide adequate information to the State. This is a heavy-handed approach designed to 

force States into approving potentially risky projects. 

It punishes States for making decisions that some of my colleagues do not like undermining the State’s role in trying the Clean 

Water Act and repeatedly upheld by the courts. This is not cooperative federalism. We should be listening to our States and working 

with them not against them. 

Mr. Chairman, before I finish, I would like to ask unanimous 

consent to submit Ranking Member Carper’s statement for the 

record. 

Senator BARRASSO. Without objection. 

[The prepared statement of Senator Carper follows:] 

12 


31623.001

Statement of Ranking Member, Senator Thomas R. Carper 

Committee on Environment and Public Works 

"Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, tbe Water 

Quality Certification Improvement Act of 20 18" 

August 18,2018 

I thank you, Mr. Chairman, for giving us tbe opportunity to tbink fully about the importance of 

the Clean Water Act's grant of authority to states under Section 401. And I appreciate, as well, 

the willingness of our witnesses to share their expertise and perspectives on this important 

question. 

Mr. Chairman, this is a tough issue. I realize it's frustrating to developers when states have the 

capacity to say "no" to energy infrastructure projects. 

I know from firsthand experience. Delaware was the favored site for a deepwater coal terminal 

on the Delaware Bay-a place of extraordinary beauty, ecological significance and economic 

value. As important as the project was to those who wanted an outlet for their coal, it was a 

horrible fit for my state. 

The impact on our invaluable coastal wetlands would have been substantial and permanent. 

The resulting effect on coastal water quality, critical habitats, and the threatened, endangered and 

at-risk species-like the bald eagle and tbe red knot birds-that were dependent on these 

resources would have been, in a word, devastating. 

The answer to this challenge is not to take away the voices and the power of the states. I say tbis 

not only as a recovering Governor, but also as someone who consistently tries to treat others the 

way I would want to be treated. 

As I suspect everyone here understands, the Clean Water Act is a model of cooperative 

federalism-a theme very popular witb the Trump Administration , as it was with our recently 

departed EPA Administrator. Section I 0 I of the Clean Water Act makes very clear Congress' 

intention to: 

"recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan tbe development and use (including 

restoration, preservation, and enhancement) ofland and water resources, and to consult 

with the Administrator in the exercise of his authority under tbis chapter. ... Federal 

agencies shall co-operate with state and local agencies to develop comprehensive 

solutions to prevent, reduce, and eliminate pollution in concert with programs for 

managing water resources." 

And Clean Water Act Section 401 requires that an applicant for a federal license or permit 

provide a certification that any discharges from the facility or project will comply with the Act, 

including state-established water quality standard requirements. 
13 


31623.002

It is because of this clear intent and the value of this authority to all the states in our union that 

the Western Governors' Association and nine other state-affiliated organizations wrote to the 

House and Senate "[urging] Congress to reject l!ill' legislative or administrative effort that would 

diminish, impair or subordinate states' ability to manage or protect water quality within their 

boundaries." 

I realize the Western Governors and these other groups did not specifically address S. 3303 in 

their letter, but their letter was written before the Chairman introduced his bill. One thing is 

quite clear in reading this legislation, however; it diminishes, impairs and subordinates states' 

ability to manage or protect water quality within their boundaries. 

For example, the bill assumes that a project's only water quality impacts are those related solely 

to the discharges associated with that project. I can assure you-as would others in Western and 

Eastern states alike that is not the case with hydropower facilities, natural gas pipelines that 

can cross hundreds of streams along their path, or any other significant and complex 

infrastructure project. 

At best, there seems to be some confusion that Section 401 only refers to discharges. But that is 

not at all the case. True, the project in question must have a discharge in order for Section 401 to 

apply, but once it does, Congress fully intended that states could set forth "any effluent 

limitations and other limitations ... "necessary to assure that the applicant "will comply with any 

applicable effluent limitations and other limitations" under various provisions of the Act "and 

any other appropriate requirement of State law set forth in such certification." My quotes are 

directly from Section 40 1 (d) of the Clean Water Act. 

According to the Supreme Court in PUD v. Washington Department of Ecology (1994), this 

means that the law, as Congress wrote it, allows states to include "additional conditions and 

limitations on the activity as a whole once the threshold condition, the existence of a discharge, 

is satisfied." 

In layman's terms, this means that the states are granted broad authority to condition 

certifications consistent with federal and state requirements as necessary to meet water quality 

standards. So, to be clear, replacing the word "activity" with the word "discharge," as this bill 

proposes, would undo Congress' original intent, and would severely clip our states' wings in 

their efforts to make our waters clean, safe, fishable and swimmable. 

The bill would also require that states either grant or deny requests for certification within one 

year "after receipt of such request." It is unclear what "receipt" means, but in any event, given 

the complexity of some projects, the incomplete nature of many requests, and the inevitable 

back-and-forth required for agencies to fully understand the scope, implications, and options for 

mitigating impacts, this is a wholly unrealistic limitation on the states' abilities to make 

responsible decisions. A possible result is a vast increase in litigation over poor certification 

decisions or simply denial based on a state's reasonable determination that it does not have a 

sufficient basis upon which to certify or deny. 
14 


31623.003

Similarly, restricting the time period for a state to request additional information to 90 dayswhile obviously a good intention to keep the process moving efficiently-also ignores the reality 

of complex and otherwise difficult cases. All we need to do to confirm this point is talk to our 

states. 

There is much more about this bill that would serve oil and gas, coal, hydropower and other 

industries well. But doing so at the expense of states' abilities to protect themselves is a truly 

bad idea. 

We find it so very easy to suggest that states know best how to manage the resources in their 

states-whether it's public lands or the critters that live there. Why is it, then, appropriate and 

acceptable for us to basically say to states in this context, "You really don't know best. We 

do. And this is what you're going to do." 

I' II finish by going back to the story I told at the beginning of this statement, and ask the 

Committee to join me in thinking about this scenario. 

What if my State of Delaware had no voice and no capacity to choose a thriving coastal 

environment and the fishing and tourism economy it supports over the presence of a major coal 

terminal on the shores of the Delaware Bay? Is it right to tell my state's regulators and citizens it 

doesn't matter what you think, here's your terminal? 

No, it is not. And we should not move legislation that would make it so. 

Thank you, Mr. Chairman. 
15 

Senator GILLIBRAND. I yield back. 

Thank you. 

Senator BARRASSO. Thank you very much, Senator Gillibrand. 

Also along the same lines, Senator Inhofe is unable to be here 

today. I want to thank him for his support of S. 3303. I ask unanimous consent to enter his statement for today’s hearing into the 

record. 

Without objection, it will be entered. 

[The prepared statement of Senator Inhofe follows:] 

16 


31623.004

Senator James M. Inhofe Statement for the Record 

U.S. Senate Committee on Environment and Public Works 

Hearing to Examine Implementation of Clean Water Act Section 401 and 

S.3303, the Water Quality Certification Act of2018 

August 16, 2018 

The bipartisan intent of Section 401 is laudable in its preservation of states' rights. It 

provides states with the opportunity to weigh in on federal permitting decisions for projects that 

could affect water quality within their borders and gives states a reasonable amount of time, not 

to exceed one year, to review and act on a permit application. This worked well for many years 

with little to no controversy. 

Unfortunately, liberal environmentalists have hijacked the process and Congress' intent is 

no longer guiding the actions of a handful of states. Instead of an isolated instance or two, we are 

seeing a trend of states that are hostile to certain industries or projects use the 401 process to 

block them for non-water quality concerns, concerns that are not due to the project, or by gaming 

the one year review timeline. 

There are several examples that come to mind highlighting issues with scope and 

timeliness of reviews. One example is the state of Maryland using the 401 process to hold a 

hydroelectric generator responsible for pollution they did not create- essentially pollution 

sourced from upstream of the dam. Now, I agree, the Conowingo Dam has been valuable at 

cleaning up the Chesapeake Bay trapping sediment, nitrogen, and phosphorous before they 

reach the bay. But the dam's ability to act as a pollution sink has decreased over its lifetime- a 

natural occurrence- and the State of Maryland wants the dam's operator to pay $172 million per 

year to mitigate upstream pollution it is not responsible for. In short, Maryland is attempting to 

use 401 to force the dam's operator to pay so others can continue to pollute. This is clearly a 

perversion of the scope of reviews under 401 and punishes one party for another's wrongdoing. 

In New York, the Constitution Pipeline- at the threat of having their 401 permit deniedhas withdrawn and refiled the same application multiple times. This gaming of the one-year 

deadline in the existing statute effectively turned New York's 'review'- and I use the word 

'review' loosely- into a three year process. Ultimately, as we all know, New York eventually 

denied 40 I certification due to the political pressures of an upcoming election, hurting 

surrounding states. 

We have an abundance of natural gas in America, but because of New York's actions, 

New England has had to import Liquefied Natural Gas (LNG) from Russia. This not only 
17 


31623.005

supports our enemy, creating a national security concern, but it generates far more emissions 

than a pipeline does and hurts northeast consumers who are paying 151% more than the national 

average for electricity. New York is starving New England of an abundant, clean, cheap 

domestic source of energy -this is not federalism, it is one state dictating and blocking interstate 

commerce. 

As there are clearly several problems with states' implementation of this statute, I joined 

the Chairman and several others in introducing S.3303, the Water Quality Certification Act of 

2018. This bill preserves states' rights and clarifies that 401 certification should be about water 

quality impacts from the project itself. By also providing for transparency in the state process, 

applicants and the public will have a clearer picture of what goes into a state's decision and the 

concerns that the state has when making their decision. 

This bill is a balanced approach that respects states' rights while providing clarity and 

focus to a sometimes murky process. I thank the Chairman for holding this hearing today and I 

look forward to reviewing today's discussion. 
18 

Senator BARRASSO. Additionally, there was reference to the Western Governors Association and their comments. We did visit with 

Todd Parfitt who is the Director of the Wyoming Department of 

Environmental Quality regarding this piece of legislation. He said 

he ‘‘recognizes the State’s role in protecting water quality under 

the principles of cooperative federalism,’’ which is what the Western Governors Association has said. 

He goes on to say ‘‘This bill does not erode States’ ability to protect water quality under Section 401.’’ 

With that, I would like to welcome my friend, Senator Daines, to 

the committee. Senator Daines, we are very grateful that you 

joined us. Thank you for your partnership in introducing the Water 

Quality Certification Improvement Act. 

We welcome you to discuss the bill and introduce Mr. CJ Stewart 

who hails from Montana. 

OPENING STATEMENT OF HON. STEVE DAINES, 

U.S SENATOR FROM THE STATE OF MONTANA 

Senator DAINES. Chairman Barrasso and Senator Gillibrand, 

thank you for inviting me here today to introduce a very special 

guest from Montana. 

CJ Stewart joins us today from the Crow Tribe in Montana. He 

is also Senator CJ Stewart. I knew CJ when he was a Senator who 

served 8 years as a Senator for the Crow Nation legislative branch. 

He is an active and strong voice in his community and currently 

leads the National Tribal Energy Association. Mr. Stewart brings 

a very unique voice from Indian Country to the table during these 

discussions. 

For perspective, on the Crow Reservation, the unemployment 

rate there is around 70 percent. When you engage with the people 

of the Crow Nation, they are pleading with us here in Washington 

to allow them to develop their natural resources and to provide opportunities and jobs for their people. 

These jobs related to coal are critical. The unemployment rate 

has gone up because they have lost some of these critical coal mining jobs. 

For those who are skeptics about what happens when we mine 

coal in Montana, I would invite you to come out sometime and see 

what reclamation looks like, how literally they restore the grounds 

with the original topography and grasslands. We are now seeing 

elk moving into these reclaimed areas, as well as mule deer, sage 

grouse and other native species. 

As a member of the Crow Tribe, Mr. Stewart has firsthand experience in how Section 401 of the Clean Water Act has been abused 

and has hurt our communities throughout Montana. 

Speaking of clean water, literally a week ago today at this very 

moment, I had a fly rod in my hand with my wife, Cindy, and our 

two dogs far in the Beartooth Absaroka wilderness of Montana. We 

hiked in about 12 miles. 

There was not a boot print or a trail where we were, fishing for 

Yellowstone Cutthroat Trout with a little elk hair cactus. 

I point that out because it is called the Baretooth Absaroka Wilderness. Absaroka is actually a word that ties back to the Crow 

Tribe. They are called the Apsaalooke people. We derive Absaroka 

19 

from that. Today, if you look on a map, you will see the Baretooth 

Absaroka Wilderness. These were the original grounds of the 

Apsaalooke people. 

I discussed this with CJ earlier, this beautiful, pristine, clean 

water related to the Absaroka or the Absaalooke. They are called 

people of the large beak bird or the Crow Tribe, when you do a little translation. They know all about clean water, they cherish it. 

Mr. Stewart has firsthand experience of how Section 401 of the 

Clean Water Act has been abused and hurt communities. The Crow 

Tribe is home to and surrounded by large coal deposits and the 

community has fought hard to bring high-paying energy jobs to 

their members. 

This coal can be responsibly mined and can be responsibly exported to our Allies in the Asian Pacific. As the Chairman mentioned, Powder River Basin coal is Montana coal. 

By the way, Montana has more recoverable coal than any State 

in the United States. You do not think about Montana as being a 

coal State. For those who do not understand our State, we are No. 

1 in coal reserves in the Nation. 

The reason our coal makes sense is because as we see what is 

going on in Asia, they are going to burn the coal but Montana coal, 

Wyoming coal, Powder River Basin coal is more environmentally 

sound and has a lower sulfur content. It is the right thing to do 

as relates to global stewardship of the environment versus Indonesian coal and Australian coal. 

Japan wants our coal. Montana and the Crow Tribe can produce 

that coal. Unfortunately, while we are blessed with mountains and 

prairies, Montana does not have a coastline. We, therefore, depend 

on other States to get our resources to market. 

That is why it is so important that we are having this hearing 

here today on legislation that Chairman Barrasso, other members 

of this committee, and I introduced. The Water Quality Certification Improvement Act simply clarifies that Section 401 certification should be based on clean water standards. 

As part of the Clean Water Act, Section 401 should apply to 

clean water, not rail traffic or other unrelated issues, and, more 

importantly, should not be used for political reasons. I believe this 

is an important bill that will continue to give States a voice while 

also making sure certificates are based on the best available 

science. 

I look forward to hearing more from this committee and my 

friend and Montana Native. Let me say there are Montana natives 

and then there are Montana Natives. That is my friend, CJ Stewart. 

Again, thank you, Chairman Barrasso, for allowing me to be here 

today. Thank you for bringing Mr. Stewart to Washington, DC. to 

discuss the important impacts to our State and, importantly, our 

tribal communities. 

Senator BARRASSO. Thank you, so much, Senator Daines. You are 

welcome to join us for as long as you are able. I know you have 

additional obligations on your schedule but we appreciate you 

being here with us today. 

I would now invite all of the witnesses to please join us at the 

witness table. First, we have Mr. CJ Stewart, Board Director of the 

20 

National Tribal Energy Association. We also have Mr. Brent Booker, Secretary-Treasurer of the North America’s Building Trades 

Unions and Mr. Anthony Willardson, Executive Director of the 

Western States Water Council. 

We want to welcome all the witnesses and remind you that your 

full written testimony will be made a part of the original, official 

hearing record today. We would ask that you please keep your 

statements to 5 minutes so that we have time for questions. We 

have quite a number of Senators here interested in hearing what 

you have to say and asking questions. 

I look forward to hearing your testimony beginning with Mr. 

Stewart. Mr. Stewart, please proceed. 

STATEMENT OF CJ STEWART, BOARD DIRECTOR, NATIONAL 

TRIBAL ENERGY ASSOCIATION 

Mr. STEWART. Thank you, Chairman Barrasso, Ranking Member 

Carper, and members of the Environment and Public Works Committee. 

I appreciate the invitation and the opportunity to testify before 

this committee on examining implementation of Clean Water Act, 

Section 401 and your accompanying legislation. 

My name is CJ Stewart. I am a Crow Tribal member, a board 

member and co-founder of the National Tribal Energy Association, 

NTEA. NTEA advocates for both tribes and industry to promote 

healthy and sustainable energy economies on Native American 

lands. 

I am also currently in private practice as an energy consultant 

for Indian energy development and infrastructure. I previously 

served two terms as a Senator for the Crow legislative branch and 

as Chairman of the Crow Natural Resource & Infrastructure Development Committees from 2007 through 2015. 

In 2016, at the request of Chairman Darrin Old Coyote, 21st 

Chairman of the Crow Nation, I held the position of Crow Nation 

Energy Advisor and Legislative Liaison. During this time, I was 

also appointed as Vice Chairman of Congressman Ryan Zinke’s 

Natural Resource Advisory Committee. 

Last, I worked for 10 years as a union coal miner hauling Crow 

coal and was the first Native American to be appointed to serve on 

the Montana Coal Board, where I was voted Vice Chairman. 

Tribal economies face many obstacles to success, and currently 

the economy of the Crow Tribe is facing a critical crisis. While we 

are blessed with untold mineral wealth in oil, coal, and gas on the 

Crow reservation, regulatory roadblocks and political crises force us 

to languish in poverty. 

The tribe currently has an unemployment rate of 70 percent or 

more and hopelessness is beginning to cast a shadow where there 

was once hope for a vibrant and prosperous future. Imagine having 

a trillion dollars in mineral wealth under your feet and yet your 

people are starving and destitute before you. It is a cruel nightmare that could be avoided if not for the Clean Water Act being 

weaponized against the Crow Tribal resource economy and the 

Crow people and culture. 

Clean Water Act Section 401 was intended to provide States with 

a way to apply clean water quality protections to federally perVerDate Aug 31 2005 10:43 Apr 05, 2019 Jkt 000000 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\31623.TXT VERNE
21 

mitted activities. However, certain States have misused the process 

to block Crow economic projects for political reasons that have 

nothing to do with water quality. 

These States have hijacked the 401 certification process and used 

it as a means to interfere with tribal and international trade policy 

in violation of the Commerce Clause of the U.S. Constitution, including and specifically the Indian Commerce Clause. 

The economic prosperity of tribal communities throughout the 

Country is dependent on the flow of goods to port facilities that is 

unencumbered by physical, commercial, or political roadblocks. 

Surely the founding fathers saw the necessity of the Indian Commerce Clause for tribal Nations against hostile and racist actors, 

be they private or public, who bore animosity against Native peoples. 

Importantly, these laws were put in place to protect sovereign 

tribal economic activity, but recent and ongoing activity on the part 

of certain coastal States severely infringes on the rights of States 

and tribes without direct access to export facilities to engage in 

interState commerce. 

The Crow Nation is deeply respectful of the need for States and 

tribes to be able to protect their own waters from projects that 

would degrade water quality and infringe upon water use. We are 

also needful of the same respect in terms of our commercial endeavors including our sovereign resource development and commercialization. 

Unlike these aforementioned hostile actors who are so detrimental to the quality of life for the Crow people, we seek no power 

over or ill will toward them. We instead seek a legislative remedy 

that maintains equal and fair application of the law. 

The Water Quality Certification Improvement Act of 2018 is such 

a legislative remedy and does not inhibit the ability of States and 

tribes to enforce their water quality laws. Rather, it provides necessary transparency and clarity to the 401 process, while preserving the central role of tribes and States in protecting local waterways. 

The U.S. holds more of the world’s coal reserves than any other 

Country, and the coal mined by the Crow Nation is preferred by 

high efficiency, low emission power plants that are in operation 

and being built around the world. However, even though our coal 

resources provide a critical component of U.S. export trade, our 

ability to get our coal to fast-growing Asian markets is being hindered by States on the West Coast who continue to refuse to grant 

needed approvals to build state-of-the-art export facilities for political, not water quality, reasons. 

The Water Quality Certification Improvement Act of 2018 ensures that water quality certifications focus on their intended environmental purpose, the protection of local water bodies potentially 

impacted by federally licensed activities. It will therefore protect 

the health of local communities while simultaneously promoting 

the ability of tribes and land-locked States to exercise their right 

to engage in interState commerce and grow the economy. 

[The prepared statement of Mr. Stewart follows:] 

22 


31623.006

Testimony of CJ Stewart of 

the National Tribal Energy Association 

Senate Committee on Environment and Public Works 

"Hearing to Examine Implementation of Clean Water Act Section 40I and S. 3303, 

the Water Quality Certification Improvement Act of 2018" 

August 16, 2018 

CJ Stewart's 401 Testimony 

Thank you Chainnan Barrasso, Ranking Member Carper, and Members of the 

Environment and Public Works Committee. I appreciate the invitation and the 

opportunity to testifY before this Committee on examining implementation of 

Clean Water Act (CWA) 401 and your accompanying legislation. 

My name is CJ Stewart, and I am a Crow Tribal member and a Board Member and 

Co-Founder of the National Tribal Energy Association, or NTEA. NTEA 

advocates for both tribes and industry to promote healthy and sustainable energy 

economies on Native American lands. I am also currently in private practice as an 

energy consultant for Indian energy development and infrastructure. 

I previously served two tenns as a Senator for the Crow Legislative Branch and as 

Chainnan of the Crow Natural Resource & Infrastructure Development 

Committees from 2007-2015. In 2016, at the request ofChainnan Darrin Old 

Coyote, 21st Chairman of the Crow Nation, I held the position of Crow Nation 

Energy Advisor and Legislative Liaison. During this time, I was also appointed as 

Vice Chairman of Congressman Ryan Zinke's Natural Resource Advisory 

Committee. 

Lastly, I worked for 10 years as a union coal miner hauling Crow coal and was the 

ftrst Native American to be appointed to serve on the Montana Coal Board, where I 

was voted Vice Chainnan. 

Tribal economies face many obstacles to success, and currently the economy of the Crow 

Tribe is facing a critical crisis. While we are blessed with untold mineral wealth in oil, coal, 

and gas on the Crow reservation, regulatory roadblocks and political crises force us to 

languish in poverty. The tnbe currently has an unemployment rate of70% or more, and 
23 


31623.007

hopelessness is beginning to cast a shadow where there was once hope for a vibrant and 

prosperous future. 

hnagine having a trillion dollars in mineral wealth under your feet and yet your people are 

starving and destitute before you. It's a cruel nightmare that could be avoided if not for the 

Clean Water Act being weaponized against the Crow Tribal resource economy and the 

Crow people and culture. 

Clean Water Act Section 401 was intended to provide states with a way to apply key water 

quality protections to federally permitted activities. However, certain states have misused 

the process to block Crow economic projects for political reasons that have nothing to do 

with water quality. These states have hijacked the 401 certification process and used it as a 

means to interfere with tribal and international trade policy in violation of the Commerce 

Clause of the U.S. Constitution, including and specifically the Indian Commerce Clause. 

The economic prosperity of tnbal communities throughout the country is dependent on the 

flow of goods to port facilities that is unencumbered by physical, commercial, or political 

roadblocks. Surely the founding fathers saw the necessity of the Indian Commerce Clause 

for tribal nations against hostile and racist actors be they private or public who bore 

animosity against native peoples. hnportantly, these laws were put in place to protect 

sovereign tribal economic activity, but recent and ongoing activity on the part of certain 

coastal states severely infringes on the rights of states and tribes without direct access to 

export facilities to engage in interstate commerce. 

The Crow Nation is deeply respectful of the need for states and tribes to be able to protect 

their own waters from projects that would degrade water quality and infringe upon water 

use. We are also needing of the same respect in terms of our commercial endeavors 

including our sovereign resource development and commercialization. Unlike these 

aforementioned hostile actors who are so detrimental to the quality oflife for the Crow 

people, we seek no power over or ill will toward them. We instead seek a legislative 

remedy that maintains equal and fair application of the law. 

The Water Quality Certification Improvement Act of 2018 is such a legislative 

remedy and does not inhibit the ability of states and tribes to enforce their water 

quality laws. Rather, it provides necessary transparency and clarity to the 401 

process, while preserving the central role of tribes and states in protecting local 

waterways. 
24 


31623.008

The U.S. holds more of the world's coal reserves than any other country, and the coal 

mined by the Crow Nation is preferred by high efficiency, low emission power plants that 

are in operation and being built around the world. However, even though our coal 

resources provide a critical component ofU .S. export trade, our ability to get our coal to 

fast-growing Asian marlcets is being hindered by states on the West Coast who continue to 

refuse to grant needed approvals to build state of the art export facilities for political- not 

water quality-reasons. 

The Water Quality Certification Improvement Act of20 18 ensures that water quality 

certifications focus on their intended envirorunental purpose-the protection oflocal 

waterbodies potentially impacted by federally licensed activities. It will therefore protect 

the health oflocal communities while simultaneously promoting the ability of tribes and 

landlocked states to exercise their right to engage in interstate commerce and grow the 

economy. 
25 


31623.009

U.S. Senate Committee on Environment and Public Works 

Hearing titled, "Hearing to Examine Implementation of Clean Water Act Section 401 and S. 

3303, the Water Quality Certification Improvement Act of 2018" 

August 16, 2018 

Questions for the Record for Mr. Stewart 

Ranking Member Carper: 

I. You spoke in your testimony about states' refusals to grant needed approvals for 

infrastructure, and indicated their failure to do so was for political reasons. 

a. In the case of the Washington coal terminal, what do you view are the political 

elements of the state's decision that water quality impacts associated with the 

building of a very large coal terminal on the Columbia River should result in 

denying certification for this project? 

Press statements made by the State of Washington at the time of the certification denial, as well 

as the fact that the state's own EIS for the project showed that there would not be any significant 

adverse water quality impacts from the project, make it clear that the State of Washington denied 

the Millennium Bulk water quality certification based on a general opposition to coal exports and 

a desire to impose the state's political climate change positions onto US export policy. One 

state's political views of a particular export should not be able to override the ability of tribes to 

engage in interstate commerce, nor should it bind all states and tribes without their own 

international export capacity. 

b. Do you accept that the II different adverse water quality impacts identified by the 

Washington Department of Ecology are a sufficient basis for denial of the Clean 

Water Act certification we are talking about? 

It is my understanding that the state's own EIS showed that there would not be any significant 

water quality impacts from the project, and that with respect to the potential water quality 

impacts identified in the certification denial, the state stated that it purportedly did not have 

enough information to decide (despite the findings of the EIS) not that there would be a 

likelihood of harm to water quality. 

c. How, in your opinion, would S. 3303 make that project acceptable given the 

substantial impacts on water quality the State of Washington identified? 

The state did not identify substantial impacts to water quality that would result from the project, 

and in fact determined in its EIS that there would not be such impacts from the project. S. 3303 

would allow the state to deny or condition certification upon identifying actual impacts to water 

quality, but would not allow- as was done here- unsubstantiated water quality concerns to form 

a post hoc justification for a decision that was, in fact, unrelated to water quality. 
26 


31623.010

2. Do you believe that, under Section 401 of the Clean Water Act, states have the authority 

to effectively "veto" projects by denying certification if they find that a proposed activity 

would impact water quality? 

If discharges into navigable waters allowed by a federal permit would cause or contribute 

to the violation of water quality criteria, Section 401 allows states and tribes to condition 

or deny certification for the permit of those discharges. S. 3303 does not diminish or 

weaken this authority. 

a. If not, how do you believe states should address water quality impacts when 

implementing the requirements of Section 40 I? 

N/A 

b. If states do not have autonomy in the water quality certification process, does that 

effectively implement the "partnership" envisioned by Congress when enacting 

theCWA? 

NIA 

c. The Clean Water Act expressly provides that tribes are able to play essentially the 

same role in Indian country that states do. The Act authorizes EPA to treat 

eligible federally recognized Indian tribes in a similar manner as a state for 

implementing and managing certain programs, including Section 401. Would you 

agree that when tribes are administering this program, they should be able to deny 

401 certification if they have concerns that a project might damage water quality? 

Yes- as noted above, if discharges into navigable waters allowed by a federal permit 

would cause or contribute to the violation of water quality criteria, Section 40 I allows 

states and eligible tribes to condition or deny certification for the permit of those 

discharges. S. 3303 does not diminish or weaken this authority. 

d. Are you aware if Washington state tribes weighed in with the state to express 

concerns that the construction ofthe proposed coal export project would harm 

water quality? 

No I am not aware of whether this happened. 

3. In your experience in federal permitting (or in conversations with stakeholders, federal 

permitting officials, or state permitting officials) what factors beyond Section 401 have 

been cited as the source of delay in the process? 

There are several factors that cause undue delays in obtaining federal permits. However, 

more detail is needed to fully respond to the question, as delays are caused by different 

factors depending on the type of permit required. For example, in addition to Section 401 

certifications, the NEPA process and implementation of the 2008 Compensatory Mitigation 

Rule often cause additional significant delays in Section 404 permitting. It is important to 
27 


31623.011

note, though, that in the case of the Millennium Bulk terminal, the state's unlawful actions 

precluded the Section 404 process from going forward at all. 

4. Do tribes meet with state officials who are charged with issuing a Sec. 40 I water quality 

certificate on projects of interest to them? What process should be followed to ensure 

that tribal concerns with the water quality implications of a particular project should be 

addressed? 

States and eligible tribes that implement the water quality standards program for the waters 

impacted by the discharge are the appropriate authority to determine issuance of Section 40 I 

certifications. 

5. Are you concerned that by limiting the state's use of Section 401 certification, some states 

may establish new state permitting requirements independent of the Clean Water Act, 

resulting in an entirely separate permit or permits that will be required in order to ensure 

compliance with state statutes and regulations? 

S. 3303 will not limit state use of Section 401- it simply reiterates the appropriate role of the 

state certification process in federal licensing. Efforts by states to improperly usurp interstate 

commerce decisions are unlawful. 

6. In order to address the concerns you raise in your testimony, would it make sense to 

include state 401 certification programs as part ofNEPA compliance? 

The CW A lays out the circumstances under which Section 40 I certifications must be obtained. 

Not all projects that undergo NEPA analyses require Section 401 certifications, and not all 

permits that require a Section 401 certification are significant actions requiring an EIS. While 

there could be efficiencies gained when a state is looking at water quality impacts as part of a 

NEPA review and a 401 certification process, a one-size-fits-all approach may not be 

appropriate. 

a. Would making that change improve permitting efficiency, since many of the 

issues that come up when a permit is applied for and 40 I certification begins are 

typically included in the earlier NEPA reviews in which the state does not 

participate? 

See above. 

b. Would including states early (i.e., when the permit application that triggers 401 

certification is submitted) lead to more efficient processing? 

It is my understanding that states are notified early on in the process when a 40 I 

certification is required, but to the extent that this does not already happen, then yesincluding states early on in the process would help with efficient processing. 
28 


31623.012

7. Narrowing 401 certification could result in the issuance of a federal permit that is out of 

compliance with state statutes and regulations that protect human health and safety and 

the environment. 

a. Is this result acceptable? 

S. 3303 does not narrow the scope of Section 401 - it expressly preserves the right of states and 

tribes to protect human health and safety and the environment as related to water quality, which 

has always been the purpose of Clean Water Act Section 401. 

Senator Merkley: 

8. In your testimony, you indicate that you strongly support a rail line to transport Crow 

Nation coal through the ancestral lands of a number of tribes to the West Coast. 

However, the State of Washington cited II explicit water quality concerns that were 

shared by a number of sovereign tribal nations. Is it your position that the interests of the 

Crow Nation take precedence over the interests of tribes who rely on salmon fisheries and 

the water quality necessary to keep their fishery resources healthy? 

The rights of all tribes are important and must be respected. It is my understanding that 

the state's own EIS showed that there would not be any significant water quality impacts 

from the project, and that with respect to the potential water quality impacts identified in 

the certification denial, the state stated that it purportedly did not have enough 

information to decide (despite the findings of the EIS) not that there would be a 

likelihood of harm to water quality. 

9. The states perform critical roles protecting their environment and resources. How will 

limiting states from thoroughly reviewing the full range of impacts to their natural 

resources lead to better decisions? 

S. 3303 expressly preserves the right of states to fully review water quality impacts of a 

proposed federally licensed activity. 

10. States are often critically underfunded, particularly their environmental quality agencies. 

Does S. 3303 increase funding to states to enable them to meet the arbitrary 90-day 

deadline to respond to water quality certifications? How does S. 3303 help the states 

better protect their resources and citizens? 

It is my understanding that S. 3303 is an authorizing bill, not an appropriations bill. S. 

3303 preserves the rights of states and tribes to protect their resources and citizens while 

also ensuring that Section 40 1 is not abused for political purposes in a way that harms the 

economy and infringes on the Constitutional right of tribes, specifically under the Indian 

Commerce Clause, to engage in interstate commerce. 
29 


31623.013

II. How will weakening a state's authority to review projects benefit or enhance cooperative 

federalism? 

S. 3303 does not weaken state's authority to review projects. 

12. Water Quality Certifications allow states to look at a full range of the impacts of a project 

while federal agencies often limit the scope of their review. Is state review of projects 

the barrier to development, or are the environmental impacts themselves the actual 

barrier? Would this bill reduce the ability to properly identify and analyze those impacts? 

While frequently Section 401 is applied properly by states, the case of the Millennium 

Bulk terminal provides an example of how a state's political agenda- rather than any 

actual water quality impacts from a project, as shown by the state's own EIS- has 

unfairly blocked a project critical to the survival of the Crow Nation. 

13. The tribes of the Northwest depend on the fish populations that in turn depend on healthy 

water quality. How will limiting the threshold of impacts analysis protect their treatypreserved rights and interests? 

The Crow tribe depends on coal and is a true recognized treaty tribe that hasn't opted into 

the Indian Reorganization Act of 1934. Further, in 1825, the Crow tribe signed a 

friendship treaty with the US Government to exercise and protect trade routes that would 

enhance their Constitutional rights under the Indian Commerce Clause. Are you willing 

to violate the rights of the Crow tribe as a true treaty tribe, along with violating the Indian 

Commerce Clause in the Constitution, by taking away their ability to export their own 

coal? In addition, S.3303 does not limit the ability of states and tribes to protect water 

quality. 
30 

Senator BARRASSO. Mr. Stewart, thanks so much for being with 

us today. Thank you very much for sharing your testimony. After 

we hear from Mr. Booker, we will come back with some additional 

questions. 

Next, Mr. Booker, thank you very much for being with us today. 

We appreciate that you are here to testify. 

STATEMENT OF BRENT BOOKER, SECRETARY-TREASURER, 

NORTH AMERICA’S BUILDING TRADES UNIONS 

Mr. BOOKER. Thank you, Mr. Chairman, Senator Carper and 

Senator Merkley for your leadership and continued efforts to address permitting reform. 

As Secretary Treasurer of North America’s Building Trades 

Unions, and on behalf of the three million skilled construction 

workers I represent, thank you for allowing me to share with you 

the impacts of project delays on the hard-working men and women 

who build and maintain America’s energy, water, and transportation infrastructure. 

NABTU is dedicated to creating economic security and employment opportunities for North American construction workers by 

safeguarding wage and benefits standards, promoting responsible 

private capital investments, investing in renown apprenticeship 

and training, and creating pathways to the middle class for women, 

communities of color and military veterans in the construction industry. 

Because of these efforts, and others, collectively amongst all 14 NABTU affiliates, more than $1 billion dollars is spent annually on 

apprenticeship training at 1,600 domestic training centers. We now 

boast 135 apprenticeship programs to ready students for the academic and real-world challenges of being a union apprentice. 

North America’s Building Trades Unions support responsible regulations that protect the environment, public health and worker 

safety. We believe they are critical to responsible infrastructure development that lasts for decades and allows for future generations 

to use these invaluable assets. 

What is concerning, however, is the tactic of project opponents 

using a constant stream of endless lawsuits to delay a project because they cannot defeat a project on the merits of the project 

itself. When projects are tied up or delayed because of court proceedings, not only are critical American infrastructure projects 

stalled, but also our members are not working, they are not putting 

food on the table, they are not providing for their families and they 

are not participating and contributing to the local economy. 

In the Northeast region, this is the reality. Union construction 

workers stand ready to build necessary pipeline infrastructure to 

deliver Marcellus Shale natural gas to utilities, industry, critical 

infrastructure like our schools and hospitals, and most importantly, 

to our consumers. The region’s notoriously high energy prices have 

met a perfect storm in the form of inadequate natural gas infrastructure being coupled with the delay of the Constitution and 

Northern Access Pipeline projects. 

ISO New England recently highlighted that four gigawatts of 

natural gas-fired generation capacity, 24 percent of the region’s 

gas-fired net winter capacity, was at risk of not being able to get 

31 

fuel when needed. A safe, modern, and affordable solution, the Constitution pipeline, was delayed from being built after already receiving FERC approval. This permit denial is still delaying about 

2,400 direct and indirect jobs from the pipeline construction generating $130 million in labor income and economic activity for the region. 

The decision continues to cost local governments approximately $13 million in annual property tax revenue. Unfortunately, the 

Clean Water Act Section 401 permitting process has resulted in 

needless uncertainty. This can stymie approval for years, or worse, 

halt a half-completed construction project in its tracks. 

By some estimates, a 6-year delay in starting construction on 

public works, including the effects of unnecessary pollution and 

prolonged inefficiencies, costs the Nation over $3.7 trillion. Let me 

be clear. When lawsuits aimed squarely at killing projects are 

brought forth for politically motivated reasons, it hinders our ability to create jobs and prepare the next generation of construction 

workers for tomorrow. 

These unnecessary delays thwart needed infrastructure progress, 

and impede NABTU members from working and earning a paycheck. We must have regulatory certainty and predictability. 

North America’s Building Trades Unions strongly supported the 

FAST–41 reforms because they lead us toward a path of standardization and finality in the permitting process. We have supported 

the thoughtful steps taken to reform the system while maintaining 

the underlying regulations that protect the health and safety of our 

members on the jobsite and the environmental and human impacts 

of projects on communities across the Country. 

We will continue to be engaged with Congress and Federal agencies as sensible regulatory reforms are identified and implemented. 

Case in point, the reforms made by S. 3303 requiring States to tell 

an applicant whether they have all the materials needed to process 

a certification is commonsense. 

The clarification that the scope of a Section 401 review is limited 

to only water quality impacts needs no explanation. We support reforms that reign in the legal challenges while thoughtfully protecting the environment, the public, and worker safety on the job. 

On behalf of NABTU, our affiliates, and our 3 million members, 

thank you for the opportunity to testify. I look forward to any questions you may have. 

[The prepared statement of Mr. Booker follows:] 

32 


31623.014

BRENT BOOKER 

SECRETARY-TREASURER 

NORTH AMERICA'S BUILDING TRADES UNIONS 

SENATE COMMITIEE ON ENVIRONMENT AND PUBLIC WORKS 

TESTIMONY 

August 16, 2018 

Good Morning and thank you Senator Barrasso and Senator Carper for your 

leadership and continued efforts to address permitting reform. As SecretaryTreasurer of North America's Building Trades Unions, and on behalf of the 

three million skilled construction workers I represent, thank you for allowing 

me to share with you the impacts of project delays on the hard-working men 

and women who build and maintain America's energy, water, and 

transportation infrastructure. 

NABTU is dedicated to creating economic security and employment 

opportunities for North American construction workers by safeguarding wage 

and benefits standards, promoting responsible private capital investments, 

investing in renown apprenticeship and training, and creating pathways to 

the middle class for women, communities of color and military veterans in 

the construction industry. 
33 


31623.015

Because of these efforts, and others, collectively amongst all 14 NABTU 

affiliates, more than one billion dollars is spent annually on apprenticeship 

training at 1 ,600 domestic training centers. And, we now boast 135 

apprenticeship programs to ready students for the academic and real-world 

challenges of being a union apprentice. 

North America's Building Trades Unions support responsible regulations that 

protect the environment, public health and worker safety. We believe they 

are critical to responsible infrastructure development that lasts for decades 

and allows for future generations to use these invaluable assets. What is 

concerning, however, is the tactic of project opponents using a constant 

stream of endless lawsuits to delay a project because they cannot defeat a 

project on the merits of the project itself. When projects are tied up or 

delayed because of court proceedings in the courts, not only are critical 

American infrastructure projects stalled, but also our members are not 

working, they are not putting food on the table, and they are not providing for 

their families. 

In the Northeast region, this is the reality. Union construction workers stand 

ready to build necessary pipeline infrastructure to deliver Marcellus Shale 
34 


31623.016

natural gas to utilities, industry, critical infrastructure like our schools and 

hospitals, and to consumers. 

The region's notoriously high energy prices have met a perfect storm in the 

form of inadequate natural gas infrastructure being coupled with the delay of 

Constitution and Northern Access Pipeline projects. ISO New England 

recently highlighted that four gigawatts of natural gas-fired generation 

capacity- 24% of the region's gas-fired net winter capacity- was at risk of 

not being able to get fuel when needed. 

And a safe, modern, and affordable solution, the Constitution pipeline, was 

delayed from being built after already receiving FERC approval. This permit 

denial is still delaying about 2,400 direct and indirect jobs from the pipeline 

construction generating $130 million in labor income and economic activity 

for the region. The decision continues to cost local governments 

approximately $13 million in annual property tax revenue. 

Unfortunately, the Clean Water Act Section 401 permitting process has 

resulted in needless uncertainty. This can stymie approval for years - or, 

worse, halt a half-completed construction project in its tracks. By some 
35 


31623.017

estimates, a six-year delay in starting construction on public works, including 

the effects of unnecessary pollution and prolonged inefficiencies, costs the 

nation over $3.7 trillion[il. 

Let me be clear. When lawsuits aimed squarely at killing projects are brought 

forth for politically motivated reasons, it hinders our ability to create jobs and 

prepare the next generation of construction workers for tomorrow. These 

unnecessary delays thwart needed infrastructure progress, and impede 

NABTU members from working and earning a paycheck. 

We must have regulatory certainty. 

North America's Building Trades Unions strongly supported the FAST-41 

reforms because they lead us toward a path of standardization and finality in 

the permitting process. We've supported the thoughtful steps taken to reform 

the system while maintaining the underlying regulations that protect the 

health and safety of our members on the jobsite and the environmental and 

human impacts of projects on communities across the country. 
36 


31623.018

We will continue to be engaged with Congress and federal agencies as 

sensible regulatory reforms are identified and implemented. 

Case in point, the reforms made by S. 3303. Requiring states to tell an 

applicant whether they have all the materials needed to process a 

certification is commonsense. The clarification that the scope of a Section 

401 review is limited to only water quality impacts needs no explanation. We 

support reforms that reign in the legal challenges while thoughtfully 

protecting the environment, the public, and worker safety on the job. 

On behalf of NABTU and our affiliates, thank you for the opportunity to testify. 

I look forward to the committee's questions. 

l•lTwo Years Not Ten Years: Redesigning Infrastructure Approvals. Common Good. Web. Accessed 

12/7/15. (http://commongood.3cdn.net/c613b4cfda258a5fcb e8m6b5t3x.pdD 
37 


31623.019

U.S. Senate Committee on Environment and Public Works 

Hearing titled, "Hearing to Examine Implementation of Clean Water Act Section 401 and 

S. 3303, the Water Quality Certification Improvement Act of2018" 

August 16,2018 

Questions for the Record for Mr. Booker 

Answers for the Record from Mr. Booker submitted on September 19,2018 

Ranking Member Carper: 

I. Do you believe that, under Section 401 of the Clean Water Act, states have the authority 

to effectively "veto" projects by denying certification if they find that a proposed activity 

would impact water quality? 

a. If not, how do you believe states should address water quality impacts when 

implementing the requirements of Section 401? 

b. If states do not have autonomy in the water quality certification process, does that 

effectively implement the "partnership" envisioned by Congress when enacting 

the CWA? 

The Congressional intent of the Clean Water Act is for federal and state agencies to work 

together to certify discharges under CWA Section 401 certification process. However, this 

"partnership" needs clarification. 

Under Section 401, states have the opportunity to review activities, where there is a 

discharge, under federal review. During this review, states can identify reasonable conditions 

necessary to meet enforceable water quality standards. These conditions are then adopted 

by the federal agency, ifit decides to authorize the activity. In this manner, Congress ensured 

that federal agencies work in partnership with states to protect water quality. Section 401 

does not create an additional state or federal permitting requirement. 

In many cases, our members' ability to work on projects requiring a Section 401 water 

quality certification is subjected to individual states misusing their regulatory authorities to 

effectively "veto" interstate projects that benefit multiple states. 

I. What specific issues are we trying to address with the bill, S. 3303, that Chairman 

Barrasso has introduced? 

a. Is the 401 state water quality certification an example of cooperative federalism? 

b. Should states have a robust role in federal permitting and licensure that impacts 

waters within their State? 

S. 3303 effectively clarifies the scope of the CW A Section 401 certification process for 

interstate/federally approved projects. In many states, the 401 water quality certification 
38 


31623.020

process is an example of cooperative federalism where each side of the partnership works 

cooperatively to ensure that federally permitted activities protect water quality. This 

provides the certainty needed to execute interstate projects effectively. In turn, NABTU 

affiliates are able to train and provide the required workforce for said projects. 

However, in some cases, such as the Constitution Pipeline denial in New York State, the 

cooperative federalism concerns have not been appropriately balanced. 

2. How have reviewing courts interpreted states' denials of water quality certificates and 

conditioning of federal licenses/permits? 

Several recent cases have indicated the time review for Section 401 certification begins 

when the applicant files, not when the state determines the application is complete. Section 

401, and judicial precedent, allow federal agencies to proceed with their decisions on a 

proposed activity where a lead federal agency determines that a state has waived its review. 

3. In your experience in federal permitting (or in conversations with stakeholders, federal 

permitting officials, or state permitting officials) what factors beyond Section 401 have 

been cited as the source of delay in the process? 

The factors beyond Section 401 that are a source of delay include a gauntlet of numerous 

separate agency reviews and approvals. Too often the process has a lack of coordination, 

conflicting deadlines, and litigation exposure. Other types of reviews include NEP A and 

ESA. 

4. In your estimation, what percent of energy-related infrastructure projects are stopped by 

state failure to grant 40 I certification? 

a. Is it 50 percent? I 0 percent? I percent? Or less than I percent? 

Any stoppage of a project moving forward, including the denial of Section 401 certification, 

has a direct adverse impact on the livelihood of our members. The exact percentage of 

projects denied is different from state to state just as the size and scope of every project are 

different. Specifically, in my testimony, I cite the 2,400 direct and indirect jobs that would 

be created during construction of the Constitution pipeline generating $130 million in labor 

income and economic activity. This large project is one example of the increasing number of 

projects delayed or derailed by Section 401. 
39 


31623.021

5. Is it your standard practice (or the practice of project sponsors your members work for) to 

meet with state officials who are charged with issuing a Sec. 40 I water quality certificate 

before submitting an application for certification? 

It is our practice to engage whenever possible in supporting projects which provide 

employment for our members. Our successful tripartite working arrangements with 

industry, government and labor continue to be the best mechanism to ensure safety and 

environmental concerns are adequately addressed. 

6. Are you concerned that by limiting the state's use of Section 40 I certification, some states 

may establish new state permitting requirements independent of the Clean Water Act, 

resulting in an entirely separate permit or permits that will be required in order to ensure 

compliance with state statutes and regulations? 

This hypothetical scenario would increase the likelihood of delays that result in people out 

of work, not supporting their families, and not participating in the local economy. NABTU 

does not view S. 3303 as limiting states' valid use of the water quality certification process. 

Instead, the legislation addresses past abuses of the process. 

7. In order to address the concerns you raise in your testimony, would it make sense to 

include state 401 certification programs as part ofNEPA compliance? 

a. Would making that change improve permitting efficiency, since many of the 

issues that come up when a permit is applied for and 401 certification begins are 

typically included in the earlier NEPA reviews in which the state does not 

participate? 

b. Would including states early (i.e., when the permit application that triggers 401 

certification is submitted) lead to more efficient processing? 

NEPA review is broader than state review under Section 401. States should engage early in 

the NEPA process so that potential concerns regarding water quality issues are adequately 

addressed. 

8. Narrowing 401 certification could result in the issuance of a federal permit that is out of 

compliance with state statutes and regulations that protect human health and safety and 

the environment. Is this result acceptable? 

North America's Building Trades Unions support human health, safety, and environmental 

stewardship. S. 3303 would clarify the scope of section 401 review to be based on matters 
40 


31623.022

associated with water quality only. We support states' ability to protect water quality. 

Specifically, the amendments clarify the conditions of a water quality certification under 

Section 401. 
41 

Senator BARRASSO. Thank you very much, Mr. Booker, as well as 

Mr. Stewart. We appreciate you being here. We will see if Mr. 

Willardson is able to arrive. 

If I could, I will start with some questions for Mr. Stewart. In 

your testimony, you talked about some of the real world impacts 

from not being able to use the tremendous natural resources that 

we have in America, specifically in Indian Country. The Seattle 

Times newspaper reported that the Millennium Bulk Terminal 

project would bring $680 million in investments to Cowlitz County 

alone, the Washington county where the terminal project would be 

located. 

What has the delay of this bulk terminal project done to the 

hardworking people in Indian Country and in States outside of 

Washington State such as your own? 

Mr. STEWART. First of all, Mr. Chairman, I appreciate the question. 

The delay of the permitting of the Millennium Bulk Terminal has 

cost loss of Federal, State and tribal mineral taxes, caused the loss 

of countless high-paying and highly skilled jobs which pay income 

and sales taxes in Montana, Wyoming, Colorado, Utah and other 

western States. 

It has caused the loss of new equipment services for the ongoing 

management and expansion of mines which in turn have caused 

more losses in taxes at all levels. It has had a direct impact on the 

Crow Nation which has lost the opportunity to mine, sell and tax 

millions of dollars of coal over the years which has negatively impacted tribal education, housing, health and other services, but 

more importantly, jobs. Mr. Chairman, it is jobs. 

Senator BARRASSO. Thank you very much, Mr. Stewart. 

Mr. Booker, during the cold snap last winter when Massachusetts imported liquefied natural gas from Russia to meet its energy 

needs, Massachusetts took a dramatic step because like other New 

England States, it has insufficient pipeline capacity to import gas 

from nearby States like Pennsylvania or trying to move it there. 

They just do not have the pipeline capacity to do it. 

The Boston Globe wrote, ‘‘The environmental toll this year was 

eye-popping. Greenhouse gas pollution exploded during this winter’s cold snap, leaving generators to burn 2 million barrels of oil.’’ 

Because they could not get natural gas through the pipeline, they 

went to oil. 

The lack of pipeline capacity is causing real harm to the environment as well as to energy security, as well as to the economy. 

Could you talk a bit about how Section 401 has delayed gas pipeline projects such as the Constitution Pipeline in New York from 

moving forward? Are you concerned about the negative environmental impacts? 

Mr. BOOKER. Yes, thank you for the question, Mr. Chairman. 

For us, what you just described is what we are trying to prevent, 

importing natural gas from Russia or from other places outside of 

this Country to keep our houses warm and keep our businesses 

open and running. 

When you have impacts and people using Section 401 not for 

what it is intended for, delaying these critical infrastructures and 

42 

pipelines, the immediate impact, as Mr. Stewart mentioned, is the 

jobs and for me, the people I represent to go to work. 

The further consequence is the environmental impact of burning 

heating oil rather than burning clean, natural gas which is a domestic resource which we are burying the market not only in this 

Country but globally through LNG exports. 

By having these delays and not having the needed infrastructure 

we have or that we need in the Northeast, we are further damaging the environment while we are not creating jobs that are absolutely needed in the Northeast and all over the Country. 

Senator BARRASSO. Mr. Stewart, when the State of Washington 

denied the water quality certification for the Millennium Bulk 

Project, it claimed there would be environmental harm, but the 

State of Washington’s own consultant concluded there would be a 

net environmental benefit in terms of emissions. 

The consultant found that the mining and export of coal in America for use in Asia through the terminal would reduce greenhouse 

gas emissions globally over time. I would like to introduce a report 

into the record of today’s hearing. It is a substantive report. Without objection, it will be submitted. 

[The referenced information follows:] 

43 


31623.369

S fAI 1: Of \VIISIIINGfON 

IJII'/\RIMINT OIICOLOCY 

I'( J Nov 'J7MlfJ o Ulpnpi.11 WI\ :JHSIN·7MIO o 360-407~f,Of)f} 

711 {or \V.t~hin,t;fnJJ Ut-l.t)' s·t·ri'in• ~ l'etS0/1.'> tdlh .I ~fH!t'Ch disahility C,lfl c,d/ U77-lU3-(d41 

September 26, 2017 

ivfillennium Bulk Terminals-Longview, LLC 

ATTN: ivls. Kristin Gaines 

4029 lnclustrial Way 

Longview, W A 98632 

RE: Scction40l Water Quality Certification Denial (Order No. 154 17) tor Corps Public 

Notice No. 2010-1225 Millennium Hulk Terminals-Longview, LLC Coal Export 

Terminal- Columbia River at River Mile 63, near Longview, Cowlitz County, 

Washington 

Dear Ms. Gaines: 

The Washington State Department of Ecology (Ecology) has reached a decision on the 

Ivlillcnnium Bulk Terminals-Longview request for a Section 40 l Water Quality Certit1cation for 

the proposed coal export terminal near Longview. Arter careful evaluation of the application and 

the final State Environmental Policy Act environmental impact statement, Ecology is dcnying 

the Section 401 Water Quality Ccrtit1cation with prejudice. 

The attached Order clcocribcs the specific considerations and cletcnninations made by Ecology in 

support of this decision to deny the Certiticalion with prejudice. Your right to appeal this 

decision is described in the enclosed denial Order. 

Sincerely, 

Maia D. Rellon 

Director 

Enclosure 

By certified mail [91 7199 9991 7034 8935 6995] 

cc: MutJy Walker, lJ.S. Army Corps of Engineers 

Danelle Guy, U.S. Army Corps ofEngineers 

Glenn Grelle, Grettc Associates, LLC 
44 


31623.368

National Mining Association is grateful for your leadership on introducing this much 

needed legislation. 

Sincerely, 

~· 

Hal Quinn 
45 


31623.370

IN THE MATTER OF DENYING 

SECTION 401 WATER QUALITY 

CERTIFICATION TO 

Millennium Bulk Terminals-Longview, LLC 

in accordance with 33 U.S.C. §1341 

(FWPCA § 401 ), RCW 90.48.260, RCW 

43.21C.060, WAC 197-ll-660, WAC 173-

802-ll 0, and Chapter 173-201 A WAC 

TO: Millennium Bulk Terminals-Longview, LLC 

Attention: Ms. Kristin Gaines 

4029 Industrial Way 

Longview, Washington 98632 

ORDER# 15417 

Corps Reference #NWS--20Hl-1225 

Millennium flulk Terminals-Longview, LLC 

Coal Export Terminal Columbia River at River 

Mile 63, ncar Longview, Cowlitz County, 

Washington 

On February 23,2012, Millcrmium Bulk Terminals-Longview, LLC (Millennium) submitted a 

Joint Aquatic Resources Permit Application (JARPA) to the Department of Ecology (Ecology) 

requesting a Scction401 Water Quality Certification to constmct a coal export terminal in 

Longview, Washington. Then on January 28,2013, Millermium sent a letter to the U.S. Army 

Corps of Engineers (Corps) and Ecology in which ivlillennium withdrew the request for the 

Section 401 Certification. Millennium stated that it would submit a new request when the 

Environmental Impact Statement (EIS) process concluded. In addition, on February 6, 2013, 

Millennium submitted an Ecology Water Quality Certification Processing Request form stating 

that it wished to withdraw its request and would resubmit nenr the end of the E!S process. 

On July 18,2016, Millennium submitted a new JAIU'A and request for Section40l Water 

Quality Certification. A notice regarding this request was distributed as part of a Corps joint 

public notice on September 30,2016. On June 22,2017, Ecology received a withdrawal/reapply 

form hom Millennium, which triggered another public notice that was issued on June 27, 2017. 

Millennium proposes to construct and operate a coal export terminal (Project) in and adjacent to 

the Columbia River (at approximately river mile 63) that would transfer up to a nominal 44 

million metric tons per year (MMTPY) of coal ti·om trains to ocean-going vessels. The 

completed coal export terminal would cover approximately 190 acres of the approximately 540-

acre property. The Project would consist of two docks, ship loading systems, s•ockpiles and 

equipment, rail car unloading llrcilities, an operating rail track, rail storage tracks to park up to 

eight trains, associated facilities, conveyors, and necessary dredging. The Project would be 

constructed in two stages over several years. 

Stage I of the Project would consist ofHrcilities to unload coal from trains, 

stockpile the coal on site, and load coal into ocean-going vessels at one of the two 

new docks. During Stage I, Millennium would construct two clocks (Dock 2 and 

3), one ship loader and related conveyors on Dock 2, berthing facilities on Dock 

3, a stockpile area including two stockpile pads, railcar unloading tircilities, one 

operating rail track, up to eight rail storage tracks for train parking, Project site 
46 


31623.371

Order 11/54/7, Corps Reference /INWS-2010-1225 

Alilfennium Bulk Terminals~Lon.~rview 

September 26, 2017 

!'age 2 of 19 

ground improvements, and associated facilities and int!·astructure. Once Stage I 

is completed, the Project would be capable of a throughput capacity of a nominal 

25 MMTPY. 

• During Stage 2, MBTL would construct an additional ship loader on Dock 3, two 

additional stockpile pads, conveyors, and equipment necessary to increase 

throughput by approximately 19 MMTPY, to a total nominal throughput of 44 

MMTPY. 

The main clements of Stage 1 development would include: 

Rail bed. 

Rail loop with arrival and departure tracks to include one operating track (turn 

around track) and eight rail storage tracks. 

o One tandem rotary unloaclcr (capable of unloading two rail cars) for operations, 

and one tandem rapid discharge unloaclcr to be used during startup and 

maintenance. 

o Two coal stockpile pads, Pads A and 13. 

• Two rail-mounted luffing/slewing stackers and associated n1eilities for Pads A 

and B. 

• Two rail-mounted bucket-wheel reclaimers and associated facilities for Pads A 

and B. 

• Two shipping docks (Dock 2 and Dock 3), with one ship loader and associated 

facilities on Dock 2. 

o Conveyors, transfer stations, and surge bin from the stockpile pads to the ship 

loading facilities. 

• In-bound and out-bound coal sampling stations. 

0 Support structmes, electrical transformers, switchgear and equipment buildings, 

and process control systems. 

• Upland facilities, including roadways, service buildings, water management 

facilities, utility infmstructurc, ami other ancillary facilities. 

The main elements of Stage 2 development would include: 

o Associated conveyors and transfer stations to the stockpile Pncls C and D from 

the rail receiving station. 

Two additional coal stockpile pads, Pads C and D. 

e Two additional rail-mounted luftlng/slewing stackers and associated facilities. 

• Two additional rail-mounted bucket-wheel reclaimers and associated 

facilities. 

o One additional ship loader and associated facilities on Dock 3. 

o Conveyors, transfer stations, and surge bins from stockpile Pads C and D to 

the ship loading facilities. 

The Project proposes impacting over 32 acres of wetlands (24 acres of which will be new 

impacts) and almost 6 acres of ditches. To offset these impacts Millermium has proposed to 
47 


31623.372

Order 1115417, Corps !?eference II Nll"'-20/0-1225 

~Ht/lennium Bulk Terminals-Long\'iew 

September 26, 2017 

Page 3 o/19 

construct a wetland mitigation site that encompasses approximately I 00 acres. The Project will 

also have 4.83 acres of new overwater coverage, and includes constructing an oft:chmmel slough 

mitigation site to address those impacts. 

I. AlJTHOIUTIES 

In exercising its authority under 33 U.S.C. § 1341, RCW 43.21 C.OGO, and RCW 90.48.260, 

Ecology has examined this applicntion pursuant to the following: 

I. Conformance with applicable water quaJity-bnsed, technology-based, and toxic or pretreatment effluent limitations as provided under 33 U.S.C. §§ 1311, 13 I 2, 1313, !3 16, 

and 1317 (FWPCJ\ §§ 301,302,303,306, and 307). 

2. Conformance with tho state water quality standards contained in Chapter 173-201 A 

WAC and authorized by 33 U.S.C. § 1313 and by Chapter 90.48 RCW, and with other 

applicable state laws. 

3. Conformance with the provision of using all known, available, and reasonable methods to 

prevent and control pollution of state waters as required by RC:W 90.48.01 0. 

4. Conformance with applicable State Environmental Policy Act (SEPAl policies under 

RCW 43.21C.060 and Wt\C 173-802-110. 

Pursuant to the foregoing authorities and in accordance with 33 U.S.C. § 1341, RCW 90.48.260, 

RCW 43.21C.060, Chapter 173-200 WAC, Chapter 173-201A WAC, WAC 197-11-660, WAC 

173-802-110, and Chapter 173-20 lA W i\C, as more fully explained below, Ecology is denying 

the Millennium Bulk Terminals-Longview request for Scction401 Water Quality Certi!lcation 

with prejudice. 

IJ. STATE ENVIRONMENTAL POLICY ACT (SEPA) 

The Final Environmental Impact Statement (FElS) issued by Cowlitz County and Ecology on 

April 28, 2017, identified nine areas of unavoidable and significant adverse impacts that would 

result from the construction and operations of the Project. As analyzed in the FE1S, the 

detrimental environmental consequences related to these impacts cannot be reasonably mitigated. 

further, the adverse impacts to the built and natural environments eont1ict with Ecology's SEP 1\ 

policies found in WAC 173-802-110. These policies state: 

( 1 )(a) The overriding policy of the department of ecology is to avoid or mitigate 

adverse environmental impacts which may result t]·om the department's decisions. 

(b) The department of ecology shall usc all practicable means, consistent with 

other essential considen1tions of state policy, to improve and coordinate plans, 

functions, programs, and resources to the end that the state and its citizens may: 
48 


31623.373

Order #I 5·111. Co!J!S l?e/ereuce II NIVS-2011!-1225 

Afillennfum Bulk Terminals~Longview 

September 26, 20 I! 

Page 4 q/19 

(i) Fulilll the responsibilities of each generation as trustee of the 

environment for succeeding generations; 

(ii) Assure for all people of Washington safe, healthful, productive, and 

aesthetically and culturally rleasing surroundings; 

(iii) Attain the widest range ofbenelicialuscs ofthe environment without 

degradation, risk to health or safety, or other undesirable and unintended 

consequences; 

(iv) Preserve important historic, cultural, and natural aspects of our 

national heritage; 

(v) Maintain, wherever possible, an environment which supports diversity 

and variety of individual choice; 

(vi) Achieve a balm1cc between population and resource use which will 

permit high standards of living and a wide sharing of life's amenities; and 

(vii) Enhance the quality of renewable resources and approach the 

maximum attainable recycling of depletable resources. 

(c) The department recognizes that each person has a fundamental and inalienable 

right to a healthful environment and that each person has a responsibility to 

contribute to the preservation and enhancement of the environment. 

(d) The department shall ensure that presently unquantificd environmental 

amenities and values will be given appropriate consideration in decision making 

along with economic and technical considerations. 

A. Significant Unavoidable Adverse Impacts 

1. Air Quality. The FEIS found a significant increase in cancer risk for 

areas along rail lines and around the Project site in Cowlitz County where diesel 

emissions primarily Ji·om trains would increase. The study found that residents in some 

areas in Cowlitz County, including those living in portions of the Highlands 

neighborhood, would experience an increase in cancer risk rate up to 30 cancers per 

million. These levels of increased risk exceed the approvahility criteria in WAC I 73-

460-090 l(ll' new sources that emit toxic air pollutants. Although WAC 173-460 only 

arplics to stationary sources, the health risks from mobile sources in this case, primarily 

locomotives, would be considered significant using the same approvability criteria. Thus, 

the FEJS concluded the emission of diesel particulate primarily fi·mn train locomotives 

would be a significant unavoidable adverse impact. As the FE!S explained, this impact 

could be mitigated, but not eliminated, by use of cleaner burning Tier 4 locomotives. 

l.lowever, use of such locomotives is outside the control of Millennium and may not 
49 


31623.374

Order Ill 54 I 7, Cmps li4erence H NIV,\'-20 I 0-1225 

t\lil!emtium Bulk Termina/.<:.'-LOIIgview 

September 26, 2017 

Page 5 o/19 

occur fi.1r decades because use of' older locomotives is currently allowed under ted era! 

law. Other mitigation measures identified in the FEIS related to air quality, such as use 

of best management practices and compliance with permits, would not reduce diesel 

emissions fi-om Project related locomotives. 

The increased cancer risk associated with the Project is a significant adverse unmitigated 

impact that is inconsistent with the following substantive SEPA policies in WAC 173-82-

llO: 

Fulfill the responsibilities of each generation as trustee of the environment 

for succeeding generations. 

Assure for all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing surroundings. 

Attain the widest range of benet!cial uses of the environment without 

degradation, risk to health or safety, or other undcsirub\e and unintended 

consequences. 

2. Vehicle Transportation. The FE!S lound that there would be signilicant 

unavoidable adverse impacts to vehicle tranic fi'om the proposed action when the Project 

reaches full operation in 2028 due to vehicle delays caused by increased train traftlc that 

would block rail crossings in Cowlitz County. With current track inll'<rstructmc on the 

Reynolds Lead and RNSf' Railway (RNSf') spur, Project-related trains in 202S would 

increase the total gate downtime by over 130 minutes during an average day at the six 

crossings listed below. Project-related trains would cause these crossings to operate at 

Level of Service E or F1 if one Project-related train traveled during peak traffic hours 

through the following crossings: 

Project area access opposite 38th Avenue 

Weyerhaeuser access opposite Washington Way 

Industrial Way 

Oregon Way 

California Way 

Jrd Avenue 

1 ''Level of Scrvice11 is a report card rating bns0d on the delay experienced by vehit.::ks at an inter.section or railroad 

crossing. Level of Service A, 13, and C indicate conditions where traffic moves wilhotlt substantird delays. Level of 

ServiceD and E represent progr~ssivcly worse operating conditions. l,cvel of Service F represents conditions where 

average vehicle delay has become excessive and demand has exceed~.:d capacity. 
50 


31623.375

Order 11/5417, Corps fiejerence I! NIVS-2010-1225 

A!i/lennium Oufk Terminals~ Longview 

.Yeptember 26, 2017 

Page 6 of/9 

Millennium nne! BNSF may make track improvements to the Reynolds Lead and BNSF 

spur that would allow trains to travel faster through these intersections and thereby 

reduce gate downtimes. However, even with these plmmcd track improvements to the 

Reynolds Lead and BNSF Spur, the Project at full build out in 2028 would still adversely 

impact and acid delays at four crossings, and cause the following crossings to operate at 

Level of Service E or F if two proposed Project-related trains traveled through them 

during peak traffic hours: 

Project area access opposite 3Xth Ave 

Weyerhaeuser access opposite Washington Way 

Jrcl Avenue 

Dike Road 

On the BNSF main line in Cowlitz County, the increased Projcct-rebted trains at full 

build out in2028 could adversely impact vehicle transportation at two crossings during 

peak traffic hours. The following crossings would operate Level of Service E if two 

Project-related trains travel during the peak hours: 

Mill Street 

South River Road 

Delay of emergency vehicles at rail crossing would also increase because of additional 

Project-related trains, 

As described in the FEIS, Millennium has agreed or may be required to implement 

several mitigation measures to address these impacts. These measures include funding 

crossing gates at the intersection of Industrial Way, holding safety review meetings, and 

notifying agencies about increases in operations on the Reynolds Lead. However, these 

measures will not reduce or eliminate the vehicle delays identified in t!w FEIS. Vehicle 

delays could be reduced by further improvements to rail and road infrastructure, however, 

it is currently unknown when or if such improvements would occur, Therefore, when the 

Millennium Project is at thll operation in 2028, unavoidable and significant adverse 

impacts would occur on vehicle transportation at certain crossings in Cowlitz County 

including delays of emergency vehicles. This impact is inconsistent with the following 

substantive SEPA policies: 

Assure tor all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing surroundings. 

Attain the widest range of bcnelicialuses of the environment without 

degradation, risk to health or safety, or other undesirable and unintended 

consequences. 

Maintain, wherever possible, an environment which suppot1s diversity and 

variety of individual choice. 
51 


31623.376

Order Hl5·117, C01ps Ref(;rence # NIVS-2010-1225 

t\Iil/ennium Bulk Terminals-Longview 

Septemba 26, 20/7 

Page 7 of 19 

Achieve a balance between population and resource usc which will permit 

high stqnclards of living and a wide sharing of life's amenities. 

3. Noise and Vibration. The I'EIS found that !here would be significant 

unavoidable adverse impacts to residences near four public at-grade crossings along the 

Reynolds Lead and BNSI' spur from train-related noise. Train-related t:oise levels would 

increase from train operations and locomotive horn sounding intended for public safety. 

Residences near the at-grade crossings at3rd Avenue, California Way, Oregon Way, and 

Industrial Way would experience increased daily noise levels that wendel exceed 

applicable noise criteria per l'ederal Transportation Administration/l'ederal Rail 

Administration guidance. 

Approximately 229 residences would be exposed to moderate noise impacts, and 

approximately 60 residences would be exposed to severe noise impacts. Although these 

impacts wmilcl be reduced near the Industrial Way and Oregon Way crossings ira gradeseparated intersection is constructed there as currently proposed, the proposal has not yet 

received permits and its completion date is unknown. 

As described in the FEJS, Millennium has agreed or may be required to implement 

several mitigation measures to address these train-related noise impacts. These measures 

include funding two "quiet crossings" at Oregon Way and Industrial Way grade crossings 

by installing crossing gates, barricades, and additional electronics. This proposed "quiet 

crossing" is not the same as a Quiet Zone, which requires the approval of the l'ccleral 

Railroad Administration. The reduction of noise pollution ihHn the proposed "quiet 

crossing" is unknown because Millennium trains may still be required to sound their 

horns at the intersections. Other measures include requiring Millennium to work with the 

City of Longview, Cowlitz County, Longview Switching Company, the alTectecl 

community, and other applicable parties to apply tor and implement a Quiet Zone that 

would include the J'd Avenue and California Avenue crossings. However, as a Quiet 

Zone requires the approval of the Federal Railroad Administration, it is beyond the 

control of Millennium and it is unknown if it will ever be implemented. Consequently, 

Quiet Zones are not considered an applicable mitigation meao:ure. 

The FE!S states that, if the Quiet /.one is not implemented, Millennium would fund a 

sound-reduction study to identify ways to mitigate the moderate and severe impacts from 

train noise. However, it is unknown who would fund, implement, anclmainlain 

recommendations to mitigate moderate and severe noise impacts identified in !he sound 

noise reduction study. The study itself does not mitigate the impacts. The Project's 

significant adverse impacts ti'01n noise are inconsistent with the tollowing substantive 

SEPA policies: 

Fulfill the responsibilities of each generation as tmstec of the environment 

for succeeding generations. 
52 


31623.377

Order #15417, Corps Rejerence II NWS-2010-1225 

1\>/illennium Bulk Terminals-/,ongvir:a' 

September 26, 2017 

Page 8 of 19 

Assure for all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing surroundings. 

Maintain, wherever possible, nn environment which supports diversity and 

variety of individual choice. 

Attain the widest range of beneficial uses of the environment without 

degradation, risk to health or safety, or other undesirable and unintended 

consequences. 

4. Social and Community Resources. The FE!S found that social and 

community resources would be significantly and adversely impacted by in<.:rcascd noise, 

vehicle delays, and air pollution. Impacts from the construction and operation of the 

Project would impact minority and low-income populations by causing 

disproportionately high and adverse effects. Impacts fi·om noise, vehicle delay, and 

diesel particulate matter inhalation risk would affect the Highlands neighborhood, a 

minority and low-income neighborhood adjacent to the Reynolds Lead in Longview, 

Washington. 

a. Adverse Health Impact fl·om Increased Cancer Risk Rate: Projectrelated trains and other operations would increase diesel particulate pollution along the 

Reynolds Lead, BNSF Spur, and BNSF mainline in Cowlitz County at levels that would 

result in increased cancer risk rates. The modeled cancer risk rme in the FEIS found a 

majority of the Highlands neighborhood would experience an increased cancer risk rate, 

varying from 3% to 10%. Use of Tier 4locomotivcs, which produce less diesel pollution, 

by RNSF would reduce but not eliminate diesel particu18te matter emissions and the 

associated potential cancer risk in the Highlands neighborhood. However, requiring Tier 

4 locomotives is outside the control of Millennium and may not occur for decades. 

Therefore, the Project's disproportionately high adverse etlccts related to increased 

cancer risk rates ti·om diesel particulate matler inhalation on minority and low-income 

populations would be unavoidable. 

b. Adverse Noise Impact: The Project would add !6 trains per day on 

the Reynolds Lead and increase average daily noise levels, which would exceed 

applicable criteria for noise impacts and cause moderate to severe impact to 289 

residences in the Highlands neighborhood. Approval, funding, and construction of Quiet 

Zones for f(mr highway and rail intersections would reduce noise levels. However, there 

is no sponsor(s) identified to apply for, nmd, and maintain Quiet Zones that would reduce 

noise levels at the four rail crossings. Quiet Zones are outside the control of Millennium 

and require approval from the Federal Railroad Administration. Therefore, Projectrelated trains would cause significant adverse unavoidable impacts to portions of the 

Highlands neighborhood and cause a disproportionately high adverse e/Tect on minority 

and low-income populations. 

c. Adverse Vehicle Trame Impact: Project-related trains would 

incrense vehicle delays at highway and rail intersections within the Highlands 
53 


31623.378

Order 11/5~17, Corps R~(erence II NWS-2010-1225 

~Hi//ennium Bulk Term hurls-Longview 

September 26, 2017 

!'age 9 of 19 

neighborhood. With the current track infrastructure on the Reynolds Lead, a Millenniumrelated train traveling during the peak traffic hours would result in a vehicle-delay impact 

at four public at-grade crossings in or ncar the Highlands neighborhood by 2028. This 

would constitute a disproportionately high adverse effect on minority and low-income 

populations. If planned improvements to the Reynolds Lead arc made, the adverse 

impacts related to vehicle delay could be reduced but not eliminated. Ilowcver, rail 

improvements have not received permits and their completion is unknown. Therefore, 

Millennium's disproportionately high adverse clTeets to vehicle traffic on minority and 

low-income populations would be unavoidable. 

5. Rail Transportation. The FEIS found that the Project would cause 

significant adverse effects on rail transportation that cannot be mitigated. At full build 

out of the Project, 16 trains a day (8 loaded ami 8 empty) would be added to existing rail 

traftic. Three segments on the BNSF main line routes in Washington (Idaho/Washington 

State Line-Spokane, Spokane-Pasco, and Pasco-Vancouver) are projected to exceed 

capacity with the current projected baseline rail traflic in 2028. Adding the 16 additional 

Millennium-related trains would contribute to these tluce segments exceeding capacity by 

2028, based on the analysis in the FElS and assuming existing infrastructure. As 

described in the FEIS, iVfillennium would mitigate some of the impacts by notifying 

BNSF and Union Pacific (UP) about upcoming increases in operations at the Millennium 

site. This proposed mitigation measure is informational and does not commit BNSF or 

UP to take action to increase capacity. 

BNSF and UP could make ncccssmy investments or operating changes to accommodate 

the rail traffic growth. but it is unknown when these actions would be taken or permitted. 

Improving rail infrastructure is outside the control of ivlillennium and cannot be 

guaranteed. Under current conditions Millennium-related trains would contribute to 

these capacity excecdances at three rail segments on the main line and could result in an 

unavoidable and significant adverse impact on rai I transportation, including delays and 

congestion. 

This impact is inconsistent with the following substantive SEPA policies: 

Fulfill the responsibilities of each generation as trustee of the environment 

t(Jr succeeding generations. 

Assure l(:>r all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing suJTouuclings. 

Attain the widest range of beneficial uses of the environment without 

degradation, risk tn health or safety, or other undesimble and unintended 

consequences. 
54 


31623.379

Order #15./17, Corp., R~terence II NWS-2010-1225 

~Hi/fennium Bulk Terminals-Longview 

September 26, 2017 

Page 10 of/9 

6. Rail Safety. The FEIS found that Millennium-rclatcdtrains would 

increase the train accident rate by 22 percent along the rail routes in Cowlitz County and 

Washington. As described in the FEIS, Millennium would notify BNSF and UP about 

upcoming increases in operations at the Millennium site. However, this notification 

measure docs not commit BNSF or UP to take action or make changes that would reduce 

accident rates. 

To reduce some of the impacts to rail safety, the Longview Switching Yard, HNSF, and 

UP could improve rail safety through investments or operational changes, but it is 

unknown when or whether those actions would be taken or permitted. Improving rail 

inli·astructure to increase rail safety is outside the control of Millennium and cannot be 

guaranteed. Therefore, the 22 percent increase to the rail accident rate over baseline 

conditions attributable to Millennium would result in unavoidable and signitlcant adverse 

impacts on rail safety. 

This impact is inconsistent with the following substmltivc SEPA policies: 

• Full! II the responsibilities of each generation as trustee oft he environment 

for succeeding generations. 

Assure for all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing surroundings. 

Attain the widest range ofbencfieialuscs of the environment without 

degradation, risk to health or safety, or other undesirable and unintended 

consequences. 

7. Vessel Transportation. The FE!S found that the Project would have 

signillcnnt adverse e!Tects on vessel transportation that cannot be mitigated. Millennium 

would add I ,680 ship transits to the current 4,440 ship transits on the Columbia River per 

year, tor a total of6,120 at full build out. Thus, the Project would be responsible for over 

one quarter of the traftlc in the Columbia River. 

Based on marine accident transportation modeling, the FEIS found the increased vessel 

tral'fic would increase the frequency of incidents such as collisions, groundings, and fires 

by approximately 2.8 incidents per year. While the chance that an incic'.ent would result 

in serious dnmage or spill is low, if a spill were to happen. the impacts to the environment 

and people would be signilicm1t and unavoidable. 

An increase in vessels calling at the proposed new docks increases the risk of vesselrelated emergencies, such as lire or vessel allision. An increase in vessels calling at the 

new docks also increases risk of spills t!·om refueling ships at berth, although MilleJmium 

has stated there would be no rel\1eling at the new docks. The FEIS proposes a mitigation 

measure that if refueling at the clocks were to start, the company would notify Cowlitz 

County and Ecology. Another mitigation measure in the FEIS involves Millennium's 

attending at least one Lower Columbia Harbor Satcty Committee meeting per year. 
55 


31623.380

Order #15·117, C017Js Reference# NIVS-2010-1225 

JHil/ennium Bulk Terminals-Lollf?View 

September 26, 2017 

Page II of/9 

Although these proposed mitigation measures would support comnnmication and 

awareness, they would not reduce environmental harm or the impact of an incident. 

If a Millennium-related vessel incident such as a collision or allision were to occur, 

impacts could be adverse and significant, depending on the nature and location of the 

incident, the weather conditions at the time, and whether any oil were clisclwrgccl. 

Although the likelihood of a serious Millennium-related vessel incident is low, the 

consequences would be severe and there are no mitigation measures that can completely 

eliminate the possibility of an incident or the resulting impacts. See WAC 197-11-794(2) 

(an impact nwy be significant if ib chance of occurrence is not great but the resulting 

environmental impact would be severe if it occurred). 

This adverse impact is inconsistent with the following Ecology SEP A policies: 

Fulfill the responsibilities of each generation as trustee of the environment 

for succeeding generations. 

Assure for all people of Washington safe, healthful, productive, and 

aesthetically and culturally pleasing surroundings. 

• Attain the widest range of beneficial uses of the environment without 

degradation, risk to health or safety, or other undesirable and unintended 

consequences. 

8. Cultural Resources. The FEIS found that construction of the coal export 

terminal would demolish the Reynolds Metals Reduction Plant Historic District, which 

would be an unavoidable and signiticant adverse environmental impact. Construction of 

the Project would demolish 30 of the 39 identitied resources that contribute to the 

historical significance of the Historic District. The anticipated adverse :mpacts on these 

resources would diminish the integrity of design, setting, materials, workmanship, 

feeling, and association that make the Historic District eligible for listing in the National 

Register of I Iistoric Places. 

A Memorandum of Agreement is currently being negotiated among the Corps, Cowlitz 

County, the Washington Department of Archacologic and Historic Preservation, the City 

of Longview, the Bonneville Power Administration, the National Park Service, 

potentially artected Native American tribes, and Millennium in a separate federal 

process. The Memorandum may resolve this impact in compliance with Section I 06 oC 

the National Historic Preservation Act of 1966. However, there is no indication when or 

if this Memorandum will be signed by all parties. Without the Memorandum, the impacts 

to the Reynolds Metal Reduction Plant Historic District arc considered adverse, 

signillcant, and unavoidable. 

Demolition of historic properties without mitigation is inconsistent witlr the f(lllowing 

Ecology SEP i\ policies: 
56 


31623.381

Order# /5-{ I 7, Corps Reference# NWS-20 /0-12 25 

1\c!i//ennium Bulk Terminals-Longvir:w 

September 26, 2017 

Page 12 of/9 

fullill the responsibilities of each generation as trustee of the environment 

for succeeding generations. 

Preserve important historic, cultural, and natural aspects of om national 

heritage. 

9. Trihnl Resources. The fETS found that constmction and operation of the 

Millennium coal export terminal could result in unavoidable indirect impacts on tribal 

resources. Tribal resources refer to tribal fishing and gathering practices and treaty 

rights. These resources may include plants or !Ish used fi.Jr commercial, subsistence, and 

ceremonial purposes. 

Constwction activities such as building new docks, river bottom dredging, and pile 

driving would cause physical and behavioral responses in Jlsh that could result in injury, 

and would a!Tect aquatic habitat. Fish stranding associated with wakes f!·om the 

additional 1,680 vessel trips per year would also cause injury. Eulachon would 

potentially be itnpacted by the initial and maintenance sediment dredging. 

Fugitive co<ll dust particles generated by the Millennium operations and additional trains 

would enter the aquatic environment tlu-ongh movement of coal into and around the 

Project area and during rail transport. Fugitive coal dust and potential spills would 

increase suspended solids in the Columbia River. 

These impacts could reduce the number of !ish surviving to adulthood and returning to 

/.one 6 of the Columbia River, and could affect the number of fish available for harvest 

by Native American Tribes. 

The increase in 16 additi01wl Millennium-related trains per day travelling through areas 

adjacent to and within the usual and accustomed 11shing m-cas of Native American Tribes 

would restrict access to 20 tribal fishing sites set aside by the U.S. Congress above 

Bonneville Dam in the Columbia River. There arc additional access sites that arc not 

mapped that would also be impacted. 

To reduce impacts to tribal resources tl·om construction, Millermium could be required to 

minimize underwater noise during pile driving, conduct advance underwater surveys for 

culachon prior to in-water work, and conduct fish monitoring prior and during dredging. 

These mitigation steps arc inadequate because although noise impacts ti·om construction 

would be reduced, they would not be eliminated, and fish behavior could be altered and 

affect the number of Jlsh available for harvest by Native American Tribes. 

Improving rail infrastnrcture for access to tribal tishing sites along the Columbia River 

above I3onneville Dam is outside the control of lvlillennium. The additional Projectrelated trains travelling through areas mljacent to and within the usual and accustomed 

fishing areas of Native American Tribes could restrict access to tribal fishing areas in the 
57 


31623.382

Order #15-117, Corps Reference H NWS-2010-1225 

~~fillermium Bulk Terminals~/,ongview 

Seplember 26, 20/7 

Page /J <?09 

Columbia River. Because other factors besides rail operations affect lishing 

opportunities, such as number of Jishers, fish distribution, and the timing and duration of 

fish migration periods, the extent to which Project-related wil operations would affect 

tribal fishing is difJJcult to quantify. However, SEPA policies state that "presently 

unquantilied environmental amenities and values will be given appropriate consideration 

in decision making along with economic and tcc!Ulical considerations." Consistent with 

this policy, Ecology concludes that lvlillennium at full operations would result in 

unuvoidable significant adverse impacts to tribal resources. 

Impacts to tribal resources nrc inconsistent with the following Ecology SEPA policies: 

Fultil! the responsibilities of each generation as trustee of the environment 

for succeeding generations. 

Preserve important historic, cultuwl, and natural aspects of our national 

heritage. 

The department shall ensure that presently unquantified environmental 

amenities and values will be given appruprinte consideration in decision 

making along with economic and technical considerations. 

Ill. SECTION 401 WAT!W. QUALITY CERTIFICATION 

Pursuant to Section 401 of the Clean Water Act, in order for Ecology to issue a water quality 

certification it must have reasonable assurance that the Project as proposed will meet applicable 

water quality standards and other appropriate requirements of state law. Consequently, an 

applicant must submit adequate information regarding a project for agency review bc!(Jre 

Ecology can determine complianct: with the state water quality standards and other applicable 

regulations. Millennium's current application and supplemental documents fails to demonstrate 

reasonable assurance in the following areas: 

A. Wetlands Impacts and Mitigation 

The Project would impact (till) 32.3! acres of wetlands, 8.1 acres of which occurred prior to 

Millennium's tenancy of the site, and 0.11 of which would be impacted at the mitigation site. 

The impacts include 28.32 acres of Category III wetlands and 3.99 acres of Category IV 

wetlands. For the reasons stated below, Millennium failed to demonstrate that the impacts and 

mitigation associated with the wetlands within the Project area will comply with Washington 

State water quality standards. Thus, Millennium t~1iled to demonstrate reasonable assurance that 

the Project will meet water quality standards. 

I. Mitigation Plan. The draft wetland mitigation plan is it:adequate and 

does not demonstrate that the proposed mitigation will offset the Projcc:'s Wl'tland 

impacts. Millc1lllillln submitted a conceptual mitigation plan to Ecology on June 8, 20 I 7 

(l'vfillemrium Coal Exporl Terminal, Lollt.'view, Washington Coal Exporr Terminal 

including Docks 2 and 3 and Associared Tresl/e Conceptual Miligaliolll'lcrll--We!lands 

ami Aquatic !!ahita!, dated May 25, 20 17). In response to Ecology's questions, 
58 


31623.383

Order #lj·/17, Carps Reference# NW.'i-2010-1225 

,\iil/enniwn !Ju!k Terminals-Lungview 

September 26, 21!17 

!'age 14 oj'/9 

Millennium submitted additional information on September 20,2017. However, the 

submitted information continues to be dcl!cient because it lacks an adequate credit/debit 

analysis, a boundary verification, and adequate hydrologic information regarding the 

mitigation site. 

2. Wetland Boundaries at the Impact Site. Millennium has not 

demonstrated that the boundaries of the wetlands to be impacted have been veritlcd by 

the Corps. There is no jurisdictional determination (JD) fi·om the Corps stating whether 

the wetlands arc waters of the United States or whether the Corps agrees with the 

boundaries as shown in the delineation report (Millennium Coal Export Terminal, 

Longview, Washington, Coal Export Terminal Wetland and Stormwater Ditch 

Delineation Report-- Parcel 619530400, dated September 1, 20 !4). Millennium's 

application therefore does not adequately quantify the extent of the wetland impacts and 

docs not adequately demonstrate that the proposed mitigation will of[sct those impacts. 

3. Ct·cdit-Dchit Analysis. This analysis is needed to determine whether 

proposed mitigation would adequately offset the Project's wetland impacts. It is 

especially important for a project of this scale, and where the impacted wetlands were 

rated using what is now an outdated version or the wetland rating system. The creditdebit analysis Millennium submitted to Ecology on September 20, 2017, did not include 

scoring forms for any of the wetlands to be impacted. Without these forms, Ecology 

cmmot evaluate the credit-debit analysis. Millennium has not provided a complete 

analysis to Ecology, thereby fi1iling to demonstrate that the proposed mitigation would be 

adequate. 

4. Hydrologic and Soil Investigations. The conceptual mitigation plan 

stales that: 'The nature of this surl~tce water will be further investigated as part of 

planned hydrologic investigations to support final Site design." The plan further states 

that "hydrologic data arc being collected." The plan also states that: "Additional, sitcspecilic soil investigations arc planned at the Mitigation Site to inform final mitigation 

design." Millennium has not provided the results of these hydrologic and soil analyses to 

Ecology. In its September 20,2017, responses to Ecology's questions about the proposed 

mitigation site, Millennium stated that it is still in the process of collecting hydrologic 

and soil data and that it will submit a technical report once compilation of the data has 

been completed. Because Millennium has not submitted detailed information supported 

by data about the hydrologic and soil conditions at the proposed mitigation site, 

Millennium hns not demonstrated tlwt the site is suitable and enn provide adequate 

mitigation. 

n. Stonnwatet· and \Vastcwater 

Suftlcicntly detailed information and analyses necessary to understand, evaluate, and condition 

wastewater and stormwater discharges are needed to assure compliance with Washington State 

water quality. Without complete infornwtion such as that noted below, Ecology docs not have 

reasonable assurance that the Project will meet water quality standards. 
59 


31623.384

Order #15-117, Corps !lef<rence II NWS-2010-1225 

t'v!iflennium Bulk Terminals-Longview 

September 26, 2017 

Page I 5 ~j'/9 

1. Wastewater Characterization. Wastewater characterization information 

is necessary for Ecology to evaluate the impact of discharges fi-om the Project on the 

receiving water (surface water, ground water, and sediments) and to determine the need 

for effluent limits, monitoring requirements, and other special conditions to ensure that 

the Project will meet state water quality standards. This information is typically required 

in an application for a National Pollutant Discharge Elimination System (NPDES) permit 

(WAC 173-220-040 and 40 C.F.R. § 122.21). 

In response to Ecology's requests, Millennium submitted additional information on 

September 20, 2017. However, the submittals still do not provide detailed information to 

adequately characterize process wastewater and stormwater that will be gcncmted at the 

site, including: 

Sources of wastewater (points of generation). 

Estimated wastewater volumes. 

Estimated pollutant concentrations. 

2. All Known, Available and Rcasonnblc Methods of Prevention, 

Control and Treatment (AKART) and li:ngineering Reports. AKART is required by 

three state statutes deating with water pollution and water resources (Chapter 90.48 

RCW, Chapter 90.52 RCW, and Chapter 90.54 RCW) and the state NPDES regulations 

that implement these laws (WAC 173-220). These laws and regulations state that in 

order to ensure the purity of all waters of the slate ant! regardless of the quality of the 

waters of the slate, discharges must be treated with all known, available, and reasonable 

methods of prevention, control, and treatment. 

Chapter 173-240 W i\C requires submittal of engineering reports and plans for new and 

modified industrial wastewater conveyance, di~chmge, and treatmcnll~rcilitics. Industrial 

wastewater includes contmninated stonnwater. Ecology uses the information in the 

engineering report to determine whether A10\RT is being met and to ensure that effluent 

fi·om the Project will meet applicable ef!luenl limitations to prot<:ct aquatic life. 

Millennium's submittals, including the submittal of September 20, 2017, did not provide 

sufficient inf(1rmation to determine whether i\Ki\RT will be met lor both process 

wastewater and storm water generated from the Project. The following is a list of 

in±ormation deficiencies: 

The current AKART analysis docs not address the wastewater generated 

during construction and operation of the Project (i.e., the current A KART 

analysis addresses only existing Millennium operations). 

" Spcci±ic best management practices (Blv!Ps) tor stonmvater management 

on site, at and ncar rail lines, and for rail car unloading were not provided. 

o Engineering rcpot1s were not submitted lor the following: 
60 


31623.385

Order 1115417, Corps Reference II NIVS-2010-1225 

,\-/i/lennium !Julk Terminals-Longview 

September 26, 2017 

Page 16 of/9 

o Storm water collection and treatment facilities (including dock and 

trestle). 

o The new wastewater treatment system. 

o Any proposed modifications to the existing wastewater treatment 

system. 

o Changes to hydraulic loading through the existing wastewater 

treatment system and through the conveyance and outfall structures. 

3. Mhing Zone. Ecology may authorize a mixing zone to meet water quality 

criteria once it has been determined that A KART has been met (WAC 173-201 A-400). 

Water quality criteria must be met at the edge of a mixing zone boundary. Ecology uses 

the dilution !actors dctcrminedl(H· each mixing zone in analyzing the potential for 

violation of water quality standards and to derive effluent limitations as necessary. 

Millennium's submittals did not provide updated mixing zone information, which 

Ecology would need in order to determine potential to violate water quality standards. 

Missing information includes a new mixing zone nnalysis to evaluate changes in dilution 

factors due to changes in the linal eftluent at Outtilll 002A and updated receiving water 

information. 

4. Construction. Contaminated stonnwatcr and ground water will be 

generated during construction ofthe Project. Ecology needs sufficient information to 

evaluate the impact of construction activities and the discharges from these activities on 

waters of the state. This is information that is necessary for reasonable assurance and to 

demonstrate AK/\IZT as discussed above. 

Millennium's submittals provided very little information concerning the unique 

construction of the Project. Missing inf(mnation includes the following: 

flow compaction of soils will potentially impact groundwater and surface 

water. 

Specilic construction BMPs. 

Construction stormwater and groundwater characterization information, 

induding estimated volumes and pollutant concentrations. 

Whether construction wastewater will be adequately treated. 

5. Antidegradation. The Clean Water Act requires that state water quality 

standards protect existing uses by establishing the maximum levels of pollutants allowed 

in state waters. The antidegradation process helps prevent unnecessary lowering of water 

quality. Washington State's antidegrnclation policy follows the federal regulation 

guidance and has three tiers of protection. Tier II (WAC 173-20 I A-320) is used to 

ensure that waters of a higher quality than water quality criteria are not degraded unless 

such lowering of water quality is necessary and in the overriding public interest. A Tier 
61 


31623.386

Order #15417, Corps Reference H NIVS-20/0-1225 

}vfil/emtium /Ju/k J'erminals-l.rmgview 

Seplember 26, 2017 

Page 17 q/19 

II analysis must be conducted for new or expanded actions when the resulting action has 

the potential to cause a measurable change in the physical, chemical, or biological quality 

of a water body. 

tvlillennium's submittals did not include a detailed Tier II analysis for process wastewater 

and stonnwatcr to determine whether the Project has the pote:ntial to cause measurable 

degradation at the edge of the chronic mixing zone. 

Ecology notified Millennium during various meetings, conference calls. and site visits 

during 2017 (June 8, June 19, June 28, August 1 G, August 29, and September 8, 20 17) 

that detailed information regarding the stonnwater and process wastewater would need to 

be submitted to Ecology in order to provide reasonable assurance that the discharges 

[rom the Project 1vould meet state water quality standards. 

C. Water H.ights 

The Millennium proposal includes operational descriptions for ongoing reuse of stormwater f(lr 

industrial dust control. If storm water is collected and reused for a beneficial usc, a water right 

permit would be required in accordance with Chapter 90.03 RCW. 

The Millennium property t(mJlcrly supported the Reynolds aluminum smelter. During the 

operations as an aluminum smelter, Reynolds had three water right claims and six water right 

certificates with a combined total annual quantity (Qa) of 31,367 acre-teet per year at a 

withdrawal rate of 23,150 gallons per minute (Qi). The Reynolds smelter closed in 2000. 

These claims and certificntcs nrc now owned by Northwest Alloys, who purchased the property 

fi·mn Reynolds in the early 2000s. No information has buen provided to Ecology that documents 

continued beneficial usc of water since about the early 2000s. 

In December 2016, Ecology met with Millennium and requested records and other relevant 

information to document what the current and recent water uses have been on the Millennium 

property. To date, Millennium has not provided this information. If these water rights have been 

partially or fi1lly relinquished, Millennium would need to apply lclr and obtain the necessary 

water rights to legally put water to beneficial usc at the Project site for its proposed operations. 

As of September 26,2017, no information has been provided by l'vlillennimn to Ecology in order 

to quantify the extent and validity (or continued benctlcialuse) of the existing water rights that 

are appnrtenant to the property, and no water right application(s) have been received by Ecology 

requesting any new use of water or change in bcncficialusc(s) of water. 

Without a water right, Ecology does not have reasonable assurance that i'v!illcnnium will be able 

to legally carry out its proposal. 
62 


31623.387

Order H 15417, Corps Re}i!rence H NIVS-2010-/225 

tHillennium Bulk Terminah:-Longview 

September 26, 2017 

Page 18 of 19 

D. Toxics Clennup 

The proposed location lbr the Project is the former Reynolds Metals aluminum smelter site. This 

is a Model Toxics Control i\ct cleanup site. The principal contaminants are tluoride, polycyclic 

aromatic hydrocarbons (PAHs), cyanide, and total petroleum hydrocarbons (TPHs). Millennium 

and Northwest Alloys (a subsidiary of Alcoa) are potentially liable persons (l'LPs) for the site. 

Alcoa owns the properly. Millennium leases the property ti'01n Alcoa. The PLPs have been 

working to define the extent of the contamination at the site and evaluate the potential cleanup 

alternatives. Public notice of a draft cleanup action plan outlining the proposed cleanup was 

issued in tv!arch 2016. Ecology has been working with the PLPs to provide additional sampling 

along the Columbia River to address comments received on the draft cleanup action plan. To 

date, the cleanup action plan nne! consent decree have not been finalized. 

Portions of the Project's inli·astructure are located on contaminated soil and a historic landtlll at 

the site. The majority of the site contains contaminated ground water. Proposed construction 

and operation of the Project would likely alter the migration of contaminated ground water at the 

site. The bali<Jst that will be used during constmction could force ground water to the smface 

with potential for discharge to the Columbia River. 

Millennium's submittals do not provide sufficient information to evaluate the impact of the 

potential discharge of contaminated stonnwater and ground water during the construction and 

operation of the Project. As a result, Millennium failed to demonstrate reasonable assurance that 

the Project will meet Willer quality standards. 

YOUR RIGHT TO APPEAL 

You have a right to appeal this Denial Order to the Pollution Control Hearings Board (PCHB) 

within 30 days of the date of receipt of this Denial Order. The appeal process is governed by 

Ch<~pter 43.21 B RCW and Chapter 37l-08 W i\C. "Date of receipt" is defined in RCW 

43.21 [3,001 (2). 

To appeal you must do all of the following within JO days of the date of receipt of this Order: 

File your appeal and a copy of this Denial Order with the PCH[l (see addresses below). 

Filing means actual receipt by the PCHB during regular business hours. 

Serve a copy of your appeal and this Denial Order on Ecology in paper fonn-by mail or 

in person. (Sec addresses below.) E-mail is not accepted. 

You must also comply with other applicable requirements in Chapter 43.21 B RCW and 

Chapter 371-08 WAC. 
63 


31623.388

Order 1115417, Corps Re/erenee II NIVS-2010-1225 

Aiillennium Bulk Terminals-Longview 

September 26, 2017 

Page 19()/19 

ADDRESS AND LOCATION INFORMATION 

I Street Adcl_r'esses--

Dcpartment of Ecology 

--------~~~ 

________ Mailin{J Addre~!!;~~-- -1 

Attn: Appeals Processing Desk 

300 Desmond Drive SE 

Lacey, W A 98503 

Pollution Control Hearings Board 

1111 Israel RD SW, Suite 301 

Tumwater, \VA 98501 

4Jtl" I /1 ; I I if1&'6Wt;t!.lft····-· 

Maia D Bellon, Director 

Department of Ecology 

Department of Ecology 

Attn: Appeals Processing Desk 

PO Box 47608 

Olympia, W A 9S504- 7608 

Pollution Control Hearings Boanl 

PO Box 40903 

Olympia, WA 98504-0903 
64 


31623.389

Sll\H or W!ISIIINt;roN 

I )11>;\RIMI NT 01 IC:OIOC ;y 

/ 1() /lo\· 47MJO " 0/pnpi.l, \\';\ fJWiO·I-1MJO o 3MJ·•HJ'1-fd}(j{} 

'/f I {or \\ ,r~hington Ud,Jy St'll'ic<?" /'('tsons H'ifh ~: o;pu·<.'ll di:.'o'tbilily cwt c~flllJ77-IJJ3·f,341 

October 23, 2017 

Kristin Gaines 

Millennium Bulk Terminals Longview 

4029 Industrial Way 

Longview, W i\ 98632 

RE: Point of Contact lor Communication between Millennium Bulk Terminals-Longview and 

Washington State Department of Ecology 

Dear Ms. Gaines: 

This letter responds to recent requests the Department of Ecology (Ecology) has received 

regarding technical assistance for additional permit applications for the Millennium Bulk 

Terminal--Longview (Millennium) proposed coal export terminal. One request came from 

Millennium's consultant at American Multinational Engineering Finn related to an air quality 

permit application, and the other request was ll·om the Millennium team related to a National 

Pollutant Discharge Elimination System permit application. 

i\s you know, on Scptcmbt:r 26, 2017, Ecology denied the Section 401 Water Quality 

Ccrtitlcation requested by Millennium. The denial of this permit was based on the Clean Water 

Act and the State Environmental Policy Act. 

ln considering l'uture permit requests ll·om Millennium for the proposed coal export terminal, 

Ecology would be required to follow all relevant underlying laws. Specifically, the State 

Environmental Policy i\ct would require consideration of the findings of the April 28, 2017, 

Final Environmcntallmpnct Statement (EIS) prepared by Cowlitz County and Ecology. The E!S 

identified the following nine unavoidable, un-mitigatable and adverse impacts related to the 

Millennium proposal: 

Increases of train-related noise to residences ncar four public at-grade crossings along the 

Reynolds Lead and BNSF Railway spur. 

• V chicle delays caused by increased train traffic that would block rail crossings in Cowlitz 

County. 

An increase in cancer risk for areas along rail lines near the project site and in Cowlitz 

County from increased diesel emissions primarily tl·om trains. 
65 


31623.493

The Honorable Paul Ryan 

The Honorable Mitch McConnell 

The Honorable Nancy Pelosi 

The Honorable Charles Schumer 

August 9, 2018 

Page 3 

~tL Karen White 

Executive Director 

Conference of Western Attorneys General 

~~ID~~ Council of State Governments- West 

Jau~~"~'~_Qt -______, r;J: Laura Nelson 

Chair 

Western Interstate Energy Board 

~~ David Adkins 

Executive Director f CEO 

Council of State Governments 

President 

Western Interstate Region of NACo 

~ ~~-'~ Ton~dson Executive Director 

Western States Water Council 
66 


31623.494

STAlE OF WASHINGTON 

DEPARTMENT OF ECOLOGY 

1'0 !lox 47600 • Olympi.1, WA 98S04-76UU • 360-407-6000 

71 I for Was!Jingtun R<l•r Service • l'ersons with a speech disahilitr can mil 877-833-6341 

August 15,2018 

The Honorable Jolm Barrasso 

Chairman, Senate Environment & Public Works Committee 

307 Dirksen Senate Office Building 

Washington, DC 20510 

The Honorable Tom Carper 

Ranking Member, Senate Environment & Public Works Committee 

513 Hart Senate Office Building 

Washington, DC 20510 

Dear Chahman Barrasso and Ranking Member Carper: 

The Washington State Department of Ecology has been falsely accused of denying a water 

quality permit to the Millennium project based on our agency's so-called philosophical 

opposition to the coal export tenninal. This is frankly nonsense. 

The facts of this denial are simple: Millennium failed to meet existing water quality standards 

and further failed to provide any mitigation plan for the areas the project would devastateespecially along the Columbia River. To approve this pennit under the circumstances would not 

only have been irresponsible, it would have posed a serious health risk to impacted communities 

and the surrounding environment. 

As you know, the Clean Water Act charges states with the authority and responsibility to protect 

water quality within their borders by issuing permits and licenses. In this case, as in all previous 

cases, the Depmtment of Ecology acted within its legal responsibility and did its duty to apply 

the regulations and follow legal precedent in an evenhanded manner. 

In the company's filings in its many legal challenges to the Depattment of Ecology's decision, 

Millennium has acknowledged the basis of the permit denial: At many stages, the applicant 

failed to provide reasonable assurance that the project would not cause irreparable harm to water 

quality. The company acknowledges these shortcomings, but claims for itself the right to ignore 

them. They simply resist playing by the same rules required of everyone else. 
67 


31623.495

The Honorable John Barrasso 

The Honorable Tom Carper 

August 15, 20 18 

Page 2 

All you have to do is look at a list of the impacts from this project to understand its potential to 

damage Washington's water quality: 

• Destroying 24 acres of wetlands and 26 acres of forested habitat. 

Dredging 41 acres of river bed. 

Driving 537 pilings into the river bed for over 2,000 feet of new docks, resulting in the 

loss of five acres of aquatic habitat. 

• Increasing vessel traffic on the Columbia River by 25 percent- an additional 1,680 ship 

trips a year. 

The sheer scale of the proposal poses obvious environmental challenges, regardless of the 

material being handled: 

• 1.5 million tons of material stockpiled on site picture an 85-foot-high pile of coal 

running the length of the National Mall, from the steps of the Capitol to the foot of the 

Lincoln Memorial. 

Contaminated stormwatcr running off those piles (in addition to the coal dust and spillage 

tied to moving material from rail to ship). 

• Sixteen train trips a day, each over a mile long and pulled by four diesel locomotives. 

In short, there are multiple, insolvable problems with the proposal. The company understood 

these problems when the Depa1iment of Ecology completed the environmental impact statement 

in pmincrship with Cowlitz County. Although the company did not challenge the findings of the 

environmental study, its leaders appear to believe that if they can only yell loudly enough, these 

environmental impacts will somehow disappear. 

Though the Department of Ecology has been accused of being biased for its denial of this permit, 

it is not the first entity to reject a coal terminal in the Northwest. Two others have been proposed 

and rejected in recent years: One by the U.S. Army Corps of Engineers and one by the State of 

Oregon. Each of those proposed projects raised similar issues to this one. 

We are confident in the work we have done to protect Washington waters from irreparable harm. 

The Columbia River is the beating heart of Washington State. It is our nation's fourth-largest 

river and home to endangered salmon. The health of this river is vital to our state's agricultural 

and manufacturing economies, central to our energy production, relied on by Washington's 

treaty tribes, and an irreplaceable link in the environment that Washingtonians treasure. 

The Columbia River deserves the full protection of the law, and the Department of Ecology 

honored both the letter and the intent of the law in making our decision. The idea that the federal 

government can run roughshod over the decisions of those who know, live in, and love 

Washington is deeply troubling. 

For more than a year, my agency has been falsely charged with every manner of malfeasance by 

the proponents of this project. Officials in states that would bristle at the hint offederal 
68 

Senator BARRASSO. Can you talk a bit about how the export of 

American energy can actually improve, not reduce, environmental 

protection? 

Mr. STEWART. In general, when you talk about how it will improve the economy, look at Native America. We are the most regulated ethnic body on the face of God’s green earth. We live in our 

areas for all perpetuity and we are going to continue to live there. 

We are not going to allow pollution to be something that will ruin 

our land, water and air. 

When we are developing our resources, we make sure that our 

resources are developed in a responsible manner. I would rather 

have a better regulated product here in the United States than 

have to import unregulated product coming from someplace else. 

With all due respect, Mr. Chairman, when you are closing the 

door on our ability to send out our product, what doors are the 

NGO’s and States leaving open? 

Senator BARRASSO. Thank you, Mr. Stewart. 

I would like to welcome Mr. Anthony Willardson who has joined 

us. We are delighted to have you. He is Executive Director of the 

Western States Water Council. If it is appropriate, at this time, I 

would like to hear your testimony. 

STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE 

DIRECTOR, WESTERN STATES WATER COUNCIL 

Mr. WILLARDSON. Thank you, Senator. I apologize for being 

tardy. I had a misunderstanding of the beginning of the hearing. 

We want to thank you, Mr. Chairman, Senator Carper and also 

the other members of the committee for this opportunity to testify 

on the importance of the Clean Water Act Section 401 Certification 

Authority to the States. 

We also appreciate your leadership on issues of water and public 

works as well as balancing environmental and economic interests, 

as well as balancing two Federal policies and programs and the 

role of our States in our Federalist system. 

Federal agencies need to work together with the States. I would 

like to mention that we have a Western Federal Agencies Support 

Team with 12 agencies that work with the council on water policy 

issues. Our current, new Federal liaison will be John D’Antonio 

with the Army Corps of Engineers. 

I would also like to mention that Congress has, in the past, recognized and deferred to the primary authority of the States to allocate their water resources as well as to appropriate, develop, conserve and protect those resources, both surface and in-groundwater, 

as well as water quality instream flows and protect aquatic species. 

Section 8 of the Reclamation Act, Section 10 of the Federal 

Power Act, Section 101(g) and Section 101(b) as well as Section 401 

all speak to State authorities. 

The council supports the appropriate streamlining of permitting 

and processes, as well as the coordination of environmental and 

regulatory reviews to eliminate duplication where we can and reduce costs as well as reducing the cost of compliance, construction 

and ensure timely permitting processes. 

The West enjoys a diverse and abundant stock of natural, renewable and non-renewable energy resources but water is often scarce. 

69 

The Council has specifically supported Federal legislative and administrative actions to authorize and implement reasonable hydropower projects. That is the area where we have the most experience with Section 401 consistent with State law and regulatory authorities. 

The Federal Power Act, Section 27, declares that ‘‘Nothing herein 

contained shall be construed as affecting or intending to affect or 

in any way interfere with the laws of the respective States related 

to the control, appropriation, use or distribution of water.’’ In California v. FERC, the State claimed authority to supplement minimum stream flows required by FERC. As I am sure you are aware, 

49 States signed an amicus brief before the Supreme Court. We 

lost 9 to 0 in that case. 

It was only 5 years later that in a case in the State of Washington over 401 that the Supreme Court restored authority to the 

States to mandate minimum bypass flows. That has been particularly important to the States since then. 

At the time, the Supreme Court mentioned that Congress could 

change what they had done. We have supported legislation to assure that all applicants for hydropower licenses comply with States’ 

substantive and procedural law, and that this was the original intent of Congress. 

As Congress again considered legislation, the Supreme Court 

made changes to the way Section 401 has been applied. Again, in 

2006, the Court recognized that 401 certification authority applied 

to more than just discharges under the Clean Water Act. 

As I am sure you know, Section 101(g) was sponsored by Senator 

Malcolm Wallop of Wyoming who was a champion of regulatory efficiency and State water rights. In 2004, the council conducted a 

survey looking at the processes our States use for issuing 401 certifications and what, if anything, may amount to delays. The consensus of those States was that certification alone is not an obstacle to timely Federal permitting and, in most cases the majority of 

requests were processed within 40 to 90 days. 

The delays were typically due to the submission of an incomplete 

application, not responding to the State’s request for more information, incomplete study requirements or failing to comment on proposed project conditions. Substantive changes can happen. 

We appreciate the opportunity to be here to testify on this issue 

and look forward to working with you, Senator, as Chair, and other 

members of the committee. Improvements can be made. We are 

willing to work with you on that. 

I would suggest one first step is to consult with the States early 

and often. I think some of those entities have already expressed 

their opinion here as far as the Coalition of Western Governors, attorney generals, legislators and other State and wetland agencies. 

Thank you. 

[The prepared statement of Mr. Willardson follows:] 

70 


31623.032

Testimony of the Western States Water Council 

Submitted to the 

Senate Committee on Environment and Public Works 

Regarding State Authorities and 

S. 3303 -Water Quality Certification Improvement Act 

August 16, 2018 

I. INTRODUCTION 

My name is Tony Willardson, and I am the Executive Director of the Western States 

Water Council (WSWC). The Council is a government entity, instrumentality of each and every 

participating member state. A bi-partisan organization created pursuant to a Western Governors' 

resolution in 1965, we represent eighteen states. Our members are appointed by and serve at the 

pleasure of their respective Governors, advising them on water policy issues. Our mission is to 

ensure that the West has an adequate, secure and sustainable supply of water of suitable quality 

to meet its diverse economic and environmental needs now and in the future. 1 

Chairman Barrasso, Senator Carper and members ofthe Committee, we appreciate your 

leadership on issues related to water, public works, the environment and the economy, and 

particularly your efforts to achieve a balance between federal policies and programs and the role 

of the states in our federalist system. The Council represents a diverse set of States but find 

common ground in declaring that Western states have primary authority and responsibility for 

the appropriation, allocation, development, conservation and protection of water resources, both 

groundwater and surface water, including protection of water quality, instream flows and aquatic 

species. 

The Congress has historically deferred to state water law as embodied in Section 8 of the 

Reclamation Act, Section 10 ofthe Federal Power Act, Section lOl(g) and IOI(b) of the Clean 

Water Act, and myriad other statutes. Any weakening of the deference to state water laws is 

inconsistent with over a century of cooperative federalism and a threat to water rights and water 

rights administration in all western states. 2 The Council has addressed many issues under the 

jurisdiction of this Committee. 

The Council has called for leadership at all levels of government, in partnership with the 

public sector, to address the Nation's infrastructure and water needs as a public policy priorityand to work together with each other and with States to streamline permitting processes and 

coordinate environmental and other regulatory reviews to eliminate duplicative procedures, 

reduce costs of compliance and construction, and ensure timely completion, maintenance, or 

relicensing of authorized infrastructure projects so vital to the West and the Nation.3 

This month, meeting in Newport, Oregon, the Council adopted two resolutions. One 

recognizing Congress stated policy in the Endangered Species Act Section 2(c)(2) that "Federal 

agencies shall cooperate with State and local agencies to resolve water resource issues in concert 
71 


31623.033

with conservation of endangered species," and calling upon "federal agencies to engage is a 

substantive discussion of past, present and future efforts to work in concert with State agencies to 

implement Congress' intent.. . .''4 

The second reiterates our position that the transport of water through constructed 

conveyances to supply beneficial uses- without subjecting the water to intervening industrial, 

municipal, or commercial use- should not trigger federal NPDES permit requirements, simply 

because the transported water contains different chemical concentrations and physical 

constituents, and calls for the use of available State authorities to protect the water quality of the 

receiving water body in a water transfer. The Council supports EPA's current rule expressly 

excluding water transfers from regulation under the NPDES permitting program and supports the 

codification of 40 CFR l22.3(i) into statute. 5 

Lastly, the Council been working with its member states to revise and refine 

recommendations for redefining waters of the United States under the Clean Water Act and 

clarifying federal and state jurisdiction, recognizing that all waters are protected by the States, 

regardless of the extent offederal jurisdiction or limits thereof. 

II. THE WATER/ENERGY NEXUS IN THE WEST 

The Council has called for integrating water and energy resources planning and policy. 6 

The West enjoys diverse and abundant energy resources, including renewable and non-renewable 

resources, but water is scarce in much of the region and may or may not be sufficient for all 

proposed uses. Maintaining adequate and sustainable supplies of clean water and energy present 

interrelated challenges given a growing population, increasing water and energy demands, and an 

uncertain climate subject to multi-year drought and other extremes. An integrated approach to 

water and energy resource planning, development, diversification, management and protection is 

necessary to achieve a thriving and sustainable future for the West. 

The Council has specifically supported federal legislative and administrative actions to 

authorize and implement reasonable hydropower projects and programs that enhance our electric 

generation capacity and promote economic development, through streamlined permitting 

processes, while appropriately protecting environmental resources- also declaring that past, 

present and future hydropower development and operational changes should recognize and 

ensure consistency with state law and regulatory authority, including delegated authority under 

federal law. 7 

The Federal Power Act 

Of note, Section l 0 of the Federal Power Act (FPA) of 1920 directed the Federal Energy 

Regulatory Commission (FER C) to coordinate the development of hydroelectric projects as part 

of a comprehensive plan for improving our waterways. Section I O(a)(l) required that any plan 

'' ... shall be such as in the judgment of the Commission will be best adapted to a comprehensive 

plan for improving or developing a waterway or waterways for the use or benefit of interstate or 

foreign commerce, for the improvement and utilization of waterpower development, for the 
72 


31623.034

adequate protection, mitigation, and enhancement of fish and wildlife (including related 

spawning grounds and habitat), and for other beneficial public uses, including irrigation, flood 

control, water supply, and recreational and other purposes ... and if necessary in order to secure 

such plan the Commission shall have authority to require the modification of any project and of 

the plans and specifications of the project works before approval." 

Section 1 O(a)(2) requires that the Commission shall consider the " ... extent to which the 

project is consistent with a comprehensive plan (where one exists) for improving, developing, or 

conserving a waterway or waterways affected by the project that is prepared ... " pursuant to 

federal law or the state in which the project is located. Moreover, FERC is to consider: "The 

recommendations of Federal and State agencies exercising administration over flood control, 

navigation, irrigation, recreation, cultural and other relevant resources of the State in which the 

project is located, and the recommendations (including fish and wildlife recommendations) of 

Indian tribes affected by the project." 

Further, Section 27 states: "That nothing herein contained shall be construed as affecting 

or intending to affect or in any way to interfere with the laws of the respective States relating to 

the control, appropriation, use, or distribution of water used in irrigation or for municipal or other 

uses, or any vested right acquired therein. 8 

Balancing federal and state authority related to hydropower development has been a 

difficult and sometime contentious undertaking. 

In 1983, FERC issued a license authorizing the operation of a hydroelectric project along 

Rock Creek in California, setting an interim minimum flow rate of water that must remain in the 

bypassed section of the stream rather than drive the generators. The State Water Resources 

Control Board (S WRCB) issued a state permit conforming to those federal requirements but 

reserving the right to set different permanent requirements. When S WRCB considered a draft 

with considerably stricter requirements, the licensee petitioned FERC for a declaration that 

FERC possessed exclusive jurisdiction to determine the project's minimum flow rates. FERC 

agreed, concluding that setting flow rates was "integral to its planning and licensing process" 

under the Federal Power Act, and that "giving effect to competing state requirements would 

interfere with its balancing of competing considerations in licensing and would vest in States a 

veto power over federal projects inconsistent with the FP A," as interpreted by the Supreme Court 

in First Iowa. 9 California sued. 

California v. FERC reached the 9th Circuit Court of Appeals which found that " ... one 

reading would construe the [Section 27] to limit state authority to the area of property rights 

involving water for irrigation, municipal use, and related activities. Under this reading, any 

aspect of operating a hydropower project not implicating these rights would fall under exclusive 

federal regulation. A second reading would construe the section much more broadly as an antipreemption clause that gives the states final authority over all issues connected to the control and 

use of water .... " California argued for the latter interpretation, but the 9th Circuit disagreed, and 

held that " ... Congress intended to vest regulatory authority in FERC over most aspects of 

hydropower projects. Only control over certain limited proprietary rights remains in state 

hands.'' 10 
73 


31623.035

California appealed the decision to the Supreme Court, which granted certiorari. 11 The 

issue on appeal was "Whether the Federal Power Act preempts state regulatory water right laws 

otherwise applicable to hydropower projects licensed by FERC, or instead, whether Section 27 

of the Act- which subjects such projects to state laws relating to control, appropriation, use, or 

distribution of water- precludes such preemption?" Forty-nine states supported California in an 

amicus brief. The Supreme Court unanimously affirmed the 9th Circuit's decision. 12 

The Supreme Court determined that the narrow reading of Section 27 of the Federal 

Power Act in First Iowa was not dicta but was necessary to the Court's holding and 

interpretation of the law. The Court declined to revisit First Iowa and disturb 44 years of 

precedent governing state and regulatory authority over hydroelectric projects, particularly where 

there had been no intervening change oflaw. "The California requirements for minimum 

streamflows cannot be given effect and allowed to supplement the federal flow requirements." 

The Court did, however, note that" ... Congress remains free to alter what we have done." 

The states unanimously viewed this ruling as an erosion of state authority over water 

resources. Shortly after the decision, the Idaho congressional delegation introduced legislation 

(S. 2805 and H.R. 5194) in the I 01" Congress to restore states' primary authority for regulating 

water use related to hydropower projects. The WSWC subsequently supported federal legislation 

to " ... assure that applicants for hydropower licenses comply with state substantive and 

procedural water law, thus restoring to the Act Congress' intent that state law govern water use 

associated with a hydropower project." 

III. THE CLEAN WATER ACT 

Within the year, the states were looking at amendments to the Clean Water Act to 

strengthen states' abilities to mandate minimum stream flows and protect designated uses through 

Section 401 certification. 13 Opposing interests sought to further limit state authority while 

streamlining the federal hydropower licensing process, proposing a bill. 14 to prohibit states from 

including any conditions for Section 401 certifications not directly related to water quality. The 

WSWC adopted a position supporting a balanced national energy policy that recognizes 

legitimate state water management and planning authority to balance competing water uses. 

Ironically, as the Congress considered legislation, the Supreme Court in another case 

upheld States' authority delegated under Section 401 of the Clean Water Actress to impose 

bypass flows to protect water quality and fish and wildlife- the same requirements States had 

argued they had power to impose under state law in California v. FERC. 

In 1994, the U.S. Supreme Court issued a 7-2 decision declaring that minimum 

streamflow requirements are a permissible condition of Clean Water Act Section 401 

certifications. A Washington city and local utility district sought a license to build a 

hydroelectric project on the Dosewallips River. The proposed project would reduce the water 

flow below the state's minimum stream flow requirement to protect fish habitat, a statedesignated use of the water under Section 303 of the Clean Water Act. The Washington. 
74 


31623.036

Department of Ecology issued a Section 40 I certification imposing a minimum stream flow 

requirement as a condition of the hydropower license, and the applicants objected to the state's 

authority to impose water flow requirements. In P. U.D. No. I of Jefferson County v. Washington 

Department of Ecology, 511 U.S. 700 (1994), the Court upheld a state's authority to impose 

conditions under the Section 40 I certification process where necessary to protect a designated 

use for fish habitat. 15 

The Court rejected the argument that water quality requirements were limited to 

discharges under the Clean Water Act, noting that Washington's instream flow requirement was 

necessary to enforce the designated use of the river. The Court said that the Clean Water Act 

preserves each state's authority to allocate water quantity between users and does not limit 

Section 401 to water quality concerns when protecting designated uses. Importantly, the Court 

also rejected an effort to read "implied limitations" into Section 401 based on a perceived 

conflict between Section 40 I state certifications and FERC authority under the Federal Power 

Act and the First Iowa interpretation. 

Again in 2006, the Supreme Court recognized that State 40 I certification authority is 

" ... essential in the scheme to preserve state authority to address the broad range of pollution."16 

Clean Water Act Section I 0 I (b) recognizes the states' critical role in protecting water 

quality and declares: "It is the policy of Congress to recognize, preserve, and protect the primary 

responsibilities and rights of States to prevent, reduce, and eliminate pollution .... " Similarly, 

Section IOl(g) further provides that the primary and exclusive authority of each state to "allocate 

quantities of water within its jurisdiction shall not be superseded, abrogated, or otherwise 

impaired by this Act.. .. " 

The latter, known as the Wallop amendment, was sponsored by Senator Malcolm Wallop 

of Wyoming, a respected rancher, conservative, and critic of regulatory red-tape. 

Senator Barrasso we look forward to continuing to work with you and other Committee 

members to balance environmental protection and economic development needs, as well as the 

respective roles of state and federal agencies in the development, conservation and protection of 

our water resources - including protection of water quality, instream flows, aquatic species, and 

States' rights to allocate water and water rights. 

Attached to my testimony is a letter summarizing a 2014 survey that addresses questions 

related to state administration of 40 I certification authority that are sometimes raised by critics 

of the process. Section 401 State certification alone is not usually an obstacle in itself to timely 

federal licensing and permitting, provided that applications are complete and ancillary federal 

activities are complete or nearly complete. The majority of requests are processed within 40-90 

days, some within a couple of weeks. The vast majority of states have no backlog of certification 

actions, but a few do. Delays are typically due to submission of an incomplete application, 

completion of necessary study requirements, and constraints on state resources, including staff 

limitations and turnover. Certifications may also be held up by the applicant not responding to 

States' requests for additional information or failing to comment on proposed project conditions. 

Often substantive details of the proposed action change requiring further review. 
75 


31623.037

IV. CONCLUSION 

In conclusion, the Western States Water Council reiterates its position that states have 

primary jurisdiction over water quantity and quality issues and should retain primary jurisdiction 

under the Clean Water Act for the integration of water quantity and water quality considerations 

through the water quality certification process set forth under Section 40 I. 

The Council recently signed a joint letter together with western governors, legislators, 

attorneys general and various interstate associations of state water and wetland agencies 

recognizing the "importance of partnerships between states and the federal government," and 

that a "balanced system of cooperative federalism has enabled states to implement the CW A 

effectively and with flexibility.... A vital component of the CWA's system of cooperative 

federalism is state authority to certify and condition federal permits of discharges into waters of 

the United States under Section 401." 

Again, as States, we look forward to working with the Committee to balance the 

sometimes competing interests surrounding our water and energy policy goals. 
76 


31623.038

ENDNOTES 

1 http://www. westernstateswater.org/wp-content/uploads/20 14/0 !/Revised-Rules-ofOrganization_ 2015 July 10. pdf. The purpose of the Western States Water Council shall be to 

accomplish effective cooperation among western states in matters relating to the planning, 

conservation, development, management, and protection of their water resources, in order to 

ensure that the West has an adequate, sustainable supply of water of suitable quality to meet its 

diverse economic and environmental needs now and in the future. 2 WSWC Position #406- Regarding Preemption of State Law in Federal Legislation; 

http://www. westernstateswater .or g. 3 WSWC Position #419- Supporting Water Infrastructure Funding. 4 16 U.S.C. !53!; WSWC Position #425 Regarding Endangered Species and State Water Rights. 5 WSWC Position #424- Regarding Water Transfers and NPDES Permits. 6 WSWC Position #420- Integrating Water and Energy Planning and Policy. 7 WSWC Position #391 -Supporting Renewable Hydropower Development. 8 Federal Power Act, 16 U.S.C. 79la et seq.; P.L. 114-94. Section 27 at 16 U.S.C. 821. 9 FERC relied on a narrow reading of Section 27 of the Federal Power Act suggested by the 

Supreme Court in First Iowa Hydro-Electric Cooperative v. Federal Power Commission, 328 

u.s. !52 (1946). 1

° California v. FERC, 877 F.2d 743 (9th Cir. 1989). 11 In 1989, the WSWC passed a resolution supporting California's efforts to overturn the 9th 

Circuit's decision on appeal.. 12 On May 21, 1990. 13 S. 3186 introduced in the 101" Congress on October II, 1990; S. 106 and H.R. 649 introduced 

in the I 02"d Congress on January I 4 and 24, 1991. 14 The National Energy Security Act (S. 341) introduced in the 102"d Congress on February 5, 

1991. 

15 The P. U.D. No. I decision effectively restored to the states authority under federal law to 

accomplish what the California v. FERC decision said they could not do under state law. 16 S.D. Warren Co. v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), citing 

116 Con g. Rec. 8984 ( 1970). 
77 


31623.039

WESTERN STATES WATER COUNCIL 

682 East Vine Street, Suite 7/Murray, Utah 841071 (801) 685-25551 FAX 

(801) 685-2559 Web Page: www.westernstateswater.org 

August 14, 2018 

The Honorable Lisa Murkowski, Chairwoman 

Energy and Natural Resources Committee 

United States Senate 

304 Dirksen Senate Building 

Washington, DC 20510 

The Honorable John Barrasso, Chairman 

Environment and Public Works Committee 

United States Senate 

41 0 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairs and Ranking Members: 

The Honorable Maria Cantwell, Ranking Member 

Energy and Natural Resources Committee 

United States Senate 

304 Dirksen Senate Building 

Washington, DC 20510 

The Honorable Tom Carper, Ranking Member 

Environment and Public Works Committee 

United States Senate 

456 Dirksen Senate Office Building 

Washington, DC 20510 

The Western States Water Council, a government entity advising western governors on water policy 

issues, supports collaboration and leadership at all government levels- federal, state, tribal, and local- and the 

private sector- to address the Nation's infrastructure needs and establish water infrastructure improvements as a 

public policy priority. The Council has supported federal investments in water-related infrastructure projects and 

programs, and called on the Congress and the Administration to continue to work together and with States to 

streamline permitting processes and coordinate environmental and other regulatory reviews to eliminate 

duplicative procedures, reduce costs of compliance and construction, and ensure timely completion, maintenance, 

or relicensing of authorized infrastructure projects so vital to the West and the Nation. Clean Water Act Section 

401 State Water Quality Certification alone is not usually an obstacle in itself to timely federal licensing and 

permitting. 

It should be noted that the Council has been a continuous advocate for the rights of States to conserve and 

protect their water resources, a primary responsibility often cited in state constitutions. States and federal agencies 

strive to work in concert as co-regulators to achieve water quality goals. The Clean Water Act (CWA) clearly 

recognizes the important role ofthe States. Section lOI(b) declares: "It is the policy of Congress to recognize, 

preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution;" 

and Section l 0 I (g) adds that the authority of the States to "allocate quantities of water within its jurisdiction shall 

not be superseded, abrogated, or otherwise impaired by this Act .... " 

Section 401 requires: "Any applicant for a Federal license or permit to conduct any activity including, but 

not limited to, the construction or operation of facilities, which may result in any discharge into the navigable 

waters, shall provide the licensing or permitting agency a certification from the State in which the discharge 

originates or will originate ... that any such discharge will comply with the applicable provisions ... " of various 

CWA sections. This state water quality certification authority is a vital component of our federalist system for 
78 


31623.040

protecting water resources, and any conditions deemed necessary by the States to ensure compliance are a 

mandatory addition to any federal license or permit. 

In 2014, in response to criticism of States' actions under Section 401, including claims of unnecessary project 

delays, primarily as related to development of hydropower, the Council surveyed its membership to get a regional 

perspective on the certification process. Fifteen of our eighteen-member states responded and a summary is 

attached. The following are some of the highlights: 

Provided that applications are complete and ancillary federal activities are complete or nearly complete 

{e.g. public notice, study requirements, a complete EIS, mitigation requirements, etc.), 401 certification is 

not usually an obstacle to timely federal licensing and permitting. 

401 certifications related to CWA Section 404 permitting dominate the number of requests. 

Many times certification requests are filed before the Corps has completed their assessment. Also, it is 

not uncommon for 404 permitting applications to be elevated to Corps/EPA Headquarters for 

consideration. 

States and the U.S. Army Corps of Engineers collaborate to expedite the process, but projects requiring an 

individual404 permit can be time consuming. 

CWA 401 certifications ore also used to inform state 402 NPDES permits issued by states. 

Hydropower permitting-related requests vary with hardly any in Plains States, few in the Rocky Mountain 

States, while West Coast States face more permitting and 401 certification requests. 

The complexity and long duration of the FERC licensing and relicensing process is o major contributing 

factor in those States with related 401 certification requests pending. FERC's Integrated Licensing Process 

{ILP) tokes a minimum of five years to complete. 

All States oct on 401 certification requests within the one-year period allowed by the CWA. The majority 

of requests, on overage, ore processed within 40-90 days, same in a couple of weeks. 

States report certification applications filed with missing signatures, illegible mops, and/or locking 

required documents such os a CWA Section 404 application. 

Certifications may also be held up by the applicant not responding to States' requests for additional 

information or failing to comment on proposed project conditions. Often substantive details of the 

proposed action change, requiring further review. 

States generally hove a process and rules outlining a formal timetable or goo/ for action, but where there 

is not,. every effort is made to issue the certification or a waiver in a timely manner. 

The vast majority of states have no backlog of certification actions, but o few do. Delays ore typically due 

to submission of on incomplete application, completion of study requirements, and constraints on state 

resources, including staff limitations and turnover. 

States have undertaken various process improvements, including coordinating state and federal 

environmental reviews, some through formal memoranda of understanding. 

Many States provide information in advance to assist applicants in navigating the 401 certification 

process, including online resources. 

Most staterdo not anticipate o significant increase in 401 certification requests. Some do. Some states 

have actually seen significant declines in requests. Again, most requests appear to be related to 404 

permitting, which in turn increases with general economic conditions and related construction starts, oil 

and gas development, etc. 
79 


31623.041

The 40 I certification process is an important tool for States to fulfill their responsibilities to conserve and 

protect their water resources, and States are responsibly acting to execute their delegated authority in a timely 

manner. Ensuring federally permitted projects comply with state water quality standards is a proven process. 

Resources should be focused on reforming, streamlining, and expediting time consuming and costly federal 

requirements- such as the 404 permitting process. The Administration's efforts in consultation with the States to 

refine the definition of and jurisdiction over Waters of the United States holds greater promise of simplil)'ing and 

expediting infrastructure project approvals. 

We look forward to working with the Administration and the Congress to appropriately remove obstacles to 

timely action on infrastructure projects. 

Sincerely, 

Tony Willardson, Executive Director 

Western States Water Council 

Attachment 
80 


31623.042

WESTERN STATES WATER COUNCIL 

Summary of State Responses 

Clean Water Act Section 401 Water Quality Certification Activities 

Apri12014 

The Council surveyed its 18 member states. Responses have not yet been received from Nebraska, 

North Dakota and Washington. 

Hydropower permitting-related requests vary widely by state as might be expected, with little or no 

hydropower development and related 401 certification requirements in most Plains States. Even in the 

Rocky Mountains there appear to be relatively few active requests. West Coast States have more 

certification and permitting actions. 

It appears that 401 certifications related to CWA Section 404 permitting dominate the number of 

certification requests. Coordination and collaboration between the States and Corps often expedite the 

process, but projects requiring an individual404 permit can be time consuming. 

CWA 401 certifications are also used to inform state 402 NPDES permits issued by states, and would be 

required in those states without primacy to issue 401 permits, which would include Idaho and New 

Mexico. 

1. In your opinion is State 401 certification authority a significant obstacle to timely federal licensing 

and permitting activities? Specifically hydropower licensing? Other permits (such as CWA Section 404 

permits)? 

States unanimously reported that the CWA 401 State Water Quality Certification is not usually an 

obstacle in itself to timely federal licensing and permitting, provided that all applications are complete 

and ancillary federal activities are complete or nearly complete (e.g. public notice, study requirements, a 

complete EIS, mitigation requirements, etc.). 

States report certification applications filed with missing signatures, illegible maps, and/or required 

documents such as a CWA Section 404 application. Often substantive details of the proposed action 

requirement certification can also change. Many times certification requests are filed before the Corps 

has completed their assessment. Certifications may also be held up by the applicant not responding to 

requests for additional information, or failing to comment on proposed project conditions. 

EPA and other federal agency comments, conditions and other actions can delay certification. It is not 

uncommon for example for 404 permitting applications to be elevated to Corps/EPA Headquarters for 

consideration. 

The complexity and long duration of the FERC licensing and relicensing process is a major contributing 

factor in those States with related 401 certification requests pending. FERC's Integrated Licensing 

Process (ILP) takes a minimum of five years to complete. 
81 


31623.043

Some States have separate environmental review requirements, such the California Environmental 

Quality Act (CEQA) process required for non-governmental entities (which can be time consuming). The 

federal NEPA process is the starting point for CEQA. Further, the California State Water Resources 

Control Board, consistent with maintaining a transparent and public process, provides a public comment 

opportunity on draft certification decision before issuance. As project licenses typically range from 3050 

years, this is considered to be important, though this is not a required step. 

Oregon has a separate state hydropower licensing process, in parallel to the federal process. 

2. How long does it usually take for your State to act on a certification application? It there a specific 

goal or timeline for action? 

This varies by state, but all are within the one year period allowed by law. The majority, on average, fall 

between 40-90 days, while some may process certification requests within a couple of weeks. Action on 

a request can depend on a number of factors, such as a 30-day public comment period requirement. 

Other reasons for delay are listed below under Question #3. 

States generally do have a process and specific rules outlining a formal timetable or goal for action, but 

where there is not, every effort is made to issue the certification or a waiver in a timely manner. 

Alaska has a goal of processing 401 certification requests within 10 days after the close of the public 

notice and comment period. 

Similarly, the Texas Commission on Environmental Quality (TCEQ) reviews 401 certification requests in 

parallel with federal licensing and 404 permitting activities, and based on an memorandum of 

agreement {MOA) with the Corps Southwestern Division, TCEQ make a decision within 10 days of the 

Corps having reached a permitting decision (certification is required before a permit is issued). 

3. Does the State currently have a backlog of certification applications? If so, what is the size of the 

backlog? What types of licenses or permits are most likely to be delayed? What are the primary 

reasons for delays (incomplete applications, study requirements, state staff or other resource 

limitations, etc.)? 

The vast majority of states have no backlog of certification actions, but a few do. Delays are typically 

due to submission of an incomplete application, completion of study requirements, and constraints on 

state resources, including staff limitations. Often, 401 certification is a part-time duty for staff, assigned 

as needed. State turnover is another problem, and often entry level staff is assigned 401 certification 

responsibilities. Given the length ofthe FERC permitting process staff may change over time. 

California reported the most delayed FERC projects and certification requests (only 2-3 staff are devoted 

to requests). California is working on certification for sixteen FERC licensed projects where their license 

has expired. Most should be completed within two years. Post-licensing monitoring of certification and 
82 


31623.044

permitting conditions, which may involve continuing studies given the uncertainty regarding future 

conditions, also place an increasing burden on staff time. 

Oregon does have two large hydropower projects which haven't been certified within one year of the 

original application, one due to ongoing federal activities, and ongoing mitigation studies have delayed 

the other. 

At least one state will no longer accept 401 certification applications as complete until required federal 

actions have already been approved or completed. 

4. What actions has the state taken to simplify or expedite the certification process (such as 

interagency MOUs, online applications, etc.)? Please provide references and copies. 

States have undertaken various process improvements, including coordinating state and federal 

environmental reviews, some through formal memoranda of understanding. 

The Alaska Department of Environmental Conservation has developed a waiver process applied to 

individual404 permits issued by the U.S. Army Corps of Engineers. Criteria are based on the potential 

risk of a particular activity that may affect water quality, such as the size of the wetlands fill, the type of 

activity, the proximity to a waterbody and the particular wetlands functions and values. 

On November 19, 2013, The California State Water Resources Control Board (SWRCB) executed a 

memorandum of understanding (MOU) with FERC that covers coordination of pre-application activities 

that include "consultation, environmental seeping, study planning, and submittal of and commenting on 

the applicant's preliminary licensing proposal." A copy of the MOU is available online at: 

http://www.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ferc mou/ind 

ex.shtml 

Also, with the support ofthe California Hydropower Reform Coalition and FERC licensees, SWRCB is 

ramping up staffing resources and increasing fees. Three 401 certification requests were completed 

within an eight month period. Each project request is also assigned a back-up staff person to assure 

continuity. There are templates for standard letters and more common certification conditions, and 

SWRCB is developing a program manual and training staff on up-to-date techniques. 

For large, complex projects the Colorado Department of Public Health and Environment works with 

applicants prior to formal filing of a certification request to streamline the review process and minimize 

requests for additional information. In 2010, Colorado executed an MOU with FERC, and also hired a 

contractor to identify a number of small projects that were reviewed and certified, but the contract was 

not renewed and FERC has not informed the State of new conduit or other small scale hydropower 

project licensing applications, though some potential projects have come to light through public 

information and conversations with Corps staff. 

Idaho has used settlement agreements to develop FERC 401 certifications. 
83 


31623.045

New Mexico has expedited the certification process through the use of general permits and established 

procedures. The "New Mexico Implementation Plan" governs the process for issuing NPDES permits. 

Oklahoma meets regularly with the Corps to coordinate procedures for public notice and processing of 

permit and certification applications. 

Oregon Department of Environmental Quality staff work with applicants on study design and data 

review early on to ensure a 401 request is complete. Oregon also has a statute outlining state review of 

hydropower relicensing in coordination with federal relicensing to avoid duplication through a 

Hydroelectric Application Review Team (HART) with staff from DEQ. the Department of Water 

Resources, and the Department of Fish and Wildlife. Other state agencies may participate as well. 

HART may provide applicants with an estimate of costs for relicensing work, including certification, and 

one applicant entered into an agreement to pay the state agencies' costs. HART addresses relicensing, 

but state agencies coordinate as needed for any new project to reduce inefficiencies. Also, DEQ invoices 

all 401 certification applicants for costs incurred in processing, providing the revenue necessary for 

timely action, including reassigning staff work. 

A Texas/Corps MOA implements a tiered classification system for projects that require an individual 

CWA 404 permit, which require certification reviews for proposed projects that directly impact aquatic 

resources of greater than three acres or 1500 linear feet of stream (Tier II projects). For Tier I projects 

(below that threshold), TCEQ waives certification if the permit applicant agrees to incorporate specific 

best management practices. 

In Wyoming, electronic delivery of certification requests directly from the USACE (Corps) Wyoming 

Regulatory Office to the Department of Environmental Quality facilitates timely review and processing. 

WY DEQ encourages project proponents to contact the agency prior to submitting their 404 application 

to the Corps. Lastly, Wyoming has categorically certified several nationwide permits, further expediting 

the process. 

S. What public information regarding 401 certification is available from the State (include state 

websites and addresses)? 

Many states provide information in advance to assist applicants in navigating the 401 certification 

process, including online resources. This may include current program activity, staffing, current 

·projectspecific web pages, 401 certifications issued, etc. FERC also posts 401 certification information on 

its website. Further, Corps Districts may post information on 404 permit applications. 

AK: http://dec.alaska.gov/water/wwdp/wetlands/index.htm 

AZ: http:l/www.azdeq.gov/environ/water/permits/cwa401.html 

CA: http:ljwww.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ 
84 


31623.046

CO: http://www.colorado.gov/cs/Satellite/CDPHE-WQ/CBON/1251596872987 

ID: http:l/www.deg.idaho.gov/water-gualitv/surface-water/standards/401-certification.aspx 

This is Idaho's 401 certification website. The 401 certification list of projects is on these webpages: 

NPDES: http:Uwww.deg.idaho.gov/water-oualitv/surface-water/standards/401-

certification/ 401 certificatio ns-n pd es-perm its.aspx 

404 Permits: http:/lwww.deq.idaho.gov/water-gualitv/surface-water/standards/401-

certificatio n/ 401 certification s-dredge-fill.aspx 

MT: All FERC related 401 water quality certifications are posted on the FERC website. Montana 

shares the public notice with the Army Corps of Engineers for individual 404 related 401 water quality 

certifications. 

NV: http:/lndep.nv.gov/bwgp/401cert.htm 

NM: Section 404 program can be found at http:/lwww.nmenv.state.nm.us/swqb/404/. The web 

site for the NPDES program can be found at http:l/www.nmenv.state.nm.us/swgb/Permits/. 

OK: http://www.deg.state.ok.us/wgdnew/401 404/index.htm. 

Public notices for the Section 404 permits are located on the U.S. Army Corps of Engineers, Tulsa District 

website: http://www.swt.usace.army.mil/Missions/Regulatory/PublicNotices.aspx 

OR: http:/lwww.deg.state.or.us/wg/sec401cert/hydro.htm 

SD: http:/ldenr.sd.gov/des/sw/40l.aspx 

TX: The TCEQ maintains several public web pages containing information about the TCEQ 401 

certification program. Each page can be accessed from the following URL: . 

http:l/www.tceg.texas.gov/permitting/401certification UT: 

http:ljwww.watergualitv.utah.gov/permits/index.htm 

WA: 

WY: The USACE Wyoming Regulatory Office website provides a link to the Wyoming Department of 

Environmental Quality website that contains information on specific State 401 certification. 
85 


31623.047

6. Do you anticipate an increase in the number of 401 certification requests in the future, and what 

might be the impact on State administrative resources? 

Most states do not anticipate a significant increase in 401 certification requests. Some do. Some states 

have actually seen significant declines in requests. Again, most requests appear to be related to 404 

permitting, which in turn increase with general economic conditions and related construction starts, oil 

and gas development, etc. 

[Expansion of CWA jurisdiction os may be proposed by new rules could hove an undetermined impact on 

the number of requests related to ony increase in Section 404 permitting requirements.] 

California expects an increase in requests due to FERC relicensing, license amendments, and new 

projects. Further, as described post-licensing monitoring of conditions, as well as non-hydropower 

certification requests will significantly impact the State's administrative resources. FERC currently lists 

115 non-federal hydropower projects in California, not including transmission line projects, with varying 

expiration dates. Since 2000, 22 FERC project licenses have expired, and another 26 will expire through 

2029, necessitating either relicensing or surrender of the license. Decommissioning can also have water 

quality impacts. SWRCB is already involved in a number of relicensing pre-application activities. The 

Division of Water Rights Water Quality Certification Program also certifies non-hydropower projects that 

involve water rights. 

Colorado does not anticipate a significant increase in the number of requests, but does anticipate 4-5 

very large and complex project certification requests from water diversion and storage projects over the 

next 3-4 years. 

Idaho does expect an increase in requests, as well as additional review requirements related to 

antidegradation reviews and analyses associate with federal permits, placing greater demands on static 

staff. 

New Mexico noted drought limits the viability of hydropower projects. 

Oregon has certified several projects through the federal relicensing process over the past several years. 

Currently there are only a few projects under relicensing review. Oregon anticipates ongoing interest in 

retrofitting both irrigation and drinking water systems with hydro turbines, but many will be exempt 

from licensing and no 401 certification will be required: Many preliminary permit applications have not 

proceeded to licensing, making certification requirements difficult to estimate. 
86 


31623.048

U.S. Senate Committee on Environment and Public Works 

Hearing titled, "Hearing to Examine Implementation of Clean Water Act Section 401 and S. 

3303, the Water Quality Certification Improvement Act of 2018" 

August 16, 2018 

Questions for the Record for Mr. Willardson 

Ranking Member Carper: 

I. When does the Clean Water Act's requirement that the certification timeline begins upon 

the "receipt of a request for certification" begin? 

The Clean Water Act (CWA) does not provide guidance with respect to what constitutes 

the appropriate form or timing for "receipt of a request for certification," and the start of 

the certification time line is generally determined by the federal agency issuing the permit 

or license. Consequently, this varies with the federal agencies' process for the different 

kinds of permits or licenses issued that are subject to water quality certification. The 

Section 404 program of the Clean Water Act, the Natural Gas Act and the Federal 

Energy Regulatory Commission (FERC) hydropower licensing programs are all 

different. It can also vary within one federal program from one part of the country to 

another. The Army Corps of Engineers' (Corps) regulations (33 C.F.R. § 325.2(b)(l)(ii)) 

require that applicants submit a "valid" request for certification before the prescribed 

timeline for state review commences. FERC now requires only evidence that a request 

has been submitted. 

Often, but not always, a certification request follows review of a federal permit 

application such as a 404 permit, which is by far the most common federal action 

triggering the need for State 401 certification. For a Section 404 permit the time line may 

begin once the Corps publishes a Public Notice that a 404 application is complete, with 

the information needed for reviewing a permit. However, in some cases, the Corps issues 

a Public Notice with no information and the State may deny certification without 

prejudice pending receipt of adequate information to evaluate the project. 

In 1987, FERC issued Order No. 464 unilaterally and retroactively waiving Section 401 

requirements for 227 hydropower projects in 32 States with requests pending for more 

than one year. FERC determined that States had not acted on requests within the time 

period required, whether or not the States considered an application to be complete. 

States were allowed 30 day to submit suggested project conditions. A number of States 

protested and requested a rehearing, which was denied. Federal legislation was also 

proposed to overturn the order, which passed both the House and Senate, but was never 

reconciled and enacted. Since then, States have usually denied rather than hold 

incomplete applications. 

In 1989, in Citv o(Fredericksburg v. FERC, 876 F.2d 1109 (4th Cir. 1989), the Fourth 

Circuit Court vacated a license granted by FERC, for a hydropower project on the 

Rappahannock River in Virginia, granted by FERC under Order No. 464, after finding 

the developer, Commonwealth Hydroelectric, Inc. had refUsed to complete a 43-page 
87 


31623.049

application required by the Virginia Water Control Board to inform a decision as to the 

project's impact on the river, Fredericksburg's drinking water supply. 

With respect to non-federal hydropower licensing, under the jurisdiction of the Federal 

Energy Regulatory Commission (FERC), in a 1992 case the Commission addressed the 

issue of incomplete applications and state waivers in Wyoming Valley Hydro Partners, 

58 F.E.R.C. P61,219, 61693-61694, 1992 FERC LEXIS 421, *8-10 (F.E.R.C. February 

27, 1992). FERC noted that (under their new determination) the one-year period begins 

when the certifYing agency receives the request for certification. "As a result, it is no 

longer necessary for the Commission to determine whether the various state filing 

requirements have been met. As we explained in Order No. 533, the new rule [56 FR 

231 08] makes the states responsible for determining whether an applicant has complied 

with their procedural requirements. If an applicant fails to do so, the state agency has the 

power to deny the request for certification. The denial can be without prejudice to the 

applicant's refiling of an application that conforms to the state's requirements." 

In some States for some programs, the Section 401 certification review starts when the 

NEPA review or a States' equivalent environmental review of a project is complete. In 

others, it's triggered by the receipt of a complete 401 certification application by the 

state. In others, the review begins as soon as a 401 application is received, even if it is 

only a request without any information. 

As noted, state and federal agencies sometimes have specific criteria that must be met 

before accepting a permit or certification application as complete. 

Obviously, any Section 401 certification application must sufficiently define the scope of 

a project or action (and anticipated impacts) for a State to be able to adequately evaluate 

the effects on water quality standards and designated stream uses. A simple request for 

certification with little or no material information is not enough. Ideally, state agencies 

would be involved early in the federal review process so as to have access to all pertinent 

information and not unnecessarily delay a State's certification decision. As it now 

stands, if States don't have the necessary information, their options are to request the 

information needed, and if it is not submitted in a timely manner, the State denies the 

401 certification request. 

2. Do states, on occasion, seek additional information from applicants to make certification 

decisions? 

Yes, States can and do request additional information in order to make sound informed 

decisions as to expected water quality impacts, and the viability of plans to monitor, 

avoid, or mitigate those impacts. The extent and timing of the studies, data and 

information requested largely depend of the size and complexity of a project or action, as 

well as what information is readily available. 

a. On such occasions, how long does it typically take for states to ensure they have 

the information they need? 
88 


31623.050

This often diffors based on the size and complexity of the project, the 

responsiveness of the applicant, and the involvement of the State in identifYing the 

information needed prior to the start of the official receipt of a request for 

certification. With routine certification requests such as those often tied to a 

CWA 404 permit that the Corps has approved, little or no additional information 

may be necessary and certification may be waived or expeditiously approved, 

often within 30-days. The vast majority of State 401 certification requests are 

acted on within 90-days, well before the one-year mark. 

b. In your experience, is 90 days sufficient for states to obtain the additional 

information they need from an applicant that has provided poor or insufficient 

information, or in cases involving of large or complex projects? 

In the case of large and complex projects it is difficult to speculate as to what 

would be a reasonable period of time for a State to request and then acquire the 

information needed. Given the scope and impact of the project, 90-days may not 

be enough to determine all the information that may be needed, let alone obtain 

that information. Some of the types of information States require include 

topography, hydrology, and treatment processes. Other factors are important. 

The project may involve multiple discharges or other disturbances. Some waters 

may already be listed as impaired. Discharges may involve unusual contaminants 

of concern. There may be endangered species to protect. Compliance with state 

non-point source programs may be considered. 

All the information needed may not be readily apparent upfront. This may be the 

case where the scope and impact of the project changes over time as the federal 

permitting and licensing process proceeds. Delays often arise when applicants or 

consultants do no respond to requests for additional information. 

Further, States may require public notice and hearings related to certification 

requests. Issues may be raised or information presented that may result in 

additional information requests by the state agency. 

A 90-day period may be sufficient, if States have been involved in any preapplication/pre-certification permit or license process. Several States and local 

federal offices have worked together to improve consultation on projects prior to 

401 certification requests to better streamline the process. Some meet on a 

regular schedule to address concerns. 

States for a variety of reasons may not be able to determine what information is 

needed within 90-days, and subsequently cannot make an informed decision on 

whether the project will meet or violate state water quality standards for 

designated uses and may deny certification on that basis. 

Setting a hard and fast deadline for information requests would likely be arbitrary 

and possibly counter-productive, forcing States to deny requests. 
89 


31623.051

c. Could limiting states to a 90-day window to obtain additional information from 

applicants impair a state's ability to make well-informed certification decisions? 

Such a limitation could very well restrict a state's access to adequate information 

to make a reasoned decision related to large and complex projects, which are 

often subject to continuing changes in scope and anticipated impacts. In some 

specific cases where information needed to assess impacts to water quality was 

not provided, a 90-day limit would mean that a decision could not be made or a 

potentially uniformed decision (one that could lead to failure to meet water 

quality standards) would be made. In some cases, information needed can only be 

collected seasonally so the applicant cannot acquire the information until a 

different time of year. In addition, information collection can be iterative. The 

acquisition of information can lead to the need/or additional information, or 

necessary changes to the project that would require a new evaluation of the 

impacts. Sometimes applicants also take a long time to respond or refuse to 

provide information. Securing access to private lands to gather information can 

also be an issue delaying reviews. 

d. Could limiting states to this 90-day window lead to the denial of projects because 

the applications are incomplete, but would otherwise been approved but for the 

imposition of a 90-day deadline? 

Yes. Such a limitation could very well force a state to deny a certification 

request, likely without prejudice, allowing an applicant to reapply once the 

required information is provided. An applicant may also elect to withdraw and 

later resubmit an application with the required information. It should be noted 

that the denial of Section 401 certification can also halt federal permitting 

procedures and lead to delays. Short inflexible deadlines for large, complex 

projects that may affect hundreds of streams and wetlands can be problematic for 

both applicants and States. 

e. Should states be permitted to deny a Section 401 certification due to an 

applicant's failure to submit required information with an application? 

Yes. States may only issue a water quality certification under Section 401 if the 

applicant can demonstrate that the proposed activity will comply with applicable 

sections of the CWA. Where applicants/ail tofU/fill this affirmative duty by 

failing to submit necessary information, States may lawfully deny certification. 

States must have the information required to assess whether or not there are 

water quality impacts to waters of the state. Without adequate information, States 

cannot make this determination and are and should be able to deny certification 

for this reason. 

Recently, in Constitution Pipeline Co., LLC v. New York State Department of 

Environmental Conservation, 868 F. 3d 87 (2"d Cir. 2017), the State's denial of a 

certification request due to the lack of information on impacts to streams was 
90 


31623.052

upheld. State decisions to deny certification are often subject to either or both 

state administrative and state and federal judicial review. 

Federal agencies have their own rules and regulations governing what 

information must be included in a federal application for it to be considered 

"substantially complete" and ready for review. 

i. Would you consider such a denial to be unrelated to "water quality?" 

No. Any denial based on the lack of information related to impacts on the 

quality of state waters (its water quality standards and designated uses) is, 

on its face, directly related to water quality. If information is not 

available for States to be able to evaluate whether there are or are not 

impacts and how they may be addressed by the applicant, then it is 

appropriate to deny the request to protect water quality. 

3. Based on your survey of western states, are most 401 certification requests delayed? 

Among our western States, and nationally, fow requests are delayed and denials are rare. 

a. Roughly how often-or in what percent of cases-are these decisions delayed 

beyond the year mandated in Section 40 I? 

Certification decisions that extend beyond one year are rare and generally 

related to large, complex and sometimes speculative projects or actions. The vast 

majority of actions are taken in a timely manner, though there apparently are no 

statistics kept related to State actions regionally or nationally. 

Responses from several States indicate that they have no projects that have been 

delayed due to Section 401 certification requests for at least the past jive years, if not longer. However, this is not the case for all States, as some receive a high 

volume of complex applications and are working with the federal agencies to 

overcome backlog issues and improve streamlining of the overall application 

process. 

It is important to note that several factors involved with the permitting and 

approval of projects, beyond state water quality certification under Section 401, 

contribute far more substantially to delays in the development of energy-related 

infrastructure. Such factors include delays within federal agencies, project 

financing issues, and logistical delays associated with planning construction. 

4. In your estimation, what percentage of all energy-related infrastructure projects are 

stopped because a state does not grant 40 I certification? 

a. Is it 50 percent? I 0 percent? I percent? Less than I percent? 
91 


31623.053

I am unaware of any regional or national database with such information for 

Section 401 certification requests for energy or other projects. The number 

would likely be less than one percent, as most Section 401 certification requests 

are tied to CWA Section 404 permits, and there are tens of thousands of Section 

404 permit applications annually. President Trump's outline of legislative goals 

on infrastructure (Feb 12, 2018) indicated that the Corps makes 59,000 

jurisdictional determinations on Section 404 permits, annually. 

The vast majority are relatively routine and granted in a timely manner. Given 

the very few Section 401 certification requests that take a year or more to 

complete, compared to the thousands of such requests, the percentage would be 

very small. Literally, hundreds of thousands of projects over the years have been 

approved by States. 

However, in those relatively few cases where projects are large and complex, the 

delay can be significant and may or may not be avoidable. While there have been 

some recent high-profile projects where water quality certification was denied, 

those cases have well-documented water quality concerns and impacts identified 

by the States, some of which could not be mitigated, and in each case the denial 

has been upheld by reviewing administrative agencies and the courts. 

With respect to the scope and timing of States' Section 401 review, there are 

opportunities to better coordinate state and foderal environmental reviews to 

minimize necessary delays in Section 401 decision-making. Some States and 

foderal agencies have worked toward such coordination with regular meetings to 

discuss pending project applications and memoranda of understanding to 

facilitate inter-agency processes. 

5. One of the themes in the statements of your fellow witnesses and in some of the letters 

we have received from groups supporting this legislation is that the bill would not 

diminish water quality protection in any way. 

a. Do you agree with that assessment? 

The proposed legislation, as written, would substantially change States' ability to 

condition permits to satisfy state laws addressing water management and 

protection. Specifically, the bill would strike critical language in Section 401 (d) 

which allows certification conditions imposed by States to ensure that the 

proposed activity complies with "any other appropriate requirement of State 

law. " Because water management and allocation are under the primary 

jurisdiction of States and, therefore, controlled largely by state law, S.3303 would 

substantially interfere with (and likely preclude) States' ability to mandate 

streamflow requirements and other conditions not related to a "discharge" 

through the Section 401 certification process. 
92 


31623.054

In 2008, in Oregon Natural Desert Association v. Forest Service, 550 F. 3d 778 

(9'hCir. 2008), the court notably determined "discharges" do not include nonpoint source pollution. The changes inS. 3303 would likely lead to more 

litigation questioning the definition of a "discharge" and the scope of States' 

authority. This includes authority to consider non-point source pollution, 

including stormwater runoff, the effectiveness of best management practices, 

proposed prevention or mitigation plans, minimum streamflow requirements, 

impacts on endangered species, streambed and bank alterations, and other water 

quality related considerations that are not "discharges" as defined under Clean 

Water Act Section 402 (as an addition of a pollutant from a point source). 

Similarly, conditions required to protect already impaired waters, address 

cumulative and downstream impacts, or proposed activities intended to improve 

water quality might be excluded. 

S. 3303 Section 2(J)(D)(i) limits State authority to "any discharge into the 

navigable waters" [of the United States} by the applicant and strikes the broader 

language asserting States authority to consider "applicable effluent limitations or 

other limitations or other applicable water quality requirements. " 

Many state regulations for Section 401 certifications also tie in relevant state 

water quality statutes and state environmental statutes related to wetlands, fish 

and aquatic life protections. Consideration of State water allocation and water 

rights laws might also be precluded. 

"State certifications under [Section] 401 are essential in the scheme to preserve 

state authority to address the broad range of pollution." S.D. Warren Co. v. 

Maine Board of Environmental Protection, 547 U.S. 370 (2006). 

"[A]n overly narrow reading of section 401 would deprive the States of the ability 

to maintain the very beneficial uses that the Clean Water Act was designed to 

protect. Federal agencies could permit activities that would undermine a State's 

investment in pollution control efforts and impose a double standard for difftrent 

activities affecting the same in-stream values. It makes no sense to authorize 

States to implement Clean Water Act programs designed to protect beneficial uses 

and yet leave them powerless to prevent afoderally permitted activity from 

impairing those values. The comprehensive nature of State management of water 

quality and water quantity means that the States are best situated to determine 

whether a federally permitted activity will fully protect beneficial uses. The States 

have lead responsibility for protecting water quality under the Clean Water Act 

and for administering laws governing allocation of water quantity. Water quality 

and quantity are inextricably linked; both are essential to maintaining the 

integrity of the nation's waters. " Clive J. Strong, Statement on behalf of the 

National Association of Attorneys General, in, U.S. Congress, Senate, Committee 

on Environment and Public Works, Subcommittee on Environmental Protection. 

Water Pollution Prevention and Control Act of 1991, hearings on S. 1081, 102d 

Congress, 1st session, Washington: GPO, 1991 (S. Hearing. 102-335), p. 805. 
93 


31623.055

b. As you read it, would the language of this bill (S. 3303) allow western states--or 

any others for that matter-to mandate streamflow requirements through the 40 I 

certification process? 

As written, S.3303 could likely interfere with (and perhaps preclude) States' 

ability to mandate streamflow requirements through the Section 401 certification 

process. States now clearly have authority to broadly review and require 

mandatory conditions, including minimum streamflow requirements. Minimum 

streamflow requirements are essential to protect streams' designated uses, 

including fish and wildlife, recreation and other uses. States have required 

conditions regarding streamflow for hydropower projects. 

At present, States' authority to broadly protect the quality of their waters under 

Section 401 is a well-established matter of law. In 1992, in United States 

Department o(the Interior v. FERC. 952 F.2d 538, 548 (D.C. Cir. I992,) the 

court held that "FERC may not alter or reject conditions imposed by the states 

through section 401 certificates." 

In 1997, in American Rivers. Inc. v. Federal Energv Regulatory Commission. 129 

F. 3d 99 (2nd Cir. 1997,) the court rejected the position of FERC that it had 

authority to decide whether conditions of a state certification under§ 401 of the 

CWA are unlawful and, therefore, not include such conditions as part of a 

hydropower license. Instead, the court held, that FERC "is bound by the 

language of§ 401 to incorporate all state-imposed certification conditions into 

hydropower licenses and that the legality of such conditions can only be 

challenged by the licensee in a court of appropriate jurisdiction. " 

State authority over withdrawals and minimum bypass flows is essential to 

protecting streams designated for fish and wildlife and other uses, including 

recreation, as well as necessary water quality standards to support these uses and 

aquatic ecosystems, particularly as it relates to hydropower development, but any 

water resources diversion. 

In 2006, in S.D. Warren Companv v. Board o(Environmental Protection. 547 

US. 3 70 (2006). the Supreme Court held that States may consider a "discharge" 

from a hydropower project to include much more than a "discharge" as defined 

under Sec. 402 of the Clean Water Act that requires the addition of a pollutant. 

What may be considered a "discharge," should S. 3303 be enacted is unclear. 

c. What other certification conditions would states be prevented from considering if 

S. 3303 were to become law? 

The language changing "activity" to "discharge" and replacing "will violate 

applicable effluent limitations or other limitations or other water quality 

requirements, as well as "other appropriate state laws," and restricting the 
94 


31623.056

States' authority to consider only discharges related to Sections 301, 302, 303, 

306 and 307 would prevent States from conditioning project related activities that 

result may involve non-point source pollution, including stormwater runoff, 

minimum streamflow requirements, streambed alterations and other state water 

quality related requirements under state law, 

They may also limit conditions set on construction activity during critical fish 

spawning periods, setting requirements on how high streamflow will be handled 

until completion of the project, requiring excess dredge and fill to be disposed in 

upland areas, establishing culvert placement criteria, requiring native material 

for in-stream structures and for structures to be built to withstand expected high 

flow periods, establishing bed and bank erosion criteria, and other streamflowrelated requirements, 

States may be limited in their ability to impose conditions that require: the 

installation of stormwater controls; water quality mitigation and monitoring 

plans and technologies; best management practices for non-point source 

pollutants; replacement of disturbed wetlands; erosion control and restoration 

and revegetation of disturbed areas; prohibition of non-native materials or refuse 

in fill materials; attention to aquatic habitat dependent on water quality; invasive 

species management plans; consideration of the impacts of temperature and 

dissolved oxygen for hydroelectric dams; downstream water users notification 

requirements during project construction; equipment inspections and reporting 

for petroleum leaks, refueling distances from streams, removal of stored fuels 

during predicted floods, and other spill prevention controls and countermeasures; 

limits on construction equipment fording and access points; set-back criteria; 

floodplain development permits; and adaptive management plans, 

Further, States might be precluded from otherwise requiring general conditions 

that specifically support maintenance of designated uses of the state's waters 

(including environmental protection, but also agricultural, municipal, industrial, 

recreational, and drinking water uses), The changes could negatively impact the 

ability of some States to require flows of Sl!lficient volumes of clean water for 

some drinking water intakes, 

The changes could also negate the State's current ability to use complex, 

interwoven state and federal authorities to protect the States' water resources, 

States also have questions about whether and to what degree Section 401 will be 

applied under the Section 404 program, and conditions such as mitigation, if the 

bill were law. States have indicated that sometimes the only way to meet water 

quality standards and approve a project is through mitigation. The narrowing of 

States' 401 authority as proposed is likely to have uncertain outcomes that lead to 

unintended consequences. 

The impact will also depend on past and future court determinations on the 

definition of "discharge, "and States' authority, but might preclude consideration 
95 


31623.057

of non-point sources of pollution such as stormwater runoff attributable to a 

project. Further, any indirect impacts on water quality attributable to the project 

would likely be excluded, including those related to secondary developments that 

Section 401 may or may not require a separate federal permit and subsequently a 

separate certification. 

6. Regarding streamflow requirements, if 40 I certifications were not available, what other 

avenues do states have to set streamflow requirements associated with hydropower 

facilities, for example? 

Several federal laws preempt state law and regulation, including the Federal Power Act 

(under which non-federal hydropower projects are licensed) and the Natural Gas Act 

(under which natural gas pipelines are licensed). Language in those statutes preserving 

state authority under Section 401 protects what is often States' only chance to review 

federally-permitted activities that would impact their waters. States may or may not have 

separate state statutes, including their own water quality, water allocation and water 

rights laws, and other statutes that might be used to require minimum streamflows. 

For example, the Federal Power Act of 1920, Section 27 reads: "That nothing herein 

contained shall be construed as affecting or intending to affect or in any way to interfere 

with the laws of the respective States relating to the control, appropriation, use, or 

distribution of water used in irrigation or for municipal or other uses, or any vested right 

acquired therein." (16 U.S. C. 821) 

States' assumed this protected States' ability to allocate water and mandate bypass flows 

related to hydropower projects to protect minimum streamflows and related designated 

uses, including fish and wildlife and recreation. However, in 1990, the Supreme Court in 

California v. FERC, 495 U.S. 490 (1990), determined States' authority to mandate 

minimum bypass flows was preempted. 

If Section 401 certification authority were no longer available to States, FERC, not States 

would be the arbiter "balancing" competing interests and determining whether or not to 

recognize state laws requiring minimum flows. 

7. Critics of this bill have suggested it will lead to further restrictions being placed on 

facilities that are already subject to state permitting in order to address the shortfall 

created by limiting states' role in the federal permitting process. Do you share this 

concern? 

My primary concern is the potential for taking primary decision-making authority related 

to water quality protections out of the hands of States and state agencies with the greatest 

expertise and experience, and placing a distant federal agency, such as the Federal 

Energy Regulatory Commission or the Army Corps of Engineers, in charge of balancing 

state water quality protections against other national interests. It is likely that should 

States' Section 40 I certification authority be diminished, other permitting and review 
96 


31623.058

requirement under state and local law might be relied on to a greater extent to try to fill 

the void. 

This may be particularly true in States that decide to develop new permitting 

requirements to replace lost authority to protect state waters. These potential disparate 

State requirements would likely add to the complexity of project approvals for applicants. 

Moreover, such additional permitting processes may result even more stringent 

requirements. In addition, the potential for litigation in response to changes to the 

federal statute and any new state requirements will likely lead to greater uncertainty. 

8. Water is a precious resource that is best managed by those closest to the ground (i.e., 

states, tribes, and local governments). Does the denial of state certifications of two 

projects, one of which was upheld by the federal courts and the other of which is 

currently being litigated, justifY a sweeping one-size-fits-all solution to a program that 

has been effectively implemented for 45 years? 

States have the on-the-ground experience and expertise to best address water quality 

concerns and streamflow needs and have responsibly exercised their delegated authority 

under Section 401. Limiting that authority is not in the best interest of efficient, 

distributed decision-making and conflicts with the fUndamental principles of cooperative 

federalism. Certification denials by States are rare and carefully considered. The Section 

401 certification process is well-understood, reliable and supported by case law. The 

proposed changes may have considerable adverse unintended consequences for water 

resources, water quality, human health, ecosystems, agriculture, industry, and state and 

local economies. 

Additionally, States and federal agencies recognize the importance of these projects, and 

on a regional or local level have worked together to identify problems and ways to 

improve and streamline the process. They have formed inter-agency agreements to 

facilitate the exchange of necessary information at earlier stages of the project 

application process and hold regular meetings (annually or semi-annually) to review 

pending projects and identify needs going forward. While this is not true of all States and 

local federal offices, it demonstrates the potential to address problems that may be 

unique to particular regions or States on a case-by-case basis rather than resorting to 

one-size-fits-all solutions. This sort of state-federal consultation and cooperation to 

accomplish the goals oft he CWA, while balancing competing interests is precisely what 

was intended when the statute was enacted. 

The few projects denied certification are not examples of the failure of the system or of 

the States to appropriately apply Section 401 certification as the applicants either refused 

to provide requested information and/or neglected to take into consideration and/or were 

unable to address and mitigate critical water quality considerations identified by the 

States during the Section 401 certification process. 
97 


31623.059

a. Are you aware of any other instance in which such sweeping changes to the CWA 

have been made to target such limited circumstances? 

The CWA has not been significantly amended to change its regulatory scheme to 

accomplish its goals in partnership with States since it was enacted. Its carefully 

crafted cooperative federalism approach to water quality regulation has led to 

tremendous improvements in the integrity of the Nation's water quality. 

Process improvements can be made through closer cooperation between State 

and Federal environmental reviews, but wholesale changes to Section 401 

certification do not appear warranted in view of the limited denials. Curtailing 

States' review and mandatory conditioning awhority will lead to less water 

quality protection. There should be greater recognition of States' ability to 

responsibly regulate the quality of their waters, including States' consistently 

responsible and timely implementation of Section 401 certification requirements. 

9. Are you concerned that by limiting the state's use of Section 401 certification, some states 

may establish new state permitting requirements independent of the Clean Water Act, 

resulting in a patchwork of permit requirements that vary from state to state that would 

need to be met in order to ensure compliance with state statutes and regulations? 

As described in my response to Question #7, it is likely that should States' Section 401 

certification alllhority be diminished, other permitting and review requirements under 

state and local law would be relied upon, to a greater extent, to try to fill the void- and 

those requirements are likely to vary considerably among state and local jurisdictions. It 

is also likely some States will seek to fill the regulatory void with new state statutory or 

regulatory requirements in lieu of the use of Section 401, that may perhaps preclude 

current efforts to integrate state water quality and related program requirements with 

federal agency permit or license requirements. Some States may not take any action in 

response to the changes. 

The resulting inconsistent regulatory approaches would likely lead to differences in 

compliance requirements between States and regions, which may lead to potential 

inconsistencies between and within individual projects, more so for projects that cross 

state lines. This is also likely to lead to further delays and increase permitting costs. 

10. Have you, or any of the states with which you work, considered including state 401 

certification programs as part ofNEPA compliance? 

integrating Section 401 certification reviews as part of the federal NEPA review and/or 

as part of precertificationlpreapplication processes for specific federal permits or 

licenses for large, complex projects has been successfully done on a voluntary basis. 

Requiring early engagement with States would allow information required for completing 

Section 401 certifications to be communicated and changes and adjustments to the 

project to be addressed early. It could facilitate expedited Section 401 certification 
98 


31623.060

approval. It is inefficient, with respect to the resources required of the applicant, to 

revisit issues addressed in NEPA/precertification!preapplication stages of a project, 

which is likely to occur with large, complex projects when the State is not included until 

after these federal processes have has been concluded. 

The Western States Water Council supports appropriate streamlining of state and foderal 

permitting requirements, including integration of environmental reviews. A lack of 

cooperation and collaboration limits information sharing and may unnecessarily delay 

Section 40I certification decisions. Consulting with States early and often as part of 

federal reviews and environmental impact analyses would be an effective approach to 

expediting Section 40I certification decision-making. 

It is also important to note that some States require completion of their own 

environmental reviews under state law, before acting on a request for Section 40I 

certification. For example, the California Environmental Quality Act requirements must 

be completed before the State will act on a Section 401 certification request. 

The Council is surveying its member States and has asked about their participation in 

NEPA reviews, and other efforts to expedite certification decisions. 

a. Would making that change improve permitting efficiency, since many of the 

issues that come up when a permit is applied for and 40 I certification begins are 

typically included in the earlier NEPA reviews in which the state does not 

participate? 

Yes, State participation early and often would help identifY issues that should be 

addressed, information needed for sound decision-making, and appropriate study 

requirements. Early engagement with States would also clarifY expectations 

related to Section 401 certification and advise applicants of related requirements. 

b. Would including states early (i.e., when the permit application that triggers 401 

certification is submitted) lead to more efficient processing? 

State involvement should allow for prompt processing of Section 401 certification 

requests, based on the information gathered cooperatively improving the 

efficiency and effectiveness of the environmental review process. Delays and 

denials due to a lack of adequate information would be minimized. With large 

and complex projects where foderal pre-application processes exists, such as 

FERC 's pre-licensing or relicensing application process, even earlier State 

consultation and involvement would be most effective and efficient. 

Early engagement provides States with the opportunity to address potential 

problems and barriers in advance through recommending project changes, or the 

use of specific practices, or provision of critical data to support decision-making, 

which would help avoid conflicts and delays. For large and complex projects in 
99 


31623.061

particular this would require meaningful state engagement prior to when the 

Section 401 "receipt of a request for certification" occurs. 

Senator Markey: 

II. If Congress passed a bill that significantly narrows the scope of Section 401 of the Clean 

Water Act, could federal agencies permit projects that directly conflict with state water 

quality programs? Can you give any examples? 

Narrowing States' delegated authority to evaluate the foil water quality impact of federal 

permitting decisions and their ability to require mandatory conditions would put federal 

agencies in the position of only considering limited impacts and would likely lead to 

instances where States' concerns are discounted in favor of advancing the federal 

agencies' missions. As noted earlier, most of the Council's experience has been with 

foderal permitting of non-federal hydropower projects. As previously described, the 

Federal agencies have limited understanding of state water quality standards, 

particularly the complex way they are interwoven with other state and federal programs 

that support water quality. Without consideration of state requirements and conditions 

under all the components of state law that support water quality standards, many projects 

could be permitted that would be in violation of state water quality programs. States 

would then have to decide whether to pursue enforcement actions under State law or 

allow the pollution to continue unabated. 

12. The Clean Water Act prioritizes states' role in protecting water quality within their states. 

In your opinion, would S. 3303 undermine state input in the process? 

in my opinion, States have responsibly exercised their delegated authority under Section 

401 to protect water quality standards and designated stream uses. Moreover, the law 

currently recognizes that state water quality interests go well beyond what the Clean 

Water Act requires. That's why the current 401 statutory language doesn 'tjust 

enumerate sections 301, 302, etc., but rather says applicable water quality requirements 

and other appropriate requirements of state law. 

Limiting States' broad authority under Section 40 I is not in the best interest of efficient, 

distributed decision-making and cooperative federalism. Nor does it provide equivalent 

protections. A better option, in my opinion, to expedite certification decisions would be 

greater involvement of States earlier in federal environmental reviews as noted above in 

response to question #10. 

The role of States in protecting water quality is a critical component of the CWA and 

appropriately gives States the ability to protect state waters when federal permits or 

licenses are issued. Traditionally the States have had the primary role in ensuring water 

quality standards are met and in carrying out and achieving the goals of the CWA. 

Undermining State's historic role in both protecting water quality and States' primary 

role in allocating state water resources, is contrary to the concept of cooperative 
100 


31623.062

fodera/ism and unravels years of established law, and Congressional deference to States. 

Inhibiting the State's ability to ensure that historic designated uses and water allocations 

policies are supported for industry, agriculture, recreation, andwildlifo is likely to have 

detrimental impacts on both the quality of the States' waters and specific economic 

interests in a state. 

S. 3303, as written, would substantially undermine States' authority, autonomy, and input 

in the Section 401 water certification process. The proposed legislation would diminish 

water quality protection by unnecessarily limiting States' ability to gather information 

necessary for review; and unduly curtailing the scope of state review under Section 401. 

13. Would requiring states to only look at water discharge, asS. 3303 would do, prevent 

states from seeing other ways that projects might affect water resources? Can you give 

any examples? 

Limiting the scope of state review to any "discharge, " by the applicant, instead of the 

overall proposed "activity" is a dramatic change from the interpretation of the U.S. 

Supreme Court, which has held that, under Section 401, States may regulate the impact 

of a project as a whole, rather than just the associated discharge. The conditions a state 

may require are not confined to the discharge itself but can also address a range of 

impacts. PUD No. 1 of Jefferson County v. Washington Department o[Eco/ogy, 511 U.S. 

700 (1994). The ruling said that States may regulate the impacts of a project as a whole, 

so long as there is a discharge involved. Thus, the conditions a state may require are not 

confined to the discharge itself but can address a range of conditions as part of their 

certifications. 

Narrowing States' review to only "discharges" will affect States' ability to 

comprehensively evaluate broad water quality impacts under both state and federal law, 

and has the potentia/to prevent States from conditioning project related activities that 

result in non-point source pollution, including stormwater runoff, as well as minimum 

streamflow requirements, narrative water quality standards, streambed alterations and 

other state water quality related concerns (See 5.c above). 

If the States cannot condition a project to ensure water quality standards are achieved, 

then States may elect to deny more 40I certifications. Meeting water quality standards 

requires the flexibility to develop conditions that may ultimately lead to the decision to 

grant certification, or in the absence of such conditions to deny certification. 

It is also important to recognize that States have built/heir programs around the current 

law, with the knowledge that Section 401 requirements could be applied to ensure States' 

water quality standards and designated uses are protected and other relevant state 

statutes are enforced. The limitations imposed by the legislation would narrow the 

ability of Stales to achieve water quality standards through 401 certifications, and many 

States would pursue other alternative strategies. As States now responsibly act within 
101 


31623.063

their current authority, narrowing that authority will create confusion and likely further 

litigation. 

14. Why might states care about the amount of water in a stream-also known as "minimum 

stream flow"? Would S. 3303 make it harder for states to manage minimum stream flow? 

In the West, water quantity and quality are directly related, and minimum flows are 

required to maintain designated uses, which including protecting fish and wildlife, as 

well as achieving related water quality standards. If streamflow is stopped or is too low, 

fish habitat is adversely affected and fish kills may occur. In addition, low flows can lead 

to increased stream temperatures, which drive down dissolved oxygen levels threatening 

fish and other aquatic life. 

Maintaining streamflow may be essential to achieving the downstream designated uses 

within the water quality standards, including agricultural uses, industrial uses, 

recreational uses and ensuring in some locations that there is sufficient clean water in 

streams to supply drinking water. The language of the bill could potentially result in 

foderal agencies exerting expanded control over water allocation, which has historically 

been a state right, as recognized in both the Clean Water Act and the Federal Power Act. 

Without the ability under Section 401 to mandate minimum stream flows, States' ability 

to require flows under state law would be preempted, pursuant to California v. FER C. 

This is not only a water quality and environmental protection issues, it is also a water 

rights and water allocation issue for the States. 

15. Would a bill that narrows the scope of Section 401, like the Water Quality Certification 

Improvement Act, limit a state's authority to have hydroelectric dam operators better 

comply with modem water quality standards? Do you think this could undermine the goal 

of balancing the many uses of our waterways, which has been set in statute for the last 30 

years? 

Under the Federal Power Act (FPA), in licensing non-federal hydro-electric projects, 

FERC is directed to balance competing uses of a waterway, including agricultural, 

energy, environmental and municipal and industrial uses. However, despite FP A Section 

27, addressing the rights of States to allocate their water resources, the Supreme Courts 

interpretation of FERC authority under the FPA means that narrowing States' Section 

401 certification authority will impact States' ability to protect both the quality and the 

quantity of water in streams and rivers. It would shift more authority to FERC and away 

from States to weigh and balance competing uses and protect State designated stream 

uses and achieve related water quality standards. 

As proposed, the legislative changes would greatly reduce States' authority to ensure 

compliance with water quality standards and would undermine the CWA 's goals, 

including balancing the authority between States and the federal government to 

implement the statute. 
102 


31623.064

Senator Merkley: 

16. Water quality is especially important in the West-it has impacts on local economies 

through irrigation, recreation, maintaining fisheries, and drinking water supply. 

Hydropower projects in Oregon in particular have impacted surface waters in a positive 

manner, with 40 I certification conditions for dams that address a multitude of concerns, 

such as water flow requirements, habitat concerns, and fish and wildlife effects. Can you 

give some examples of 40 I certification conditions that may not be directly related to the 

discharge, but improve downstream water quality and uses? 

Please see the response to Question 5.c. 

Narrowing the scope of Section 401 from "activity" to "discharge" would limit a State's 

ability to condition certification to ensure water quality standards are achieved. Other 

provisions of the bill place constraints on how it would be used, as indicated in answers 

to previous questions. This is likely to lead to substantial uncertainty and litigation 

related to the changes in the law. 

One example of a consequence would be limiting a state's ability to prevent actions that 

destabilize streambanks leading to pollution from sedimentation and threats to aquatic 

life, as well as human safoty and property, resulting from increased erosion and 

sedimentation. 

Another illustrative example is again the States' ability to mandate minimum bypass 

flows around hydropower facilities to protect downstream uses and manage instream 

temperatures, for the benefit of the aquatic environment, including fish and wildlife. 

Protection of swimmable and fishable streams is a basic purpose of the Clean Water Act, 

and States can and do designate streams for fishery purposes, both commercial and 

recreational, and set water quality standards to protect those fisheries and primary 

contact recreational uses. Section 401 conditions are used to protect these and other 

designated uses. 

17. There are many benefits to 401 certification conditions that may not be directly related to 

the discharge, for water quality and other areas as well. Can you speak to some potential 

economic benefits for local communities that may result from 40 I certification 

conditions? 

There are many economic benefits to clean sustainable water supplies. The WSWC was 

created to advise the governors on strategies to ensure that the West and adequate 

supplies of water of suitable quality for present and future uses. States protect 

watersheds that provide ecological and other services. Streams provide essential 

drinking water to communities, as well as aesthetic and recreational opportunities, 

including fish and wildlife benefits supporting tourism and related economies. Clean 

water protected by state standards for agricultural and industrial uses are also important 
103 


31623.065

to state and local economies, as well as the national economy. In the West, the economic 

contribution of recreation and tourism is well documented. Degraded water quality also 

imposes costs related to water and wastewater treatment. 

Water quality standards provide an important too/for States to balance economic uses, 

environment, and human health with respect to a state's water resources. As discussed in 

previous questions, the proposed changes to Section 401 could significantly reduce a 

state's ability to achieve that balance. 

18. S. 3303 will limit state agencies to just 90 days in which to identifY all necessary 

materials, information, or deficiencies in an application for 40 I certification. What are 

some of the negative downstream impacts would you expect to see if a State were forced 

to act on incomplete or rushed applications? 

As earlier described, large complex projects often change over time as the permitting and 

licensing process proceeds in response to any number of factors, some related to federal 

regulator requirements and other due to technological or economic obstacles. The 90-

day requirement would not allow States to address any future changes in the scope or 

impact of a project on state water quality standards. As a result, States may deny more 

401 certification requests. In addition to an increase in denials, some projects may be 

granted a federal license or permit in spite of possible violations of state water quality 

standards, which could eventually lead to enforcement action 

States are concerned that the inability to have sufficient information to condition a permit 

or license to meet water quality would result in limiting the States' ability to ensure 

compliance with water quality standards and support state-designated uses, including 

agricultural, fish and wildlife, municipal and industrial, and recreational uses. 

Degradation of water quality may lead to more state waters being identified as impaired, 

which may subsequently lead to threats to human health, decreased property values 

(acijacent to the newly impaired stream~) and loss of aquatic life, including highly valued 

game species such as rainbow and brook trout. 

S. 3303 would unnecessarily and arbitrarily constrain States' ability to identify and 

gather all information necessary to make an accurate assessment of the potential impacts 

of a proposed project upon water quality. As a result, States would inevitably lack the 

information and time necessary to make informed, scientifically sound and legallydefensible determinations. States would be forced to deny a greater number of requests 

for certification, which would likely lead to increased litigation and delay development of 

projects requiring state certification. 

An informed understanding of the scope and impacts of the proposed activity is necessary 

for States to identify what, if any, additional data or materials are necessary.to make a 

decision. Early engagement can improve this flow of information for complex projects. 

This likely has the ancillary benefit of improving permit processing times by improving 

the overall quality of certification requests. 
104 

Senator BARRASSO. Thank you very much, Mr. Willardson. We 

are grateful you had the opportunity to testify today. We appreciate 

your words. 

I have one question. Washington State cited reasons unrelated to 

water when it denied the water quality certification for the Millennium Bulk Terminal project. Do you agree Section 401 is about 

water quality, not about air emissions, noise or other non-water related impacts? 

Mr. WILLARDSON. Section 401 is about water quality and not the 

other impacts. My understanding of that decision is that there 

were a number of other considerations included that came from the 

environmental impact statement. 

It was denied with prejudice given they thought the impacts on 

water quality were clear and could not be mitigated. 

Senator BARRASSO. Thank you, Mr. Willardson. 

Senator MERKLEY. Senator MERKLEY. Thank you, Mr. Chairman. Thank you all for 

your testimony. 

On behalf of Ranking Member Carper, who is not here, I ask 

unanimous consent to submit letters and other materials for the 

record, including opposition letters from the following: the State of 

Maryland, Office of the Attorney General; the Environmental 

Council of the States; the Association of Clean Water Administrators; the Association of State Wetland Managers; a 139-member 

Coalition of Environmental River Keeper Groups; and the State of 

Washington Department of Ecology. 

Senator BARRASSO. Without objection. 

[The referenced information follows:] 

105 


31623.325

August 15, 2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment and Public Works 

United States Senate 

Washington, D.C. 20510 

The Honorable Thomas R. Carper 

Ranking Member 

Committee on Environment and Public Works 

United States Senate 

\'\!ashington, D.C. 20510 

Dear Chairman Barrasso and Ranking ]\[ember Carper: 

On behalf of our millions of members and supporters nationwide, we write in opposition to S. 3303, 

the "\Vater Quality Certification Improvement Act of 2018" and any other efforts to undercut state 

authorities under section 401 of the Clean Water Act (CWA). 

In 2006, the United States Supreme Court unanimously ruled that "[s]tate certifications under 

[Section]401 are essentiaL .. to preserve state authority to address the broad range of pollution." \X'e 

agree, which is why we urge the Committee to reject S. 3303. 

The Clean Water Act gives the states a key role in implementing water quality standards for direct 

discharges and non-point source pollution. Onder section 401 of the C\VA, states and tribal 

authorities enjoy the ability to ensure federal permits and licenses comply with state water quality 

standards and state law by requiring that permit applicants obtain state or tribal certification that 

their projecto have met those conditions that would ensure the project's compliance with applicable 

federal, state, and tribal law. This legislation would undermine the ability of states and tribal 

authoritieo to ensure that proposed projects comply with state and tribal water quality standards. 

The stateo and the federal government enjoy a special partnership for purposes of implementing the 

Clean \Vater Act. Congress specitically designated states and tribal authorities as co-regulators, 

recognizing state interests and authorities. As proposed, S. 3303 would run counter to the purpose 

of the Act and overturn decades of deference to state authority by climinishing the ability of states to 

n1anage or protect water quality\ and in sotne cases quantity, ·within their boundaries. 

S. 3303 could lead to an overly narrow reading of section 401 that would deprive states of the ability 

to maintain those beneficial uses the Clean Water Act was designed to protect. Federal agencies 

would be able to override state and tribal concerns and permit some activities and projects that 

would directly conflict >w1th state and tribal efforts and investments in pollution control programs, 

fish recovery progratns, temperature controltnechanisms, tninitnutn-flo\v reguirements, and other 

essential activities. Because states have been authorized to implement Clean Water Act programs, it 

only makes sense that they have the power to ensure a federally permitted activity does not impair 

state waters, in accordance with the state standards. 

This legislation subordinates the expertise of state and tribal regulators and the interests of state and 

tribal governments to the interests of the federal government. f'or example, when certifying a federal 

permit, some states may find it necessary to condition the certification on meeting state buffer 
106 


31623.326

requirements to ensure state water quality standards arc not impacted. S. 3303 would remove that 

state authority. Because S. 3303limits the state analysis to discharges only, it could be interpreted to 

prevent a state from considering the impact of a project or activity on non-point sources of 

pollution, including increased impet>"ious surfaces and associated impacts to water c1uality. 

Furthermore, this legislation places unreasonable time constraints on states during the 401 

certification process. By requiring states and tribal authorities to grant or deny a request for 

certification ";ithin one year, the state agencies may be forced to make a decision before they have all 

the relevant information or may rush their analysis in order to meet a deadline. Additionally, by 

limiting state agencies to 90 days in which to identify all necessary materials, information, or 

deficiencies in an application for certification, S. 3303 may force the states to make decisions 

without all of the relevant information. This creates a dynamic where, unless every step of the 

process proceeds seamlessly, agencies are faced with the impossible decision to either exercise their 

authority without necessary information (which exposes them to legal liability) or to fail to meet the 

schedule. This change will constrain federal, state, and tribal agency use of their independent 

authorities and rush decision making, potentially making it more difficult to protect water quality, 

recover threatened and endangered species, and manage tribal-trust resources and public lands. 

States, constrained by the proposed time limitations, may deny certifications more often because 

they will not have enough information for decision making. Last, federal agencies and developers 

may be incentivized to withhold information in order to get a decision within a certain period of 

time. 

This proposed legislation would also impact a state's role in hydropower relicensing. Because 

hydropower licenses are issued for up to 50 years, many hydropower facilities that arc now coming 

up for relicensing were first constructed before virtually all modern environmental laws were in 

place. It is during relicensing proceedings that the public gets the opportunity to ensure that dam 

owners make the necessary changes to comply with modern laws. The opportunity to mitigate for 

the damage to the environment, while still proYiding reliable electricity, only arises once in a 

generation or two. S. 3303 would signitlcantly curtail state and tribal authority to ensure the licenses 

include conclitions that protect state water quality standards and beneficial uses. 

A vital component of the C\VA's system of cooperative federalism is state authority to certifY and 

condition federal permits of clischarges into waters of the lJnited States under Section 401. This 

authority has helped ensure that activities associated with federally permitted discharges will not 

impair state water quality. S. 3303 does not ret1ect the historic relationship between states and the 

federal government with respect to managing water, and instead would upend the careful balance 

between the states and the federal government inherent in the Clean \'\1ater Act. By seizing power 

from states and tribes, S. 3303 puts the interests of power companies, pipelines, railroads, and other 

developers ahead of the interests of the states and the public that wants to enjoy access to clean 

\Vater. 

We urge the Committee to rejectS. 3303. 

Sincerely, 
107 


31623.327

I\merican Ri,·ers 

American \V'hitcwater 

Clean \'(/ater Action 

Earth justice 

Environment America 

Environmental Protection Network 

Friends of the Earth 

Hip Hop Caucus 

Izaak \'(/alton League of America 

League of Conservation Voters 

National Audubon Society 

National Latino farmers & Ranchers Trade Association 

National Parks Conservation Association 

National \X'ildlife Federation 

Natural Heritage Institute 

Natural Resources Defense Council 

Policy Link 

Quad Cities Waterkeeper Inc. 

Rachel Carson Council 

Sierra Club 

\X'aterkeeper Alliance 

1\lliance for the Great Lakes 

Religious Coalition for the Great Lakes 

Environmental Law & Policy Center, MidJVI'Jf 

New England FLOW 

Connecticut River Conservancy, Northeast 

Waterkcepers Chesapeake 

Appalachian Mountain Club, J OHtbeast 

Southern Environmental Law Center 

Tennessee Riverkeeper, Joutbeasl 

Pacific Coast Federation of Fishermen's ,'\ssociations (PCFFA) 

\'(/estern Organization of Resource Councils 

Black \'iiarrior Riverkeeper, Ala!Hwta 

One \'(/orld Adventure," "1/abama 

Alaska Survival 

Kenai River \'(/atershed Foundation, Jnc,/1/aJka 

Susitna River Coahtion,Aio.rka 

California Sportfishing Protection Alliance 

Environmental Protection Information Center, Ca!ifomia 

Humboldt Baykeeper, California 

Klamath Forest Alliance, California 

San Francisco Baykeeper, Calijomia 

South Yuba River Citizens League, Ca!ijimria 
108 


31623.328

Animas Riverkeepcr, Colorado 

Delaware Nature Society 

Potomac River keeper Network, District ofColmnbia 

Apalachicola Riverkeeper, Flonda 

Emerald Coastkeeper. Inc., !:'lorida 

Tampa Bay Waterkeeper, Flonda 

Altamaha Riverkeeper, Georgia 

Chattahoochee Riverkeeper, Georgia 

Coosa River Basin Initiative/Upper Coosa Rinrkeeper, Geo~gia 

Ogeechee Riverkeeper, Georgia 

Idaho Rivers United 

Kootenai Environmental ;\lliance, Idaho 

Selkirk Conservation Alliance, Idabo 

Holy Spirit Missionary Sisters- USA-JPIC, Illinois 

Hoosier Environmental Council, Indiana 

Indiana Wildlife Federation 

Lower Ohio River \Vaterkecpcr, Indialla 

Northwest Indiana Steclheaders, Indiana 

\'i/abash Riverkecper, Banks of the \\'abash, Inc., Indiana 

Friends of the Kaw, Konsas 

Atchafalaya Basinkeeper, l..J!Nisiatw 

Consenration Law Foundation, Ataine 

Friends of Merrymeeting Bay, Jvfaine 

Natural Resources Council of Maine 

Audubon Naturalist Society, Marylmul 

South River Federation, Inc., A1trryland 

South Wings, Maryland 

St. Mary's River Watershed Association, Mao•land 

Upper Peninsula Environmental Coalition, N/irbigan 

WasteWater Education 501 (c)3, Mtihigan 

Yellow Dog Watershed Preserve, Nlicbiga11 

Minnesota Division lzaak \'i/alton League of America 

Save Our Sky Blue \'Caters, Mitme.wta 

Pearl Riverkeeper, Mi.rsi.r.rippi 

Upper lvlissouri \\'aterkeeper, l'v1ontatta 

Raritan Riverkeeper, New ]<'my 

Buffalo Niagara Waterkeeper, Nov York 

Concerned Citizens of Cattaraugus County, Neu; York 

Genesee Valley Audubon Society, Nelli York 

Sierra Club Niagara Group, New York 

WE 1\CT for Environmental .Justice, Nel/) '(ork 

WESPAC Foundation, Inc, New }'ork 

Western New York Environmental Alliance 

Broad River Alliance, a Waterkeeper Affiliate, North Carolina 
109 


31623.329

Carolina Canoe Club, Nottb Cmvlina 

Catawba Riverkeeper Foundation, North Carolina 

Coastal Carolina Riverwatch, North Caroli!!a 

Crystal Coast Waterkeepcr, Notth Carolina 

Green Riverkeeper, North Carolina 

Mountain True, Nort/1 Carolina 

Riover Guardian Foundation, North Ct1roline1 

\X'hite Oak-New Riverkecper "'\lliance, North Carolina 

Yadkin Riverkeeper, Notth Carolina 

\X'atauga Riverkeeper, North Cant/ina 

\'Vinyah Rivers Foundation, Notth Carolina~- South Carolina 

Headwaters Chapter Izaak \'Valton League of America, Ohio 

Junction Coalition, 0!1io 

Ohio River Foundation 

Columbia River Estuary 1\ction Team, Oregon 

Deschutes River Alliance, Oregon 

Friends of the Columbia Gorge, Oregon 

Greater Hells Canyon Council, 01rgoJJ 

KS Wild, Oregon 

Oregon Physicians for Social Responsibility 

Water Watch of Or~gon 

\'Vestern Environmental Law Center, Ongon 

Lower Susguehanna Riverkecper Association , Pettmy!Pania ~-l'vtaryland 

Middle Susguehanna Riverkeeper Association, Inc,, Petu!S)'IVilllta 

PennFuture 

Pennsylvania Council of Churches 

Audubon South Carolina, J oath Cam/ina 

Friends of the Reedy River, South Carolina 

Mountain Bridge Trout Unlimited, South Carolina 

N aturaland Trust, J o!l!b Carolina 

Save Our Saluda, J outh Carolina 

Spearfish Canyon Society, Sout/1 Dakota 

Bayou City \\1aterkeeper, Texas 

Living Rivers & Colorado Riverkccper, Utah 

Rappahannock League for Environmental Protection, Virginia 

Center for Environmental Law and Policy, 117mhit(gfon 

Conservation NorthwesL, II7a.rhi1lj!,fon 

Kettle Range ConsetYation Group, lf/asNilgton 

Loo Wit Group of Sierra Club, !Wmhington 

North Cascades Conservation Council, Jl7rJ.rhington 

Puget Soundkeepcr i\lliance, IWashil(glon 

The Lands Council, lf/asbit(~lon 

\X1ashington Environmental Council 

Cacapon Institute, tf'e.rt Virginia 
110 


31623.330

Sleepy Creek \\1 atershed 1\ssociation, West I /i1;gilllrJ 

\\1est Virginia Rivers Coalition 

Milwaukee Riverkeeper, !r'zsron.rin 

Superior Rivers \\'atershed Association, !Vz]wmin 

\Visconsin Metro Audubon Society, W'irmmin 

Wisconsin Trout Unlimited, W'irco!tJin 

American Packrafting Association, !Fyomins 
111 


31623.331

Department of Environmental Quality 

August 13, 2018 

To protect, conserve and enhance the quality of Wyoming's 

environment for the benefit of current and future generations. 

Chairman John Barrasso 

United States Senate 

Committee on Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, DC 20515 

RE: S. 3303, the Water Quality Certification Improvement Act of 2018 

Chairman Barrasso, 

Todd Parfitt, Director 

Thank you for reaching out for feedback on S. 3303, the Water Quality Certification Improvement Act of 

2018. Specifically, committee staff asked if the bill erodes states1 ability to protect water quality. The 

Wyoming Department of Environmental Quality has reviewed the bill. It recognizes the states' role in 

protecting water quality under the principles of cooperative federalism. It does not erode states' ability 

to protect water quality under Section 401. 

Please fee! free to contact me at 307-777-7937 if you have additional questions, 

Sincerely, 

Todd Parfitt 

Director 

Wyoming Department of Environmental Quality 

cc: David Willms, Governor's Policy Office 

TP:jlp 

200 West 17th Street Cheyenne, WY 82002 http:l/deq.wyoming.gov Fax (307)635-1784 

ADMIN/OUTREACH ABANDONED MINES AIR QUALITY INDUSTRIAL SITING SOUD & HAZ. WASTE WATER QUALITY 

(307)777-7937 (307)777-5145 (307)777-7391 (307)777-7369 (307)777-7756 (307)777.7752 (307)777-7781 
112 


31623.332

EXHIBIT A 

Chronology of Constitution Pipeline Company, LLC's application to the New York State 

Department of Environmental Conservation for a Section 401 Certification 

This document provides a curated chronology of Constitution Pipeline Company, LLC's 

application to NYSDEC for a Section 40 I Certification. All documents referenced in this 

document are included in an electronic appendix submitted concurrently with this chronology. 

The page number referenced in the citation column below refers to the page number in the 

electronic appendix. 

All documents referenced and provided are from the administrative record that NYSDEC 

provided to the United States Court of Appeals for the Second Circuit. Although NYSDEC was 

required to file its decision, and an index of the record supporting it, with the Commission 

pursuant to 18 C.F.R. § 385.2014, 1 it failed to do so, so these documents are not currently in the 

Commission's records. Reference is also made to sworn affidavits provided to the Second 

Circuit by Constitution, but not considered by that court in its proceedings. 

25.\'illl5 

(a) For each Federal authorization-i.e., permit, special use authorization, certification, 

concurrence, opinion, or other approval-required under Federal law with respect to a 

natural gas project for which an application has been filed for authorization under section 

3 of the Natural Gas Act for a certificate of public convenience and necessity under 

section 7 of the Natural Gas Act, the Federal agency or officer, or State agency or officer 

acting pursuant to delegated Federal authority, responsible for each Federal authorization 

must file with the Commission within 30 days of the effective date of a final decision or 

action on a request for a Federal authorization or the expiration of the time provided by 

the Commission or by Federal law for a final decision or action, the following: 

( 1) A copy of any final decision or action; 

(2) An index identifying all documents and materials-including pleadings, 

comments, evidence, exhibits, testimony, project alternatives, studies, and mapsrelied upon by the agency or official in reaching a decision or action; and 

(3) The designation "Consolidated Record" and the docket number for the 

Commission proceeding applicable to the requested Federal authorization. 

(b) The agencies' and officers' decisions, actions, and indices, and the Commission's 

record in each proceeding, constitute the complete consolidated record. The original 

documents and materials that make up the complete consolidated record must be retained 

by agencies, officers, and the Commission for at least three years from the effective date 

of a decision or action or until an appeal or review is concluded. 

(c) Upon appeal or review of a Federal authorization, agencies, officers, and the 

Commission will transmit to the reviewing authority, as requested, documents and 

materials that constitute the complete consolidated record. 
113 


31623.333

Date 

Apri12012 

Beginning \vith initial discussions in 2012. Constitution's 

application to NYSDEC for a water quality certification under 

Section 40 I of the Clean Water Act was part of an intensely 

interactive multi-year process. which included weekly meetings, 

numerous field visits, written correspondence, emails. and 

conference calls, all in accordance with NYSDEC's historical and 

standard practice for processing applications. These meetings 

reflected a clear momentum toward issue resolution and support 

for NYSDEC's statements to Constitution that it was prepared to 

issue a Section 401 Certification in July or August 2015. 

NYSDEC's denial ignores this multi-year dialogue. 

Description Citation I Appendix 

Page Nnmbers 

Constitution began its pre-filing process with FERC to See FERC Docket No. 

begin its environmental review of the project. NYSDEC PF 12-9 and CP 13-499; 

actively participated in the FERC review process, Appendix 00000 I 

submitting nine detailed comment letters to FERC 000021 (pre-tiling 

between November 2012 and May 2014. request); 000027-

000032 (NYSDEC 

letter); 000033 

000040 (NYSDEC 

letter); 000041 -

000079 (NYSDEC 

letter); 000080-

000122 (NYSDEC 

letter); 000175 

000176 (NYSDEC 

letter); 000404 

000406 (NYSDEC 

letter); 000407-

000426 (NYSDEC 

letter); 000537 

000539 (NYSDEC 

letter); 000542-

000544 (NYSDEC 

letter). 
114 

Senator MERKLEY. Thank you. 

Mr. Willardson, I understand that projects are often denied certification due to the lack of communication with key stakeholders. 

You mentioned incomplete applications being submitted or incomplete responses to requests for information. Were you using that as 

the primary reason there are delays in the process? 

Mr. WILLARDSON. Only one of the reasons. From a State perspective, there are challenges related to staffing and staffing turnover. 

States have made adjustments. I know of at least one State that 

now assigns two people to work on any particular FERC licensing 

or relicensing given the length of time and the potential for turnover. 

Senator MERKLEY. At least a significant share? I thought perhaps from your testimony that the majority of the 401 certification 

delays were the result of incomplete applications being submitted? 

Is that correct or incorrect? 

Mr. WILLARDSON. That is correct. Where States have not been 

able to act in a timely manner, it is largely because the information 

has been received or not received. 

Senator MERKLEY. That is something that certainly can be addressed within the existing law? 

Mr. WILLARDSON. Yes. I think another area of interest obviously 

is the definition of one certification is requested. In the past, States 

were disappointed that the Federal Energy Regulatory Commission, on a hydropower issue, unilaterally tolled the time for the 

State to act in over 200 projects. 

Since then, States have either denied up front a project that 

came in with an incomplete application as opposed to waiting until 

the end of the 1-year tolling period currently available under the 

law. 

Senator MERKLEY. To expedite the process. You mentioned hydropower and that is a big deal in my State. We have a lot of dams. 

We have dams coming out that no longer serve existing purposes; 

that enhance fish passage; dams going in or hydropower going in 

on existing dams; electric generation; fisheries; recreation, many 

things that affect the local economy that people care a great deal 

about. 

Are you aware of any hydropower projects in Oregon that have 

had significant problems with their 401 certifications? 

Mr. WILLARDSON. I am not. 

Senator MERKLEY. The types of things that Oregon has addressed to complement the Federal regulation have been things 

like protections for wetlands, shoreline regulation, water temperature, acidity, turbidity, levels of instream flow which can be essential downstream both to temperature, fish passage and water being 

drawn for drinking water, sediment excavation deposit, bacteria 

levels, dissolved oxygen and dissolved nitrogen, algae growth, 

chemical and waste management, data collection, public reporting 

transparency which is very important to the stakeholders in our 

State so we really know what is going on, and instream water construction procedures that affect all of the above. 

Are those appropriate types of things for the public to be concerned about in terms of recreation activities, the health of the 

streams, fish passage and so forth? 

115 

Mr. WILLARDSON. Yes, there are many components related to 

water quality and protecting water quality more than just discharges under Section 402. Many of the States deal with those 

under not only the Federal law, but, as the law currently allows, 

under applicable State law. Oregon is one of the States that has 

its own Federal hydropower licensing process. 

Senator MERKLEY. When we talk about discharge, is it clear that, 

as rewritten, discharge would encompass the impact on discharge 

during the process of construction as well as upon completion of the 

project? 

Mr. WILLARDSON. I think in addition to just discharge, it does 

take many forms, the alteration of the bed and banks obviously are 

included, but the bypass flows themselves. As I said, most of our 

experience has been with bypass flows and the Federal Energy 

Regulatory Commission. 

Maintaining those flows is important to water quality standards, 

total maximum daily loads and other components of the Act. Yes, 

there are many components. 

Senator MERKLEY. Many components that might not be directly 

covered by just the word ‘‘discharge’’ or at least there would be a 

huge amount of lawsuits and adjudication to try to determine what 

discharge and how broad that is? 

Mr. WILLARDSON. It would not be covered, in my opinion, by discharge. 

Senator MERKLEY. Thank you. 

Senator BARRASSO. Senator Capito. 

Senator CAPITO. Thank you, Mr. Chairman. I want to thank the 

Chairman for his willingness to work with me in developing this 

legislation. 

I thank the witnesses for being here today. 

Mr. Stewart, I come from West Virginia, a proud, coal-mining 

State. I want to thank you for your years of coal mining. I know 

it is a tough job. I appreciate you coming today to give us your perspective. 

I notice you are a member of the union, the MWA, I would suppose? 

Mr. STEWART. It was Local 400 in Montana. 

Senator CAPITO. They are good friends of mine. 

Mr. STEWART. IUOE. 

Senator CAPITO. Yes, thank you. 

I would like to talk a little bit about some of the testimony we 

have already had today. Mr. Booker, you mentioned more than 

once in your testimony the importance of certainty around the regulatory process. 

In West Virginia, this has been a challenge for us. We have three 

pipelines that have been permitted that are now on hold, not 

through the 401 process, but with FERC. You might have been following that. 

I am going to start with that question. What does that uncertainty do to your members and membership? It also has to have 

some sort of residual impact as to your apprenticeships and who 

wants to get into the business of building and constructing when 

you don’t know if you are going to be coming or going with the uncertainty of permitting and the regulatory. 

116 

Encompassing the 401 uncertainty, how are you seeing this play 

out in terms of these pipelines we are seeing put on hold right 

now? 

Mr. BOOKER. The simple answer is people are not going to work. 

They are not earning a paycheck, are not able to provide for their 

families, and not able to support the local economy and participate 

in the local economy. 

Specific to your question on training, we pride ourselves in our 

training. We invest a billion dollars a year in training. We have 

training centers in every State of this Country, multiples in every 

State of this Country. 

We also have apprenticeship readiness programs where we try to 

appeal to under-served communities, whether it is veterans 

through our Helmets to Hard Hats Programs, women, people of 

color, to bring them into the construction industry. It is not an easy 

career. You have the ebbs and flows. 

When you take away the predictability of the permitting process, 

it adds more unpredictability or more uncertainty to that. That 

means people are not going to work every day. Our training is 

based on working through the week, and taking classes at night as 

you graduate your levels of apprenticeship. 

If you are not working, you are not getting enough hours to graduate your apprenticeship, gain the skills you need to be a journeyman or whatever craft you come from. It has a devastating effect 

on the growth of the future work force for us and to be able to keep 

our training centers operating. 

Senator CAPITO. Absolutely. 

Mr. Stewart, I feel this daily living in a State like ours that has 

quite a bit of coal mining, we live there, we breathe the air, we 

drink the water, we fish, we recreate in our areas, as you mentioned in your testimony, where you live. In my view, if there are 

any people more environmentally sensitive to their area, it is the 

people who live there. Striking that balance between working, the 

economy and the environment where you live, breathe and raise 

your family and your children go to school, I think is difficult. 

If you could speak a little bit to the frustration, as you did in 

your opening statement, you feel that you cannot get out your message to say how impactful this is to you all and also, how deeply 

you feel about the environment you live in and are surrounded by. 

Mr. STEWART. I appreciate the question, Senator Capito. 

Coal mining is a brotherhood. It takes a special breed to be in 

the middle of the night sitting on a piece of equipment in the middle of nowhere on the mine site eating out of a box at lunchtime 

or in the middle of the day, when it is ice cold outside or else in 

burning heat. 

You are sitting there running a shift whether on a dozer, truck 

or a piece of equipment, a dragline, whatever the case, but you are 

alone. You have a lot to think about. I also ran the reclamation 

dozer so I do a lot of the reclamation. 

Senator CAPITO. Which is the environmental restoration of mining. 

Mr. STEWART. Doing the reclamation side of areas of the mine. 

Coming from my previous life as an equipment operator when I 

was first taken out there and asked to do an interview to apply for 

117 

the position, I did not know where it started or where it ended. The 

reclamation was so great, it was beautiful. 

I say it is almost kind of like a zoo because you see the best looking out there, you see the best looking deer. I don’t care what anybody says, there are deer right there on the rail spur eating the 

grass right next to the rail. 

I lived by the railroad tracks, maybe half a mile from the railroad next to I–90, for 44 years, all my life. It is a brotherhood. 

First and foremost, we help each other so we can come home safe 

so we are able to provide for our families and we take care of each 

other. 

Senator CAPITO. Thank you. 

Senator BARRASSO. Thank you, Senator Capito. 

Senator Van Hollen. 

Senator Van Hollen. Thank you, Mr. Chairman. 

Welcome to all the witnesses. 

A few weeks ago we had a hearing on legislation dealing with the 

Endangered Species Act. That legislation proposed to give the 

States more authority on the grounds that the States were in a better position to understand some of the local concerns. Now we have 

a piece of legislation that wants to take away authority from States 

when it comes to making some of these decisions. 

There has been a lot of focus on the pipeline issue. Also, this legislation will have a negative impact in many other scenarios. For 

example, with respect to the Chesapeake Bay and protecting the 

waters that flow into the Chesapeake Bay, there is a dam on the 

Susquehanna River called the Conowingo Dam which is run by 

Exelon. 

As I read this legislation, it would prohibit the State of Maryland 

from doing something we have done for a very long time which is, 

as part of that permitting process for the dam under 401 authority, 

required Exelon to provide, for example, fish passage because the 

dam interrupts fish migration up the river. 

That has never been an issue. However, this legislation would 

take away the authority of the State of Maryland or other States 

to make that a condition. I would like to have all of your views on 

this starting with Mr. Willardson. 

Mr. WILLARDSON. I think it would definitely reduce the State’s 

authority to require minimum bypass flows or require releases 

from the dam to protect downstream water quality as well as 

aquatic species. 

As far as the fish passage, that would be more related to the Interior and those authorities where they can mandate, under the 

Federal Power Act, fish passage facilities. It would definitely reduce State authorities. 

Senator Van Hollen. With respect to sediment flow, another issue 

is when you put up a dam; it can have an impact on sediment 

which obviously can have an effect on waters as they go into the 

Chesapeake Bay. 

Sometimes it captures and traps sediment, but when you have 

major storms, it has this overflow impact. As I read this, it would 

also take away the authority of a State to tie permitting for a dam 

project, for example, to the impact on sediment flows. Is that how 

you read it? 

118 

Mr. WILLARDSON. It obviously would limit it to discharges and 

however that might be defined in the future. There are many components besides discharges that impact water quality. We have 

been very strong proponents of the States’ authority to regulate 

their water, both quantity and quality to meet their goals. 

Senator Van Hollen. To the other gentlemen, you focused your 

comments on pipelines and I understand that testimony. It is not 

your intention, is it, to deprive States of the authority to require, 

for example, fish passage mechanisms as part of permitting for hydroelectric projects like a dam, is it? 

Mr. BOOKER. No, that is correct. We support regulation but I 

think the current way the system has been, my testimony speaking 

specifically to the pipelines and Mr. Stewart’s with the coal export, 

is that has been abused and misused to go beyond that which has 

caused these delays. 

Senator Van Hollen. We can have an argument on the merits of 

what both you gentlemen talked about, but my concern is, as I read 

it, Mr. Chairman, that this is much broader in scope and impact 

and would deprive States of tools they have been using for a very 

long time or may reasonably want to use when it comes to things 

like sediment flows and things like that around the Conowingo 

Dam. 

I look forward to continuing the conversation with all of you and 

the Chairman on that. Thank you. 

Senator BARRASSO. Thank you very much, Senator Van Hollen. 

My view on this is that the permitting process now has been 

weaponized to pick winners and losers. The State of Washington is 

acting in this case like the Secretary of State, the Secretary of 

Commerce, and the U.S. Trade Rep in trying to decide singlehandedly what our Country is permitted to export. 

As a result that there are six Attorney Generals from Wyoming, 

Kansas, Montana, Nebraska, South Dakota, Utah who are supporting the Millennium Bulk Project in litigation against the State 

of Washington. The State is preventing important interState commerce, violation of the Constitution. 

I ask unanimous consent to enter their brief into the record. 

[The referenced information follows:] 

119 


31623.443

NEWS RELEASE 

FOR IMMEDIATE RELEASE: CONTACT: 

July 31, 2018 Cathy Landry, 

202-216-5913 

clandry@ingaa.org 

INGAA applauds effort to restore cooperative federalism 

WASHINGTON- Don Santa, president and chief executive officer of the Interstate Natural 

Gas Association of America, applauded a bill introduced today by Senators john Barrasso, 

Shelly Moore Capito, Steve Daines and jim Inhofe to restore cooperative federalism in the 

review of infrastructure projects, such as interstate natural gas pipelines: 

"INGAA supports this measure to bring clarity to section 401 of the Clean 

Water Act. In recent years, a handful of states have used this provision of 

federal law to disrupt or delay infrastructure projects, sometimes using 

justifications unrelated to water quality. Cooperative federalism is upset, 

interstate commerce is disrupted, and the interests of other states are 

undermined when individual states step outside the role defined by Congress 

in section 401. Providing clarity regarding the appropriate federal and state 

roles under section 401 can restore the cooperative federalism Congress 

intended in this section ofthe Clean Water Act." 

### 

!NCAA represents the U.S. natural gas pipeline industry.JNGAA's members operate approximately 

200,000 miles of pipelines and serve as an indispensable link between natural gas producers and 

consumers. 

Interstate Natural Gas Association of America 

20 F Street, N.W .. Suite 450 • Washington, D.C. 20001 • 202.216.5900 
120 


31623.444

l \!'.J(,\"IrW,!! { 

September 12, 2018 

The Honorable John Barrasso 

Chairman, Senate Environment & Public Works Committee 

307 Dirksen Senate Office Building 

Washington, DC 20510 

The Honorable Tom Carper 

Ranking Member, Senate Environment & Public Works Committee 

513 Hart Senate Office Building 

Washington, DC 20510 

Dear Chairman Barrasso and Ranking Member Carper: 

On behalf of Millennium Bulk Terminals-Longview LLC, (Millennium) please accept this letter in support 

of the Water Quality Certification Improvement Act of 2018. As you know, Millennium proposes to build 

a coal export terminal on the lower Columbia River. Based on our experience in being the only project 

proponent to have received a water quality certification denial "with prejudice" in Washington State, 

and the only project to have been denied a water quality certification on the basis of non-water quality 

factors, we share your belief that the Clean Water Act (CWA) is to be used to protect water quality, and 

should not be misused to block projects that might be unpopular to some. Congress never intended 

that the limited authority provided to states under CWA section 401 to weigh in on the propriety of a 

proposed federal permit would be used by states to veto projects based on political concerns having 

nothing to do with water quality. 

To the contrary, as you well know, section 401 was promulgated to enable states to ensure that 

federally permitted projects would not result in water quality standards violations in state waters. 

Recent developments in Washington State demonstrate that the CWA, as presently worded, is 

susceptible to abuse by state actors who have little regard for the cooperative federalism imbedded in 

the statute, and who wish, instead, to dictate whether a federal permit should be issued (or not) by 

manipulating the section 401 certification process for their political purposes. 

In addition to providing support for the proposed legislation, this letter responds to the comments of 

Washington State Department of Ecology (Ecology) Director Maia Bellon. Director Bellon's letter to 

Chairman Barrasso dated August 15, 2018, addressed both the Committee's proposed legislation and 

her decision to deny Millennium a section 401 certification "with prejudice." Director Bellon insists that 

she denied Millennium's section 401 certification because her agency found that Millennium "failed to 

__________ Page 1 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
121 


31623.445

~Ilennium. 1.0"-!(,Vlf \\'. !.ll 

meet existing water quality standards;" and because Millennium failed to propose any mitigation to 

offset adverse environmental impacts. As we demonstrate below, these statements are patently false. 

First, her lawyers insisted---- based on sworn statements from Ecology staff-- that the agency's denial 

"with prejudice" was not based on CWA factors, but was instead based entirely on authority under the 

Washington State Environmental Policy Act (SEPA). Unless her lawyers and staff provided false 

testimony to the administrative tribunal, Director Bellon's letter to Congress is at best mistaken, or 

otherwise simply false. 

Second, contrary to Director Bellon's letter, Millennium has both proposed and submitted to Ecology a 

host of mitigation plans for environmental impacts. We are providing the following information to clear 

up any discrepancy in the record Director Bellon's letter created concerning Millennium, and to highlight 

for the Committee the grossly unfair treatment we received from the Department of Ecology at the 

direction of Director Bellon, and thus, the need for your proposed legislation. 

At Millennium, we are committed to protecting the water resources of the state and federal 

government and we take that responsibility seriously. We were heartened that the Final Environmental 

Impact Statement published by the state of Washington and Cowlitz County (SEPA FE IS) concluded that 

our project would not result in significant adverse impacts to water quality, wetlands, aquatic biota, or 

fish. Notwithstanding these favorable water quality conclusions in the SEPA FE IS, Ecology Director 

Bellon denied the water quality certification based largely on indirect impacts from trains and vessels, 

and specifically, impacts that included air emissions from locomotives, impacts on vehicular traffic, rail 

capacity concerns and train -caused noise and vibrations, among other non-water quality factors. 

Millennium Coal Export Terminal 

Millennium is proposing to locate a coal export terminal on a 190-acre brownfield site on the Columbia 

River near Longview, Washington. At full build-out, the project would be capable of shipping up to 44 

million metric ton per year to markets in Asia. The site was selected after a review of more than 20 sites 

on the west coast of the US, Canada and Mexico for its existing infrastructure. The project would reuse 

a portion of an industrial site originally developed for the aluminum industry during World War II, 

coexisting with an operating bulk product terminal. Coal from the Powder River or Uinta Basins would 

be transported by unit trains to the site over existing rail lines. Two new docks would be constructed on 

the Columbia River, providing access to Panamax-sized vessels that can reach the site via the existing US 

Army Corps of Engineers dredged shipping channel. 

The project site is located in Cowlitz County, Washington, a county with unemployment rates that far 

exceed other Washington counties. Cowlitz County residents have expressed a strong support for the 

family-wage construction and operation jobs that would come with the project, and would provide 

opportunities for workers to stay close to home rather than having to commute long distances to find 

work. 

Page 2 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

93519204.10021523-00007 
122 


31623.446

L< l ~ (, \- 11 "\\', l l < 

Millennium's objective is to transform the former Reynolds smelter site into a new, economically vibrant 

and environmentally responsible world-class port facility. To accomplish this, we are actively and 

voluntarily working with state and local agencies in our cleanup efforts. Millennium, Northwest Alloys 

(Alcoa) and Ecology have entered a voluntary agreement to ensure the cleanup of the site follows all 

state rules and regulations. Evidence of localized contaminants from Reynolds' operations has been 

measured, and although the site has been classified by Ecology as low-risk, we are closely and carefully 

coordinating an extensive cleanup process. Cleanup costs are carried by the private entities and not the 

public. Reports on the progress of our efforts are regularly submitted to local and state agencies. By 

conducting a thorough investigation and developing cleanup plans in compliance with applicable laws 

and regulations, we are a step closer to our goal of building a world-class port facility in an 

environmentally responsible way. 

Permitting History 

Millennium applied for local (Cowlitz County), state, and federal permits for the project in February 

2012, over six years ago. In order to provide full disclosure of all of the potential impacts of the project, 

we have provided the agencies with over 15 million dollars to pay for a third party consultant to write 

separate state (SEPA) and federal (NEPA) EISs. The 13,600 page SEPA EIS was completed in April2017. 

The NEPA Draft EIS was published in September 2016. 

Ecology's Denial of Millennium's CWA Section 401 Water Quality Certification 

Director Bellon's letter attempts to defend her agency's actions in denying the project a Section 401 

Water Quality Certification. According to Director Bellon: "The facts of this denial ore simple: 

Millennium foiled to meet existing water quality standards and further foiled to provide any mitigation 

pion .... " 

This statement is in direct contradiction to her department's reply brief to the Washington Pollution 

Control Hearing Board (PCHB) insisting that Ecology did not deny the certification "with prejudice" based 

on the deficiencies set forth in Section Ill (water quality) of the denial Order. That part of the Denial 

Order dealt with information that Ecology alleged was both missing and necessary for it to first make a 

determination as to whether it had "reasonable assurance" that the project would not violate water 

quality standards. In other words, Section Ill of the Order stated that Ecology simply could not 

determine based on the information it had, whether or not project discharges would comply with water 

quality standards. 

Accordingly, the case she lays out in her letter to you is flatly contradicted by the plain language of the 

Denial Order itself. At best, it is inconsistent with both Ecology testimony during the appeal of the 

permit denial and the findings of the Washington PCHB (Decision at paragraph 19 concluding that the 

Denial "with prejudice" was based solely on SEPA), and at worst, is plainly disingenuous. 

_______________________________________________________________ Page3 

4029 Industrial Way • PO Box 2098 • Longview. WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.1 0021523·00007 
123 


31623.447

Instead of properly relying on the CWA, Ecology insisted that Director Bellon "decided to exercise 

Ecology's SEPA substantive authority on the first permit decision before her -the 401 certification-- and 

deny the certification with prejudice." Ecology explained that "the reason Ecology issued the denial 

"with prejudice" is that the significant, adverse, impacts identified in the E/S cannot reasonably be 

mitigated. Since they cannot be mitigated, there is no way for Millennium to address them and 

consequently no basis on which to continue keeping the section 401 process open." In short, the record 

demonstrates that the denial "with prejudice" was based on anything other than water quality 

concerns, and in no way stemmed from any agency findings or conclusions that Millennium's proposed 

project would not be able to comply with water quality standards. 

SEPA Findings and Proposed Mitigation 

Similarly, Director Bellon's claims as to the impacts and risks that the project would pose are both 

contrary to testimony of her own lawyers and staff, and to the findings of the SEPA EIS. Her agency 

undeniably concluded in the Final EIS that Millennium's proposed coal export project will not have a 

significant adverse effect on water quality. Millennium is now appealing Ecology's certification denial, 

and the PCHB's decision upholding that denial, because both Ecology and the PCHB have inaccurately 

applied the CWA to our project. We are confident the law is on our side. 

In her letter to you, and in other public statements, Director Bellon makes claims that are not supported 

by the SEPA EIS her own agency produced. Director Bellon wholly ignores the mitigation that 

Millennium has proposed to more than offset wetland and habitat losses. Among her claims, and the 

rebutting facts found in Ecology's EIS, are the following: 

Bellon Claim: 

The project would destroy 24 acres of wetlands on the site. 

FACT: As stated in Section 4.3 of the SEPA FEIS, 24 acres of existing wetlands would be 

filled. Millennium submitted a Conceptual Mitigation Plan in May 2017 to the U.S. Army 

Corps of Engineers (Corps), Cowlitz County and Ecology. The Mitigation Plan identifies a 

nearby downriver site that is currently a ditched and drained agricultural pasture. The 

Plan would convert the pasture into 61 acres of wetlands, rehabilitate approximately 14 

acres of degraded wetlands, and revegetate approximately 14 acres of upland buffer, 

providing a total of 88 acres of mitigation. This mitigation proposal provides more than 

what is required for wetland mitigation and is intended to insure against any unforeseen 

shortfalls in wetland creation. Neither the Corps nor the County has found the Plan to 

be inadequate. To the contrary, the County reviewed the plan, determined it to be 

adequate and issued a permit for that activity in July 2017. 

Page 4 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-6340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
124 


31623.448

Section 4.3 of the SEPA FE IS concludes: "Compliance with laws and implementation of 

the mitigation measures described above would reduce and compensate for impacts on 

wetlands. There would therefore be no unavoidable and significant adverse 

environmental impacts on wetlands." 

Most of the wetlands that will be impacted by the proposal (over 21 acres) are 

considered Category Ill wetlands, and only three acres are considered Category IV 

wetlands. Washington State ascribes this rating system to wetlands based on their 

functions. Washington State Wetland Rating System for Western Washington (Hruby 

2006). Category I wetlands have the highest level of function, are afforded the widest 

buffers, and impacts on such wetlands require the largest amount of compensatory 

mitigation. Category IV wetlands, on the other hand, have the lowest level of function, 

are afforded more narrow buffers, and impacts on such wetlands require a lower 

amount of compensatory mitigation. 

Millennium's proposed wetland mitigation plan would convert an existing ditched and 

drained agricultural pasture to a diverse habitat of emergent, forested and scrub-shrub 

wetlands within the historic, and now disconnected, floodplain of the Columbia River. 

The proposed mitigation would restore hydrology and historic forested and scrub-shrub 

wetlands, and provide potential habitat for wildlife such as Columbia white-tailed deer. 

In total, the mitigation would convert over approximately 61 acres of upland pasture to 

palustrine forested, scrub-shrub, and/or emergent wetlands, rehabilitate approximately 

14 acres of degraded emergent wetlands and revegetate approximately 14 acres of 

upland buffer. 

Bellon Claim: 

Dredging 41 acres of river bed would damage Washington's water quality. 

FACT: The dredging would be required to provide ships access from the US Army Corps 

maintained Columbia River shipping channel to the proposed new docks. As required by 

the Corps and other agencies, a sediment characterization report has been prepared. 

On August 25, 2017, Jennifer Sutter, Project Manager for Oregon's Department of 

Environmental Quality (DEQ), found that the dredge material would meet Class A 

criteria because the dredged spoils contain constituents at a level below detection levels 

for chemicals, metals and pesticides of concern to water quality. Dredge material that 

meets Class A criteria by definition does not impair water quality. 

________________________________________________________________ Pages 

4029 Industrial Way • PO Box 2098 • Longview. WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
125 


31623.449

Bellon Claim: 

Driving 537 pilings into the river bed for over 2,000 feet of new docks would result in 

the loss of five acres of aquatic habitat. 

FACT: Millennium has proposed to construct an aquatic habitat mitigation site by 

converting an existing, isolated pond to an off-channel aquatic habitat connected to the 

Columbia River. Our Conceptual Mitigation Plan for Wetlands and Aquatic Habitat was 

submitted to Ecology, Cowlitz County and the Corps in May of 2017. Cowlitz County has 

approved the plan and issued a Critical Areas Permit for the project in July 2017. 

Millennium proposes to construct the Off-Channel Slough Mitigation Site, which will 

provide seasonally-inundated off-channel habitat with associated emergent and riparian 

vegetation, by improving an existing pond and connecting it to the river. This habitat 

type was historically widespread but has since been vastly reduced throughout the 

lower Columbia River system. The pond is located along the shore, riverward of the 

levee, in the upstream portion of the Millennium lease area adjacent to the bulk 

terminal. As described below, approximately 12 acres of new habitat would be created 

to more than offset the loss of the five acres. 

This compensatory mitigation will provide new off-channel aquatic habitat, which is 

highly valuable to juvenile salmonids of the lower Columbia River and has been 

disproportionately lost through development and management of the Columbia River. 

The proposed Site will achieve the following environmental goals: 

Provide off-channel aquatic habitat that is connected to the Columbia River. 

Ensure access to the off-channel habitat for juvenile salmon ids. 

Provide structurally diverse native vegetation communities within the off-channel 

habitat. 

Provide structurally diverse native riparian vegetation on the outer berm. 

Functional objectives detail how the goals of the mitigation action will be implemented. The 

functional objectives for the Aquatic Mitigation Action are as follows: 

Provide 7.0 acres of new off-channel aquatic habitat below OHW that incorporates 

emergent, shrub, and forested components. 

Provide an effective connection between the Columbia River and the off-channel 

habitat. 

Establish 4.5 acres of native emergent, shrub, and tree species within the offchannel habitat. 

Establish 0.75 acre of native riparian vegetation on the outer berm. 

Pagc6 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
126 


31623.450

~~tleiiiiium 

Bellon Claim: 

The application provided insufficient information on how contaminated wastewater 

and stormwater would be managed at the site during both construction and 

operations. The application did not provide sufficient information to demonstrate 

that wastewater and stormwater discharges would meet state water quality 

standards, including an inadequate description of the types and amounts of 

contaminants in the discharge, and an incomplete analysis of how the treated 

discharge would potentially impact the ambient water quality of the Columbia River. 

The application did not provide sufficient information on how contaminated 

wastewater and stormwater would be adequately controlled to minimize the 

discharge of pollution to the Columbia River. 

FACT: Section 4.5 of the SEPA FE IS describes the best management practices proposed 

by MBT-Longview and the robust measures available and proposed for managing 

wastewater and stormwater during both construction and operations. The SEPA FE IS 

acknowledges that impacts could occur but that the level of impacts would be below 

benchmarks or applicable standards designed to protect water quality. The SEPA FE IS 

made repeated findings that the project would not result in significant adverse effects 

to water quality, wetlands, fish, and the aquatic environment more generally and 

anticipated that technology was available and would be implemented to ensure that any 

impacts would be mitigated in accordance with applicable water quality standards. 

Section 4.5 of the SEPA FE IS concludes: "Compliance with laws and implementation of 

the measures and design features described above would reduce impacts on water 

quality. There would be no unavoidable and significant adverse environmental impacts 

on water quality." 

Millennium submitted detailed information to Ecology to demonstrate its ability to meet 

water quality standards sufficient for a section 401 certification, but Ecology decided not 

to work with Millennium to complete the certification process. Ecology and Director 

Bellon decided instead to abruptly terminate the process and deny the certification 

"with prejudice" to veto the project altogether, and in so doing, relied on non-water 

factors found in that same EIS. 

Bellon Claim: 

The company would need access to sufficient water supplies to manage coal dust and 

to suppress fires during normal operations at the site. The company could not 

demonstrate they had sufficient rights to use water wells on the site for these 

purposes. 

_____________________________________________________________ Page7 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
127 


31623.451

FACT: As stated on page 4.4-23 of the SEPA FE IS: "Approximately 1,200 gpm during the 

wet season and 2,000 gpm during the dry season (approximately 2,034 AFY) would 

normally be required for dust suppression. On-site groundwater wells would provide 

approximately 635 gpm {1,025 AFY) to maintain minimum water levels in the storage 

pond to meet process water demands during the dry season. Water from the storage 

pond could also be used for the fire hydrant, sprinklers and deluge systems, watering of 

landscaping and other non-recyclable uses. Northwest Alloys holds water rights that 

originally authorized extraction of 23,150 gpm up to a total volume of 31,367 

AFY." 'The total demand accounts for less than 10% of the maximum pumping limit 

allowed under original water rights. Therefore, operation of the Proposed Action would 

have a negligible impact on groundwater supply. The Applicant would ensure that water 

rights ore current before withdrawing any water for construction or operations; water 

rights would be maintained for ongoing groundwater use during operation of the 

Proposed Action." 

The Columbia River is not a closed basin, and new water rights can be obtained if 

needed. 

Bellon Claim: 

Because the site is a toxic cleanup site from past smelter operations, it has preexisting 

groundwater and soil contamination. The application needed to show how 

construction would affect this contamination and future cleanup work, and ensure 

that the discharge would continue to meet water quality standards. The application 

did not provide sufficient information to show that construction activities would be 

conducted in a way that would ensure that the existing contamination at the site 

would be properly contained and managed. 

FACT: There has been an extensive (over 12 year) process to develop both a renewed 

NPDES permit for the site and a Remedial Investigation/Feasibility Study (RI/FS) on 

voluntary site cleanup. The cleanup site is ranked by Ecology as a 5 (on a 1 to 5 scale), 

which is the lowest risk ranking for both human health and the environment. As noted 

on page 4.4-18 of the SEPA FE IS, "Construction of the Proposed Action could encounter 

previously contaminated areas currently identified in the MTCA Cleanup Action Plan, 

which could degrade groundwater quality. However, with the exception of two small 

areas-the eastern corner of the Flat Storage Area and the northeastern portion of Fill 

Deposit B-3 (Figure 4.4-5 in the FEIS}-cleanup actions are not recommended in the draft 

Cleanup Action Plan within the project area. For the Flat Storage Area and Fill Deposit B3, construction and remediation activities would be coordinated to prevent spread of 

contamination or environmental impacts." 

___________________ PageS 

4029 Industrial Way • PO Box 2098 • Longview. WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.1 0021523-00007 
128 


31623.452

~1Ileiinium LONGVlJ:'\V, LLC 

Waiver 

As you know, under current law, the State was required to issue a final certification decision within one 

year of receipt of Millennium's application for a CWA Section 401 certification. 33 U.S.C. § 1341(a)(1)("if 

the state ... fails or refuses to act on a request for certification, within a reasonable period of time 

(which shall not exceed one year) after receipt of such request, the certification requirements ... shall 

be waived with respect to such Federal application."). To accommodate agency processes, Millennium 

applied for a CWA Section 401 certification three times over the last six years of permit processing. 

Millennium first applied for a CWA Section 401 certification on February 22, 2012 as part of its Corps 

permit application. At the Corps' request, Millennium withdrew the application to allow time for the 

completion of the EISs. On July 13, 2016, as the SEPA EIS neared completion, Millennium again 

submitted an application for a CWA Section 401 certification. To allow for additional time for Ecology to 

consider Millennium-provided reports and materials, and at Ecology's request, Millennium withdrew 

this application once again on June 21,2017 and reapplied for the third time on June 27,2017. 

Therefore the State was required to issue a final decision on that application by June 27, 2018. 

Although Ecology issued an initial decision on September 26, 2017 denying Millennium's certification, 

the record demonstrates that the State has waived its right to issue a CWA section 401 certification in 

two separate and independent ways. First, more than one year passed between Ecology's receipt of the 

application and the PCHB's issuance of the final401 certification decision. During the ensuing appeal of 

Ecology's certification denial, Ecology told the Superior Court in Cowlitz County that its Denial Order was 

not final until the PCHB reviewed and decided Millennium's administrative appeal. The PCHB's decision 

was made more than one month after the expiration of the one year statute of limitations period set 

forth under CWA section 401. 

Second, even if this final decision was timely (and it was not), the certification decision made by Ecology 

and affirmed by the Board, is not the certification required by 33 U.S.C. §1341{a)(1). Pursuant to CWA 

section 401, the State was required to determine whether a facility's discharge will violate "the 

applicable provisions of sections 1311, 1312, 1313, 1316 and 1317" of the CWA. 33 U.S.C. § 1341(a)(1). 

The State did not make this determination. Instead the State decided to answer a different question: 

whether Ecology should deny the project based on SEPA, R.C.W. §43.21C.060. But Congress did not 

authorize states to certify whether a proposed project should be denied under SEPA either in CWA 

section 401 or anywhere else in the CWA. 

Conclusion 

Millennium is committed to operating in a responsible manner. We value our natural environment and 

the safety of our employees. Our employees have lived in and around Cowlitz County for generations. 

They understand the unique opportunities offered by the Columbia River and the responsibility that 

comes with protecting the air, water and land that surround it. 

------------------------------------------------------------Pageg 

4029 Industrial Way • PO Box 2098 • Longview, WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.10021523-00007 
129 

Senator BARRASSO. Senator Fischer. 

Senator FISCHER. Thank you, Mr. Chairman. 

Mr. Stewart, thank you for your testimony this morning. I appreciate you appearing before our committee and sharing your experience about the challenges facing our States and constituents as a 

result of that cumbersome red tape and the needless delays we see 

under Section 401 and that process. It is due to reasons unrelated 

to water quality concerns. 

Nebraska is the only triple land-locked State in the Nation. With 

an ag economy of $21.5 billion annually and a population of 1.9 

million people, you can see how important it is for my State to export our high quality agriculture products around the globe. 

To do so, Nebraska producers depend on ports. We depend on 

those ports located along our Nation’s coastlines. However, when 

States with antigrowth agendas can unilaterally determine what 

commodities get to be exported as the result of project delays that 

are unrelated to water quality issues that raises concerns. Today, 

it is coal. Tomorrow, it could be corn or soy beans. 

Mr. Stewart, what are the potential economic implications 

States, communities and families could face as a result of important export terminal project delays? 

Mr. STEWART. Thank you, Senator Fischer. 

First of all, when you bring it out like that, I thought he was 

going to give me a chance to answer him but I want to answer you 

as well. 

First of all, I would be very alarmed. I would be very alarmed 

that first of all, they are coming after coal. Yes, tomorrow, it might 

be fish. Tomorrow it might be a different kind of fish. Tomorrow 

it might be GMOs, or might be non-electric cars. Whatever may be 

the case, whatever is the flavor of the month, someone is going to 

try to go after that. 

When you talk about States’ rights, I have no problem. I am not 

trying to interfere with States’ rights. I am not trying to interfere 

with those areas, but you have to recognize that under States’ 

rights, under the United States Constitution, there is something 

called the Indian Commerce Clause. There is something called 

equal trade, free trade, all these terms we freely throw around 

when it works to our benefit. 

Like the Chairman said, we cannot pick winners and losers. We 

should not pick winners and losers. We should allow people and 

groups to work with each other to try to establish this economy. 

In the U.S. Constitution and as a United States citizen, but first 

and foremost as a citizen of the Crow Nation, we have a phrase in 

the United States Constitution that says ‘‘pursuit of happiness.’’ In 

Indian Country, that is called self-determination. That is a Federal 

act. 

When we are being stymied or impeded, our ability to move our 

product through the ports or even to the domestic markets because 

as a Nation within a Nation, the Crow Nation has always been exporting. Now they are going to try to tell us we cannot send our 

product out of our Nation or cannot provide. I am going to bring 

it up again. If you are going to close the door, what doors are they 

leaving open? 

130 

I am not trying to blame anyone, I am not trying to point fingers 

but this is America. As a first American, I would be very alarmed. 

Right now, we have 70 percent unemployment. Do they care? Yes, 

we care about endangered species but there are only 14,000 Crows 

left. I believe we are endangered as well. 

When you talk about 3 percent of the population in the United 

States and 60 percent of this Nation’s good resources lie in Indian 

Country and only 88 percent of those resources have been tapped, 

only 12 percent of Native Americans has been able to tap their resources, there is something wrong with that picture. There are impediments in our way. There are 49 steps that stand in our way 

and four primary agencies. When we talk about coal, there is a 

fifth with OSM. 

When we talk about these impediments and the 49 steps that we, 

as Native Americans have to go through as first Americans, we 

should be the first ones out of the gate. We have the most resources but we are the last ones at the dinner table. 

With that much in resources we should be sitting at the table. 

We should have a place at the table. We should have our name at 

the table. We should not be giving the right to the States to break 

the law, to impede other nations from trying to feed their people. 

That is wrong. Not only is it breaking the law, but it is morally 

wrong. We need the ability to establish our jobs and have jobs, 70 

percent. 

To the good Senator, I appreciate your question. 

Senator FISCHER. Thank you for a very wonderful answer to why 

we must have free commerce in this Country. I think you expressed 

it beautifully. 

Thank you. 

Senator BARRASSO. Thank you, Senator Fischer. 

Senator ERNST. Senator ERNST. Thank you, Mr. Chairman. 

Mr. Stewart, thank you for being here. I am going to echo the 

Senator from Nebraska’s thoughts as well. The fact that you have 

14,000 members of your Nation and are endangered as well is a 

very powerful statement. That is extremely powerful. 

So many of the questions I had have already been asked. I would 

like you to take this opportunity to visit with us a bit more. Understanding your presence here today really does suggest there are 

some important State and tribal interests being hurt when the Section 401 authority is abused. We appreciate you taking the time to 

join us today. 

In a broad statement, do you think other States and tribes, those 

without coastlines, have reason to be concerned about what is happening in your particular situation as well? Do you think other 

tribes or States have a reason to be concerned, witnessing what has 

happened with your Nation? 

Mr. STEWART. Yes. In fact, we have friends, brothers and sisters, 

friends and families from other tribes. If they are not watching 

this, they should be. In fact, I know the tribes that are watching 

these areas, for some reason the Crows always are at the forefront 

of a lot of these situations. 

That is because, as I stated, the U.S. Constitution says the ‘‘pursuit of happiness.’’ We are just trying to determine ourselves, tryVerDate Aug 31 2005 10:43 Apr 05, 2019 Jkt 000000 PO 00000 Frm 00136 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\31623.TXT VERNE
131 

ing to extract our resources. When you own 10 percent of the Nation’s coal reserves and 3 percent of the world’s, only averaging 3 

million tons of coal a year, roughly 125 workers out of 14,000 

Crows, that is pretty tough, especially when we are not trying to 

break the obligations of our treaties because we are getting nothing 

for free. We prepaid in the giving and ceding of our lands ahead 

of time with our treaties. 

When we have a general fund that is funded at 66 percent from 

our own resources, that our own people have mined and sent out 

to domestic markets, wanting to now send them out to export markets, talking with other countries, our allies, and wanting to expound on our opportunities in those areas and being told there is 

another step you are going to have to cross, another bridge you are 

going to have to cross, why is that? 

In Indian Country, when they tell us to abide by a regulation or 

policy, we have to. We do not have the ability or luxury to move 

the goalpost because, guess what, that is breaking the law. When 

you establish 401 as a platform for other reasons and political 

agendas, not realizing you are messing with people’s lives, I have 

to say something. 

Senator ERNST. Yes, and I am glad you have. 

Mr. STEWART. I have come out of my own pocket to be here. I 

am sitting right here speaking from the heart. 

Senator ERNST. We are very glad for that. 

You have done a very good job explaining the difficulties your 

Nation is facing right now. If we were to be forward looking and 

if Section 401 had been approved and you were moving forward 

with exporting your coal and your resources not only to the domestic market but to foreign markets as well, could you describe what 

the situation would be like then for your Nation? 

Mr. STEWART. At the time when I was on the council, I participated in a decision where we reached out to Harvard for the Indian 

coal production tax credits but at that time. Harvard did the study 

we asked them to do and paid them to do. Right or wrong, we said, 

put together a study and let us look at the economic ripple that we 

provide for the region. 

We had that study done and looked at it. There were the direct 

benefits and indirect benefits and as it ripples throughout the region, at a good year, we were averaging 5.5 million tons at our coal 

mine and about $21 million to our tribal coffers, roughly 66 percent 

of our general fund budget. 

When we did that study, it showed in the hundreds of billions 

just from that one coal mine how it affected the region. To answer 

your question, Senator Ernst, if we get the ability, under the Indian commerce clause, the only ones that can regulate commerce 

between tribes is Congress. States cannot impede upon that. 

When we talk about these issues trying to move forward in this 

arena and be a participant in the economy, it will not only be benefiting the Crow people or their jobs, it will be benefiting the region 

and the area. That is a lot of new money to the States and a lot 

of new jobs to the States. 

To answer your question in detail, I didn’t want to go into that 

too much but I had to say all that to get to this point to clarify 

that the jobs that could be created by the companies that are out 

132 

there, or lack thereof right now, and your entrepreneurs that could 

be created, the jobs that could be created, it is not a shift of wealth 

within the States. It is new money. It is new taxes. It is new opportunities. There is no telling what it is going to do like new roads, 

new bridges, new whatever, new opportunity. 

It is about opportunity. Without that opportunity, like the Good 

Book says, ‘‘Faith is the substance of things hoped for, the evidence 

of things not seen.’’ Without that hope, without that opportunity, 

a lot of people would lose faith. 

Thank you. 

Senator ERNST. God bless you, Mr. Stewart. Thank you for being 

here. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Ernst. 

Senator BOOZMAN. Senator BOOZMAN. Thank you, Mr. Chairman. Thank you for 

holding the hearing. 

We appreciate you all being here and testifying about this very, 

very important subject. 

Mr. Booker, investment in energy infrastructure, including pipelines, provides good-paying jobs for American workers. I think we 

all very much agree with that. 

I understand a recent study by the Institute for Construction 

Economic Research found pipeline construction supports more than 

41,700 jobs for union workers, each year generating over $2.3 billion in wages. 

Can you elaborate on the job opportunities in pipeline construction for your members? 

Mr. BOOKER. Absolutely. Thank you for the question, Senator. 

The pipeline industry, with discovery of the Marcellus Shale, the 

Utica Shale and the availability and technology that has allowed 

us to gain that natural resource, has been a tremendous benefit for 

all workers, union and non-union in the Northeast region from 

Ohio, Pennsylvania, West Virginia and on to the Northeast. 

The discovery of that has allowed us to put a lot of people to 

work. If you look back at 2008 and 2009 when the economy 

crashed, the sector of the economy that kept going was in the pipeline industry and the discovery of the natural gas. It kept communities together, families together and people working. 

The pipeline infrastructure, the lack of pipeline infrastructure is 

critically important. We need to modernize the pipeline infrastructure and build new pipeline infrastructure which is going to create 

the jobs for all Americans. 

Senator BOOZMAN. When you have obstruction and delays for obstruction and delay’s sake, what does that do to things regarding, 

as you say, union and non-union workers, tribes, and non-tribes? 

Mr. BOOKER. We look for predictability just like the owner of the 

pipeline does and the end user. When you go home at night, you 

want to turn on the light, turn on your air conditioner and make 

sure it works. 

For us, when unnecessary delays happen, when we have planned 

and done the training for the work force to build that necessary infrastructure, to then have them be ready to go to work in that community and then they are back in the unemployment line. Their 

133 

wages dramatically decrease and they are not able to contribute to 

the local economy. 

It affects our training and our capacity to train tomorrow’s workers as well. 

Senator BOOZMAN. I think you make a great point. You can play 

with good rules and you can play with bad rules. If you do not 

know what the rules are, it makes it very, very difficult to go forward. We appreciate that. 

Mr. Stewart, I really do not have a question for you. I think you 

have answered all the questions in a very good way. I am glad you 

paid your way here to contribute. I want to go on record as agreeing with you that certainly States and tribes should have the ability to regulate water infrastructure. We need to work hard and I 

think this type of legislation reaffirms the importance of that. 

Again, thank you very much for being here. 

Mr. STEWART. Thank you. 

Senator BOOZMAN. Mr. Booker, it is clear that the implementation of Section 401 has created confusion resulting in delays of important infrastructure projects and we discussed the uncertainty. 

Do you believe the Water Quality Certification Improvement Act 

helps restore predictability and certainty while balancing State and 

Federal authorities? 

Mr. BOOKER. I do. In my testimony, we believe in the States’ 

rights. We believe there should be regulation. It has to be predictable though. You cannot change the rules of the game halfway 

through the game. 

I think this is a necessary change that puts everyone in a predictable and certain way as to here are the rules, here is what you 

have to follow. If you can check every box, you will be able to build 

your project. If you cannot, then you are not. We support that. 

Senator BOOZMAN. Do you want to comment on that, Mr. Stewart? I know the tribes certainly are kind of the classic as far as uncertainty, rules changing and this and that? 

Mr. STEWART. Oh, yes. Since I only have a little bit of time, we 

can sit down later and talk about this. 

To answer your question, when we are trying to be good actors, 

provide for our families, and try to do the things that need to get 

done, as a man and soon to be grandfather, I have to think about 

the generations before me, those that are coming. 

We do not want to continue to move this goalpost. Water quality 

certification should mean certification of water quality, not what 

the Sierra Club wants or what this club or that club wants. It 

should mean what it says it is supposed to mean. 

As a man, I was always taught that what you say is very precious. You cannot take it back. That falls in line with the integrity 

of a person and the integrity of the law. When we allow different 

entities, folks or States to break the integrity of that law, then we 

are violating the intent. 

Those ramifications are very detrimental to not only the present 

generation but generations to come. It is something we just cannot 

play with. We have to be true to our word. Water quality certification should say what it says plain and simple. 

134 

Senator BOOZMAN. We appreciate that. Certainly those are simple truths. As a fairly recent grandfather, you are going to enjoy 

that. That will be a very, very positive thing in your life. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Boozman. 

Before turning to Senator Cardin, I would submit to the record 

something Mr. Willardson referenced, which was the environmental impact statement for the Millennium Bulk Terminal. In 

that document, the State of Washington itself concluded that there 

would be no significant impacts to water quality, wetlands, surface 

waters or flood plains. 

The State of Washington denied the project for political reasons. 

The State itself found these impacts were not problematic in its 

own environmental impact statement. 

I am going to submit that for the record. Without objection, so 

ordered. 

[The referenced information follows:] 

135 


31623.066

April28, 2017 
136 


31623.067

4.0 Introduction 

Chapter 4 

Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

For the purposes of this Final Environmental Impact Statement (Final EIS), environmental resource 

areas have been divided into three categories: the Built Environment, the Natural Environment, and 

Operations (Chapters 3, 4, and 5, respectively). The purpose of this chapter is to provide a 

discussion of the natural environment resource areas assessed for the Millennium Bulk TerminalsLongview project (Proposed Action). 

Information contained in this Final EIS was extracted from technical reports prepared specifically 

for the Proposed Action. Provided in Volume III of this Final EIS, the technical reports are 

incorporated by reference and include the determination of study areas, analysis methods, existing 

conditions, and potential impacts. 

Data sources used for this analysis are briefly discussed with each resource. In addition, a detailed 

list of sources is provided in Appendix A, References of this Final EIS. 

4.0.1 Natural Environment Resource Areas 

Chapter 4, Natural Environment: Existing Conditions, Project Impacts, and Proposed Mitigation 

Measures, evaluates the natural habitat and biological communities near the Proposed Action. The 

resource areas reviewed as part of the natural environment analysis include geology and soils; 

surface water and floodplains; wetlands; groundwater; water quality; vegetation; fish; wildlife; and 

energy and natural resources (Table 4.0-1). Additional detailed information about these resources 

can also be found in their corresponding technical reports in Volume III of this Final EIS. 

In addition to these resource areas, Chapter 6, Cumulative Impacts, discusses cumulative impacts 

resulting from the Proposed Action combined with other past, present, and reasonably foreseeable 

actions. 

Millennium Bulk Terminals Longview 

FinaiSEPA Environmental Impact Statement 4.()-1 April2017 
137 


31623.068

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Table 4.0-1. Resource Areas and Corresponding Final EIS Chapters 

Chapter 

Chapter 3, Built Environment: 

Existing Conditions, Project 

Impacts, and Proposed Mitigation 

Measures 

Chapter 4, Natural Environment: 

Existing Conditions, Project 

Impacts, and Proposed Mitigation 

Measures 

Chapter 5, Operations: Existing 

Conditions, Project Impacts, and 

Proposed Mitigation Measures 

Section 

Number 

3.1 

3.2 

3.3 

3.4 

Environmental Resource Area 

Land and Shoreline Use 

Social and Community Resources 

Aesthetics, Light, and Glare 

Cultural Resources 

3.5 Tribal Resources 

3.6 Hazardous Materials 

4.1 

4.2 

4.3 

4.4 

Geology and Soils 

Surface Water and Floodplains 

Wetlands 

Groundwater 

4.5 Water Quality 

4.6 Vegetation 

4.7 Fish 

4.8 Wildlife 

4.9 Energy and Natural Resources 

5.1 

5.2 

5.3 

5.4 

Rail Transportation 

Rail Safety 

Vehicle Transportation 

Vessel Transportation 

5.5 Noise and Vibration 

5.6 Air Quality 

5. 7 Coal Dust 

5.8 Greenhouse Gas Emissions and Climate Change 

4.0.2 Alternatives and Timeframe for Analysis 

This chapter analyzes the impacts that could occur as a result of construction and operation of the 

Proposed Action. The analysis contained in this chapter assumes construction beginning in 2018 

and full operations' occurring by 2028. Throughout this chapter, the 190-acre coal export terminal 

site is referred to as the project area. The impacts identified for 2028 would occur for the lifetime of 

the Proposed Action. Proposed mitigation measures are intended to apply for the lifetime of the 

Proposed Action. 

This chapter also analyzes impacts that could occur if the Proposed Action were not approved (the 

No-Action Alternative). Chapter 2, Project Objectives, Proposed Action, and Alternatives, of this Final 

EIS provides a description of the Proposed Action and No-Action Alternative. 

1 Full operation means the coal export terminal would have a maximum throughput of up to 44 million metric tons 

of coal per year, as described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.()-2 April2017 
138 


31623.069

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.0.3 Study Areas and Type of Impacts Analyzed 

Each resource area has its own study area depending on its physical characteristics or regulations 

that oversee the resource area. Two types of study areas were identified-a direct impacts study 

area and an indirect impacts study area. Table 4.0-2 explains the differences between these two 

study areas. In some cases, both study areas are the same. 

Table 4.0-2. Types of Impacts 

Type of Impact• Description 

Direct An impact resulting 

from either 

construction or 

operation of the 

Proposed Action that 

occurs in the project 

area. 

Indirect An impact resulting 

from either 

construction or 

operation of the 

Proposed Action that 

occurs beyond the 

project area. 

Notes: 

Description oflmpacts Categories 

• Construction: Temporary impacts within the project 

area that are resolved or mitigated by the end of 

construction activity, or permanent impacts that 

result from changes to the project area due to 

construction of the coal export terminal. 

• Operation: Impacts occurring in the project area 

resulting from rail unloading, coal storage, machinery 

operations, equipment, vessel loading, etc. 

• Construction: Impacts from activities beyond the 

project area during construction, such as vehicle and 

rail traffic. 

• Operation: Impacts from activities beyond the 

project area during operations, such as rail, vehicle, 

and vessel traffic. 

• Washington Administrative Code (WAC) 197-11-192. 

Table 4.0-3 provides a summary of the direct and indirect impacts study areas by Chapter 4 

resource. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.0-3 April2017 

31623.070

Cowlitz County 

Washington State Department of Ecology 

Table 4.0-3. Direct and Indirect Impacts Study Areas by Resource 

Section and Resource Direct Impacts Study Area 

4.1, Geology and Soils Project area 

4.2, Surface Water and Floodplains • Surface Water: Columbia River 

and stormwater drainage ditches 

in the project area 

4.3, Wetlands 

4.4, Groundwater 

4.5, Water Quality 

• Floodplains: Project area 

Project area 

Project area 

Project area and the area 

extending 300 feet from the project 

area into the Columbia River, and 

potential in-river dredged material 

disposal sites plus the area 

extending 300 feet downstream of 

each disposal site 

Chapter 4. Natu

Existing Conditions, 

and Proposed Miti

Indirect Impacts Study Area 

Cowlitz County 

Project area and the broader 

geologic environment in the 

surrounding area that could 

influence the project area 

• Surface Water: Stormwater 

system drainage ditches adjacent 

to the project area and the 

Columbia River 1 mile 

downstream from the project 

area 

• Floodplains: Project area and 

surrounding 500-year floodplain 

on the north side of the 

Columbia River in the vicinity of 

the project area 

Project area and the immediate 

vicinity, where wetlands might be 

affected by construction or 

operation of the coal export 

terminal 

Applicant's leased area 

Project area, stormwater system 

drainage ditches adjacent to the 

project area, the Columbia River up 

to 1 mile downstream of the 

project area, and potential in-river 

dredged material disposal sites 

plus the area extending 300 feet 

downstream of each disposal site 

Washington State 

(beyond Cowlitz Count

No additional study area

No additional study area

No additional study area 

No additional study area

No additional study area 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 

4.0-4 

31623.071

Cowlitz County 

Washington State Department of Ecology 

Section and Resource 

4.6, Vegetation 

4.7, Fish 

4.8, Wildlife 

Direct Impacts Study Area 

Project area plus additional 

elements (e.g., access roads, docks, 

and rail line) 

Main channel of the Columbia 

River 3.92 miles upstream and 

downstream of the project area 

• Terrestrial Species and Habitats: 

Project area and up to 0.5 mile 

from project area 

• Aquatic Species and Habitats: 

Main channel of the Columbia 

River to 5.1 miles upstream and 

2.1 miles downstream of the 

proposed docks for potential 

undeJWater noise impacts; 

surface and stormwater ditches, 

ponds, and wetlands in the 

project area 

4.9, Energy and Natural Resources Project area 

Notes: 

Chapter4. Natu

Existing Conditions, 

and Proposed Miti

Indirect Impacts Study Area 

Cowlitz County 

The area within 1 mile of the 

project area for potential impacts 

from coal dust deposition from 

operations in the project area; the 

lower Columbia River for Proposed 

Action-related vessels; rail routes 

for Proposed Action-related trains 

Columbia River downstream from 

the project area to the mouth of the 

Columbia River for Proposed 

Action-related vessels; rail routes 

along the Columbia River for 

Proposed Action-related trains 

• Terrestrial Species: Rail routes 

for Proposed Action~related 

trains for potential coal spilJ and 

wildlife strike impacts 

• Aquatic Species: Columbia River 

downstream from the project 

area to the mouth of the river for 

potential impacts on marine 

mammals 

Area within 0.25 mile of project 

area 

Washington State 

(beyond Cowlitz Count

Rail routes for Proposed 

related trainsa,b 

Rail routes for Proposed 

related trainsa,b 

• Terrestrial Species: Ra

for Proposed Action-r

trainsa 

Not in the study area 

Appendix F, Rail and Vessel Corridor Information, provides additional information for the Proposed Action-related rail and vessel corridors from the Te

Vancouver Energy Distribution Terminal Facility Draft Environmental Impact Statement (Washington State Energy Facility Site Evaluation Council 2015

b Study area for potential impacts related to coal spills only. 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 

4.0.5 
141 


31623.072

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.0.4 Mitigation Measures Development Approach 

Applicable regulations, potential permit conditions, and required planning documents were 

evaluated to determine if they would address potentially significant adverse environmental impacts 

identified in this Final EIS. When applicable, each section describes specific measures identified by 

the Applicant to be implemented during construction and operations. When potential significant 

adverse environmental impacts remained, other proposed mitigation measures were identified that 

would reduce the identified impact (Applicant Mitigation). Mitigation measures included in permit 

conditions would become legal requirements of the Applicant In addition to the proposed 

mitigation measures identified in each section of this chapter, the following measure is proposed. 

• The Applicant will provide to Cowlitz County and the Washington State Department of Ecology 

an annual report of compliance with mitigation requirements of an issued permit. Mitigation 

compliance reports will be part of the public record. 

Proposed mitigation measures were identified as required by the Washington State Environmental 

Policy Act (SEPA) consistent with Washington Administrative Code (WAC) 197-11-660, which states 

that mitigation shall be reasonable, capable of being accomplished and imposed to the extent 

attributable to the identified adverse impact of the proposal. 

The thresholds of significance and proposed mitigation measures were determined by the co-lead 

agencies (Cowlitz County and the Washington State Department of Ecology). Additionally, when 

applicable, each section identifies mitigation measures that could be implemented by other agencies, 

groups, or companies (Other Measures to be Considered) to reduce potential Proposed Actionrelated impacts that are beyond the Applicant's control or authority. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1).6 April2017 
142 


31623.073

Cowlitz County 

Washington State Department of Ecology 

4.1 Geology and Soils 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Geology and soils are resources with defining characteristics (such as soil structure, composition, or 

geologic formations) that are unique or valuable or support unique habitats. Geology and soils can 

also innuence the potential for geologic hazards, such as landslides, earthquakes, seismic effects 

(e.g., surface fault ruptures, strong ground shaking, liquefaction, lifting and lowering of the surface, 

and tsunamis), and volcanic activity. Understanding the types of soils and the underlying geologic 

conditions is important in determining whether a project would be exposed to increased risks 

related to these conditions. 

This section describes the geology and soils in the study areas. It then describes potential impacts on 

geology and soils that could result from construction and operation of the Proposed Action and 

under the No-Action Alternative, as well as the geologic conditions that exist in the study areas that 

could pose a risk to the project area. This section also presents proposed measures identified to 

mitigate impacts resulting from the Proposed Action. 

4.1.1 Regulatory Setting 

Laws and regulations relevant to geology and soils are summarized in Table 4.1-1. 

Table 4.1-1. Regulations, Statutes, and Guidelines for Geology and Soils 

Regulation, Statute, Guideline 

Federal 

Clean Water Act Section 402 Permit for 

Stormwater Discharges Associated with 

Construction Activities 

Local 

Cowlitz County Critical Areas Protection 

Ordinance (CCC 19.15) 

Cowlitz County Grading (CCC 16.35) 

Cowlitz County Building Code (CCC 16.05) 

Notes: 

Description 

Primarily deals with water quality but includes eroded 

soils potentially delivered offsite via runoff. Mandates 

that certain types of construction activities (and 

operations) comply with the EPA NPDES program. The 

EPA has designated Washington State Department of 

Ecology the nonfederal authority for the NPDES program 

in Washington State. Includes development of a 

Designates geologically hazardous areas (including 

seismic, volcanic, erosion, and landslide hazards) and 

defines performance standards and specific requirements 

for development within these areas. 

Grading plan requirement and standards including the 

protection of water quality from adverse impacts of 

erosion and sedimentation. 

Cowlitz County has adopted the 2012 International 

Building and Residential Codes. 

EPA= U.S. Environmental Protection Agency; NPDES =National Pollutant Discharge Elimination System; CCC = Cowlitz County Code 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-1 April2017 
143 


31623.074

Cowlitz County 

Washington State Department of Ecology 

4.1.2 Study Area 

The study area for direct impacts on geology and soils is the project area. 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The study area for indirect impacts on geology and soils is the project area and the broader geologic 

environment in the area surrounding the project area that could influence the project area. These 

broader geologic influences include earthquakes (seismicity) and their associated impacts (ground 

shaking), as well as tsunamis (large earthquake-generated waves that can affect coastal zones and 

could travel some distance up large rivers) or landslides that might reach the project area. 

Figure 4.1-1 shows the study areas for the geology and soils analysis. 

4.1.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts associated with the construction and operation of the Proposed Action and No-Action 

Alternative. 

4.1.3.1 Information Sources 

Information with respect to geology and soils was collected through review of information and 

reports provided by the Applicant as well as other sources of information and scientific literature, 

including Washington State Department of Natural Resources Division of Geology and Earth 

Resources materials, U.S. Geological Survey (USGS) maps and reports, U.S. Department of 

Agriculture Natural Resources Conservation Service (NRCS) soil information, and geological and soil 

literature. Additionally, a site visit by a professional geologist conducted on January 29, 2014, 

provided an overview of existing conditions at the project area. 

The following sources of information were used to identifY the potential impacts of the Proposed 

Action and No-Action Alternative on geology and soils in the study area. 

• USGS National Seismic Hazard Maps and associated report (U.S. Geological Survey 2013) 

• Cascadia Region Earthquake Workgroup (2013) report on the Cascadia Subduction Zone 

earthquakes 

• Washington State Department of Natural Resources Division of Geology and Earth Resources 

geologic mapping and geologic hazards of the Longview area (various) 

• NRCS soil mapping (2013) 

• Geotechnical engineering reports and geotechnical engineering data reports prepared for the 

project area (GRI 2011, 2012) 

• Professional workshop and refereed scientific journal materials on tsunamis in the Columbia 

River 

• Geology and soil report prepared for the project area by the Applicant (URS Corporation 2014) 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-2 April2017 
144 


31623.075

~ 

"' 

~ ., > 

::t 

Q; 

.'!l 

j 0 ~ "' • 2 ] ., 

t: ~Ei 0 "' 0 " 

~ i:i 

0 1 ~ 

~~ t: 0 ! Ql 

1!1 E • 

~ ~ ~~ ..; 

§~ .!, ~ ·~ 

8~ -i E w 

~~ ::t 

~ ·~ ~ 

~ ~ ~ ~~ 
145 


31623.076

Cowlitz County 

Washington State Department of Ecology 

4.1.3.2 Impact Analysis 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The following methods were used to evaluate the potential impacts of the Proposed Action and 

No-Action Alternative on geology and soils. 

The analysis of potential impacts related to geology and soils reviewed the following. 

• Regional and site characteristics (bedrock, unconsolidated sediment, and soil characteristics) 

and how they could influence site or structure stability through soil erosion, landslides, and 

settling. 

• Potential ground shaking and ground settling that could occur due to earthquakes and the 

stability of the underlying materials. 

The potential for impacts related to volcanic hazards and tsunamis. 

4.1.4 Existing Conditions 

This section describes the existing environmental conditions in the study area related to geology 

and soils that could be affected by the construction and operation of the Proposed Action and NoAction Alternative. Broader geologic context is provided as a foundation for the site-specific analysis 

presented in the following section. 

4.1.4.1 Geology in the Project Area and Vicinity 

The project area is located on the north shore of the Columbia River, approximately 5 miles 

downstream of the confluence of the Cowlitz and Columbia Rivers (at approximately river mile 63 in 

the Columbia River). Levees were constructed along the river side of the project area (Figure 4.1-2) 

around 1920, and the area has been used as an industrial site since the 1940s (Anchor QEA 2011). 

The project area is relatively level with some steep slopes that descend into drainage ditches on the 

northern part of the project area and to the Columbia River on the south side. Soils consist mostly of 

alluvium (i.e., river deposits of gravel, sand, and silt) as well as human-made sources of fill. The 

project area is at an elevation approximately 16 feet above sea level. 

The adjacent Columbia River navigation channel is approximately 43 feet deep at low tide (National 

Oceanic and Atmospheric Administration Chart 18524) and from 28 to 42 feet deep at low tide at 

the location of the proposed docks (Dock 2 and Dock 3). No unique geologic physical features, such 

as unique geologic formations, rock outcroppings, cliffs, or soil formations, occur at the project area. 

The study area exhibits attributes that are typical of the lower Columbia River valley. The regional 

geology is dominated by events related to the eastward movement of the Juan de Fuca tectonic plate 

against the North American plate (Evarts et al. 2009; Parsons et al. 2005]. As these plates shift, the 

Juan de Fuca plate descends below the North American plate and it liquefies at depth. The associated 

magma (lava) rises to the surface to form the volcanic Cascade mountain range. 

Areas of exposed bedrock are present near the project area. These areas include Mount Solo to the 

immediate north of the project area (Figure 4.1-3) and Mount Coffin approximately 0.5 mile 

upstream of the project area (Washington State Department of Natural Resources 2014). The 

outermost bedrock on Mount Solo is mapped as volcanic rocks (basalt). At the study area scale, 

landslides are also mapped along the slopes of Mount Solo. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-4 April2017 
146 


31623.077

.~ c 

·u 

> 

1! 

.. 

.. 

< " 

t: 

" 

j ·e 

... E . ~ § " ~a '0 '5 1't .5 

E if ~ 

" l " -;;;;;; > .s:-::: ~ E • " E 

>2 ~ ~ .g §~ .il~ 

8~ ~ E ~ " ·~ ~ ~~ :; 

s ~ ~ ~~ 
147 


31623.078

-~ c 

:1!1 ·;:; 

> 

., 

c 

"' :ll 

~ 

t: 

.. 

·e 

c.. ~ ~ .. 

-s E 

~ / • 2 ] .5 0 ~ H ~ 

~~ II .. ~ f ~ ~ ., ~ ~ ~~ 

~ ~ j ., ~ .. ~~ 1~ >~ 

~ c 

!l ~~ l 'O.g I ~ " E •• Jj § M;,: !'! < 

~ ~ e ~~ 0. ~~ ·I ,. ~ "5':; 

... \ \ I ~ ~~ 8~ I J j ~~ I!! ·= ~ ~::::: .. ~ " 8~ ~] 
148 


31623.079

Cowlitz County 

Washington State Department of Ecology 

Subsurface Conditions 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The soil material beneath the project area is derived from the interaction of the river and the 

floodplain during high Row events that deposit sediments consisting of sand, silt, and clay, as well as 

areas of peat [Anchor Environmental2007; Anchor QEA 2011; GR12012; URS Corporation 2014). 

Groundwater is found between 3 and 20 feet below the ground surface, so sediments have varying 

amounts of water content [Anchor QEA 2011, 2013; GRI2012; URS Corporation 2014). Geotechnical 

investigations indicate that the surface and near-surface sediments are soft or loose [URS 

Corporation 2014). These conditions indicate the potential for some settlement under the weight of 

certain project features, such as stockpile pads, buildings, and rail loops. Field tests indicate the 

potential for relatively significant settlement of these underlying materials over a long period of 

time (URS Corporation 2014). 

Because of saturated sandy soil conditions that exist at the project area, liquefaction of soils could 

result from an earthquake. Geotechnical reports prepared for a previously proposed asphalt plant at 

the site identified the potential for post-earthquake liquefaction of soils to cause settlement of 7 to 

16 inches (GeoEngineers 2007) and 12 to 16 inches (Shannon and Wilson 2008). 

Landslides and Slope Stability 

Landslides were not identified as a potential risk for the Proposed Action in local slope instability 

reports or on-site investigations [Figure 4.1-3) (Fiksdal1989; Wegmann 2006; Anchor 

Environmental2007; GRI 2011, 2012). The project area for the Proposed Action is flat; therefore, 

there is a low likelihood of landslides occurring. Much of the shoreline of the Columbia River has 

been armored with rip rap along the length of the levee adjacent to the Proposed Action. The rip rap 

protects the levee from erosion, while the levee itself protects upland areas from flooding. 

Landslides have been identified on Mount Solo. Fiksdal (1989) identified two landslide areas on the 

eastern flanks of Mount Solo, as well as one on the north side and another on the south side 

[Figure 4.1-3). More detailed mapping by Wegmann (2006) identified multiple landslides around 

Mount Solo. Wegmann (2006) also determined whether the features were inactive or active. One of 

the active landslides is on the south side of Mount Solo, meaning that it could affect the project area. 

This landslide is formed by the exposed bedrock that is discussed in Section 4.1.4.1, Geology in the 

Project Area and Vicinity. Landslides on Mount Solo could be caused by strong ground shaking from 

earthquakes or by saturated soil. 

Seismicity 

Pacific Northwest earthquakes are caused by one of four possible geologic events: movements 

between the tectonic plates on the coastal Cascadia Subduction Zone (CSZ), subduction of the juan 

de Fuca plate sinking beneath the North American tectonic plate, shallow crustal movements in the 

North American tectonic plate, and movements related to volcanic activity. 

No great earthquakes [magnitude 8.0 to 9.01 or higher) have occurred on the CSZ during the 

historical record but reconstructions from the geologic record show that more than 10 great 

1 The Richter scale is used to define the scale for earthquake magnitudes presented in this section. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-7 April 2017 
149 


31623.080

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

earthquakes have occurred in Oregon and Washington over the last 5,000 years (Cascadia Region 

Earthquake Workgroup 2013; URS Corporation 2014). The interval in which these earthquakes 

reoccur is estimated at approximately 250 to 900 years with the last occurrence in 1700 (Atwater 

1994; jacoby et al. 1997). 

Based on the historical record, plate movement due to the sinking of the juan de Fuca plate under 

the North American plate is considered capable of causing earthquakes as large as magnitude 7.5 

(URS Corporation 2014). These earthquakes generally do not have faults that reach ground level and 

the recurrence time is unknown. Earthquakes that were caused by this type of plate movement in 

Washington include the 1949 Olympia 7.1 magnitude, the 1965 Seattle 6.5 magnitude, and the 2001 

Nisqually 6.8 magnitude. These earthquakes did not cause significant damage in the Longview area 

(Nason et al. 1988; Washington State Department of Natural Resources 200 1; Washington State 

Seismic Safety Committee 2012; URS Corporation 2014). 

Shallow earthquakes in the earth's crust occur over large areas. Based on data gathered and 

historical records in the Pacific Northwest, these earthquakes can be greater than magnitude 6.0 and 

perhaps as high as magnitude 7.0 to 7.5 (URS Corporation 2014). The 1872 North Cascade (Lake 

Chelan, Washington, area) magnitude 6.5 to 7.0 earthquake is considered the largest historical 

shallow crustal earthquake (Bakun et al. 2002; URS Corporation 2014). Shallow faults in 

southwestern Washington and northwestern Oregon have the potential to generate magnitude 6.0 

and greater earthquakes (Wong et al. 2000; Lidke et al. 2003; Personius et al. 2003; URS Corporation 

2014). 

Volcanic earthquakes occur beneath the Cascade volcanoes; Mount St. Helens is about 40 miles east 

of the project area. These earthquakes are associated with magma movement or volcanic faults 

within the Mount St. Helens seismic zone. The largest recorded earthquake beneath Cascade 

volcanoes was a magnitude 5.1 earthquake in 1981 (U.S. Geological Survey 2013]. 

Surface Fault Rupture 

No shallow crustal faults are active or potentially active within the immediate vicinity of the project 

area (Lidke et al. 2003; Personius et al. 2003; Barnett et al. 2009; Czajkowski and Bowman 2014.). 

The closest faults are the Portland Hills and Frontal Fault-Lacamas Lake Faults that are about 

40 miles to the southeast near Portland, Oregon (Wong et al. 2000; URS Corporation 2014). The 

Mount St Helens Seismic Zone is a fault line about 45 miles to the east and offshore faults are about 

60 miles to the west. 

Strong Ground Shaking 

Between 1872 and 2014, earthquakes ranged in magnitude from 5.0 to 7.3 for all of Washington 

(URS Corporation 2014). Large earthquakes that would have affected the Longview area primarily 

took place in the Puget Sound area and Portland, Oregon. They range in magnitude from 5.0 to 7.1 

(URS Corporation 2014). Large earthquakes would cause severe ground shaking in the Longview 

area including the project area. 

The USGS National Seismic Hazard Maps determine earthquake ground motions for different seismic 

thresholds that are used for seismic requirements in building codes. These values come from 

evaluating all of the potential earthquakes (including their locations, depths, and likelihoods] that 

could affect an area. The maps display peak ground acceleration, the measure of the ground's 

acceleration from no motion at all to a peak motion during ground shaking. This acceleration causes 

\o1Uiennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-8 April2017 
150 


31623.081

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

shaking and stress on structures. A peak ground acceleration in the range of 0.34 to 0.65 gravity (g) 

is regarded as severe shaking and could cause moderate to heavy damage to buildings or structures, 

depending on the duration of the event, the types of underlying materials, and the structural 

integrity of the affected buildings or structures (Petersen et al. 2014). The USGS map shows a peak 

ground acceleration in the study area of0.4 to 0.5 g, which has a 2% chance of being exceeded in SO 

years (Petersen et al. 2014). 

Ground shaking is also stronger in areas of soft soils or loose deposits such as sand and silt. The Site 

Class Map of Cowlitz County, Washington, shows the project area as site class E, which has the 

softest soil conditions and highest level of potential ground shaking (Palmer et al. 2004). 

Cascadia Region Earthquake Workgroup (2013) notes that underwater landslides, which could 

disrupt the Columbia River navigation channel and adjacent industrial and commercial berthing 

areas, also pose a ground shaking and liquefaction hazard to the area. 

Secondary Seismic Hazards: Liquefaction and Subsidence 

Liquefaction occurs when stress such as ground shaking causes saturated or partially saturated soil 

to lose its strength and act like a fluid. The project area has potential for liquefaction during ground 

shaking. The Liquefaction Susceptibility Map of Cowlitz County, Washington, shows the area as 

having high liquefaction potential (Palmer et al. 2004). The area is underlain by hundreds of feet of 

gravel, sand, silt, and organic layers. The sandy layers can liquefy during strong ground shaking and 

then could flow or lose stability, and no longer support the ground above them. The flowing layers 

could flow horizontally or vertically depending on the adjacent layers and whether the liquefying 

layer could exit the ground (e.g., by flowing out of an adjacent slope or river channel or coming out 

at the surface by forming one or more sand volcanos2). 

The geologic record provides evidence of liquefaction potential along the Columbia River. Previous 

investigations at the site for a proposed asphalt plant resulted in similar estimates for settlement 

from liquefaction that range from 7 to 16 inches for a CSZ earthquake ranging from magnitudes 7.4 

to 8.3, though this varies with location. 

Volcanic Hazards 

The main volcanic hazard at Longview is from airborne fragments, ash fall, and lahars (volcanic 

mudflows) reaching, and continuing down, the Columbia River. Active volcanoes within the Cascade 

Range lie to the east of Longview, with the closest active volcano being Mount St. Helens about 40 

miles to the east. The project area does not lie within the Cowlitz County designated volcanic 

flowage hazard zone 1 (within a S-mile radius of volcanic activity). USGS estimates the annual 

chance of ash fall greater than 4 inches at Longview to be between 0.01% and 0.02% or between 1 in 

10,000 to 1 in 5,000 (Wolfe and Pierson 1995). 

Lahars originating from the south flank of Mount Rainier in the upper Cowlitz River are unlikely to 

reach the lower Cowlitz River (Cakir and Walsh 2012). Lahars have been documented upstream 

along the Sandy River draining from Mount Hood in Oregon (Pierson et al. 2009) at approximately 

55 miles upstream of Longview. Lahars from Mount Adams could reach the Columbia River via the 

2 A sand volcano is a cone of sand formed by the ejection of sand onto the surface from a central point. The cone 

looks similar to a volcano. The process is often associated with earthquake liquefaction and the ejection of Huidized 

sand that can occur in water-saturated sediments during an earthquake. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.1-9 April 2017 
151 


31623.082

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

White Salmon River; its confluence is more than 100 river miles upstream of Longview. The 

Longview area is not within the Cowlitz County-designated volcanic flowage hazard zone 3, which 

would require an evacuation and emergency management plan. 

Mine Hazard Areas 

Mine hazard areas in Cowlitz County are mainly associated with historical coal mining and areas 

affected by mine workings such as adits, tunnels, drifts, or airshafts. There is no bedrock with coal 

along the Columbia River in the Longview area. 

Tsunamis 

Washington and Oregon tsunamis could result from CSZ earthquakes along their coastline or similar 

major earthquakes in areas such as southern Alaska, Japan, or Indonesia. Tsunami hazard and 

evacuation maps for Washington and Oregon only extend up the Columbia River to a point just east 

of Astoria, Oregon (river mile 15, approximately 50 miles downstream of the project area) (Walsh et 

al. 2000; Washington State Department of Natural Resources 2010; Oregon Department of Geology 

and Mineral Industries 2012). Modeling calculations found that an 18-foot-high tsunami at the 

Columbia River mouth decreased to less than 8 inches at Longview (Yeh et al. 2012). 

Sea Level Rise 

Sea levels are rising. However, some areas of the Pacific Northwest are experiencing uplift; by 

contrast, areas around Puget Sound are subsiding and experiencing larger-than-average impacts 

from rising sea levels. Sea level rise in the Pacific Northwest is expected to be as little as 5 inches or 

less to more than 4 feet by the end of the century. The project area is approximately 60 miles inland 

from the mouth of the Columbia River, and sea level rise at the project area is expected to be 

minimal. Further, the project area is behind Columbia River levees of approximately 36 feet above 

sea level, and since this is higher than the potential sea level rise, there would not be any impacts on 

soils on the project area or an increased risk of erosion. Sea level rise is discussed further in Chapter 

5, Section 5.8, Greenhouse Gas Emissions and Climate Change. 

4.1.4.2 Soils in the Project Area and Vicinity 

Cowlitz County soils have been mapped by NRCS (Natural Resources Conservation Service 2013). 

These soil units and some of their characteristics are shown in Table 4.1-2. Excluding water, five soil 

units are mapped at the project area (Figure 4.1-4). All of these soil units reflect the alluvial (river 

deposit) origin of the soil material and are relatively fine-grained. 

The erosion hazard is considered slight for all of the soils in the study area. The K factor' indicates a 

soil's vulnerability to erosion. The higher the soil's K factor, the higher its erosion potential. Based 

on the K factor, the Caples silty clay loam (Map Unit Number 17), the Maytown silt loam (Map Unit 

127), and Snohomish silty clay loam (Map Unit Number 199) have a higher erosion hazard under 

bare soil conditions. These soils have a low susceptibility to wind erosion. 

The site soils are all moderate in regards to their potential for corrosion of concrete. Several 

engineering measures address concrete and steel corrosion, such as improving drainage and 

replacing native soil with fill (Washington State Department of Transportation 2014). 

3 K factor is a soil erodibility factor which represents both susceptibility of soil to erosion and the rate of runoff. 

Millennium Bulk Terminals longview 

Final SEPA Environmental impact Statement 4.1-10 April2017 

31623.083

Cowlitz County 

WashingtonStateDepartmentofEcology 

Figure 4.1·4. Soil Types in the Project Area and Vicinity 

PfOJI!CIArea c::J 76·1ia:.!llldel!gnwllny~llttoam,8tolOperc"'ntslopes 

cJ 78-Hateldel!gravlllly!:ll!tlcam.30m.55percentslopes 

99-Katula.£unkercornplex. 65 \{1 90 percent slopes 

W 12 BuckpeakSii11oam 30 to 65 perceotslopes '.-> 127-Ma)liO'wns,»:loam, Oto3 percilnlslop.lS 

17. Caples Silty clay k>arP, 0 to 3 percent slopes cJ 160- Pdchuck Ieamy fine sand. oro a percent slopes 

21 

_ centraha Sill roam. 0 ro 8 percerrt slope!~ C3 :~~::~~-R~c~ outcrop complex 15 lo 65 

22-Central~asi!tloam.fJto20percentslopes 195-Sem~hmoomuck. o !::l1 percent !~Japes W 19"9- Snollomtsh Silty clay loam, 0 to 1 percent slopes 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.1~11 Chapter4. Natur

Existing Conditions, 

andProposedMitig

17 , .. 
153 


31623.084

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

A soil's linear extensibility is the measure of its potential to expand during wetting and to contract 

during drying. The more a soil expands the more potential it has to affect overlying materials such as 

structure foundations. The soil expansion classes for the project area range from low (Arents, 

Pilchuck loamy fine sand), to moderate (Maytown silt loam, Snohomish silty clay loam], to high 

(Caples silty clay loam]. The values in Table 4.1-2 are provided as a percent expansion and a 

descriptive classification (class]. 

The above discussion relates to the naturally occurring soils at the project area. However, the 

project area has been an industrial site since the 1940s and has had various amounts of surface 

disturbance and fill material (sand, silt, mixed silt and sand, large gravel, and crushed rock [Anchor 

QEA 2011; GRI 2011, 2012]) placement. Due to the industrial use, site-specific surface soil materials 

could vary from NRCS mapping. Data reports for the project area indicate varying areas of fill 

materials, particularly under existing structures. 

Table 4.1-2. Soils and Soil Properties in the Project Area 

~ 

·a 

::::> ~'f. 

= " "" .. ::::>.= ;:;;: " P..Ei '§ ~ ::O:z "= .,z 

5 Arents, 0 to 5% slopes 

17 Caples silty clay loam, 

0 to 3% slopes 

127 Maytown silt loam, 0 

to 3% slopes 

160 Pilchuck loamy fine 

sand, 0 to 8% slope 

199 Snohomish silty clay 

loam, 0 to 1% slopes 

263 Water 

Notes: 

Moderately well 

drained 

~ 

.. 

0 

t 

.. ... 

::.: 

0.28 

~:.., 

·~ ~ 

~~ 

Slight 

Somewhat 0.43 Slight 

poorly drained 

Moderately well 0.49 Slight 

drained 

Not defined 0.20 Slight 

Poorly drained 0.3 7 Slight 

NJA 

... ... 

0 0 g = 0 =.., 0" :E 'iii tl ·~! ... 'iii.-.. 0 .. 0 .... .. = ., .. u .. 0 = 0 0 

t: 

=! 

8 Qj ~!~ '-''-' <..l::O<Il ::.~=:. 

Moderate Moderate 1.5% (Low) 

Moderate High 7.0% (High) 

Moderate High 3.6% 

(Moderate) 

Moderate Low 1.5% (Low) 

Moderate High 4.5% 

(Moderate) 

NjA 

a Higher K factor values indicate greater potential for erosion: K factor values below 0.13 have low erosion potential; 

values 0.13 to 0.26 have medium erosion potential; values greater than 0.26 have high erosion potential. 

b The potential for concrete corrosion increases decreasing water and soil acidity and increases in sodium, magnesium 

sulfate, and sodium chloride, 

c The potential for corrosion of uncoated steel increases with soil water saturation, greater water acidity and conductivity. 

Source: Natural Resources Conservation Service 2013 

N/A =not applicable 

4.1.5 Impacts 

This section describes the potential direct and indirect impacts related to geology and soils that 

would result from construction and operation of the Proposed Action and the No-Action Alternative. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1·12 April2017 
154 


31623.085

Cowlitz County 

Washington State Department of Ecology 

4.1.5.1 Proposed Action 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

This section describes the potential impacts that could occur in the study area 4 as a result of 

construction and operation of the Proposed Action. 

Construction activities could affect geology and soils directly through ground disturbance associated 

with construction of the coal export terminal and preloading of the coal stockpile areas. Operational 

activities could affect geology and soils indirectly through exposure of people and structures to 

potential effects from catastrophic events 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Enlarge Land, Affect a Unique Physical Feature, or Cause Substantial Soil Erosion 

Construction of the Proposed Action would not result in the enlargement ofland area by placing 

fill in the Columbia River or by depositing sediments in the Columbia River. There are no unique 

physical features at the project area that would be affected by the Proposed Action. Although 

steep slopes occur along drainage ditches and the Columbia River banks, there are no 

indications of instability and project activities are not expected to cause instability at these 

locations. 

Construction of the Proposed Action would involve ground-disturbing activities such as grading, 

railroad construction, excavating for foundations, and road construction that would affect about 

190 acres ofland. Approximately 2.1 million cubic yards of material would be imported for 

compressing soils on site, as well as about 130,000 cubic yards of ballast rock for rail-related 

structures and infrastructure. Approximately 2.5 million cubic yards of material would be 

moved around the project area during the compression of on-site soils. 

As discussed in Section 4.1.4.2, Soils in the Project Area and Vicinity, and shown in Table 4.1-2, 

although the soils in the project vicinity have a moderate to high potential for erosion, the onsite soils have a slight erosion hazard mainly due to the site's flat, low gradient Bare soil could 

be exposed for varying periods of time due to construction activities over several years. This 

could lead to potential soil erosion due to rainfall or wind. Soil erosion would have the potential 

for off-site transport of eroded soil materials to waterways such as the Columbia River and 

adjacent ditches. Wind erosion potential would be limited-because of the precipitation levels 

that occur at the site and proposed dust suppression during construction to control wind 

erosion-but could occur during summer dry periods. Dust from coal stockpiles is addressed in 

Chapter 5, Section 5.6, Air Quality. When build-out is complete, the project area would be 

approximately 90% impervious surfaces, which would reduce soil erosion potential to near 

zero. 

4 Acreages presented in the impacts analysis were calculated using geographic information system (GIS) 

technology, thus, specific acreage of impacts are an estimate of area based on the best available information. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.1·13 April1017 
155 


31623.086

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

As described in Chapter 2, Section 2.2.3, Proposed Facilities, Construction, and Operations, 

dredging related to the construction of Docks 2 and 3 would be managed under the Section 401 

Water Quality Certification. This could involve approval of flow-lane disposal of dredge material, 

which would avoid impacts on uplands. The Applicant could, if approved, also dispose of dredge 

materials in upland portions of the project area for preloading the stockpile area. Placement of 

this dredge material in the stockpile area would compact the underlying soil (see Affect Project 

Structures from Soil Materials Underlying the Site, below, for more information). Potential 

impacts of disposal of dredge material on water quality and surface waters are addressed in 

Section 4.2, Surface Water and Floodplains, and Section 4.5, Water Quality. 

Affect Project Structures from Soil Materials Underlying the Site 

As discussed in Section 4.1.4.2, Soils in the Project Area and Vicinity, and shown in Table 4.1-2, 

the on-site soils have moderate potential to corrode concrete, low to high potential to corrode 

steel, and have an expansion-contraction (wet-dry) class of low to high. Impacts related to 

corrosion of project-related structures and infrastructure would be avoided through standard 

engineering and construction methods. Washington State Department of Transportation (2014) 

uses a variety of standard engineering measures to address concrete and steel corrosion such as 

improving drainage and replacing native soil with fill. Such standard engineering measures 

would be employed by the Applicant to ensure potential soil related corrosion would not occur. 

The sediments beneath the project area are relatively fine-grained and water-saturated, and the 

water table is near the ground surface. These characteristics make the sediments vulnerable to 

compaction from the weight of overlying materials and structures. This vulnerability is mainly a 

concern for the coal stockpile areas on the project area due to the coal's weight Thus, 

preloading and installing wick drains is required to expel the groundwater and consolidate soils 

beneath the stockpile areas prior to operations. Compaction would be less of a concern for other 

project components because they involve much less weight. 

Compaction and settlement of underlying sediments in the coal stockpile areas are addressed in 

the project design through preloading. Preloading involves importing material to compact the 

underlying soil to improve its load-bearing capacity. Approximately 2.1 million cubic yards of 

material would be imported into the coal stockpile areas in stages over a period of up to 7 years. 

Preloading would provide soil compaction to avoid potential impacts associated with soil 

settlement during operations. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on geology and soils 

because construction impacts would be immediate and would be limited to the project area. 

Therefore, no construction impacts would occur later in time or farther removed in distance from 

the direct impacts on the project area as discussed previously. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-14 April2017 
156 


31623.087

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Expose People or Structures to Potential Effects Involving Catastrophic Events 

Operation of the Proposed Action could expose people or structures to potential effects 

involving catastrophic events such as; rupture of a known earthquake fault, strong seismic 

ground shaking, seismic-related ground failure (liquefaction), landslides, and tsunamis. Thus, 

potential effects from these types of catastrophic events were evaluated. 

Earthquake Faults 

There are no known earthquake faults in the study area that reach the ground surface. 

Therefore, no ground surface ruptures could directly damage structures or buildings in the 

study area. 

Ground Shaking 

The project area and surrounding area could be subject to strong ground shaking from 

earthquakes. The USGS National Seismic Hazard Map shows that there is a 2% probability of an 

earthquake with a peak ground acceleration of 0.4 g to 0.5 g, occurring over 50 years (Petersen 

et al. 2014). As a generalization, this means that in any 50-year period, there is a 2% chance that 

an earthquake could occur that would result in severe shaking. This amount of shaking could 

directly damage proposed structures and buildings. As per the Cowlitz County Critical Areas 

Protection Ordinance (Cowlitz County Code 19.15), construction of the Proposed Action would 

be required to comply with International Building Code 16.05 and Cowlitz County Grading 

Ordinance 16.35, as applicable. Additionally, a geotechnical report would be prepared as part of 

the Proposed Action and would inform project design and construction techniques, which would 

likely reduce potential impacts associated with ground shaking. 

Seismic-Related Ground Failure (Liquefaction) 

The study area could be subject to liquefaction during strong ground shaking. Palmer et al. 

(2004) characterizes the area as having high liquefaction susceptibility. An investigation of the 

area that was conducted for a previously proposed asphalt plant indicated that settlement after 

liquefaction would vary with earthquake location and earthquake magnitude. The investigations 

concluded that ground settling due to post-liquefaction settlement could damage the proposed 

structures and buildings. The Proposed Action would comply with the adopted International 

Building Code (per Cowlitz County Code 16.05 and 16.35 Grading Ordinance). Preloading the 

stockpile area would expel groundwater and consolidate soils in the immediate vicinity of the 

coal stockpile areas, which would reduce the susceptibility of the soils to liquefaction. This 

would also likely reduce the potential for damage to proposed structures that occur in the 

immediate vicinity of the preloading area. Preparation of a geotechnical report would identify 

the specific soil conditions pre- and post-project construction, and would inform project design 

and construction techniques to further reduce potential impacts based on the potential 

susceptibility of liquefaction. 

landslides 

There are no existing landslides in the study area. Strong ground shaking associated with 

earthquakes would have minimal potential to cause new landslides in the study area, because 

the area is level and there is only about 40 feet of elevation difference between the site surface 

and the adjacent Columbia River bottom. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.1·15 April2017 
157 


31623.088

Cowlitz County 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

The project area is near the active deep-seated landslide on the south side of Mount Solo, but it 

is approximately 250 feet from the edge of the estimated greatest extent of the landslide, more 

than the SO feet required by the Cowlitz County Critical Areas Ordinance 19.15 for landslide 

hazards. However, as with all landslides, periods of prolonged and intense rainfall (including 

multiyear periods) or earthquake-caused ground shaking could trigger this landslide. However, 

because the project area is approximately 200 feet beyond the minimum distance required by 

the Cowlitz County Critical Areas Ordinance (CCC 19.15) and it is physically isolated from the 

landslide, the Proposed Action would not increase the risk that a landslide would occur. 

Tsunamis 

Large earthquakes in the Pacific Ocean or on the CSZ could cause a tsunami, which could affect 

the coastal zone of Washington and Oregon. Large tsunamis have been detected as far up the 

Columbia River as Portland, Oregon. Modeling calculations found that an 18-foot-high tsunami 

at the Columbia River mouth decreased to less than 8 inches at Longview (Yeh et al. 2012). 

Tsunami levels at the project area would be similar and would not affect project-area structures 

or operations, including ships at the docks. 

Operations-Indirect Impacts 

Operation of the Proposed Action would not result in any indirect impacts on geology or soils 

because operations would not result in any further changes to soils or geology that may occur later 

in time of further removed in distance than the direct impacts. 

4.1.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not construct the coal export terminal and 

ongoing operations in the project area would continue and additional storage and transfer activities 

might occur using existing buildings and structures and impacts on geology and soils related to the 

Proposed Action would not occur. The Applicant would continue with current and future increased 

operations in the project area. The project area for the Proposed Action could be developed for 

other industrial uses including an expanded bulk product terminal or other industrial uses. 

However, no activities that would require a U.S. Army Corps of Engineers permit or shoreline permit 

would occur as part of the No-Action Alternative. New construction, demolition, or related activities 

to develop the project area into an expanded bulk terminal could occur on previously developed 

upland portions of the area. 

4.1.6 Required Permits 

The Proposed Action would require the following permits for geology and soils. 

• Fill and Grade Permits/Building Permits-Cowlitz County. Fill and grade permits and 

building permits would be required from Cowlitz County to ensure that final design and 

construction follow the County and engineering requirements. 

• Critical Areas Permit-Cowlitz County. The Proposed Action would require a Critical Areas 

Permit to address compliance with Cowlitz County's Critical Areas Ordinance related to the 

presence and protection of Critical Aquifer Recharge Areas located on site. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-16 April2017 
158 


31623.089

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

• Construction Stormwater Permit-Washington State Department of Ecology. A 

Construction Stormwater Permit would be required from the Washington State Department of 

Ecology to address erosion control and water quality during construction. 

• Industrial Storm water Permit-Washington State Department of Ecology. An industrial 

Stormwater Permit would be required from the Washington State Department of Ecology to 

address erosion control and water quality during operations. The permit and stormwater 

pollution prevention plan control adverse impacts through the application of best management 

practices. Best management practices are defined as schedules of activities, prohibitions of 

practices, maintenance procedures, and structural and managerial practices, that when used 

singly or in combination, prevent or reduce the release of pollutants and other adverse impacts 

on waters of Washington State. The types of best management practices are source control. 

treatment, and flow control. 

The following permit requirements would be required for construction of the Proposed Action. 

• A qualified geologist or engineer would monitor the fill placement during construction and 

conduct appropriate field tests to verify proper compaction of the fill soils. 

A site-specific preloading plan would be developed prior to initiating construction of the 

Proposed Action by the geotechnical engineer working with the civil and structural engineers. 

The plan would include measures to maintain proper site drainage, collection and treatment of 

water generated, volumes, and sources of fill sources, and staging of fills, setbacks from existing 

structures. The plan would also consider the short- and long-term impacts on adjacent 

structures and features, including but not limited to, railroads, existing streets and utility 

connections, utilities, drainage features, landfills, existing hazardous materials, and buildings. 

• Visual inspection would be conducted following abnormal seismic activity. These inspections 

would document whether the seismic activity resulted in changes to the surface conditions (i.e., 

soil settlement, structural damage). 

• Best management practices would minimize the potential for erosion. A stormwater pollution 

prevention plan would be required and implemented. Clearing, excavation, and grading would 

be limited to the areas necessary for construction and would not be completed far in advance of 

facility construction. 

4.1.7 

o BMP C107: Construction Road/Parking Area Stabilization. Roads, parking areas, and 

other on-site vehicle transportation routes would be stabilized to reduce erosion caused by 

construction traffic or runoff. 

Proposed Mitigation Measures 

No impacts on geology and soils from construction and operation of the Proposed Action have been 

identified that would require mitigation. Nor have impacts on the Proposed Action from geologic 

events been identified that would require mitigation. Thus, no mitigation measures are proposed for 

geology and soils. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.1-17 Apri12017 
159 


31623.090

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.1.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and required plans described above would reduce impacts on geology and 

soils. There would be no expected unavoidable and significant adverse environmental impacts on 

geology and soils in the study area related to the Proposed Action. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.1-18 April1017 
160 


31623.091

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.2 Surface Water and Floodplains 

Surface waters such as rivers, lakes, and coastal waterways provide natural beauty and sustain the 

health of human and natural communities. Floodplains are lowland areas adjacent to surface water 

features that are periodically inundated by water during flood events. Floodplains carry and store 

floodwaters. Floodplains often contain areas vital to a diverse and healthy ecosystem. Undisturbed, 

they have high natural biological diversity and productivity, and support many waterfowl species 

and migrating birds. 

The quality of surface waters and floodplains refers to the physical, chemical, biological, and 

aesthetic characteristics of water, which are used to measure the ability of water to support aquatic 

life and human uses. Surface water and floodplain quality can be diminished by contaminants 

introduced by domestic, industrial, and agricultural practices. 

This section describes the surface waters and floodplains in the study area. It then describes 

potential impacts on surface waters and floodplains that could result from construction and 

operation of the Proposed Action and under the No-Action Alternative. This section also presents 

the measures identified to mitigate impacts resulting from the Proposed Action. 

4.2.1 Regulatory Setting 

Laws and regulations relevant to surface water and floodplains are summarized in Table 4.2-1. 

Table 4.2-1. Regulations, Statutes, and Guidelines for Surface Waters and Floodplains 

Regulation, Statute, Guideline 

Federal 

Rivers and Harbors Act of 1899 

Clean Water Act 

(33 USC 1251 et seq.] 

Section 404 of the Clean Water Act 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 

Authorizes the Corps to protect commerce in navigable 

streams and waterways of the United States by regulating 

various activities in such waters. Section 10 of the Act (33 

USC 403) specifically regulates construction, excavation, 

or deposition of materials into, over, or under navigable 

waters, or any work that would affect the course, location, 

condition, or capacity of those waters. 

Establishes the basic structure for EPA to regulate 

discharges of pollutants into the waters of the United 

States and regulate quality standards for surface water. 

Regulates the placement of dredged or fill material into 

waters of the United States, including special aquatic sites 

such as sanctuaries and refuges, wetlands, mudflats, 

vegetated shallows, coral reefs, and riffle and pool 

complexes. EPA is the agency responsible for enforcing 

this act. 

4.2-1 April2017 
161 


31623.092

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Section 401 of the Clean Water Act 

Sections 301 and 402 of the Clean Water 

Act 

National Flood Insurance Act of 1968 

EO 11990, Protection of Wetlands 

EO 11988, Floodplain Management 

Water Resources Act of 1971 

(RCW90.54) 

Water Pollution Control 

(RCW9D.48) 

Water Quality Standard for Surface 

Waters of the State of Washington 

(WAC 173-201A) 

Millennium Bulk Terminals Longview 

Final SEPA Environmental impact Statement 

Description 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Requires that a Water Quality Certification be obtained 

from Ecology for any activity that requires a federal 

permit or license to discharge any pollutant into a water 

of the United States. This certification attests that the 

state has reasonable assurance that the proposed activity 

will meet state water quality standards. 

Section 301 prohibits the discharge of any pollutantto a 

water of the United States without a permit Section 402 

(33 USC 1342) establishes the NPDES permitting program 

(40 CFR 122). The NPDES permitting program controls 

water pollution by regulating point sources that discharge 

pollutants into waters of the United States. Industrial, 

municipal, and other facilities must obtain permits if their 

discharges go directly to surface waters. Authorized by 

the Clean Water Act. 

Established the NFIP, a federal floodplain management 

program designed to reduce future flood losses 

nationwide through the implementation of communityenforced building and zoning ordinances in return for the 

provision of affordable, federally backed flood insurance 

to property owners. FEMA is the agency responsible for 

enforcing the National Flood Insurance Act. 

Applies to all agencies managing federal lands, sponsoring 

federal projects, or providing federal funds to state or 

local projects. EPA is the agency responsible for enforcing 

this EO. 

Requires federal agencies to avoid, to the extent possible, 

the long- and short-term adverse impacts associated with 

the occupancy and modification of floodplains and to 

avoid direct and indirect support of floodplain 

development wherever there is a practicable alternative 

(42 FR 26951). FEMA is the agency responsible for 

enforcing this EO. 

Sets forth fundamental policies for the state to ensure that 

waters of the state are protected and fully utilized for the 

greatest benefit. Ecology is the agency responsible for 

enforcing the Water Resources Act. 

Policy to maintain the purity of waters of the state 

consistent with public health and public enjoyment, as 

well as propagation and protection of wildlife and 

industrial development of the state, and to that end 

require the use of all known available and reasonable 

methods by industries and others to prevent and control 

the pollution of the waters of the state. 

Establishes water quality standards for surface waters of 

the state of Washington. 

4.2-2 April2017 
162 


31623.093

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

National Pollutant Discharge Elimination 

System Permit Program 

(WAC 173-220) 

Shoreline Management Act 

[RCW90.58) 

Local 

Cowlitz County Storm water Drainage 

Ordinance (CCC 16.22) 

Cowlitz County Phase II Municipal 

Storm water Management Plan 

(CCC 19.22) 

Cowlitz County Critical Areas Ordinance 

(CCC 19.15) 

Cowlitz County Shoreline Master Program 

(CCC 19.20) 

Cowlitz County Floodplain Ordinance 

(CCC 16.25) 

Notes; 

Description 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Establishes state individual permit program for discharge 

of pollutants and other wastes and materials to surface 

waters of the state. 

Regulates and manages the use, environmental 

protection, and public access of the state's shorelines. The 

SMA was passed by the Washington State Legislature in 

1971 and adopted in 1972. Ecology is the agency 

responsible for enforcing the Shoreline Management Act. 

The Cowlitz County Stormwater Drainage Ordinance is a 

requirement of the NPDES Phase II Municipal Stormwater 

Permit issued to Cowlitz County by Ecology. The permit 

requires Cowlitz County to reduce stormwater runoff and 

pollution in unincorporated areas of Cowlitz County 

adjacent to the Cities of Longview and Kelso. The 

Proposed Action is not within the area affected by the 

NPDES Phase II Municipal Storm water Permit. 

Requires Cowlitz County to develop a SWMP. The SWMP 

must incorporate best management practices to reduce 

the discharge of pollutants from the regulated area to the 

maximum extent practicable to protect water quality. 

Cowlitz County is responsible for enforcing the SWMP. 

Requires Cowlitz County, in compliance with the GMA, to 

adopt development regulations based upon the best 

available science that assure the protection of critical 

areas such as wetlands, aquifer recharge areas, 

geologically hazardous areas, fish and wildlife habitat, and 

frequently flooded areas. Cowlitz County is responsible 

for enforcing this ordinance. 

Requires Cowlitz County to provide for the enhancement 

of shorelines and protection against adverse effects to 

vegetation, wildlife, and waters of the state, and their 

aquatic life. 

Requires Cowlitz County to implement the Washington 

State Flood Control Zone permit program to regulate 

floodplain development. Cowlitz County adopted a 

revised floodplain ordinance and revised FIRM in 

December 2015. 

USC= United States Code; EPA= U.S. Environmental Protection Agency; Ecology:::::: Washington State Department 

of Ecology; NPDES =National Pollutant Discharge Elimination System; NFIP =National Flood Insurance Program; 

FEMA =Federal Emergency Management Agency; EO= Executive Order; FR =Federal Register; WAC:::::: Washington 

Administrative Code; RCW = Revised Code of Washington; SMA = Shoreline Management Act; GMA:::::: Washington 

State Growth Management Act; CCC= Cowlitz County Code; SWMP = Stormwater Management Plan 

4.2.2 Study Area 

The study area for direct impacts on surface waters is the Columbia River and storm water drainage 

ditches in the project area. The study area for indirect impacts on surface waters encompasses the 

Consolidated Diking Improvement District (CD !D) #1 storm water system drainage ditches adjacent 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-3 April2017 
163 


31623.094

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

to the project area and the Columbia River downstream 1 mile from the project area. Figure 4.2-1 

shows the study areas for surface water. 

The study area for direct impacts on floodplains is the project area. The study area for indirect 

impacts on floodplains is the project area and surrounding 500-year floodplain on the north side of 

the Columbia River in the vicinity of the project area. Figure 4.2-2 shows the study areas for 

floodplains. 

4.2.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts on surface waters and floodplains associated with the construction and operation of the 

Proposed Action and No-Action Alternative. 

4.2.3.1 Information Sources 

The following sources of information were used to define the existing conditions relevant to surface 

waters and floodplains and identify the potential impacts of the Proposed Action and No-Action 

Alternative on to surface waters and floodplains in the study areas. 

• Engineering Report for NPDES Application Millennium Bulk Terminals-Longview, LLC (Anchor 

QEA2011) 

• Engineering Report Update for NPDES Application Millennium Bulk Terminals-Longview, LLC 

(Anchor QEA 2014) 

• Columbia River Basin: State of the River Report for Taxies (U.S. Environmental Protection Agency 

2009) 

• Diminishing Returns: Salmon Declines and Pesticides (Ewing 1999) 

• Columbia River Estuary ESA Recovery Module for Salmon and Steelhead (National Marine 

Fisheries Service 2011) 

• Columbia River Estuary Operational Forecast System website 

• Designated Beneficial Uses Mainstem Columbia River 340-41-0101 (Oregon Department of 

Environmental Quality 2003) 

303(d)j305(b) Integrated Water Quality Assessment Report (Oregon Department of 

Environmental Quality 2012) 

• USGS water-quality data, Columbia River Estuary, 2004-2005 (U.S. Geological Survey 2005] 

• USGS water-quality data, Columbia River at The Dalles, Oregon, 2012 (USGS 14105700) 

• Stormwater Management Manual for Western Washington (Washington State Department of 

Ecology 2012) 

• Grays-Elochoman, Cowlitz River Basins Water Resource Management Programs (Washington 

State Department of Ecology 2014) 

• Reports and analysis provided by the Applicant 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.2-4 April2017 
164 


31623.095

.. 

< " 

> .., 

" 

B' 

:;; 

!! .§ " 

E 

'0 ~ 

. ~ 

~ 

~"' E ~ 

c ~ 

" 

f ~ 

~ " "' 

~~ 

z:E ..; 

E • 

c ~ ,.:. 

" E 

~ § .. ~ c ~ e 

u to I!! 

g -~ 

~£ .. " 

Ew 

8~ .. -~ ~ u:: ~] 
165 


31623.096

.. 

~ 6:; > 

~ .., 

~ ;:;; " ~ :0 .. ·;;:"' 0 ·~ 1't 

" 1' ii 

.., f ~ 

~~ t 0 

~ 0 

u:: E • 

~ ~ ~~ i ~ ·~ 5 c .. E w 

8~ 

£/~ e ~ ~ " ~~ .. 83 ~ 
166 


31623.097

Cowlitz County 

Washington State Department of Ecology 

4.2.3.2 Impact Analysis 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The following methods were used to evaluate the potential impacts of the Proposed Action and 

No-Action Alternative on surface waters and floodplains. The impact analysis also evaluated how 

surface water conditions could affect the study areas. 

Potential surface waters and floodplains impacts have been evaluated regarding general 

parameters, such as changes to surface water drainage, surface water discharge, and floodplain 

connectivity, and how the Proposed Action and the No-Action Alternative could affect these 

parameters. 

For the purpose of this analysis, construction impacts are based on peak construction period and 

operations impacts are based on maximum throughput capacity (up to 44 million metric tons per 

year). The assessment of impacts also considers regulatory controls, such as those required in the 

National Pollutant Discharge Elimination System (NPDES) Industrial Stormwater Permit and NPDES 

Construction Stormwater Permit required for the Proposed Action. 

4.2.4 Existing Conditions 

This section describes the existing environmental conditions in the study areas related to surface 

waters and floodplains that could be affected by construction and operation of the Proposed Action 

and the No-Action Alternative. 

The project area is along the Columbia River near river mile 63 near Longview. The topography of 

the study areas is relatively flat; in the vicinity of the project area it is protected by a levee system 

operated and maintained by COlD #1, which also operates and maintains a series of ditches and 

pump stations in the vicinity of the project area. The Applicant operates and maintains independent 

storm water and facility process water treatment and conveyance facilities for the project area. 

4.2.4.1 Surface Water and Floodplain Features 

Columbia River 

The Columbia River basin comprises 260,000 square miles from its headwaters in British Columbia, 

Canada, to its mouth near Astoria, Oregon, bordering Washington and Oregon. The river's annual 

discharge rate fluctuates with precipitation and ranges from 63,600 cubic feet per second in a low 

water year to 864,000 cubic feet per second in a high water year (U.S. Geological Survey 2014). The 

Columbia River bas been identified as a flow exempt waterbody, which means it is exempt from flow 

control requirements associated with the detention/retention and discharge of stormwater. Water 

quality criteria must still be met for all stormwater discharges. 

The lower Columbia River is tidally influenced by the Pacific Ocean from the estuary near Astoria, to 

Bonneville Dam, located upstream of Portland (Bonneville Power Administration 2001 ). Tidal 

fluctuations are diurnal, meaning there are two high tides and two low tides in each 24-hour tidal 

cycle. Tidal ranges vary along the lower Columbia River and are reported to have a mean range of 

3.78 feet at Longview. The Columbia River experiences seasonal variation in flow from year to year 

depending on snow mass in the upper watershed. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.2-7 April2017 
167 


31623.098

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

All surface waters from the study area are ultimately discharged to the Columbia River, either as 

groundwater, surface water, or treated storrnwater discharge. The project area is on the right-bank 

floodplain of the Columbia River near river mile 63 near Longview (Figure 4.2-2). The project area is 

protected from Columbia River flooding by the CDID #1levee (see Columbia River Levee, below). 

Water Resource Inventory Area 25 

A watershed generally has a topographic boundary that defines an area draining to a single point of 

interest. The Washington State Department of Ecology (Ecology) and other state natural resources 

agencies have divided Washington State into 62 Water Resource Inventory Areas (WR!As) to 

delineate and manage the state's major watersheds. The project area is located in the WRIA 25 

Grays/Eiochoman Basin. 

Consolidated Diking Improvement District #1 

Other than the Columbia River levee, the study areas are surrounded and protected by the levees, 

ditches and pump stations of CDID #1. CDID #1 consists of 19 miles of levees; over 35 miles of 

sloughs, ditches, and drains for flood protection; a stormwater collection and routing system; and 

seven pump stations for removing and discharging stormwater to receiving waters outside of the 

levee system, such as the Columbia River. These pump stations are instrumental for removing 

stormwater and preventing local and area-wide flooding. 

Columbia River Levee 

The CDID#1levee system can be divided into three major segments, but the study areas are 

primarily protected by the Columbia River levee. This levee protects the study areas from flooding 

along the Columbia River and from related backwater elevations in Coal Creek Slough. It extends 

from the main pump station and office complex around the western edge of Longview and 

unincorporated portions of Cowlitz County, up the Columbia River to its confluence with the Cowlitz 

River. The levee is a mixture of well-defined rural levees and overbuilt sections associated with 

urbanized levees through industrial areas. 

Pump Stations 

In addition to the CDID #1levee, the study areas are surrounded and protected by smaller levees, 

ditches, and pump stations maintained by CDID #1 as described below. 

The two pumps of primary interest in the project vicinity are the Reynolds Pump Station and the 

Industrial Way Pump Station. 

• Reynolds Pump Station. The Reynolds Pump Station is located at the terminus of Ditch 14; this 

pump station draws water from Ditch 10 and pumps directly to the Columbia River. Total 

pumping capacity is 80,000 gallons per minute. 

• Industrial Way Pump Station. The Industrial Way Pump Station is located adjacent to Ditch 5 

and Industrial Way. It has a pumping capacity of 90,000 gallons per minute and pumps water a 

distance of nearly 0.5 mile, where it discharges to the Columbia River through the levee at the 

east end of the project area. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2·8 Apri12017 
168 


31623.099

Cowlitz County 

Washington State Department of Ecology 

Ditches 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

CDID #1 maintains approximately 35 miles of sloughs, ditches, and drains that collect and convey 

stormwaterto the CDID #1 pump stations. The ditches have a dual function, acting as a conveyance 

system to transport storm water to the pumping stations and as a storage reservoir for intense 

rainfalls exceeding the capacity of the pumps. The Columbia River is the ultimate destination of the 

drainage water. Below is a description of the CDID #1 ditches that are on or adjacent to the project 

area (Figure 4.2-3). 

• Ditch 5. Ditch 5 borders the eastern edge ofParcel10213 and extends toward the south from 

38th Avenue to the Industrial Way Pump Station along Industrial Way, which pumps water to 

the Columbia River via an underground pipeline. A second branch of Ditch 5 extends from the 

pump station toward the southeast along the north side of Industrial Way down to Washington 

Way. It connects with other drainage ditches (Ditches 1 and 3) and conveys flow to the pump 

station. 

• Ditch 10. North of Industrial Way, Ditch 10 forms the northern boundary of Parcel 10213 and 

extends toward the west from 38th Avenue. It continues toward the west, crosses under 

Industrial Way through a culvert, and extends toward the northwest, eventually connecting to 

other segments of the drainage system including Ditch 14 and Ditch 16. Ditch 14 conveys flow to 

the south to the Reynolds Pump Station, which discharges to the Columbia River through an 

underground pipeline. South of Industrial Way, Ditch 10 is to the north of the former cable plant 

and remnant forested area. Ditch 10 intersects with Ditch 14 just north of the closed Black Mud 

Pond (BMP) facility. 

• Ditch 14. Ditch 14 is located along the western boundary of the project area and consists of a 

trapezoidal-shaped drainage ditch that receives flow from Ditch 10 and Ditch 16 and other 

privately owned ditches located both on site (e.g., Cable Plant Ditch) and off site. During high 

water events, it conveys flow south toward the Reynolds Pump Station, which pumps water 

under the COlD #1levee. 

Stormwater and shallow groundwater drainage for the project area is controlled by a system of 

ditches, pump stations, treatment facilities, and outfalls. All of these facilities currently operate 

under a single NPDES permit. As shown in Figure 4.2-3, all of the project area drainage is either held 

on site until it evaporates, is discharged to CDID #1 ditches that eventually flow and discharge to the 

Columbia River, or is treated and discharged through Outfall 002A (operated by the Applicant) to 

the Columbia River. Table 4.2-2 lists the drainage basins in the project area; and drainage basins are 

shown in Figure 4.2-3. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.2-9 April2017 
169 


31623.100

0 

N 

.. 

:e 

-~ 

:I 

_;m 

.i? 

~ ·m; 

~~' E 

~ t ~ 

~ ~ ~ 0 ! 1 1l E 

:J I! I I 

l ~ .. 

E ;..; ·~ 

~ ~ ~ ·~ e I :~ :il ] 

~ ·~ 5 

~ ~ :~ 

~ ] ;~ 1i 3 " :; u: 
170 


31623.101

Cowlitz County 

Washington State Department of Ecology 

Table 4.2·2. Existing Drainage Basins in the Project Area 

Area Description 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Stormwater runoff gravity drains to Facility 77 and is pumped to Facility 73 for treatment 

prior to discharge through Outfall 002A. 

2 Stormwater runoff gravity drains to a vegetated conveyance swale and is pumped into the 

U-Ditch, where it drains to the Facility 77 and is pumped to Facility 73 for treatment prior 

to discharge through Outfall 002A as designed. Larger runoff events may overflow the 

sump and discharge into CDID Ditch 14 through Rerouted Outfall 006. 

3 Stormwater runoff ponds locally andfor gravity drains to a vegetated ditch and is 

discharged through Outfall 003C into CDID Ditch 10. 

3A Stormwater runoff ponds locally and infiltrates/evaporates and for is pumped to the UDitch, where it drains to Facility 77 and is pumped to Facility 73 for treatment prior to 

discharge through Outfall 002A. 

4 Stormwater runoff gravity drains to ditches and is pumped via Pump Station 004 to Facility 

77, where it is pumped to Facility 73 for treatment prior to discharge through Outfall 002A. 

4A Stormwater runoff ponds locallya~d infiltrates{e1/ap?r_ates. 

5 Stormwater runoff from improved areas pond locally and infiltrates/evaporates; runoff 

from the larger events may gravity drain to a vegetated ditch and discharge through Outfall 

005 to CDID Ditch 14. Stormwater runoff from unimproved areas may gravity drain 

towards the vegetated ditch. 

SA Stormwater runoff ponds locally and infiltrates/ evaporates. 

56 Stormwater runoff ponds locally and infiltrates/evaporates. 

6 Stormwater runoff ponds locally and infiltrates/evaporates. Larger runoff events may 

sheet flow to the U-Ditch, which discharges to Facility 77, and is then pumped to Facility 73 

for treatment prior to discharge through Outfall 002A. 

6A Stormwater runoff ponds locally and infiltrates/evaporates. Unimproved areas may gravity 

drain toward the vegetated ditch. 

7 Stormwater runoff ponds locally and infiltrates/evaporates. 

Drainage Components 

Stormwater and shallow groundwater drainage for the study areas are controlled by a system of 

ditches, pump stations, treatment facilities, and outfalls. All of these facilities currently operate 

under a single NPDES permit All of the project area drainage is either held on site and evaporates, 

discharged to CDID #1 ditches that eventually flow to the Columbia River, or treated and discharged 

through Outfall 002A to the Columbia River. The following is a brief description of the drainage 

components of the study areas (Figure 4.2-3). 

Sheetflow and infiltration. Subbasins 4A, 5, SA, SB, 6A, and 7 receive sheetflow from storm 

events. The water remains in the subbasins until it infiltrates or evaporates. 

• Columbia River discharge. Subbasins 1, 2, 3A, 4, and 6 are conveyed via pumped systems or 

gravity to Facility 73 where they are treated and then discharged to the Columbia River via 

Outfall 002A. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.2-11 April2017 
171 


31623.102

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

• CDID #1 discharge. Subbasin 3 flows through a vegetated ditch that discharges to Ditch 10 

through Outfall 003C. During larger storm events, overflow from Subbasin 2 and Subbasin 5 

(both described above) can discharge to the CDID #1 ditch system. Subbasin 2 overflows would 

discharge to Ditch 14 through Outfall 006. This is a designed overflow system and it is equipped 

with a high-flow alarm to alert staff when it is activated. Subbasin 5 flows can enter a vegetated 

ditch that discharges to Ditch 10 through Outfall 005. Ultimately, all CDID #1 ditch flows 

discharge to the Columbia River. 

• Drainage features on Parcel10213. These features include three vegetated ditches, two 

unvegetated ditches, and a shallow stormwater pond. Two of the vegetated ditches run northsouth across the two larger portions ofParcel10213. They are narrow and linear and convey 

storm water to a culvert approximately 16 inches in diameter located on the north end of these 

ditches, which then empties into CDID Ditch 10. The third vegetated ditch consists of three 

segments of linear vegetated ditches adjacent to Industrial Way. These three ditch segments are 

connected by two culverts that are beneath the site's access roads. This feature likely collects 

storm water from Industrial Way and adjacent areas and conveys it to CDID Ditch 10. 

One unvegetated ditch runs parallel to Ditch 10 and consists of two sections of a narrow ditch 

that was likely constructed to intercept shallow groundwater that was affecting agricultural use 

of the site. This unvegetated ditch is several feet deep, nearly vertical along its sides, and is 

bisected by one of the vegetated ditches that runs parallel across the site; however, there is no 

surface hydrology connection between these two ditches. The other unvegetated ditch serves as 

the outlet channel for the stormwater pond. This ditch is located at the northeast end of the 

stormwater pond and conveys excess stormwater from the pond to CDID Ditch 10 through a 

16-inch culvert. All six features are privately owned and are not managed by CDID #1. 

• Off-site privately owned ditch. This ditch is located near the northwest corner of the former 

Reynolds Metals Company facility (Reynolds facility). It conveys flow into Ditch 14 at a point just 

north of the Closed BMP Facility. 

• Outfall OOZA. This is a 30-inch outfall to the Columbia River that discharges treated water 

received from Facility 73 (the site's stormwater treatment system) and treated wastewater from 

Facility 71 (the site's wastewater treatment system). Typical flow rates through the outfall are 

currently less than 2,000 gallons per minute. The maximum flow rate is 14,000 gallons per 

minute. 

4.2.4.2 Columbia River and Cowlitz River Floodplain 

The project area is in the right bank floodplain of the Columbia River approximately 5 miles 

downstream of the confluence of the Cowlitz River and the Columbia River. Longview and Kelso 

were developed on the floodplain of the Columbia and Cowlitz Rivers. The majority of the project 

area is located behind the CDID #1levee that is operated and maintained by CDID #1. The average 

elevation of the project area is 13.9 feet North American Vertical Datum of 1988 (NAVD88) 

(16.4 feet Columbia River Datum), and the levee averages 33.9 feet NAVD88 (36.4 feet Columbia 

River Datum) (Anchor QEA 2014). The portion of the project area waterward of the CDID #1levee is 

within the floodway of the Columbia River. Construction and operational changes associated with 

the proposed new docks and trestle would occur on the river side of the existing levee system, 

where the floodplain is constrained by the levee alignment. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-12 Aprl\2017 
172 


31623.103

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

CDID #1 operates the slough, ditch, and drain system several feet lower than the low-flow elevation 

of the Columbia River throughout the year. This strategy provides necessary stormwater storage 

capacity and allows the pump system to maximize the flood control potential of the levee's interior 

drainage. The combined capacity of the seven CDID #1 pump stations (a total of 19 pumps) is 

700,000 gallons per minute. These pump stations are instrumental in removing stormwater and 

preventing local and area-wide flooding. The need for this pumping capacity is apparent when 

considering that 1 inch of rainfall on the 16,000-acre watershed is equivalent to 434 million gallons 

of water. For example, during a 1986 storm event, removal of 4.8 inches of rain deposited required 

54 hours of continuous pumping. 

The Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM) identifies 

the project area landward of the COlD #1levee as Zone X- Other Flooded Areas (Figure 4.2-4) 

(Federal Emergency Management Agency 2015). Zone X- Other Flooded Areas is described by 

FEMA as follows. 

Areas between limits of the 100-year flood and 500-year flood; or certain areas subject to 100-year 

flooding with average depths less than one [1) foot or where the contributing drainage area is less 

than one square mile; or areas protected by levees from the base flood [Medium shading). 

The FEMA FIRM maps the COlD #1levee and areas waterward of the project area Zone X- Other 

Areas (Figure 4.2-4) (Federal Emergency Management Agency 2015). Zone X- Other Areas is 

described by FEMA as follows. 

Areas determined to be outside the 500-year floodplain; 

The current FIRM delineates the project area in "medium shading" and maps the current levee that 

protects the area. 

Flooding at the project area is expected to be minimal under existing conditions. Events that could 

cause flooding would include pump station failures, precipitation events that exceed pumping 

capacity, levee failure, and levee overtopping. 

The portions of the project area located waterward of the levee are within the floodway. The project 

area improvements would need to consider the flood inundation limits and velocities for this 

condition. 

4.2.5 Impacts 

This section describes the potential direct and indirect impacts related to surface waters and 

floodplains that would result from construction and operation of the Proposed Action and the NoAction Alternative. All wastewater and stormwater generated in the project area and potentially 

discharged from the project area after treatment would be evaluated and characterized by the state. 

Once the water to be discharged has been accurately evaluated and characterized by the state, the 

specific standards for water discharged from the project area would be defined and the type of 

NPDES permit would be determined and issued. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-13 April2017 

31623.104

Cowlitz County 

Washington State Department of Ecology 

Figure 4.2-4. FEMA Flood Insurance Rate Map for the Proposed Action 

'!'i'!"" i;;; !;;;.;;;;;;.!, 

.i.!i ···==;'!'ii ;•;;;;;;Hm,;; m; !!H ,,:m-mmr m.m; ;;,;;;m. :;:;; ,;;.;;;; i!!"i::: ;;,;,,;. ;,.,,;;; 

Millennium Bulk: Terminals-Longview 

Final SEPA Environmental Impact Statement 

Chapter 4. Natur

Existing Conditions, 

and Proposed Mitig
174 


31623.105

Chapter4. Natura! Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.2.5.1 Proposed Action 

This section describes the potential impacts that could occur in the study areas as a result of 

construction and operation of the Proposed Action. The Applicant identified the following best 

management practices to be implemented; these were considered when evaluating potential 

impacts of the Proposed Action. 

BMP C107: Construction Road/Parking Area Stabilization. Roads, parking areas, and other 

on-site vehicle transportation routes would be stabilized to reduce erosion caused by 

construction traffic or runoff. 

The following were identified by the Applicant as actions that would be implemented during 

construction andfor operations. 

• Based on site grading and drainage areas, five water quality ponds (Wetponds) would treat 

runoff based on Ecology's requirements. In general, the ponds are sized for treatment of the 

volume and flow from the water quality design storm event (72% of the 2-year storm). 

Additional storage would be provided within the coal storage area so that the runoff is always 

treated within the stockyard area, even for larger storm events. The ponds are designed to 

provide settlement as the water passes through. Subsequently, water released from these ponds 

would be conveyed downstream to the existing pump station Outfall 002A that discharges into 

the Columbia River via an existing 30-inch steel pressure line. The ponds that treat runoff from 

the coal stockyard would harvest water for circulation around the project area for multiple uses, 

including dust-control measures. 

Ecology's criteria would be used as the basis of design, which uses the Western Washington 

Hydrology Model computer simulation for facility sizing. Because of the project area's flat 

nature, some surface ponding would occur in both the yard areas and open conveyance systems. 

The piped conveyance systems would be sloped at a 0.50% minimum. 

• Additional water storage would be provided in the coal storage area in the event of a larger 

storm event. Water volumes exceeding the demands for reuse would be discharged off site via 

the existing Outfall 002A into the Columbia River. Water released off site would be treated and 

would meet the requirements of Ecology and required discharge permits. 

Construction activities that could affect surface water and floodplains include the following. 

• Disturbance of surface soils during construction of the coal export terminal. 

Redirection of drainage and sheet flow during construction. 

• Removal of vegetation from leveed floodplain. 

Operational activities that could impact surface water and floodplains include the following. 

• Use of water from rainfall runoff and on-site wells for dust suppression, washdown water, and 

fire-protection systems. 

• Redirection of stormwater via a new pump station. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-15 Apri12017 
175 


31623.106

Cowl!tz County 

Washington State Department of Ecology 

Construction-Direct Impacts 

Chapter 4, Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). Construction-related activities at the project area that could affect surface water 

and floodplains include the following. 

• Preparing the project area and preloading the coal stockpile areas. 

• Regrading the project area to drain toward specific collection areas. 

• Constructing the rail loop. 

• Installing coal processing equipment (unloading facilities, transfer towers, conveyors). 

• Constructing offices, maintenance buildings, and other structures. 

• Constructing water-management and storage facilities. 

• Constructing Docks 2 and 3 and removing existing pile dikes. 

Alter Drainage from Heavy Equipment and Staging Areas 

The placement of heavy equipment and establishment of on-site staging areas could redirect 

sheetflow and potentially lead to localized flooding on or off site. Redirection of sheetflow has 

the potential to create rivulet and gully flow across bare soil, which could result in erosion and 

introduce sediment to the surrounding drainage channels and basins. Introduction of increased 

sediment loads to the drainage system could change the sediment deposition and transport 

characteristics of that system, resulting in potential changes in downstream channel 

morphology, including a reduction in channel sinuosity (i.e., channel bends and meanders) and 

storage, increased channel gradient, and reduced pool depth. The potential for localized flooding 

and increased erosion from redirected sheet flow increases with higher density of heavy 

equipment placement on site. This could result in the need for additional channel maintenance. 

However, this is unlikely because the Applicant must comply with erosion and sediment control 

best management practices and the requirements of the NPDES Construction Stormwater 

Permit, which would be obtained for the Proposed Action, would avoid and minimize potential 

impacts during construction. All measures would also be monitored to ensure effectiveness. 

Weekly inspection and an inspection within 24 hours of a rain event would be required under 

the NPDES Construction Stormwater Permit. The inspections must be performed by a Certified 

Erosion and Sediment Control Lead. 

Decrease Floodplain Floodwater Retention 

Site preparation would require clearing of vegetation within a Zone X flood zone. However, 

because the project area is protected by levees, it does not currently function as a floodplain. 

Vegetation that would be removed from the project area does not currently contribute to the 

Columbia River floodplain's ability to retain or absorb floodwaters. Activities that occur 

landward of the levee would not modify conditions in the Columbia River. Thus, no decrease in 

the ability of the Columbia River to retain floodwaters within the floodplain would result from 

constructing the Proposed Action. 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.2-16 April2017 
176 


31623.107

Cowlitz County 

Washington State Department of Ecology 

Temporarily Increase Turbidity and Affect Benthic Habitat 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The Columbia River would be permanently altered and benthic (i.e., river bottom) habitat 

removed by the placement of piles. A total of 610 of the 630 36-inch-diameter steel piles 

required for the trestle and docks would be placed below the ordinary high water mark, 

permanently removing an area equivalent to 0.10 acre (4,312 square feet) of benthic habitat 

(Refer to Section 4.7, Fish, for further information regarding impacts on benthic habitat). 

Creosote-treated piles would be removed from the deepest portions of two existing timber pile 

dikes (Figure 4.2-4).ln total, approximately 225linear feet of the pile dikes would be removed. 

Removal of creosote-treated piles would result in a temporary increase in turbidity and would 

temporarily affect benthic habitat. Refer to Sections 4.5, Water Quality, and 4.7, Fish, for further 

information regarding impacts on water quality and fish, respectively. 

Use Water for Construction 

Construction of the Proposed Action would use water from rainfall runoff and on-site 

groundwater wells for dust suppression, washdown water, and fire-protection systems. This 

would be regulated under the NPDES Construction Stormwater Permit. Rainfall would be 

collected and treated and either stored in a detention pond to be constructed as part of the 

Proposed Action, or discharged to the Columbia River through the existing Outfall 002A. If 

stormwater is collected and used for industrial beneficial use (such as dust control), a Water 

Rights Permit would be required in accordance with RCW 90.03. The Proposed Action would not 

withdraw water from the Columbia River or other surface waters in the study area to meet 

construction water demands. Thus, no impacts on surface water and floodplains are anticipated 

related to water needs or use during construction. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on surface waters or 

floodplains because construction of the coal export terminal would be limited to the project area. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Use Water for Operations 

Operations of the Proposed Action would use water from rainfall runoff and on-site 

groundwater wells for dust suppression, washdown water, and fire-protection systems. Rainfall 

would be collected and treated and either stored in a detention pond to be constructed as part of 

the Proposed Action, or discharged to the Columbia River through the existing Outfall 002A. The 

Proposed Action would not withdraw water from the Columbia River or other surface waters in 

the study area to meet operations water demands. Thus, no impacts on surface water and 

floodplains are anticipated related to water needs or use during operations. 

Alter Water Collection and Discharge 

Currently, stormwater runoff at the project area is managed by infiltration or evaporation and 

by a complex stormwater collection and treatment system in conformance with the Applicant's 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2·17 Apri12017 
177 


31623.108

Cowlitz County 

Washington State Department of Ecology 

Chapter4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

existing NPDES permit (WA-000008-6). The NPDES system includes 12 stormwater basins and 

five outfalls that the Applicant manages under its NPDES permit, which discharge to the 

Columbia River. The existing stormwater collection and treatment system configuration would 

not adequately serve the needs of the future conditions resulting from the Proposed Action. The 

Proposed Action would develop a water management system, including capture of stormwater 

from the project area, separate from the existing stormwater management system and isolated 

from it. Information on stormwater is included in Section 4.5, Water Quality. 

If storm water is collected and used for industrial beneficial use (such as dust control), a Water 

Rights Permit would be required in accordance with RCW 90.03. The project water management 

system would collect all stormwater and surface water (washdown water) from the stockpile 

areas, the rail loop, office areas, the dock and other paved/impervious surface areas at the 

project area and direct these waters to a series of vegetated ditches and ponds, then to a 

collection basin or sump. Similar to existing conditions, collected water would be pumped to an 

existing on-site treatment facility consisting of settling pond(s) with a flocculent addition to 

promote settling as needed. Chemical treatments must be identified as part of the NPDES permit 

process. Treated water would be pumped to a surface storage pond for reuse to support 

operations, or, if storage is not necessary, the excess treated water would be discharged to the 

Columbia River via Outfall 002A in accordance with the NPDES permit limits. 

Discharge Less Water to CDID #1 Ditches 

Basins 2, 3, and 5 of the existing water management system at the project area currently 

discharge to CDJD #1 drainage ditches. Once constructed, most of the project area would no 

longer drain to the CDJD #1 ditches, with the exception of a portion of the access overpass and 

frontage improvements, which would continue to drain to the ditches. All stormwater and 

excess dust suppression water within the footprint of the project area would be collected, 

conveyed, treated, and either stored on site for reuse or discharged to the Columbia River. The 

ditches would remain as they exist today. Therefore, no negative impacts on the CDID #1 ditches 

would occur under the Proposed Action. However, less water would be discharged to the ditches 

from the project area. As discussed below, this could have a beneficial indirect impact on the 

CDJD #1 ditches. 

Instigate Flooding from Interior Drainage System Failure 

A new pump station and 18-inch outfall line is proposed to convey stormwater from the project 

area to the existing Facility 77 sump, and then all waters from the project area would go through 

Facility 73. 

Failure of the interior drainage pumps could result in flooding of Basin 3A. However, 

redundancy would be built into the system to avoid flooding associated with pump failure, i.e., 

interior drainage pumps would have backup systems. Thus, the potential that both systems 

would fail simultaneously would be low. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-18 April2017 
178 


31623.109

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Modifications to the existing water management system would be unlikely to have any measurable 

impact on the Columbia River. The Columbia River is a single receiving water with a mean annual 

discharge of 171.4 million acre-feet per year (55.85 trillion gallons per year).1 The proposed 

changes to the volume and velocity of surface water discharged to the Columbia River associated 

with the Proposed Action would be negligible within the Columbia River. Annual discharge to the 

river is estimated to decrease from 276 million to 138.5 million gallons per year, which would 

equate to a decrease in average annual flow in the Columbia River of 0.0000025 (2.5 • 10·6%). A 

decrease in flow of this magnitude would essentially be undetectable in the lower Columbia River. 

The CD!D #1 ditches are much smaller than the Columbia River; therefore, changes to the volume of 

surface water discharged from the project area could potentially have a measurable effect on the 

capacity of the ditches. However, the proposed changes would reduce flow to the ditches from 

88 million to 26.3 million gallons per year. This could be beneficial to the ditches because there 

would be additional capacity for drainage. As mentioned in Section 4.2.4.2, Columbia River and 

Cowlitz River Floodplain, the combined capacity of the CD!D #1 pump stations is 700,000 gallons per 

minute. These pump stations are instrumental for removing stormwater and preventing local and 

area-wide flooding. Any reduction in discharge to the CDID #1 ditch system could provide a benefit 

during significant rain events. 

4.2.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not construct the coal export terminal and 

impacts on surface waters and floodplains related to the Proposed Action would not occur. The 

Applicant would continue with current and future increased operations in the project area. The 

project area for the Proposed Action could be developed for other industrial uses including an 

expanded bulk product terminal or other industrial uses. 

No activities that would require a U.S. Army Corps of Engineers (Corps) permit or shoreline permit 

would occur as part of the No-Action Alternative; thus no impacts on surface waters or floodplains 

would occur. New construction, demolition, or related activities to develop the project area into an 

expanded bulk terminal could occur on previously developed upland portions of the area. 

Additionally, the quantity of impervious surface could change but drainage patterns would be 

similar to existing conditions. Any new or expanded industrial uses that could substantially alter 

drainage patterns would trigger a new NPDES permit or modification to the permitting process. 

Impacts related to being located in a Zone 8 flood zone would be similar to those stated for the 

Proposed Action. 

1 U.S. Geological Station 14246900 Columbia River at Beaver Army Terminal, near Quincy, Oregon: Average 

Discharge for Period of Record, 23 years (water years 1969, 1992-2013). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.2·19 April2017 
179 


31623.110

Cowlitz County 

Washington State Department of Ecology 

4.2.6 Required Permits 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The Proposed Action would require the following permits for surface waters and floodplains. 

• Shoreline Substantial Development Permit-Cowlitz County Department of Building and 

Planning. The Proposed Action would result in new development in the shoreline area 

regulated by the Washington State Shoreline Management Act and Cowlitz County Shoreline 

Master Program (Cowlitz County 2012). Therefore, the Proposed Action would require a 

Shoreline Substantial Development Permit. This permit is administered by the Cowlitz County 

Department of Building and Planning. 

• Critical Areas Permit-Cowlitz County Department of Building and Planning. The 

Proposed Action would result in development in designated critical areas because the project 

area contains a frequently flooded area, an erosion hazard area, and a critical aquifer recharge 

area. Therefore, it would require a Critical Areas Permit from the Cowlitz County Department of 

Building and Planning. 

• Floodplain Permit- Cowlitz County Building and Planning. A floodplain permit would be 

required from Cowlitz County to address development in any areas designated as Frequently 

Flooded Areas. 

• Clean Water Act Section 401-Washington State Department of Ecology. An Individual 

Water Quality Certification from Ecology under Section 401 of the Clean Water Act would be 

required for construction of the Proposed Action. 

• NPDES Construction Storm water Permit-Washington State Department of Ecology. A 

Construction Storm water Permit would be required from Ecology to address erosion control 

and water quality during construction. All wastewater and stormwater generated in the project 

area and potentially discharged from the project area after treatment would be evaluated and 

characterized by the state. Once the water to be discharged has been accurately evaluated and 

characterized by the state, the specific standards for water discharged from the project area 

would be defined and the type of NPDES permit would be determined and issued. 

• NPDES Industrial Storm water Permit-Washington State Department of Ecology. An 

Industrial Stormwater Permit would be required from Ecology for discharge of industrial use 

water during operations. All wastewater and stormwater generated in the project area and 

potentially discharged from the project area after treatment would be evaluated and 

characterized by the state. Once the water to be discharged has been accurately evaluated and 

characterized by the state, the specific standards for water discharged from the project area 

would be defined and the type of NPDES permit would be determined and issued. 

• Water Rights-Washington State Department of Ecology. If storm water is collected and 

reused for beneficial industrial reuse, a Water Right Permit would be required in accordance 

with RCW 90.03. 

• Hydraulic Project Approval-Washington Department ofFish and Wildlife. The Proposed 

Action would require a hydraulic project approval from WDFW because project elements would 

affect the Columbia River. 

• Clean Water Act Authorization, Section 404-U.S. Army Corps of Engineers. Construction 

and operation of the Proposed Action would affect waters of the United States, including 

wetlands. Department of Army authorization by standard individual permit would be required. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2·20 April 2017 
180 


31623.111

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

• Rivers and Harbors Act-U.S. Army Corps of Engineers. Construction and implementation 

of the Proposed Action would affect navigable waters of the United States (i.e., the Columbia 

River). The Rivers and Harbors Act authorizes the Corps to protect commerce in navigable 

streams and waterways of the United States by regulating various activities in such waters. 

Section 10 of the RHA (33 USC 403) specifically regulates construction, excavation, or 

deposition of materials in to, over, or under navigable waters, or any work that would affect the 

course, location, condition, or capacity of those waters. 

4.2. 7 Proposed Mitigation Measures 

Impacts resulting from the Proposed Action on surface waters and floodplains are considered low 

and would not necessitate proposed mitigation that exceeds the minimum requirements specified 

by applicable laws and regulations. 

4.2.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the mitigation and design features described above 

would reduce impacts on surface waters and floodplains. There would be no unavoidable and 

significant adverse environmental impacts on surface waters and floodplains. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.2-21 April2017 
181 


31623.112

Cowlitz County 

Washington State Department of Ecology 

4.3 Wetlands 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Wetlands provide natural beauty, as well as functions and values that sustain the health of human 

and natural communities. They can form a regularly saturated transition between surface waters 

and uplands. These wet soils support a diversity of plants and animals that are adapted to these 

conditions. 

For the purposes of this assessment, wetlands refer to areas that meet the federal definition of 

wetlands under the U.S. Army Corps of Engineers (Corps) Wetlands Delineation Manual 

(Environmental Laboratory 1987] as supplemented by the Regional Supplement to the Corps of 

Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region 

(Environmental Laboratory 2010). Wetlands were identified in the field between 2011 and 2013 by 

Grette Associates (Grette Associates 2014a, 2014b, 2014c, 2014d, 2014e, 2014f, and 2014g]. 

This section describes wetlands in the study area. It then describes impacts on wetlands that could 

result from construction and operation of the Proposed Action and under the No-Action Alternative. 

This section also presents the measures identified to mitigate impacts resulting from the Proposed 

Action. 

Impacts on ditches and storm water conveyance features or other waters are also presented as 

described in the Grette Associates documents referenced in Section 4.3.3.1, Information Sources. No 

determination of federal jurisdiction over these types of features is implied by their inclusion herein. 

The existing conditions and impacts within the Columbia River are assessed in Section 4.2, Surface 

Water and Floodplains. 

4.3.1 Regulatory Setting 

Laws and regulations relevant to wetlands are summarized in Table 4.3-1. This section is largely 

focused on wetlands as a subset of waters of the United States, and thus, subject to Section 404 of 

the Clean Water Act as described in Table 4.3-1. Ditches, channels, and stormwater conveyance 

features that qualify as waters of the United States are generally subject to the same Clean Water Act 

requirements. 

Table 4.3-1. Regulations, Statutes, and Guidelines for Wetlands 

Guideline 

Clean Water Act (33 USC 1251 et seq.) 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 

Section 401 (water quality certification) requires Water 

Quality Certification from the state for activities requiring 

a federal permit or license to discharge pollutants into a 

water of the United States. Certification attests the state 

has reasonable assurance the proposed activity will meet 

state water quality standards. Section 402 (33 USC 1342) 

establishes the NPDES program, under which certain 

discharges of pollutants into waters of the United States 

are regulated. Section 404 regulates the discharge of 

dredged or fill material into waters of the United States, 

including jurisdictional wetlands. 

4.3-1 April2017 
182 


31623.113

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

State 

Washington State Shoreline Management 

Act (RCW 90.58) 

Hydraulic Code Rules 

(RCW 77.55, WAC 220-660) 

Cowlitz County Critical Areas Ordinance 

(19.15] 

Cowlitz County Shoreline Master 

Program (19.20) 

Notes: 

Description 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Requires cities and counties, in partnership with Ecology, 

(through their SMPs] to protect shoreline natural 

resources against adverse impacts. 

Issued by WDFW for projects with elements that may 

affectthe bed, bank, or flow of a water of the state or 

productive capacity of fish habitat. Considers effects on 

riparian and shoreline/bank vegetation in issuance and 

conditions of the permit, including for the installation of 

piers, docks, pilings and and crossings of 

and rivers 

Regulates activities within and adjacent to critical areas 

including vegetation occurring in wetlands and their 

buffers, fish and wildlife habitat conservation areas 

(including streams and their buffers], frequently flooded 

areas, and geological hazard areas. 

Regulates development in the shoreline zone, including 

the shoreline of the Columbia River, a Shoreline of 

Statewide Significance. 

USC= United States Code; NPDES =National Pollutant Discharge Elimination System; RCW =Revised Code of 

Washington; SMP =Shoreline Management Program; WAC= Washington Administrative Code; 

WDFW =Washington Department ofFish and Wildlife 

4.3.2 Study Area 

The study area for direct impacts on wetlands is the project area (Figure 4.3-1). The study area for 

indirect impacts is the project area and the immediate vicinity, where wetlands might be affected by 

construction or operation of the proposed export terminal. 

4.3.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts on wetlands associated with the construction and operation of the Proposed Action and 

No-Action Alternative. 

4.3.3.1 Information Sources 

The following sources of information were used to identify the potential impacts of the Proposed 

Action and No-Action Alternative on wetlands in the study area. 

• Two reconnaissance level site visits conducted by ICF wetland biologists on AprilS and 

December 11, 2014, to view the areas determined to be wetland by Grette Associates. 

• Reports prepared by Grette Associates and provided by the Applicant as part of the permit 

application materials. 

o Coal Export Terminal Wetland and Stormwater Ditch Delineation Report-Parcel 619530400 

and associated appendices (Grette Associates 2014a) 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-2 April2017 
183 


31623.114

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

o Bulk Product Terminal, Wetland and Stormwater Reconnaissance Report-Parcel 10213 

(Grette Associates 2014b) 

o Bulk Product Terminal Wetland and Stormwater Ditch Delineation Report-Parce/61953 

(Grette Associates 2014c) 

o Coal Export Terminal Wetland Impact Report-Parce/619530400 (Grette Associates 2014d) 

The Grette Associates documents report the presence of field-delineated wetlands in the study area 

using the Regional Supplement to the U.S. Army Corps of Engineers Wetland Delineation Manual: 

Western Mountains, Valleys, and Coast Region Version 2.0 (U.S. Army Corps of Engineers 2010). 

Wetlands were classified by vegetation type using the U.S. Fish and Wildlife Classification of 

Wetlands and Deep Water Habitat (Cowardin et al. 1979). The regulatory category of wetlands in 

Washington State is determined per the Washington State Department of Ecology (Ecology] 

Washington State Wetland Rating System for Western (or Eastern] Washington (Rating System], as 

applicable (Hruby 2006]. 

The category and functions of wetlands were evaluated using the Rating System. Functions 

evaluated included water quality functions (the ability to filter sediment and pollutants), habitat 

functions (a place for plants and animals to live and grow), and hydrologic functions (the interaction 

between ground or surface water and the landscape]. Based on the Rating System, wetlands are 

rated as providing low, moderate, or high functions depending on the following characteristics. 

• The ability to retain water for sufficient periods to filter out pollutants. 

How diverse the wetlands vegetation and structure is to provide wildlife habitat and its 

connectivity to other wetlands or upland habitat 

The position of the wetland in the landscape relative to its ability to store and retain surface 

water (i.e., the wetland's ability to act as a natural sponge to store water to prevent flooding and 

to gradually release water back to streams and other aquatic areas). 

The ability to prevent erosion caused by moving water. 

Information regarding the existing conditions relative to ditches and stormwater conveyance 

features or other waters is presented in Section 4.2, Surface Water and Floodplains. 

4.3.3.2 Impact Analysis 

The following methods were used to evaluate the potential impacts of the Proposed Action and 

No-Action Alternative on wetlands. For direct impacts, the analysis assumes best management 

practices would be incorporated into the design, construction, and operation of the proposed coal 

export terminal. 

All quantitative and qualitative impacts on wetlands are summarized as described in the Grette 

Associates documents referenced in Section 4.3.3.1, Information Sources. Direct construction 

impacts on wetlands were reported for wetlands in the project area. All wetlands within the project 

area were considered permanently affected, because most would be replaced with gravel pads, 

stockpiles, railroad tracks, buildings, pavement, and other project features. Direct wetland impacts 

would be mitigated consistent with current federal, state, and local mitigation requirements. 

Impacts on ditches, storm water conveyance features or other waters are also summarized. No 

determination of federal jurisdiction over these types of features is implied by their inclusion herein. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-3 April2017 
184 


31623.115

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.3.4 Existing Conditions 

Wetlands, as defined by the Corps' wetland delineation manual (Environmental Laboratory 1987, 

2010) are "those areas that are inundated or saturated by surface or ground water at a frequency 

and duration sufficient to support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions." 

The Washington State Growth Management Act defines wetlands as: 

areas that are inundated or saturated by surface or groundwater at a frequency and duration 

sufficient to support, and that under normal circumstances do support, a prevalence of vegetation 

typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, 

bogs, and similar areas. Wetlands do not include those artificial wetlands intentionally created from 

nonwetland sites, including, but not limited to, irrigation and drainage ditches, grass-lined swales, 

canals, detention facilities, wastewater treatment facilities, farm ponds, and landscape amenities, or 

those wetlands created after July 1, 1990, that were unintentionally created as a result of the 

construction of a road, street, or highway. Wetlands may include those artificial wetlands 

intentionally created from nonwetland areas to mitigate the conversion of wetlands. (RCW 

36.70A.030) 

To identify areas that meet the wetland definition per the Corps wetland delineation manual 

(Environmental Laboratory 1987), scientists look for specific field characteristics of soil, hydrology 

(i.e., flooding, ponding, or groundwater saturating the soil), and vegetation that indicate an area is a 

wetland. Indicators of all three conditions (soil, hydrology, and vegetation) must be present for an 

area to be considered a wetland. 

Approximately 26.93 acres of wetlands were identified in the study area. The distribution of 

wetlands in the study area is shown in Figure 4.3-1. Wetlands in the study area are identified using 

letters. Table 4.3-2 summarizes the wetlands by their location, vegetation classification, 

hydrogeomorphic classification (i.e., where the wetland fits on the landscape position and associated 

hydrology), regulatory category, and acreage. Regulatory category refers to the system of ascribing a 

ranked regulatory protection category from one to four (I to IV) to wetlands based on their 

functions, as derived from the Washington State Wetland Rating System for Western Washington 

(Hruby 2006). Category I wetlands have the highest level of function, are afforded the widest 

buffers, and impacts on such wetlands require the largest amount of compensatory mitigation. 

Category IV wetlands have the lowest level of function, are afforded more narrow buffers, and 

impacts on such wetlands require a lower amount of compensatory mitigation. 

All wetlands in the study area are considered depressional from a hydro geomorphic classification 

perspective; i.e., a classification based on where the wetlands occur on the landscape and their 

resulting physical characteristics. 

Additional wetlands outside of the direct and indirect impacts study areas were delineated in the 

Applicant's leased area. These wetlands are shown in Figure 4.3-1 and listed in Table 4.3-3. 

Under the Cowardin system, wetlands are classified by dominant vegetation. For example, wetlands 

can be classified as forested (woody plants over 20 feet tall), scrub-shrub (woody plants up to 

20 feet tall), or emergent vegetation (non-woody plants like grasses, sedges, rushes, and herbaceous 

flowering plants). Individual wetlands can comprise more than one vegetation type. Wetlands in the 

study area are organized by Cowardin vegetation classification. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-4 April2017 
185 


31623.116

Cowlitz County 

Washington State Department of Ecology 

Figure 4.3·1. Wetlands in the Study Area 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 

:::;:::;:·:;-"·"*' 

4.3-5 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Apri!Z017 
186 


31623.117

Cowlitz County 

Washington State Department of Ecology 

Figure 4.3-la. Wetlands in the Study Area-North 

r··········:j,;;.'l:;:;,;,.,fr.L,e;rn-ri';!;r,•;! 

El·::, ........ ,,"''''"·''"''''"······•'" 

Millennium Bulk Termlnals-Longvlew 

Final SEPA Environmental Impact Statement 4.3-6 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

April 2017 
187 


31623.118

Cowlitz County 

Washington State Department of Ecology 

Figure 4.3-lb. Wetlands in the Study Area-West 

=~ 

.: .. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental impact Statement 4.3-7 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

April2017 
188 


31623.119

Cowlitz County 

Washington State Department of Ecology 

Figure 4.3-lc. Wetlands in the Study Area-East 

;!!!!!!!!!!!!!!!!!!::.. ············-····-······················ ... ··-

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.3-8 

Chapter 4. Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

April2017 
189 


31623.120

Cowlitz County 

Washington State Department of Ecology 

Table 4.3-2. Wetlands Identified in the Study Area 

Wetland Location (Parcel) 

A 619530400 

c 619530400 

y 

z 

P2 

Total 

Notes: 

619530400 

619530400 

619530400 

Cowardin Classification• 

PFO 

PEM/PFO 

PEM/PSS 

PEM 

PEM 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

HGM Classification• Category< Area (acres)• 

Depressional Ill 6.28 

Depressional Ill 3.38 

Depressional HI 3.40 

Depressional HI 11.22 

Depressional IV 2.65 

26.93 

a Coward in classification per Classification of Wetland and Deepwater Habitats of the United States (Cowardin et al. 

1979). Values include PFO =palustrine forested; PSS =palustrine scrub~shrub; and PEM =palustrine emergent 

b Hydrogeomorphic (HGM) classification per the Washington State Wetland Rating System for Western Washington 

(Hruby 2006). 

c Wetland category determined by Grette Associates using the Washington State Wetland Rating System For Western 

Washington (Hruby 2006). 

d Acreages as reported by Grette Associates 2014 a, b, c. 

Table 4.3-3. Wetlands Outside the Study Areas in the Applicant's Leased Area 

Wetland Location (Parcel) Cowardin Classification• HGM Classification• Category' Area (acres)• 

D 61953 PEM/PSS Depressional HI 5.43 

E 61953,61954 PEM Depressional HI 9.46 

F 61953 PEM Depressional III 0.45 

G 61953 PSS Depressional III 2.60 

H 61953 PEM Depressional III 0.24 

X 61950 PSS Riverine III 0.44 

AS1 10213 PEM Depressional III 8.86 

AS2 10213 PEM Depressional IV 0.94 

AS3 10213 PEM Depressional IV 0.12 

AS4 10213 PEM Depressional III 0.02 

NW1 10213 PEM Depressional III 1.38 

NW2 10213 PEM Depressional III 0.50 

NW3 10213 PFO Depressional IV 0.19 

NW4 10213 PSS/PFO Depressional IV 0.05 

NE1 10213 PEM Depressional III 29.48 

LW1• 10213 PEM/PFO/PSS Depressional HI 

LW2• 10213 PFO Depressional III 

LW3• 10213 PFO Depressional III 

Total 60.16 

Notes: 

Cowardin classification per Classification of Wetland and Deepwater Habitats of the United States (Cowardin et al. 

1979). Values include PFO =palustrine forested; PSS =palustrine scrub~shrub; and PEM::: palustrine emergent 

b Hydrogeomorphic (HGM) classification per the Washington State Wetland Rating System For Western Washington 

(Hruby 2006). 

' Wetland category determined by Grette Associates using the Washington State Wetland Rating System For Western 

Washington (Hruby 2006). 

d Acreages as reported by Grette Associates 2014 a, b, c. 

e These wetlands correspond to the three areas on Parcel10213 that Grette Associates identified as likely wetland areas. 

Grette Associates did not report acreages For these areas. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-9 April2017 
190 


31623.121

Cowlitz County 

Washington State Department of Ecology 

4.3.4.1 Forested Wetlands 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Approximately 6.28 acres of forested wetland occur in the study area as Wetland A. (Figure 4.3-1). 

This wetland is depressional and supported primarily by high groundwater and direct precipitation. 

Common plant species observed in the forested wetland include a predominately native overstory of 

black cottonwood (Populus trichocarpa ssp. balsamifera), Pacific willow (Salix Iucida), red alder 

(Alnus rubra), and Oregon ash (Fraxinus latifo/ia) trees, overlying a shrub layer dominated by 

salmonberry (Rubus spectabilis) and nonnative Himalayan blackberry (Rubus armeniacus). Reed 

canarygrass (Phalaris arundinacea), an invasive grass, is the common herbaceous plant. 

4.3.4.2 Emergent/Forested Wetlands 

Approximately 3.38 acres of emergent/forested wetlands occur in the study area as Wetland C 

(Figure 4.3-1). This wetland is depressional and supported primarily by high groundwater and 

direct precipitation. The emergent portion of the wetland is dominated by reed canarygrass. 

Common plant species observed in the forested portion include a predominately native overstory of 

black cottonwood, Pacific willow, red alder, and Oregon ash trees, overlying a shrub layer dominated 

by salmonberry and nonnative Himalayan blackberry. 

4.3.4.3 Emergent/Scrub-Shrub Wetlands 

Approximately 3.40 acres of emergent/scrub-shrub wetland occur in the study area as Wetland Y. 

Wetland Y is located north of the closed Black Mud Pond facility, and is the only wetland in the direct 

impacts study area that extends outside of the study area (Figure 4.3-1). This wetland is 

depressional and supported primarily by high groundwater and direct precipitation. The scrubshrub component is dominated by Himalayan blackberry, red osier dogwood (Corn us sericea), 

Douglas spirea (Spiraea douglasil), and narrowleaf cattail (Typha angustifo/ia). The emergent 

component is dominated by reed canarygrass and an unidentified bryophyte; some nonnative 

narrowleaf cattail is also present 

4.3.4.4 Emergent Wetlands 

Approximately 13.87 acres of emergent wetland occur in the study area as Wetlands Z and PZ 

(Figure 4.3-1). These wetlands are depressional and supported primarily by high groundwater and 

direct precipitation. Wetland Z is dominated by reed canarygrass and soft rush Uuncus effusus) and 

contains several brush piles left over from past clearing activities. Wetland PZ is also dominated by 

reed canarygrass and soft rush. 

4.3.4.5 Wetland Ratings and Functions 

The wetlands in the study area were rated as either Category III or Category IV based on their 

generally low to moderate level of function (Grette 2014a, 2014c). Wetlands A, C, Z, Y and PZ 

generally provide low to moderate water quality, habitat, and hydrology functions (Grette 2014a). 

These wetlands filter out sediment from stormwater runoff and retain stormwater and overland 

flow during heavy rain events. Some of the wetlands also provide pollutant filtration and 

groundwater infiltration functions. Wildlife functions include habitat for large and small mammal 

foraging and cover; passerine, waterfowl, and raptor foraging and nesting; and amphibian foraging, 

breeding and refuge. Wetland Y provides the most potential to retain stormwater during heavy rain 

events due to its depth. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.3-10 Apri12017 
191 


31623.122

Chapter 4. Natural Environment: 

Cowlitz County Existin&: Condlttons, Project Impacts, 

Washington State Department of Ecology and Proposed Mlti&:atlon Measures 

4.3.4.6 Ditches and Stormwater Conveyance Features or Other Waters 

Ditches and storm water conveyance features present within the study area include the Interceptor 

Ditch/U Ditch, and several narrow stormwater ditches that cross through the study area (Figure 

4.3-1). These features, as well as the Columbia River, are described for the Proposed Action in 

Section 4.2, Surface Waters and Floodplains. 

4.3.5 Impacts 

The following impacts on wetlands could result from construction and operation or the Proposed 

Action and No-Action Alternative. 

4.3.5.1 Proposed Action 

The following sections describe the potential impacts to wetlands from construction and operation 

or the Proposed Action. 

Construction-Direct Impacts 

Construction would occur in the Columbia River and on currently developed and disturbed land 

adjacent to the Columbia River. Impacts would include permanent fill and conversion to upland, and 

temporary alteration of vegetation and habitat conditions. 

Permanently Fill Wetlands and Other Waters Resulting in Loss of Acreage 

Construction of the Proposed Action would result in the permanent loss of24.10 acres or 

wetlands (Table 4.3-4). Construction activities would permanently fill Wetlands A, C, Z, and P2 

and a portion of Wetland Y (Figure 4.3-2) (Grette Associates 2014d) to construct rail lines and 

coal handling facilities. Because the wetland would be permanently filled, there is no 

requirement for buffers. Construction or the Proposed Action would not directly affect wetlands 

north oflndustrial Way or the majority or wetlands atthe east end or the study area. 

Table 4.3-4. Wetland and Other Waters Impacts from the Proposed Action 

Wetland/Other Waters Cowardln Classification Category Impact Type 

A PFO Ill Fill 

c PEM/PFO Ill Fill 

y PEM/PSS Ill Fill 

z PEM Ill Fill 

P2 PEM IV Fill 

Total 

Notes: 

PFO = palustrine forested; PEM = palustrine emergent; PSS = palustrine scrub~shrub 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-11 

Impact Area 

6.28 

3.38 

0.57 

11.22 

2.65 

24.10 

Aprtl2017 
192 


31623.123

~ 

$ ill 

'" ~~. f j .~i: 

0 i :~ 

~~ ~~ ,;:. 

E ~~ ~~ 

l I :~ ;,; 

=~ ;~: .ll 

;:; f'-1 

§ In ~ 

3 I .:if 

~ 

:,';: 

~ "'" ] ::::. ~~ 

:g· j;: 

l~l 

:~ ·f~ 

g: l ·r~ !!~ ,,.. ~" 

~; fii l~ ~ 

:~ 

;i;: !~ ;;: 
193 


31623.124

CowUtz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

There are jurisdictional wetlands north of Industrial Way, which are outside the project area. 

These wetlands are considered Category lll and IV wetlands (Grette Associates 2014b ). The 

Cowlitz County Code (CCC) Critical Areas Ordinance 19.15.120.C (4)(a) requires buffers around 

wetlands, and buffers for Category lll and IV wetlands can range from 25 to 150 feet depending 

on the wetland function and land use intensity. However, CCC 19.15.120.C (4)(a) does not 

require wetland buffers to extend beyond existing natural or human-made barriers (e.g., a paved 

road], which isolate the area of the wetland resource. Industrial Way serves as this human-made 

barrier for those off-site wetlands to the north of Industrial Way, and the associated buffers do 

not extend beyond that point Therefore, construction of the Proposed Action would not result 

in impacts on these adjacent wetland buffers (Grette Associates 2014d). 

In addition, construction would permanently fill5.17 acres of ditches that convey stormwater 

runoff (Grette Associates 2014d], including the eastern half of the lnterceptorfU Ditch, portions 

of the ditch along the south edge of Industrial Way on the BPA parcel, and interior drainage 

ditches (Grette Associates 2014d). Refer to Section 4.2, Surface Water and Floodplains, for more 

information on ditches and other surface waters. 

Permanent Loss of Wetland Functions 

Placement of fill material to construct the proposed coal export terminal would result in the 

permanent total loss of wetland functions across 24.10 acres of wetlands (Table 4.3-4 ). The 

functions most affected would be water quality and wildlife habitat, as evidenced by the rating 

system scores for the affected wetlands (Grette Associates 2014d). Wetland scores for the 

Category lii wetlands are highest for the water quality and wildlife habitat functions. Wetland 

scores for Wetland P2 (the only Category IV wetland) were low for all three functions. 

All water quality and hydrology functions would be lost from Wetlands A, C, Z, and P2, with a 

portion of those functions lost in Wetland Y. Construction of the Proposed Action would not 

displace water into surrounding areas, and stormwater runoff currently discharging into these 

wetlands would be redirected into an on-site stormwater treatment facility. Stormwater that 

currently discharges into Wetland Y through Outfall 005 would be rerouted to proposed 

stormwater facilities (refer to Section 4.2, Surface Water and Floodplains, for more information). 

However, since this is a minor source of hydrology compared with groundwater and surface 

water from ditches, it is expected that hydrology in the unfilled portion of Wetland Ywould not 

be affected (Grette Associates 2014d). 

While wetlands in the study area do provide some wildlife habitat, as described in Section 4.8, 

Wildlife, this function is limited (Grette Associates 2014d). Construction of the Proposed Action 

would destroy all habitat functions in filled wetlands. Construction would also destroy a 

forested portion of Wetland Y, which would reduce that wetland's habitat value from moderate 

to low. 

Construction-Indirect Impacts 

Construction of the Proposed Action would permanently fill 0.57 acre of Wetland Y, leaving 2.83 

acres of Wetland Y unfilled and intact. The primary indirect impact on this wetland would be the 

degradation or alteration of wetland functions. While other indirect impacts, such as 

sedimentation from stormwater runoff and fuel spills, could also occur, implementation of best 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3·13 April2017 
194 


31623.125

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

management practices, such as silt fencing, would be required by various federal, state, and local 

permits to minimize impacts. 

Alteration or Degradation of Wetland Functions 

Construction could alter or degrade wildlife and hydrologic functions in Wetland Y. These 

indirect impacts are expected to be minor given Wetland Y's low rating for each of these 

functions. Wildlife use would likely be slightly reduced due to a smaller habitat area. 

Additionally, Wetland Y would no longer have nearby habitat connectivity with Wetland A 

(which would be filled), further reducing Wetland Y's functionality. 

Wetland Y's hydrologic function is not expected to change much as a result of construction 

because it is located in a low area and hydrology is driven primarily by groundwater and 

precipitation. Temporary fluctuations in groundwater could occur during construction activities 

if any excavating activities take place near Wetland Y. However, if this impact were to occur it 

would be temporary, and Wetland Y's currently low hydrologic functional rating would not be 

significantly altered. Indirect construction impacts on water quality functions are unlikely 

because the wetland would be protected by adherence to a Stormwater Pollution Prevention 

Plan and NPOES Construction Stormwater Permit conditions. 

Operations-Direct Impacts 

The Proposed Action would have no direct impacts on wetlands during operations. 

Operations-Indirect Impacts 

Wetland Y vegetation would likely be affected by coal dust. The impact of coal dust on vegetation 

would depend on dust load, climatic conditions, and physical characteristics of the vegetation. 

Impacts could include blocked stomata, which would reduce respiration and for decrease 

transpiration; altered leaf surface reflectance and light absorption; and increased leaf 

temperature due to optical properties of the dust (Chaston and Ooley 2006; Ooley 2006:38; 

Farmer 1993). Section 4.6, Vegetation, and the SEPA Vegetation Technical Report (ICF 2017), 

summarize studies of the impacts of dust deposition on vegetation. Coal dust deposition is 

discussed further in Chapter 5, Sections 5.6, Air Quality, and 5.7, Coal Dust 

4.3.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not constructthe coal export terminal and 

would continue with current and future increased operations in the study area for the Proposed 

Action. The study area could be developed for other industrial uses including an expanded bulk 

product terminal or other industrial uses. If the study area is developed for another use, these 

activities may require permits from Ecology and the Corps. Wetlands would continue to provide 

functions as described in Section 4.3.4, Existing Conditions. 

4.3.6 Required Permits 

Permits to place fill in wetlands or other waters of the United States are required by federal, state, 

and local jurisdictions responsible for protecting waterways and water quality. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.3-14 April 2017 
195 


31623.126

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department and Proposed Mitigation Measures of Ecology 

Permits for the Proposed Action would likely include the following. 

• Clean Water Act Authorization, Section 404-U.S. Army Corps of Engineers. Construction 

and operation of the Proposed Action would affect waters of the United States, including 

wetlands. Department of the Army authorization from the Corps under Section 404 of the Clean 

Water Act would be required. 

• Clean Water Act Section 401 Water Quality Certification-Washington State Department 

of Ecology. An Individual Water Quality Certification from Ecology under Section 401 of the 

Clean Water Act and a National Pollution Discharge Elimination System permit under Section 

402 of the Clean Water Act would also be required for the Proposed Action. 

• Critical Areas Permit-Cowlitz County Department of Building and Planning. Development 

in designated critical areas, including wetlands, requires a Critical Areas Permit from the Cowlitz 

County Department of Building and Planning. 

Other permits and approvals not specific to wetlands may be required, but associated with the 

Proposed Action's location along the Columbia River, such as shoreline permits pursuant to the State 

Shoreline Management Act, Cowlitz County Shoreline Master Program, and City of Longview 

Shoreline Master Program. 

4.3.7 Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce and compensate for 

impacts related to wetlands from construction and operation of the Proposed Action. These 

mitigation measures would be implemented in addition to project design measures best 

management practices, and compliance with environmental permits, plans, and authorizations that 

are assumed as part of the Proposed Action. 

Wetlands mitigation falls under the jurisdiction of the Corps, Ecology, and Cowlitz County and will 

be coordinated through the National Environmental Policy Act (NEPA) and permitting processes. 

4.3.7.1 Applicant Mitigation 

The Applicant would implement the following measures to mitigate impacts on wetlands. 

MM WTL-1. Prepare a Comprehensive Mitigation Plan 

The Applicant will prepare a comprehensive mitigation plan in coordination with the Corps, 

Ecology, and Cowlitz County to address the impacts on the 24.1 acres of wetlands affected by 

placement of fill from the Proposed Action. The comprehensive mitigation plan will be prepared 

as part of the permitting process for the Proposed Action. The mitigation plan will address the 

general requirements for mitigation planning consistent with all current local, state, and federal 

guidance and regulations. These requirements must be met before applicable permits are 

issued. 

Mitigation actions may be implemented at one or several locations to ensure that the range of 

ecological functions are provided to offset identified, unavoidable project impacts and the types 

of wetland functions affected by the Proposed Action. The mitigation actions may include 

Applicant-sponsored (i.e., permittee-responsible) mitigation or use of credits from existing or 

proposed mitigation banks (Grette Associates 2014d). Any Applicant-sponsored mitigation will 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-15 April2017 
196 


31623.127

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

be consistent with requirements as stipulated by the Corps, Ecology, or Cowlitz County, which 

could include, but is not limited to, use of ratios or a credit-debit analysis. 

CCC 19.15.170 E(S) and the 2006 interagency guidance identity mitigation ratios that prescribe 

the acreage needed to compensate for unavoidable impacts on wetlands, depending on the type 

of mitigation and category of the affected wetland and the mitigation wetland. As required by 

agencies, the appropriate ratios will be followed for the preparation of the mitigation plan 

(Grette Associates 2014d). Mitigation will be developed consistent with current local, state, and 

federal guidance and regulations. Approval of the mitigation plan by the agencies will depend on 

a number of factors. 

Examples of mitigation could include, but would not be limited to, the following. 

Wetland mitigation bank credits. 

• Off-site permittee-responsible wetland mitigation (e.g., wetland creation, enhancement, 

rehabilitation). 

4.3.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the mitigation measures described above would 

reduce and compensate for impacts on wetlands. There would therefore be no unavoidable and 

significant adverse environmental impacts on wetlands. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.3-16 April2017 
197 


31623.128

Cowlitz. County 

Washington State Department of Ecology 

4.4 Groundwater 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Groundwater, often stored in aquifers! formed of permeable rock or soil material, provides water 

for human and environmental well-being. Groundwater quality refers to the physical, chemical, 

biological, and aesthetic characteristics of water, which are used to measure the ability of water to 

support aquatic life and human uses. Groundwater quality can be degraded by contaminants 

introduced by domestic, construction, industrial, and agricultural practices. 

This section describes the groundwater resources in the study area. It then describes impacts on 

groundwater that could result from construction and operation of the Proposed Action and under 

the No-Action Alternative. This section also presents the measures identified to mitigate impacts 

resulting from the Proposed Action. 

4.4.1 Regulatory Setting 

Laws and regulations relevant to groundwater are summarized in Table 4.4-1. 

Table 4-4-L Regulations, Statutes, and Guidelines for Groundwater 

Regulation, Statute, Guideline 

Feder;( I 

Clean Water Act (33 USC 1251, et seq.) 

Safe Drinking Water Act 

National Pollutant Discharge Elimination 

System Permit 

State 

Water Quality Standards for 

Ground waters of the State of Washington 

(WAC-173-200) 

Water Code (RCW 90.03) 

Regulation of Public Groundwaters 

(RCW90.44) 

Description 

Establishes the basic structure for regulating discharges of 

pollutants into waters of the United States and regulating 

<JU<llit)l stan.~ards for surface waters but not g~oundwater. 

Requires the protection of groundwater and groundwater 

sources used for drinking water. Also, requires every state 

to develop a wellhead protection program. 

Authorized by the Clean Water Act. the permit program 

controls water pollution by regulating point sources that 

discharge pollutants into waters of the United States. 

Industrial, municipal, and other facilities must obtain 

permits if their discharges go directly to surface waters. 

Surface waters in the study area interacts with 

groundwater. 

Groundwater standards intended to preserve a level of 

quality for groundwater capable of meeting current state 

and federal safe drinking water standards. 

Establishes rules for regulating and controlling water 

rights, and defines beneficial uses. 

Regulates and controls groundwater. Extends application 

of surface water statutes (RCW 90.03) to groundwater. 

1 An aquifer consists of underground layers of rock that are saturated with water that can be brought to the surface 

through natural springs or by pumping. 

Millennium Sulk Terminals Longview 

Fina/SEPA Environmental Impact Statement 4.4-1 April2017 
198 


31623.129

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Drinking Water/Source Water Protection 

(RCW 43.20.050) 

Model Toxics Control Act 

(RCW 70.105D] 

State Water Pollution Control Law 

(RCW90.48) 

Water Resources Act of 19 71 

(RCW90.54) 

Washington State Oil and Hazardous 

Substance Spill Prevention and Response 

(RCW90.56) 

Model Toxic Control Act Cleanup 

Regulations (WAC 173-340) 

Local 

Cowlitz County Critical Areas Ordinance 

(CCC 19.15) 

Longview Water Supply Protection 

Ordinance (LMC 17.100) 

Notes: 

Description 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Requires that the Washington State Department of Health 

assure safe and reliable public drinking water supplies in 

cooperation with local health departments and water 

purveyors. 

Requires potentially liable persons to assume 

responsibility for cleaning up contaminated sites. 

Grants Ecology the jurisdiction to control and prevent the 

pollution of streams, lakes, rivers, ponds, inland water, salt 

waters, water courses, and other surface and groundwater 

in the state. 

Sets forth fundamental policies for the state to insure that 

waters of the state are protected and fully utilized forthe 

greatest benefit. 

Requires notification of releases of hazardous substances 

and establishes procedures for response and cleanup. 

Establishes procedures for investigation and site cleanup 

actions. Requires potentially liable persons to assume 

responsibility for cleaning up contaminated sites. 

Designates critical areas and development regulations to 

assure the conservation of such areas in accordance with 

best available science. 

Establishes a Wellhead Protection Program to minimize 

the risk of groundwater contamination. 

USC= United States Code; WAC= Washington Administrative Code; RCW =Revised Code of Washington; 

Ecology= Washington State Department of Ecology; LMC =Longview Municipal Code 

4.4.2 Study Area 

The study area for direct impacts on groundwater is the project area. The study area for indirect 

impacts is the 540-acre Applicant's leased area (Figure 4.4-1). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.4-2 Apri/2017 
199 


31623.130

Cowlitz County 

Washington State Department of Ecology 

Figure 4.4-1. Groundwater Study Areas 

4.4.3 Methods 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

This section describes the sources of information and methods used to evaluate the potential 

impacts on groundwater associated with the construction and operation of the Proposed Action and 

No-Action Alternative. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.4·3 April2017 
200 


31623.131

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.4.3.1 Information Sources 

The following sources of information were used to identify and analyze the potential impacts of the 

Proposed Action and No-Action Alternative on groundwater in the study area. 

Remedial Investigation Report (Anchor Environmental 2007) 

Former Reynolds Metals Reduction Plant-Longview, Draft Remediallnvestigation and Feasibility 

Study (Anchor QEA 2014) 

Millennium Coal Export Terminal Longview, Washington, Water Resources Report 

(URS Corporation 2014a) 

• Millennium Coal Export Terminal Longview, Washington, Water Resource Report 

(URS Corporation 2014b) 

• Millennium Coal Export Terminal Longview, Washington, Surface Water Memorandum 

(URS Corporation 2014c) 

• Millennium Coal Export Terminal Longview, Washington Surface Water Memorandum, Second 

Supplement to Water Resource Report Water Collection and Drainage (URS Corporation 2014d) 

• Mint Farm Regional Water Treatment Plant, Preliminary Design Report, Part 2A, Hydrogeologic 

Characterization (City of Longview 2010) 

• Other scientific literature as cited in this section 

4.4.3.2 Impact Analysis 

The following methods were used to evaluate the potential impacts of the Proposed Action and NoAction Alternative on groundwater. Although the indirect impacts study area includes the extent of 

the Applicant's leased area, impacts on groundwater would be limited to the project area and along 

the Reynolds Lead railroad within the watershed. For direct impacts, the analysis assumes best 

management practices were incorporated into the design, construction, and operation of the 

Proposed Action. 

Potential groundwater impacts have been evaluated regarding groundwater discharge and recharge, 

groundwater quality, and groundwater withdrawal. The assessment of impacts is based on the 

assumption that the Proposed Action would include the following actions and authorizations. 

• National Pollution Discharge Elimination System (NPDES) Construction Stormwater Permit and 

Industrial Storm water Permit for stormwater discharges. 

Remediation of any existing soil and groundwater contamination in the Applicant's leased area 

prior to and concurrently with project construction. 

• Long-term monitoring as part of the remediation of the existing groundwater contamination to 

verify remedy effectiveness and natural attenuation of groundwater contamination. 

4.4.4 Existing Conditions 

This section describes the existing environmental conditions in the study area related to 

groundwater that could be affected by the construction and operation of the Proposed Action and 

No-Action Alternative. 

Millennium Bulk Terminals longview 

Final SEPA Environmental impact Statement 4.4·4 April 2017 
201 


31623.132

Cowlitz. County 

Washington State Department of Ecology 

4.4.4.1 Groundwater Resources 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The study area is in Water Resource Inventory Area (WRIA) 25, also known as the Grays-Eiochoman 

watershed. This watershed encompasses approximately 296,000 acres and is defined by five 

subbasins: Grays River, Skamokawa Creek, Elochoman River, Abernathy /Germany Creek, and the 

Coal Creek/Longview Slough. The project area is within the Longview-Kelso basin, a topographic 

and structural depression formed by the Cascadia subduction zone (Anchor 2013 in URS 

Corporation 2014a). The Longview-Kelso basin is composed of unconsolidated alluvium (silt, finegrained sand, and clay) underlain by alluvium (coarse-grained sand and gravel). Groundwater 

resources in the study areas include an upper alluvium aquifer (i.e., shallow aquifer) and a deeper 

confined aquifer from which industries, small farms, and domestic well users withdraw 

groundwater. An aquifer is the underground soil or rock through which groundwater can easily 

move. 

The amount of groundwater that can flow through soil or rock depends on the size of the spaces in 

the soil or rock and how well the spaces are connected. Aquifers that consist of gravel, sand, 

sandstone, or fractured rock such as limestone are relatively permeable (or porous) materials and 

allow water to flow through. A confining, impervious unit consisting of clay and silt ranging in 

thickness from approximately 100 to 200 feet separates the two aquifer systems below the project 

area. The confining unit becomes appreciably thinner beyond the project area, to the north and east 

near residential areas. Shallow groundwater is hydraulically connected with the Columbia River. 

Preliminary hydrogeologic investigations conducted for the City of Longview indicate that shallow, 

unconfined groundwater does not contribute significantly to the deeper aquifer as the lower aquifer 

is primarily recharged by deeper aquifers below the Columbia River (Anchor QEA 2014). The 

project area is not considered a significant source of groundwater recharge by infiltration because of 

the low recharge rates of the soil in the study area (URS Corporation 2014c). 

Shallow Aquifer 

Groundwater in the shallow aquifer is found at depths less than 5 feet below the ground surface 

(bgs) (Anchor QEA 2014). Groundwater flow in the shallow aquifer in the study area is complex due 

to the competing influences of the Consolidated Diking and Improvement District (CDID #1) system 

and, to a lesser extent, the tidally influenced Columbia River (Anchor QEA 2014). Groundwater and 

stormwater discharged to the CDID #1 ditches are pumped from these ditches by the CDID #1 to 

maintain surface-water levels below those in the Columbia River. Water from CDID #1 is discharged 

to the Columbia River. A CDID #1 pump station is located near the southwest corner of the projectarea boundary. 

Deep Aquifer 

The deep aquifer is approximately 200 feet bgs, with sand coarsening to gravel to a depth of 400 feet 

bgs (Anchor QEA 2014). The deep aquifer is a source of drinking water in the study area. Recharge 

to the deep aquifer in the project area is expected to be driven primarily by deeper aquifers below 

the Columbia River and insignificantly from shallow, unconfined aquifers (Anchor QEA 2014). 

Discharge from the deep aquifer is from seepage back to the Columbia River, direct discharge to the 

shallow aquifer, and pump age from wells (URS Corporation 2014a). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.4-5 April2017 
202 


31623.133

Cowlitz County 

Washington State Department of Ecology 

Mint Farm Regional Water Treatment Plant 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The Mint Farm Regional Water Treatment Plant is approximately 6,000 feet east of the eastern 

boundary of the project area. While the direct impacts study area does not extend to the Mint Farm 

Regional Water Treatment Plant, the indirect impacts study area includes the treatment plant, and 

both the direct and indirect impacts study areas include the treatment plant's Wellhead Protection 

Area (i.e., the 5-year Wellhead Protection Plan Source Area); thus, the Mint Farm Regional Water 

Treatment Plant is considered. The wellhead protection area is based on the extent of the Columbia 

River recharge of the deep aquifer flows according to the hydrological investigations performed for 

the Mint Farm Regional Treatment Plant. The treatment plant consists of four 4,000-gallons-perminute (gpm) groundwater wells and supplies the City of Longview and the Beacon Hill Water and 

Sewer District with municipal water. The plant draws from the deep aquifer, recharged by the 

Columbia River. Kennedy /Jenks Consultants (2010) completed a water quality and environmental 

risk assessment as part of the preliminary design report for the Mint Farm Regional Water 

Treatment Plant. The risk assessment included sampling and water quality analysis of the 

groundwater from the deeper aquifer of six wells. This study found no chemicals in the groundwater 

above human health screening levels. Kennedy /Jenks Consultants (2012) repeated the water quality 

analysis from the same wells in November 2012 and found manganese and iron at levels above the 

Washington State Department of Health secondary water quality standards and arsenic in one of the 

wells but at levels below thresholds established by the U.S. Environmental Protection Agency (EPA) 

for drinking water quality standards. Groundwater gradients and monitoring well locations at the 

Mint Farm Regional Water Treatment Plant are shown in Figures 4.4-2 and 4.4-3. 

4.4.4.2 Surface Water Interaction with Groundwater 

This section addresses how and where surface water interacts with groundwater in the study areas. 

Columbia River 

The Columbia River flows along the entire south/southwest boundary of the project area. Tidal 

influences on groundwater tend to propagate farthest in the coarse-grained deep aquifer and, to a 

much lesser degree, in the shallow aquifer (Anchor QEA 2014). 

Consolidated Dike Improvement District #1 Ditch System 

The CDID #1 system was developed to control local flooding and depress the groundwater elevation 

in lower elevation areas (including the project area) near the Columbia River. Specifically, the 

system was designed to protect life, property, and environment from external flooding and internal 

flooding (flooding due to storm runoff from lands adjacent to and inside the levee system). Water 

levels in the CDID #1 ditches are maintained below the water surface elevation of the Columbia 

River, which influences groundwater flow direction in the shallow aquifer. At the project area this 

results in a flow of shallow groundwater away from the Columbia River (to the north, east, and 

west) (Figure 4.4-4) and toward the CDID #1 ditches (Anchor QEA 2014), except for one localized 

area: groundwater flow south of the axis of the Columbia River levee is toward the Columbia River 

(Anchor Environmental 2007). Groundwater that discharges into the CDID #1 ditches and 

stormwater that is collected in the CDID #1 ditches are actively pumped by the CDID #1 system to 

the Columbia River through a network of pump stations and valves to maintain water levels below 

the level of the Columbia River. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.4-6 April 2017 

31623.134

Cowlitz County 

Washington State Department of Ecology 

Figure 4.4-2. Shallow Aquifer Groundwater Gradients and Monitoring Well locations 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.4-7 

Chapter 4. Natur

Existing Conditions, 

and Proposed Mitig

31623.135

Cowlitz County 

Washington State Department of Ecology 

Figure 4.4-3. Deep Aquifer Groundwater Gradients and Monitoring Well Locations 

Millennium Bulk Terminals-Longview Final SEPA Environmental Impact Statement 4.4-8 

Chapter 4. Natur

Existing Conditions, 

and Proposed Miti

31623.136

Cowlitz County 

Washington State Department of Ecology 

Figure 4.4-4. Groundwater Gradients and Flow Direction 

,;111''""""";;,;,.,,,;,,.;,..,,.,, 

:m::;h::;;i.:; ::;::l;mm::mm;::m:::::;::; 

Millennium Bulk Final SEPA Environmental Impact Statement 

Chapter •L Natur

Existing Conditions, 

and Proposed Mitig

;,.,,,;,,.,.,;::,;,.,..;.,,.,;;.,.,,,,, 

:<l:j:i.:!••::::i::;::::::;:m::m;:·:"'"' 

i'<i.:'ii:;m;.;;;..;.;;•;•.,,,;.,.,;,.·;;•,;• 

m·'iil:!!!·'ii:i<lii:::miih;::::;::;:::::::::m::::::::::::::m;:: 
206 


31623.137

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitisation Measures 

Some groundwater from the deep aquifer may be discharged into the COlD #1 ditches because an 

upward vertical gradient also exists in areas near the ditches, causing groundwater in the deep 

aquifer to move upward into the shallow aquifer (Anchor Environmental 2007). 

Drainage Basins and Storm water System 

The on-site drainage system collects, treats, and discharges stormwater under the Applicant's 

Individual Industrial NO PES Permit WA-000008-6 for the existing bulk product terminal. 

Stormwater is collected from 12 drainage basins and is discharged as treated stormwater to COlD 

#1 ditches and the Columbia River via four outfalls (Section 4.2, Surface Water and Floodplains, 

Figure 4.2-3]. A fifth outfall, Outfall 004, has been dosed since 1991. The major collection and 

treatment systems, drainage basins, outfalls, and discharge locations currently managed under the 

NPDES program are described in more detail in the SEPA Surface Water and Floodplains Technical 

Report (ICF 2017a], and in Section 4.2, Surface Water and Floodplains. 

4.4.4.3 Groundwater Quality 

Local groundwater quality in the study area has no identified pollutant concentrations above human 

health screening levels for drinking water. Samples taken from the study area identified manganese, 

iron, and arsenic levels above the Washington State Department of Health secondary water quality 

standards but at levels below thresholds established by the U.S. Environmental Protection Agency 

(EPA) for drinking water quality standards. These levels were found to be naturally occurring and 

are characteristic of the regional water supply aquifer (Anchor QEA 2014a]. 

Groundwater Contamination 

Historical operations in the study area have included the operation of various facilities, including an 

aluminum production facility, a cable plant, cryolite recovery, and industrial landfills (Figure 4.4-5].2 

Chapter 3, Section 3.6, Hazardous Materials, provides a history of contamination in the study areas. 

In the project area, groundwater samples show presence of cyanide, fluoride, polycyclic aromatic 

hydrocarbons, heavy metals and petroleum hydrocarbons. 

In January 2015, a remedial investigation/feasibility study (RifFS) (Anchor QEA 2014) was 

prepared per the requirements of the Washington State Model Taxies Control Act (MTCA], which is 

administered by the Washington State Department of Ecology (Ecology). The RifFS provides a 

detailed description of cleanup and remedial actions in the study area (Anchor QEA 2014). 

Figure 4.4-5 shows the locations of previous cleanup and removal activities and remedial 

investigation focus areas. 

2 Landfills include six areas referred to as Landfills and Fill Deposits that were associated with the operation of the 

Reynolds aluminum smelter and were used for depositing such things as industrial waste, residual carbon, 

construction debris, floor sweeps and spent lime. Cleanup of these features is ongoing as a separate project 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.4-10 Apri12017 

31623.138

Cowlitz countY 

Washingtol'l State Department of Ecology 

Figure 4.4-5. Remedial Investigation Environmental Testing (Geologic, Hydrogeologic, and Geochemical) Locations 

Millennium Bulk Terminals-Longview Final SEPA Environmental Impact Statement 4.4-11 

Chapter4. Natur

Existing Conditions, 

and Proposed Mitig
208 


31623.139

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Source Areas and Chemicals of Concern (Deep and Shallow Aquifers) 

Cyanide 

Groundwater cyanide concentrations in the study area are very low and have been decreasing over 

time. Free cyanide concentrations in all samples taken in the western portion of the study areas 

were below the groundwater screening level of 0.2 milligram per liter. 

Groundwater cyanide concentrations in samples collected in the eastern portion of the study area 

have also been decreasing over time. One groundwater sample, located near the Former Stockpile 

Area in the southeast corner of the study area in Figure 4.4-5, exceeded the groundwater Maximum 

Contaminant Level in 2006, but concentrations decreased significantly by the 2011 and 2012 

sampling events. Free cyanide' concentrations in most of the eastern portion of the study area were 

below the groundwater screening level. 

Fluoride 

Fluoride concentrations in most of the Applicant's leased area are below groundwater screening 

levels. The exceptions are the shallow groundwater located in or immediately adjacent to Landfills 1 

and 2 and fill deposits A, 8-1. 8-2 and 8-3. Surface-water monitoring suggests that the fluoride 

present in the shallow groundwater is not affecting water quality in the adjacent CDID Ditches 10, 5, 

or 14 (Anchor QEA 2014). 

Carcinogenic Polycyclic Aromatic Hydrocarbons 

Carcinogenic polycyclic aromatic hydrocarbon (CPAH) concentrations from the western portion of 

the Applicant's leased area do not exceed groundwater screening levels. In the eastern portion of the 

Applicant's leased area, and outside the project area boundaries, CPAH concentrations were below 

groundwater screening levels in all locations except for wells located immediately within or 

adjacent to fill deposits. Three localized areas (purple circles on Figure 4.4-6) include wells located 

immediately adjacent to Landfill1 and Fill Deposit 8-2. CPAH concentrations in wells located farther 

downgradient were lower than the groundwater screening level and the surface water screening 

level. 

Polychlorinated Biphenyls 

No polychlorinated biphenyls (PC8s) were detected in any of the groundwater samples analyzed. 

Heavy Metals 

Test findings indicate that groundwater heavy metals concentrations are below applicable screening 

levels. 

Volatile Organic Compounds 

No volatile organic compounds were detected in any of the groundwater samples analyzed. 

3 Free cyanide refers to the sum of hydrogen cyanide (HCN) and cyanide ion (CN-] in a sample. Free cyanide is 

bioavailable and toxic to organisms in aquatic environments. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental impact Statement 4.4-12 April2017 

31623.140

Cowlitz County 

Washington State Department of Ecology 

Figure 4.4-6. 2007-2012 Groundwater Testing Results (Total CPAHs as ToKic Equivalents) 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.4·13 

Chapter 4. Natur

Existing Conditions, 

and Proposed Mitig
210 


31623.141

Cowlitz County 

Washington State Department of Ecology 

Total Petroleum Hydrocarbons 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The RI/FS testing program included analysis for total petroleum hydrocarbons (TPHs) in the HTM 

Oil Area (Figure 4.4.-5). All samples collected were below groundwater screening levels. 

Distribution of Chemicals of Concern 

Fluoride and cyanide levels found in the shallow groundwater within or immediately adjacent to 

Landfills 1, 2, and 3 have limited mobility and are not affecting downgradient groundwater (Anchor 

QEA 2014). Groundwater contaminated with fluoride and cyanide could occur during leaching when 

soils or solid media come into contact with the groundwater. However, the upward hydraulic 

gradients in the shallow aquifer cause dispersion of fluoride and cyanide and prevent migration into 

the north-south groundwater flows. This subsequently protects groundwater, surface water, and the 

Columbia River and limits fluoride and cyanide from traveling to the CDID #1 ditches. Fluoride and 

cyanide concentrations have been decreasing over time, since the closure of the former Reynolds 

Metal Company facility (Reynolds facility). It is unlikely that fluoride and cyanide in the study area 

affect the surrounding groundwater (Anchor QEA 2014). 

Final Cleanup Actions 

A draft MTCA Cleanup Action Plan for the study area, released in January 2016, describes the 

proposed cleanup actions that would protect human health and the environment, meet state cleanup 

standards, and comply with other applicable state and federal laws. Cleanup standards would be 

consistent with the current and anticipated future land use. Ecology's comment period on the draft 

MTCA Cleanup Action Plan ended March 18, 2016, and issuance of a final plan is pending. Although a 

final Cleanup Action Plan has not been determined, this section discusses the site-specific cleanup 

action requirements applicable to all the cleanup alternatives. 

Table 4.4-2 shows the proposed cleanup levels, remediation levels, and conditional points of 

compliance for groundwater to be implemented as part of the Cleanup Action Plan (Anchor QEA 

2014). Cleanup levels were based on MTCA equations or Applicable or Relevant and Appropriate 

Requirements (ARARs) to protect groundwater resources for the highest beneficial use (i.e., 

drinking water) (Anchor QEA 2014). 

Millennium Bulk. Terminals Longview 

Final SEPA Environmental Impact Statement 4.4-14 April '2017 
211 


31623.142

Cowlitz County 

Washington State Department of Ecology 

Table 4.4-2. Groundwater Cleanup Standards 

Chemical of 

Potential Concern 

Fluoride (dissolved) 

Free cyanide 

(dissolved) 

CPAHs 

TPH-D 

TPH-0 

Notes: 

Source: Anchor QEA 2014 

Groundwater 

Cleanup Level 

4mg/L 

200 flg/L 

0.1 flg/L 

500 flg/L 

500 flg/L 

Protection Basis 

State Drinking 

WaterMCL 

State Drinking 

WaterMCL 

MTCA Method A 

Standard Value 

MTCA Method A 

Standard Value 

MTCA Method A 

Standard 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Point of Compliance 

Conditional point of compliance at 

property line and groundwaterditch boundary 

Wells adjacent to where remedial 

action will occur 

mg/L = milligrams per liter; MCL = Maximum Contaminant Level; J.{g/L = micrograms per liter; 

CPAHs =carcinogenic polycyclic aromatic hydrocarbons; MTCA =Model Toxics Control Act; TPH-D =total 

petroleum hydrocarbon- diesel; TPH·O =total petroleum hydrocarbon- oil 

4.4.4.4 Water Rights for the Project Area 

The project area land owner, Northwest Alloys, holds several historical water rights to extract 

groundwater from the deep aquifer. The Applicant has a ground lease with Northwest Alloys that 

includes use of water rights. When issued, the total instantaneous withdrawal volume allowance 

under these water rights was 23,150 gpm and the total annual withdrawal allowance was 

31,367 acre-feet per year (AFY) (Table 4.4-3].lt is estimated the Applicant has an existing demand 

of 1.53 million gallons per day or approximately 1,063 gpm (Chaney pers. comm.]. This is within the 

volume of the water rights that were issued in 1941, 1966, and 1967.• However, water rights 

relinquish back to the State of Washington if water rights are not used for 5 consecutive years 

without good cause (RCW 90.14.160). If the historical water rights have been relinquished, new 

water rights would need to be applied for by the Applicant or Northwest Alloys under the normal 

regulatory process. 

4 The Applicant is responsible for maintaining water rights. The EIS process did not verify whether water rights are 

current 

Millennium Bulk Terminals Longview 

Final SEPA Environmental impact Statement 4.4-15 Apri12017 
212 


31623.143

Cowlitz County 

Washington State Department of Ecology 

Table 4.4-3. Northwest Alloys' Water Rights Claims and Certificates 

Withdrawal 

Chapter 4. Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Certificate 

Number 

Instantaneous Annual 

Record Number 

Claims 

G2-006572CL 

G2-006573CL 

G2-006574CL 

Certificates 

G2-*02244CWRIS 

G2-*08309CWRIS 

G2-*08310CWRIS 

G2-*08367CWRIS 

G2-*08368CWRIS 

G2-*09127CWRIS 

Total 

Notes: 

Source: URS Corporation 2014b. 

01571 

06184 

06185 

06186 

06187 

06427 

gpm = gallons per minute; AFY = acre~ feet per year 

4.4.5 Impacts 

(gpm) (AFY) Priority Date 

2,500 2,340 1941 

2,500 2,340 1941 

2,500 1,614 1941 

2,500 4,033 1966 

2,500 4,000 1966 

2,500 4,000 1966 

3,000 4,800 1966 

3,000 4,800 1966 

2,150 3,440 1967 

23,150 31,367 

This section describes the potential direct and indirect impacts related to groundwater that would 

result from construction and operation of the Proposed Action and the No-Action Alternative.s 

4.4.5.1 Proposed Action 

This section describes the potential impacts that could occur in the study areas as a result of 

construction and operation of the Proposed Action. All wastewater and stormwater generated in the 

project area and potentially discharged from the project area after treatment would be evaluated 

and characterized by the state. Once the water to be discharged has been accurately evaluated and 

characterized by the state, the specific standards for water discharged from the project area are then 

defined and the type of NPDES permit would be determined and issued. 

Construction site preparation activities would involve preloading and installation of vertical wick 

drains to aid in the consolidation oflow consistency silt and low-density sand (i.e., unconsolidated 

materials). Wick drains would direct groundwater from the shallow aquifer upward toward the 

surface during preloading, where it would discharge. Water discharged from the wick drains would 

be captured, tested for contaminants, and treated prior to discharge to any surface waters. 

Process water supply for construction and operation of the Proposed Action would come from two 

sources: the on-site water management system during the wet season, and onsite groundwater wells 

during the dry season. Process water uses on the project area would include dust control, equipment 

5 Acreages presented in the impacts analysis were calculated using Geographic Information System (GIS), thus, 

specific acreage of impacts are an estimate of area based on the best available information. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.4-16 April 2017 
213 


31623.144

Chapter 4, Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

washdown, and cleanup. Water for dust suppression would be applied on the main stockpiles, 

within unloading and conveying systems, and at the docks. 

Construction activities that could impact groundwater include the following. 

• Disturbance of surface soils during construction 

• Release of hazardous and non-hazardous materials during construction 

• Disturbance of previously contaminated sites 

• Use of groundwater for dust control 

Operational activities that could affect groundwater include the following. 

• Alteration of surface runoff patterns 

• Use of groundwater for dust control. equipment washdown, and cleanup 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Affect Groundwater Recharge during Construction 

Construction of the Proposed Action would involve preloading and installing vertical wick 

drains that would direct groundwater from the shallow aquifer upward toward the surface 

during preloading, where it would discharge. Ground-disturbing activities (excavations, grading, 

filling, trenching, backfilling, and compaction) could temporarily disrupt the existing drainage 

and groundwater recharge patterns in the study area. The study area is not considered a major 

source of groundwater recharge of the deep aquifer. During construction, drainage and 

groundwater recharge patterns are expected to be similar to those of the existing conditions, 

with wick drain effluent and runoff directed to collection and treatment facilities and minimal 

infiltration to groundwater of the deep aquifer. Therefore, construction of the Proposed Action 

would not be expected to have a measurable impact on groundwater recharge patterns of the 

deep aquifer. 

The shallow water aquifer in the project area is only minimally recharged by stormwater 

through surface infiltration due to the low recharge rates of soils in the study area (URS 

Corporation 2014c). During construction, impervious surfaces would be sloped to convey 

stormwater to collection sumps on the project area. The collected stormwater would then be 

conveyed to water collection facilities and discharged through a monitored internal outfall to 

existing facilities in the project area for treatment prior to discharge to the Columbia River 

(Outfall 002A). Therefore, construction of the terminal at the project area would be expected to 

slightly reduce groundwater recharge in the shallow aquifer. For more information on the 

NPDES Construction Stormwater Permit for the Proposed Action, see Section 4.5, Water Quality, 

and the SEPA Water Quality Technical Report (ICF 2017b ). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.4-17 April2017 
214 


31623.145

Cowlitz County 

Washington State Department of Ecology 

Degrade Groundwater Quality during Construction 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Any construction-related contaminant released on the ground could infiltrate and temporarily 

degrade groundwater quality if the contaminant were to reach groundwater. This would be a 

concern primarily for the shallow aquifer but not the deep aquifer because there is a confining, 

impervious soil unit consisting of clay and silt that separates the two aquifer systems, and the 

deep aquifer is primarily recharged by deeper aquifers below the Columbia River (Anchor QEA 

2014) rather than surface infiltration. Poured concrete, cement, mortars, and other cement- or 

lime-containing construction material could alter the pH of stormwater, which could infiltrate 

the ground and affect the shallow aquifer water quality. Petro-chemicals could also be released 

through leaks and spills, which could infiltrate the ground and potentially reach groundwater. 

However, the likelihood of a large contaminant spill would be low with implementation of the 

best management practices that would be required as part of the NPDES Construction 

Stormwater Permit. In addition, cleanup efforts would begin immediately after a contaminant 

release, to prevent large amounts of contaminant from reaching groundwater and impairing 

water quality. By using prevention measures and best management practices, construction is 

not expected to degrade groundwater as a result of a contaminant release and no long-term 

effects are anticipated. Best management practices would include, but would not be limited to 

the following. 

• BMP C153. Material delivery, storage and containment would be used to prevent, reduce, or 

eliminate the discharge of pollutants to the stormwater system or watercourses from 

material delivery and storage. 

• BMP C154. A concrete washout area would be constructed near the entrance to the project 

area to prevent or reduce the discharge of pollutants to groundwater or storm water from 

concrete waste. 

Site preparation activities would involve preloading and installation of vertical wick drains to 

aid in the consolidation of low consistency silt and low-density sand (i.e., unconsolidated 

materials). Wick drains would direct groundwater from the shallow aquifer upward toward the 

surface during preloading, where it would discharge. These activities could take place adjacent 

to areas where known groundwater contamination exists, and the contaminated groundwater 

could penetrate these areas. However, the permeability of the soil materials affected by 

preloading would be relatively low, and thus, would not be particularly susceptible to the 

infiltration of contaminated groundwater. Water discharged from the wick drains would be 

captured, tested for contaminants, and properly managed, and, if allowable, it would be treated 

prior to discharge to any surface waters. By adhering to best management practices, 

construction is not expected to degrade groundwater as a result of preloading and vertical wick 

drains and no long-term effects are anticipated. 

Construction of the Proposed Action could encounter previously contaminated areas currently 

identified in the MTCA Cleanup Action Plan, which could degrade groundwater quality. 

However, with the exception of two small areas-the eastern corner of the Flat Storage Area and 

the northeastern portion of Fill Deposit 8-3 (Figure 4.4-5)-cleanup actions are not 

recommended in the draft Cleanup Action Plan within the project area. For the Flat Storage Area 

and Fill Deposit B-3, construction and remediation activities would be coordinated to prevent 

spread of contamination or environmental impacts. Fluoride and cyanide levels found in shallow 

groundwater have limited mobility and do not affect downgradient groundwater or surface 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.4-18 April2017 
215 


31623.146

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

water quality. Therefore, construction of the Proposed Action is not expected to degrade 

groundwater as a result of disturbing previously contaminated areas. 

Construction of the Proposed Action would be unlikely to affect the well field at the Mint Farm 

Industrial Park, which is located upgradient and approximately 1.14 miles (6,000 feet] away 

from the project area. However, the project area is in Zone 2 of the Mint Farm Industrial Park's 

wellhead protection and sanitary control areas (Figure 4.4-7).6 The wellfield draws water from 

the deep aquifer, which is protected by a confining, impervious soil unit consisting of clay and 

silt that separates the two aquifer systems, and the deep aquifer is primarily recharged by 

deeper aquifers below the Columbia River. So it would be unlikely that contaminants from a spill 

would reach the groundwater withdrawn by the wellfield. 

Affect Groundwater Supply during Construction 

Construction of the Proposed Action would require groundwater from on-site wells for dust 

suppression. The maximum amount of water that would be used for dust suppression is 

estimated to be 40,000 gallons per day ( 44.8 AFY). Combined with demand from existing 

activities in the project area of 1,994 AFY, the total demand for groundwater during 

construction would be approximately 2,039 AFY. As stated previously, Northwest Alloys holds 

water rights that originally authorized extraction from on-site wells of approximately 23,150 

gpm or 31,367 AFY. The EIS does not verifY the amount of Northwest Alloys' water rights; 

verification will occur outside of the environmental review process. Water demand for 

construction-related activities and existing operations would together represent approximately 

6.5% of the original Northwest Alloys' groundwater extraction rights, which would be an 

increase of approximately 2% over current groundwater extraction. Therefore, construction of 

the Proposed Action would have a negligible impact on groundwater supply. 

Excavation activities could intersect groundwater in low-lying areas, which could result in 

temporary fluctuations in shallow groundwater in the immediate area. Dewatering effluent 

would be pumped to temporary containment tanks for settling, where it would be tested for 

pollutants before being discharged to receiving waters. If pollutants are encountered during 

testing, dewatering would be suspended and Ecology would be notified. Contaminated water 

would be treated before being discharged to receiving waters. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on groundwater because 

construction would be limited to the project area and would not occur later in time or be farther 

removed in terms of distance than the direct impacts. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

6 In Washington State, wellhead protection areas are based on horizontal time-of-travel rates for groundwater. 

Zone 2 areas are based on a S·year time-ofMtravel for groundwater. 

Millennium Bulk Terminals longview 

Final SEPA Environmental impact Statement 4.4·19 April2017 
216 


31623.147

" 

~ 21 

e 

... 

., 

.. 

.. 

= a:; 

3: 

~ 3: 

] ·~ 

10 

0 " 

~ 

.9 

. ~ 

10 

~a 

~ 0 

0 c 

" .~ 

!I 1l. 

!l u 1~ ~ ...;. 

~~ .. • E 

.. >- 0 

u" I!! 

~ ·i ~ .: 

]~ ~ 

Ew 

-~ ~ ~;;; 

~~ 
217 


31623.148

Cowlitz County 

Washington State Depar1ment of Ecology 

Affect Groundwater Recharge during Operations 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Operation of the terminal could permanently reduce infiltration due to soil compaction and new 

impermeable surfaces, such as coal stockpile pads, roads, or buildings.' The project area would 

occupy some of the existing drainage basins in the project area (Figure 4.2-3), effectively 

eliminating a portion of the runoff presently handled under the Applicant's existing NPDES 

Industrial Stormwater Permit. 

The Applicant would be required to obtain an NPDES Industrial Stormwater Permit for 

stormwater collection and discharge. However, the project area is not an important source of 

groundwater recharge due to relatively impermeable soils (URS Corporation 2014c). In 

addition, runoff is currently collected in a ditch system and operating the proposed terminal 

would not substantively change these conditions; the primary source of shallow groundwater 

recharge in the project area would continue to be the Columbia River, and the direction and 

volume of groundwater recharge from the Columbia River is expected to be relatively constant. 

Overall, operation of the terminal under the On-Site Alternative is not expected to substantially 

change shallow groundwater recharge volumes or patterns in the project area. 

Operations would not be expected to measurably affect groundwater recharge for the deeper 

aquifer because the deep aquifer is primarily recharged by deeper aquifers below the Columbia 

River (Anchor QEA 2014). 

Degrade Groundwater Quality during Operations 

Contaminants and coal dust generated during operations could degrade groundwater quality if 

contaminated runoff were to infiltrate the ground and reach groundwater. However, as 

described under the previous impact discussion, the project area is not considered a significant 

source of groundwater recharge through infiltration because of the low recharge rates of the soil 

characteristics in the study area (URS Corporation 2014c), limiting contaminant movement into 

the ground. In addition, runoff from the study area, and contaminants within that runoff, would 

be directed to on-site drainage systems, treated, and possibly reused on site or discharged in 

accordance with an NPDES Industrial Stormwater Permit for the export terminal. Water reused 

on site would be brought to Washington State Class A Reclaimed Water standards 

(URS Corporation 2014c). Excess water not reused on site would be further treated and tested 

prior to being routed to outfalls regulated by an NPDES Permit and discharged to the Columbia 

River. Discharge of water to the Columbia River during operation of the Proposed Action would 

mostly occur during the rainy season from fall through spring when excess surface water would 

be more likely to be generated on site. 

Furthermore, as discussed in Section 4.5, Water Qualify, the following project design and best 

management practices would be part of the Proposed Action design to maximize the protection 

of surface-water quality (and thus, groundwater via infiltration). 

• Enclosed conveyor galleries (approximately one-third of the conveyors would be enclosed). 

• Enclosed rotary unloader building and transfer towers. 

7 The project area covers 190 acres which is currently mostly developed with impervious surfaces. During 

operations, all area within the 190 acres is considered impervious for water management. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.4-21 April2017 
218 


31623.149

Cowlitz County 

Washington State Department of Ecology 

• Washdown collection sumps for settlement of sediment. 

Regular cleanout and maintenance ofwashdown collection sumps. 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

• Containment around refueling, fuel storage, chemicals, and hazardous materials. 

• Oil/water separators on drainage systems and vehicle washdown pad. 

• Requirement that all employees and contractors receive training, appropriate to their work 

activities, in the best management practices. 

Design of docks to contain spillage, with rainfall runoff and washdown water contained and 

pumped to the upland water treatment facilities. 

Design of systems to collect and treat all runoff and washdown water for on-site reuse (dust 

suppression, washdown water or fire system needs) or discharge off site. 

Since water collected during operations would be treated before reuse or discharge to the 

Columbia River and would be unlikely to infiltrate, groundwater quality would not likely be 

affected by operation of the Proposed Action. 

The potential for coal dust to affect groundwater would be relatively low because of the low 

permeability of the soils in the study area (URS Corporation 2014c), the propensity for soil to 

filter out coal dust suspended in water, and treatment of on-site storm water runoff. It would be 

unlikely that coal dust would come into contact with groundwater. 

The potential for toxic constituents of coal to reach groundwater is also relatively low. Toxic 

constituents of coal include CPAHs and trace metals, which are present in coal in variable 

amounts and combinations dependent on the type of coal. The coal type, along with mineral 

impurities in the coal and environmental conditions determine whether these compounds can 

be leached from the coal (see Section 4.5, Water Quality,for coal constituents of Powder River 

and Uinta Basin coal). The potential risk for exposure to toxic chemicals contained in coal would 

be relatively low as these chemicals tend to be bound in the matrix structure and not quickly or 

easily leached. See Section 4.5, Water Quality, and Chapter 5, Section 5.7, Coal Dust, for more 

information. 

Operation of the Proposed Action is not expected to encounter or disturb previously 

contaminated areas being addressed by the MTCA Cleanup Action Plan. If contaminated areas 

are encountered, remediation activities would be carried out in accordance with relevant 

regulations and coordinated to avoid exposure to the environment. 

Overall, operation of the proposed coal export terminal is not expected to degrade groundwater 

quality due to the low recharge rates of soil in the project area. Surface runoff treatment would 

minimize any infiltration of contaminant-laden runoff into the ground. 

Affect Groundwater Supply during Operations 

Process water, i.e., water that would be used during operations for dust control, and equipment 

washdown would be supplied from two sources: the on-site water management system during 

the wet season and on-site groundwater wells during the dry season. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental impact Statement 4.4-22 April2017 
219 


31623.150

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The on-site water management system would provide process water in the following ways. 

• Storm water and surface water (washdown water) would be collected from the stockpile 

areas, rail loop, office areas, docks, and other paved surfaces in the project area and directed 

to a series of vegetated ditches and ponds, then to a collection basin or sump. 

• The collected water would be pumped to an onsite treatment facility consisting of retention 

pond(s) with flocculent added to promote settling as required. 

• The water would then be pumped to a surface storage pond. The surface storage pond 

would have an approximate capacity of3.6 million gallons (MG], including a reserve of0.36 

MG for fire suppression. 

Approximately 1,200 gpm during the wet season and 2,000 gpm during the dry season 

(approximately 2,034 AFY) would normally be required for dust suppression. On-site 

groundwater wells would provide approximately 635 gpm (1,025 AFY) to maintain minimum 

water levels in the storage pond to meet process water demands during the dry season. Water 

from the storage pond could also be used for the fire hydrant, sprinklers and deluge systems, 

watering oflandscaping and other non-recyclable uses. Northwest Alloys holds water rights that 

originally authorized extraction of23,150 gpm up to a total volume of 31.367 AFY. The EIS does 

not verify the amount of Northwest Alloys' water rights; verification will occur outside of the 

environmental review process. Combined with the groundwater demand from existing activities 

in the study area (approximately 1,994 AFY), operation of the Proposed Action would require 

approximately 3,019 AFY, an increase of approximately 51% over existing groundwater 

demands. The total demand accounts for less than 10% of the maximum pumping limit allowed 

under original water rights. Therefore, operation of the Proposed Action would have a negligible 

impact on groundwater supply. The Applicant would ensure that water rights are current before 

withdrawing any water for construction or operations; water rights would be maintained for 

ongoing groundwater use during operation of the Proposed Action. If stormwater is collected 

and used for a beneficial use, a Water Right Permit would be required in accordance with 

Chapter 90.03 RCW. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts on groundwater 

related to facility operations in the direct impacts study area and increased rail traffic (up to 240 

unit trains• arriving and departing per month) on the BNSF Spur and Reynolds Lead within the 

direct and indirect impacts study areas. Operations-related activities are described in Chapter 2, 

Project Objectives, Proposed Action, and Alternatives. 

Degrade Groundwater Quality during Operations 

The Proposed Action likely would not affect groundwater at the well field at the Mint Farm 

Industrial Park because the wellfield draws water from the deep aquifer and, as previously 

mentioned, there is a confining impervious layer of clay and silt separating the two aquifers. 

Therefore, it would be unlikely contaminants from a spill during operations would reach the 

groundwater aquifers tapped by the wellfield. The majority of the study area is located in Zone 2 

8 A unit train is a train in which all cars carry the same commodity and are shipped from the same origin to the 

same destination. Proposed ActionRrelated unit trains would consist of approximately 125 rail cars and three 

locomotives. 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.4-23 April 2017 
220 


31623.151

Cowlitz: County 

Washmgton State Department of Ecology 

Chapter 4. Natural Env1ronment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

of the Mint Farm Industrial Park's wellhead protection and sanitary control areas (Figure 4.4-7). 

Although it would be highly unlikely a contaminant would reach the deep aquifer, should a spill 

or contaminant release occur during operations, cleanup would occur rapidly. In addition, 

surface water generated within the study area would be collected and reused on site or treated 

before being discharged to the Columbia River, further minimizing the potential for 

contaminants to infiltrate the ground. 

Degrade Groundwater Quality as a Result of a Train Collision or Derailment 

Spills of fuel or other potentially hazardous materials could occur along the rail spur if rail cars 

were to collide and/or derail within the study area. Materials released onto the ground as a 

result of a fuel spill could degrade groundwater quality. As discussed in Chapter 3, Section 3.6, 

Hazardous Materials, if a release of hazardous materials or fuel spill occurred, the rail operator 

would implement emergency response and cleanup actions as required by Occupational Safety 

and Health Administration rules (29 Code of Federal Regulations [CFR]1910.120), the 

Washington State Oil and Hazardous Substance Spill Prevention and Response regulations 

(Revised Code of Washington [RCW]90.56], and for the Model Toxic Control Act Cleanup 

Regulations (Chapter 173-340 Washington Administrative Code [WAC]). In addition, Federal 

Railroad Administration accident reporting requirements (49 CFR 225] include measures to 

prevent a spill of fuel or other potentially hazardous material from affecting groundwater 

quality through quick response, containment and cleanup. A spill or release of hazardous 

materials or fuels would not be expected to affect groundwater. 

4.4.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not construct the coal export terminal and 

would continue with current operations in the project area. The project area could be developed for 

other industrial uses including an expanded bulk product terminal or other industrial uses that 

would not require a permit from the U.S. Army Corps of Engineers (Corps) (i.e., would not affect 

waters of the United States). Because existing industrial import and export activities would be 

expanded, potential impacts on water quality of groundwater would be similar to those described 

for the Proposed Action regarding potential oils and grease spills from equipment or other raw 

materials shipped from the coal export terminal. An NPDES Industrial Storm water Permit would he 

required to regulate storm water discharges to the Columbia River, which would maintain water 

quality of groundwater. 

Any new or expanded industrial uses would trigger a new NPDES or modified permit. Upland 

buildings could be demolished and replaced for new industrial uses. Ground disturbance would not 

result in any impacts on waters of the United States and would not require a permit from the Corps. 

Any new impervious surface area would generate stormwater, but all stormwater would be 

collected and treated to meet state and federal water quality requirements prior to discharge to the 

Columbia River. Groundwater recharge in the study area is primarily from the Columbia River, thus 

maintaining water quality in the Columbia River would be expected to maintain water quality of 

groundwater within the study area. 

Millennium Bulk Termmals Longview 

Final SEPA Envlfonmental !mpact Statement 4.4-24 Apr!l2017 
221 


31623.152

Chapter 4, Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington and Proposed Mitigation Measures State Department of Ecology 

4.4.6 Required Permits 

The following required permits would be required for groundwater. 

• Cowlitz County Critical Areas Permit-Cowlitz County. The Cowlitz County Critical Areas 

permit would be needed to address compliance with the County's Critical Areas Ordinance 

related to the presence and protection of Critical Aquifer Recharge Areas located on site. 

4.4.7 

Clean Water Act Section 401 Water Quality Certification-Washington State Department 

of Ecology. This certification would be required to ensure impacts from construction and 

operation of the Proposed Action to groundwater quality would not violate state water quality 

standards. 

National Pollution Discharge Elimination System Construction Stormwater PermitWashington State Department of Ecology. The NPDES Construction Storm water Permit 

would be required for storm water discharges during construction of the Proposed Action. All 

wastewater and stonnwater generated in the project area and potentially discharged from the 

project area after treatment would be evaluated and characterized by the state. Once the water 

to be discharged has been accurately evaluated and characterized by the state, the specific 

standards for water discharged from the project area would be defined and the type ofNPDES 

permit would be determined and issued. 

National Pollution Discharge Elimination System Industrial Storm water PermitWashington State Department of Ecology. The NPDES Industrial Stormwater Permit would be 

required for stormwater discharges related to operation of the Proposed Action. All wastewater 

and stormwater generated in the project area and potentially discharged from the project area 

after treatment would be evaluated and chat·acterized hy the state. Once the water to be 

discharged has been accurately evaluated and characterized by the state, the specific standards 

for water discharged from the project area would be defined and the type of NPDES permit 

would be determined and issued. 

Water Rights-Washington State Department ofE:cology. The Applicant will need to ensure 

the original water rights are valid and in good standing prior to using those rights. lfthe water 

rights are valid, it is the Applicant's or Northwest Alloys' responsibility to maintain those water 

rights in good standing. If these water rights are partially or fully relinquished, the Applicant 

must apply for and ohtain the necessary water rights to legally put water to beneficial use at the 

project site. If stonnwater is collected and reused for a beneficial use. a Water Right Permit 

would be required in accordance with Chapter 90.03 RCW. 

Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce impacts related to 

groundwater from construction and operation ofthe Proposed Action. These mitigation measures 

would be implemented in addition to project design measures, best management practices, and 

compliance with environmental permits, plans. and authorizations that are assumed as part of the 

Proposed Action. 

4.4.7.1 Applicant Mitigation 

The Applicant will implement the following measure to mitigate impacts on groundwater. 

Mil!enmum Bulk Termmals-Longview 

Final SEPA Environmental impact Statement 4.4·25 April7017 
222 


31623.153

Chapter 4_ Natural Environment: 

Cowlitz County Existmg Conditions, Project !rnpacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.4.8 

MM WQ-1. Locate Spill Kits Near Main Construction and Operation Areas 

The Applicant will locate spill response kits throughout the project area during construction and 

operations. The spill response kits will contain response equipment and personal protective 

equipment appropriate for hazardous materials that will be stored and used during construction 

and operations. Site personnel will be trained in the storage. inventory, and deployment of items 

in the spill response kits. Spill response kits will be checked a minimum of four times per year to 

ensure proper-functioning condition, and will otherwise be maintained and replaced per 

manufacturer recommendations. Should a spill response kit be deployed, the Applicant will 

notify Cowlitz County and Ecology immediately. The Applicant will submit a map indicating the 

types and locations of spill response kits to Cowlitz County and Ecology for approval prior to 

beginning construction and operations. 

Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of mitigation measures and design features described 

above would reduce impacts on groundwater. There would be no unavoidable and significant 

adverse environmental impacts on groundwater. 

Millenn1um Bulk Terminals Longview 

Final SEPA Enwonmentallmpact Statement 4.4-26 Apnl 2017 
223 


31623.154

Cowhtz County 

Washmgton State Department of Ecology 

4.5 Water Quality 

Chapter 4. Natural Environment 

Existing Conditions, ProJeCt Impacts, 

and Proposed Mitigation Measures 

Surface water is used for a wide range of purposes, including wildlife habitat, industrial process 

water, drinking water, irrigation, flood control, and recreational activities. The quality of these 

resources refers to the physical, chemical, biological, and aesthetic characteristics of the water body. 

Water quality can be degraded by contaminants introduced through domestic, industrial, and 

agricultural practices. Water quality impacts can occur with changes in turbidity, suspended 

sediment, and temperature, and the introduction of a variety of physical and chemical pollutants. 

This section describes water quality in the study area. It then describes impacts on water quality 

that could result from construction and operation of the Proposed Action and No-Action Alternative. 

This section also presents the measures identified to mitigate impacts resulting from the Proposed 

Action. 

4.5.1 Regulatory Setting 

Laws and regulations relevant to water quality are summarized in Table 4.5-1. 

Table 4.5-1. Regulations, Statutes, and Guidelines for Water Quality 

Regulation, Statute, Guideline 

Federal 

Clean Water Act (33 USC 1251 et seq.) 

Safe Drinking Water Act 

( 42 USC 300f et seq.) 

National Pollutant Discharge Elimination 

System Permit (40 CFR 122) 

National Pollutant Discharge Elimination 

System Vessel General Permit 

Millennium Bulk Terminals Longv1ew 

Fmal SEPA Environmentallmpact Statement 

Description 

Authorizes EPA to establish the basic structure for 

regulating discharges of pollutants into the waters of the 

United States and regulating quality standards for surface 

waters. 

Requires the protection of groundwater and groundwater 

sources used for drinking water. Also, requires every 

state to develop a wellhead protection program. EPA is 

the responsible agency. 

Controls water pollution by regulating point sources that 

discharge pollutants into waters of the United States. 

Industrial, municipal, and other facilities must obtain 

permits if their discharges go directly to surface waters. 

Authorized by the Clean Water Act. EPA is the responsible 

agency but typically delegates authority to state resource 

agencies. 

Regulates incidental discharges from the normal 

operation of vessels. These incidental discharges include, 

but arc not limited to, ballast water, bilge water, 

graywater (e.g., water from sinks, showers), and 

antifoulant paints (and their leachate). Such discharges, if 

not adequately controlled, may result in negative 

environmental impacts via the addition of traditional 

pollutants or, in some cases, by contributing to the spread 

of aquatic invasive species. Authori7.ed by the Clean Water 

Act. EPA is the responsible agency. 

4.5-1 Apnl2017 
224 


31623.155

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Ballast Water Management (33 CFR 151) 

Washington State 

Clean Water Act Section 401 Water 

Quality Certification 

Drinking Water /Source Water Protection 

(RCW 43.20.050) 

Model Taxies Control Act (RCW 70.105D) 

State Water Pollution Control Law 

(RCW 90.48) 

Water Resources Act of 1971 

(RCW 90.54) 

Water Quality Standards for Surface 

Waters of the State of Washington 

(WAC 173-201A) 

Ballast Water Management 

(RCW 77.120) 

National Pollutant Discharge Elimination 

System Permit Program 

(WAC 173-220) 

Model Taxies Control Act- Cleanup 

Regulation 

(WAC 173·340·300) 

Sediment Management Standards 

(WAC 173·204) 

Washington State Oil and Hazardous 

Substance Spill Prevention and Response 

(RCW 90.56) 

Oregon State 

Treatment Requirements and 

Performance Standards for Surface Water, 

Groundwater Under Direct Influence of 

Surface Water, and Groundwater (OAR 

333-061-0032) 

Oregon Drinking Water Quality Act (DRS 

448.119 to 448.285; 454.235; and 

454.255) (applicable to Columbia River) 

Millennium Bulk Terminals-Longview 

Fmal SEPA Environmental Impact Statement 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and ProposPd Mitigation Measures 

Description 

Establishes hallast discharge standards and vessel 

requirements to meet those ballast discharge standa1·ds. 

The U.S. Coast Guard is the responsible agency. Such 

discharges, if not adequately controlled hy these 

regulatory requirements, may result in the spread of 

organisms that may adversely affect the environment. 

Ecology issues Section 401 Water Quality Certification for 

aclivities, which may result in any discharge into waters 

of the state to ensure compliance with state water quality 

standards and other aquatic resources protection 

requirements under Ecology's authority as outlined in the 

federal Clean Water Act. 

Ensures safe and reliable public drinking water supplies 

in cooperation with local healtb departments and water 

purveyors. Ecology is the responsible agency. 

Requires potentially liable persons to assume 

responsibility for cleaning up contaminated sites. Ecology 

is the responsible agency. 

Provides Ecology with the jurisdiction to control and 

prevent the pollution of streams, lakes, rivers, ponds, 

inland water, salt waters, watercourses, and other surface 

and groundwater in the state. 

Sets forth fundamental policies for the state to ensure that 

waters of the state are protected and fully used for the 

greatest benefit. Ecology is the responsible agency. 

Establishes water quality standards for surface waters of 

the state of Washington. Ecology is the responsible 

agency. 

Governs discharge of ballast water into waters of the 

state. Includes reporting and testing requirements. 

WDFW is the responsible agency. 

Establishes state individual permit program for discharge 

of pollutants and other wastes and materials to surface 

waters of the state. 

Requires reporting of hazardous substance releases if 

they may constitute a threat to human health or the 

environment. 

Establishes administrative procedural requirements and 

criteria to identify, screen, evaluate and prioritize, and 

cleanup contaminated surface sediment sites. 

Requires notification of releases of hazardous substances 

and establishes procedures for response and cleanup 

Establishes water quality standards for groundwater to 

meet current state and federal safe drinking water 

standards. Oregon DEQ is the responsible agency. 

Ensures safe and reliable public drinking water supplies 

in cooperation wilh local health departments and water 

purveyors. Oregon DEQ is the responsible agency. 

4.5-2 Apri12017 
225 


31623.156

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Water Quality Standards: Beneficial Uses, 

Policies, And Criteria for Oregon 

Oregon State Legislature: Turbidity 

Rule (OAR 340-041-0036) 

Local 

Cowlitz County Storm water Ordinance 

(CCC 16.22) 

Cowlitz County (CCC 19.15] 

Cowlitz County Phase II Municipal 

Storm water Management Plan 

City of Longview Stormwater Ordinance 

Notes: 

Description 

Chapter 4. Natura! Env1ronment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Establishes the following turbidity standard: No more 

than a 10% cumulative increase in natural stream 

turbidities may be allowed, as measured relative to a 

control point immediately upstream of the turbiditycausing activity. However, limited-duration activities to 

address an emergency, essential dredging, construction, 

or other legitimate activities that cause the standard to be 

exceeded may he authorized, provided all practicable 

turbidity control techniques have been applied. Oregon 

DEQ is the responsible agency. 

Establishes minimum standards to guide and advise all 

who make use of, contribute to, or alter the surface 

waters and storm water drainage systems in the County. 

Requires the County to designate critical areas such as 

wetlands; aquifer recharge areas; geologically hazardous 

areas; fish and wildlife habitat; and frequently nooded 

areas; and adopt development regulations to assure the 

protection of such areas. 

Requires Cowlitz County to develop a SWM P and update it 

at least annually. The SWM P incorporates best 

management practices to reduce the discharge of 

pollutants from the regulated area to the maximum extent 

practicable in order to protect water quality. 

Establishes methods for controlling the introduction of 

runoff and pollutants into the municipal storm drain 

system (MS4) in order to comply with requirements of 

the Western Washington Phase II Municipal Storm water 

NPDES Construction Storm water Permit process. 

USC= United States Code; EPA= U,S. Environmental Protection Agency; CFR =Code of Federal Regulations; 

RCW =Revised Code of Washington; Ecology= Washington State Department of Ecology; WAC= Washington 

Administrative Code; WDFW =Washington Department of Fish and Wildlife; OAR= Oregon Administrative Rules; 

Oregon DEQ Oregon Department of Environmental Quality; ORS Oregon Revised Statutes; CCC Cowlitz 

County Code; SWMP = stormwater management plan 

4.5.2 Study Area 

The study area for direct impacts on water quality is the project area and an area extending 300 feet 

from the project area into the Columbia River. This portion of the study area accommodates the 

analysis ofin-water construction and dredging impacts on water quality and sediment quality 

associated with suspended sediment and elevated turbidity. The study area also incorporates 

potential in-river dredged material disposal sites and the area extending 300 feet downstream of 

each disposal site (Figure 4.5-1]. 

The study area for indirect impacts on water quality incorporates the project area, the Consolidated 

Diking and Improvement District (CD !D) #1 stormwater system drainage ditches adjacent to the 

project area, the Columbia River up to 1 mile downstream of the project area, and potential in-river 

dredged material disposal sites plus an area extending 300 feet downstream of each disposal site. 

Millenmum Bulle Terminals-longview 

Fmal SEPA Environmental Impact Statement 4.5-3 April 2017 
226 


31623.157

~ E . ~ ] ~a 

§~ 

IE E ~~ l E • 

~ .~ ffi ~ E~ 

" E ~ ~ 

~ ~] 
227 


31623.158

Cowlitz County 

Washmgton State Department of Ecology 

4.5.3 Methods 

Chapter <l. Natura! Environment. 

Existing Conditions, Project Impacts, 

and Proposed MitigatiOn Measures 

This section describes the sources of information and methods used to evaluate the potential 

impacts on water quality associated with the construction and operation of the Proposed Action and 

No-Action Alternative. 

4.5.3.1 Information Sources 

The following sources of information were used to identify the potential impacts of the Proposed 

Action and No-Action Alternative on water quality in the study area. 

Reports on haseline water conditions at the project area and Columbia River (Anchor QEA 2014; 

Oregon Department of Environmental Quality 2012; Washington State Department of Ecology 

2014; Grettc 2014a, 2014b, 2014c; URS Corporation 2014) 

Reports on the salmon populations in the Columbia River (Ewing 1999; National Marine 

Fisheries Service 2011) 

Report on taxies in the Columbia River (U.S. Environmental Protection Agency 2009) 

• Beneficial and recreational uses of the Columhia River (Oregon Department of Environmental 

Quality 2003; Oregon State Marine Board 2012) 

4.5.3.2 Impact Analysis 

The following methods were used to evaluate the potential impacts of the Proposed Action and 

No-Action Alternative on water quality. 

The analysis of direct construction impacts was based on peak construction period, while operations 

impacts were based on maximum throughput capacity (up to 44 million metric tons per year). 

Potential water quality impacts were evaluated with respect to existing water quality conditions and 

Proposed Action-related water usage and discharge. The assessment of impacts also assumes the 

Proposed Action would comply with all laws and regulations regarding water quality and sediment 

quality including new state water quality standards, required National Pollution Discharge 

Elimination System (NPDES] permits, and verification of water rights. Potential impacts on water 

quality of groundwater resources are covered in Section 4.4, Groundwater. For direct impacts, the 

analysis assumes best management practices, as required by permits and identified in Appendix E, 

Design Features, were incorporated into the design, construction, and operation of the Proposed 

Action. 

4.5.4 Existing Conditions 

This section describes the existing environmental conditions in the study area related to water 

quality that could be affected by construction and operation of the Proposed Action and the NoAction Alternative. 

The project area is located along the north shore of the Columbia River and lies within COlD #1. The 

project area is drained by a system of ditches, which provide treatment of stormwater before it is 

discharged to the Columbia River and CDID #1 (Ditches #10 and #14]. 

Millennium Bulk Termma!s Longview 

Final SEPA Environmental impact Statement 4.5-5 April 2017 
228 


31623.159

Cowlitz County 

Washington State Department of Ecology 

4.5.4.1 Project Area Characteristics 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed MitJgation Measures 

The water quality characteristics of the project area are described in this section. 

Drainage 

Storm water and shallow groundwater drainage for the project area are controlled by a system of 

ditches, pump stations, treatment facilities, and outfalls, shown in Figure 4.5-2. All of these facilities 

operate under a single NPDES Industrial permit. Project area drainage is either held on site until it 

evaporates, discharged to surrounding CDID #1 ditches (Ditches 10 and 14), collected, treated and 

discharged through Outfall 002A to the Columbia River. 

The following is a brief description of drainage components in the Applicant's leased area. 

Sheet How and infiltration. Subbasins 4A, S, SA, SB, 6A, and 7 receive sheet flow from storm 

events where it subsequently infiltrates or evaporates. 

• Columbia River discharge. Subbasins 1, 2, 3A, 4, and 6 are conveyed via pumped systems or 

gravity to Facility 73, where they are treated and then discharged to the Columbia River via 

Outfall 002A. 

CDID #1 discharge. Subbasin 3 flows through a vegetated ditch that discharges to Ditch 10 

through Outfall 003C. During larger storm events, overflow from Subbasin 2 and SubbasinS can 

discharge to the CD!D #1 ditch system. Subbasin 2 overflows would discharge to Ditch14 

through Outfall 006. This is a designed overflow system and it is equipped with a high flow 

alarm to alert staff when it is activated. SubbasinS flows can enter a vegetated ditch that 

discharges to Ditch 10 through Outfall 005. Ultimately, all CDID #1 ditch flows discharge to the 

Columbia River. 

• Drainage features on Parce\10Z13. These features include three vegetated ditches, two 

unvegetated ditches, and a shallow depression, which may collect storm water. Two of the 

vegetated ditches run north-south across the two larger portions ofParcel10213. They are 

narrow and linear and convey stormwater to a culvert approximately 16 inches in diameter 

located at the north end oftbese ditches which then empties into Ditch 10. The third vegetated 

ditch consists of three segments of linear vegetated ditches adjacent to Industrial Way. These 

three ditches are connected by two culverts that are beneath the site's access roads. This feature 

likely collects storm water from Industrial Way and adjacent areas and conveys it to Ditch 10. 

One unvegetated ditch runs parallel to Ditch 10 and consists of two sections of a narrow ditch 

that was likely constructed to intercept shallow groundwater that was affecting agricultural use 

of tbe site. This unvcgetated ditch is several feet deep, near vertical along its sides, and is 

bisected by one of the vegetated ditches that runs parallel across the site; however, there is no 

surface hydrology connection between these two ditches. The other unvegetated ditch serves as 

the outlet channel for the stormwater pond. This ditch is located at the northeast end of the 

stormwater pond and conveys excess stormwater from the pond to Ditch 10 through a 16-inch 

culvert All six features are privately owned and are not managed by CDID #1. 

Millennium 13ulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.5-6 April2017 
229 


31623.160

c 

·e 

c( 

., 

5( 

0 

c. 

e 

... 

.. 

;; 

'E 

:c ~ ] ~ .. ' ~ 

~~ : 0 .. " .. ~ .. 

c !f 

l ·;;; 

Q 1i 

• E 

..,; !"- 0 

~~ ~ e ,;, ~ ~ 

8 ~ ~ Ew 

~ 2~ 

~~ ~ ~ 

u3 ~ " ~~ 
230 


31623.161

Cowlitz County 

Washington State Department of Ecology 

Consolidated Diking Improvement District# 1 

Chapter 4. Natura! Environment: 

Existing Cond1t1ons, PrOJect lmpacts, 

and Proposed Mitigation Measures 

The project area is served by the COlD #1 system of levees and ditches, which protect the project 

area from fiooding. Water from Ditches 5, 10, and 14 in the study area was tested in 2006,2011, and 

2012 to determine levels of cyanide and fluoride (contaminants associated with the site cleanup). 

Total Suspended Solids were also tested. The results showed that water quality standards were met 

and there were no water quality exceedances or violations of established Washington State water 

quality standards (Anchor QEA 2014). The entire COlD #1 ditch system discharges to the Columbia 

River. 

Columbia River 

The Columbia River fiows along the southwest project area boundary. Near the project area, the 

river is fresh water but is tidally influenced. The project area is located at river mile 63. The river's 

discharge rate fluctuates with precipitation, snowmelt, and reservoir releases. Flows in the river 

range from a low of about 63,600 cubic feet per second (cfs) to a maximum fiow of about 864,000 cfs 

depending on conditions in the watershed (U.S. Geological Survey 2014). The Columbia River's 

annual cycle is driven by snowmelt and the general climate of the Pacific Northwest, which produces 

high flows during the spring snowmelt period and low flows during the late summer and early fall. 

The river's flow, however, is highly managed through operation of the many hydroelectric and 

irrigation dams that exist throughout the basin. The average annual discharge ranges from about 

120,000 cfs during a low water year to about 260,000 cfs during a high water year (Washington 

State Department of Ecology 2016a). 

Surface water quality in the Columbia River is influenced by geology, point-source and nonpointsource pollution, groundwater, and the natural fiow regime. In 2009, the U.S. Environmental 

Protection Agency (EPA) listed the Columbia River in Washington's Water Resources Inventory Area 

(WRIA) 25 (which includes the projecl area) on the federal Clean Water Act Section 303(d) list as 

exceeding water quality criteria for certain parameters. Portions of the Columbia River within WRIA 

25 are listed as a Category 4a for dioxin. If a water body is listed as Category 4a, it indicates that the 

water has identified pollution problems and that an approved total maximum daily load (TMDL) 

limit is actively being implemented for the listed water quality parameters. 

4.5.4.2 Water Quality Characteristics and Criteria 

Designated Beneficial Uses 

Designated beneficial uses for a water body, as established in the Clean Water Act, are used to design 

protective water quality criteria, to assess the general health of surface waters, and to establish 

thresholds for future permit limits. Table 4.5-2 provides a list of the beneficial uses for the Columbia 

River as defined by the Washington State Department of Ecology (Ecology) and the Oregon 

Department of Environmental Quality (Oregon DEQ). A designated beneficial use provides a water 

body's assessed function or utility, and if a water body fails to meet the established water quality 

standards (see Water Quality Impairments), the water body's designated use can he adversely 

affected. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental impact Statement 4.5-8 April 2017 
231 


31623.162

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, ProJect Impacts, 

and Proposed M1t1gation Measures 

Table 4.5-2. Beneficial Uses for the Columbia River 

Washington State Department of Ecology• 

Domestic water supply 

Industrial water supply 

Agricultural water supply 

Stock water supply 

Spawning/rearing uses for aquatic life 

Harvesting 

Boating 

Primary contact for recreation uses 

Commerce/navigation 

Aesthetics 

Notes: 

Oregon Department of Environmental Quality" 

Public domestic water supply; private domestic 

water supply 

Industrial water supply 

Irrigation 

Livestock watering 

Fish and aquatic life 

Fishing; wildlife and hunting 

Boating 

Water contact recreation 

Commercial navigation and transportation 

Aesthetic 

Washington State Department of Ecology (2012J) approved uses for the Columbia River from its mouth to 

river mile 309.3. 

Water Quality Impairments 

The Columbia River faces water quality issues that endanger the health of important habitats found 

throughout the basin. Portions of the Columbia River are considered impaired for a number of water 

quality factors according to the EPA-approved 303(d) lists for Washington and Oregon. Table 4.5-3 

shows the 303(d) listed impairments for water quality factors in the study area. 

Table 4.5-3. 303(d) listed Impairments for Surface Waters in the Study Area 

Parameter 

Arsenic 

Bacteria 

DDE4,4 

Dioxin (2.3,7,8-TCDD) 

Dioxin 

Dissolved Oxygen 

PCB 

Washington 

Columbia River Ditch 5 

4Ab 

Oregon' 

Columbia River 

5 

4A" 

J Category 5 waters are impaired 303(d) waters, which means water quality standards have been violated for 

one or more pollutants and a TMDL or other water quality improvement is required. 

b Category 4A listing indie<1tes a TMDL has been developed and is actively being implemented. 

Oregon 2012 303(d) list is pending approval from EPA. The 2010 effective list for this segment of the Columbia 

River is the same as the 2014 list that is pending approval by EPA. 

Sources: Washington Slate Department of Ecology 2016b; Oregon Department of Environmental Quality 2012 

DOE Dichlorodiphenyldichloroethylene; TCDD = Tetrachlorodibenzo-p-dioxin; PCB= polychlorinated biphenyl; 

TMDL =total maximum daily load 

Millennium Bulk Terminals Longview 

Fmal SEPA Environmental Impact Statement 4.5·9 April 2017 
232 


31623.163

Cowl1tz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Condtt10n.s, Project Impacts, 

and Proposed Mitigation Measures 

The State of Washington recently finalized its 2012 water quality assessment and 303(d) list of 

impaired waters. According to this 303(d) list, in the study area, the Washington state portion of the 

Columbia River is impaired (i.e., Category 5) for water temperature and bacteria (Washington State 

Department of Ecology 2016b ). In addition, Ditch 5 in the study area is listed as impaired for 

dissolved oxygen. Oregon has listed the Columbia River in the study area as impaired for arsenic, 

dichlorodiphenyldichloroethylene (ODE) 4,4, and polychlorinated biphenyls (PCBs ). 

Sediment sampling from within, adjacent to, and upstream of the project area (to approximately 

river mile 68) has demonstrated that in deepwater areas of the Columbia River, sediments are 

typically composed of silty sands with a low proportion of fines and very low total organic carbon. 

Further, sediments sampled from deepwater areas in the vicinity of the project area have 

consistently met suitability requirements for flow lane disposal or beneficial use in the Columbia 

River (Grette 2014b: Appendix B). Sediment testing performed by the Applicant in the project area 

has revealed no exceedance of sediment-management standards at any nearshore or offshore 

location, except for in a localized area immediately adjacent to the existing Outfall 002A. Testing 

criteria were exceeded at one location downstream of the outfall, but did not exceed criteria for 

human health protection (Anchor QEA 2014 in Grette 2014b: Appendix B). The distribution of 

contamination was limited in area and depth to an isolated layer 6 inches thick, and the 

contamination source was identified as an historical discharge and not the result of an ongoing 

release (Grette 2014b: Appendix B). The affected sediment was removed and backfilled in 

November 2016. 

The water quality impairments in the study area result from a variety of practices throughout the 

Columbia River basin that degrade water quality, primarily human activities. Elevated water 

temperatures, increased nutrient loading, reduced dissolved oxygen, and increased toxic 

contaminants in the basin pose risks to fish and wildlife, as well as to people. Sources of these 

contaminants include agricultural practices, urban and industrial practices, riparian practices, and 

climate change (National Marine Fisheries Service 2011). A summary of the water quality conditions 

of the greater Columbia River as a result of the basin-wide activities that can affect water quality are 

described in the following sections. 

Baseline Water Quality Conditions 

General baseline conditions for the broader Columbia River basin as well as the lower Columbia 

River and Estuary in the vicinity of the project area are described below. 

Columbia River Basin 

The four primary contaminants found in the broader Columbia River basin are mercury, 

dichlorodiphenyltrichloroethane (DDT) and its breakdown products, PCBs, and polybrominated 

diphenyl ether (PBDE) flame retardants. Other contaminants found in the basin include 

radionuclides, lead, pesticides, industrial chemicals, and newly emerging contaminants such as 

pharmaceuticals and personal care products (U.S. Environmental Protection Agency 2009). 

Lower Columbia River and Estuary in Vicinity of the Project Area 

The lower Columbia River and estuary is the 146-mile reach from the Bonneville Dam downstream 

to the Pacific Ocean. Monitoring results have shown high levels of contaminants such as PCBs, 

polyaromatic hydrocarbons (PAHs), DDT, and PBDEs in juvenile salmon tissue, water, and sediment. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.5-10 AprH 2017 
233 


31623.164

CowlitZ County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Studies have shown that flame retardants and endocrine-disrupting compounds in water, sediment, 

fish, and osprey eggs increase downstream from Skamania to Longview (Lower Columbia Estuary 

Partnership 2015). 

Trace metals such as aluminum, iron, and manganese are predominantly transported in the 

suspended/solid phase, whereas arsenic, barium, chromium, and copper are transported in the 

dissolved phase. Water temperatures in the lower Columbia are generally warmest in August, when 

daily mean water temperatures often exceed 20 degrees Celsius (

0

C). In general, dissolved oxygen 

saturation is relatively high and turbidity is relatively low. Data collected on September 11, 2015, at 

river mile 53 located near the Beaver Army Terminal indicated an oxygen saturation of 85.5% 

(9.17 mg/1), temperature of 20.03°(, and turbidity of 1.61 nephelometric turbidity units (NTU). For 

contrast, data collected just below the Bonneville Dam at river mile 145 indicated an oxygen 

saturation of 97.9% (10.5 milligrams per liter), temperature of 20.07°C, and turbidity of 2.27 NT Us 

(Center for Coastal Margin Observation & Prediction 2015). 

On a more localized hasis near the project area, the following average values were recorded in the 

lower Columbia: oxygen saturation of 73.62% (7.9 milligrams per liter), temperature of 20.96°C, and 

turbidity of9.9 NT Us (Weyerhaeuser, NPDES Permit 0000124). 

Water Quality Attributes 

Water Clarity 

Water clarity refers to the amount of light that can penetrate water. Water clarity is an important 

parameter for assessing water quality because lower clarity increases water temperatures and 

adversely affects photosynthesis. Suspended sediment can clog the gills of fish and reduce their 

resistance to disease, cause lower growth rates, and affect egg and larval development While both 

suspended sediment concentration and turbidity are common metrics of water clarity, turbidity 

data are used to characterize baseline conditions. 

Water clarity can vary greatly in the Columbia River. U.S. Geological Survey (USGS) provisional data 

from the 2014 water year, collected near Quincy, Oregon, reported elevated turbidity (U.S. 

Geological Survey 2015) that was generally higher than during the 2007 water year, when water 

clarity was rated as poor (U.S. Environmental Protection Agency 2007). However, elevated turbidity 

levels, or poor water clarity, in rivers such as the Columbia River, arc a natural condition that occurs 

during storm events and periods of high seasonal runoff and does not necessarily mean the water 

quality conditions are poor. 

Biological Indicators 

EPA, in collaboration with the Lower Columbia Estuary Partnership, reported the following 

additional parameters in 2007 (U.S. Environmental Protection Agency 2007). 

Dissolved nitrogen and phosphorus. 100% of the estuarine area was rated good for dissolved 

nitrogen, while 70% of the estuarine area was rated fair for dissolved phosphorus. 

• Chlorophyll a. 29% of the estuarine area was rated fair for this indicator, with the remaining 

71'Yt• of the area rated good. 

• Dissolved oxygen. 99% of the estuarine area rated good for this indicator. 

Millennium Bulk Termtnals-Longview 

Final SEPA Environmental Impact Statement 4.5-11 April 2017 
234 


31623.165

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Extstmg Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Sediment quality. 89% of the estuary as a whole rated good, while 11% was rated poor. The 

sediment quality index is rated based on three component indicators: sediment toxicity, 

sediment contaminants, and sediment total organic carbon. The estuarine area rated poor 

exceeded thresholds for one or more of these indicators. 

Temperature 

Water temperature is an important parameter for assessing baseline water quality. The Columbia 

River is impounded at many locations. These impoundments contribute to elevated water 

temperature by ponding water and increasing exposure to solar radiation. Although EPA and the 

Lower Columbia Estuary Partnership did not rate the Columbia River Estuary regarding water 

temperature, because water temperature affects the water's capacity for dissolved oxygen, if 

dissolved oxygen levels are considered good, water temperatures are also fairly good. 

Chemical Indicators 

USGS conducted a survey of water quality in the Columbia River estuary with data from 2004 and 

2005. Major findings of this study are as follows (U.S. Geological Survey 2005). 

• The median copper concentration was 1.0 microgram per liter, a level shown to have inhibitory 

effects on juvenile coho salmon. 

• Of the 173 pesticides and degradation products analyzed, 29 were detected at least once, 

oftentimes with two or more products occurring in a sample together. Fourteen samples with 

multiple products were detected (no concentrations were provided). 

• Of the 54 wastewater products analyzed, eight were detected at least once, usually at trace 

levels. The known endocrine disruptor bisphenol A was detected. 

• Of the 24 pharmaceuticals analyzed, acetaminophen, a common analgesic, and 

diphenhydramine, a widely used antihistamine, were detected. This is an indicator of human 

sources of water contamination, likely from wastewater treatment plant effluent 

During the seasonal samplings of suspended sediment at four sites, no organochlorine 

compounds or PAHs were detected. 

Practices that Degrade Water Quality 

Human activity has degraded water quality in the Columbia River estuary. Elevated water 

temperatures, increased nutrient loading, reduced dissolved oxygen, and increases in toxic 

contaminants pose risks to fish and wildlife, as well as to people. Sources of these contaminants 

include agricultural practices, urban and industrial practices, and riparian practices (National 

Marine Fisheries Service 2011). 

Agricultural Practices 

Agricultural practices contribute nutrients (nitrogen and phosphorus), sediment, and organic 

compounds (e.g., pesticides) and trace metals to runoff (U.S. Environmental Protection Agency 

2014). Increased nutrient loads have been found to result in increased phytoplankton 

concentrations, increased turbidity, and depressed dissolved oxygen levels, especially in areas with 

lower flows and warmer water temperatures (Fenn et aL 2003). Increased sediment loads into 

surface waters can cause potential adverse impacts on aquatic resources. Common sediment 

Mtllennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.5·12 Apri12017 
235 


31623.166

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

impacts include deposition and scouring that can smother or dislodge benthic organisms; effects of 

turbidity (suspended sediment) which can affect aquatic organisms (e.g., clogging fish gills), alter 

water temperatures (by absorbing and scattering sunlight), and reduce light penetration which 

alters primary productivity and affects plants' ability to photosynthesize; and sediment binding to 

chemicals that can have toxic effects on organisms. 

Banned pesticides, including DDT, persist in the environment, and pesticides currently in use 

continue to run off into the estuary (Ewing 1999). The pesticides atrazine, simazine, metolachlor, 

S-ethyl dipropylcarbamothioate, dimethyl tetrachloroterephthalate, and diu ron are present at sites 

throughout the Columbia River estuary, often in combination (U.S. Environmental Protection Agency 

2009). Pesticides have the potential to harm benthic invertebrates, fish, amphibians, and various 

stream microbes. 

Trace metals can affect aquatic organisms depending on the metal, the species, and the environment 

in which it is deposited. Excessive concentrations of some metals can lead to dysfunction of the 

endocrine system, of reproduction, and growth. Moreover, those metals that can be accumulated in 

tissues and organs may adversely affect cellular functions by interacting with enzymes, which can 

lead to disturbances of growth, reproduction, the immune system, and metabolism ()akimska eta!. 

2011). 

Urban and Industrial Practices 

Sources that affect water quality are separated into two groups: point sources and non-point sources. 

Point sources are easily identified by a concentrated outlet to a receiving water, where the origin of 

flow is single known source (e.g., municipal wastewater treatment plant). Non-point sources 

contribute from a variety of locations within a given area. Eventually, non-point sources can be 

concentrated to a single outlet to a receiving water, but each source is not known or difficult to 

determine (e.g., lawn fertilizer from one or many unknown homes within a watershed). Over 100 

point sources discharge directly into this stretch of the Columbia River, including chemical plants, 

hydroelectric facilities, pulp and paper mills, municipal wastewater treatment plants, and seafood 

processors (Ewing 1999). 

The largest point source discharger in the Columbia Basin is Portland's wastewater treatment plant 

(approximately 40 miles upstream of the project area). Nutrient loads from the plant account for 2% 

to 3% of the annual in-stream nutrient loads at the Beaver Army Terminal water quality sampling 

site in Quincy, Oregon. Effluent from existing pulp and paper mills also discharges dioxins and 

chlorinated phenols to the river (Ewing 1999). Pulp mill effluent is generally high in organic content 

and contains pollutants such as adsorbable organic halides, toxic dyes, bleaching agents, salts, acids, 

and alkalis. Heavy metals such as cadmium, copper, zinc, and chromium are often also present 

(Oberrecht 2014). Effluents from these point sources are regulated under NPDES permits, and 

violations can incur enforcement actions and fines. 

Riparian Practices 

Shoreline modifications, timber harvest, and agricultural activities in riparian zones, and residential, 

commercial, and industrial development along the Columbia River have resulted in a significant loss 

of riparian habitat function in the area (Ewing 1999). Healthy riparian habitat conditions (i.e., 

connected, forested riparian zones) could help to regulate water temperatures, depending on the 

size of the stream and the extent of shading, and contribute to aquatic habitat conditions and 

complexity (i.e., woody debris, bank stability, allochthonous inputs). In the study area, riparian 

Millennium Bulk Terminals-Longview 

Flna! SEPA Environmental Impact Statement 4.5-13 Apnl2017 
236 


31623.167

Cowlitz County 

Wasllmgton State Department of Ecology 

Chapter 4. Natura! Environment: 

Existing Conditions, ProJect Impacts, 

and Proposed Mitigation Measures 

habitat conditions and the functions provided by riparian habitat are generally degraded (Ewing 

1999). 

4.5.5 Impacts 

This section describes the potential direct and indirect impacts related to water quality that would 

result from construction and operation of the Proposed Action and the No-Action Alternative. All 

wastewater and storm water generated in the project area and potentially discharged from the 

project area after treatment would be evaluated and characterized by the state. Once the water to be 

discharged has been accurately evaluated and characterized by the state, the specific standards for 

water discharged from the project area would be defined and the type of NPDES permit would be 

determined and issued. 

4.5.5.1 Proposed Action 

This section describes the potential impacts that could occur in the study area as a result of 

construction and operation of the Proposed Action. 

Construction activities that could affect water quality include the following. 

Ground disturbance associated with construction 

Delivering, handling, and storing construction materials and waste 

Using heavy construction equipment 

In- and above-water work and dredging activities and disposal 

Demolishing existing structures 

Preloading ground for coal stockpiles 

Operational activities that could affect water quality include the following. 

Coal spills from rail unloading and vessel loading 

Transport of airborne fugitive coal dust from stockpiles or rail cars 

Operating and maintaining heavy equipment and machinery 

Maintenance dredging and disposal 

Unloading of8 trains a day 

Loading of 70 ships a month 

The Applicant has identified the following design features and best management practices to be 

implemented as part of the Proposed Action, and were considered when evaluating potential 

impacts of the Proposed Action. These would be evaluated during the NPDES permit process. 

BMP C200: Interceptor Dike and Swale. A ridge of compacted soil, or a ridge with an upslope 

swale, would be provided at the top or base of a disturbed slope or along the perimeter of a 

disturbed construction area to convey stormwater. The dike and/or swale would be used to 

intercept the runoff from unprotected areas and direct it to areas where erosion can be 

controlled. This would be used to prevent storm runoff from entering the work area or 

sediment-laden runoff from leaving the construction site. 

Milfennium Bulk Terminals Longv1ew 

Final SEPA Environmental Impact Statement 4.5-14 Apnl2017 
237 


31623.168

Chapter 4. Natura! Environment: 

Cowlitz County 

Washmgton State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

• The pads and berms would be made of low permeability engineered material. The use of low 

permeability engineered materials for formation of the pads and berms would control water 

from entering subsurface soil or groundwater. 

• The stockyard and berms would be graded to allow the water to drain and be collected for 

treatment and reuse. 

• Drainage systems would be designed such that runoff within the project area would be collected 

for treatment before reuse or discharge. Best management practices that would be part of the 

coal export terminal's design to maximize the availability of water for reuse include the 

following. 

o Enclosed conveyor galleries 

o Enclosed rotary unloader building and transfer towers 

o Washdown collection sumps for settlement of sediment 

o Regular cleanout and maintenance of wash down collection sumps 

o Containment around refueling, fuel storage, chemicals and hazardous materials 

o Oil/water separators on drainage systems and vehicle wash down pad 

o Requirement that all employees and contractors receive training, appropriate to their work 

activities, in the site best management practices 

o Design of docks to contain spillage, with rainfall runoff and washdown water contained and 

pumped to the upland water treatment facilities 

o Design of system to collect and treat all runoff and washdown water for either reuse for 

on site (dust suppression, washdown water or fire system's needs] or discharged off site 

o The wharf area would be sealed to capture the washdown water and storm water runoff, 

preventing it from flowing to the River without treatment. 

• Stormwater, sediment, and erosion control best management practices would be installed in 

accordance with the Stormwater Management Manual for Western Washington and Cowlitz 

County. Water quality management would be performed in accordance with the requirements of 

the NPDES Construction and Industrial Stormwater Permits. The site's SWPPP would provide 

details of the site hest management practices. 

o Drainage systems would be designed such that runoff within the construction site would be 

collected and treated as necessary before reuse or discharge. 

o The treatment facility could treat surface runoff and process/construction waters with 

capacity to store the water for reuse. 

BMP C153: Material Delivery, Storage and Containment. Material delivery, storage and 

containment hest management practices would be used to prevent, reduce, or eliminate the 

discharge of pollutants to the stormwater system or watercourses from material delivery and 

storage: 

o Storage of hazardous materials on site would be minimized to the extent feasible. 

o Materials would be stored in a designated area, and secondary containment would be 

installed where needed. 

Millennium Bulk Termtnals-Longvtew 

Final SEPA Envtronmentallmpact Statement 4.5-15 April2017 
238 


31623.169

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mit1gation Measures 

o Refueling would occur in designated areas with appropriate spill control measures. 

Typical construction best management practices for working over, in, and near water would be 

applied, including checking equipment for leaks and other problems that could result in 

discharge of petroleum-based products, hydraulic fluid, or other material to the Columbia River. 

• BMP C154: Concrete Washout Area. Concrete waste and washout waters would be either 

carried out off site or disposed of in a designated facility on site designed to contain the waste 

and washout water. 

Based on site grading and drainage areas, five water quality ponds (Wetponds] would treat 

runoff based on Ecology's requirements. In general, the ponds would be sized for treatment of 

the volume and flow from the water quality design storm event (72% of the 2-year storm). 

Additional storage would be provided within the coal storage area so that the runoff is always 

treated within the stockyard area, even for larger storm events. The ponds would be designed to 

provide settlement as the water passes through. Subsequently, water released from these ponds 

would be conveyed downstream to the existing pump station outfall 002A that discharges into 

the Columbia River via an existing 30-inch steel pressure line. The ponds that would treat runoff 

from the coal stockyard would harvest water for circulation around the site for multiple uses, 

including dust control measures. Ecology's criteria would be used as the basis of design, which 

uses the Western Washington Hydrology Model (WWHM) computer simulation for facility 

sizing. Because of the flat nature of the site, some surface ponding would occur in both the yard 

areas and open conveyance systems. The piped conveyance systems would be sloped at 0.50% 

minimum. 

o The surface drainage system and features would be designed and constructed in accordance 

with the Storm water Management Manual for Western Washington. 

The water treatment facility would be designed to treat all surface runoff and process water 

with capacity to store the water for reuse. Treatment would be as required to meet reuse quality 

or Ecology's requirements for offsite discharge. 

Additional water storage would be provided within the coal storage area in the event of a larger 

storm event Water volumes exceeding the demands for reuse would be discharged off site via 

the existing outfall 002A into the Columbia River. Water released off site would be treated and 

would meet the requirements of Ecology and required discharge permits. 

The water system would be designed and constructed in accordance with or consideration of 

the latest edition of the following standards, where applicable: 

o International Building Code (IBC) 

o National Fire Protection Association (NFPA) 

o Washington State Department of Ecology Storm water Design Manual 

o United States Department of Health- Occupational Safety and Health Standards 

o Washington State Department of Health 

o In the event of conflict between codes and technical specification, the requirements would 

be reviewed and a decision made on the action to be implemented with agency of 

jurisdiction 

Millen mum Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.5-16 April2017 
239 


31623.170

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Where possible, pile extraction equipment would be kept out of the water to avoid "pinching" 

pile below the water line to minimize creosote release during extraction. 

Piles would be removed slowly so as to minimize sediment disturbance and turbidity in the 

water column. 

Prior to pile extraction, the operator would "wake up" the pile to break the friction between the 

pile and substrate to minimize sediment disturbance. During pile removal and pile driving, a 

containment boom would be placed around the perimeter of the work area to capture wood 

debris and other materials released into the waters as a result of construction activities. All 

accumulated debris would be collected and disposed of upland at an approved disposal site. 

Absorbent pads would be deployed should any sheen be observed. 

The work surface on barge deck or pier would include a containment basin for pile and any 

sediment removed during pulling. Any sediment collected in the containment basin would be 

disposed of at an appropriate upland facility, as would all components of the basin (e.g., straw 

bales, geotextile fabric) and all pile removed. 

Upon removal from substrate the pile would be moved expeditiously from the water into the 

containment basin. The pile would not be shaken, hosed-off, stripped or scraped off, left hanging 

to drip or any other action intended to clean or remove adhering material from the pile. 

Project construction would limit the impact of turbidity to a defined temporary area of mixing 

and would otherwise comply with Washington Administrative Code (WAC) 173-201A. 

All dredged material would be contained within a barge prior to any flow lane disposal; dredged 

material would not be stockpiled on the riverbed. 

The contractor would remove any floating oil, sheen, or debris within the work area as 

necessary to prevent loss of materials from the site. The Contractor would be responsible for 

retrieval of any floating oil, sheen, or debris from the work area and any damages resulting from 

the loss. 

Flow lane disposal would occur using a bottom-dump barge or hopper dredge. These systems 

release material below the surface, minimizing surface turbidity. 

For work adjacent to water, proper erosion control measures would be installed prior to any 

clearing, grading, demolition, or construction activities to prevent the uncontrolled discharge of 

turbid water or sediments into waters of the state. ErosionRcontrol structures or devices would 

be regularly maintained and inspected to ensure their proper functioning throughout this 

project. 

Project construction would be completed in compliance with Washington State Water Quality 

Standards WAC 173-201A, including but not limited to prohibitions on discharge of oil, fuel, or 

chemicals into state waters, property maintenance of equipment to prevent spills, and 

appropriate spill response including corrective actions and reporting as outlined in permits and 

authorizations (Clean Water Act Section 404, Rivers and Harbors Act Section 10, Hydraulic 

Project Approval, Clean Water Act Section 401 Water Quality Certification) 

The contractor would have a spill containment kit, including oil-absorbent materials, on site to 

be used in the event of a spill or if any oil product is observed in the water. 

All fuel and chemicals would be kept, stored, handled, and used in a fashion, which assure no 

opportunity for entry of such fuel and chemicals into the water. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.5-17 Aprll2017 
240 


31623.171

Chapter 4. Natural Env1ronment: 

CowlitZ County 

Washmgton State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The contractor would use tarps or other containment methods when cutting, drilling, or 

performing over-water construction that might generate a discharge to prevent debris, sawdust, 

concrete and asphalt rubble, and other materials from entering the water. 

No land-based construction equipment would enter any shoreline body of water except as 

authorized. 

Equipment would have properly functioning mufflers, engine-intake silencers, and engine 

closures according to federal standards; the contractor would inspect fuel hoses, oil or fuel 

transfer valves, and fittings on a regular basis for drips or leaks to prevent spills into the surface 

water. 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Construction projects in Washington State that include clearing, grading, and excavating activities 

that disturb one or more acres and discharge stonnwater to surface waters of the state are required 

to obtain an NPDES Construction Stormwater Permit from Ecology. Prior to the issuance of permits, 

sites with known contaminated soils or groundwater are required to provide a list of contaminants 

with concentrations, deptbs found and boring locations shown on a map with an overlay of where 

excavation or construction may occur. Additional alternative best management practices may be 

necessary based on the contaminants and how contaminated construction stormwater would be 

treated. The state permit requires preparing a Temporary Erosion and Sediment Control (TESC) 

plan, a construction stormwater pollution prevention plan (SWPPP) and best management practices 

to avoid and minimize the risk of erosion. Guidance for the design and implementation of these best 

management practices would be sourced from the Ecology 2012 Storm water Management Manual 

for Western Washington (Washington State Department of Ecology 2012b) including but not limited 

to those developed by the Applicant (Section 4.5.7, Proposed Mitigation Measures). The selected best 

management practices would represent the best available technology that is economically 

achievable and the best conventional pollutant-control technology to reduce pollutants. Best 

management practices would include a wide variety of measures to reduce pollutants in storm water 

and other nonpoint source runoff. Construction practices would include measures to avoid and 

minimize erosion of soils associated with land disturbance and subsequent discharge of sedimentladen stormwater to adjacent surface waters. The Applicant-developed measures were considered 

when evaluating the potential direct impacts associated with construction. 

Temporary Discharges to Increase Surface Water Turbidity Because of Upland Soil 

Disturbance 

Construction of the Proposed Action would include ground-disturbing activities that would 

expose soils and generate soil stockpiles. Rain could erode soil and carry it to adjacent 

waterways, such as the Columbia River and CDID #1 ditches, and temporarily increase turbidity. 

However, the potential for erosion during most ground-disturbing activities is considered low 

because the project area is relatively level and appropriate erosion and sediment control 

measures would be required by regulatory agencies. 

Millenmum Bulk 1 erminals Longview 

F1nal SEPA Environmental Impact Statement 4.5-18 April2017 
241 


31623.172

Cowlitz County 

Washington State Department of E:cology 

Chapter 4. Natural Environment 

ExiSting CondJtions, Project Impacts, 

and Proposed Mit1gation Measures 

The CDID #1 ditches collect water from roads, parking lots, yards, and other land uses that 

contribute to elevated turbidity levels and pollutants that are discharged to the Columbia River. 

Both Ecology and Oregon DEQ have standards for turbidity increases as a result of construction. 

These include the Water Quality Standards for Surface Waters of the State of Washington; Water 

Quality Standards: Beneficial Uses, Policies, and Criteria for Oregon; and Oregon State 

Legislature: Turbidity Rule. Runoff from the project area would be required to meet the terms 

and conditions of all permits issued for the Proposed Action; thus, during construction, the 

Proposed Action would be expected to maintain water quality conditions in the receiving 

waters, but could even provide some improvement to the quality of water discharged from the 

site to the CDID #1 ditches. Overall, the construction activities associated with the Proposed 

Action would not be expected to cause a measurable effect on water clarity, water quality, or 

biological indicators or affect designated beneficial uses. 

The Applicant has identified the following design features and best management practices to be 

implemented as part of the Proposed Action, which were considered when evaluating potential 

impacts of temporary discharges to surface waters. These are some of the BMPs that would be 

used through the adaptive management process and would be evaluated during the NPDES 

process. 

BMP C105: Stabilized Construction Entrance/Exit. BMP C105 would be installed and 

maintained through the duration of demolition, site preparation, preloading, and 

construction. 

BMP C106: Wheel Wash. BMP C106 would be installed and used at the entrance of the 

project area to prevent sediment from being tracked off site. 

BMP C107: Construction Road/Parking Area Stabilization. Per BMP C107, roads, 

parking areas, and other on-site vehicle transportation routes would be stabilized to reduce 

erosion caused by construction traffic or runoff. 

BMP C140: Dust Control. BMP C140 would be used to prevent wind transport of dust from 

disturbed soil surfaces. Either water or polyacrylamide would be used prevent soil erosion. 

BMP C153: Material Delivery, Storage and Containment. BMP C153 would be used to 

prevent, reduce, or eliminate the discharge of pollutants to the storm water system or 

watercourses from material delivery and storage. 

o Storage of hazardous materials onsite would be minimized to the extent feasible. 

o Materials would be stored in a designated area, and secondary containment would be 

installed where needed. 

o Refueling would occur in designated areas with appropriate spill control measures. 

BMP C154: Concrete Washout Area. BMP C1 54 would be constructed near the entrance to 

the project area to prevent or reduce the discharge of pollutants to stormwater from 

concrete waste by conducting washout off site, or performing on-site washout in a 

designated area to prevent pollutants from entering surface waters or groundwater. 

BMP Cl62: Scheduling. BMP C162 would reduce the amount and duration of soil exposed 

to erosion by wind, rain, runoff, and vehicle tracking. 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.5-19 Aprit 2017 
242 


31623.173

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment 

Ex1stlng Cond1t1ons, PrOJeCt Imparts, 

and Propo~ed M1t1gation Measures 

BMP C200: Interceptor Dike and Swale. Per BMP C200, a ridge of compacted soil or a 

ridge with an upslope swale would be provided at the top or base of a disturbed slope or 

along the perimeter of a disturbed construction area to convey storm water. The dike or 

swale would be used to intercept the runoff from unprotected areas and direct it to areas 

where erosion can be controlled. This would be used to prevent storm runoff from entering 

the work area or sediment-laden runoff from leaving the construction site. 

BMP C203: Water Bars. Per BMP C203, a small ditch or ridge of material would be 

constructed diagonally across roads as needed to prevent gullying. 

BMP C207: Check Dams. BMP C207 would be constructed to reduce the velocity of 

concentrated flow and dissipate energy at the check dam. 

BMP C209: Outlet Protection. BMP C209 would prevent scour at conveyance outlets and 

minimize the potential for downstream erosion by reducing the velocity of concentrated 

stonnwater tlows. 

BMP C220: Storm Drain Inlet Protection. BMP C220 would be installed at several 

locations across the project area to prevent coarse sediment from entering drainage systems 

prior to permanent stabilization of the disturbed area. 

BMP C233: Silt Fence. BMP C233 would be constructed around the entire project area to 

reduce the transport of coarse sediment from a construction site by providing a temporary 

physical barrier to sediment and reducing the runoff velocities of overland flow. 

BMP C241: Temporary Sediment Pond(s). BMP C241 would be designed and constructed 

to remove sediment from runoff originating from disturbed areas of the project area. 

Temporarily Release Contaminants Associated with Equipment and Material Use 

Handling construction materials and operating construction equipment have the potential to 

introduce pollutants such as fuel, oil, hydraulic nuid, grease, paints, solvents, and cleaning 

agents and could degrade water quality if improperly handled. Construction waste such as 

metal, welding waste, and uncured concrete can also degrade water quality and be harmful to 

aquatic organisms (Washington State Department of Ecology 2014). 

Development and implementation of site-specific construction SWPPP, that includes best 

management practices for material handling and construction waste management, would 

reduce the potential for water quality impacts from these sources. Typical SWPPP best 

management practices that would help prevent releases to surface waters include the following. 

All fuel and chemicals would be stored and handled properly to ensure no opportunity for 

entry into the water. 

No land-based construction equipment would enter any shoreline body of water except as 

authorized. 

Equipment would have properly functioning engine closures (i.e., hydraulic, fuel, lubricant 

reservoirs) according to federal standards; the contractor would inspect fuel hoses, oil or 

fuel transfer valves, and fittings on a regular basis for drips or leaks to prevent spills into the 

surface water. 

Mt!lenntum Bulk Tcrnlmdls Longv1ew 

Fmal SEPA Environmental Impart Statement 4.5-20 April2017 
243 


31623.174

Cowlitl County 

Washington State Department of Ecology 

Chapter 4. Natura! Envnonment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The contractor would have a spill containment kit on site, including oil-absorbent materials, 

to be used in the event of a spill or if any oil product is observed in the water. 

If a spill were to occur during construction, the amount likely would be typically less than SO 

gallons, and response time would be relatively quick on site. A fuel truck would visit the site as 

needed. The frequency would vary based on usage and could range from once or twice per day 

to once or twice per week. The trucks would have a capacity of 3,000 to 4,000 gallons. A spill 

could have potential impacts on water quality if the spill were to reach surface waters, which 

could affect aquatic species and habitats. (Sections 4.7, Fish, and 4.8, Wildlife, provide additional 

information on this potential impact.) 

Construction activities would involve preloading and installing of vertical wick drains to aid in 

the consolidation of low consistency silt and low-density sand (i.e., unconsolidated materials). 

Wick drains would direct groundwater from the shallow aquifer upward toward the surface 

during preloading, where it would discharge. Water discharged from the wick drains would be 

captured, tested for contaminants, and treated prior to discharge to any surface waters. 

Although water discharged from the wick drains is not anticipated to be contaminated, it would 

be tested to ensure any contaminated water is not discharged, thus no impact on water quality 

is anticipated. Refer to Section 4.4, Groundwater, for further information regarding water 

discharged from wick drains. 

Temporarily Mobilize Pollutants or Increase Turbidity from In-Water Work and Dredging 

Construction of the Proposed Action would require dredging an estimated 500,000 cubic yards 

of sediment from the river to provide site access from the Columbia River navigation channel 

and berthing at Docks 2 and 3. The work necessary to construct the approach trestle and Docks 

2 and 3 would require in-water work that could resuspend pollutants and sediment and 

increase turbidity. Dredging would permanently deepen a 48-acre area to a target depth 

of -43 feet CRD with a 2-foot overdredge allowance. The deepening would require dredging of 

up to approximately 16 feet (vertically) of sediment. The dredging permit would require testing 

of the sediment and suitability determination for flow lane disposal. 

Dredging and in-water work would result in temporary increases in suspended sediment and 

turbidity. As described previously, sediments sampled from deepwater areas in the project 

vicinity have consistently met suitability requirements for flow lane disposal or beneficial use in 

the Columbia River (Grette 2014c). Thus, it is anticipated that sediment within the dredge prism 

for Docks 2 and 3 would be deemed suitable for flow lane disposal or beneficial use in the 

Columbia River. However, prior to obtaining a dredging permit, the Applicant would conduct 

site-specific sediment sampling to characterize the proposed dredge material and ensure 

compliance with the dredged materials management plan (Grette 2014c).lfflow lane disposal is 

approved, the disposal area for dredged materials would require approximately 80 to 110 acres. 

The actual acreage and specific location of the disposal site would be determined by the 

permitting agencies. Recent authorizations for flow lane disposal of dredged materials in the 

Columbia River in the vicinity of the project area were generally in or adjacent to the navigation 

channel between approximately river miles 60 and 66 (Grette 2014b). 

Standard best management practices for working in aquatic areas would be followed to 

maintain acceptable construction water-quality conditions, including but not limited to 

maintaining appropriate standards for construction-related turbidity (including during active 

Millennium Bulk Terminals Longview 

Fmal SEPA Environmental Impact Statement 4.5-21 AprH 2017 
244 


31623.175

Cowhtz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment 

E)(IStlng Conditions, Project Impacts, 

and Proposed Mitigation Measures 

dredging and flow lane disposal if used), minimizing the risks of unintended discharges of 

materials such as fuel or hydraulic fluid, and managing construction debris. In addition, typical 

construction best management practices for working over, in, and near water would be applied, 

including checking equipment for leaks and other problems that could result in discharge of 

petroleum-based products, hydraulic fluid, or other material to the Columbia River. 

The following best management practices relate to in-water work during the construction 

period. 

The contractor would use tarps or other containment methods when cutting, drilling, or 

performing over-water construction that might generate a discharge to prevent debris, 

sawdust, concrete and asphalt rubble, and other materials from entering the water. 

The contractor would retrieve any floating debris generated during construction using a 

skiff and a net. Debris would be disposed of at an appropriate upland facility. If necessary, a 

floating boom would be installed to collect any floated debris generated during in-water 

operations. 

Construction of the approach trestle and Docks 2 and 3 would require both in-water and 

over-water work. In-water work windows would avoid and minimize impacts on various natural 

resources, most notably federally protected fish species (Section 4.7, Fish).ln-water 

construction would primarily involve dredging, pile driving, and removal of pile dikes and 

would use barge-based equipment and purpose-built vessels, although some work would likely 

be supported from land. A total of 610 of the 630 36-inch diameter steel piles required for the 

trestle and docks would be placed below the ordinary high water mark, permanently removing 

an area equivalent to 0.10 acre ( 4,312 square feet) of river bottom. The construction would also 

remove 225 feet of the deepest portion of timber pile dikes (Grette 2014a ). 

Some sediments disturbed during dredging activities would be expected to move down current 

and monitoring requirements would be identified in the dredge permit. The period of increased 

turbidity at the project area is anticipated to be relatively brief, as the bed material is primarily 

silty sands with low proportions of fines and organic material, thus reducing the potential to 

increase turbidity as compared to silty mud or sediments with high concentrations of organic 

material. 

The following best management practices would avoid and minimize potential impacts from pile 

removal and installation activities. 

The contractor would remove piles slowly to minimize sediment disturbance and turbidity 

in the water column. 

Prior to pile extraction the contractor would "wake up 1" the pile to break the friction 

between the pile and substrate to minimize sediment disturbance. 

Release of creosote would occur from the removal of existing creosote-treated timber piles 

associated with two pile dikes. Creosote is composed of more than 300 chemicals, including 

PAHs, which have been shown to be fatal to marine life (Washington State Department of 

Natural Resources 2008). Creosote contamination could be exacerbated by removal of piles that 

1 "\Vaking up" the pile consists of vibration of the pile to break the skin friction bond between the pile and soil. This 

allows the pile to be extracted without pulling out a large block of soil. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.5-22 Apri! 2017 
245 


31623.176

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

have been buried in a zone generally depleted of oxygen and water, which leaves the creosote 

highly volatile when re-exposed to water. Droplets of previously unexposed creosote would be 

released from the piling into the surrounding sediments. 

The removal of creosote-treated piling would result in temporary suspension of sediments and a 

potential long-term increase in the exposure of creosote in the project area. To minimize this 

impact, the contractor would follow the following standard best management practices for 

removal of creosote-treated wooden piles. 

Pile removal. If possible, the contractor would use vibratory extraction, the preferred 

method of pile removal. A major creosote release to the environment could occur if 

equipment (bucket, steel cable, vibratory hammer] pinches the creosoted piling below the 

water line. Therefore, the contractor would keep the extraction equipment out of the water 

to the extent practicable to remove the piling. Cutting would be necessary if the pile were to 

break off at or ncar the riverbed, which means it could not be removed without excavation. 

Pile cutoff would be an acceptable alternative if vibratory extraction or pulling were not 

feasible. The piling would he cut 2 feet below the riverbed, and the subsequent hole would 

be capped/filled with clean sand. 

Disposal of creosote treated piling, sediment, and construction residue. The contractor 

would place the pulled pile in a containment basin to capture any adhering sediment 

immediately after the pile is removed. Containment basins typically have continuous 

sidewalls and controls as necessary (e.g., straw bales, oil absorbent boom, plastic sheeting] 

to contain all removed materials and prevent re-entry into the water. The type and location 

(e.g., barge, land) of the containment basin would be determined when the contractor's 

work plan is developed. Cut-up piling, sediments, construction residue, and plastic sheeting 

from the containment basin would be packed into a container and disposed of at a facility in 

compliance with federal and state regulations. 

Above-water work would include installing the pile-supported elements of the dock structures 

and coal-handling infrastructure and equipment. Some concrete components (such as the dock 

decking, crane rail supports, and pile caps) would need to be cast in place. Appropriate 

techniques and best management practices, such as the use of a bib, would minimize the 

potential for wet or uncured concrete to come in contact with the Columbia River. 

Materials handling infrastructure and equipment, such as shiploaders and conveyors, would be 

delivered by barge and offloaded by crane directly to the docks and trestle. Barges would not 

offload materials or equipment to any area below the ordinary high water mark of the Columbia 

River. As much as practicable, infrastructure would be prefabricated so that above-water work 

would consist largely of installation and assembly. 

impacts on water quality from in- and over-water work would be addressed in the Water 

Quality Monitoring and Protection Plan to be prepared by the Applicant and approved by 

Ecology. Impacts on water quality from dredging would be minimized with the preparation and 

implementation of a dredging plan in compliance with the dredged material management 

program (DMMP] as required by state agencies (Ecology and Washington State Department of 

Natural Resources) and federal agencies (the U.S. Army Corps of Engineers [Corps] and EPA). 

Adhering to a plan developed in compliance with DMMP would minimize water-quality impacts, 

ensuring that potential impacts are temporary and localized in nature. No long-term changes in 

the baseline conditions in the study area would be expected to occur. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental lmpact Statement 4.5-23 Apnl 2017 
246 


31623.177

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment· 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Temporarily Introduce Hazardous or Toxic Materials from Demolition Activities 

Demolition of the existing structures in the project area (i.e., cable plant building, potline 

buildings, and small ancillary structures) has the potential to affect water quality by disturbing 

soil or building parts and debris that could contain hazardous or toxic materials such as 

asbestos, lead, and concrete dust, which could cause harm to aquatic environments and 

organisms. 

This impact would be minimized by the collection and removal of all concrete and other 

structural debris and the collection and treatment of all storm water from the site prior to 

discharge to surface waters. The implementation of best management practices in compliance 

with the NPDES Construction Storm water Permit that would be obtained for the Proposed 

Action would reduce the potential for demolition-related pollutants to enter and contaminate 

surface waters. Overall, the demolition activities associated with the Proposed Action would not 

be expected to cause a measurable effect on water quality or biological indicators, or affect 

designated beneficial uses. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on water quality because 

construction impacts would be limited to the project area and would not occur later in time or 

farther removed in distance than the direct impacts. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Introduce Contaminants from Coal Spills and Coal Dust 

Proposed Action-related trains would hold approximately 122 tons of coal per car and there 

would be 125 cars per train; there would be 8 loaded trains and 8 empty coal trains per day 

under the Proposed Action. An average of70 ships a month would move coal for the Proposed 

Action. The Panamax class vessels, with an average capacity of 65,000 deadweight tonnage 

would be used to transfer the coal to its final destination (Maritime Connector 2015). 

Coal and coal dust could enter the Columbia River directly or via the surrounding drainage 

channels from spills during loading or unloading or through airborne transport of coal dust 

during operations. The extent of average annual coal dust deposition was modeled and mapped 

(Chapter 5, Section 5.7, Coal Dust, Figure 5.7-3). Coal dust is anticipated to deposit a maximum of 

OAO grams per square meter per month (g/m'fmonth) in or adjacent to the project area. This 

amount of deposition is well below the benchmark for dust nuisance impacts (2.0 gjm2 jmonth), 

which is defined as the level of dust deposition that affects the aesthetics, look, or cleanliness of 

surfaces. Annually, coal dust is anticipated to deposit a maximum of 1.99 grams per square 

meter per year (g/m'/year) in or adjacent to the project area, including Docks 2 and 3 in the 

Columbia River. Additional information on these deposition levels is found in Chapter 5, Section 

5. 7, Coal Dust; the spatial extent of the maximum annual coal dust deposition near the project 

area is shown in Figure 5. 7-3. 

Millennium Bulk Termmals-LongvJew 

Frnal S£PA Environmental Impact Statement 4.5-24 Aprr! 2017 
247 


31623.178

Cowl1tz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Extsting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

At sufficient quantities, coal and coal dust in marine and estuarine environments have similar 

adverse effects as elevated levels of suspended sediments on water quality (Ahrens and 

Morrisey 2005). During periods of lower flow, a smaller amount of coal dust could have a 

greater impact on water quality. Impacts include increased turbidity, which can interfere with 

photosynthesis and increase water temperatures (Ahrens and Morrisey 2005). Coal and coal 

dust in the water column can also affect marine organisms through abrasion of tissue and 

smothering and clogging of respiratory and feeding organs (Ahrens and Morrisey 2005). 

However, at a maximum deposition rate of 1.99 g/m2 /year adjacent to the project area, and at 

the minimum flow' recorded over the 23-year period of record for 1 day, coal dust deposition 

directly into the river (assumed to be an area of approximately 3 million square meters 

(1.16 square miles]) in the study area would result in a change in suspended sediment 

concentration of less thanl part per 10 billion (0.000075 milligrams per liter [mg/L]). This 

change would not be measureable and is not anticipated to increase turbidity or water 

temperature, or affect marine organism functions (e.g., respiration, feeding). 

Coal and coal dust captured in water runoff (e.g., from precipitation that falls on the stockpile 

areas and water used for dust suppression) would be collected within the stockpile pads 

(low-permeable surfaces allowing minimal infiltration), conveyed within an enclosed 

storm water system, and treated at Facility 73 in settling ponds before being discharged from the 

site. Some settled coal dust from the project area could discharge to the Columbia River through 

the COlD #1 system. If coal dust from the project area accumulated without being disturbed 

throughout the dry season (assumed to be 120 days), the anticipated change in suspended 

sediment concentration in the Columbia River within the study area for the minimum recorded 

flow over l day would be approximately 0.0192 mg/L. This change would not be measureable 

and likely would not increase turbidity or water temperature, or affect marine organism 

functions (e.g., respiration, feeding). The coal export terminal would employ dust suppression 

systems throughout the terminal, including the tandem rotary dumpers, all conveyors, stockpile 

pads, surge bins, transfer towers, and trestle. Approximately one-third of the conveyor belts 

would be closed, as would the shiploaders, to limit the release of coal dust. Tbe dust suppression 

system would employ sprayers, sprinklers and foggers to capture coal dust. Dust suppression 

water would be collected and conveyed through the storm water collection, conveyance and 

treatment system. Once treated, the water would either be reused or, if not needed (i.e., 

sufficient water is stored in the on-site water storage pond), discharged to the Columbia River. 

All water discharged to the Columbia River would be required to meet specific water quality 

standards that would be outlined in the NPDES permit, prior to discharge. If stormwater is 

collected and used for industrial beneficial use (such as dust control), a Water Rights Permit 

would be required in accordance with Chapter 90.03 RCW 90.03. 

Coal contains trace amounts of toxic elements. Coal has a heterogeneous chemical composition; 

therefore, specific impacts related to the toxic contaminants of coal are highly dependent on coal 

composition and source (Ahrens and Morrisey 2005). The majority of coal transloaded at the 

proposed coal export terminal is expected to be mined in the Powder River Basin, with lesser 

amounts of coal being sourced from the Uinta Basin in Utah and Colorado. Trace elements of 

environmental concern (TEEC] in Powder River and Uinta Basin coal include antimony, arsenic, 

beryllium, cadmium, chromium, cobalt, lead, manganese, mercury, nickel, selenium, and 

2 The minimum recorded tlow at the Columbia at Beavery Army Terminal, Quincy, Oregon, is 65,600 cubic feet per 

second (1969 to 2014). 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.5-25 April2017 
248 


31623.179

Cowlitz County 

Washington State Department of Ecology 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

uranium. Table 4.5-4 presents the average concentrations of each TEEC sampled in parts per 

million. However, at a maximum coal dust deposition rate of 1.99 gfm2 fyear adjacent to the 

project area and at the minimum flow recorded over the 23-year period of record for 1 day, 

TEEC deposition directly into the Columbia River (assumed to be an area of approximately 

3 million square meters [1.16 square miles]) in the study area would result in unmeasurable 

changes in concentration for each of the elements of concern on the order of 0.0000000000001 

to 0.000000000000001 g/L, or 0.0000001 to 0.000000001 ppb. If coal dust from the project 

area accumulated without being disturbed throughout the dry season (assumed to be 120 days 

long), the anticipated change in TEEC concentration for the minimum recorded flow over one 

day would be on the order of 0.0000000001 to 0.000000000001 gjL, or 0.0001 to 0.000001 

ppb. Again, this change would not be measureable and is not anticipated to affect human health 

or affect marine organism functions (respiration, feeding]. 

Table 4.5-4. Average Concentration of Trace Elements in Wyodak and Big George Coalbeds, 

Powder River Basin, Wyoming and Miscellaneous Uinta Basin Coal beds in 

Colorado Plateau 

----------------------------

Trace Element of Environmental 

Concern 

Antimony 

Arsenic 

Beryllium 

Cadmium 

Chromium 

Cobalt 

Lead 

Manganese 

Nickel 

Selenium 

Uranium 

Notes: 

d U.S. Geological Survey 2007 

b Pierce and Dennen 200() 

Average Concentration in Sampled Coal (ppm) 

Powder River Basina,b Uinta Basin• 

0.10 0.7 

1.43 2.2 

0.18 1.5 

0.06 0.1 

2.63 6.1 

1.93 2.0 

1.26 13.9 

10.05 28.2 

1.58 4.5 

0.57 1.4 

0.46 1.8 

Toxic constituents of coal include PAHs and trace metals, which are present in coal in variable 

amounts and combinations dependent on the type of coal. The coal type, along with mineral 

impurities in the coal and environmental conditions determine whether these compounds can 

be leached from the coal. Some PAHs are known to be toxic to aquatic animals and humans. 

Metals and PAHs could also potentially leach from coal to the pore water of sediments. One 

review of coal dust's chemical composition (U.S. Geological Survey 2007) suggests that the risk 

of exposure to concentrations of toxic materials (e.g., PAHs and trace metals) from coal are low 

because the concentrations are low and the chemicals bound to coal are not easily leached. 

Another study by Ross et al. (2004) found virtually no desorption of any PAH in coal and that the 

bioavailability of coal-derived PAHs usually was too low to be measured. Furthermore, the type 

of coal anticipated to be exported from the coal export terminal is alkaline, low in sulfur and 

trace metals and the conditions to produce concentrations in pore waters are not present in a 

Millennium Bu!k Terminals Longview 

final SEPA Environmental Impact Statf!ment 4.5-26 April2017 
249 


31623.180

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

dynamic riverine environment. This would further support the view of Ahrens and Morrisey 

(2005) that the bioavailability of such toxins would likely be low. 

In summary, coal dust from operation of the Proposed Action is not expected to have a 

demonstrable effect on water quality. Additionally, the potential risk for exposure to toxic 

chemicals contained in coal (e.g., PAHs and trace metals) would be relatively low as these 

chemicals tend to be bound in the matrix structure and not quickly or easily leached. 

Coal spilling into the Columbia River could occur during vessel loading operations. Cleanup 

efforts would be implemented quickly and it would be expected that the majority of the spilled 

coal would be recovered. Coal dust particles would likely be transported downstream by river 

tlow and either carried out to sea or distributed over a sufficiently broad area that a measurable 

increase in concentrations of toxic chemicals in the Columbia River would be unlikely. The 

deposition of coal dust could be as high as 1.99 g/m'fyear adjacent to the project area. However, 

toxic chemicals in coal dust tend to be bound to the matrix structure of the coal and not quickly 

or easily leached and would not, therefore, be expected to result in a significant increase in 

chemical indicators in the Columbia River. They would also not be expected to cause a 

measurable impact on water quality or biological indicators, or affect designated beneficial uses. 

An evaluation of a potential coal spill and potential impacts associated with coal dust are 

described in the Chapter 5, Section 5.7, Coal Dust, and the SEPA Coal Technical Report (ICF 

2017). Because the rate of coal dust deposition is so low, it is likely unmeasurable and the 

concentration ofTEEC is assumed to be low. Therefore, impacts of dispersed coal, coal dust, and 

coal dust constituents on water quality are anticipated to be low. 

Rail cars carrying coal would have to be treated with topping agents or surfactants to the surface 

of loaded coal to control dust. These agents generally comprise glue (polyvinyl acetate), alkyl 

alcohol, guar gum, or vegetable oils mixed with water. These chemicals could enter the Columbia 

River directly from spills during loading or unloading; however, they have been found to be 

nontoxic and would not introduce pollutants of concern (Agency for Toxic Substances and 

Disease Registry 1992). 

Introduce Contaminants from Maintenance and Operations 

Potential contaminants, including diesel fuel, oils, grease, and other tluids would be required for 

the operation and maintenance of heavy equipment and machinery used to transport, store, 

move, and load coal at the coal export terminaL Normal operations and maintenance activities in 

the project area would not result in a direct discharge of pollutants or process water into surface 

waters. Most operation-related impacts would result from spills of potentially hazardous 

materials, such as petroleum products or industrial solvents, either directly into surface waters 

or in locations where they could be transported and discharged to surface water or 

groundwater. While a release is likely to be relatively small (less than 50 gallons), locomotives 

have a fuel capacity of 5,000 gallons and could potentially release fuel during operations. Also, 

fuel trucks would visit the site as required during operations. The frequency would vary based 

on usage and could range from once or twice per day to once or twice per week Fuel trucks 

typically have a 3,000-to-4,000-gallon capacity. A spill could have potential impacts on water 

quality. A spill that occurred in the project area would be contained, conveyed, and treated 

within the proposed storm water system and would not be discharged to surface waters outside 

the project area. A spill would be responded to under federal and state laws. The Applicant 

Millennium Bulk Terminals Longview 

Final SE"PA Environmental lmpact Statement 4.5-27 April2017 
250 


31623.181

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, ProJeCt Impacts, 

and Proposed Mitigation Measures 

would be required to manage contaminated storm water in accordance with the requirements of 

the NPDES Industrial Storm water Permit and avoid and minimize impacts on water quality. 

Maintenance dredging for Docks 2 and 3 would be expected to occur every few years, or as 

needed following extreme-flow and sediment-deposition events, with areas and volumes 

considerably smaller than the initial dredge action. Maintenance dredging impacts on water 

quality would be similar to those discussed for dredging during construction, but to a lesser 

degree because maintenance dredging volumes would be smaller than the initial dredging 

action during construction based on the estimated accretion rates described below. A dredging 

plan, as discussed for construction dredging, would be prepared for each future maintenance 

dredging event. 

Cargo vessels calling at Docks 2 and 3 would require the use of two tugboats to assist with 

docking and undocking, as described Chapter 5, Section 5.4, Vessel Transportation. Once a vessel 

powers down in preparation for docking, it generally does not engage its main propeller; there 

are specific conditions (e.g., especially strong currents) or circumstances (e.g., if the vessel 

requires a quick adjustment) under which the vessel may briefly engage the propeller, but these 

are not the norm (Gill pers. comm.). Thus, typical cargo vessel operations would not be expected 

to cause propeller wash-related scour of the side slopes or hottom of the dredge prism. 

Propeller wash from tugboats would be nearer to the surface and would thus have less potential 

to result in scour or erosion of bottom sediments within the dredge prism. 

The following factors would further reduce the likelihood of temporary, localized increases in 

turbidity from propeller wash. The berthing basin would he dredged to a depth that could 

accommodate the largest vessels calling at Docks 2 and 3, the dredge prism would tie into the 

navigation channel, Docks 2 and 3 would be parallel to the navigation channel, the slopes would 

be dredged at a 3:1 (horizontal to vertical) slope, and the sediment would comprise the coarse 

sediment substrates typical of the mainstem Columbia River. 

Sediment accretion in the proposed dredge prism would most likely occur as a result of bedload 

transport due to river currents, and local scour and sediment redistribution resulting from 

propeller wash. Hydrodynamic modeling and sediment transport analysis was conducted for the 

proposed Docks 2 and 3 berthing/navigation basin. Specific data are unavailable for the 

proposed new dredging basin; therefore, the rate of accretion (i.e., gradual deposition and 

build-up of sediment) can only be estimated roughly. Based on current accretion estimates, 

rough estimates for annual accretion height is approximately 0.16 feet (0.07- to 0.26-foot range) 

and annual accretion volume is approximately 11,675 y' (4,670 to 23,350 y' range). Small scale 

maintenance dredging could be needed more frequently, especially in the early years following 

the initial dredging work when higher than normal accretion is more likely (Wor!eyParsons 

2012). Similarly to construction-related dredging, long-term changes in study area baseline 

conditions likely would not persist as a result of maintenance dredging. 

Introduce Contaminants from Stormwater Runoff 

Storm water would be managed in accordance with the requirements of an NPDES Industrial 

Stormwater Permit for water management facilities of the coal export terminal. Contaminants 

such as oil and grease, coal dust, and other chemicals could accumulate on the ground and 

facility surfaces and become constituents of site stormwater. All stormwater runoff would be 

collected for treatment before reuse or discharge to the Columbia River. If storm water is 

Millennium Bulk Termmals~Longview 

Final SE'PA Environmental Impact Statement 4.5-28 April2017 
251 


31623.182

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment 

Existing Conditions, ProJect Impacts, 

and Proposed Mitigation Measures 

collected and reused for a beneficial industrial use, a Water Right Permit would be required in 

accordance with Chapter 90.03 Revised Code of Washington (RCW). 

Coal particulates would be removed from stonnwater by allowing the coal dust to settle out in 

settling ponds. The coal dust would be removed from the storm water ponds and placed back in 

the coal stockpile area during regular maintenance of the storm water ponds. Other solids 

accumulated in the treatment systems not acceptable for reuse would be periodically collected 

and disposed of at an appropriate off-site disposal site. 

As shown in Table 4.5-3, the Columbia River is listed as impaired for a number of pollutants. 

Some of these pollutants may be introduced from storm water runoff from the project area, but 

the NPDES Industrial Storm water Permit would require that all water quality standards are met 

prior to stormwater discharge to the Columbia River. Arsenic and fecal coliform (indicator 

bacteria) were detected during monitoring of existing outfalls that would drain the project area 

(Anchor QEA 2014). These pollutants would likely continue to be introduced as a result of the 

Proposed Action, although maximum reported outfall concentrations for these pollutants fall 

below established water-quality standards. Continued discharges at existing levels would not 

cause a measureable increase in chemical indicators in the Columbia River and would not cause 

a measurable impact on water quality or biological indicators or affect designated beneficial 

uses. Any changes in concentrations of these pollutants that may occur during operations would 

be addressed under the NPDES Industrial Stormwater Permit to ensure water quality standards 

continue to be met post discharge to the Columbia River. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Introduce Contaminants from Coal Spills and Coal Dust 

Potential impacts related to introducing contaminants from coal spills and coal dust during rail 

and vessel transport would be the same as those described under Operations-Direct Impacts. 

Introduce Contaminants from Maintenance and Operations 

Potential impacts related to introducing contaminants from maintenance and operations during 

rail and vessel transport would be the same as those described under Operations-Direct 

Impacts. 

Introduce Contaminants from Vessel or Rail Transport 

Coal would be transported to the coal export terminal via rail, then loaded onto vessels and 

transported to its final destination in Asia. Water quality could be indirectly affected as a result 

of transportation of coal within the study area. Details regarding vessel operations are available 

in Chapter 5, Section 5.4, Vessel Transportation. Details regarding a release of hazardous 

materials during rail operations and collision or derailment are discussed in Chapter 3, 

Section 3.6, Hazardous Materials.). 

Propeller wash. Propeller wash increases the potential for scour and erosion of the sides 

and bottom of the navigation channel, and thus, could cause temporary, localized increase in 

Millennium Bulk Termmals-Longv1ew 

Final SEPA Environment;;~! Impact Statement 4.5-29 April2017 
252 


31623.183

Cowlitz County 

Washington State Department of Ecology 

Chapter lL Natural Env1ronment· 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

turbidity. During transit of the Columbia River to and from Docks 2 and 3, the large 

propellers on cargo vessels would create turbulence close to the river bottom that could 

erode bottom sediments. The propeller wash from tugboats transiting to and from Docks 2 

and 3 to assist cargo vessels would be nearer the surface and would, thus, have less 

potential to result in scour or erosion of bottom sediments. 

Counihan et al. (2014) surveyed sediment contaminants in several reaches of the lower 

Columbia River (including a reach adjacent to the study area) and found that contaminant 

presence and concentrations in the deeper parts of the river channel, which includes the 

navigation channel, are lower than other areas of the river channel. The Columbia River 

navigation channel is routinely dredged, and the study found that the deepest parts of the 

river channel have erosional deposition patterns where fiows are the greatest, sediment 

transport is high, and coarser sediments are found. These coarser sediments require more 

energy to mobilize and become suspended. Areas closer to the shoreline were found to be 

depositional areas with higher amounts of fine sediments, which were found to correlate 

with the higher presence and concentration of contaminants compared to the deeper 

erosional areas with coarse sediments. These sediments outside of the navigation channel 

would he unlikely to be affected by vessels transiting within the navigation channel. 

Therefore, it is unlikely that contaminant resuspension would be an issue given the low 

potential for turbidity from vessel movements in the study area and lower occurrence and 

concentrations of contaminants in the navigation channel. 

Ballast water. Ballast water could contain materials that degrade surface waters. Common 

contaminants include invasive marine plants and animals, bacteria, and pathogens that 

could result in harm or displace native aquatic species. However, the likelihood of such 

occurrences is considered low because Proposed Action-related vessels would be required 

to adhere lo the state and federal regulations that control discharge and water quality of 

ballast water. Oversight of federal ballast water regulations is provided by the U.S. Coast 

Guard and EPA, and Washington State regulations arc administered by WDFW. Specifically, 

Proposed Action-related vessels would be required to implement one of the following 

ballast water management methods per U.S. Coast Guard ballast discharge regulations 

(33 CFR 151.2025): install a ballast water management system, use only water from a U.S. 

public water system, not discharge ballast water, or discharge ballast to a facility onshore or 

to another vessel for treatment. Regardless of the ballast water management option selected 

hy vessel operators, all ballast water discharge must meet the U.S. Coast Guard ballast 

discharge standards (33 CFR 151.2030) and EPA NPDES Vessel General Permit standards. In 

addition, the Washington State ballast discharge regulations (RCW 77.120.040) include 

reporting, monitoring, and sampling requirements of ballast water, and all vessels must 

submit nonindigenous species ballast water monitoring data. WDFW may also board and 

inspect vessels under WAC 220-150-033 without advance notice to provide technical 

assistance, assess compliance, and enforce the requirements of Washington State ballast 

water management program laws and regulations. All vessel operators would be required to 

comply with federal and state ballast regulations or risk penalties for violations. 

Spills from vessel. Coal and fuel spills could occur if the cargo tanks on a vessel are 

ruptured during such events as a grounding or collision; however, the potential for a vessel 

rupture incident is low. Chapter 5, Section 5.4, Vessel Transportation, evaluates the risk of 

vessel-related incidents. Chapter 3, Section 3.6, Hazardous Materials, also discusses actions 

to be taken for emergency response and cleanup. A spill from a vessel could have significant 

Millennium Bulk Terminals- Longv1ew 

Fma! SEPA Environmental Impact Statement 4.5-30 April2017 
253 


31623.184

Chapter 4. Natural Enwonment: 

Cowlitz County Existmg Conditwns, Project Impacts, 

Washington State Department of Ecology and Proposed Mit1gation Measures 

potential impacts on water quality based on the location, quantity spilled, and response 

actions taken. 

Day-to-day rail operations. Day-to-day rail operations could release contaminants to 

storm water, including coal dust, metals, hydraulic and brake fluid, oil, and grease from track 

lubrication. As discussed in Chapter 3, Section 3.6, Hazardous Materials, if a release of 

hazardous materials were to occur, the rail operator would implement emergency response 

and cleanup actions per the Federal Railroad Administration requirements and state law, 

including Washington State regulations under RCW 90.56. Chapter 3, Section 3.6, Hazardous 

Materials, also discusses actions to be taken for emergency response and cleanup. 

Spill from collision or derailment oftrain. Fuel or hazardous material spills could occur if 

trains or rail cars collide or derail. As discussed in Chapter 3, Section 3.6, Hazardous 

Materials, if a release of hazardous materials were to occur, the rail operator would 

implement emergency response and cleanup actions as required by the Federal Railroad 

Administration requirements and state law, including Washington State regulations under 

RCW 90.56. Chapter 3, Section 3.6, Hazardous Materials, also discusses actions to be taken 

for emergency response and cleanup. Spills of coal from a rail car could affect water quality 

based on the location, quantity spilled, and response actions taken. 

4.5.5.2 No-Action Alternative 

Under the No-Action Alternative, current operations would continue, and the existing bulk product 

terminal would be expanded. Because existing industrial import and export activities would be 

expanded, impacts on water quality would be similar to those described for the Proposed Action 

regarding potential oils and grease spills from equipment or other raw materials shipped from the 

terminal. The existing NPDES permit would remain in place, maintaining the water quality of 

existing stormwater discharges. Maintenance dredging at Dock 1 would continue in accordance with 

a future maintenance dredging permit, with dredging occurring every 2 to 3 years. 

Any new or expanded industrial uses would trigger a new or modified NPDES permit. Upland 

buildings could be demolished and replaced for new industrial uses. Ground disturbance would not 

result in any impacts on waters of the United States and would not require a permit from the Corps. 

Any new impervious surface area would generate storm water, but all storm water would be 

collected and treated to meet state and federal water quality requirements prior to discharge to the 

Columbia River. 

4.5.6 Required Permits 

The Proposed Action would require the following permits for water quality. 

NPDES Construction Storm water Permit-Washington State Department of Ecology. The 

construction of the Proposed Action would result in more than 1 acre of ground disturbance and 

would require a construction stormwater permit. As part of the NPDES permit process, 

storm water and wastewater generated on the site would be evaluated and characterized, after 

which the specific language and type of NDPES permit would be determined. 

NPDES Industrial Storm water Permit-Washington State Department ofEcology. The 

Proposed Action would result in industrial activities such as the operation of a transportation 

facility or bulk station and terminal and would require an industrial stormwater permit. All 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.5·31 April2017 
254 


31623.185

Cowl1tz County 

Chapter 4. Natural Environment 

El<isting Conditions, Project lmpacts, 

Wash1ngton State Department of Ecology and Proposed Mitigation Measures 

wastewater and storm water generated in the project area, and potentially discharged from the 

project area after treatment, would be evaluated and characterized by the state. Once the water 

to be discharged has be<'n accurately evaluated and characterized by the state, the specific 

standards for water discharged from the project area would be defined and the type of NPDES 

permit would be determined and issued. 

• Water Rights-Washington State Department of Ecology. The Applicant would need to 

ensure its original water rights are current prior to using those rights. If the Applicant's water 

rights arc current, the Applicant must maintain those water rights. If the Applicant's water 

rights are partially or fully relinquished, the Applicant must apply for and obtain the necessary 

water rights. If stormwatcr is collected and reused for a beneficial use, a Water Right Permit 

would be required in accordance with Chapter 90.03 RCW. 

Clean Water Act Section 404-U.S. Army Corps of Engineers. Construction of the Proposed 

Action would require Department of the Army authorization from the U.S. Army Corps of 

Engineers under Section 404 ofthc Clean Water Act. 

• Clean Water Act Section 401-Washington State Department of Ecology. An Individual 

Water Quality Certification from Ecology under Section 401 of the Clean Water Act would be 

required for construction of the Proposed Action. 

4.5.7 

Rivers and Harbors Act-U.S. Army Corps of Engineers. Construction of the Proposed Action 

would require Department of the Army authorization from the U.S. Army Corps of Engineers 

under Section 10 of the Rivers and Harbors Act. The Rivers and Harbors Act authorizes the 

Corps to protect commerce in navigable streams and waterways of the United States by 

regulating various activities in such waters. Section 10 of the RHA (33 USC 403) specifically 

regulates construction, excavation, or deposition of materials in, over, or under navigable 

waters, and any work that would affect the course, location, condition, or capacity of those 

waters. 

Hydraulic Project Approval-Washington Department of Fish and Wildlife. The Proposed 

Action would require a Hydraulic Project Approval from WDFW because project elements would 

affect and cross the shoreline of the Columbia River. The approval would consider impacts on 

riparian and shoreline/bank vegetation in issuance and conditions of the permit, including for 

the installation of the proposed docks and piles, as well as for project-related dredging activities 

and other project-related in-water work. 

Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce impacts related to 

water quality from construction and operation of the Proposed Action. These mitigation measures 

would be implemented in addition to project design measures, best management practices, and 

compliance with environmental permits, plans, and authorizations that are assumed as part of the 

Proposed Action. 

Mt!lenn1um Bulk Terminals Longvtew 

F1nal SEPA Environmental Impact Statement 4.5-32 April2017 
255 


31623.186

Chapter 4. Natura! Environment: 

Cowlitz County 

Wash1ngton State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

4.5.7.1 Applicant Mitigation 

The Applicant will implement the following measures to mitigate impacts on water quality. 

MM WQ-1. Locate Spill Response Kits Near Main Construction and Operations Areas. 

The Applicant will locate spill response kits throughout the project area during construction and 

operations. The spill response kits will contain response equipment and personal protective 

equipment appropriate for hazardous materials that will be stored and used during construction 

and operations. Site personnel will be trained in the storage, inventory, and deployment of items 

in the spill response kits. Spill response kits will be checked a minimum of four times per year to 

ensure proper-functioning condition, and will otherwise be maintained and replaced per 

manufacturer recommendations. Should a spill response kit be deployed, the Applicant will 

notify Cowlitz County and Ecology immediately. The Applicant will submit a map indicating the 

types and locations of spill response kits to Cowlitz County and Ecology for approval prior to 

beginning construction and operations. 

MM WQ-2. Develop and Implement a Coal Spill Containment and Cleanup Plan. 

To limit the exposure of spilled coal to the terrestrial, aquatic, and built environments during 

coal handling, the Applicant will develop a containment and cleanup plan. The plan will be 

reviewed by Cowlitz County and Ecology and implemented prior to beginning export terminal 

operations. In the event of a coal spill in the aquatic environment by the Applicant during export 

terminal operations, action will be taken based on the specific coal spill, and the Applicant will 

develop a cleanup and monitoring plan consistent with the approved containment and cleanup 

plan. This plan will include water quality and sediment monitoring to determine the potential 

impact of the coal spill on the aquatic habitat and aquatic species. The Applicant will develop the 

cleanup and monitoring plan in coordination with Cowlitz County, Ecology, and the Corps. The 

cleanup and monitoring will be similar in scope to the monitoring completed for the Aquatic 

Impact Assessment (Borealis Environmental Consulting 2015) associated with a coal spill in 

British Columbia, Canada in 2014. 

MM CDUST -1. Monitor and Reduce Coal Dust Emissions in the Project Area. 

To address coal dust emissions, the Applicant will monitor coal dust during operation of the 

Proposed Action at locations approved by the Southwest Clean Air Agency (SWCAA). A method 

for measuring coal dust concentration and deposition will be defined by SWCAA. If coal dust 

levels exceed nuisance levels, as determined by SWCAA, the Applicant will take further action to 

reduce coal dust emissions. Potential locations to monitor coal dust concentration and 

deposition will be along the facility fence line in close proximity to the coal piles, where the rail 

line enters the facility and operation of the rotary dumper occurs, and at a location near the 

closest residences to the project area, if agreed to by the property owner(s). The Applicant will 

conduct monthly reviews of the concentration and deposition data and maintain a record of data 

for at least 5 years after full operations, unless otherwise determined hy SWCAA.lfmeasured 

concentrations exceed PM air quality standards, the Applicant will report this information to 

SWCAA, Cowlitz County and Ecology. The Applicant will gather 1 year of fence line data on 

particulate matter (PM) 2.5 and PM10 prior to beginning operations and maintain the data as 

reference. This data will be reported to SWCAA, Cowlitz County, and Ecology. 

Mlllenmum Bulk Terminals-Longview 

Fmal SEPA Env1ronmentallmpact Statement 4.5-33 April2017 
256 


31623.187

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.5.8 

MM CDUST-3. Reduce Coal Dust Emissions from Rail Cars. 

To address coal dust emissions, the Applicant will not receive coal trains unless surfactant has 

been applied at the BNSF Railway Company (BNSF) surfactant facility in Pasco, Washington for 

BNSF trains traveling through Pasco. While other measures to control emissions are allowed by 

BNSF, those measures were not analyzed in this EIS and would require additional 

environmental review. For trains that will not have surfactant applied at the BNSF surfactant 

facility in Pasco, before beginning operations, the Applicant will work with rail companies to 

implement advanced technology for application of surfactants along the rail routes for Proposed 

Action-related trains. 

Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the measures and design features described above 

would reduce impacts on water quality. There would be no unavoidable and significant adverse 

environmental impacts on water quality. 

Millennium Bulk Terminals Longv1ew 

FmaiSEPA Environmental Impact Statement 4.5-34 April2017 
257 


31623.188

Cowlitz County 

Washington State Department of Ecology 

4.6 Vegetation 

Chapter 4. Natural Env1ronment 

ExiSting ConditiOnS, Project Impacts, 

and Proposed Mitigation Measures 

Vegetation is the foundation of most aquatic and terrestrial ecosystems. Among other functions, 

plants release oxygen and sequester carbon, provide wildlife habitat and food, affect soil 

development, and can increase slope stability. Plants are involved in the regulation of 

biogeochemical cycles such as the movement and filtration of water, carbon, and nitrogen. Plants 

can also have cultural, spiritual, and psychological benefits for humans. 

This section describes vegetation in the study area. It then describes impacts on vegetation that 

could result from construction and operation of the Proposed Action and under the No-Action 

Alternative. This section also presents the measures identified to mitigate impacts resulting from 

the Proposed Action. 

4.6.1 Regulatory Setting 

Laws and regulations relevant to vegetation are summarized in Table 4.6-1. 

Table 4.6·1. Regulations, Statutes, and Guidelines for Vegetation 

Regulation, Statute, Guideline 

Federal 

Clean Water Act 

(33 USC 1251, et seq.) 

Endangered Species Act 

(16 usc 1531-1544) 

State 

Description 

Authorizes EPA to establish the basic structure for regulating 

discharges of pollutants into the waters of the United States 

and regulating quality standards for surface waters. 

Regulates activities in streams1 wetlands, and other aquatic 

resources, including integral vegetated components. 

Provides for the conservation of species listed as threatened 

or endangered and the habitat upon which they depend. 

Section 7 of the ESA requires federal agencies to consult with 

USFWS and/or NMFS to ensure a federal action is not likely to 

jeopardize the continued existence of any threatened or 

endangered species or result in the destruction or adverse 

modification of designated critical habitat. 

~----------------~----------~----~--~-------- Washington State Growth Defines a variety of critical areas, which are designated and 

Management Act regulated at the local level under city and county critical 

(RCW 36.70A) areas ordinances. 

Washington State Shoreline Requires cities and counties (through their Shoreline Master 

Management Act (RCW 90.58) Programs) to protect shoreline natural resources against 

State Water Pollution Control Act 

(RCW90.48) 

Washington Natural Resource 

Damage Assessment (RCW 

90.56.370) 

Millen mum Bulk Termmals longv1ew 

Fma! SEPA Environmental Impact Statement 

adverse impacts. 

Provides Ecology with the jurisdiction to control and prevent 

the pollution of streams, lakes, rivers, ponds, inland water, 

salt waters, watercourses, and other surface and 

groundwater in the state. 

Holds parties responsible for spilling oil into state waters 

liable for damages resulting from injuries to public resources. 

4.6-1 April2017 
258 


31623.189

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Oil Spill Natural Resource Damage 

Assessment (WAC 173-183} 

Washington Natural Area Preserves 

Act 

Washington State Noxious Weed 

Control Act (RCW 17.10, WAC 16-

750) 

Washington State Hydraulic Code 

(WAC 220-110) 

Clean Water Act Section 401 Water 

Quality Certification 

Local 

Cowlitz County Critical Areas 

Protection Ordinance (19. 15) 

City of Longview Critical Areas 

Ordinance (17.10.140) 

Cowlitz County Shoreline Master 

Program 

(CCC 19.20} 

Notes: 

Description 

Chapter 4. Natural Environment· 

Existing Conditions, Project Impacts, 

and Proposed Mitigatton Measures 

Establishes procedures for convening a resource damage 

assessment committee and screening of resource damages 

resulting from oil spills to determine which damage 

assessment to use. Provides for determining damages in 

cases where the compensation schedule is selected as the 

damage assessment method to apply. 

Establishes the Washington Natural Heritage Program to 

identify candidates for natural areas designated to preserve 

special-status plant species and regionally important or 

unique plant communities. Authorizes the program to track 

plant species and high-quality natural ecosystems in the state 

and to designate plants with a state status as threatened, 

sensitive, or endangered. WDNR is the implementing agency. 

Establishes noxious weed control boards, which designate 

certain plant species as Class A, B, or C noxious weeds. 

Authorizes the management, control, and/or elimination of 

noxious weed populations in the state. 

WDFW issues a hydraulic project approval for certain 

construction projects or activities in or near state waters. 

Considers effects on riparian and shoreline or bank 

vegetation in issuance and conditions of the permit. 

Ecology issues Section 401 Water Quality Certification for inwater construction activities to ensure compliance with state 

water quality standards and other aquatic resources 

protection requirements under Ecology's authority as 

outlined in the federal Clean Water Act. 

Requires the County to designate critical areas, including 

vegetation in wetlands and their buffers. 

Regulates activities within and adjacent to critical areas 

including vegetation occurring in wetlands and their buffers, 

fish and wildlife habitat conservation areas (including 

streams and their buffers}, frequently flooded areas, and 

geological hazard areas. 

Regulates development in the shoreline, including the 

shoreline of the Columbia River, a Shoreline of Statewide 

Significance. 

USC= United States Code; ESA =federal Endangered Species Act; EPA= U.S. Environmental Protection Agency; 

USFWS =U.S. Fish and Wildlife Service; NMFS =National Marine Fisheries Service; WDFW Washington 

Department of Fish and Wildlife; RCW =Revised Code of Washington; WAC= Washington Administr;;~tive Code 

4.6.2 Study Area 

The study area for direct impacts on vegetation is the 190-acrc project area plus additional elements 

(e.g., access roads, docks, and rail line], a total of 212 acres, as shown in Figure 4.6-1. 

Millennium Bulk Terrnma!s-Longvlew 

Fmal SEPA Environmental Impact Statement 4.6-2 Apn! 2017 
259 


31623.190

.. 

~ <( 

> ~ 

i:;; , B 

Jl ~ E 

1: 

• 2 

0 

~ ~ ~c ·;: 

E !l 

I " 

f ~ .. 

" g~ > 2 .... 

E • 

~~ 

~ E 

J, ~ ·~ 

8 ~ .; 

" 

~,s 

~~ :; Eg .. u5 u: fj 
260 


31623.191

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

E:xisting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The indirect impacts study area for vegetation related to operations in the project area is the area 

within 1 mile of the project area, for a total of 4,401 acres (Figure 4.6-1). This area considers the 

extent to which potential coal dust deposition (Chapter 5, Section 5.7, Coal Dust) could affect 

vegetation during operations. 

Further vegetation indirect impact study areas were also established for vessel and rail traffic 

associated with the Proposed Action. These include the lower Columbia River to evaluate the 

potential impacts on shoreline vegetation resulting from Proposed Action-related vessels transiting 

the Columbia River and rail routes for Proposed Action-related trains in Cowlitz County and 

Washington State to evaluate the potential impacts that could occur because of a coal spill. Wetland 

vegetation is discussed in more detail in Section 4.3, Wetlands. 

4.6.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts on vegetation associated with the construction and operation of the Proposed Action and 

No-Action Alternative. 

4.6.3.1 Information Sources 

The following sources of information were used to describe the existing conditions relevant to 

vegetation and identify the potential impacts of the Proposed Action and No-Action Alternative on 

vegetation in the study area. 

• Two site visits conducted by lCF biologists on April 8, 2014, and December 11, 2014. 

• Historical aerial photos from 1994 and 2014 accessed through Go ogle Earth Professional, a 

2010 aerial photo provided by ESRI, and a 2012 aerial photo from the North Agriculture 

Imagery Program. 

• Reports prepared by Grette Associates for the Applicant as part of the permit application 

materials (Grette 2014a through 2014i). 

U.S. Fish and Wildlife Service (USFWS) (2015) Information for Planning and Conservation, 

online database. 

• 2011 National Land Cover Database (Homer et al. 2015) to describe land cover classes in the 

indirect impacts study area. Washington Department of Fish and Wildlife (WDFW) Priority 

Habitat and Species (PHS) spatial data provided by WDFW on May 5, 2014, for the study area 

(Washington Department ofFish and Wildlife 2014). 

• The Washington State Department of Natural Resources (WDNR) Natural Heritage Program 

Information System (Washington State Department of Natural Resources 2015) list of known 

occurrences of rare plants in Cowlitz County, Washington, and details regarding their 

occurrence, habitat, and range. 

4.6.3.2 Impact Analysis 

The following methods were used to evaluate the potential impacts of the Proposed Action and 

No-Action Alternative on vegetation. A full description of analysis methods is provided in the 

SEPA Vegetation Technical Report(ICF 2017). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.6-4 Aprll2017 
261 


31623.192

Cowlitz County 

Chapter 4_ Natural Environment· 

Existing Cond1t10ns, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

Five land cover types (developed lands, uplands, wetlands, riparian lands, and open water) were 

mapped to describe vegetation for the direct impacts study area based on site visits, aerial 

photographs, federal databases, and information provided by the applicant. Vegetation cover 

within these land cover types was then characterized (e.g., forested, scrub-shrub, herbaceous, 

and managed herbaceous]. Land cover type mapping was adjusted based on field observations. 

Land cover types in the indirect impacts study area within 1 mile of the project area are 

described based on the 2011 National Land Cover Database GIS data (Homer eta!. 2015); land 

cover classifications described in these data consist of open water, developed, forest, shrub, 

herbaceous, barren land, agriculture (planted/cultivated and hay /pasture], and wetlands. 

Direct impacts on vegetation from construction of the Proposed Action would result when 

portions of the study area are cleared to construct the coal export terminal and associated 

infrastructure. These impacts were quantified by overlaying the study area on the land cover 

map. The approximate acreage of each affected cover type was calculated and expressed as a 

percentage of all cover types in the study area. 

Direct and indirect impacts from operations are qualitatively described, including the impact 

mechanism, potential impacts, duration (i.e., temporary or permanent), and likelihood of 

occurrence. 

For the purposes of this analysis, construction impacts are based on peak construction period and 

operations impacts are based on maximum throughput capacity (up to 44 million metric tons per 

year]. 

4.6.4 Existing Conditions 

This section describes the existing environmental conditions in the study areas related to vegetation 

that could be affected by the construction and operation of the Proposed Action and the No-Action 

Alternative. 

4.6.4.1 Direct Impacts Study Area 

The following land cover types are found in the direct impacts study area. 

Developed Lands 

Developed lands account for 151.14 acres (71 %] of the direct impacts study area. Developed lands 

are those areas where the majority of the vegetation has been removed and replaced with 

pavement, buildings, or other types of infrastructure. Developed lands also include disturbed areas 

of land comprising widely scattered patches of invasive shrubs such as Himalayan blackberry 

(Rubus armeniacus) and Scotch broom (Cytisus scoparius). These areas are typically found on higher 

mounds and around derelict structures and equipment. Developed lands include all of the areas 

previously developed by the former Reynolds Metals Company facility (Reynolds facility) and the 

Bonneville Power Administration (BPA) and Cowlitz County Public Utility District substations. 

Named features and facilities described below are shown in Figure 4.2-3 in Section 4.2, Surface 

Water. Wetlands discussed below are shown in Section 4.3, Wetlands, Figures 4.3-1 through 4.3-4. 

Millennium Bulk Terminals Longview 

Fmal SEPA Environmental Impact Statement 4.6-S April2017 
262 


31623.193

Cowlitz County 

Washington State Department of Ecology 

Uplands 

Chapter 4. Natural Environment· 

Existmg Conditions, Project Impacts, 

and Proposed Mit1gation Measures 

Uplands are undeveloped vegetated areas that do not exhibit wetland characteristics. Uplands 

account for 26.26 acres (12%} of the direct impacts study area and consist of the following 

vegetation types. 

Forested uplands. Forested uplands are areas where trees more than 16 feet high provide 

more than 20% canopy cover (Multi-Resolution Land Characteristic Consortium 2011). 

Approximately 8.90 acres ( 4%} of the direct impacts study area were identified as forested 

uplands. On the former Reynolds facility, forested uplands occur around Wetlands A, C, andY 

between the closed Black Mud Pond (BMP} facility and the former cable plant and along the 

U-Ditch and Interceptor Ditch. Dominant trees in the uplands adjacent to Wetlands A, C, andY 

include black cottonwood (Populus balsamifera ssp. trichocarpa), some Pacific willow (Salix 

Iucida), and Oregon ash (Fraxinus latifolia). Common shrubs include Himalayan blackberry, red 

elderberry (Sambucus racemosa), and sweetbriar rose (Rosa rubiginosa), with black cottonwood 

and Oregon ash saplings also present. Dominant trees in the forested corridor along the U-Ditch 

and Interceptor Ditch include black cottonwood, red alder (Alnus rubra), and some Oregon ash 

along the ditch banks. Himalayan blackberry is the most common plant in the shrub layer, but 

has been recently cleared from some areas on the western end of the U- Ditch. Red 

osier-dogwood (Cornus sericea) is also common. Several types and sizes of fallen trees are 

present in this forested corridor, as are various snags. Reed canarygrass (Phalaris arundinacea) 

is common in the herbaceous layer in all of these forested upland areas. 

Forested uplands in the direct impacts study area also include a small area (0.05 acre} of forest 

in the riparian zone along the Columbia River between the ordinary high water mark (OHWM) 

and the top of the Consolidated Diking Improvement District (CDID] #1levee. 

Scrub-shrub uplands. Scrub-shrub uplands are areas with more than 20% canopy cover of 

shrubs or small trees that are less than 16 feet high (Multi-Resolution Land Characteristic 

Consortium 2011}. Approximately 2.11 acres (1 o/o} oft he direct impacts study area were 

identified as scrub-shrub uplands. Scrub-shrub uplands on the former Reynolds facility occur 

around the fanner cable plant and north of the closed BMP facility around Wetland Y. Common 

species in these areas include young black cottonwood, willows, and Himalayan blackberry. 

Reed canarygrass is also common in the herbaceous layer. 

• Unmanaged herbaceous uplands. Unmanaged herbaceous uplands are areas dominated by 

native and nonnative grasses and forbs and not maintained or managed (e.g., mowed) on a 

regular basis. Approximately 10.88 acres (So/o] of the direct impacts study area were identified 

as unmanaged herbaceous uplands. These areas occur on the former Reynolds facility and BPA 

Parcel61954. Unmanaged herbaceous uplands in the direct impacts study area occur along the 

CDID #1 Ditch 10 to the northwest of the former cable plant; in the former borrow area to the 

east of the closed BMP facility; and in the southeastern portion of the direct impacts study area 

along the Reynolds Lead spur. These areas are primarily dominated by reed canarygrass. 

Unmanaged herbaceous uplands on IJPA Parcel61954 are located in a transmission line 

easement to the northwest of the Longview Substation. This area is dominated by species 

similar to those listed above for the direct impacts study area, as well as Himalayan blackberry. 

• Managed herbaceous uplands. Managed herbaceous uplands are areas regularly managed by 

mowing, grazing, or other activities. Approximately 4.37 acres (2%) of this cover type occur on 

the former Reynolds facility, CDID #1levee, lawns around the administrative and maintenance 

Millennium Bulk Terminals-Longview 

Fmal SEPA Environmental Impact Statement 4.6-6 Apri12017 
263 


31623.194

Cowlitz County 

Washington Sta.te Department of Ecology 

Chapter 4. Natural Environment: 

E)osting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

buildings, and caps of the closed BMP facility. All of these areas are dominated by grasses and 

forbs that are regularly mown. Species present include reed canarygrass, haired bentgrass 

(Agrostis scabra), colonial bentgrass (Agrostis capillaris), broadleafplantain (Plantago major), 

orchard grass (Dactyl is spp.], short-awn foxtail (Alopewrus aequo/is), western bittercress 

(Cardamine oligosperma), blue wild rye (Elymus glaucus), common horsetail (Equisetum 

arvense), Queen Anne's lace (Daucus carota), scouring rush (Equisetum hyemale affinis), 

bedstraw (Galium aparine), velvetgrass (Holcus lanatus), perennial ryegrass (Lolium perenne), 

Kentucky bluegrass (Poa pratensis), and American vetch (Vicia Americana). 

Wetlands 

Wetlands exhibit the wetland vegetation, soil, and hydrology characteristics defined in the federal 

wetland delineation manual and account for 26.93 acres (11 %) of the direct impacts study area. The 

most prevalent wetland type is herbaceous wetlands, followed by forested wetlands and 

scrub-shrub wetlands. Section 4.3, Wetlands, discusses wetlands and wetland vegetation in detail. 

Open Water 

Open water accounts for 10.78 acres (5%!) of the direct impacts study area and consist of the 

Columbia River and various ditches and ponds. This land cover is described in more detail in 

Sections 4.2, Surface Water and Floodplains, and 4.8, Wildlife, as an aquatic habitat. These areas 

support vegetation along their perimeters, typically including native plants as well as noxious 

weeds. Curly pond weed (Potamogetan crisp us) was observed at approximately -1 foot Columbia 

River Datum downstream of Dock 1 during a period of high visibility. The gently sloping portion of 

the shallow water habitat area between the east and west pile dikes near the project area may 

support a narrow band of sparse aquatic vegetation in the uppermost elevations where increased 

light penetration and reduced river velocity are present, relative to the deeper portions of the river 

in this area. 

4.6.4.2 Indirect Impacts Study Area 

Table 4.6-2 summarizes the areas and percent cover of land cover classes in the indirect impacts 

study area within 1 mile of the project area. Approximately 70% of the indirect impacts study area is 

occupied by developed lands, open water (primarily the Columbia River), and agricultural lands; the 

remaining 30% consists of forest, shrub, herbaceous, wetlands, and barren lands. 

Land cover immediately surrounding the project area is similar to the project area, consisting 

primarily of developed areas, managed/unmanaged herbaceous areas, wetlands, and open water 

(the Columbia River). Riparian lands are found predominantly along the Columbia River between 

the OHWM and the top of the CDID #1levee, and include vegetation adjacent to the active channel 

margin in riparian zones identified in the previous upland and shoreline habitat inventories 

(Grctte Associates 2014e, 2014g, 2014h). 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.6-7 April2017 
264 


31623.195

CowlitZ County 

Washington State Department of Ecology 

Table 4.6-2. Land Cover in the Indirect Impacts Study Area 

Land Cover Classification 

Developed 

Forest 

Shrub 

Herbaceous 

Agriculture 

Wetlands 

Open water 

Barren 

Total 

Notes· 

Area in Indirect Impacts 

Study Area (acres) 

1631 

317 

106 

62 

573 

719 

880 

83 

4401 

Source: National Land Covt>r Data Base 2011 (Homer et aL 2015), 

Chapter 4. Natural Environment 

Existmg Conditions, ProjeCt Impacts, 

and Proposed Mlt1gat10n Measures 

Percent Cover in Indirect 

Impacts Study Area 

37 

8 

2 

2 

13 

16 

20 

2 

100 

The riparian lands consist of three vegetation types: forest, scrub-shrub, and herbaceous. 

• Riparian forest. Riparian forest extends in a band of varying width along most of the shoreline, 

with the widest areas found on the southern portion of the shoreline near the previous dredged 

material storage area. Dominant vegetation in this cover type includes black cottonwood and 

various willow trees, underlain by a mixture of native shrubs such, as red osier dogwood, and 

invasive shrubs, such as Himalayan blackberry and Scotch broom. Scattered accumulations of 

large woody material are present in these areas. 

• Riparian scrub-shrub. Riparian scrub-shrub contains similar species to riparian forest. Two 

scrub-shrub riparian areas were found on BPA Parcel 61950 between the Columbia River and 

the levee. These areas are dominated by black cottonwood saplings, various willows, and 

nonnative vegetation including Himalayan blackberry and Scotch broom. Native and nonnative 

herbaceous species are also present. 

• Riparian herbaceous. Riparian herbaceous areas are generally dominated by grasses and 

weeds including reed canarygrass, velvet grass, common horsetail, and broadlcaf plantain. 

These sparse patches of herbaceous vegetation occur under the existing Dock 1 conveyor and 

trestle, and on sandy flats between the OHWM and the approximate elevation of mean higher 

high waler. 

The following areas in the indirect impacts study area contain higher quality vegetation 

communities and generally represent contiguous forest and other intact vegetation communities 

(Figure 4.6-1 ]. 

Mount Solo upland forest. Mount Solo is a forested ridge north of the project area. It supports a 

large area (approximately 505 acres) of native forest intermixed with rural residential areas and 

some light industrial uses. This area is the largest inland forested area in the indirect impacts 

study area. Vegetation includes Douglas fir (Pseudotsuga menziesii], big leaf maple (Acer 

macrophyilum), red alder, and western hemlock (Tsuga heterophylla).lt supports a diversity of 

native plant communities and provides habitat for a variety of wildlife species. 

Millennium Bulk Terminals Longv1ew 

Final SEPA Envwonmental Impact Statement 4.6-8 Apnl2017 
265 


31623.196

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment· 

Existing Conditions, Project Impacts, 

and Proposed Mit1gat10n Measures 

Mint Farm wetland mitigation sites. Two compensatory wetland mitigation sites for the Mint 

Farm Industrial Park arc located east of the project area. The Phase I mitigation site is 4.28 acres 

and is a complex of forested, scrub-shrub and emergent wetlands; the Phase II mitigation site is 

67 acres and is a mixture of forested, scrub-shrub and emergent wetlands intermixed with 

forested uplands. 

• lord Island. Lord Island is located in the Columbia River near the project area. The 234-acre 

island was previously used for dredge material disposaL It is densely forested and bisected by 

various high-flow channels that support tidal marshes and shallow babitatareas. Vegetation on 

the island is largely native. Refer to Section 4.8, Wildlife, for habitats and wildlife of Lord Island. 

4.6.4.3 Special-Status Plant Species 

As shown in Table 4.6-3, there are 15 plant species with some type of federal or state status in 

Cowlitz County (Washington State Department of Natural Resources 2015). 

Table 4.6-3. Known Occurrences of Threatened, Endangered, Sensitive, and Rare Plants in Cowlitz 

County 

Federal State Historical 

Scientific Name Common Name Status' Status• Record' 

Agoseris elata 

Buxbaumia viridis 

Cimicijitga elata 

Corydalis aquae-gelidae 

Erythron fum revolutum 

Euonymus occidentalis var. occidental is 

lsoetes nuttallii 

Physostegia parvijlora 

Poa /axijlora 

Poa nervosa 

Salix sessilifo/ia 

Sida/cea nelsonia no 

Tetra phis geniculata 

Utricularia gibba 

columbiana 

Notes: 

Tall agoseris 

Buxbaumia moss 

Tall bugbane 

Clackamas corydalis 

Pink fawn-lily 

Western wahoo 

Nuttall's quillwort 

Western false dragonhead 

Loose-flowered bluegrass 

Wheeler's bluegrass 

Soft-leaved willow 

Nelson's checker-mallow 

Tetra phis moss 

Humped bladderwort 

Columbia water~meal 

Federal Status under the Endangered Species Act: 

LT =Listed Threatened (likely to become endangered) 

sc 

sc 

LT 

s 

Rl 

s 

s 

s 

s 

Rl 

s 

s 

s 

E 

Rl 

Rl 

Rl 

c 

c 

H 

c 

c 

c 

c 

H 

c 

c 

c 

c 

c 

c 

c 

SC::::: Species of Concern. An unofficial status, the species appears to be in jeopardy, but insufficient information 

to support listing, 

h State Status of plant species is determined by the Washington Natural Heritage Program. Factors considered 

include abundance, occurrence patterns, vulnerability, threats, existing protection, and taxonomic distinctness. 

Values include: 

E Endangered. In danger of becoming extinct or extirpated from Washington. 

S Sensitive. Vulnerable or declining and could become Endangered or Threatened in the state. 

Rl Review group 1. Of potential concern but needs more fieldwork to assign another rank. 

Historical Record refers to when the occurrence was documented: 

C Most recent sightings after 1977. 

H :::; Most recent sighting before 1977. 

Source; Washington St<1te Department of Natural Resources 2014. 

Mi11enntum Bulk Termm.:.ls Longv1ew 

Final SEPA Environment;;~! Impact Statement 4.6-9 Apri12017 
266 


31623.197

Cowlitz County 

WashingtQn State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

None of these species bas been recorded in the direct or indirect study areas. The nearest record of 

occurrence of a special-status plant species is a documented siting of the obligate wetland species 

Columbia water-meal (Wolffia columbiana) approximately 1.5 miles northwest of the project area 

and outside of the direct and indirect study areas (Washington State Department of Natural 

Resources 2015). 

The special-status plant species, and the preferred elevation, habitat and geographic range for each 

are provided in Table 4.6·4. As indicated in Table 4.6·4, of the 15 special-status plant species known 

to occur in Cowlitz County, six were identified as potentially occurring in the direct impacts study 

area, based on the presence of potentially suitable habitat. These species are Nelson's 

checker-mallow (Sidalcea nelsoniana), western waboo (Euonymus occidentalis var occidentalis), 

western false dragonhead (Physostegia parviflora], loose-flowered bluegrass (Poa laxiflora], 

soft-leaved willow (Salix sessilifolia), and Columbia water·meal. 

Millenntum Bulk Terminals-longview 

Fmal SEPA £nwonmenta! Impact Statement 4.6-10 April 2017 

31623.198

Chapter4. Natur

CowlitzCounw 

Washmgton State Department of Ecology 

Table 4.6~4. Elevation, Habitat, and Geographic Range of Listed Threatened, Endangeredt Sensitive, and Rare Plants in Cowlitz Cou

Common Scientific 

Name Name 

Tall agoseris Agoseris e/ata 

Buxbaumia 

moss 

Tall bugbane 

Clackamas 

corydalis 

Buxbaumia 

viridis 

Cimicifuga 

elata 

Corydalis 

aquae-gelidae 

Mtllenmurn Bulk Termtnals-Longview 

Final SEPA Environmental Impact Statement Elevatio~ Range Habitat 500 to 7,800 feet Found in meadows, prairies, open woods, and exposed Low to subalpine elevations 100 to 2,800 feet, with majority below 700 feet 1,250 to 4,200 feet Occurs in areas to no canopy cover and assumed to be shade intolerant. Found in coniferous forests on well-rotted logs and peaty soil and humus. Occurs in or along margins of mixed mature or old growth forests, including mesic coniferous or mixed coniferous-deciduous stands. Frequently found on north or cast-facing slopes. Occurs in or near cold flowing water, including seeps and small streams; often occurring in stream channels. Moist shady woods in western hemlock (Tsuga heterophylla) and silver fir (Abies amabilis) zones. Prefers intermediate levels of overstory canopy closure. 4,6·11 Geographic Range Throughout California, Oregon, and Washington. Western North America including the western portion of Washington. Southwestern British Columbia to southern Oregon, west of Cascade range. Regionally endemic of Washington; Clackamas and Multnomah Counties in Oregon. 

Occurrence Relat

~roject Area 

Documented in no

Cowlitz County. N

occur on the proje

to elevation. 

Documented in ea

Cowlitz County. N

occur on the proje

to lack of suitable 

habitat. 

Documented in we

Cowlitz County in 

along the Columbi

Not likely to occur 

project area due to 

appropriate forest 

Documented in ea

Cowlitz County. N

occur on the proje

to elevation and la

suitable habitat. 

31623.199

Cowlitz County 

Washmgton State Department of Ecology 

Scientific 

Name 

Erythronium 

lily revolutum 

Western Euonymus 

wahoo occidentalis 

var. 

occidentalis 

Nuttall's Jsoetes nuttallii 

quillwort 

Mil!enn1um8ulk rerrn1nals-Longview 

FinaiSEPAEnvironrnentallmpactStatement 

Elevation 

100 to 600 feet 

20 to 600 feet 

200 to 345 feet 

Occurs in high-precipitation 

areas within 100 km of the 

coast, in moist soil in open or 

moderately shaded forests 

that provide full light at 

ground level. Habitats in 

Washington include swampy 

western redcedar (Thuja 

plfcata)-lodgepole pine 

(Pinus contorta) forests, 

Sitka spruce (Picea 

sitchensis) woods on 

consolidated sand dunes, 

Sitka spruce-western 

hemlock forests, and shaded 

river hottoms. 

Occurs in moist woods and 

forested areas on west side 

of Cascades. Often found in 

shaded draws, riparian 

areas, and ravines. 

Sometimes found in grassy 

areas with scattered trees. In 

Washington, it typically 

occurs on fine sandy loam, 

silty loam, and silty clay 

loams. 

Terrestrial species found in 

seasonally wet ground, 

seepages, temporary 

streams, and mud near 

vernal pools. 

4.6-12 

Chapter4. Natur

ExJstmgConditlons,

andProposedMit1g

Pacific coast region from Documented in 

southern British Columbia to northwestern Cow

northwestern California. County. Not likely 

on the project area 

lack of suitable co

forest habitat. 

British Columbia, western Documented in we

Washington, and Oregon, Cowlitz County, po

south to central California. ncar the project ar

Appropriate habit

occur on and ncar 

area. 

Southeast Vancouver Island, Documented in w

British Columbia to southern Cowlitz County, po

California. near the project ar

likely to occur on 

area due to elevat

31623.200

Cowlitz County 

Washmgton State Department of Ecology 

Common 

Name 

Western 

false 

dragonhead 

Loosew 

flowered 

bluegrass 

Wheeler's 

bluegrass 

Scientific 

Name 

Physostegia 

parviflora 

Poa !axijlora 

Poa nervosa 

Elevation Range 

None provided 

50 to 3,700 feet 

10 to 800 feet 

Soft-leaved 

willow 

Salix sessilifolia None provided 

Nelson's 

checkermallow 

Sidalcea 

nelsoniana 

Mil!enn1um Bulk Termmals-Longv1ew Fma\ SEPA Impact Statement 

None provided 

Habitat 

Occurs along shores of 

streams and lakes, marshes, 

and other low, wet places in 

the valleys and foothills.:1 

Found on moss-covered 

rocks and Jogs, along streams 

and rivers, and on edges of 

wet meadows in moist shady 

woods. 

Found in low-elevation wet 

habitats west of the Cascade 

crest in forest openings with 

minimal canopy cover, 

mossy rock outcrops, cliff 

crevices, and occasionally 

talus. Sites are often sparsely 

vegetated with little soil 

development. 

Geographic Range 

East of the Cascade summits, 

British Columbia south 

through Washington to the 

Columbia Gorge, then west to 

Portland, Oregon; east to 

Idaho and North Dakota. a 

Found in coastal Alaska, 

British Columbia, western 

Washington, and western 

Oregon. 

Endemic from Vancouver 

Island, British Columbia, to 

northwest Oregon. 

Found in wet lowland Found in southern British 

habitilts, including silty or Columbia to northern 

sandy riverbanks, riparian California. 

forests, dredge spoils, sandy 

beaches, and at the upper 

edge of an intertidal zone. 

Found in low-elevation 

meadows, prairie, or 

grassland, along fencerows, 

streams, and roadsides, 

drainage swales, and edges 

of plowed fields adjacent to 

wooded areas. 

4.6-13 

Regionally endemic of 

Benton County, Oregon, 

north to Lewis County, 

Washington, and from 

central Linn County, Oregon 

to just west of the crest of the 

Coast Range. 

Chapter4. Natur

ExlstmgLondltlons

.;ndProposedMitl

Occurrence 

Project Area 

Most recent docum

in Cowlitz County 

1977. Appropriate 

may occur on and 

project area. 

Documented in 

northwestern Cow

County. Appropria

may occur on and 

project area. 

Documented in we

Cowlitz County, po

near project area. 

occur on the proje

to lack of preferre

clements. 

Documented in no

Cowlitz County. A

habitat may occur 

the project area. 

Documented in 

northwestern Cow

County. Appropria

may occur on and 

project area. 

31623.201

Cowlitz County 

Wash1ngtonStateDepartmentofEcology 

Common Scientific 

Name Name 

Tetraphis Tetraphis 

moss geniculata 

Humped lltricularia 

bladderwort gibba 

Columbia WoljJia 

water* meal columbiana 

Elevation Range 

Sea level to 

subalpine 

elevations 

160 to 490 feet 

10 to 250 feet 

Habitat 

Occurs on the cut or broken ends or lower half of large 

decay class rotten logs or 

stumps, and occasionally on 

peaty banks in moist 

coniferous forests. 

Occurs in lakes, lake edges, 

and muddy disturbed sites in 

the lowland zone. 

Found in freshwater Jakes, 

ponds, and slow streams. 

Herbarium, Burke Museum of Natura! History and Culture 2014. 

Geographic Range 

From Alaska and British 

Columbia through western 

Washington and select sites 

in Oregon. 

Southern British Columbia 

south to California. 

From California to British 

Columbia, east to Quebec, 

and south to Florida, 

excluding the interior 

southwestern states. 

Chapter4. 

Ex1StlngCondit!Or1S, 

and Proposed M1t

Occurrence Relat

Project Area 

Not documented i

County. Not likely 

on project area du

suitable coniferou

with logs and stum

Documented in no

Cowlitz County. N

occur on project a

elevation. Occurs within 1.5 

the project area; c

in ponded habitat

near the project ar

Source: Unless noted otlwrwise, this information came from the Washington St<lte Department of Natural Resources, Washington Natural Heritage Progra

species fact sheets al http:/ jwwwl.dnr.wa.govjnhpjrefdeskjlistsjplantsxcojcow!itz.html. 

Millenn1um Bulk Terminals-Longvrew F1na!SEPAEnv1ronmentallmpactStatement 4.5-14 
271 


31623.202

CowlitZ County 

Washington State Department of Ecology 

4.6.4.4 Noxious Weeds 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The project area supports plant species regulated as noxious weeds. l'ourteen noxious weed species 

have been documented in the project area (Table 4.6-5) (Cowlitz County Noxious Weed Control 

Board 201 5; Washington State Noxious Weed Control Board 2015). No species designated for 

Cowlitz County as Class A noxious weeds has been observed in the project area (Table 4.6-6 

provides definitions for the noxious weed classifications). Six of the species identified in the project 

area (indigobush [Amorpha fruticosa], Scotch broom, policeman's helmet [Impatiens glandulifera], 

Eurasian water milfoil [Myriophyllum spicatum], parrotfeather [Myriophyllum aquaticum], and water 

primrose [Ludwigia hexapetala]) are considered Class Il weeds, and identified as priorities for 

control, either by Washington State or Cowlitz County. The remaining eight species in the study area 

are listed Class C noxious weeds, a classification assigned to weeds that are not typically considered 

a priority for weed control because they are already widespread throughout the state. These species 

are Canada thistle (Cirsium arvense), bull thistle (Cirsium vulgare), English ivy (Hedera helix), yellowflag iris (Iris pseudacorus), reed canarygrass, Himalayan blackberry, common tansy (Tanacetum 

vulgare), and nonnative cattail. 

Table 4.6-5. Noxious Weeds Identified in the Project Area 

Noxious Weed Species __ c_la_s_s_ifi_•c_a_t_io_n __ State/County 

Location Cowlitz Priority Weed 

Common Name Scientific Name Observeda,b.c State" County• for Control• 

Indigo bush Amorpha fruticosa 

Scotch broom Cytisus scoparius 

Policeman's Impatiens g/andu/ifera 

helmet 

Eurasian water Myriophyllum 

mil foil spicatum 

Parrotfeather Myriophyllum 

aquaticum 

Water primrose Ludwigia hexapeta/a 

Canada thistle Cirsium arvense 

!lull thistle Cirsium vulgare 

English ivy Hedera helix 

Yellowfiag iris Iris pseudacorus 

Reed canarygrass Phalaris arundinacea 

Himalayan Rubus armeniacus 

blackberry 

Common tansy Tanacetum vulgare 

Riparianh 

W/U'·" 

Wjll·' 

WjOW' 

W/OW' 

D' 

W/U'·" 

W/U'·" 

W/U'·" 

WfD" 

W/U'·" 

uJ,h 

ll' 

w,l,IJ 

B 

B 

B 

B 

Il 

B 

c 

c 

c 

c 

c 

c 

c 

c 

B 

Il 

Il 

B 

B 

B 

c 

c 

c 

c 

Not listed 

c 

c 

c 

YesjNo 

NojYes 

YesjYes 

Yes/No 

NojNo 

NojNo 

No/Yes 

NojNo 

No/No 

No/No 

NojNo 

No/No 

No/Yes 

a Appendix F: Noxious Weeds and Sensitive Plants in Grctte Associates 2014a, Location values: W =wetland; 

U =upland; D:: Ditches; OW:: open water 

b Observations made by ICF during site investigations in April and December 2014. 

Observations by Washington State Noxious Weed Control Board (1999). 

d State classification based on Washington State Noxious Weed Control Board 2015 Noxious Weed List. 

e County classification and for weed control (state and county based on Proposed 2015 Cowlitz 

Noxious Weed Noxious Weed Control Board 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.6-15 April2017 
272 


31623.203

Cowlitz County 

Washington State Department of Ecology 

Table 4.6-6. Washington State Noxious Weed Classification 

Class Definition 

Chapter 4. Natural Environment 

Existing Conditions, ProJect Impacts, 

and Proposed Mitigation Measures 

A Nonnative species whose distribution in Washington is still limited. Preventing new 

infestations and eradicating existing infestations are the highest priority. Eradication of 

Class A plants is required by law. 

8 Nonnative species presently limited to portions of the State. Species are designated for 

control in regions where they are not yet widespread. Preventing new infestations in these 

areas is a high priority. In regions where a Class B species is already abundant, control is 

decided at the local level, with containment as the primary goal. 

C Noxious weeds that are typically widespread in Washington or are of special interest to the 

state's agricultural industry. The Class C status allows counties to require control if locally 

desired. Other counties choose to education or technical consultation. 

Source: Washington State Noxious Weed Control Board 2015. 

4.6.5 Impacts 

This section describes the potential direct and indirect impacts on vegetation that would result from 

construction and operation of the Proposed Action and the No-Action Alternative. 

4.6.5.1 Proposed Action 

This section describes the potential direct and indirect impacts related to vegetation that would 

result from construction and operation of the Proposed Action and the No-Action Alternative. Direct 

impacts could result from activities that directly disturb or damage vegetation including such 

actions as removing vegetation during clearing and grading activities and the physical and chemical 

management of vegetation and noxious weeds as part of routine facility maintenance. Indirect 

impacts include the future spread of noxious weeds into areas adjacent to the construction site and 

the associated changes in plant communities that could result from this activity. 

Potential impacts on vegetation were also considered in terms of duration. Permanent impacts 

would modify vegetation cover types to such a degree that they would not return to their 

preconstruction state for the life of the project. Temporary vegetation impacts would result in the 

disturbance of vegetation cover types, but implementation of best management practices, project 

design components, regulatory requirements, or an on~sitc vegetation management plan would 

facilitate reestablishment of vegetation cover types similar to preproject conditions after 

construction is completed. 

The following measures have been identified by the Applicant as measures that would be 

implemented during operations to suppress coal dust. These measures were considered part of the 

Proposed Action when evaluating the potential impacts on vegetation. 

The Applicant would implement best management practices and the following project 

components (and related activities) to avoid and minimize potential impacts associated with 

coal dust. 

o Conveyors would be: 

• Monitored for general status and washed down regularly. 

Millenmurn Bulk Termmals Longview 

Final SEPA Environmental Impact Statement 4.6-16 April 2017 
273 


31623.204

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4, Natural Environment 

Ex1sting Condlt!ons, Project Impacts, 

and Proposed Mitigation Measures 

Cleaned using high-pressure water in the collection and containment areas, including 

belts. 

o Transfer points would be: 

Cleaned using high-pressure water as part of regular washdowns ofunderbelt plating, 

and water collection and containment system. 

o Rail car unloaders would: 

Use dry fog and water spray systems to control dust. 

o Stockpiles would be: 

Sprayed via a spray system controlled by local and remote weather stations. 

Managed via a controlled dropper from the stackers to manage height of piles. 

Cleaned along conveyor berms and sealed roadways. 

o Shiploading equipment would be: 

• Discharged below deck of vessel. 

Cleaned and washed by high-pressure water. 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action would result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and docks, and constructing supporting infrastructure (e.g., conveyors and 

transfer towers). 

Permanently Remove Vegetation 

Clearing and grading would permanently alter or remove approximately 212 acres of land cover 

types from the direct impacts study area (Table 4.6-7). Most of the clearing would affect 

disturbed vegetation and weedy areas (Figure 4.6-2). 

The majority of the total impact (71 %) would occur in areas occupied by developed lands, 

typically consisting of areas of existing infrastructure and scattered grasses and weeds in and 

around the developed portions of the project area. Approximately 26.26 acres of upland 

vegetation would be removed, or 12% of the direct impacts study area. Herbaceous upland 

vegetation surrounding Wetlands A, C, and Z make up the majority of this acreage. These 

herbaceous upland areas are generally dominated by reed canarygrass. Approximately 

8.90 acres of upland forest would be removed, with most impacts occurring around Wetland A 

and the areas surrounding the interception ditch and stormwater conveyance. These areas are 

dominated by native trees, primarily black cottonwood, red alder, Oregon ash, and Pacific 

willow trees, with an understory of mixed native and invasive shrubs dominated by red 

elderberry, sweetbriar rose, and Himalayan blackberry. The impacts would occur as a result of 

construction of the rail loop, stockpile pads, and a series of stacking and reclaim conveyors. 

M!llenn1um Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.6-17 April 2017 
274 


31623.205

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural EnVIronment· 

E.xistmg Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Table 4.6-7. Permanent Impacts by Land Cover and Vegetation Cover Type in the Direct 

Impacts Study Area 

Impacts in Direct 

Land Cover Vegetation Cover Impacts Study Area 

Category Type (Acres)" 

Developed land Developed land total 151.14 

Forested 8.90 

Scrub-shrub 2.11 

Upland Herhaceous 10.88 

Managed herbaceous 4.37 

Upland total 26.26 

Wetlands Wetlands total' 24.10 

Open water Open water total 10.78' 

212.28 

a For a detailed discussion of wetland impacts, refer to Section 4.3, Wetlands. 

Percentage of Cover 

Type' 

71 

4 

12 

12 

5 

100 

b These are direct impacts on vegetation in the 212-acre project area, which includes the 190~~cre terminal 

plus additional elements (e.g., access roads, docks, and the rail line). 

This column represents the percent of cover type in the direct impacts study area that would be affected 

by construction. 

fl Approximate open water area within footprint of project area. This area includes area of docks and trestle 

water of the Columbia River. For details on permanent impacts to open water, see Section 

Approximately 0.05 acre of upland forest impact consists of riparian forest. This impact would 

occur as a result of construction of the trestle that would connect the surge bin to Docks 2 and 3, 

and would include removing and trimming black cottonwood and willow trees, and understory 

shruhs as red-osier dogwood and Himalayan blackberry. 

Construction would result in the permanent loss of 24.10 acres of vegetated wetland from 

placement of permanent fill in all of Wetlands A, C, Z, and P2, and a portion of Wetland Y. For a 

detailed discussion of wetland impacts, refer to Section 4.3 Wetlands. 

Although no special-status plant species have been recorded in the project area, potentially 

suitable habitat is present. Should any special-status plant species occur in the project area, they 

could be destroyed as a result of project construction depending on the location of the plant. 

Implementation of the proposed mitigation measure to conduct a special-status plant survey 

would determine presence of special-status plants in the project area and would determine if 

any special-status plants identified could be avoided or impacts minimized. These surveys 

would occur during the appropriate time of year, prior to any project related construction 

activities beginning. 

Millennium Bulk Termmals-Longview 

Final SEPA Environmental Impact Statement 4.6-18 April 2017 

31623.206

Cowhtz County 

Washington State Department of Ecology 

Figure Impacts on Existing Land Cover Classes and Vegetation Cover Types 

Millennium Sulk Terminals-Longview 

Final SEPA Statement 4.6-19 

Chapter4. Natura

Existing Conditions, P

and Proposed Mitig
276 


31623.207

Cow!itz County 

Wash1ngton State Department of Ecology 

Temporarily Disturb Adjacent Vegetation 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Construction and staging activities along the edges of the project area could crush and bury 

adjacent vegetation and compact soil in the direct impacts study area through vehicle use, 

material storage and stockpiling, and ground disturbance. Ground disturbance related to these 

activities could also increase the opportunity for storm water runoff to carry sediments, spilled 

vehicle nuids, or other construction materials into areas outside of the project area, potentially 

affecting the health and vigor of adjacent vegetation. Depending on the extent, duration, and 

content of this runoff, vegetation could be affected through interference with photosynthesis, 

respiration, growth, and/or reproduction. 

Dust from construction activities could also affect vegetation by collecting on leaves and other 

plant surfaces, potentially inhibiting photosynthesis and other plant functions. 

The 35-foot-high preload material piles could provide an area for invasive plant species, 

including noxious weeds, to colonize. Such conditions would provide a seed source that could be 

readily dispersed into adjacent areas by wind and runoff, increasing the potential for invasive 

species and noxious weeds to spread and displace native vegetation. 

Special-status plants adjacent to the project area could be temporarily affected by 

construction. The extent of any such impact cannot be quantified until a special-status plant 

survey is conducted. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on vegetation because 

construction impacts would be limited to the project area, and would not occur later in time or 

farther removed in distance than the direct impacts. 

Operations-Direct Impacts 

Direct impacts on vegetation from operation of the Proposed Action would likely be limited to the 

continued existence and possible colonization by noxious weeds around (and outside) the periphery 

of the project area, impacts from vessel loading and transport along rail tracks, and control of 

vegetation under the conveyor and along the rail tracks and rail loop. 

Promote Colonization by Noxious Weeds 

The disturbed nature of the project area during operations would favor colonization by noxious 

weeds, which are generally adapted to highly disturbed areas, such as the periphery and other 

portions of the project area. Areas along rail tracks, along stacki11g conveyors, and between 

tracks of the rail loop would be most likely to support noxious weed species. Reed canarygrass, 

Himalayan blackberry, Canadian andfor bull thistle, and Scotch broom, which are already 

present on the project area, would likely persist during operations. 

Disturb Vegetation during Rail and Vessel Loading 

Operation of the Proposed Action could disturb vegetation along the railroad tracks entering the 

project area, along the shoreline of the Columbia River, and in the shallow waters of the 

Columbia River near the project area. Such impacts could occur as the result of spills of coal or 

M1llenmum Hulk Termmals Longview 

Fmal SEPA Enwonmental Impact Statement 4.6-20 April 2017 
277 


31623.208

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

E)(ISttng Conditions, Project lrnpacts, 

and Proposed Mitigation Measures 

other materials associated with operation of the rail cars, the conveyor and stockpiling systems, 

the mobile maintenance equipment, and the shiploaders. 

Direct impacts on aquatic vegetation along the shoreline of the Columbia River cannot be 

quantified until an aquatic vegetation survey is conducted. Mitigation is proposed to conduct an 

aquatic vegetation survey (described in Section 4.6.7, Proposed Mitigation Measures) to reduce 

potential impacts on aquatic vegetation prior to initiating in-water work. Impacts on water 

quality associated with the routine movement of coal near water bodies could also affect 

vegetation along or in receiving waters. However, storm water runoff would be collected and 

treated to remove potential contaminants associated with the operations and maintenance 

activities (e.g., coal, diesel fuel, oil, hydraulic fuel, antifreeze, tire, and brake dust, exhaust 

particulates) prior to discharge to the Columbia River. Best management practices and 

mitigation to reduce potential water quality impacts are detailed in Section 4.5, Water Quality. 

Although hazardous material spills or leaks could occur, the potential for these to occur and 

affect the environment would be minimized by appropriate training and the implementation of 

prevention and control measures. Best management practices and mitigation to reduce potential 

impacts from spills and leaks are detailed in Chapter 3, Section 3.6, Hazardous Materials, 

Chapter 5, Sections 5.1, Rail Transportation, and 5.4, Vessel Transportation. 

Alter Vegetation during Maintenance Activities 

Trees and tall shrubs around the trestle and conveyor to Docks 2 and 3 would likely be regularly 

trimmed or removed, slightly reducing organic material delivered to the river, shading for the 

upper beach and shoreline, and native foraging, resting, and perching opportunities for birds. 

The affected 45- to 50-foot-wide area would be small relative to the approximately 5,000 linear 

feet of vegetated shoreline in the project area. 

Routine vegetation maintenance along the perimeter road, rail tracks, and rail loop would 

involve trimming trees and tall shrubs within approximately 25 feet of either side of the 

perimeter road. This maintenance would artificially stunt individual trees and shrubs in these 

areas but would not measurably reduce the functions of native plant communities because it 

would be confined to the outermost edges of such communities. Any vegetation that colonizes 

the disturbed interior of the project area along the rail loop would likely also be removed, 

controlled, or trimmed to eliminate any interference with the movement of the rail cars, 

equipment, or personneL 

Any special-status plants that occur along the periphery of the project, along the rail tracks and 

rail loop, or under the conveyor would be affected by operations as described above. The spatial 

extent of any such impact cannot be quantified until a special status plant survey is conducted. 

Spill Coal during Operations of the Proposed Action 

Direct impacts resulting from a coal spill during coal handling at the coal export terminal would 

likely be minor because the amount of coal that could be spilled would be expected to be small 

due to the contained nature and features of the terminal and safety mechanisms to stop 

operations of coal moving equipment lt is anticipated that a small spill could be cleaned up by 

hand, hand tools, or small mechanized equipment in a short period so as to not stop or delay 

routine terminal operations. Also, impacts would be negligible because of the absence of 

vegetation in the project area and the contained nature and design features of the terminal. 

Millennium Bulk Termmals-longview 

Final SEPA Environmental Impact Statement 4.6·21 April2017 
278 


31623.209

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment: 

Existmg Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Coal spilled into terrestrial environments could affect vegetation. Herbaceous vegetation would 

be more susceptible to damage and smothering from a coal spill compared to more rigid, woody 

vegetation like shrubs and trees, which may be better able to withstand the weight and force of 

a coal spill, depending on the magnitude of the spill. The magnitude of potential impacts would 

depend on the size (volume) and extent (area) of the coal spill. The physical impact of coal 

spilled on vegetation would range from minor plant damage to complete loss of vegetation. 

Some plant species may be more sensitive to coal than other species. Coal dust associated with a 

coal spill could also cover vegetation, resulting in reduced light penetration and photosynthesis, 

which could lead to reduced vegetation density and plant diversity. The magnitude of potential 

coal dust impact would depend on duration of exposure, tolerance of vegetation, and 

aggressiveness of nonnative species. Cleanup of coal spilled during operations could further 

affect vegetation by either removing or further damaging vegetation as a result of ground 

disturbance related to cleanup activities. Any coal remaining on the ground after a cleanup effort 

could leach chemicals from exposure to rain, which could damage or kill vegetation. However, if 

this were to occur, the impact area would generally be highly localized and limited to the extent 

of the spill, and unlikely to disrupt the overall plant community in the project area. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. 

Deposit Coal Dust on Vegetation 

The movement of coal into and around the project area, creation of large stockpiles of coal, and 

use of open conveyors could generate approximately 14.6 tons of coal particles and fugitive coal 

dust per year at maximum throughput. Figure 5.7-4 depicts estimated maximum annual coal 

deposition at varying distances from the project area. Wind borne coal dust can deposit on 

vegetation, soils, and sediments. The potential extent and deposition rate of coal dust particles 

less than 75 microns in diameter was modeled as part of the air quality analysis. Based on this 

modeling, the highest rate of coal dust deposition would be expected in the area adjacent to the 

project area, but smaller particles could also deposit in a zone extending around and downwind 

of the project area. Deposition rates could range from 1.99 grams per square meter per year 

(g/m2 /year) closest to the project area, gradually declining to less than 0.01 g/m' /year 

approximately 2.4 miles from the project area. 

The potential zone of deposition includes the coniferous forest vegetation on the hills adjacent 

to the northern extent of the project area, as well as the riparian vegetation along the shoreline 

of the river. Deposition rates of less than 0.1 g/m' /year are projected to occur over the forested 

communities on Lord Island within the Columbia River just east of the project area, with 

declining concentrations across the island and to the south and west toward Walker Island. 

The impacts of dust on vegetation, including special-status plants, would vary depending on 

dust load, climatic conditions, and the physical characteristics of the vegetation. Impacts could 

be physical, such as blocked stomata that alters gas diffusion into and out of the leaves, causing 

reduced respiration or increased transpiration; altered leaf surface reflectance and light 

absorption potential; and increased leaf temperature due to optical properties of the dust 

(Chaston and Ooley 2006; Ooley 2006; Farmer 1993). The SEPA Vegetation Technical Report 

summarizes studies of the impacts of dust deposition on vegetation. Coal dust deposition is also 

discussed in Chapter 5, Sections 5.6, Air Quality, and 5.7, Coal Dust. 

Millennium Bulk Terminals Longview 

Fmal SEPA Envtronmentallmpact Statement 4.6-22 April2017 
279 


31623.210

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment 

Existmg Cond1t1ons, Project Impacts, 

and Proposed Mitigation Measures 

Although coal transport could release contaminants such as arsenic and polycyclic 

hydrocarbons into the soil, concentrations would vary greatly and impacts on vegetation 

communities in the study area are not known. Given the number and variety of environmental, 

climatic and plant factors affecting the deposition of dust (Daley 2006), information regarding 

foliage density, leaf dimensions and characteristics, as well as particle size distribution, dust 

color, and climatic conditions would likely be needed to determine the level of dust deposition 

that could affect vegetation or plant functions. 

The movement of coal by rail could generate coal particles and fugitive coal dust, which could be 

deposited on vegetation, soil, and sediments. Coal transported by vessel would be in enclosed 

cargo holds and is not likely to result in deposition of coal on vegetation along the vessel route in 

the Columbia River. Coal dust deposition from rail cars is discussed in Chapter 5, Sections 5.6, 

Air Quality, and 5.7, Coal Dust. Potential impacts from coal dust deposition on vegetation are the 

same as described above for the proposed coal export terminal. 

Erode Vegetation Due to Vessel Wakes 

Increased vessel traffic resulting from the coal export terminal and associated wakes could 

contribute to erosion of vegetation along the Columbia River. Operation of the coal export 

terminal at maximum throughput would result in 1,680 vessel transits (i.e., one-way trips either 

to or from the coal export terminal) a year (Chapter 5, Section 5.4, Vessel Transportation). The 

location and extent of these impacts would depend on vessel design, hull shape, vessel weight 

and speed, angle of travel relative to the shoreline, proximity to the shoreline, currents and 

waves, tidal stage, and water depth (Jonason 1993:29-30; MARCOM 2003). The potential for 

shoreline erosion could also be influenced by the slope and physical character of the shoreline 

(i.e., soil erodibility), as well as the amount and type of vegetation that occurs along the 

shoreline. 

Shoreline erosion is both a natural process as well as a human-caused process that removes 

sediment from the shoreline. It is caused by a number of factors including storms, wave action, 

and wind. Erosion of shoreline sediment can remove the substrate in which vegetation grows, 

eventually leading to loss of plants. Although erosion does naturally occur, it can be increased by 

vessel wakes, which can intensify the impacts and/or rate of the erosion process. In riverine 

environments the wave periods of vessels are longer compared to waves generated by wind. 

Riverbank vegetation is naturally adapted to the shorter period of wind waves, but not to the 

longer periods of vessel wakes. Long-period waves are an erosion mechanism to which the 

riverbank vegetation may be susceptible (Macfarlane and Cox 2004 in Gourlay 2011). While 

shoreline erosion along the Columbia River currently occurs due to existing vessel traffic, 

operation of the terminal would increase vessel traffic and probably increase or intensify the 

extent and/or rate of shoreline erosion and subsequent loss of shoreline vegetation. 

The potential for vessel wake impacts on vegetation along the project area shoreline would be 

limited due to the slope of the shoreline and the general lack of aquatic vegetation near the 

docks. Additionally, vessels maneuvering near the docks would move very slowly and likely 

would not generate a wake sufficient to cause shoreline erosion. However, there is potential for 

erosion along the thin strip of shoreline vegetation along Lhe northern end of Lord Island from 

large wakes or wakes oriented perpendicular to the main navigation channel and docks, such as 

those occurring when tugs push vessels into position at docks. There is higher potential for 

vessel wake impacts on vegetation along the shoreline of the lower Columbia River as a result of 

Mlllenn1um Bulk Termmals Longview 

Final SEPA Environmental Impact Statement 4.6-23 Apnl 2017 
280 


31623.211

Cowlitz CDunty 

Washmgton State Department of Ecology 

Chapter 4. Natura! EnV!fonment· 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

the Proposed Action. Vessel operations in the Lower Columbia River are federally regulated, 

including size, speed, and navigation. Additionally, large vessels in the lower Columbia River 

must be operated by pilots licensed by the United States Coast Guard to perform this function. 

The navigation channel and its ongoing maintenance are also managed and regulated at the 

federal level. 

Disturb Vegetation during Rail and Vessel Transport 

Operation of the Proposed Action could indirectly affect vegetation outside of the project area 

along the rail tracks entering the project area, along the shoreline of the Columbia River, and in 

the shallow waters of the Columbia River. Such impacts could occur as the result of spills of coal 

or hazardous materials associated with operation of the trains and vessels transporting coal 

within the study area. Chapter 3, Section 3.6, Hazardous Materials, and Chapter 5, Sections 5.1, 

Rail Transportation, and 5.4, Vessel Transportation, provide further details. Washington State oil 

transfer rules include requirements for trained personnel, procedures, and equipment to 

prevent a spill during a transfer of oil over water, such as diesel for emergency ship generators. 

Spill Coal during Rail Transport 

The magnitude of the potential indirect impact from a coal spill on terrestrial environments 

would be similar to those described previously and would depend on the location of the spill, 

the volume of the spill, and success of efforts to contain and clean up the spill, none of which can 

be predicted. 

The potential impact of a coal spill from a Proposed Action-related train is directly related to the 

probability of a Proposed Action-related train incident occurring. Chapter 5, Section 5.2, Rail 

Safety, estimates the number of Proposed Action-related train incidents that could occur during 

coal transport within Cowlitz County and Washington. The predicted number of incidents of 

loaded trains related to the Proposed Action is approximately one every 2 years in Cowlitz 

County or five per year in Washington. 

Not every incident of a loaded coal train would necessarily result in a rail car derailment or a 

coal spill. A train incident could involve one or multiple rail cars, and could include derailment in 

certain circumstances. The size and speed of the train and the terrain at the location of an 

incident would influence whether the incident resulted in a coal spill that could have impacts on 

vegetation. A broad range of spill sizes from a partial rail car to multiple rail cars could occur as 

a result of a Proposed Action-related train incident. 

Additionally, containment and cleanup efforts for coal spills from a rail incident factor into the 

potential impact on vegetation and the environment. It is expected that coal spills in the 

terrestrial and built environments would be easier to contain and clean up than spills occurring 

in an aquatic environment. Spills occurring on land may have a quicker response time and 

cleanup in some locations due to their visibility and access for cleanup equipment, as compared 

to spills into aquatic environments. Cleanup of spills in the terrestrial environment could affect 

vegetation and require restoration. 

Potential physical and chemical effects of a coal release in terrestrial environments would be the 

same or similar to those described above under direct impacts. 

Millennium Bulk Terminals-longview 

Fmal SEPA Enwonmcntallmpact Statement 4.6-24 Apnl2017 
281 


31623.212

Cowlitz County 

Chapter 4. Natural Environment 

Existmg Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.6.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not construct the Proposed Action. Current 

operations would continue and the existing bulk product terminal site would be expanded. 

However, any expansion would be limited to activities that would not require a permit from the U.S. 

Army Corps of Engineers (Corps) or a shoreline permit from Cowlitz County. Therefore, no 

construction impacts on aquatic habitats or plant species would be expected to occur as a result of 

an expansion of the existing bulk production terminal under the No-Action Alternative. 

Continued industrial usc of the project area over the 20-year analysis period (2018 to 2038) would 

likely result in the redevelopment of the largely developed upland areas of the project area. New 

construction, demolition, and activities related to this development could affect the disturbed 

vegetation that is present throughout the developed portions of the site. Cleanup activities, relative 

to past industrial uses, would also continue, potentially affecting vegetation in disturbed areas. 

4.6.6 Required Permits 

No permits related to vegetation would be required for the Proposed Action. 

4.6.7 Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce impacts related to 

vegetation from construction and operation of the Proposed Action. These mitigation measures 

would be implemented in addition to project design measures, best management practices, and 

compliance with environmental permits, plans, and authorizations that are assumed as part of the 

Proposed Action. 

4.6.7.1 Applicant Mitigation 

The Applicant would implement the following measures to mitigate impacts on vegetation. 

MM VEG-1. Conduct Rare Plant Surveys Prior to Construction. 

To ensure that threatened, endangered, or rare plants are not affected, the Applicant will 

conduct rare plant surveys of the project area, including the ditches and stormwater conveyance 

features. Surveys for rare plants will be performed for those rare plants that may occur in 

Cowlitz County, according to the Washington Natural Heritage Program. Surveys will be 

performed prior to any project related ground disturbance and during the appropriate survey 

windows for each species. If such plant species are found, the Applicant will notify and consult 

with the Washington State Department of Natural Resources, and the U.S. Fish and Wildlife 

Service (if federally protected species are found). The Applicant and the agencies will work 

together to determine the appropriate conservation and mitigation measures should potential 

impacts on any rare plants be possible as a result of ground-disturbing activities. 

MM VEG-2. Conduct Aquatic Vegetation Surveys Prior to Construction. 

To ensure that aquatic plants along the shoreline of the Columbia River are not affected, the 

Applicant will conduct an aquatic plant survey along the shoreline of the project area prior to 

commencing in-water work associated with construction of Docks 2 and 3 and construction 

related dredging, including all areas within the shallow water zone adjacent to the proposed 

Millennium Bulk Termmals longview 

Fmal SEPA Environmental impact Statement 4.6-25 April 2017 
282 


31623.213

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

docks. If areas of aquatic vegetation are found, the Applicant will notify the Washington State 

Department of Natural Resources, Cowlitz County, and the U.S. Fish and Wildlife Service, and 

work with these agencies to develop appropriate conservation or mitigation measures before 

beginning any in-water work. 

MM VEG-3. Replant Areas Temporarily Disturbed during Construction. 

To ensure that disturbed native vegetation is restored, after construction the Applicant will 

replant vegetated areas temporarily disturbed during construction with native vegetation 

suitable for site conditions post-construction. The Applicant will monitor replanted vegetation 

annually for S years and will ensure the survival of 80% of all replanted vegetation. The 

Applicant will submit annual monitoring reports to Cowlitz County. 

MM VEG-4. Develop and Implement a Revegetation Plan. 

To mitigate permanent removal of vegetation from project construction, the Applicant will 

develop and implement a revegetation plan for the project area. This plan will be approved by 

Cowlitz County prior to implementation and will be consistent with the Cowlitz County Critical 

Areas Ordinance 19.15.170. 

MM VEG-5. Control Noxious Weeds. 

To limit further invasion and colonization of noxious weeds on disturbed land, the Applicant will 

monitor for noxious weeds during construction and operations and remove noxious weeds that 

invade new areas of the site. The Applicant will coordinate with the Cowlitz County Noxious 

Weed Control Board if Class A and B noxious weeds are detected. 

MM CDUST-3. Reduce Coal Dust Emissions from Rail Cars. 

To address coal dust emissions, the Applicant will not receive coal trains unless surfactant has 

been applied at the BNSF Railway Company (BNSF] surfactant facility in Pasco, Washington for 

BNSF trains traveling through Pasco. While other measures to control emissions are allowed by 

BNSF, those measures were not analyzed in this EIS and would require additional 

environmental review. For trains that will not have surfactant applied at the BNSF surfactant 

facility in Pasco, before beginning operations, the Applicant will work with rail companies to 

implement advanced technology for application of surfactants along the rail routes for Proposed 

Action-related trains. 

MM WQ-2. Develop and Implement a Coal Spill Containment and Cleanup Plan. 

To limit the exposure of spilled coal to the terrestrial, aquatic, and built environments during 

coal handling, the Applicant will develop a containment and cleanup plan. The plan will be 

reviewed by Cowlitz County and Ecology and implemented prior to beginning export terminal 

operations. In the event of a coal spill in the aquatic environment hy the Applicant during export 

terminal operations, action will be taken based on the specific coal spill, and the Applicant will 

develop a cleanup and monitoring plan consistent with the approved containment and cleanup 

plan. This plan will include water quality and sediment monitoring to determine the potential 

impact of the coal spill on the aquatic habitat and aquatic species. The Applicant will develop the 

cleanup and monitoring plan in coordination with Cowlitz County, Ecology, and the Corps. The 

cleanup and monitoring will be similar in scope to the monitoring completed for the Aquatic 

M1!fenn1urn Bulk Terminals-longview 

Final SF.PA Environmental Impact Statement 4.6-26 Apri\2017 
283 


31623.214

Cowlitz County 

Washmgtoll State DeDartment of Ecology 

Chapter 4. Natural Environment: 

Ex!Stmg Condttions, Project Impacts, 

and Proposed Mitigation Measures 

Impact Assessment (Borealis 2015) associated with a coal spill in British Columbia, Canada in 

2014. 

4.6.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the mitigation measures and design features described 

above would reduce impacts on vegetation. There would be no unavoidable and significant adverse 

environmental impacts on vegetation. 

Mlllenn1um Bulk Terminals-Longview 

Fmat SEPA Environmental Impact Statement 4.6·27 Apnl2017 
284 


31623.215

Cowhtz. County 

Washmgton Stat€ Department of Ecology 

4.7 Fish 

Chapter 4 Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Fish and fish habitat are important resources of the Columbia River. They include fish listed as 

endangered or species of concern under state or federal regulations. Resident or anadromous 1 fish 

species support important tribal, commercial, and recreational fisheries and are integral to healthy 

freshwater and marine ecosystems. 

This section describes fish in the study area. It then describes impacts on fish that could result from 

construction and operation of the Proposed Action and under the No-Action Alternative. This 

section also presents the measures identified to mitigate impacts resulting from the Proposed 

Action. 

4.7.1 Regulatory Setting 

Laws and regulations relevant to fish are summarized in Table 4.7-1. 

Table 4. 7-1. Regulations, Statutes, and Guidelines for Fish 

Regulation, Statute, Guideline 

Federal 

Endangered Species Act 

(16 USC 1531 et seq.) 

Magnuson-Stevens Fishery Conservation 

and Management Act, as amended by the 

Sustainable Fisheries Act of 1996 

(Public Law 104-267) 

State 

Washington State Growth Management 

Act (36.70A RCW) 

Washington State Shoreline Management 

Act (90.58 RCW) 

Description 

Requires that applicants seeking a federal action such as 

issuing a permit under a federal regulation (e.g., NEPA, 

Clean Water Act, Clean Air Act] undergo consultation with 

USFWS and/or NMFS. This will ensure the federal action 

is not likely to jeopardize the continued existence of any 

listed threatened or endangered animal species or result 

in the destruction or adverse modification of designated 

critical habitat. NMFS is responsible for managing, 

conserving, and protecting ESA-Iisted marine species. 

USFWS is responsible for terrestrial and freshwater 

species. Both NMFS and USFWS are responsible for 

designating critical habitat for ESA-Iisted species. 

Requires fishery management councils to include 

descriptions of essential fish habitat and potential threats 

to essential fish habitat in all federal fishery management 

plans. Also requires federal agencies to consult with 

NMFS on activities that may adversely affect essential fish 

habitat. 

Defines a variety of critical areas, which are designated 

and regulated at the local level under city and county 

critical areas ordinances. These critical areas may include 

shorelines or portions of fish habitat. 

Requires cities and counties (through Shoreline Master 

Programs] to protect shoreline natural resources. 

1 Anadromous describes a life history of migration between fresh water and salt water. Reproduction and egg 

deposition occur in fresh water while rearing to the adult stage occurs in the ocean. 

Millennium Gulk Term1nals--Longv1ew 

Final SEPA Environmental Impact Statement 4.7-1 April2017 
285 


31623.216

Cowlitz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Washington State Hydraulic Code 

(WAC 2 20-660) 

Clean Water Act Section 401 Water 

Quality Certification 

Local 

Cowlitz County Critical Areas Ordinance 

(CCC 19.15) 

Cowlitz County Shoreline Master Program 

(CCC 19.20) 

Notes: 

Description 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

WDFW issues a hydraulic project approval for certain 

construction projects or activities in or near state waters. 

The hydraulic code was specifically designed to protect 

fish life. 

Ecology issues Section 401 Water Quality Certification for 

in·Watcr construction activities to ensure compliance 

with state water quality standards and other aquatic 

resources protection requirements under Ecology's 

as outlined in the federal Clean Water Act. 

Regulates activities within and adjacent to critical areas. 

Regulates development within shoreline jurisdiction, 

including the shorelines of the Columbia River, a 

Shoreline of Statewide Significance. 

USC= United St<ltes Code; NEPA =National Environmental Policy Act; USFWS =U.S. Fish and Wildlife Service; 

NMFS =National Marine Fisheries Service; ESA Endangered Species Act; RCW Revised Code of Washington; 

WAC= Washington Administrative Code; WDFW =Washington Department ofFish and Wildlife; CCC= Cowlitz 

County Code; E.cology =Washington State Department of Ecology 

4.7.2 Study Area 

The study area for direct impacts on fish is the main channel of the Columbia River 3.92 miles 

upstream and downstream of the project area, measured from the two proposed docks 

(Figure 4. 7-1 ). This study area accounts for the area where noise from construction or operation of 

the Proposed Action could affect fish. 

The study area for indirect impacts on fish extends downstream from the project area to the mouth 

of the Columbia River (Figure 4.7-2) and includes areas with shallow-sloping beaches where fish 

could be stranded by wakes from vessels related to the Proposed Action. The study area for indirect 

impacts related to potential coal spills from Proposed Action-related trains includes the rail routes 

in Cowlitz County and Washington State that would be used to transport coal to the coal export 

terminal (refer to Chapter 5, Section 5.1, Rail Transportation, for rail routes in Cowlitz County and 

Washington State). 

4.7.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts on fish associated with the construction and operation of the Proposed Action and NoAction Alternative. 

Mlllenn1urn Bulk Terminals Longvtew 

Frnal SEPA Environmental Impact Statement 4.7-2 Aprt! 2017 
286 


31623.217
287 


31623.218

.. 

1:! 

< 

.., > 

.::; " 

tl 

.. 1! . ~ 

~iii 

~ "-

.§ 

c " 

] tl 

f ~ 0 1:! 

.!1= '6 E .5 .~ E E • • E l ~ ~ g 

~ ·~ 

E~ 

~ ,..; 

~ ~ 

~~ ,.!. 

~ ~ .. ~~ ~ i.i.: 

~:E . ~ 

8 ~ 
288 


31623.219

Cowlitz County 

Washmgton State Department of Ecology 

4.7.3.1 Information Sources 

Chapter 4. Natural Enwonment 

Existing Conditions, Project lmpacts, 

and Proposed Mitigation Measures 

The following sources of information were used to define the existing conditions relevant to fish and 

identify the potential impacts of the Proposed Action and No-Action Alternative on fish in the study 

areas. These sources focus on t1sh, fish habitat, and aquatic resources in the study areas and, 

specifically, the aquatic and shoreline habitat adjacent to the project area. 

One site visit conducted by lCF fish biologists on January 29,2014. 

Reports prepared by Grette Associates for the Applicant as part of the permit application 

materials. (Grette Associates 2014a, 2014b, 2014c, 2014d). 

National Oceanic and Atmospheric Administration (NOAA) Fisheries West Coast Region species 

list and listing packages (2014a, 2014b). 

U.S. Fish and Wildlife Service (USFWS) (2014) Information, Planning, and Conservation system 

online database. 

Washington Department of Fish and Wildlife (WDFW) Priority Habitats and Species (PHS) 

geographic information system (GIS) data (2015a) and SalmonScape data (2015b). 

Washington Department of Natural Resources, Natural Heritage Program (2014). 

Washington State Department of Ecology (Ecology) 303(d)/305(b) Integrated Report Viewer 

(2016). 

Fish Passage and Timing Data Columbia River Data Access in Real Time, Columbia Basin 

Research, University of Washington Quvenile and adult fish passage) (Columbia River Research 

2014). 

A detailed list of references is provided in the SEPA Fish Technical Report (ICF 2017a). 

4.7.3.2 Impact Analysis 

Potential fish and fish habitat that could be affected by construction and operation of the Proposed 

Action were determined as follows. For more information on these methods, see the SEPA Fish 

Technical Report. 

Identifying Resources in the Study Area 

The following species and habitat characteristics were identified and quantified, where possible. 

• Documented species occurrences. 

• Species likely to occur in the study area. 

Suitable habitat conditions. 

Impacts on fish species are qualitatively described because fish are generally mobile and their 

presence and abundance in the study area cannot be quantitatively predicted at a specific location or 

time. Where appropriate, species sensitivity to construction or operation impacts is discussed. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.7-5 April2017 
289 


31623.220

Chapter 4. Natural Environment: 

CowlitZ County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

Assessing Noise Impacts 

Federal agencies have established interim criteria to protect fish from underwater noise generated 

by pile driving (Fisheries Hydroacoustic Working Group 2008; Carlson et aL 2007). The criteria 

indicate sound pressure levels of 150 decibels (dB)RMS could result in behavioral changes, while 

sound pressure levels of 206 dBrEAK could result in injury to fish. Specific dB criteria for Endangered 

Species Act (ESA)-Iisted fish are provided in Table 4.7-2. NMFS assumes that a 12-hour recovery 

period with no exposure lO sound is necessary to return to appropriate cumulative sound levels 

(Stadler and Woodbury 2009). 

Table 4.7-2. Underwater Sound-level Thresholds for Endangered Species Act-listed Fish 

Species Effect Type Threshold 

All Listed Fish·• Injury, cumulative sound (fish d grams]: onset ofTTS (auditory 

response], with onset of auditory tissue damage and nonauditory 

tissue damage with increasing cumulative sound 

187dBSELcum 

Injury, cumulative sound (fish <2 grams): similar to above, onset 

of nonauditory tissue damage occurs at lower sound levels with 

smaller fish 

183dBSELcum 

Injury, single strike: onset ofTTS and auditory tissue damage from 206dBPEAK 

single strike 

Behavioral lSOdBRMS 

Injury thresholds are based on interim criteria that were developed for salmonids based on data specific to 

hearing generalists with swim bladders (Carlson et aL 2007), NMFS also applied these thresholds to other 

listed fish with swim bladders (e.g., green sturgeon) and sometimes conservatively to fish without swim 

bladders (e.g., eu!achon). Injury descriptions are based on information summarized in Carlson et al. (2007). 

Source: Grette Associates 2014a. 

TTS =temporary threshold shift; dB:::: decibel; SEL =sound exposure level; cum= cumulative; RMS =root mean 

square. 

The criteria for sound pressure levels and underwater noise thresholds described above were 

applied to proposed pile-driving activities for the Proposed Action. Because the project area is 

similar to the Columbia River Crossing (the site of a proposed interstate crossing of the Columbia 

River, between Portland, Oregon and Vancouver, Washington), underwater noise characteristics 

from pile-driving at that site were used to calculate per-pile levels of underwater noise for the 

36-inch diameter pile used for the Proposed Action (Grettc Associates 2014a). 

A complete description of noise impact models, calculations, and assessments is provided in the 

SEPA Fish Technical Report. Further, project-related vessels could generate underwater noise levels 

that could cause disturbance, as measured by the applicable noise thresholds for fish. Vessel noise 

levels were obtained from available literature and are described in the SEPA Fish Technical Report. 

4.7.4 Existing Conditions 

This section describes the existing environmental conditions in the direct and indirect study areas 

related to fish that could be affected by the construction and operation of the Proposed Action and 

the No-Action Alternative. Key terms used in this section are defined in Table 4.7-3. 

Millennium Bulk Terminals-Longview 

Fmal SEPA Environmental Impact Statement 4.7-6 April 2017 
290 


31623.221

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment· 

Existmg Cond1t1ons, Project Impacts, 

and Proposed Mitigation Measures 

Table 4.7-3. Definitions of Key Terms 

Term 

Active channel margin 

Columbia River Datum 

Decibel 

Deepwater zone 

Distinct population 

segment 

Essential fish habitat 

Evolutionarily significant 

unit 

Peak 

Primary constituent 

element 

Priority habitat and species 

Root mean square 

Shallow water zone 

Sound exposure level 

Temporary threshold shift 

Mt!lennium Bulk Termmals-longview 

Final SEPA Environmental Impact Statement 

Acronym Definition 

ACM The shoreline and nearshore edge habitat, extending from 

the OHWM (+11.1 feet] to 0 feet (Columbia River Datum) 

CRD The adopted fixed low water reference plane for the lower 

Columbia River. 

dB A logarithmic unit used to express the ratio of two values of 

a physical quantity, often power or intensity. 

DWZ The area extending waterward from the edge of the SWZ, 

approximately 450 feet ranging in depth from -20 feet CRD 

to -45 feet CRD. Water depths are based on an OIIWM of 

+11.1 feet, CRD. 

DPS The smallest division of a taxonomic species permitted to 

be protected under the ESA. 

EFH Per the 1996 amendments to the Magnuson-Stevens 

Fishery Conservation and Management Act, EFH includes 

those waters and substrate necessary to fish for spawning, 

breeding, feeding, or growth to maturity. 

ESU A population of organisms that is considered distinct for 

purposes of conservation. 

PEAK The instantaneous maximum overpressure or 

underpressure observed during each pulse during pile 

driving. 

PCE A physical or biological feature essential to the 

conservation of a species for which its designated or 

proposed critical habitat is based on, such as space for 

individual and population growth, and for normal behavior; 

food, water, air, light, minerals, or other nutritional or 

physiological requirements; cover or shelter; sites for 

breeding, reproduction, rearing of offspring, germination, 

or seed dispersal; and habitats that are protected from 

disturbance or arc representative of the species' historic 

geographic and ecological distribution. 

PHS Program fulfilled by WDFW to provide important fish, 

wildlife and habitat information to local governments, state 

and federal agencies, private landowners and consultants, 

and tribal biologists for land use planning purposes. 

RMS The square root sound of the energy divided by the impulse 

duration. Essentially, the average of the PEAK energy 

measured over time. 

SWZ The fully inundated near-shore zone extending from the 

edge of the ACM at 0 feet CRD out to -20 feet CRD. 

SEL A metric for acoustic events, often used as an indication of 

the energy dose. 

TTS Temporary shift in auditory threshold, such as temporary 

hearing loss. 

4.7-7 April 2017 
291 


31623.222

Cowl1tz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment 

Existmg Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The lower Columbia River (Bonneville Dam to the mouth of the Columbia River), which 

encompasses the study areas, has been affected by extensive modifications for flood control, 

industrial development, and deep draft vessel traffic. The mainstem Columbia River is deeper than it 

was historically because of the deepening and periodic maintenance dredging of the navigation 

channel and the berths in and adjacent to the existing and proposed docks. The hydrologic regime 

and water temperature have been altered by the operation of dams throughout the Columbia River 

basin. River flows reverse direction during periods when river flows are low and incoming tides are 

large. Although the flow reverses in response to tidal fluctuation, saltwater does not intrude as far 

upstream as the study area and the water remains fresh through the tidal cycle. The study area can 

be considered a high-energy environment, characterized by strong currents, active bedload 

transport, and variable patterns of sediment of deposition and erosion (Grette Associates 20 14b ). 

Floodplain habitats have been disconnected from the riverine environment and in some cases 

eliminated. The shoreline and riparian environment has been substantially altered by extensive 

shoreline annoring and protection, construction of overwater structures, and development in 

adjacent upland and riparian zones. These modifications have eliminated and substantially altered 

habitat conditions and degraded habitat-forming processes, resulting in corresponding changes to 

the biological communities as soda ted with these habitats. 

The SE"PA Fish Technical Report provides information on all the habitat restoration projects that are 

known to have occurred in the lower Columbia River subbasin (i.e., watershed below Bonneville 

Dam). This information is from the Lower Columbia River Estuary Partnership database. The 

Columbia River estuary extends upstream from the mouth of the Columbia River to the Bonneville 

Dam (Simenstad et aL 2011 ). It has been considerably degraded from past use due to diking and 

filling and from water withdrawal for agricultural, municipal, navigation, and industrial purposes. 

The estuary is also influenced by a number of physical structures (e.g., jetties, piles, pile dikes, 

bulkheads, revetments, and docks) that contribute to its overall degradation. Habitat-forming 

processes in the estuary have also been altered by loss of upriver sediment input (now constrained 

behind upriver dams), changes in flow patterns that move sediments and modify landforms, and 

channel deepening and dredging. 

4.7.4.1 Aquatic Habitat Types 

The aquatic habitat in the study area is discussed in terms consistent with habitat equivalency 

analysis.' whicb describes habitat quality in the context of habitat availability and suitability as a 

function of water depth and physical attributes. The aquatic portion of the study area adjacent to the 

project area is composed of three broad habitat types (Grette Associates 2014b ): the active channel 

margin (ACM), the shallow water zone (SWZJ, and the deepwater zone (DWZ). The riparian zone is 

also considered in terms of its interactions with aquatic habitats, as the riparian zone is the 

transition from aquatic to upland/terrestrial habitat. A plan view showing the extent of each habitat 

type is provided in Figure 4. 7-3. 

2 Habitat equivalency analysis is a tool that can be used to estimate habitat gains and losses across a range of 

habitat types 

Mil!enn1um Bulk Termln<:~ls-Longvlew 

Final SEPA Environmental Impact Statement 4.7-8 Apri!2017 

31623.223

Cowlitz County 

Washmgton State Department of Ecology 

Figure 4.7·3. Aquatic Habitat Types Potentially Affected by the Proposed Action 

!ji!III!!I!!:HHHHIHIII!!HIIIIIHIIIIIIHIIIIIIIUIIIIHIIIII!IIIIHHIIIII 

Millen mum Bulk Termmals-Longview Final SEPA Impact Statement 4.7-9 

Chapter 4. Natur

Ex1stmgCond1tions, 

andProposedM1t1g
293 


31623.224

Cowl!tz County 

Washington State Department of Ecology 

Riparian Zone 

Chapter 4. Natural Environment 

Existmg Conditions, Project Impacts, 

and Proposed Mitigat1on Measures 

The riparian zone includes lands extending approximately 200 feet landward from ordinary high 

water mark (OHWM). Shoreline armoring and Consolidated Diking Improvement District (CDID) #1 

levees have contributed to a low-complexity and artificially steepened upper shoreline with no 

floodplain connectivity downstream of the proposed new docks. Landward of the shoreline, most of 

the riparian area has been heavily modified such that there is little remaining habitat function 

(Grette Associates 2014b). Relative to shoreline areas with intact riparian habitat, the habitat 

equivalency analysis would rank shoreline habitat at a lower value, especially when compared to 

similar areas with intact riparian habitat (e.g., Lord Island, immediately across the river) (Grette 

Associates 2014b). Lord Island also provides habitat for Columbia white-tailed deer. Refer to Section 

4.8, Wildlife, for further information on Columbia white-tailed deer. 

Active Channel Margin 

The ACM is defined as the shoreline and nearshore edge habitat, extending from the OHWM line 

( + 11.1 feet CRD) to CRD 0 feet. The ACM near the proposed docks covers approximately 25 acres 

and extends from 25 to 350 feet offshore (Figure 4.7-2). Water levels in the ACM fluctuate 

continuously. Portions of the ACM are periodically de watered by tidal influence and river flow 

conditions, with the extent and duration of exposure dependent on site-specific topography. Habitat 

functions in the ACM are strongly influenced by the condition of the shoreline and adjacent riparian 

zone. The shoreline in this area is highly modified by levees and rip rap annoring with scattered 

large woody debris. 

Shallow Water Zone 

The SWZ includes the fully inundated near-shore zone extending waterward from the edge of the 

ACM at 0 feet CRD out to -20 feet CRD. The SWZ covers approximately 34 acres near the proposed 

docks and extends from approximately 25 to 500 feet offshore. Bottom structure is primarily (90%) 

flat or shallow sloping substrate, with some moderate slopes out to depths of about -25 feet CRD, 

where the slope becomes markedly steeper. The substrate consists primarily of silty river sand with 

little organic matter (Grette Associates 2014b ). 

Deepwater Zone 

The DWZ encompasses approximately 117 acres near the proposed docks, extending waterward 

from the edge of the SWZ beyond -20 feet CRD. At approximately 450 feet from the shore, it is -20 

feet deep CRD; at 1,200 feet from shore, it reaches -45 feet deep CRD. The DWZ is a dynamic 

environment, characterized by relatively high flows (high water velocity) and sediment transport. 

Sediments are composed of fine grain sands with little to no gravel or cobble for structure (Grette 

Associates 2014b). 

4.7.4.2 Focus Fish Species 

Fish species of special interest include federally and state-listed threatened and endangered fish and 

their designated critical habitat, as well as species of commercial, recreational, or cultural 

importance. Table 4.7A outlines the focus fish species, the listing status of each species (i.e., state 

Millennium Bulk Terminals-Longvtew 

Final SEPA Environmental Impact Statement 4.7-10 April 2017 
294 


31623.225

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Ex1sting Conditions, ProJect Impacts, 

and Proposed Mitigation Measures 

and federal), habitat types these species typically occupy, and their seasonal occurrence in the study 

area. Other common native and introduced fish species also occur in the study area. 

Salmon and Trout 

Eight threatened or endangered salmon evolutionarily significant units (ESUs ), five threatened 

steel head distinct population segments (DPSs), one threatened bull trout DPS, and their designated 

critical habitats occur in the study area (Table 4.7-4) (Bottom et al. 2008; National Marine Fisheries 

Service 2011). In addition, essential fish habitat (EFH) has heen designated for Chinook and coho 

salmon in the lower Columbia River. The Columbia River estuary is used primarily as migratory and 

rearing habitat by salmon, steelhead, and bull trout (salmonid], and no salmonid spawning takes 

place in the study area. Adult anadromous salmonids travel through the estuary and lower river 

relatively quickly during their migration to upstream spawning grounds, remaining primarily in 

offshore deepwater habitats. In contrast, juvenile salmonids are present year round and use a wider 

variety of habitats and exhibit more variable downstream migration speed, taking advantage of 

shallow water and ACM for foraging and seeking cover. 

General salmon reproductive strategies can be divided into two groups: stream-rearing and oceanrearing. Stream-rearing fish tend to spend extended periods, usually more than a year, rearing in 

fresh water before immigrating to the ocean. Examples of stream-type fish are steelhead, coho, and 

spring-run Chinook salmon. ln contrast, ocean-type juvenile salmonids tend to return to the ocean in 

the same year they were spawned. Examples of ocean-type fish are chum salmon, and fall-run 

Chinook salmon. These strategies affect how each population uses the estuary and how it may be 

affected by the Proposed Action. 

Designated critical habitat for federally protected salmonids within the study area consists of two 

primary elements: migration corridors and estuarine areas. Additionally, the Columbia River is also 

EFH, as defined by the Magnuson-Stevens Fishery and Management Conservation Act for Chinook 

salmon and coho salmon. EFH for Pacific salmon is defined as those waters and substrate necessary 

for salmon production needed to support a long-term sustainable salmon fishery and salmon 

contributions to a healthy ecosystem. 

A fully functioning ACM provides natural cover (large woody debris, undercut banks, overhanging 

vegetation), shoreline complexity, shade, submerged and overhanging large woody debris, logjams, 

and aquatic vegetation. All of these elements are identified in the primary constituent clements 

(PCEs) of critical habitat for ESA-Iisted salmon and steelhead, as well as bull trout (Grette Associates 

2014b). PCEs are defined as those physical and biological features that a species needs to survive 

and reproduce. The ACM provides important habitat for juvenile salmon, with different species 

using different habitat types at different life stages. Table 4. 7-4 identifies the seasons when salmon 

and steelhead species could be present in the ACM portion of the study area. 

The SWZ is used primarily as a migratory corridor by adult salmon and steelhead and as foraging 

habitat by larger juveniles that are capable swimmers in open water. juvenile Chinook salmon, and 

sockeye salmon and steel head smolts are typically found in deeper open water in the SWZ, where 

they forage on phytoplankton, invertebrates, and small fish [Bottom eta!. 2008; Carteret a!. 2009). 

Millennium Bulk Termmals-Longv1ew 

F-in<JI SEPA Env1ronment<JIImpact Statement 4.7-11 April 2017 

31623.226

Co wilt£ County 

Washmgton State Department of Ecology and Proposed Mltl

Table 4.7-4. Status of Focus Species and Seasonal Presences in the Study Area a 

Chinook Salmon 

Snake River fall-run ESU T Adults X' 

Subyr ... d 

Lower Columbia River ESU T Adults X X 

Yrlng 

Subyr 

Upper Willamette River ESU T Yrlng 

Subyr 

Coho Salmon 

----

Lower Columbia River ESU T Adults X X X 

T Adults X X 

Subyr 

Steelhead Trout 

Snake River DPS T Adults X 

Upper Columbia River DPS T Adults X 

Middle Columbia River DPS T Adults X 

Cutthroat Trout 

Columbia River DPS NL Adults/Juveniles X X X X X X 

----··--

MillerH11llm Bulk Termmals longv1ew 4.7-12 

F!n<JISEPAEnvlronmental!mpactStatement 

31623.227

Cowl1tzCounty 

WashingtonStateDepartmentofEcology 

Chapter<l.Natu

ExistmgCond!tlons

andProposedMitlg

Species, ESU/DPS Statusa Life Stage September October November De

White Sturgeon 

Lower Columbia River Eulachon 

DPS 

Pacific & River Lamprey 

Multiple populations 

Notes: 

Subadults 

Adults 

Subadu!ts 

T Adults 

NL Adults 

Ammocoetes 

X 

X X 

X 

X X X X 

X X X X 

X 

X X X X 

T denotes federally threatened {no Endangered in this table), ''NL denotes Not Listed, SOC denotes Species of Concern. 

X 

X X 

b A, S, and D represent the HEA habitat categories of ACM, SWZ, and DWZ; see Grctte (20 14h) Section 3.2.3.1 for additional information 

X denotes expected or potential presence; sec Grette Associates (2014b ), Section 3.3 for additional information. 

" " denotes expected presence but low relative abundance; sec Grctte Associates (2014b ), Section 3.3 for addJtional informatwn. 

X X X 

The Middle Columbia River DPS includes a very small proportion of winter-run fish (Klickitat River, Fifteen-Mile Creek); because passage data at Bonn

indic<tte that the vast majority ofsleelhcad have passed the dam by early October, it is assumed lhat this includes winter stee\hcad spawning above it. 

ESU =Evolutionary Significant Unit; DPS =Distinct Population Segment; Subyr = subycarling; Yrlng =yearling. 

M1llenn1um Bulk Termma!s--Longv1ew 

Fmal SEPA £nv1ronmentallmpact Statement 4.7-13 
297 


31623.228

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Ex!sting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Juvenile Chinook salmon are most commonly present from March through July but juveniles of 

certain runs may be found in the SWZ during any month of the year. Juvenile coho salmon and 

steelhead are less likely to be found in the shallower areas but are abundant in deepwater offshore 

habitats during their outmigration period (Roegner and Sobocinski 2008), indicating that they likely 

occur in the deeper areas of the SWZ. 

The DWZ provides a migratory corridor for adult salmon and steelhead and foraging and migratory 

habitat for larger juvenile Chinook salmon, coho salmon, and sockeye salmon and steelhead smolts 

pursuing phytoplankton, invertebrates, and small fish (Bottom eta!. 2008; Carteret a!. 2009; 

Roegner and Sobocinski 2008). Generally, juvenile salmonids do not reside in specific habitats in the 

lower Columbia River for extended periods, remaining in a given area for just a day or two before 

moving downstream to new suitable habitats (Bottom et al. 2008; johnson et al. 2003). Juvenile and 

adult salmon and steelhead are likely to be found in the DWZ during their respective migration and 

rearing periods (Table 4.7-4) as outmigrating salmon ids (particularly stream type) tend to usc 

deepwater (Carteret a!. 2009). 

Bull Trout {Char) 

Columbia River bull trout are listed as threatened, and there is one extant population in the Lewis 

River subbasin, which drains to the lower Columbia River below Bonneville Dam. Bull trout migrate 

to the main stem Columbia River to rear, overwinter, or migrate to and from spawning areas. This 

indicates the possibility that more distant populations (e.g., Klickitat, Deschutes, Willamette) may 

migrate to and forage in the project vicinity or could in the future, but the extent to which different 

bull trout populations use the lower Columbia River is uncertain (Carteret a!. 2009). The Lower 

Columbia Recovery Team considers the mainstem Columbia River to contain core habitat that may 

be important for full recovery of Columbia River bull trout (U.S. Fish and Wildlife Service 2002). Bull 

trout have occasionally been observed in the lower Columbia River as foraging or migrating adults 

and subadults, most likely originating from accessible lower Columbia River tributaries with extant 

bull trout populations. Subadults may occur in the study area throughout the year in shallow rearing 

habitats of the ACM and SWZ while adults arc more likely to occur in the deeper areas of the SWZ 

and the DWZ (U.S. Army Corps of Engineers 2004). 

Eulachon 

Eulachon are small anadromous fish in the smelt family (Osmeridae), sometimes known as Columbia 

River smelt (among other names), that spawn in coastal rivers and migrate to the ocean to rear to 

adulthood. The lower Columbia River up to Bonneville Dam and the lower reaches of those tributary 

streams that provide potential spawning habitats (i.e., Grays, Elochoman, Cowlitz, Kalama, Lewis 

and Sandy Rivers) have been designated as critical habitat (76 Federal Register [FR] 65324). 

Currently, the lower mainstem Columbia River and the Cowlitz River support the majority of 

eulachon production in the system (Gustafson eta!. 2010). However, in years of relative abundance, 

spawning occurs broadly in the tidally influenced portions of the Columbia River and its tributaries 

(Grette Associates 2014b). 

WDFW and ODFW conducted plankton tows to sample for eulachon eggs and larvae between the 

Port of Longview above Barlow Point and the channel below the Cowlitz River mouth including four 

sample sites offshore near the project area (Mallette 2014). Peak larval abundance occurred in midMarch during two of the three survey years and in late April/early May in the third (Mallette 2014). 

Mi!lenn1um Bulk Termmals-Longv1ew April 2017 

Final SEPA Environmental Jmpact Statement 
298 


31623.229

Cowlitz County 

Washrngton State Department of Ecology 

Chapter 4. Natural Erwironmerlt 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

As part of a related one-time sampling effort, eulachon eggs/larvae were documented in plankton 

tows at six sample sites (inshore and offshore) near the project area between river miles 62.8 and 

64.0 in February 2012 (Mallette 2014: Report B). Eggs could be present from December through 

April; however, peak of spawning season is usually in February or March. Larval eulachon, 

particularly from spawning aggregations in the Cowlitz River, likely pass through the study area as 

they are transported downriver. Further, it is likely that at least limited spawning occurs in the 

mainstem Columbia River, as documented on the Oregon side of the Columbia River by Mallette 

(2014). Mallette (2014) found the greatest numbers of eulachon larvae were found in samples 

collected well downstream of the Lewis, Kalama, and Cowlitz rivers and upstream of the Elochoman 

(rivers with known eulachon spawning). While the relatively distant proximity of sampling events to 

known spawning areas does not discount the possibility that larvae in samples may be the product 

of spawning in these tributaries, Mallette (2014) concluded that these findings highlight the 

potential for at least limited spawning in the mainstem Columbia River. 

Adult eulachon could arrive in the study area as early as November, although most adults would 

migrate through the study area during peak spawning between February and March. Eggs from 

early spawners could be transported with currents from the tributaries downstream to portions of 

the study area where suitable incubation conditions exist (i.e., sand waves) shortly thereafter. 

Emergent larvae could be present in the study area as early as December. However, based on the 

timing of peak spawning, and because incubation occurs for 1 to 2 months (Grette Associates 

2014b), peak larval transport has been shown to occur between mid-March and early May 

(Mallette 2014 ). 

Dredging in the Columbia River is identified as an activity of concern for eulachon conservation 

because this activity takes place in proximity to known and potential eulachon habitats. Dredging 

activities during the migratory and spawning period could entrain and kill adult fish, eggs, and 

larvae; bury and smother incubating eggs; or cause stress and disturbance that could contribute to 

decreased spawning success (National Marine Fisheries Service 2010). 

Sturgeon 

Both green and white sturgeon may be present in the deepwater habitats of the study area as adults 

and subadults. Two green sturgeon DPSs occur in in the lower Columbia River. While this species 

does not spawn in the Columbia River or its tributaries, subadult and adult green sturgeon from all 

major spawning populations use the lower Columbia River and other coastal estuaries in Oregon 

and Washington for holding habitat in the summer and early fall (Adams et al. 2002; Lindley eta!. 

2011; Moser and Lindley 2007). Sturgeon are most commonly found in association with the bottom, 

where they feed on a mixture of aquatic insects and benthic (i.e., bottom dwelling) invertebrates 

(Adams et al. 2002; Independent Scientific Review Panel 2013). The water depth preferences of 

white sturgeon indicate this species is most likely to be found in the DWZ, but individuals may also 

be present in the SWZ and, infrequently, in the ACM. The DWZ near the proposed docks does not 

provide suitable substrates for white sturgeon spawning or larval rearing, so these life stages are 

unlikely to occur for extended periods in this area. In contrast, juvenile white sturgeon are found 

throughout the lower Columbia River and usc a wide variety of habitats, including both mainchannel and off-channel areas. They are most commonly found at water depths greater than 33 feet 

(Independent Scientific Review Panel 2013). 

Millennium Bulk Termrnals-Longview 

Final SEPA Environmental Impact Statement 4.7·15 Apnl2017 
299 


31623.230

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The white sturgeon population in the Columbia River downstream from Bonneville Dam has been 

among the most productive sturgeon populations in North America. White sturgeon downstream 

from Bonneville Dam continue to range freely throughout the lower river mainstem, estuary, and 

marine habitats to take advantage of dynamic seasonal patterns of food availability. Individual 

growth, condition, and maturation values from the Lower Columbia River remain among the highest 

observed for white sturgeon range-wide. Habitat use of subadults and adults varies with habitat 

availability. Given the abundance and mobility of white sturgeon in the Lower Columbia River, there 

likely would be some present during construction and operation of the Proposed Action. 

lamprey 

Lamprey are primitive anadromous fish that spend their adult lives in the ocean but return to 

freshwater habitats for spawning and larval rearing. Two species, Pacific and river lamprey, spawn 

in tributaries to the Columbia River and migrate through the study area as adults and juveniles. 

Adults migrate through the lower Columbia River from March through October on their return to 

spawning tributaries (Columbia River Research 2014). Adult lamprey ascend rivers by swimming 

upstream brieny, sucking to rocks, resting, and then proceeding. Larval lamprey (ammocoetes) 

hatch after 2 to 3 weeks and are dispersed downstream by currents to slack-water areas with soft 

substrates, where they settle in sediments. The larval lamprey burrow into soft substrate where 

they may reside for 3 to 8 years as filter feeders. Late in tbe larval lamprey's life stage, unknown 

factors trigger metamorphosis, when larval lamprey become juvenile lamprey. During late winter or 

early spring, juvenile lamprey migrate to the ocean where they mature. The study area lacks suitable 

spawning substrates for either species. juvenile and adult lamprey may be present in the SWZ and 

DWZ during their respective migration periods (Table 4. 7 -4). 

4.7.4.3 Nonfocus Fish 

The non focus fish (Table 4.7-5) are important food fish (harvested commercially and 

recrcationally), game tlsh (harvested recrcationally), or on Washington's PHS list Two of the 

species, mountain whitefish (Prosopium wi/liamsoni) and leopard dace (Rhinichthysfa/cutus), arc on 

Washington's PHS list as state candidate species. Both species are widely distributed in the 

Columbia and Fraser River basins. The remainder of the species in this group are important as 

commercial or recreational species. Most are abundant and widely distributed in the system, 

including several introduced species. Some are known predators of juvenile salmonid, such as 

largemouth bass, northern pikeminnow, small mouth bass, striped bass, and walleye. 

M1llenmum Bulk Terminals-longview 

Ftnal SEPA Env1ronmentallmpart Statement 4.7-16 April2017 
300 


31623.231

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitig;Hion Measures 

Table 4.7-5. Nonfocus Fish Species that Could Occur in the Study Area 

Species 

Channel catfish (Jctalurus punctatus) 

Common carp (Cyprinus carpio) 

Largemouth bass (Micropterus salmoides) 

Leopard dace (Rhinichthys fa/cutus) 

Mountain sucker ( Catostomus platyrhuchus) 

Mountain whitefish (Prusopium wil/iamsoni) 

Northern pikcminnow (Ptychocheilus oregonensis) 

Peamouth (Mylochei/us caurinus) 

Perch (family Pcrcidae) 

Shad (subfamily Alosinae) 

Small mouth bass ( Micropterus dolumieu) 

Suckers (family Catostomidae) 

Sunfish (family Centrarchidae) 

Striped bass (Marone saxatilis) 

Walleye (Sander vitreus) 

Notes: 

Source: Grette Associates 2014b. 

Reason for Interest 

WIJFW game fish 

WDFW food fish 

WIJFW game flsh 

WDFW PHS 

WDFW PHS, WDFW game fish 

WDFW game fish 

WIJFW game fish 

WDFW game fish 

WDFW game fish 

WDFW food fish 

WDFW game fish 

WDFW game fish 

WDFW game fish 

WDFW game fish 

WDFW game fish 

Native or 

Introduced 

N 

N 

N 

N 

N 

I 

N 

WDFW =Washington Department of Fish and Wildlife; PHS= Priority Habitats and Species; I= introduced; 

N native 

4.7.4.4 Commercial, Tribal and Recreational Fishing 

Commercial, tribal, and recreational fisheries in the lower Columbia River are managed by the States 

of Washington and Oregon, and tribes, subject to the terms of the 2008-2017 United States v. Oregon 

Management Agreement. The agreement establishes tribal harvest allocations and upholds the right 

of tribes to fish for salmon in their usual and accustomed fishing grounds. Commercial and 

recreational fishing primarily target hatchery-produced salmon and steelhead, as well as sturgeon 

and other game fish. Tribal fish resources are discussed in Chapter 3, Section 3.6, Tribal Resources. 

Commercial fisheries in these waters are managed under the Columbia River Compact, a 

congressionally mandated process that adopts seasons and rules for Columbia River commercial 

fisheries (National Marine Fisheries Service 2015). The Columbia River Compact consists of the 

Washington and Oregon Departments of Fish and Wildlife Directors or their delegates, acting on 

behalf of the Oregon and Washington Fish and Wildlife Commission. The Columbia River Compact is 

charged by congressional and statutory authority to adopt seasons and rules for Columbia River 

commercial fishers. When addressing commercial seasons for salmon, steelhead, and sturgeon, the 

Columbia River Compact must consider the effect of the commercial fishery on escapement, treaty 

rights, and sport fisheries, as well as the impact on species listed under the federal ESA. Although the 

Columbia River Compact has no authority to adopt sport fishing seasons or rules, its inherent 

responsibility is to address the allocation of limited resources among users. This responsibility has 

become increasingly demanding in recent years. The Columbia River Compact can be expected to be 

more conservative than in the past when considering fisheries that will affect listed salmon and 

stcelhead (National Marine Fisheries Service 2015). 

Millennium Bulk Terminals longview 

Final SEPA Environmental Impact Statement 4.7-17 April2017 
301 


31623.232

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4 Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed MitlgatJOn Measures 

In Washington, recreational fishing seasons and rules are updated annually and presented in the 

Washington Sport Fishing Rules pamphlet. Sport fishing seasons are generally established for july 1 

through june 30 of the following year. The pamphlet covers all fresh waters and marine waters in 

Washington, including the lower Columbia River, and describes the seasons and rules for 

recreational fishing for finfish and shellfish or seaweed. 

4.7.4.5 Water Quality Conditions 

Sediment conditions in the study area are generally uniform with slight variations between aquatic 

habitat types. ACM sediments are primarily sand mixed with silt, SWZ sediments are primarily sand, 

and DWZ sediments are primarily silt mixed with sand (Grette Associates 2014b). The lower 

Columbia River is listed as a Washington State 303(d) impaired water and is classified by Ecology as 

a Category 5 polluted water for dissolved oxygen, bacteria, temperature, Dieldrin (organochlorine 

insecticide), PCB (polychlorinated biphenyl), 2,3,7,8 TCDD (tetrachlorodibenzo-p-dioxin), and 4,4,4 

DDE (dichlorodiphenyldichloroethylene) (Washington State Department of Ecology 2016). At the 

project area, the Columbia River is listed as 303(d) impaired for bacteria and temperature. Over the 

years, downstream salinity patterns have changed, but intrusion and salinity within the study area 

are generally similar to historic patterns. Turbidity in the study area is variable based on a number 

of factors. For example, over 5 days of water quality monitoring for dredging, background levels 

(upstream from active dredging) ranged from the mid-20s to the mid-60s nephelometric turbidity 

units (NTUs) at all water depths (U.S. Army Corps of Engineers Dredged Material Management Office 

2010 in Grette Associates 2014b ). Water temperature within the study area ranges from low 40s to 

low 70s ("F), which is slightly warmer than historic values (Bottom et al. 2008). Salmon ids typically 

move from habitat areas as temperatures approach 66°F, and the study area habitat within the ACM 

and upper SWZ likely reaches this threshold and may become unsuitable for juveniles salmon ids in 

the summer months. Refer to Section 4.5, Water Quality, for further information regarding water 

quality conditions near the project area. 

4.7.4.6 Fish Stranding 

A growing body of evidence indicates that juvenile salmon and other fish are at risk of stranding on 

wide, gently sloping beaches because of wakes generated by deep draft vessel passage (Bauersfeld 

1977; Hinton and Emmett 1994; Pearson et al. 2006; ENTRlX 2008). Depending on the slope and 

breadth of a beach, wakes from passing vessels can travel a considerable distance, carrying fish and 

depositing them on the beach where they are susceptible to stress, suffocation, and predation. 

Pearson et al. (2006) published the most detailed study of Columbia River fish stranding completed 

to date. They evaluated stranding at three sites in the lower Columbia River: Sauvie Island, Barlow 

Point (adjacent to the project area), and County Line Park. The sites were chosen because prior 

work had established them as sites with a high risk of stranding (Bauersfeld 1977). Pearson et al. 

(2006) observed 126 vessel passages, 46 of which caused stranding. They also measured numerous 

site variables such as fish density (measured via beach seining), site topography, river stage, current 

velocity, tidal stage, tidal height, and a variety of vessel variables including direction of movement, 

velocity, ship type, ship size, and draft. Although the study provides an understanding of the factors 

that contribute to stranding, it does not create a predictive model because it was limited to analysis 

of known or suspected high-risk sites. From the study, certain sites appear to be more susceptible to 

stranding than others. For example, the highest occurrence of stranding occurred at Barlow Point, 

where 53% of the observed passages resulted in stranding. Stranding occurred less frequently at 

Millenmum Bulk Terrnlflals-Longv!ew 

Fma! SEPA Environmental Impact Statement 4.7-18 April2017 
302 


31623.233

Cowlitz County 

Chapter 4, Natural Environment 

Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

Sauvie Island (37% of the observed passages resulted in stranding) and County Line Park (15% of 

observed passages resulted in stranding) (Pearson eta!. 2006). The Proposed Action would add 

1,680 vessel transits to the Columbia River at full buildout (840 vessels transiting to and from the 

project area), which would introduce additional permanent risk offish stranding in the Columbia 

River. However, Barlow Point is directly downstream from the Proposed Action and vessels would 

be slowing as they approach the docks and accelerating as they leave the docks, which could reduce 

the size of vessel wakes generated by vessels associated with the Proposed Action at Barlow Point. 

Other sites downstream of Barlow Point would be susceptible to increased risk of fish stranding 

because of the vessels associated with the Proposed Action. 

4.7.5 Impacts 

This section describes the potential direct and indirect impacts related to fish and fish habitat that 

would result from the construction and operation of the Proposed Action and the No-Action 

Alternative 3 The Corps is conducting a review of the Proposed Action under NEPA, as the lead 

federal agency, and will be consulting under Section 7 of the federal ESA with both the USFWS and 

the NMFS. Additional measures may be identified under one or both of these processes that could 

further reduce potential impacts on fish and fish habitat 

4.7.5.1 Proposed Action 

This section describes the potential impacts that could occur in the study areas as a result of 

construction and operation of the Proposed Action. The Applicant has identified the following design 

features and best management practices to be implemented as part of the Proposed Action, and 

were considered when evaluating potential impacts of the Proposed Action. Some or all of these 

measures may be terms and conditions of permits that would be issued for the project, should the 

project be permitted. 

The Applicant would design the trestle to be long and narrow, and at a height above the OHWM 

to minimize shading in the shallow water zone. From shore, the trestle would measure 24 feet in 

width for 700 feet, and 51 feet in width for the finallSO feet The top of the deck would be +22 

feet CRD and the bottom of the deck+ 19.5 feet CRD. Therefore, the bottom of the deck would be 

more than 8 feet above OHW. This design would minimize overall impacts in shallow water, 

including impacts on habitat connectivity along the shoreline. 

• The Applicant would locate Docks 2 and 3 entirely in deepwater habitat to distance the 

structure and terminal activities from shallow water areas. 

The Applicant would install pile caps orr all project-related piling to minimize perching/roosting 

opportunities for piscivorous birds on the trestle and docks. 

The Applicant would locate the berthing area at water depths of at least -20 feet CRD to avoid 

habitat conversion from shallow to deepwater during dredging. 

• The Applicant would locate the berthing area in deepwater closer to the navigation channel to 

minimize the scope of future maintenance dredging. 

l Acreages presented in the impacts analysis were calculated using Geographic Information System (GIS), thus, 

specific acreage of impacts are an estimate of area based on the best available information. 

Mlllennmm Bulk Termmal~-Longv1ew 

Fma! SEPA Environmental Impact Statement 4.7-19 April2017 
303 


31623.234

Cowlitz County 

Washington State Department of E:cology 

Chapter 4. Natural Environment 

Existing Conditrons, Project Impacts, 

and Proposed Mitigation Measures 

The Applicant would direct project lighting downward or at structures, and would incorporate 

shielding to avoid spillage of light into aquatic areas. 

The Applicant would include a pinpoint light source at the end of the shiploading boom, aimed 

straight down into the ship hold area to avoid a broader beam that could cause light spillage. 

The Applicant would remove the piles slowly to minimize sediment disturbance and turbidity in 

the water column. 

Prior to pile extraction, the Applicant would break the friction between the pile and substrate to 

minimize sediment disturbance. 

The Applicant would conduct impact pile-driving using a confined bubble curtain or similar 

sound attenuation system capable of achieving approximately 9 dB of sound attenuation. 

During pile removal and pile driving, the Applicant would place a containment boom around the 

perimeter of the work area to capture wood debris and other materials released into the waters 

as a result of construction activities. The Applicant would collect all accumulated debris and 

dispose of it upland at an approved disposal site. The Applicant would deploy absorbent pads 

should any sheen be observed. 

The Applicant would provide a containment basin on the work surface on the barge deck or pier 

for piles and any sediment removed during pulling. The Applicant would dispose of any 

sediment collected in the containment basin at an appropriate upland facility, as with all 

components of the basin (e.g., straw bales, geotextile fabric) and all pile removed. 

• Upon removal from substrate, the Applicant would move the pile expeditiously from the water 

into the containment basin. The Applicant would not shake, hose, strip, or scrape the pile, nor 

leave it hanging to drip or any other action intended to clean or remove adhering material from 

the pile. 

The Applicant would limit the impact of turbidity to a defined mixing zone and otherwise 

comply with WAC 173-201A. 

The Applicant would not stockpile dredged material on the river bottom surface. 

The Applicant would contain all dredged material in a barge prior to A ow lane disposal; dredged 

material would not be stockpiled on the riverbed. 

During hydraulic dredging, the Applicant would not operate hydraulic pumps unless the dredge 

intake is within 3 feet of the bottom. 

The Applicant would remove any floating oil, sheen, or debris within the work area as necessary 

to prevent loss of materials from the site. The Applicant would be responsible for retrieval of 

any floating oil, sheen, or debris from the work area and any damages resulting from the loss. 

The Applicant would dispose materials to the A ow lane using a bottom-dump barge or hopper 

dredge. These systems release material below the surface, minimizing surface turbidity. 

The Applicant would have a spill containment kit, including oil-absorbent materials, on site to be 

used in the event of a spill or if any oil product is observed in the water. 

The Applicant would not allow barges to ground out during construction. 

The Applicant would be required to retrieve any floating debris generated during construction 

using a skiff and a net. The Applicant would dispose of debris at an appropriate upland facility. If 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.7-20 Apnl2017 
304 


31623.235

Chapter 4, Natura! Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project fmpacts, 

and Proposed Mitigation Measures 

necessary, the Applicant would install a floating boom to collect any floated debris generated 

during in-water operations. 

The Applicant would not allow land-based construction equipment to enter any shoreline body 

of water except as authorized. 

The Applicant would store, handle, and use all fuel and chemicals in a fashion to ensure that they 

do not enter the water. 

Construction activities that could affect fish or fish habitat include the following. 

Permanent removal or temporary alteration of fish habitat and prey resources from dredging 

and pile installation. 

Noise impacts on fish associated with pile driving. 

Shading of aquatic habitat during construction from construction vessels and construction of 

docks. 

Spills and leaks during construction from equipment or storage of potentially hazardous 

materials. 

Operation activities that could affect fish or fish habitat include the following. 

Shading of aquatic habitat from Docks 2 and 3 and vessels. 

Spills and leaks of potentially hazardous materials associated with operations (i.e., fuel, 

hydraulic fluids, lubricants, or other chemicals]. 

Vessel generated noise. 

Vessel generated wakes resulting in fish stranding. 

Impacts on fish and benthic habitat during maintenance dredging. 

Coal dust deposition in aquatic environments. 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Temporarily Alter and Permanently Remove Aquatic Habitat 

Construction of the proposed docks would temporarily alter or permanently remove aquatic 

habitat in the Columbia River adjacent to the project area. A total of 610, 36-inch-diameter steel 

piles would be placed in-water, permanently removing 0.10 acre ( 4,312 square feet) of benthic 

habitat. The majority of this habitat is located in the DWZ, and pile placement would result in the 

loss of benthic habitat and primary and secondary production from affected benthic habitat. 

Benthic, epibenthic [i.e., Jiving at the water-substrate interface), or infaunal (i.e., beneath the 

surface of the river floor] organisms within the footprint of individual piles at the time of pile 

driving would likely perish. 

Millennium Bulk Terminals-Longv1ew 

Final SEPA Environmental Impact Statement 4.7·21 April 2017 
305 


31623.236

Cowhtz County 

Washmgton State Department of Ecology 

Chapter 4. Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Existing creosote-treated piles would be removed from portions of two existing timber pile 

dikes. Removal of approximately 225 lineal feet of pile dike would result in long-term benefits 

by removing a source of creosote, a mixture of polycyclic aromatic hydrocarbons (PAHs) and 

other chemicals that are toxic to aquatic organisms (Brooks 1995). However, removal could 

temporarily increase suspended sediments, resulting in short-term contamination of water and 

long-term contamination of sediments from creosote piling that have been in place for many 

years, which may be mobilized during extraction and result in temporary water contamination. 

Dredging would permanently alter a 48-acre area of benthic habitat in the DWZ by removing 

approximately 500,000 cubic yards of benthic sediment to achieve a water depth of -43 feet 

CRD, with a 2-foot overdredge allowance. Water depth would be increased by up to 16 feet in 

the dredge prism (i.e., extent of the area to be dredged). 

Sediment sampling from within, adjacent to, ant! upstream of the project area has demonstrated 

that in deepwater areas of the Columbia River, sediments are typically composed of silty sands 

with a low proportion of fines (e.g., silt or mud) and very low total organic carbon. Further, 

sediments sampled from deepwater areas in the project vicinity have consistently met 

suitability requirements for flow lane disposal or beneficial use in the Columbia River (Grette 

Associates 2014b). Sediment within the dredge prism for Docks 2 and 3 would be evaluated in 

the permit process for suitability for flow lane disposal or beneficial use in the Columbia River. 

However, as part of the permit process for the Proposed Action, including dredging, the 

Applicant would conduct site-specific sediment sampling to characterize the proposed dredge 

prism and comply with the dredgcu materials management plan (Grette Associates 2014b). The 

disposal area for dredged materials is anticipated to be approximately 80 to 110 acres. The 

actual acreage and specific location of the disposal site would be determined by the permitting 

agencies and would be based on sediment characteristics (i.e., consistency and density of 

sediments). Recent authorizations for flow lane disposal of dredged materials in the Columbia 

River in the vicinity of the project area were generally in or adjacent to the Columbia River 

navigation channel between approximately river miles 60 and 66 (Grette Associates 2014c). 

Riparian vegetation at the project area is sparse and degraded. Project construction would not 

result in measurable impacts on riparian vegetation or habitat conditions. 

Entrain Aquatic Organisms during Hydraulic Dredging 

Fish, fish eggs, and fish larvae (i.e., eulachon eggs, lamprey ammocoetes) that occur within the 

dredge prism could become entrained during hydraulic dredging. It is assumed that adherence 

Lo the in-water work window for the Proposed Action, to be defined within permits issued for 

the Proposed Action, would be protective of the most vulnerable life-history stages for affected 

fish, however some life-history stages could occur in the dredge prism year-round (i.e., lamprey 

ammocoetes). Thus, it is recognized that not all potential impacts associated with entrainment 

during hydraulic dredging would be avoided. Additionally, because the in-water work window is 

unknown at this time and would not be defined until the Applicant obtains the necessary 

permits to construct the Proposed Action, and dredging would occur periodically over the life of 

the project, mitigation is proposed for the Applicant to conduct monitoring during hydraulic 

dredging operations to avoid and minimize potential impacts to fish (refer to Section 4.7.7, 

Proposed Mitigation Measures, for further details]. Additionally, this mitigation is also proposed 

because the magnitude of the periodic dredging would vary both in terms of frequency and 

quantity, which cannot be fully defined at this time. This mitigation measure would contribute to 

Millennium Bulk Terminals-Longview 

Fma! SEPA Environmental Impact Statement 4.7-22 April2017 
306 


31623.237

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment· 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

avoiding and minimizing potential impacts to fish, fish eggs and fish larvae related to hydraulic 

dredging. 

The majority of benthic, epibenthic, and infaunal organisms within the proposed dredge prism 

would likely perish during dredging. Recolonization by benthic, epibenthic, and in faunal 

organisms would be rapid, and disturbed habitats would return to reference conditions 

following recolonization by benthic organisms (McCabe et al. 1996). Typically benthic 

organisms require 30 to 45 days to recolonize disturbed environments. 

Cause Physical or Behavioral Reponses from Elevated Turbidity during Pile-Driving and 

Dredge Disposal 

Removal of piles and the dredging and disposal of dredge materials would temporarily increase 

turbidity. The Proposed Action would permanently affect approximately 48 acres of benthic 

habitat due to dredging activities (i.e., removal of benthic habitat and benthic organisms) and 

610 piles for construction of the docks. Suspended sediment concentrations near dredging 

activity do not typically cause gill damage to salmonids (Servizi and Martens 1992; Stober et al. 

1981). 

Behavioral effects related to increased turbidity are another consideration. Some of the 

documented behavioral effects of turbidity on fish include avoidance, disorientation, decreased 

reaction time, increased or decreased predation and increased or decreased feeding activity. 

However, many fish species (especially estuarine species) have been documented to prefer 

higher levels of turbidity for cover from predators and for feeding strategies. For example, 

increased foraging rates for juvenile Chinook salmon were attributable to increase in cover 

provided by increased turbidity, while juvenile stcelhead and coho salmon had reduced feeding 

activity and prey capture rates at relatively low turbidity levels. juvenile Chinook salmon were 

also found to have reduced predator-avoidance recovery time after exposure to turbid water. 

(ECORP Consulting 2009). Thus, while there may be some beneficial behavioral effects from 

increased turbidity, it is expected that for many of the focus fish species and native nonfocus fish 

species behavior effects from increased turbidity would generally be negative. Although it is 

difficult to determine exactly how much of a temporary increase in turbidity would result from 

the construction activities, increases in suspended sediments are expected to be relatively short 

term, occurring during in-water construction activities and maintenance dredging. Thus, inwater construction and maintenance activities would not result in chronic sediment delivery to 

adjacent waters, because sediments would be disturbed only during in-water work and, thus, 

temporary. 

The temporary increase in turbidity from the Proposed Action is expected to be short term and 

would not result in chronic sediment delivery to adjacent waters. Construction-related dredging 

is proposed to occur from August 1 through December 31, when many fish species would be 

present in the study area. Impacts on water quality from dredging would be minimized with the 

preparation and implementation of a dredging plan in compliance with the dredged material 

management program (DMMP) as required by state agencies (Ecology and Washington State 

Department of Natural Resources) and federal agencies (the Corps and EPA). Adhering to a plan 

developed in compliance with DMMP would minimize, but not eliminate, water-quality impacts, 

ensuring that potential impacts arc temporary and localized in nature. No long-term changes in 

the baseline conditions in the study area would be expected to occur. 

Mlllenn1um Bulk Termmals-Longv1ew 

F~na! SEPA Environmental Impact Statement 4.7-23 April2017 
307 


31623.238

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Envtronment: 

Extsting Conditions, Project Impacts, 

and Proposed Mit1gat1on Measures 

Cause Physical or Behavioral Responses to Underwater Noise during Pile-Driving 

Installation of 610 structural steel piles to support Docks 2 and 3 would generate underwater 

noise during pile-driving (Grette Associates 2014a). Most piles would be installed to a depth 

approximately 140 to 165 feet below the mudline to provide the necessary resistance to support 

Docks 2 and 3, the shiploaders, and conveyors (Grette Associates 2014a). The duration of 

vibratory and impact pile-driving required to install each pile would depend on the depth at 

which higher-density materials (e.g., volcanic ash or dense sand and gravels) are encountered; 

shallower resistance would require less vibratory and more impact driving, while deeper 

resistance would require more vibratory and less impact driving. 

Pile driving would occut· over two construction seasons, with multiple rigs operating 

simultaneously between September 1 and December 31. The sequence of pile driving and the 

number of pile-driving rigs operating at the same time would be determined during permitting. 

Each pile would be installed using a vibratory driver until it meets resistance, at which point an 

impact pile driver would be used to proof the pile to the necessat·y weight-bearing capacity. 

Impact pile driving would be expected to last 20 to 120 minutes per pile. 

Noise attenuation and fish movement models predicted that underwater noise thresholds would 

be exceeded, resulting in injury or behavior impacts, at distances ranging from 45 feet (single 

sound strike) to 3.92 miles (cumulative sound). The specific distances and effects on ESA-listed 

fish are provided in Table 4. 7-6. 

Table 4.7-6. Underwater Noise Thresholds and Distances to Threshold levels 

All Federally 

Protected Fish 

Notes: 

Threshold 

Injury, cumulative sound (d grams) 187 dBsEL 

Injury, cumulative sound ( <2 grams) 183 dBsEL 

Injury, single strike 

Oehavior 

206 dB PEAK 

150 

Distance to Effect 

Threshold• 

1, 775 feet" 

1,775 fee~'·' 

45 feetd 

3.92 miles 

Impact pi!e~driver operation, 36-mch steel pile with 9 dB attenuation from use of confined bubble curtain. 

b This represents the point at which the model for distance to threshold for cumulative sound no longer 

increases with increased pile strikes. For 187 dB SELn1m (fish;?: 2 grams), this is at 5,003 strikes; for 

187dBm.nnn (fish >2 grams), this is at 1,992 strikes. The concept of effective quiet makes the 1,775-foot 

distance applicable to both thresholds and therefore is applicable to fish both greater than and less than 2 

grams. 

c Given the On-Site Alternative location and adherence to the proposed in-water work window, most 

sa!monids in the area during construction are assumed to be greater than 2 grams (187 dBsF!.cum 

threshold), except possibly for very early subyearling chum salmon in December 

d Because the distance to cumulative sound thresholds are greater than the distance to the single-strike 

sound threshold, this analysis follows the NMFS dual criteria guidance and moves forward solely 

considering the larger values. 

dBSEL ""'decibels sound exposure level; d[)PE.h.K....., decibels at peak sound level; dBRMS =decibels root mean square 

Because the number of pile strikes per day would be variable, it was assumed that a minimum of 

5,000 strikes/day would occur. Increasing pile strikes beyond 5,000 would not affect the 

distance at which thresholds would be exceeded for all federally protected fish. Predicted noise 

reduction using confined or unconfined bubble curtains or similar attenuation devices would be 

at least 9 dl3, based on observations at the Columbia River Crossing (David Evans Associates 

2011) and at Puget Island (Washington State Department of Transportation 2010). 

Millennium Bulk Term!na!s-Loogvlew 

Fma! SEPA Fnvironmentallmpact Statement 4.7-24 April 2017 
308 


31623.239

Cowl1tz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment: 

ExiSting Conditlons, Project Impacts, 

and Proposed Mitigation Measures 

Underwater sound generated by impact pile driving could affect fish in several ways, ranging 

from alteration of behavior to physical injury or mortality. The impact would depend on the 

intensity and characteristics of the sound, the distance, and location of the fish in the water 

column relative to the sound source, the size and mass of the flsh, and the fish's anatomical 

characteristics (Hastings and Popper 2005). 

Based on calculations of where underwater noise thresholds would be exceeded by pile-driving 

noise (Section 4.7.3.2, Impact Analysis, Assessing Noise Impacts), the area where cumulative 

sound levels could reach or exceed the injury threshold (potential injury area) would extend 

from the proposed trestle and dock to a maximum distance of 1.1 miles along the shoreline 

(1,775 feet upstream and downstream plus the 2,300-foot length of Docks 2 and 3). The total 

potential injury area would encompass 0.44 square mile. Although the thresholds were 

developed for salmonids, they would apply to other fish species. The potential for injury or 

behavioral effects depends on the duration of the fish in the potential injury area. 

Five threatened salmon species could occur in the study area during the proposed in-water 

work window of September 1 through December 31 (Table 4.7-7). All life history stages of the 

Snake River spring/summer-run Chinook salmon, upper Columbia River spring-run Chinook 

salmon, Snake River sockeye salmon, and upper Willamette River steelhead populations units 

would likely be absent from the study area and not affected by pile-driving. Bull trout are 

expected to occur infrequently and in very low numbers relative to all other salmonids. The 

likelihood of bull trout presence at any given time is very low, and the potential for pile-driving 

activities to affect bull trout is, therefore, negligible. According to the USFWS (2002), bull trout 

in the Lower Columbia River Recovery Unit could have migrated seasonally from tributaries 

downstream into the Columbia River to overwinter and feed. However, the extent to which bull 

trout in the Lower Columbia River Recovery Unit currently use the mainstem Columbia River is 

unknown. 

Green sturgeon, eulachon, and other salmonid populations could be present in the study area 

during the proposed in-water work window. For these species, pile driving could affect fish 

migrating in the SWZ and the migrants and residents in the DWZ. Approximately 0.09 of the 

0.44-square-mile potential injury area would be in the SWZ. The risk of injury could be lower for 

some populations, depending on their abundance or absence during in-water work, but juvenile 

salmon present as shallow water subyearlings could be at risk of injury. Larger subyearling or 

yearling individual salmonids could occur in all of the 0.44-square-mile potential injury area. 

Adult salmon could migrate upstream through the study area during the proposed in-water 

work window, but none of the salmon populations spawn in the potential injury area. Chinook 

salmon, chum salmon, and steel head migrate approximately 19 to 25 miles per day (Keefer et al. 

2004; English eta!. 2006; Buklis and Barton 1984). Coho salmon migrate approximately 9 to 20 

miles per day (Sandercock 1991). These migration rates suggest that adult salmon would move 

through the study area relatively quickly, travelling through the potential injury area in 

approximately 20 to 90 minutes, depending on the species and actual rate of travel. These 

migration patterns could limit the potential for and duration of exposure; however, adult salmon 

migrating through the study area could be injured by pile-driving noise. Injuries to adult salmon 

could include temporary and long-term hearing damage, referred to as Temporary Threshold 

Shifts (TTSJ and Permanent Threshold Shifts (PTS), respectively (Grette Associates 2014a). 

Millennium Bulk Tennmals Longview 

Fma! SEPA Environmental impact Statement 4.7-25 April 2017 
309 


31623.240

Cowlitl County 

Washington State Department of Ecology 

Chapter 4. Natural Environment· 

Existing Cond1t1ons, Project Impacts, 

and Proposed Mitigation Measures 

Table 4.7-7. Salmonids in the Study Area during the Proposed Work Window (September 1-

December 31) by life Stage 

ShallowFederal water Deepwater Deepwater 

Species Status Subyearling Subyearling Yearling Adult ... 

Chinook Salmon 

Snake River fall·run ESU T:' Sep-Nov" Sep-Nov" Sept-Oct 

Lower Columbia River ESU T Sep-Novh Sep-Dec" Sep-Dec" Sept-Oct 

Upper Willamette River T Sep-Nov" Sep-Dec" Sep-Dec" 

ESU 

Cobo Salmon 

Lower Columbia River ESU T 

Chum Salmon 

Columbia River ESU T Sept-Dec 

Steelhead Trout 

Snake River DPS T Sept-Oct 

Upper Columbia River DPS T Sept-Oct 

Middle Columbia River DPS T Sept-Oct 

Lower Columbia River DPS T Sept-Dec 

Green Sturgeon T Sept-Dec 

Eulachon T Dec Dec 

a T denotes federally threatened (no Endangered in thL~ table). 

h Denotes expected presence during the proposed in-water work window; see Grette Associates (2014a). 

ESU = E::r~~-~-~ionary Significant Unit: D_~S =Distinct Populati.:.on:.:..c.Se.:.;go::.m::.e:cn:ct _____________ _ 

Exposure to very loud noise or loud noise for extended periods may result in permanent 

reductions in sensitivity or PTS. Generally, TTS would occur at lower levels than those resulting 

in auditory tissue damage, which result in PTS. The effect of hearing loss in fish may relate to the 

fish's reduced fitness, which may increase the vulnerability to predators or result in a reduced 

ability to locate prey, inability to communicate, or inability to sense their physical environment 

[Hastings and Popper 2005). Popper et al. [2005) found fish experiencing TTS were able to 

recover from varying levels of TTS, including substantial TTS, in less than 18 hours post 

exposure. Meyers and Corwin [2008) reported evidence that fish can replace or repair sensory 

hair cells that have been damaged in both the inner ear and lateral line, indicating that fish may 

be able to recover from PTS over a period of days to weeks. Measures to reduce the risk ofTTS 

and PTS to salmonids includes noise attenuation measures to be implemented during in-water 

pile-driving activities [i.e., use of confined bubble curtain or similar noise attenuation and 

implementing a soft-start when initiating pile driving). See Section 4.7.7, Proposed Mitigation 

Measures, for further information. 

Sound pressure levels could exceed the threshold for behavioral impacts up to 3.92 miles from 

pile-driving activities per the SEPA Fish Technical Report. A line-of-sight rule, meaning that noise 

may propagate into any area that is within sight of the noise source, is used to determine the 

extent of noise propagation in river systems. Fish in the potential injury area could exhibit 

behavioral responses, which could include reduced predator avoidance and foraging efficiency. 

MHienmum Bulk Terminals Longview 

Final SFPA Environmental Impact Statement 4.7·26 April2017 
310 


31623.241

Cowlitz County 

Washington State Department of Ecology 

Chapter4. Natura! Environment· 

Existing Cond1t1ons, Project Impacts, 

and Proposed Mitigation Measures 

Based on studies by Carlson et al. (2007) the potential injury area would extend approximately 

10 meters (33 feet) from the pile-driving activity. Because the potential injury area would be 

limited to such a small area, it is extremely unlikely that adult fish would experience injury. 

Increase Temporary Shading that Affects Aquatic Habitat 

Overwater structures, barges, and vessels required for construction would increase shading to 

the aquatic environment beneath and adjacent to the structures and vessels, which could result 

in changes to primary productivity, fish behavior, predation and migration. The use of these 

structures and vessels would primarily be during the in-water construction period for 

installation of support piling for Docks 2 and 3. Pile-driving activities would be expected to be 

much more disruptive to fish than the shading created by construction-related barges and 

vessels, and would likely affect migration and foraging opportunities in the study area to a 

greater extent. During pile driving, fish would likely not be present near pile-driving activities 

and where barges are located and would not be affected by shading related to construction 

activities. 

Cause Spills and Leaks that Temporarily Contaminate Water Quality 

Construction activities could result in temporary water quality impacts from the release of 

hazardous materials such as fuels, lubricants, hydraulic fluids, or other construction- related 

hazardous materials. Spills could affect aquatic habitat or fish near the discharge point, resulting 

in potential toxic acute or subacute impacts that could affect the respiration, growth, or 

reproduction of the affected fish or other aquatic organisms. It is assumed that spills would be 

less than SO gallons because limited quantities of potentially hazardous materials would be 

stored and used during construction at the project area. However, a spill could cause potential 

impacts on fish based on the location, weather conditions, quantity, and material spilled. The 

potential risks, impacts, and mitigation measures related to water quality are addressed in 

Section 4.5, Water Quality. Appropriate training and implementation of prevention and control 

measures would guard against these risks, greatly reducing the potential for these types of 

impacts. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on fish because 

construction impacts are immediate and no construction impacts would occur later in time or 

farther removed in distance than the direct impacts. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Increase Shading that Affects Fish and Fish Habitat 

Overwater structures (Docks 2 and 3 and large vessels) would increase shading to the aquatic 

environment, which could result in changes to primary productivity as well as fish behavior, 

predation and migration. Permanent shading could reduce primary productivity by 

phytoplankton and macrophytes (Carrasquero 2001). Less primary productivity contributes to 

less energy for epibcnthic communities and ultimately the fish that prey on epibenthic 

Millennium Bulk Terrnmals-Longv1ew 

Final SEPA Envwonmenta! Impact Statement 4.7-27 April2017 
311 


31623.242

CowlitZ County 

Washmgton State Department of Ecology 

Chapter 4, Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

organisms. Shadows may also directly affect fish migration, prey capture, and predation. 

juvenile salmon tend to migrate along the edges of shadows rather than passing through them 

(Simenstad et al. 1999). Low levels of underwater light are also favorable for predatory fish such 

as bass and northern pikeminnow to see and capture their prey, including juvenile salmonids. 

Reduction of primary productivity in DWZ habitat would not likely translate to reductions of 

epibenthic communities, which are more prevalent in SWZ habitat. 

Light attenuation could affect fish migration, prey capture, and predation. While salmon fry are 

known to use darkness and turbidity for refuge, they generally migrate along the edges of 

shadows rather than penetrate them. Foraging opportunities for juvenile fish are generally 

associated with SWZ habitat, which are expected to provide greater availability of benthic 

organisms as compared to DWZ habitat. Juvenile salmon primarily migrate in SWZ habitat, 

although larger juveniles do migrate in DWZ habitat. Juveniles migrating in DWZ habitat are 

likely migrating relatively quickly and not rearing for extended periods in any particular area. 

The trestle is the only structure that would generate shade in SWZ habitat. The potential 

shading created by the trestle would be relatively limited because the trestle is elevated over the 

OHWM by approximately 8 feet. The height of the trestle would allow light to penetrate beneath 

the structure and would, therefore, not be expected to have measurable shading effects on 

primary productivity or fish behavior, migration, or predation in SWZ habitat. 

The trestle would shade 0.3 acre of SWZ habitat, while Docks 2 and 3 and a portion of the trestle 

would shade 4.83 acres of DWZ habitat. Vessels loading at Docks 2 and 3 during operations 

would further increase the shading of DWZ habitat. If two Panamax vessels were being loaded 

simultaneously, they would shade an additional4.7 acres ofDWZ habitat, or 9.83 total shaded 

acres. The study area (Figure 4.7-1) encompasses approximately 1,300 acres, primarily DWZ 

habitat. Shading created by Docks 2 and 3 as well as vessels being loaded at the docks would 

shade approximately 0.8%. Because, juvenile salmonids tend to migrate in SWZ habitat, shading 

of DWZ habitat would likely affect juvenile salmonids to a lesser extent than adults or larger 

juveniles that tend to migrate in DWZ habitat Shading ofDWZ habitat would have low impacts 

on primary productivity, as primary productivity tends to be higher in SWZ habitat. Based on 

the location of Docks 2 and 3 over DWZ habitat, and the relatively small area shaded in relation 

to the overall study area, the overall shading impact would be low. 

The trestle is the only structure that would cross the SWZs where juvenile salmon may he 

present. The design, orientation (north-south), narrow width (24 feet), and height above the 

water surface (8 feet) would allow some natural light to pass under the structure during all 

seasons and limit the potential impacts of shading on fish and fish habitat. The dock and moored 

vessels would be located over DWZ habitats, where shaded habitat could provide suitable 

conditions for larger predatory fishes and piscivorous (i.e., fish-eating) birds. Piles and moored 

vessels may also create flow conditions favorable for predatory fishes. The extent or magnitude 

to which an increase in overwater surface area could alter the predator-prey relationship in the 

study area is unknown, but it is assumed that the relationship would change and an increase in 

predation could occur where larger subyearling, yearling, or larger juvenile fish encounter the 

docks in the DWZ. This likely would likely not apply to smaller subyearling fish when 

encountering the trestle as they migrate within the ACM and SWZ. 

In addition to shading, Proposed Action-related features such as support piling, the docks and 

trestle could provide suitable habitat for piscivorous birds. The level of activity on the docks and 

trestle would likely reduce the potential for birds to use these features as roosting habitat 

Millennium Rulk Termmals Longv1ew 

Fmal SEPA Environmental Impact Statement 4.7·28 April2017 
312 


31623.243

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Exis.ting Conditions, Project Impacts, 

and Proposed Mit1gat1on Measures 

(Grctte Associates 2014d). As part of the proposed project design, the Applicant would install 

pile caps on all Proposed Action-related piling to minimize perching and roosting opportunities 

for piscivorous birds on the trestle and docks. Thus, the Proposed Action would not result in a 

measurable increase in predation of fish from piscivorous birds. 

Cause Spills or Leaks that Contaminate Water Quality 

Operations activities on land as well as in- and over-water could result in temporary water 

quality impacts from a release of hazardous materia Is such as fuels, lubricants, hydraulic fluids, 

or other chemicals. Spills could affect aquatic habitat or fish that occur near the discharge point, 

resulting in potential toxic acute or subacute impacts that could affect the respiration, growth, 

or reproduction of the affected fish. Overall, it is assumed that a spill would be less than SO 

gallons because limited quantities of potentially hazardous materials would be stored and used 

during operations at the project area. Refueling of vehicles during operations would occur off 

site at approved refueling stations, or fuel would be delivered to the site by a refueling truck 

(capacity of 3,000 to 4,000 gallons). Refueling trucks are required to carry appropriate spill 

response equipment, thereby being prepared to respond and reduce the impact associated with 

a fuel spill. Vessel bunkering (i.e., a vessel receiving fuel while at the dock) would not occur at 

the project area. Refer to Section 5.4, Vessel Transportation, for more information on vessel 

bunkering. There would be no increased risk of spills in the project area associated with vessel 

fueling associated with the Proposed Action. The potential risks, impacts, and mitigation 

measures related to water quality are addressed in Section 4.5, Water Quality. Refer to Section 

4.9, Energy and Natural Resources, as well as Chapter 3, Section 3.6, Hazardous Materials, and 

Chapter 5, Section 5.4, Vessel Transportation, for more information related to fuel and refueling 

activities associated with the Proposed Action. Similarly, appropriate training and 

implementation of prevention and control measures would guard against these risks, greatly 

reducing the potential for these types of impacts. 

Generate and Disperse Coal Dust in the Aquatic Environment 

Fugitive coal dust particles would be generated by the Proposed Action through the movement 

of coal into and around the project area, as well as during transfer onto vessels (Chapter 5, 

Sections 5.6, Air Quality, and 5.7, Coal Dust). Coal dust could also become airborne from 

stockpiles located within the project area. Estimated maximum annual coal dust deposition at or 

beyond the project area (Figure 4.7-4) would range from 1.99 grams per square meter per year 

(g/m2 jyear) adjacent to the project area to 0.01 g/m'fyear approximately 2.4 miles from the 

project area (Chapter 5, Section 5.7, Coal Dust). 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Ste~tement 4 7·29 April 2017 

31623.244

Cowlitz County 

Washmgton State Department of Ecology 

Figure 4.7·4. 3-Year Annual Average Coal Dust Deposition for the Proposed Action 

Millennium Bulk Terminals-longview Fmal SEPA Environmental Impact Statement 4.7+30 

Chapter 4. Natur

EX!StingConditlons

and Proposed Miti
314 


31623.245

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Assuming a maximum deposition rate of L99 g/m2 /year adjacent to the project area, and at the 

minimum now4 recorded over the 23-year period of record for 1 day, coal dust deposition 

directly into the river, assumed to be an area of approximately 3 million square meters (1.16 

square miles) in the study area, would result in a change in suspended sediment concentration 

of less than 1 part per 10 billion (0.000075 milligrams per liter [mg/LI). One review of the 

chemical composition of coal dust (U.S. Geological Survey 2007) suggests that the risk of 

exposure to concentrations of toxic materials (e.g., PAHs and trace metals) from coal are low 

because the concentrations are low and the chemicals bound to coal and not easily leached. 

Particles would also be transported downstream by the flow of the river and distributed over a 

broad area, thus diluting any potential impacts. 

Spill Coal during Operations of the Proposed Action 

Direct impacts on the natural environment from a coal spill during operations of the Proposed 

Action could occur; however, local, state, and federal permit processes would require features 

and site design that would be expected to reduce coal spills. Direct impacts resulting from a spill 

during coal handling at the coal export terminal would most likely be minor because the amount 

of coal that could be spilled would be relatively small. Also, impacts would be minor because of 

the absence of aquatic environments in the project area and the contained nature and design 

features of the terminal (e.g., enclosed belt conveyors over water, transfer towers, and 

shiploaders). Potential physical and chemical effects of a coal release on the aquatic 

environments that occur adjacent to the terminal are described below. 

Aquatic environments could potentially be affected from a coal spill both physically and 

chemically. A coal spill could have physical effects on aquatic environments, including abrasion, 

smothering, diminished photosynthesis, alteration of sediment texture and stability, reduced 

availability of light, temporary loss of habitat, and diminished respiration and feeding for 

aquatic organisms. The magnitude of these potential impacts would depend on the amount and 

size of coal particles suspended in the water, duration of coal exposure, and existing water 

clarity (Ahrens and Morrisey 2005]. Therefore, the circumstances of a coal spill, tbe existing 

conditions of a particular aquatic environment (e.g., river shoreline, open water, pond, wetland), 

and the physical effects on aquatic organisms and habitat from a coal spill would vary. 

Similarly, cleanup of coal released into the aquatic environment could result in temporary 

impacts on habitat, such as smothering, altering sediment composition, temporary loss of 

habitat, and diminished respiration and feeding for aquatic organisms. The recovery time 

required for aquatic resources would depend on the amount of coal spill and the extent and 

duration of cleanup efforts, as well as the environment in which the incident occurred. It is 

unlikely that coal handling in the upland portions of the coal export terminal would result in a 

spill of coal that would affect the Columbia River. This is unlikely because the rail loop and 

stockpile areas would be contained, and other areas adjacent to the coal export terminal are 

separated from the Columbia River by an existing levee, which would prevent coal from being 

conveyed from upland areas adjacent to the rail loop to the Columbia River. Coal could be spilled 

during shiploading operations because of human error or equipment malfunction. However, 

such a spill would likely result in a limited release of coal into the environment due to 

4 The minimum recorded flow at the Columbia River at Beavery Army Terminal, Quincy, Oregon, is 65,600 cubic 

feet per second (1969 to 2014 ). 

Mi!!ennium Bulk Terrnmals-Longv1ew 

Final SEPA Environmental Impact Statement 4.7-31 Apn! 2017 
315 


31623.246

Cowhtz County 

Washington State Department of Ecology 

Chapter 4. Natural Env1ronment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

safeguards to prevent such operational errors, such as start-up alarms, dock containment 

measures to contain spillagejrainfalljrunoff, and enclosed shiploaders. 

The chemical effects on fish, aquatic organisms, and habitats would depend on the 

circumstances of a coal spill and the existing conditions of a particular aquatic environment (e.g., 

shoreline, open water, pond, wetland). Some research suggests that physical effects are likely to 

be more harmful than chemical effects (Ahrens and Morrisey 2005). 

A recent coal train derailment and coal spill in Burnaby, British Columbia, in 2014, and 

subsequent cleanup and monitoring efforts provide some information about the potential 

impacts of coal spilled in the aquatic environment. Findings from spill response and cleanup 

found there were potentially minor impacts in the coal spill study area, and that these impacts 

were restricted to a localized area (Borealis Environmental Consulting 2015). Further 

information is provided under Operations-Indirect Impacts. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Cause Fish Stranding from Vessel Wakes 

At full build-out, 70 cargo vessels per month (840 vessels per year) would be used for the 

Proposed Action, resulting in 1,680 vessel transits in the lower Columbia River (840 vessels 

each transiting to and from the project area). The vessels would consist of Pan a max and 

Handymax vessels. Panamax vessels measure approximately 738 feet long by 105 feet wide with 

a draft of 43 feet. Handymax vessels measure approximately 490 to 655 feet long by 1 OS feet 

wide with a draft of 36 feet. Depending on various factors-such as the slope and breadth of a 

beach, river stage, tidal stage, depth of water vessel is transiting, and vessel size, direction of 

travel and speed, wakes from passing vessels can travel a considerable distance. When these 

wakes meet the shoreline, they can carry fish and deposit them on the beach, potentially 

stranding them where they would be susceptible to stress, suffocation, and predation before 

they could return to the water. 

Physical conditions affect the risk of fish stranding in the lower Columbia River caused by vessel 

wakes have been documented in several studies (8auersfeld 1 977; Hinton and Emmett 1994; 

Ackerman 2002; Pearson et al. 2006; Pearson and Skalski 2007; Pearson et al. 2008). The 

physical conditions innuencing the risk of fish stranding include gentle shoreline slopes (i.e., less 

than 5% slope), sandy substrate along the shoreline, confined river channel, close proximity of 

the navigation channel to the shoreline, river tidal stage/elevation atthe time of vessel passage, 

presence of a berm parallel to the shoreline and shoreward of the 18-foot-deep contour, and 

presence of shoreline features such as vegetation, riprap, bank faces, and debris. 

Prior studies have evaluated the risk for stranding along different portions of the Columbia 

River (Pearson et al. 2008). Shorelines in the lower estuary (i.e., river miles 0 to 22) were 

determined to be too distant from the navigation channel to pose a stranding risk. Between river 

miles 22 and 104, approximately 33 of the 82 miles of shoreline pose a risk of fish stranding by 

ship wakes due to the shoreline being close to the navigation channel, not shielded from wave 

action, and having a beach slope of less than 10%. Of the 33 miles of shoreline, approximately 8 

miles have a high susceptibility for stranding based on the screening criteria (Pearson et al. 

Millennium Bulk fermina!s-Longview 

Final SEPA Environmental Impact Statement 4.7-32 April 2017 
316 


31623.247

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mittgatwn Measures 

2008). Because Pearson's study considered only the physical conditions that contributed to the 

susceptibility of stranding along the shoreline in the lower Columbia River, and not the 

abundance or distribution of fish, there was no attempt to quantify the potential extent of fish 

stranding in the lower Columbia River (Pearson et al. 2008). 

The susceptibility of fish stranding by vessel wakes not only depends on physical conditions 

existing along the shoreline but also the presence of fish in the channel margins and nearshore 

areas adjacent to the shoreline. Subyearling Chinook salmon appear to be more susceptible to 

stranding, accounting for approximately 80% of the fish stranded by vessel wakes along the 

lower Columbia River (Hinton and Emmett 1994; Dawley et al. 1984; Pearson et al. 2006) while 

comprising only 49% of fish captured in beach seine samples along the same shorelines 

(Pearson et al. 2006). Studies indicate juvenile salmon and other fish are at risk of stranding on 

wide, gently sloping beaches because of wakes generated by deep-draft vessel passage 

(Bauersfeld 1977; Hinton and Emmett 1994; Pearson ct al. 2006; ENTRIX 2008). 

Within the lower Columbia River, the presence oftlsh in nearshore channel margin areas varies 

seasonally by species. However, fish are present year-round in the lower Columbia River. 

Previous studies have found that fish also use different areas of the river, depending on age and 

life-history stage, and not all juvenile salmonids appear to be equally susceptible to stranding. 

The majority of stranding appears to occur for subyearling Chinook salmon. Subyearling chum 

and coho salmon are also stranded but in much lower numbers than subyearling Chinook 

salmon. Other salmonids such as juvenile sockeye salmon, pink salmon, steclhead, yearling 

Chinook and coho salmon, do not appear to be as susceptible to vessel wake stranding based on 

their habitat use in the lower Columbia River (Grette Associates 2016). In general, subycarling 

Chinook salmon are present in the shallow river margin during winter, spring, and early 

summer but not during the late summer and fall. NMFS (2012) did not identify ship wake 

stranding as a limiting factor or threat to eulachon. Grette (2016) noted that "overall, eulachon 

arc not expected to be susceptible or exposed to wake stranding risk in the lower Columbia 

River." This is supported by the fact that eulachon were not observed stranded or in beach 

seines conducted by Pearson et al. (2006, in Grette Associates 2016). 

While the scientific literature generally acknowledges the connection between wakes generated 

by deep-draft vessels and fish stranding in the lower Columbia River, the literature has not 

identified methods to quantify the current level of stranding that occurs in the lower Columbia 

River, or resulted in the development of a model that could accurately predict the extent of 

stranding that would be caused by deep-draft vessels within the lower Columbia River. Thus, 

while it is acknowledged that the Proposed Action would increase deep-draft vessel traffic in the 

lower Columbia River, which could contribute to an increase in fish stranding, it would be 

speculative to attempt to quantify fish stranding from vessels associated with the Proposed 

Action, given the uncertainty related to fish stranding and lack of reasonably accurate methods 

to quantify the potential impact within the lower Columbia River. SEPA Rules require the 

consideration of environmental impacts that are likely, not merely speculative (WAC 197-11-

060). In accordance with this requirement, the EIS discloses the potential for impacts related to 

fish stranding due to vessel wakes, but does not quantify the potential impact because the 

worst-case scenario cannot be developed with any reasonable certainty (WAC 197-11-080-

3(a]]. While vessel operations in the lower Columbia River are federally regulated, the Applicant 

has no authority to control or innuence vessel operations, either directly or indirectly. Thus, 

Mt!lennium Bulk Termmals Longview 

Fmal SEPA Envtronmentallmpact Statement 4.7-33 April 2017 
317 


31623.248

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural EnvirOnment: 

ExiSting ConditiOns, Project !Olpacts, 

and Proposed Mitigation Measures 

there are no available mitigation measures associated with vessel operations that the Applicant 

could implement to reduce vessel wake stranding impacts. 

Cause Physical or Behavioral Responses to Vessel Noise 

Vessels transit the Columbia River carrying oil, freight, and materials to and from ports along 

the river. Hemmera Envirochem et al. (2014) measured sound pressure levels (RMS) of one 

Panamax vessel passing Victoria on Vancouver Island, Canada, at a speed of 11.1 knots. Sound 

pressure levels measured were approximately 155 dRRMS at 67 meters, decreasing to less than 

150dbRMS at approximately 110 meters. These source sound levels exceed identified thresholds 

for potential behavioral disturbance for fish and may cause avoidance or other behavioral 

responses (Fisheries Hydroacoustic Working Group 2008). Fish near transiting vessels could 

experience behavioral responses to the vessel noise but would not likely be injured. 

Remove or Alter Aquatic Habitat during Maintenance Dredging 

Maintenance dredging would be scheduled to occur on a multiyear basis, but could occur 

annually or following extreme flow conditions, as needed, to maintain required water depths at 

Docks 2 and 3 and to allow for navigation between the docks and the navigation channel 

(WorleyParsons 2012). Maintenance dredging may require separate local and state permitting 

beyond those permits issued for construction of the Proposed Action. Maintenance dredging 

would follow the same methods and have the same impacts as those described for constructionrelated dredging. 

Generate and Disperse Coal Dust in the Aquatic Environment 

Indirect impacts associated with fugitive coal dust particles would be the same as those 

described previously for operational direct impacts. 

Spill Coal during Rail Transport 

The potential indirect impacts of a coal spill during rail transport from a Proposed Actionrelated train is based on the likelihood of a Proposed Action-related train incident occurring and 

the consequences of an incident were it to occur. 

Chapter 5, Section 5.2, Rail Safety, estimates the number of Proposed Action-related train 

incidents that could occur during coal transport within Cowlitz County and Washington State. In 

Cowlitz County, the predicted number of loaded coal train incidents is approximately one every 

2 years. The predicted number of loaded coal train incidents within Washington State is 

approximately five per year. 

Not every incident of a loaded coal train would result in a rail car derailment or a coal spill. A 

train incident could involve one or multiple rail cars, and could include derailment in certain 

circumstances. The size and speed of the train and the terrain at the location of the incident 

would influence whether the incident resulted in a coal spill that could have impacts on fish. A 

broad range of spill sizes from a partial rail car to multiple rail cars could occur as a result of a 

Proposed Action-related train incident. 

If an incident resulted in a coal spill, impacts on aquatic environments would depend on the 

location of the spill, the volume of the spill, and success of efforts to contain and clean up the 

spill. It is expected that coal spills in the terrestrial and built environments would be easier to 

Milknr11um Bulk fermmals-longviC'W 

Final SEPA Environmental Impact Statement 4.7-34 April2017 
318 


31623.249

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, ProJect Impacts, 

and Proposed M1t1gation Measures 

contain and clean up than spills occurring in an aquatic environment Spills occurring on land 

may have a quicker response time and cleanup in some locations due to their visibility and 

access for cleanup equipment, as compared to spills into aquatic environments. 

Research suggests that the bioavailability of contaminants in coal is limited, and that at levels of 

coal contamination at which estimates ofbioavailable concentrations of contaminants might 

give cause for concern, the acute physical effects are likely to be more harmful than the chemical 

effects (Ahrens and Morrisey 2005]. However, the variable chemical properties of coal could 

conceivably result in contaminant mobility and enhanced bioavailability in the aquatic 

environment. Coal can be a source of acidity, salinity, trace metals, PAHs, and chemical oxygen 

demand (a measure of organic pollutants found in water). Interactions between coal and water 

could alter pH and salinity, release trace metals and PAHs, and increase chemical oxygen 

demand. However, if and how much these alterations occur in the aquatic environment and 

whether the alterations are significant enough to be potentially toxic to aquatic organisms 

depends on many factors, including the type of coal, the relative amount of time the coal is 

exposed to water, dilution, and buffering. 

The following provides a summary of an Aquatic Impact Assessment following the derailment of 

a coal train in Burnaby, British Columbia, Canada in 2014 and subsequent clean-up and recovery 

of the spilled coal. Further information on the spill, efforts to recover the spilled coal, and 

monitoring results that provide here for context of the potential impacts of a coal spill from a 

train derailment. On january 11, 2014, a Canadian Pacific train derailed in Burnaby, resulting in 

the release of metallurgical coals from three rail cars adjacent to and into Silver Creek, 

approximately 350 meters upstream of Burnaby Lake. Based on discussions with regulatory 

agencies, the rail company decided to follow a "precautionary principle" risk-management 

approach, and remove the majority of the coal from the spill site. Coal recovery occurred 

between March 4 and April 2, 2014, using a vacuum-truck system andjor hand tools. A total of 

approximately 143 tons of mixed coal, organic and mineral fines were removed. 

The conclusions at the end of the monitoring completed as part of the Aquatic Impact 

Assessment focused on four major elements: water quality, sediment quality, sediment and 

sediment "leachate"jporewater toxicity, and bioaccumulation potential. Monitoring locations 

were established upstream and downstream of coal recovery areas to provide a control/impact 

comparison. In situ and analytical water quality sampling was conducted between February 28 

and April1, 2014, prior to and during cleanup activities. Other monitoring efforts performed for 

the Aquatic Impact Assessment were completed on two dates, May 30/31 and April 2 (Borealis 

Environmental Consulting 2015). 

The in situ water quality sampling between Februaty 28 and April1, 2014 focused on 

temperature, turbidity, conductivity, pH, dissolved oxygen (DO], salinity and oxidation· 

5 The Proposed Action would handle subbituminous or thermal coal from the Powder River Basin, which is 

different than metallurgical coaL Thermal coal is lower in carbon content and calorific value and higher in moisture. 

Ml!lenn1um Bulk Terminals-Longview 

Fma! SEPA Environmental Impact Statement 4.7-35 Apnf 2017 
319 


31623.250

Cowlitz County 

Washington State Department of Ecology 

Chapter 4, Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed M1tigat1on Measures 

reduction potential (ORP). The analytical sampling program focused on the following 

parameters: 

Alkalinity 

Chloride 

Hardness 

• PAHs 

Sulphate 

Sulphide 

Extractable Petroleum Hydrocarbons • Total and dissolved metals 

Nutrients (NH3, N03, N02, C) 

pH 

Total and dissolved solids (TDS) 

Total and suspended solids (TSS) 

Triton's (2014, in Borealis 2015) compiled in situ and analytical data were compared with 

available Provincial and federal water quality guidelines for the protection of freshwater aquatic 

life. The resultant data indicated that sampled parameters were within applicable water quality 

guidelines, with some exceptions (e.g., that were not deemed to be spill related (CN 2014a, h, in 

Borealis 2015). 

The intent of the monitoring completed for the Aquatic Impact Assessment was to determine the 

potential agents of effect/impact; where those effects/impacts occur; whether chemicals in 

water and sediment occur at concentrations seemed to result in effects/impacts; whether 

chemicals in water and sediment have adverse effects to resident organisms, and; whether those 

chemicals are taken up by organisms (bioaccumulate) over time. 

For water quality, monitoring results indicated that water quality was deemed generally 

consistent with the BC Ministry of Environment (BCME) and/or the Canadian Council of 

Ministers of the Environment (CCME) guidelines protective of aquatic life. 

For sediment quality, site sediment concentrations of three metals (cadmium, copper, and 

nickel) and various PAHs (mainly downstream of the coal recovery area) exceeded BCME 

andjor CCME freshwater sediment guidelines and hackgroundjreference area concentrations. 

The exceedance of site sediment concentrations of the three metals was only noted at one 

location, the Burnaby Lake reference site, which was located upstream of the spill area and not 

affected by the spill. No exceedances were noted in the exposed sites or the other reference 

location. These results support the assertion that the elevated levels of cadmium, copper, and 

nickel at the Burnaby Lake reference site must either he naturally occurring or originate from a 

source other than the coal spill. 

Additional laboratory toxicity tests (of sediment samples) provided more specific information 

regarding the bioavailahility of these parameters and the potential for biological impacts. The 

hioaccumulation potential test results for invertebrates (i.e., represented by freshwater 

oligochaetes) conducted with Silver CreekjBurnaby Lake sediment samples, in comparison with 

both laboratory control samples and reference areas, indicate that PAHs present in specific, 

localized areas downstream of the derailment site have the slight potential to accumulate in 

benthic invertebrates resident in those areas. However, further mitigation of these sediments 

was not recommended, nor was additional study in the form of a Tier 2 assessment,6 as it is not 

anticipated that higher tropic levels would experience any significant adverse effects, and there 

6 The Aquatic Impact Assessment completed a Tier 1 assessment, which focused on risks to water and sediment 

quality, and resident aquatic biota in Silver Creek and Burnaby Lake. A Tier 2 assessment would have addressed 

any potential impacts on higher tropic levels (i.e., fish, birds, amphibians, reptiles) and aquatic habitats further 

downstream of Silver Creek and Burnaby Lake, but was not required or recommended. 

Millennium Bulk Terminals Longv1ew 

Final SEPA Environmental Impact Statement 4.7-36 Apnl2017 
320 


31623.251

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

are unlikely to be impacts beyond the spatial extent assessed during the Aquatic Impact 

Assessment (i.e., downstream of the coal recovery area) (Borealis 2015). 

For sediment and sediment porewater toxicity, test results for the fish, invertebrate, and algae 

tests conducted with Silver Creek/ Burnaby Lake sediment samples in comparison with both 

laboratory control samples and reference areas indicate that samples were nontoxic to all 

species tested in most areas, with the exception of one monitoring site, at which samples yielded 

marginal but statistically significant effects on the survival of benthic macroinvertebrates (i.e., 

midges and amphipods). The results indicate that the sediments located approximately 160 

meters downstream of the spill site have the potential to affect freshwater invertebrates, and 

that PAHs in sediments have a slight potential to bioaccumulate in benthic invertebrates. 

However, the results of the Aquatic Impact Assessment indicate that while there are potentially 

minor impacts, restricted to a very small localized area, the coal in sediments post-recovery is of 

a low volume in relation to the volume of coal spilled and that these sediments should be left in 

place to undergo natural attenuation. Further mitigation of these sediments was not 

recommended (Borealis Environmental Consulting 2015). 

In summary, fugitive coal dust from project operations is not expected to increase suspended 

solids in the Columbia River to the point that there would be a demonstrable effect on fish 

distribution, abundance, or survival, or acute physical effects. Additionally, the potential risk for 

exposure to toxic chemicals contained in coal (e.g., PAHs and trace metals), according to one 

study, would be relatively low because these chemicals tend to be bound in the matrix structure 

and not quickly/easily leached. Any coal particles would be transported downstream by the flow 

of the river and either carried out to sea or distributed over a broad area, further reducing the 

potential for adverse impacts on fish from suspended solids. 

Affect Commercial and Recreational Fishing 

Project-related increases in vessel traffic in the lower Columbia River and associated 

underwater noise could affect the fishing in study area. Increases in vessel traffic could cause 

behavioral responses including quicker migration or avoidance of the navigation channel. The 

70 large commercial vessels anticipated per month under the Proposed Action, would be limited 

to the navigation channel. If adult fish targeted in commercial and recreational fishing were to 

alter behavior in response to underwater noise from vessels, they could avoid the navigation 

lanes or migrate quickly through them. Commercial and recreational fishing vessels in the 

navigation channel would be disrupted and need to move out of the navigation channel when 

large vessels are approaching or present. The Proposed Action would slightly affect commercial 

or recreational fishing access for fishing activities. See Chapter 5, Section 5.4, Vessel 

Transportation, for potential impacts on commercial and recreational fishing vessels associated 

with Proposed Action-related vessels. 

4.7.5.2 No-Action Alternative 

Under the No Action Alternative, the Applicant would not construct the Proposed Action. Current 

operations would continue and the existing bulk product terminal site would be expanded. Any 

expansion activities would not require a permit from the U.S. Army Corps of Engineers (Corps) or a 

shoreline permit from Cowlitz County. Therefore, no construction impacts on aquatic habitats or 

species would be expected to occur as a result of an expansion of the existing bulk production 

terminal under the No-Action Alternative. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental !mpac:t Statement 4.7-37 April 2017 
321 


31623.252

Chapter 4. Natural Env1ronment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.7.6 Required Permits 

The Proposed Action would require the following permits related to fish and fish habitat. 

Shoreline Substantial Development and Conditional Use Permits-Cowlitz County. 

Cowlitz County administers the Shoreline Management Act through its Shoreline Management 

Master Program. The project area would have elements and impacts within jurisdiction of the 

act (Washington Administrative Code (CCC 19.20) and would thus require a Shoreline 

Substantial Development and Conditional Use permit from Cowlitz County and Ecology. 

Critical Areas Permits-Cowlitz County. The Proposed Action would require local permits 

related to impacts on regulated critical areas. Chapter 19.15 of the Cowlitz County Code 

regulates activities within and adjacent to critical areas and in so doing regulates fish and 

wildlife habitat conservation areas (including streams and their buffers), frequently flooded 

areas, and other sensitive areas. 

Construction and Development Permits-Cowlitz County 

The Proposed Action would require fill and grade permits (CCC 16.35) and construction 

permits (CCC 16.05) for clearing and grading and other ground disturbing activities, as well as 

construction of structures and facilities associated with the Proposed Action. 

Clean Water Act Authorization-U.S. Army Corps of Engineers. Construction and 

implementation of the Proposed Action would affect waters of the United States, including 

wetlands. Because impacts would exceed 0.5 acre, Individual Authorization from the U.S. Army 

Corps of Engineers under Section 404 of the Clean Water Act and appropriate compensatory 

mitigation for the acres and functions of Lhe affected wetlands would be required. 

An Individual Water Quality Certification from Ecology under Section 401 of the Clean Water 

Act and a National Pollution Discharge Elimination System permit under Section 402 of the 

Clean Water Act would also be required for construction of the Proposed Action. Additional 

details regarding the permitting process related to the Clean Water Act can be found in the 

SEPA Water Quality Technical Report. 

Rivers and Harbors Act-U.S. Army Corps of Engineers. Construction and implementation 

of the Proposed Action would affect navigable waters of the United States (i.e., the Columbia 

River]. The Rivers and Harbors Act authorizes the Corps to protect commerce in navigable 

streams and waterways of the United States by regulating various activities in such waters. 

Section 10 of the RHA (33 USC 403) specifically regulates construction, excavation, or 

deposition of materials into, over, or under navigable waters, or any work that would affect the 

course, location, condition, or capacity of those waters. 

Hydraulic Project Approval-Washington Department of Fish and Wildlife. The Proposed 

Action would require a Hydraulic Project Approval from WDFW because project elements 

would affect and cross the shoreline of the Columbia River. The approval would consider 

impacts on riparian and shoreline/bank vegetation in issuance and conditions of the permit, 

including for the installation of the proposed docks and piles, as well as for interior culverts or 

other crossings of drainage features. 

Millennium Bulk Termmals-Longview 

Fin a! SEPA Environmental impact Statement 4.7-38 Aprd 2017 
322 


31623.253

Cowlitz County 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.7.7 Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce impacts related to fish 

from construction and operation of the Proposed Action. These mitigation measures would be 

implemented in addition to project design measures. best management practices, and compliance 

with environmental permits, plans, and authorizations that are assumed as part of the Proposed 

Action and described below. 

Additionally, the Corps is conducting a review of the Proposed Action under NEPA, as the lead 

federal agency, and will be consulting under Section 7 of the federal ESA with both the USFWS and 

the NMFS. Additional measures may be identified under one or both of these processes that could 

further reduce potential impacts on fish and fish habitat. 

4.7.7.1 Applicant Mitigation 

The Applicant would implement the following measures to mitigate impacts on fish. 

MM FISH-1. Implement Best Available Noise Attenuation Method for Pile-Driving. 

To minimize underwater noise impacts on fish during pile driving, the Applicant will employ the 

best available noise attenuation methods during pile driving. These methods may include, but 

are not limited to, confined bubble curtain, temporary noise attenuation pile, double-walled 

noise attenuation pile, or other similar technology. The Applicant is currently proposing use of a 

confined bubble curtain, but other methods may be found to be better at attenuating noise 

impacts during the Endangered Species Act Section 7 consultation or by the time construction 

begins. Should other methods in the future prove to attenuate underwater noise better than a 

confined bubble curtain, those methods will be employed. 

MM FISH-Z.Implement a "Soft-Start" Method during Pile-Driving. 

To minimize underwater noise impacts on fish during pile driving, the Applicant will commence 

impact pile-driving using a "soft-start," or other similar method. The "soft-start" method is a 

method of slowly building energy of the pile driver over the course of several pile strikes until 

full energy is reached. This "soft-start" method cues fish and wildlife to pile-driving commencing 

and allows them to move away from the pile-driving activity. 

MM FISH-3. Monitor Pile-Driving and Dredging Activities for Distress to Fish and Wildlife. 

To minimize the potential harm to marine mammals, diving birds, or fish, a professional 

biologist will observe the waters near pile-driving and dredging activities for signs of distress 

from fish and wildlife during these activities. If any fish or wildlife species were to show signs of 

distress during pile driving, the biologist will issue a stop work order until the species are 

recovered, moved, or relocated from the area. The Applicant will immediately report any 

distressed fish or wildlife observed to the appropriate agencies (i.e., Washington Department of 

Fish and Wildlife, U.S. Fish and Wildlife Service, and National Marine Fisheries Service) and 

determine the appropriate course of action. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental impact Statement 4.7-39 April 2017 
323 


31623.254

Cowhtz County 

Washington State Department of Ecology 

MM FISH-4. Conduct Eulachon Surveys. 

Chapter 4. Natural Environment: 

Ext sting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Should in-water work be permitted to occur between December and May, the Applicant will 

conduct advance underwater surveys at least 1 year before in-water work would occur for 

eulachon (adult, eggs and larvae) in those areas where in-water work would occur (i.e., Docks 2 

and 3 and the dredge prism]. Surveys would be conducted starting in December when water 

temperatures are near 40 degrees Fahrenheit ('F] in the lower Columbia River, which appears 

to trigger river entry for adults, and continue through May, when larval eulachon have generally 

hatched and drifted out of the system. Survey design and results would be provided to WDFW 

and N MFS. If adult or larval eulachon or eulachon eggs are observed and in-water work is 

proposed, the Applicant would coordinate with the fish and wildlife agencies on the appropriate 

measures to avoid and minimize impacts on eulachon and implement those measures. 

MM FISH-S. Conduct Fish Monitoring during Hydraulic Dredging Operations. 

The Applicant will develop and implement fish community monitoring in coordination with 

WDFW, USFWS, and NMFS. Fish community monitoring will include surveys conducted prior to 

dredging to identify fish species and life-stages present in the area to be dredged. As part of the 

coordination with WDFW, USFWS, and NMFS, measures to reduce the entrainment of fish 

anticipated to be present during dredging will also be developed, which may include timing 

restrictions for hydraulic dredging. The Applicant will also develop and implement dredge 

entrainment monitoring for hydraulic dredging, in coordination with WDFW, USFWS, and NMFS. 

Dredge entrainment monitoring will involve screening the dredge output at the point of 

discharge (i.e., barge] to determine the number, life-stage, and species offish entrained by 

hydraulic dredging. The information gathered during dredge monitoring will be provided to 

WDFW, USFWS, and NMFS. 

MM·WQ-2. Develop and Implement a Coal Spill Containment and Cleanup Plan. 

To limit the exposure of spilled coal to the terrestrial, aquatic, and built environments during 

coal handling, the Applicant will develop a containment and cleanup plan. The plan will be 

reviewed by Cowlitz County and Ecology and implemented prior to beginning operations. To 

limit the exposure of spilled coal to the terrestrial, aquatic, and built environments during coal 

handling, the Applicant will develop a containment and cleanup plan. The plan will be reviewed 

by Cowlitz County and Ecology and implemented prior to beginning export terminal operations. 

In the event of a coal spill in the aquatic environment by the Applicant during export terminal 

operations, action will be taken based on the specific coal spill, and the Applicant will develop a 

cleanup and monitoring plan consistent with the approved containment and cleanup plan. This 

plan will include water quality and sediment monitoring to determine the potential impact of 

the coal spill on the aquatic habitat and aquatic species. The Applicant will develop the cleanup 

and monitoring plan in coordination with Cowlitz County, Ecology, and the Corps. The cleanup 

and monitoring will be similar in scope to the monitoring completed for the Aquatic Impact 

Assessment (Borealis 2015) associated with a coal spill in British Columbia, Canada in 2014. 

MM CDUST -1. Monitor and Reduce Coal Dust Emissions in the Project Area. 

To address coal dust emissions, the Applicant will monitor coal dust during operation of the 

Proposed Action at locations approved by the Southwest Clean Air Agency (SWCAA). A method 

for measuring coal dust concentration and deposition will be defined by SWCAA If coal dust 

MHienn1um Bulk Termmals-Longv1ew 

Fmal S£PA Enwonmentallmpact Statement 4.7-40 April2017 
324 


31623.255

Cowlitz County 

Chapter 4. Natural Environment 

Existmg Conditions, Prorect Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.7.8 

levels exceed nuisance levels, as determined by SWCAA, the Applicant will take further action to 

reduce coal dust emissions. Potential locations to monitor coal dust concentration and 

deposition will be along the facility fence line in close proximity to the coal piles, where the rail 

line enters the facility and operation of the rotary dumper occurs, and at a location near the 

closest residences to the project area, if agreed to by the property owner(s ). The Applicant will 

conduct monthly reviews of the concentration and deposition data and maintain a record of data 

for at least S years after full operations, unless otherwise determined by SWCAA. If measured 

concentrations exceed particulate matter (PM) air quality standards, the Applicant will report 

this information to SWCAA, Cowlitz County, and Ecology. The Applicant will gather 1 year of 

fence line data on PMZ.S and PMlO prior to beginning operations and maintain the data as 

reference. This data will be reported to SWCAA, Cowlitz County, and Ecology. 

MM CDUST-3. Reduce Coal Dust Emissions from Rail Cars. 

To address coal dust emissions, the Applicant will not receive coal trains unless surfactant has 

been applied at the BNSF Railway Company (BNSF) surfactant facility in Pasco, Washington for 

BNSF trains traveling through Pasco. While other measures to control emissions are allowed by 

BNSF, those measures were not analyzed in this EIS and would require additional 

environmental review. For trains that will not have surfactant applied at the BNSF surfactant 

facility in Pasco, before beginning operations, the Applicant will work with rail companies to 

implement advanced technology for application of surfactants along the rail routes for Proposed 

Action-related trains. 

Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the mitigation measures described above would 

reduce impacts on fish. There would be no unavoidable and significant adverse impacts on fish. 

M11lenn1um Elulk Termmals-longv1ew 

Final SEPA Environmental 1m pact Statement 4.7-41 AprH 2017 
325 


31623.256

Cowlitz County 

Washington State Department of Ecology 

4.8 Wildlife 

Chapter 4. Natural Environment: 

Ex1stmg Condrtions, Project Impacts, 

and Proposed Mitigation Measures 

A rich diversity of wildlife species historically inhabited or used the waters of, and terrestrial habitat 

adjacent to, the Columbia River. Although development along the river has altered the natural 

environment, many wildlife species occur or depend on habitats found in the study area. Wildlife 

includes terrestrial and marine mammals, birds, reptiles, amphibians, and invertebrates, including 

species that are currently protected or proposed for protection under the federal Endangered 

Species Act (ESA) or other federal and state regulations. Fish species are also covered under the ESA 

and are discussed in Section 4.7, Fish, and the SEE' A Fish Technical Report (ICF 2017a). 

This section describes wildlife in the study area. It then describes impacts on wildlife that could 

result from construction and operation of the Proposed Action and under the No-Action Alternative. 

This section also presents the measures identified to mitigate impacts resulting from the Proposed 

Action. 

4.8.1 Regulatory Setting 

Laws and regulations relevant to wildlife are summarized in Table 4.8·1. 

Table 4.8·1. Regulations, Statutes, and Guidelines for Wildlife 

Guideline 

Federal 

Endangered Species Act 

(16 USC 1531 et seq.) 

Migratory Bird Treaty Act of 1918, as 

amended (16 USC 703-713) 

Bald and Golden Eagle Protection Act of 

1940, as amended (16 USC 668-668c) 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact StJtement 

Requires that applicants seeking a federal action, such as 

issuing a permit under a federal regulation (e.g., NEPA, 

Clean Water Act, Clean Air Act) undergo consultation 

with USFWS andjor NMFS. This will ensure the federal 

action is not likely to jeopardize the continued existence 

of any listed threatened or endangered animal species or 

result in the destruction or adverse modification of 

designated critical habitat. NMFS is responsible for 

managing, conserving, and protecting ESA-listed marine 

species. USFWS is responsible for terrestrial and 

freshwater species. Both agencies are responsible for 

designating critical habitat for ESA-listed species. 

Makes it illegal for anyone to take, possess, import, 

export, transport, sell, purchase, barter, or offer for sale, 

purchase, or barter, any migratory bird, or the parts, 

nests, or eggs of such a bird except under the terms of a 

valid permit issued pursuant to Federal regulations. 

Under the regulatory authority of USFWS. 

Prohibits the taking of bald eagles, including their parts, 

nests, or eggs without a permit issued by USFWS, and 

provides criminal penalties for persons who "take, 

possess, sell, purchase, barter, offer to sell, purchase or 

barter, transport, export or import, at any time or any 

manner, any bald eagle ... [or any golden eagle], alive or 

dead, or any part, nest, or egg thereof." 

4.8-1 April 2017 
326 


31623.257

Cowhtz County 

Washington State Department of Ecology 

Regulation, Statute, Guideline 

Marine Mammal Protection Act of 1972, as 

amended (50 CFR 216) 

State 

Washington State Environmental Policy 

Act (WAC 197·11, RCW 43.21C) 

Washington State Growth Management 

Act (RCW 36.70A) 

Washington State Shoreline Management 

Act (RCW 90.58) 

Washington State Hydraulic Code 

(RCW 7755) 

Clean Water Act Section 401 Water Quality 

Certification 

Marinas and Terminals in Freshwater 

Areas (WAC 220·660·160) 

Local 

Cowlitz County SEPA Regulations 

(CCC 19.11) 

Cowlitz County Critical Areas Ordinance 

(CCC 19.15) 

Cowlitz County Shoreline Master Program 

(CCC 19.20) 

City of Longview Shoreline Master 

Program (Ord. 3300) 

City of Longview Critical Areas Ordinance 

(LMC 17.10) 

Notes: 

Description 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Protects marine mammals from "take" without 

appropriate authorization, which may only be granted 

under certain circumstances. NMFS and USFWS enforce 

the act. Animals under the jurisdiction of NMFS may be 

present in the study area. An incidental harassment 

authorization or letter of authorization (specific 

authorization to be determined) may be required 

pursuant to the act. 

Requires state and local agencies in Washington to 

identify potential environmental impacts that could 

result from governmental decisions. 

Defines a variety of critical areas, which are designated 

and regulated at the local level under city and county 

critical areas ordinances. These critical areas may 

include portions of wildlife habitat. 

Requires cities and counties (through their Shoreline 

Master Programs) to protect shoreline natural resources. 

WDFW administers the hydraulic project approval 

program under the state hydraulic code in or near state 

waters. 

Ecology issues permits for in-water construction 

activities to ensure compliance with state water quality 

standards and other aquatic resources protection 

requirements under Ecology's authority. 

Applies to constructing, maintaining, and repairing 

marinas and terminals in freshwater areas and addresses 

fish life concerns. 

Provide for the implementation of SEPA in Cowlitz 

County. 

Requires the County to designate critical areas such as 

wildlife habitat conservation areas. 

Regulates development in the shoreline zone, including 

the shoreline of the Columbia River, a Shoreline of 

Statewide Significance. 

Regulates development in the shoreline, including the 

shoreline of the Columbia River. Adopted in September 

2015. 

Regulates activities within and adjacent to critical areas 

and in so doing regulates fish and wildlife habitat 

conservation areas. 

USC-= United States Code; NEPA:::: National Environmental Policy Act; USFWS =-U.S. Fish and Wildlife Service; 

NMFS =National Marine Fisheries Service; ESA =Endangered Species Act; CFR =Code of Federal Regulations; 

RCW:::: Revised Code of Washington; WDFW:::: Washington Department ofFish and Wildlife; WAC= Washington 

Administrative Code; CCC::;:; Cowlitz County Code; SEPA =State Environmental Policy Act; LMC =Longview 

Municipal Code 

Millennium Bulk Terminals Longview 

Ftna! SEPA Environmental Impact Statement 4.8·2 April2017 
327 


31623.258

Chapter 4_ Natural Environment: 

Cowlltz County 

Washington State Department of Ecology 

Extsting Condittons, Project Impacts, 

and Proposed Mitigation Measures 

4.8.2 Study Area 

The study area for direct impacts on terrestrial species and habitats consists of the project area plus 

the area extending up to 0.5 mile beyond the project area (Figure 4.8-1). This distance 

accommodates noise and visual disturbance thresholds set by the U.S. Fish and Wildlife Service 

(USFWS) for some sensitive species (U.S. Fish and Wildlife Service 2006). 

The study area for direct impacts on aquatic species and habitats includes the main channel of the 

Columbia River and extends approximately 5.1miles upstream and 2.1 miles downstream from the 

upstream and downstream ends of the proposed docks (Docks 2 and 3), respectively (Figure 4.8-1 ). 

The aquatic study area is based on the distances where underwater noise is estimated to reach 

harassment levels (Section 4.8.3.3, Impact Ana(vsis). These distances represent the in-water "line of 

site" distances from the ends of the dock with respect to underwater noise. 

The direct impacts aquatic study area also includes the various surface and storm water ditches, 

ponds, and wetlands found throughout the project area. 

The study area for indirect impacts on terrestrial species includes the rail corridors in Washington 

State that would be used by Proposed Action-related trains to account for potential coal spill and 

wildlife strike impacts (refer to Chapter 5, Section 5.1, Rail Transportation, for rail routes in Cowlitz 

County and Washington State). The study area for indirect impacts on aquatic species includes the 

Columbia River downstream from the project area to the mouth of the river to account for potential 

impacts on marine mammals (Section 4.7, Fish, Figure 4.7.2). 

4.8.3 Methods 

This section describes the sources of information used to evaluate the potential impacts on wildlife 

and wildlife habitat associated with the construction and operation of the Proposed Action and 

No-Action Alternative. 

4.8.3.1 Information Sources 

The following sources of information were used to identify the potential impacts of the Proposed 

Action and No-Action Alternative on wildlife in the study area. A detailed list is provided in the SEPA 

Wildlife Technical Report (ICF 2017b]. 

Two site visits conducted by ICF biologists on April 8, 2014, and December 12,2014 

Reports prepared by Grette Associates for the Applicant as part of the permit application 

materials (Grette Associates 2014a through 2014p) 

National Marine Fisheries Service (NMFS) (2015) west coast region species list 

National Oceanic Atmospheric Administration (2016a) technical guidance for assessing the 

effects of underwater sounds on marine mammals 

USFWS (2015)1nformation, Planning, and Conservation system online database 

Millennium Bulk TemHna!s-Longvtew 

Ftnal SE:PA Environmental Impact Statement 4.8-3 April2017 

31623.259

Cowlitz County 

Washmgton State Department of Ecology 

ExlstmgCond!tiOns

andProposedMltlg

Figure 4.8-1. Boundaries for the Terrestrial and Aquatic Study Areas for Direct Impacts of the Proposed Action 

iEH1i 

M1llenmum Bulk Terminals-long'new Fmal SEPA Environmental Impact Statement 4.8-4 
329 


31623.260

Cowhtz County 

Washmgton State Department of Ecology 

Chapter •L Natural Environment: 

ExiSting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The following sources of information were used to define the existing conditions relevant to wildlife 

and evaluate potential impacts of the Proposed Action and No-Action Alternative in the terrestrial 

and aquatic study areas. A detailed list is provided in the SEPA Wildlife Technical Report. 

Washington Department of Fish and Wildlife (WDFW) Priority Habitat and Species (PHS) 

Statewide List and Distribution for Cowlitz County (Washington Department of Fish and Wildlife 

2015a]; PHS spatial data (Washington Department of Fish and Wildlife 2015b) 

• Washington State Department of Natural Resources (201S) online Herpetological Atlas spatial 

database 

4.8.3.2 Impact Analysis 

Potential wildlife and wildlife habitat that could be affected by the construction and operation of the 

Proposed Action were determined as described below. For more information on these methods, see 

the SEPA Wildlife Technical Report. 

Identifying Resources in the Terrestrial and Aquatic Study Areas 

The following species and habitat characteristics were identified and quantified, where possible. 

Documented species occurrences 

Species likely to occur in the terrestrial and aquatic study areas 

Suitable habitat conditions 

While impacts on wildlife habitat can be quantified, impacts on wildlife species are qualitatively 

described. Wildlife species arc mobile and their presence and abundance in the terrestrial and 

aquatic study areas cannot be quantitatively predicted. For documented occurrences, the focus was 

on wildlife species identified in the WDFW PHS database. Gcospatial PHS data containing mapped 

locations of priority species occurrences and priority habitats were obtained from WDFW 

(Washington Department of Fish and Wildlife 2014). These data were overlaid with the study area 

to determine presence of documented priority species and habitat occurrences. 

• A list of special-status wildlife species was compiled for the study area, consisting of those 

species federally listed as threatened, endangered, proposed, or candidate species; wildlife 

species listed in the WDFW PHS database; and marine mammals. 

• A list of federally listed wildlife species for Cowlitz County was generated from the USFWS iPAC 

online planning tool (U.S. Fish and Wildlife Service 2015). 

A list of state priority species that occur in Cowlitz County was obtained from the WDFW PHS 

program website (Washington Department of Fish and Wildlife 2013). 

A list of federally protected marine mammals that could occur in the study area was compiled 

from the NMFS (2015) West Coast Region website. 

Assessing Noise and Visual Disturbance 

An animal's response to sounds depends on various factors, including noise level and frequency, 

distance and event duration, equipment type and conditions, frequency of noisy events over time, 

slope, topography, weather conditions, previous exposure to similar noises, hearing sensitivity, 

M1llenmum Bulk Termmals-Longview 

Fmal SEPA Envwonmentallmpact Statement 4.8-5 Apnl2017 
330 


31623.261

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

E)(ist!ng Conditions, Project Impacts, 

and Proposed Mitigation Measures 

reproductive status, time of day, behavior during the noise event, and an animal's location relative to 

the noise source (Delaney and Grubb 2003 in Washington State Department of Transportation 

2015). As sound waves spread out from their source, their energy level decreases. This analysis 

considers potential terrestrial sound impacts on wildlife and potential underwater sound impacts 

on diving birds and marine mammals. 

Terrestrial Noise and Visual Disturbance 

USFWS has established terrestrial distance thresholds at which harassment, as defined under ESA, 

may occur for some sensitive species in Washington due to construction activity (U.S. Fish and 

Wildlife Service 2006); these species include the bald eagle (Haliaeetus/eucocephalus), marbled 

murrelet (Brachyramphus marmoratus), Northern spotted owl (Strix occidenta/is caurina), and 

Columbian white-tailed deer (Odocoi/eus virginianus leucurus). Table 4.8-2 presents distances from 

construction activity at which the USFWS predicts these species may experience harassment. Of the 

four species, the bald eagle has the lowest threshold for disturbance and, therefore, the greatest 

protective distance (0.5) mile. Therefore, using a conservative approach, the terrestrial study area 

for the Proposed Action extends 0.5 mile beyond the project area. While this distance is based on the 

bald eagle's sensitivity to noise and visual impacts, it is a reasonable proxy to use for terrestrial 

wildlife species in the absence of similar information for other terrestrial wildlife species. 

Table 4.8-2. Harassment Distances for Federally listed Species in Washington State 

Species 

Bald eagle 

Marbled murrelet 

Northern spotted owl 

Columbian white-tailed deer 

Notes: 

Scientific Name 

Ha/iaeetus/eucocephalus 

Brachyramphus mannoratus 

Activity and Harassment 

Distance 

Noise: 0.25 mile' 

Visual: 0.5 mile 

Pile-driving: 33 feet" 

Visual: 300 feet 

Strix occidenta/is caurina Pile-driving: 180 feet 

Odocoileus virginianus Jeucurus Noise: 0.25 mile 

Noise level disturbance varies on bald eagles. It has been found that visual disturbance is more likely to 

provoke esc<lpe behavior than noise disturbance (U.S. Department ofTrrmsportation 2004). 

h Injury would occur at 202 decibels at this distance (Washington State Department ofTransportation 2015). 

Source: U.S. Fish and Wildlife Service 2006. 

Underwater Noise Disturbance 

For underwater impacts on marine mammals and diving birds due to sound, USFWS and NMFS have 

determined noise-level thresholds that may result in behavioral changes or injury. The distance at 

which these thresholds would be reached for the Proposed Action is based on the practical 

spreading loss model as described by Thomsen et at. (2006). 

N MFS currently provides regulatory acoustic thresholds for assessing the effects of noise exposure 

on marine mammal hearing from impulsive (e.g., impact pile driving) and nonimpulsive (e.g., 

vibratory pile driving) noise sources (Table 4.8-3) [National Oceanic Atmospheric Administration 

2016a). These thresholds represent peak and cumulative sound energy levels that may cause a 

permanent threshold shift (PTS), a physical injury that results in reduced hearing sensitivity, in the 

hearing of five functional hearing groups of marine mammals. 

M1llenmum Bulk Termmals-Longv1ew 

FinaiSEPA Environmental Impact Statement 4.8-6 April2017 
331 


31623.262

Cowl1tz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Condrttons, Project Impacts, 

and Proposed Mitigation Measures 

Table 4.8-3. NMFS Underwater Sound Level Effect Thresholds for PTS Auditory Injury to Marine 

Mammals 

Hearing Group• 

Low-Frequency (LF) Cetaceans 

Mid-Frequency (MF) Cetaceans 

High-Frequency (HF) Cetaceans 

Phocid Pinnipeds 

(Underwater) 

Otariid Pinnipeds 

Notes: 

Impulsive 

Lpk,fL1t: 21 9 d 8 

LE,LF,24h 183 dB 

Lpk,flot. 230 dB 

LE.MF,24h. 185 dB 

Lpk,04L 202 dB 

LE,IIF,24h·155 dB 

L,i<,n.t218 dB 

LP .. PW.24h 185 dB 

Lpk,n~t. 232 dB 

LE.IJW.24h 203 dB 

PTS Onset Acoustic Thresholds 

(Received Level) 

Non-impulsive 

LE,t.P,24h 199 dB 

LE,MF.24h 198 dB 

LE,IIP,24h 173 dB 

LE,PW,24h 201 dB 

LE,OW.24h 219 dB 

a Cetacean examples include whales and dolphins; pinniped examples include se<Jls and sea lions. 

Source: National Oceanic Atmospheric Administration 2016a. 

dB::: decibel; Lpk.tt1t =Peak Sound Pressure Level (unweighted); LF.24h Sound Exposure Level, Cumulative 24 

hour; PW = Phocids in Water; OW= Otariids in Water 

While NMFS' recent technical guidance on underwater noise impacts on marine mammals (National 

Oceanic Atmospheric Administration 2016a) provides guidance on injury effects of noise to marine 

mammals, it does not provide revised guidance on behavioral disturbance of noise to marine 

mammals. NMFS's interim sound threshold guidance for the potential onset of behavioral 

disturbance or harassment to marine mammals from nonimpulsive (vibratory) and impulsive 

(impact) pile driving is 120 decibels root mean square (dB""s) and 160 dB,"s' respectively (National 

Oceanic Atmospheric Administration 2016B). Because there is an extremely low probability of 

cetaceans (e.g., whales and dolphins) using the study area, they are not assessed for underwater 

sound impacts for the Proposed Action. Pinnipeds (e.g., seals and sea lions) may be found in the 

aquatic study area during construction. 

USFWS has established underwater noise level thresholds for behavioral change, auditory injury, 

and nonauditory injury (i.e., barotrauma) to the federally listed marbled murrelet (U.S. Fish and 

Wildlife Service 2011). The underwater effect threshold for behavioral disturbance is 150 dB,,.s; 

auditory injury is 202 dBSEL; and nonauditory injury is 208 dB sel. Underwater noise below 

1 SO dRsEL does not cause injury and is recognized by USFWS as effective quiet (Washington State 

Department of Transportation 2015). While marbled murrelets are not found in the study area, the 

underwater noise thresholds provide some guidance on potential underwater noise impacts that 

could be useful for other diving birds potentially present in the study area. In the absence of any 

federal or state agency criteria for underwater noise impacts on diving birds, these marbled 

murrelet criteria were used to establish distances at which underwater noise due to impact 

pile-driving may affect all diving birds in the aquatic study area. There are currently no vibratory 

pile-driving thresholds identified for marbled murrelet or other diving birds. 

The distance at which underwater noise is reduced to the noise level thresholds described for 

marine mammals and marbled murrelet is calculated using the model currently preferred by USFWS 

and NMFS, the practical spreading loss model described by Thomsen et al. (2006). Up to four piles 

Millenn1um Bulk Termmals-Longview 

Final SEPA Environmental Impact Statement 4.8-7 April 2017 
332 


31623.263

Cowlltl County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

would be driven per day over an 8-hour period. Pile-driving duration and sound source levels 

measured during construction activities similar to those described for the Proposed Action provide 

the basis for calculating the distance at which construction-related noise no longer reaches the 

marine mammal and marbled murrelet noise impact thresholds. Sound attenuation devices would 

he used during impact pile-driving and are predicted to reduce sound levels by up to 9dB 

(Grette Associates 2014a ). Attenuated sound levels are used in the calculation of the underwater 

distances at which murrelets and marine mammals may be affected. The calculated distances are 

presented in Section 4.8.5.1, Proposed Action, Construction-Direct Impacts. Specifics about these 

analysis methods and criteria arc provided in the SEPA Wildlife Technical Report. 

4.8.4 Existing Conditions 

This section describes the existing environmental conditions in the terrestrial and aquatic study 

areas related to wildlife that could be affected by the construction and operation of the Proposed 

Action and No-Action Alternative. 

Extensive modifications of the lower Columbia River (flood control, industrial development, deepdraft vessel traffic) have altered the habitat conditions in the study area available to wildlife species 

using terrestrial and aquatic habitats. Floodplain habitats have been disconnected from the riverine 

environment and in some cases eliminated. The shoreline and riparian environment has been 

substantially altered (armoring and protection, overwater structures, and development), affecting 

habitat in adjacent upland and riparian zones. Industrial and transportation development inland 

have further altered the landscape and habitat conditions, thus changing the biological communities 

associated with these habitats. 

4.8.4.1 Terrestrial Habitat 

The project area comprises a disturbed industrial site developed with roads and industrial buildings 

and relatively small and fragmented vegetated areas primarily in the western portion of the project 

area. Patches of potentially suitable habitat in the undeveloped areas could support foraging and 

cover for small to large mammals, foraging and nesting for a variety of birds, and foraging, breeding, 

and nesting for amphibians (Grette Associates 2014c, 2014d, 2014e, 2014h). A segment of the 

project area where the trestle would be built crosses a levee with managed vegetation and riparian 

shoreline that borders the Columbia River. The vegetated riparian shoreline area is a very narrow 

strip of intermittent forest and shrub habitats that likely provides foraging and cover for small and 

large mammals, foraging and nesting for a variety of bird species, and foraging, breeding, and refuge 

for amphibians and reptiles (Grette Associates 2014d). Habitat types in the terrestrial study area for 

direct impacts include developed (i.e., disturbed], uplands (including riparian), and wetlands land 

cover classifications, which are described in Section 4.6, Vegetation. 

In general, areas to the north-northeast and around to the southeast of the project area (in a 

clockwise direction) are already heavily developed by industrial, commercial, and residential land 

uses that extend to the Cowlitz River and along the Columbia River; immediately upstream of the 

project area, the heavily developed shoreline lacks suitable habitat and wildlife species are not 

present. Because the project area is at the western edge of this development, wildlife dispersal or 

movement through the project area is unlikely because there is no suitable habitat in these 

developed areas into which wildlife could move or disperse. Existing conditions currently hinder 

and create an impediment for wildlife movement toward the City of Longview (i.e., upstream of the 

project area).lmmediately downstream of the project area are uplands, wetlands, and riparian 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.8-8 April2017 
333 


31623.264

Cowhtl County 

Washington State Department of Ecology 

Chapter 4, Natura! Environment 

Ex1stmg Conditwns, Project impacts, 

and Proposed Mitigat1on Me<~sures 

habitats, as well as disturbed areas; habitat conditions for wildlife are less disturbed than the project 

area with fewer structures. Immediately north of the project area is a triangular area of the 

Applicant's leased area bordered by Industrial Way to the south and Consolidated Diking 

Improvement District (CDID] #1 drainage ditches to the east and west. The habitat likely supports 

foraging and cover for small to large mammals (e.g., voles to deer]; foraging and nesting for a variety 

of birds; and foraging, breeding, and refuge for amphibians and reptiles. 

A small portion of Lord lsla11d, in the Columbia River is located within the terrestrial direct impacts 

study area. Previously used for dredged material disposal, the forested island connects to Walker 

Island, downstream, by a narrow band of sand. Between the two islands lies a tidal marsh and 

shallows. With the exception of several transmission towers, the island is undeveloped and contains 

habitat for small and large mammals, and a variety of birds, amphibians, and reptiles. The 

Columbian white-tailed deer is found here and Lord Island is designated as a recovery area. More 

detail on Lord Island wildlife species and habitat is provided in the SEPA Wildlife Technical Report. 

The study area for indirect impacts on terrestrial species and habitats along the rail corridors in 

Washington State consists of many habitat types, which broadly include lowland and montane 

forests, sagebrush prairie, and shrub-steppe. Various species of wildlife are associated with each of 

these terrestrial habitats. See Section 4.8.4.3, Wildlife Species, for more information on these habitats 

and associated wildlife. 

4.8.4.2 Aquatic Habitat 

The aquatic direct impacts study area includes the Columbia River smaller areas of open water, 

including various surface and stormwater ditches and ponds, and wetlands throughout the project 

area (Section 4.3, Wetlands) that provide aquatic habitat. Ditches include those maintained by 

CD!D #1 and privately owned storm water ditches. The Columbia River supports marine mammals, 

fish, birds, and a variety of invertebrates (which serve as forage to support wildlife higher on the 

food chain). Fish are discussed in Section 4.7, Fish, other aquatic species are discussed below. Ponds, 

ditches, and wetlands in the aquatic direct impacts study area could support common species of 

invertebrates and amphibians as well as small mammals and birds. 

Aquatic habitat types in the Columbia River in the aquatic direct impacts study area that could be 

affected by Proposed Action-related dredging and docks include the deepwater zone (DWZ), shallow 

water zone (SWZ), and active channel margin habitats (Figure 4.8-2) (Grette Associates 2014i). The 

active channel margin includes the shoreline and nearshore edge habitat extending from the 

ordinary high water mark (OHWM], or 11.1 feet Columbia River Datum (CRD), into the river to a 

depth of 0 feet CRD. In general, the upper shoreline adjacent to the active channel margin and above 

the OHWM is highly modified by levees and extensive riprap armoring with scattered large woody 

debris. 

The SWZ extends from 0 feet CRD to a depth of -20 feet CRD and is relatively narrow and more 

steeply sloped than the active channel margin, making it unlikely to support aquatic vegetation 

(Grette Associates 2014j]. The benthic (i.e., river bottom] habitats in the DWZ (-20 feet CRD to -45 

feet CRD) of the Columbia River arc subject to strong currents and reduced light penetration with 

depth and, therefore, support little to no aquatic vegetation, 

Millennium Bulk Termmals-Longview 

Final SEPA Environmental Impact Statement 4.8-9 April 2017 

31623.265

CowhtzCounty 

Washington State Department of Ecology 

Figure 4.8·2. Aquatic Habitats in the Direct Impacts Study Area Along the Length of the Project Area 

Millennium Bulk Terminals-Longview 

F1na! SEPA Environmental Impact Statement 

Chapter 4, Natura

Existing Conditions, P

and Proposed Mit1g
335 


31623.266

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4, Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed M1ttgat10n Measures 

Habitat in the aquatic indirect impacts study area includes the open water of the Columbia River 

from the project area to the river mouth that vessels use where marine mammals could be affected 

by vessel traffic. Marine mammals that may be found along the vessel route include sea lions and 

seals, as described in Section 4.8.4.3, Wildlife Species. The aquatic habitats along the navigation 

channel are deepwater habitats that are regularly dredged to depths for safe vessel passage. 

4.8.4.3 Wildlife Species 

Wildlife species likely to be found in the terrestrial direct impacts study area include common 

species of birds, rodents, amphibians, reptiles, and invertebrates. Larger and highly mobile species 

of mammals that arc habituated to developed environments may also be present in the study area, 

including coyote (Canis /atrans), raccoon (Procyon lotor), striped skunk (Mephitis mephitis) and deer 

( Odocoileus sp.). 

Wildlife species likely to be found in the aquatic study areas include common species of birds 

(waterfowl, raptors, shorebirds, marine birds, and passerine birds), California sea lions (Zalophus 

californian us), Steller sea lions ( Eumetopias jubatus), harbor seals (Phoca vitulina ), rodents, frogs, 

salamanders, snakes, lizards, and invertebrates. 

Representative wildlife in the terrestrial indirect impacts study area in Cowlitz County may include 

black-tailed deer, red fox, coyote, raccoon, striped skunk, beaver, Oregon and grey-tailed vole, 

red-tailed hawk, Cooper's hawk, Canada geese, mallard and northern pintail ducks, great blue heron, 

white-breasted nuthatch, chipping sparrow, and a variety of amphibians and reptiles (Commission 

for Environmental Cooperation 2011). A review of PHS data (Washington Department of Fish and 

Wildlife 201Sc) for terrestrial habitats indicates small areas of oak woodlands in a few places along 

the rail line; species associated with this habitat include various woodpeckers, migrant birds, 

reptiles, invertebrates, and the western gray squirrel (Washington Department of Fish and Wildlife 

1998). In addition, two osprey point locations are mapped within 300 feet of the rail line 

(Washington Department of Fish and Wildlife 2015c). No designated critical habitat for federally 

protected species under USI'WS jurisdiction is mapped in the terrestrial environment ncar the rail 

line corridor(s) potentially used to transport coal in Cowlitz County. Beyond Cowlitz County, several 

ecoregions are found between the county and the Washington border, each with various 

representative wildlife species, which may include mule deer, pronghorn antelope, coyote, blacktailed jackrabbit, ground squirrels, American kestrel, red-tailed hawk, western meadowlark, 

savanna sparrow, western diamondback rattlesnake, greater sage-grouse, sage sparrows, sage 

thrashers, pygmy rabbits, black-tailed deer, black bear, beaver, river otter, pileated woodpecker, 

northern goshawk, cougar, wolverine, yellow bellied marmot, bald and golden eagles, Cooper's 

hawk, and osprey, in addition to many other birds, mammals, reptiles, and insects (Commission for 

Environmental Cooperation 2011 ). The largest ecoregion has dry desert and steppe climates, 

marked by hot, dry summers and cold winters, and consists of shrub-steppe vegetation 

communities. Shrub-steppe communities can also support federally protected species, including the 

pygmy rabbit and Spalding's catchRy. WDFW also considers shrub-steppe a priority habitat under 

the PHS program. PHS data (Washington Department of Fish and Wildlife 201Sc) also indicate 

various priority habitats and species along the rail line study area beyond Cowlitz County, including 

talus slope and cliffs/bluffs habitats, bald eagle concentrations and breeding areas, and western 

pond turtle regular occurrence areas. 

Millenn1um Bulk Termm.a!s-Longv1ew 

Fmal SEPA Environmental Impact Statement 4.8-11 Aprtl2017 
336 


31623.267

Cowlltz County 

Washmgton State Department of Ecology 

Site Visit Observations 

Chapter 4. Natural Environment' 

Existmg Conditions, ProJect Impacts., 

and Proposed Mitigati<m Measures 

During the December site visit, two Columbian black-tailed deer (Odocoileus hemionus columbianus) 

were observed in the forested wetland area (Wetland A) in the northwest portion of project area, 

and two nutrias (Myocastor coypus) were observed on the sloped bank of the COlD #1 Ditch 10, on 

the north side of Industrial Way. Other signs of mammal presence were observed during both site 

visits, including several unidentified small mammal scats, a coyote scat along the dike road, a beaver 

(Castor canadensis)-chewed tree in the riparian habitat along the Columbia River, and an 

unidentified species of sea lion heard barking from the Columbia River navigation channel. 

Several common bird species were recorded in the terrestrial direct impacts study area during the 

site visits, including red-winged blackbird (Agelaius phoeniceus), sparrows (sp.), robins (Turdus 

migratoius) and other songbirds, American coot (Fulica Americana], bufflehead (Bucephala albeola), 

mallards (An as platyrhnchos] and other unidentified ducks, Canada geese (Branta Canadensis), 

cormorants (sp.), scaup (sp.], gulls (sp.), and great blue heron (Ardea herodias). A turkey vulture 

(Cathartes aura], red-tailed hawk, kestrel (Falco sparverius], and bald eagle (Haliaeetus 

leucocephalus] were observed flying overhead. During the December 2014 site visit, a small flock of 

Canada geese were observed grazing on wetland grasses in the project area, and several unoccupied 

raptor nests were observed in the forested habitat adjacent to the stormwater ditches on the 

southwest side of the project area and in an electrical tower near the west side of the dike road. 

Grette Associates biologists conducted surveys for the federally threatened and state endangered 

streaked horned lark during the breeding season in 2013 and 2014 in the project area. No streaked 

horned larks were detected; however, 33 other bird species were recorded. A table listing these 

species is included in the SEPA Wildlife Technical Report. A few of these bird species are also 

special-status species, which are addressed in Special-Status Wildlife Species. 

Three species of pinnipeds may be present in the aquatic study areas: harbor seal [Phoca vitulina ), 

California sea lion (Zalophus californian us], and Steller sea lion ( Eumetopias jubatus) (Jeffries et al. 

2000). Because these marine mammals arc all protected under the Marine Mammal Protection Act, 

they are described in more detail in Special-Status Wildlife Species. Various bird species, including 

waterfowl, raptors, and shorebirds are supported by habitats in the aquatic study areas. Freshwater 

insects and other invertebrate species [i.e., mollusks, crayfish) inhabit the upper layers of the 

benthos and provide forage for many species of fish and birds. Fish and their habitats, are discussed 

in Section 4.7, Fish. 

Special-Status Wildlife Species 

Special-status wildlife species are those listed as threatened, endangered, proposed, or candidate 

species under the ESA or are listed as priority species by WDFW. Table 4.8-41ists the special-status 

wildlife species likely to occur in the terrestrial direct impacts study area and aquatic study areas. 

Further descriptions of each species are provided in the SEPA Wildlife Technical Report. Some of the 

PHS listings are not for individuals of a species [PHS Criteria 1) but for vulnerable aggregations 

[PHS Criteria 2) of individuals, such as western Washington non breeding concentrations. 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental !mpoct Statement 4.8-12 April2017 

31623.268

Cowlitz Count'( 

WashingtonStateDepartmentofEcology 

Chapter4. Natu

Ex!stingCondltlons,

andProposedM1tt

Table 4.8-4. Special-Status Wildlife Species that Could Occur in the Terrestrial Direct Impacts Study Area and Aquatic Study A

State 

Priority 

Potential for Species Federal 

Wildlife Species Occurrence" Potential Habitat Criteriab Statusc 

Mammals 

Columbian black-tailed deer Yes Species documented on project area. Limited 3 N/A N

(Odocoileus hemionus habitat on project area. May usc forested portions of 

columbianus) terrestrial study area. 

Columbian white-tailed deer Yes Species documented on project area.e Limited 1 T E 

(Odocoilieus virginiantts forage and cover on project area. Suitable habitat 

leucurus) avallable on Lord Island. 

Harbor seal Yes Present in Columbia River 2 N/A N

(Phoca vitulina) 

California sea lion Yes Present in Columbia River 2 NjA N

(Zalophus californianus) Stellar Sea lion Yes Present in Columbia River 1, 2 sc T 

(Eumetopias jubatus) 

Birds 

Streaked horned lark Possibly Not documented during surveys on project area. 1 T 

(Eremophila alpestris strigata) Potential suitable habitat on Lord Island. 

Bald eagle Yes Forested wetlands could provide roosting habitat. 1 sc 

(Haliaeetus leucocephalus) Suitable habitat on Lord Island. 

Peregrine falcon Possibly Potential foraging habitat 1 sc 

(Fa lea peregrinus) 

I3arrows goldeneye Possibly Open water 2, 3 NjA N

(Bucephala islandica) (non breeding 

concentrJtions 

unlikely) 

Common goldeneye Possibly Open water 2, 3 N/A N

(Bucephala c/angu/a) (non breeding 

concentrations 

unlikely1 

Millennium Bulk Termmals-·Long.,llew 

Fmal SEPA Environmental Impact Statement 4.8·13 

31623.269

Cowl1tzCounty 

Washmgton State Department of Ecology 

Wildlife Species 

Bufflehead 

(Bucephala albeola) 

Waterfowl concentrations 

Vaux's swift 

(Chaetura vauxi) 

Pileated woodpecker 

(D1yocopus pilentus) 

Purple martin 

Potential for 

Occurrencea Potential Habitat 

Yes Open water 

(non breeding 

concentrations 

unlikcly1 

Yes 

Possibly 

Possibly 

Yes 

Suitable habitat documented in terrestrial and 

aquatic study areas 

No large snags for nesting or roosting identified on 

project area but possible in terrestrial study area. 

Possible in forested habitat 

Species documented in terrestrial study area, 

( Progne subis) possible foraging. 

Notes: 

State 

Prio.-ity 

Species 

Criteriab 

2, 3 

2, 3 

Chapter4. Natura

ExlstmgCondltlons,P

andProposedM1tig

Federal 

Statusc 

N/A N

NjA NN/A N/A N/A 

Potential for individuals to occur based on multiple sources, including PHS data, scientific literature, and agency documents; Potential for vulnera

aggregations based on PBS data only. 

State PHS Cnteria 

1- State-listed or candidate species 

2- Vulnerable aggregalion 

3 -commercial, recreational, or tribal importance 

Federal Slat us under the U.S. Endangered Species Act E"" Endangered 

T =-Threatened 

SC =Species of Concern 

rl Stilte Status 

E =Endangered 

T =Threatened 

C =Candidate S:::: Sensitive 

Grctte Associates 2014) 

r Western Washington Non breeding Concentrations 

t: Willapa Hills Audubon Society 2014 

Millennium Elulk Terminals-Longv1ew 

F1nal SEPA ErlVIronmentallmpact Statement 4.8·14 
339 


31623.270

CowlitZ County 

Washmgton State Department of Ecology 

Chapter 4. Natural Environment: 

EXISting Cond1tmns, Project Impacts, 

and Proposed Mitigatron Measures 

The likelihood of each species or vulnerable aggregations occurring in the terrestrial direct impacts 

study area and aquatic study areas is listed as follows (Washington Department of Fish and Wildlife 

2013). 

• Yes (known to occur) 

• Possibly (likely to occur due to presence of suitable habitat, but not documented} 

Unlikely (individuals may occur in the terrestrial or aquatic study areas but vulnerable 

aggregations arc not documented in the PHS database) 

A listing of No does not mean individuals of that species could not occur in the terrestrial direct 

impacts study area or aquatic study areas, it signifies that there are no documented vulnerable 

aggregations (the potential for individuals to occur in the terrestrial or aquatic study areas is 

provided in parenthesis). 

Columbian White-tailed Deer (Odocoilieus virginian us Jeucurus) 

The Columbia River population of the Columbian white-tailed deer is a federally threatened and 

state endangered species. The Columbia River population is one of only two extant populations in 

the United States. The Columbia River population inhabits the lower Columbia River floodplain and 

islands within the river channel. The current range of the Columbian white-tailed deer overlaps with 

the terrestrial direct impacts study area, including Barlow Point and Fisher, Walker, and Lord 

Islands (Washington Department ofFish and Wildlife 2013). 

WDFW has identified specific locations along the Columbia River for recovery of this population 

(Washington Department of Fish and Wildlife 2013}. The nearest recovery location to the study area 

is downstream of Longview, which includes Fisher, Hump, Lord, and Walker Islands (Washington 

Department of Fish and Wildlife 2013). The presence of Columbian white-tailed deer in the 

terrestrial direct impacts study area has been documented. 

Columbian Black-tailed Deer (Odocaileus hemianus calumbianus) 

Columbian black-tailed deer use upland slopes and closed-canopy coniferous forests as they require 

a mix of forest and openings for cover and forage (Washington Department of Fish and Wildlife 

2014). Columbian black-tailed deer have been observed on the project area. 

Streaked Horned Lark (Eremophila a/pestris strigata) 

The streaked horned lark is a federally threatened and state endangered species. Streaked horned 

larks prefer open spaces characterized by flat, treeless landscapes of 300 acres or more, sparse 

grass/forb vegetation, and few or no shrubs. In the lower Columbia River, they were historically 

known to nest on sandy beaches and spits. Now, they can be found nesting on dredge spoil 

depositions. In the project area and the broader terrestrial direct impacts study area, a few small 

areas contain potentially suitable habitat (low vegetative cover and no woody vegetation} that are 

located adjacent to the Columbia River: the closed Reynolds landfill and edges of roadbeds. No 

streaked horned larks were observed during the surveys in the project area during the 2013 and 

2014 breeding seasons (Grctte Associates 2014j, 2014k). 

All critical habitat areas within the lower Columbia River are located downstream from the project 

area, with the exception of one area located upriver. The closest designated critical habitat is on 

Millennium Bulk Terminals-Longview 

Fmal SEPI\ Environmentallmp<lct Statement 4.8-15 April2017 
340 


31623.271

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment· 

Existing Conditions, ProJect Impacts, 

and Proposed Mitigation Measures 

Crims Island, approximately 5 miles downstream of the study area. The only critical habitat 

upstream of the study area is on Sandy Island, Columbia County, Oregon at river mile 76, 

approximately 13 miles upriver [U.S. Fish and Wildlife Service 2012). 

Bald Eagle (Haliaeetus /eucocephalus) 

Bald eagles nest and forage for fish along the lower Columbia River. There are no documented hald 

eagle nests in the terrestrial direct impacts study area and no suitable nesting habitat exists on the 

project area. The nearest documented nest sites arc located approximately 2 miles downstream and 

4 miles upstream of the project area [Washington Department of Fish and Wildlife 2014). The 

terrestrial direct impacts study area provides foraging hahitat for this species. Lord Island also 

provides suitable habitat that may be used by bald eagles [Pacific Coast joint Venture 1994). Bald 

eagles were observed soaring over the terrestrial direct impacts study area during the April 8, 2014 

site visit. Bald eagles were also observed in the terrestrial direct impacts study area during the july 

12, 2013 streaked horned lark surveys [Grette Associates 2014j). 

Peregrine Falcon (Falco peregrinus) 

Peregrine falcons nest on cliff ledges but also use tall manmade structures such as bridges, 

overpasses, buildings, and power plants [Oregon Department of Transportation undated). The 

nearest documented nest location is approximately 3 miles south of the project area [Washington 

Department of Fish and Wildlife 2014). Peregrine falcons nesting within a few miles of the project 

area could use the study area for foraging. 

Waterfowl 

Nonbreeding concentrations of Barrows goldeneye [Bucephala islandica), common goldeneye 

[B. clangula), and bufflehead [B. albeola) are considered priority species [vulnerable aggregation) by 

WDFW. A few individual bufflehead were observed resting on open water [both in wetlands and on 

the Columbia River) in the terrestrial direct impacts study area during the AprilS, 2013 site visit. 

However, within the terrestrial direct impacts study area there are no vulnerable concentrations of 

waterfowl documented by WDFW in the PHS database [Washington Department of Fish and Wildlife 

2014). The nearest documented vulnerable concentration is located approximately 0.25 mile north 

of the terrestrial direct impacts study area. Lord Island and adjoining Walker Island support 

waterfowl and suitable habitat is located just outside of the terrestrial direct impacts study area in 

the tidal marsh area between the islands south of the sand spit (Pacific Coast joint Venture 1994]. 

Purple Martin (Progne subis) 

The purple martin is a state-listed species of concern. Purple martins were observed on the project 

area during the streaked horned lark surveys in july 2013 [Grette Associates 20 14j). Several nest 

sites arc documented in the Coal Creek Slough, approximately 3 to 4 miles downstream of the 

terrestrial direct impacts study area [Washington Department of Fish and Wildlife 2014). 

Vaux's Swift (Chaetura vauxi) 

The Vaux's swift is a state candidate species. They are summer (June to mid-August) residents in 

Washington, migrating north to Washington during the spring [April to late May) and south during 

the fall (mid-August to late September). There is no suitable nesting or roosting habitat on the 

project area; however, other forested areas in the terrestrial direct impacts study area may contain 

Millennium Bulk Terminals Longview 

Final SEPA Environmental Impact Statement 4.8·16 Aplil2017 
341 


31623.272

Cowlitz County 

Chapter 4. Natura! Environment 

Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

suitable habitat. Vaux's swifts may fly through the study area during migrations or while foraging. 

They are commonly observed at the Mint Farm (Willapa Hills Audubon Society 2014) east of the 

study area. 

Pi!eated Woodpecker (Dryocopus pileatus) 

Pileated woodpeckers inhabit mature deciduous or mixed deciduous-coniferous forests. There is no 

suitable nesting habitat in the project area. Limited foraging habit may be available in the forested 

areas onsite. Forested portions of the terrestrial direct impacts study area may contain suitable 

habitat for nesting and foraging. 

Pinnipeds 

Three species of pinniped are found in the lower Columbia River in the aquatic study areas: 

California sea lions (Zalophus californian us), Steller sea lions (Eumetopias jubatus), and harbor seals 

(Phoca vitulina). Sea lions use the lower Columbia River for foraging on fish and resting at haul out 

sites. Breeding areas (both mating rookeries and pupping sites) for California sea lions are located in 

California and Mexico. Steller sea lions are primarily present during the nonbreeding season. 

Surveys conducted in the 1990s identified four haulout sites used by sea lions he tween the mouth of 

the Columbia River and its confluence with the Cowlitz River (Jeffries et al. 2000), which is 

approximately 4.5 miles upstream of the project area. There are no documented sea lion haul out 

sites in the aquatic direct impacts study area, but individuals likely swim through the aquatic direct 

impacts study area as they migrate up and down the Columbia River. Harbor seals are the most 

numerous of the pinnipeds found in Washington waters. Like sea lions, they forage and rest along 

the lower Columbia River, with dozens ofhaulout sites identified between the mouth of the river 

and the aquatic direct impacts study area. There are no documented seal or sea lion haulout sites in 

the aquatic direct impacts study area, but individuals swim through the aquatic direct impacts study 

area as they migrate up and down the Columbia River. 

4.8.5 Impacts 

This section describes the potential direct and indirect impacts related to wildlife and wildlife 

habitat that could result from the construction and operation of the Proposed Action and the 

No-Action Alternative' The Applicant identified the following design features and best management 

practices to be implemented as part of the Proposed Action, and these were considered when 

evaluating potential impacts of the Proposed Action. 

The Applicant would design the trestle to be long and narrow, and at a height above OHWM to 

minimize shading in shallow water areas. From shore, the trestle would measure 24 feet in 

width for 700 feet, and 51 feet in width for the final 1 SO feet. The top of the deck would be +22 

feet CRD and the bottom of the deck+ 19.5 feet CRD. Therefore, the bottom of the deck would be 

more than 8 feet above OHWM. This design would minimize overall impacts in shallow water, 

including impacts on habitat connectivity along the shoreline. 

The Applicant would locate Docks 2 and 3 entirely in deepwater habitat to distance the 

structure and terminal activities from shallow water areas. 

1 Acreages presented in the impacts analysis were calculated using geographic information system (GIS), thus, 

specific acreage of impacts are an estimate of area based on the best available information. 

Millennium Bulk Termma!s Longview 

Fmal SEPA Environmental Impact Statement 4.8-17 Apnl2017 
342 


31623.273

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The Applicant would locate the berthing area at depths of at least -20 feet CRD to avoid habitat 

conversion from shallow to deepwater during dredging. 

The Applicant would locate the berthing area in deepwater closer to the navigation channel to 

minimize the scope of future maintenance dredging. 

The Applicant would direct lighting for the Proposed Action downward or at structures, and 

would incorporate shielding to avoid spillage of light into aquatic areas. 

The Applicant would include a pinpoint light source at the end of the shiploading boom, aimed 

straight down into the ship hold area to avoid a broader beam that could cause light spillage. 

The Applicant would remove the piles associated with the pile dikes slowly to minimize 

sediment disturbance and turbidity in the water column. 

Prior to pile extraction, the Applicant would break the friction between the pile and substrate to 

minimize sediment disturbance. 

4.8.5.1 Proposed Action 

This section describes the potential impacts that could occur in the terrestrial and aquatic study 

areas as a result of the construction and operation of the Proposed Action. 

Construction activities that could affect wildlife include the following. 

Permanent removal of habitat and wildlife mortality in terrestrial and aquatic habitats 

associated with clearing and construction of the proposed terminal. 

Wildlife displacement and mortality associated with clearing and construction of the coal export 

terminal. 

Noise and visual impacts on terrestrial and aquatic wildlife associated with operation of 

construction equipment, general construction related noise and pile driving. 

• Spills and leaks associated with construction equipment and materials. 

Operation activities that could affect wildlife include the following. 

Noise impacts on wildlife associated with operations such as train movements, transfer of coal, 

and general industrial operations. 

• Spills and leaks from trains, vehicles, or equipment. 

• Vessel strikes of marine mammals. 

Underwater vessel noise impacts on pinnipeds and diving birds. 

• Removal of habitat during maintenance dredging affecting wildlife and habitat. 

Coal dust deposition affecting terrestrial, wetland, and aquatic habitats and wildlife. 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

Mr!lennium Bulk Terminals Longv1ew 

Fin a! SEPA Environmental Impact Statement 4.8-18 April 2017 
343 


31623.274

CowlitZ County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Temporarily Alter or Permanently Remove Terrestrial Habitat 

Construction of the Proposed Action would result in the permanent loss of terrestrial wildlife 

habitat in the study area (Table 4.8-5 and Section 4.3, Wetlands). Construction grading and 

clearing would permanently remove 201.50 acres of habitat, that is mostly disturbed vegetation. 

As described in Section 4.8.4.1, Terrestrial Habitat, patches of potentially suitable upland habitat 

in the undeveloped areas in the western portion of the project area could support foraging and 

cover for some wildlife, including the Columbian white-tailed deer. 

Table 4.8-5. Permanent Terrestrial Habitat Loss by Type in the Project Area 

Habitat Type 

Disturbed 

Upland 

Wetland 

Total 

Notes: 

Direct Impact Area (acres) 

151.14 

26.26' 

24.10 

201.50 

Includes 0.05 acre of riparian forest. Further information on the different vegetation components of 

upland is found in Section 4.6, Vegetation. 

Approximately 24.1 acres of wetland would be permanently filled resulting in permanent loss of 

wetland function. Based on Ecology's Washington State Wetland Rating System for Western 

Washington, three of the five wetlands in the project area were determined to have moderate 

habitat function and two wetlands were determined to have low habitat function. Wildlife 

functions in these wetlands are likely limited to temporary use by passerine birds and 

waterfowl for foraging, breeding, and refuge. Mitigation would be required to compensate for 

the loss of these wetlands and their habitat functions as part of the Clean Water Act Section 401 

and Section 404 permit process. Habitat functions of wetlands in the project area are described 

in more detail in Section 4.3, Wetlands. 

Temporary impacts on aquatic habitat could occur through soil disturbance, stockpiling, and 

erosion, causing an increase in total suspended sediments in the Columbia River and freshwater 

ditches on and adjacent to the project area. These types of impacts would be avoided or greatly 

reduced with the implementation of construction hest management practices, avoidance and 

minimization measures, and compliance with permit requirements, such as those associated 

with the required 401 Water Quality Certification and hydraulic project approval. Section 4.5, 

Water Quality, describes the potential impacts of the Proposed Action on water quality. 

Cause Wildlife Displacement or Mortality 

Wildlife present in the project area during construction activities could be displaced, injured, or 

killed by construction vehicles or equipment, placement of construction materials on the 

ground, or ground disturbance such as preloading activities. Approximately 151 acres (75%) of 

the terrestrial habitat in the project area are currently developed and wildlife would likely not 

be present in these areas due to the lack of suitable habitat. The remaining 50 acres comprise 

suitable but degraded habitat and animals inhabiting these areas during construction activities 

Millen mum Bulk Termmals Longv1ew 

finJI SEPA Environmental Impact Stdtement 4.8-19 Aprif 2017 
344 


31623.275

Cowlitz County 

Washmgton State Department of Ecology 

Chapter 4. Natural EnvirOnment 

Ex1sting Conditions, Project Impacts, 

and Proposed Mitigation Measures 

could be affected. Highly mobile wildlife species, such as larger mammals and birds, would likely 

leave the project area during construction activities and move to adjacent areas of suitable 

habitat. Some less mobile species, such as burrowing mammals, reptiles, amphibians, and 

insects, could be injured or killed. Because these potential mortality impacts would only occur 

during construction and these species would be able to reproduce rapidly and in adjacent 

suitable habitats, the losses due to mortality would not be expected to affect the viability or 

fitness of the species on the population scale. 

Cause Temporary Physical or Behavioral Responses to Construction Noise and Human 

Activities 

Construction of the Proposed Action could affect both terrestrial and aquatic wildlife because of 

increased human presence, elevated noise levels, and/or ground-disturbing activities. While 

wildlife in and around the terrestrial and aquatic study area are likely habituated to human 

activity and noise levels associated with industrial and developed areas, noise levels at the 

project area would increase above ambient levels for the duration of construction, especially 

during impact pile-driving activities associated with dock and trestle construction. 

Wildlife species exhibit different hearing ranges and all wildlife do not respond the same way to 

similar sound sources or levels. Wildlife response to sounds depends on numerous factors, 

including noise level. frequency, distance and event duration, equipment type and conditions, 

frequency of noise events over time, slope, topography, weather conditions, previous exposure 

to similar noises, hearing sensitivity, reproductive status, time of day, behavior during the noise 

event, and the animal's location relative to the noise source [Delaney and Grubb 2003 in 

Washington State Department of Transportation 2015). Therefore, an animal's reaction to 

elevated noise levels could range from mild disturbance with little or no reaction to escape 

behavior, which would displace individuals by forcing them to abandon the area of elevated 

noise levels, potentially resulting in significant impairment or disruption of normal behavioral 

patterns. Such displacement and disruption of behavior could reduce productivity and survival 

of individuals as the individual would likely expend more energy relocating to new suitable 

habitat, and would be less familiar with new habitat areas and at an increased risk of predation, 

potentially limiting survival of individual adults or offspring (e.g., abandoning young). These 

impacts would be exacerbated where there is no adjacent or nearby suitable habitat that is 

easily accessible. In addition, visible construction equipment, materials, and an increase in 

infrastructure could cause displacement because some species would avoid areas within the 

line-of-sight of construction equipment operations. 

Dredging and the associated noise could affect birds, including streaked horned larks, during the 

nesting season. No studies specifically identify noise sensitivities of the streaked horned lark 

However, noise sensitivity studies of the marbled murre let found that marbled murrelets are 

very sensitive to underwater noise such as pile driving and to prolonged terrestrial noise that 

lasts longer than 10 to 15 minutes (Mountain Loop Conservancy 201 OJ. Shorebird sensitivities 

are more closely related to those of sea lions because they spend most of their time above water 

and generally stay in the shallow water while hunting (Science Applications International 

Corporation 2011). Dredging activities have been shown to generate noise of72 decibels in 

commercial or industrial areas (Epsilon Associates, Inc. 2006). Noise levels in this range could 

disturb birds, but would not likely result in injury. 

MJllenn1um Bulk Termmals Longview 

Final SEPA Environmental Impact Statement 4.8-20 April2017 
345 


31623.276

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Construction-related noise impacts and the presence of construction equipment and materials 

would be temporary, occurring over the estimated 6-year construction period. A lower density 

of development northwest of the terrestrial study area could connect to potentially suitable 

wildlife habitat where wildlife could relocate during and after construction. Because wildlife in 

the terrestrial study area are likely habituated to noise levels associated with industrial areas 

and are generally mobile, construction-related noise could affect individuals of a species, but 

would not affect a species' whole population or the overall fitness of a population. 

Temporarily Alter or Permanently Remove Aquatic Habitat 

Construction of the Proposed Action would result in the physical alteration or permanent loss of 

approximately 77.37 acres of aquatic habitat in the aquatic study area. Dredging to provide 

vessel access to Docks 2 and 3 would alter approximately 48 acres of benthic deepwater habitat 

and construction would result in the permanent loss of approximately of 5.17 acres of aquatic 

habitat (ditches and ponds) throughout the terrestrial habitats of the project area and 0.10 acre 

(4,312 square feet) of Columbia River bottom for the placement of 610 piles (7.07 square feet 

per pile multiplied by 610 piles). Additionally, the Proposed Action would result in the 

permanent loss of 24.1 acres of wetland babitat (refer to Section 4.3, Wetlands, for further 

information). 

These open areas of freshwater and wetlands support common species of amphibians and may 

be used by mammals and birds. Mammals and birds are highly mobile species and are expected 

to leave the vicinity during construction activities. Some mortality of amphibians could occur; 

however, these species typically reproduce rapidly and any losses due to mortality would not be 

expected to affect the viability or fitness of the species' populations. 

The placement of 610 piles would permanently remove benthic habitat in the Columbia River, 

where the areas within each pile footprint would cease to contribute toward primary or 

secondary productivity. Benthic, epibenthic, or infaunal organisms within the pile footprint at 

the time of pile driving would likely perish. 

Construction of the docks and trestle would also create 5.13 acres of new overwater surface 

area. While these overwater structures would be constructed on top of the 610 piles (i.e., no 

physical placement of overwater structures within the water column or substrate), the presence 

of the overwater structures would limit light penetration into the aquatic environment and 

affect primary productivity. 

Existing creosote-treated piles associated with two pile-dikes would be removed using vibratory 

extraction or direct-pull methods (Grette Associates 2014n). Removing creosote-treated 

woodpiles from the Columbia River could improve water quality over the long term; however, 

removing the piles could cause temporary, short-term increases in suspended sediments, 

short-term water contamination, and long-term sediment contamination from creosote released 

during extraction or long-term exposure to the water column. 

Creosote and associated chemicals, particularly those that are water-soluble and that persist in 

the water column are known to bioconcentrate in many aquatic invertebrates (Eisler 1987; 

Brooks 1997). Creosote contains a mixture 200 to 250 compounds, with primary components 

composed of polycyclic aromatic hydrocarbons (PAHs) (Brooks 1997; National Marine Fisheries 

Service 2009). PAHs are known to be toxic to aquatic organisms including invertebrates and fish 

and can cause sublethal and lethal effects (Eisler 1987; Brooks 1997). Most of the components of 

Mil!ennium Bulk Termmals Longv1ew 

F-inal SEPA Enwonmenta! Impact Statement 4.8·21 April 2017 
346 


31623.277

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment 

Existing Conditions, Project !rnpacts, 

and Proposed Mitigation Measures 

creosote are heavier than water and sink in the water column. PAHs from creosote accumulate 

in sediments and are likely to persist at the site of pile removal or wherever they settle until 

they degrade (National Marine Fisheries Service 2009). However, PAHs from sediment are Jess 

bioavailable to aquatic species and, thus, these organisms are not likely to bioaccumulate PAHs 

from sediments (Brooks 1997). Over the long term, the source of creosote would be removed or 

capped by the sediment falling into the hole left by the extracted pile. Water quality would 

improve, the concentration of creosote in the sediment would be expected to decrease, and the 

potential pathway of exposure for wildlife through contamination of prey would be reduced. 

Dredging would permanently alter a 48-acre area of deepwater habitat by removing 

approximately 500,000 cubic yards of benthic sediment. Within the proposed dredge prism (i.e., 

extent of dredged area), the amount of deepening would vary based on existing depths, from no 

removal up to a depth of approximately 16 feet of removal. Permits for the Proposed Action, 

including dredging, would require site-specific sediment sampling to characterize the proposed 

dredge prism and ensure compliance with a dredged materials management plan. 

Most bottom-dwelling benthic organisms are stationary or slow moving and would likely perish 

during dredging. Benthic organisms typically recolonize disturbed areas within 30 to 45 days. 

Dredging activities could also affect pinnipeds through collisions with vessels and dredgerelated increases in turbidity. Collisions are possible but unlikely given the slow speeds of 

dredging vessels. Information on turbidity is limited; however, existing research indicates that 

dredge-related turbidity is not likely to cause substantial impacts on pinnipeds since they often 

inhabit naturally turbid or dark environments and are likely to use senses in addition to their 

vision (Todd et al. 2014). Noise could cause masking and behavioral changes but is unlikely to 

cause auditory damage to pinnipeds (Todd et al. 2014). Localized, temporary increases in 

turbidity would not likely cause long-term or negative impacts on pinnipeds. 

Cause Temporary Physical or Behavioral Responses to Underwater Construction NoisePinnipeds 

Installation of structural steel piles to support Docks 2 and 3 would generate underwater noise 

during pile-driving (Grette Associates 2014b) that could exceed the harassment thresholds 

described in Section 4.8.3.2, Impact Analysis, Assessing Noise Impacts. Pile installation and the 

applicable work windows would be provisioned in the Hydraulic Project Approval. Pile 

installation would likely occur over two in-water work window construction periods due to the 

number of in-water piles required for the dock and trestle. 

Impact Pile-Driving 

PTS auditory injury could occur on phocid pinnipeds (e.g., harbor seals] and otariid pinnipeds 

within 15,220 feet and l.1 09 feet, respectively, of active impact pile driving without any sound 

attenuation in place. With implementation of a bubble curtain to attenuate noise levels during 

impact pile driving, there would be a reduction of at least 9 decibels at the source, which would 

decrease the distance to phocid and otariid PTS injury to 3,822 feet and 279 feet, respectively. 

Because the Columbia River is approximately 3,281 feet wide at the point where pile-driving 

would occur, and the aquatic direct impacts study area extends 5.1 miles upstream of the project 

area and 2.1 miles downstream of the project area, there would be a large area of the river 

within the aquatic study area that pinnipeds could use and avoid exposure to the area where 

underwater noise reaching PTS injury levels may occur. Based on the seasonal use patterns for 

Mdlenn1um Bulk Termmals-Longv!eW 

Final SEPA Env1ronmentallmpac-t Statement 4.8-22 Apnl2017 
347 


31623.278

Cowlitz County 

Washington State Department of Ecology 

Chapter 4_ Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

California sea lion, Steller sea lion, and harbor seals in the study area, presence of individual 

pinniped species during impact pile driving would be unlikely. 

It is estimated that behavioral disturbance could occur for both phocid and otariid pinnipeds up 

to 17,756 feet from impact pile driving without any sound attenuation devices. With 

implementation of a bubble curtain to attenuate sounds, it is estimated that there would be a 

reduction of at least 9 decibels at the source, which would decrease the distance to pinniped 

behavioral disturbance to 4,459 feet from each pile as it is driven. In the event these pinnipeds 

pass through the study area during impact pile driving, they would be exposed to sound in 

excess of the behavioral disturbance threshold. Based on the seasonal use patterns for California 

sea lion, Steller sea lion, and harbor seals in the study area, presence of individuals of these 

species during impact pile driving would be unlikely. 

Vibratory Pile-Driving 

PTS auditory injury could occur for phocid and otariid pinnipeds within 331 feet and 23 feet, 

respectively, of active vibratory pile driving. Because the Columbia River is approximately 

3,281 feet wide at the point where pile driving would occur, there would be a wide area of the 

river that pinnipeds could use in the aquatic study area and avoid exposure to the area where 

underwater noise reaching PTS injury levels may occur. Based on the seasonal use patterns for 

California sea lion, Steller sea lion, and harbor seals in the study area and based on the proposed 

work window for in-water pile installation, presence of individual pinnipeds during pile driving 

would be unlikely. ln addition, the threshold distances assume pinnipeds would be exposed to 

1.2 hours of elevated noise during a day of vibratory pile-driving (four piles/day, 20 

minutes/pile). Given the adherence to in-water work windows, the short impact distance, and 

the ability of pinnipeds to travel outside the area of elevated underwater noise, thereby 

reducing the duration of their exposure, pinnipcds that could be present in the study area are 

unlikely to experience PTS auditory injury due to vibratory pile-driving. 

Behavioral disturbance due to vibratory pile driving could occur for both phocid and otariid 

pinnipeds up to 5.1 miles upstream from the project area and 2.1 miles downstream from the 

project area. These disturbance distances are defined by bends in the Columbia River that 

effectively intercept the underwater noise that would otherwise result in the disturbance area 

extending 72 miles. Sound travels in straight lines, and can only travel up to the distances of 

these river bends. Therefore, behavioral disturbance from vibratory pile driving could only 

occur within this area (Figure 5.8-1 ). Sound attenuation devices are not applicable to vibratory 

pile driving methods so no reduction in noise level is anticipated. Based on seasonal use 

patterns of the study area by pinnipeds and the proposed in-water work window for pile 

installation, pinnipeds are unlikely to be present during pile driving. 

Cause Temporary Physical or Behavioral Responses to Underwater Construction NoiseDiving Birds 

Potential impacts on diving birds in the Columbia River are most likely to occur due to 

underwater noise generated during in-water installation of piles; specifically impact 

pile-driving, which would generate the loudest and most intense underwater noise during 

construction. As described in the previous Assessing Noise and Visual Disturbance section, 

USFWS-established noise thresholds for the marbled murrelet were used to assess underwater 

noise impacts on all diving birds in the Columbia River. Based on these thresholds and assuming 

Millennium Bulk rermina!s-longview 

Fmal SEPA Environmental Impact Statement 4.8-23 April2017 
348 


31623.279

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Envtronment 

Existmg Condltlons, Project Impacts, 

and Proposed M1t1gat!on Measures 

noise attenuation devices will reduce sound source levels by 9 dB, behavioral disturbance may 

occur at distances less than 20,701 feet, auditory injury may occur at distances less than 387 

feet, and barotrauma injury may occur at distances less than 154 feet from in-water pile-driving. 

The reaction of a diving bird that is exposed to underwater noise levels above 150 dBRMs (but 

below 202 dBm) could range from mild disturbance to escape behavior, which would displace 

individuals by forcing them to abandon the area of elevated noise levels, potentially resulting in 

impairment or disruption of normal behavioral patterns. Such displacement and disruption of 

behavior could interrupt feeding and diving, and reduce productivity and survival of individuals, 

as the individual would likely expend more energy relocating to a new area. However, impact 

pile-driving noise impacts would be temporary, occurring over 2 years during the approved 

in-water work window, and it is not anticipated that underwater impact pile-driving noise 

would affect the overall fitness of diving bird populations. 

Cause Temporary Spills and Leaks that Affect Species or Habitat 

Construction activities would occur on land as well as in and over waters of the Columbia River. 

Construction activities could result in temporary water quality impacts from the release of 

hazardous materials such as fuels, lubricants, hydraulic fluids, or other construction- related 

hazardous materials. Spills could affect aquatic and terrestrial wildlife near the discharge point, 

potentially affecting the respiration, growth, or reproduction of these species, or contaminating 

their habitat. The risk of a spill or release of hazardous materials is low because of the 

requirements associated with the handling, transfer, use, and storage of most 

construction-related hazardous materials. The potential risks, impacts, and mitigation measures 

related to impacts on water quality arc addressed in Section 4.5, Water Quality. The potential for 

these types of impacts would be avoided or greatly reduced given protective measures to guard 

against these risks, including construction best management practices, avoidance and 

minimization measures, in-water work restrictions, and compliance with regulatory and permit 

requirements, such as those associated with 401 Water Quality Certification. However, a spill 

may have potential impacts on wildlife based on the location, weather conditions, and type and 

amount of material. 

Construction-Indirect Impacts 

Construction of the Proposed Action would not result in indirect impacts on wildlife or wildlife 

habitat because construction of the coal export terminal would be limited to the project area. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Cause Periodic Spills or Leaks that Contaminate Terrestrial or Aquatic Habitat 

Routine operations at the project area could result in spills or leaks of hazardous materials from 

vehicles, trains, or equipment. Contaminants could affect terrestrial habitat as well as water 

quality, thus degrading aquatic habitat in the Columbia River and drainage ditches in the aquatic 

study area. Training, oil discharge prevention briefings, and regulatory compliance would 

reduce these risks and the potential for impacts. Additional measures are outlined Section 4.5, 

Water Quality, and Chapter 3, Section 3.6, Hazardous Materials. 

MJI!enmum Bulk Tcrmmals-Longview 

FinaiSEPA Environmental Impact Statement 4.8-24 April2017 
349 


31623.280

CowlitZ County 

Washington State Department of Ecology 

Cause Periodic Physical or Behavioral Reponses to Noise 

Chapter 4. Natural Environment 

Existing Conditions, ProJect Impacts, 

and Proposed Mitigat1on Measures 

Operations could result in increased terrestrial noise, which could affect wildlife by causing 

disturbance or avoidance behavior. Species present in the terrestrial study area are likely 

habituated to the elevated noise levels associated with industrial, commercial, and residential 

uses. These species are generally mobile and avoid disturbing noise levels and human activities. 

Noise generated by the Proposed Action would be similar to the existing, adjacent land uses and 

would not have a measurable impact on wildlife species in the terrestrial study area. 

Generate and Disperse Coal Dust in Terrestrial and Aquatic Habitats 

Coal dust and fugitive coal particles could be generated during operation of the Proposed Action 

through the movement of coal onto the project area, around the project area, and onto vessels. 

Coal dust could also become airborne from the large stockpiles that would be located within the 

project area. 

The potential extent and deposition rate of coal dust particles less than 75 microns in diameter 

was modeled as part of the analysis conducted relative to air quality. Based on this modeling, the 

highest rate of coal dust deposition would be expected in the immediate area surrounding the 

coal export terminal, but smaller particles would also be expected to deposit in a zone extending 

around and downwind of the terminal. Deposition rates could range from 1.99 grams per square 

meter per year (g/m'/year) adjacent to the project area, gradually declining to less than 

0.1 g/m'jyear within a few thousand feet from the project area and 0.01 gjm2 jyear 

approximately 2.4 miles from the project area. Based on the models, the zone of deposition 

would extend primarily northwest of the project area and over the Columbia River. Deposition 

rates of less than 0.1 g/m'jyear are projected to occur over the forested habitats of Lord Island 

within the study area, with declining concentrations across the island and to the south and west 

toward Walker Island. 

Windborne coal could potentially affect wildlife through physical or toxicological means. Coal 

particles could affect aquatic wildlife in a manner comparable to any form of suspended 

particulates, such as tissue abrasion, smothering, obstruction, or damage to feeding or 

respiratory organs, and other effects resulting from reduced quantity or quality of light. Another 

potential manner in which coal could affect aquatic wildlife is through coalleachates. Unburnt 

coal can be a source of acidity, salinity, trace metals, hydrocarbons, chemical oxygen demand, 

and potentially macronutrients if they leach from the coal matrix into aquatic habitats. Toxic 

constituents of coal include PAHs and trace metals, which are present in coal in variable 

amounts and combinations dependent on the type of coal. Some PAHs are known to be toxic to 

aquatic animals and humans. Metals and PAHs could also potentially leach from coal to the pore 

water of sediments and be ingested by benthic-feeding organisms, providing a mechanism for 

subsequent ingestion by other organisms throughout the food chain. However, the low aqueous 

extractability and bioavailability of the contaminants minimizes the potentially toxic effects. 

Spill Coal during Operations of the Proposed Action 

Direct impacts on the natural environment from a coal spill during operations of the Proposed 

Action could occur. Direct impacts resulting from a spill during coal handling at the coal export 

terminal would likely be minor because the amount of coal that could be spilled would be 

relatively small. Also, impacts would be minor because of the absence of terrestrial and aquatic 

Millennium Bulk Terminals-longview 

Final SEPA Environmental Impact Statement 4.8-25 April2017 
350 


31623.281

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

environments in the project area and the contained nature and design features of the terminal 

(e.g., enclosed belt conveyors over water, transfer towers, and shiploaders ). Potential physical 

and chemical effects of a coal release on the aquatic and terrestrial environments that occur 

adjacent to the terminal are described below. 

A coal spill could have physical effects on aquatic environments, including abrasion, smothering, 

diminished photosynthesis, alteration of sediment texture and stability, reduced availability of 

light, temporary loss of habitat, and diminished respiration and feeding for aquatic organisms. 

The magnitude of these potential impacts would depend on the amount and size of coal particles 

suspended in the water, duration of coal exposure, and existing water clarity (Ahrens and 

Morrisey 2005). Therefore, the circumstances of a coal spill, the existing conditions of a 

particular aquatic environment (e.g., pond, stream, wetland), and the physical effects on aquatic 

organisms and habitat from a coal spill would vary. Similarly, cleanup of coal released into the 

aquatic environment could result in temporary impacts on habitat, such as smothering, altering 

sediment composition, temporary loss of habitat, and diminished respiration and feeding for 

aquatic organisms. The recovery time required for aquatic resources would depend on the 

amount of coal spilled and the extent and duration of cleanup efforts, as well as the environment 

in which the incident occurred. It is unlikely that coal handling in the upland portions of the coal 

export terminal would result in a spill of coal that would affect the Columbia River. This is 

unlikely because the rail loop and stockpile areas would be contained, and other areas adjacent 

to the coal export terminal are separated from the Columbia River by an existing levee, which 

would prevent coal from being conveyed from upland areas adjacent to the rail loop to the 

Columbia River. Coal could be spilled during ship]oading operations because of human error or 

equipment malfunction. However, such a spill would likely result in a limited release of coal into 

the environment due to safeguards to prevent such operational errors, such as start-up alarms, 

dock containment measures to contain spillagejrainfallfrunoff, and enclosed shiploaders. 

The chemical effects on aquatic organisms and habitats would depend on the circumstances of a 

coal spill and the existing conditions of a particular aquatic environment (e.g., stream, lake, 

wetland). Some research suggests that physical effects are likely to be more harmful than the 

chemical effects (Ahrens and Morrisey 2005). 

A coal train derailment and coal spill in Burnahy, British Columbia, in 2014, and subsequent 

cleanup and monitoring efforts provide some insight into the potential impacts of coal spilled in 

the aquatic environment. Findings from spill response and cleanup found there were potentially 

minor impacts in the coal spill study area, and that these impacts were restricted to a localized 

area (Borealis Environmental Consulting 2015). 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. Under the 

Proposed Action, 1,680 vessel transits a year and 16 trains a day would operate at full build-out. 

Cause Periodic Injury or Mortality from Vessel Strike-Pinnipeds 

Operations of the Proposed Action would increase vessel traffic in the Columbia River 

(Chapter 5, Section 5.4, Vessel Transportation] by 840 ships a year. Increased vessel traffic 

related to operations at the project area could increase the risk of vessel collisions with 

Millennium Bulk Terminals-longview 

Fma! SEPA Environmental Impact Statement 4.8-26 April 2017 
351 


31623.282

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment 

Existing Conditions, Project Impacts, 

and Proposed Mtt1gat1on Measures 

pinnipeds in the indirect impacts study area. Most available research and literature on marine 

mammal vessel strikes is associated with vessel-whale collisions at sea. Compared to pinnipeds, 

whales are typically much larger, slower-moving, and therefore, are assumed more vulnerable 

to vessel strikes. Vessel strikes on marine mammals are usually described as massive bluntforce trauma (Geraci and Lounsbury 1993 in Horning and Mellish 2009), but are considered 

extremely rare for pinnipeds (Andersen et aL 2007 in Horning and Mellish 2009). A blunt-force 

trauma that results from a marine mammal collision with a vessel can result in death or injury. 

The potential for a pinniped strike with a vessel in the indirect impacts study area would 

depend on many factors, including time of year, vessel type, vessel size, pinniped species, vessel 

location, vessel speed, and location of animal relative to vesseL The behavior of a pinniped in the 

path of an approaching vessel in the study area is uncertain, but it is likely that an individual 

would have the ability to avoid and swim away from the vesseL In addition, pinniped vessel 

strikes are rare; thousands of vessels transit the Columbia River every year. A small number of 

documented pinniped deaths are attributed to vessel strikes. For example, the U.S. Pacific 

Marine Mammal Stock Assessments: 2015 (National Oceanic Atmospheric Administration 2016b) 

for the Pacific Coast documented two harbor seals (Oregon/Washington Coast Stock) killed by 

boats between 2007 and 2011 and 13 California sea lions killed by boats between 2008 and 

2012. Pinnipeds in the Columbia River would also likely be habituated to existing Columbia 

River vessel traffic, and vessel speed in the indirect impacts study area would be less than 

14 knots. Therefore, the potential risk for a vessel collision with a pinniped in the indirect study 

area would be generally be considered low. 

Cause Periodic Physical or Behavioral Responses to Vessel Noise and Maintenance 

Dredging-Pinnipeds 

Proposed Action-related vessels would increase vessel traffic and underwater noise in the 

Columbia River (Chapter 5, Section 5.4, Vessel Transportation). Studies in the Salish Sea have 

shown that the greater the ship size, the greater the underwater source level due to cavitation, 

with the exception of tug vessels that show greater source noise levels underwater while 

performing activities such as berthing or accelerating a ship (Hemmera Envirochem et al. 2014). 

While this information is from studies in the Salish Sea, it is expected that noise levels from 

vessels would be similar in the Columbia River. 

The peak hearing sensitivity frequencies of Steller sea lion, California sea lion, and harbor seal 

are generally outside of the noise frequencies generated by vessels (generally ranging between 

10 Hertz and 1 kilohertz (Wright 2008) and these species are habituated to existing Columbia 

River vessel noise levels. Any response to project-related vessel noise would likely be minimaL 

Periodically Remove or Alter Habitat during Maintenance Dredging 

Maintenance dredging is anticipated to occur on a multiyear basis; however, it may occur as 

frequently as annually or following extreme flow conditions to maintain required depths at 

Docks 2 and 3 and to allow for navigation between the docks and the navigation channel 

(WorleyParsons 2012). Impacts on the benthic invertebrate community would be similar to 

those described for initial construction related dredging associated with construction activities 

(Section 4.8.5.1, Proposed Action, Construction-Direct Impacts). Compared to the initial 

construction dredging, maintenance dredging would remove a relatively small amount of 

material, including bottom dwelling organisms. Maintenance dredging would result in mortality 

Millennium Bulk Terminals-Longview 

Final SEPA Environmental Impact Statement 4.8-27 April2017 
352 


31623.283

Cowlitz County 

Washington State Department of [cology 

Chapter 4. Natural Environment 

Ex1stmg Conditions, Project Impacts, 

and Proposed MitigatiOn Measures 

of invertebrate organisms in the maintenance dredge prism and temporary disruption of 

benthic productivity. Benthic productivity is expected to be low in this deepwater habitat 

(McCabe et al. 1997). Maintenance-related dredging could affect pinnipeds and benthic 

organisms in a manner similar to the initial construction dredging (Section 4.8.5.1, Proposed 

Action, Construction-Direct Impacts). As mentioned above, benthic organisms typically 

recolonize in 30 to 45 days following disturbance. Thus, should dredging occur on an annual 

basis, it would not prevent recolonization of the benthic habitat. 

Generate and Disperse Coal Dust in Terrestrial and Aquatic Habitats 

Coal dust and fugitive coal particles could be generated during operation of the Proposed Action 

through the movement of coal by rail along the rail corridor. Coal transported by vessel would 

be enclosed in cargo holds and is not likely to result in deposition along the vessel route. The 

potential impacts from coal dust for the indirect impacts study area would be similar to the 

impacts described previously for the direct impacts study area. 

Spill Coal during Rail Transport 

The magnitude of the potential indirect impact from a coal spill on the aquatic and terrestrial 

environments would be similar to those described previously and would depend on the location 

of the spill, the volume of the spill, and success of efforts to contain and clean up the spill, none 

of which can be predicted. 

The potential impact of a coal spill from a Proposed Action-related train is directly related to the 

probability of a Proposed Action-related train incident occurring. Chapter 5, Section 5.2, Rail 

Safety, estimates the number of Proposed Action-related train incidents that could potentially 

occur during coal transport within Cowlitz County and Washington State. In Cowlitz County, the 

predicted number of loaded coal train incidents is approximately one every 2 years. The 

predicted number of loaded coal train incidents within Washington State is approximately five 

per year. 

Not every incident of a loaded coal train would necessarily result in a rail car derailment or a 

coal spill. A train incident could involve one or multiple rail cars, and could include derailment in 

certain circumstances. The size and speed of the train and the terrain at the location of an 

incident would inAuence whether the incident resulted in a coal spill that could have impacts on 

wildlife. A broad range of spill sizes from a partial rail car to multiple rail cars could occur as a 

result of a Proposed Action-related train incident. 

Additionally, containment and cleanup efforts for coal spills from a rail incident factor into the 

potential impact on the environment. It is expected that coal spills in the terrestrial and built 

environments would be easier to contain and clean up than spills occurring in an aquatic 

environment. Spills occurring on land may have a quicker response time and cleanup in some 

locations due to their visibility and access for cleanup equipment, as compared to spills into 

aquatic environments. 

Potential physical and chemical effects of a coal release into aquatic and terrestrial 

environments would be the same or similar to those described above under direct impacts. 

M1llenn1um Bulk Termmats longv1ew 

Final SEPA Environmental Impact Statement 4.8-28 Apri! 2017 
353 


31623.284

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed M1t1gation Measures 

Cause Wildlife Strikes along the Rail Corridor in Washington State 

Increased rail traffic associated with the Proposed Action could result in an increase in train 

strikes of wildlife species that occur along the rail corridor. 

Dorsey (2011) found that some wildlife may use railroads for movement, which could be 

considered a positive impact. Wildlife move on or along railroads while foraging, accessing 

critical resources (e.g., water), migrating, and dispersing. Wildlife tend to move along railroads 

for at least three reasons, including; railroads are often co-aligned with high quality habitats and 

natural movement corridors (e.g., valley bottoms and mountain passes); wildlife may move 

along railroads because foods (i.e., edge vegetation, carrion from strikes, and spilled agricultural 

grains) are available along rights-of-way or on the railbed, and; the flat rail bed provides an 

easily traversable route particularly apparent in regions receiving significant amounts of 

snowfall where railroad beds may offer a relatively snow-free travel path. 

However, Dorsey (2011) indicated that various factors are likely to contribute to the frequency 

of wildlife and rail interactions and the potential for train strikes and wildlife mortality. For 

example, train speed, rail alignment, and train volume-as well as wildlife abundance, behavior 

and habitat quality and use (i.e., migration or foraging) along rail corridors-could individually, 

or in combination, affect the likelihood and frequency of train strikes of wildlife. The relative 

abundance of wildlife along a railroad may be the primary factor affecting strike rates (Dorsey 

2011), although Kusta eta!. (2014) did not find abundance of roe deer in the Czech Republic and 

train strikes to be correlated. Dorsey (20 11) cited several studies that have documented more 

herbivore than carnivore mortalities from train strikes, which reflects their relatively greater 

abundance in most landscapes. Although Dorsey (2011) points out that foods found on and 

along railroads may also be a factor affecting strikes by increasing the time wildlife spend 

directly on or adjacent to railroads. Foods found along railroads may consist of natural 

vegetation, carrion and agricultural products spilled from train cars. 

Overall, the Proposed Action would increase the number of trains traveling through Washington 

State by approximately 16 trains per day at full build-out (8loaded trains arriving and 8 empty 

trains leaving each day). This increase in train traftlc from the Proposed Action through 

Washington State would increase the risk of wildlife strikes by trains. 

4.8.5.2 No-Action Alternative 

Under the No Action Alternative, the Applicant would not construct the Proposed Action. Current 

operations would continue, and the existing bulk product terminal site would be expanded. 

However, any expansion would be limited to activities that would not require a permit from the 

U.S. Army Corps of Engineers (Corps) or a shoreline permit. Therefore, no construction impacts on 

aquatic habitats would be expected to occur as a result of an expansion of the existing bulk product 

terminal under the No-Action Alternative. 

Growth in the region would continue, which would allow continued operation of the coal export 

terminal and the adjacent bulk terminal site within the 20-year analysis period (2018 to 2038). New 

construction, demolition, or related activities to expand the bulk product terminal could occur on 

previously developed upland portions of the project area. This could affect upland areas and 

terrestrial habitats that provide suitable wildlife habitat. The specific extent cannot be determined 

at this time. 

Millennium 13ulk Termmals-Longv1ew 

Final SEPA EnVIronmental Impact Statement 4.8-29 April 2017 
354 


31623.285

Cowlitz County 

Chapter 4. Natural Enwonment 

Exlstmg Conditions, Project Impacts, 

Washmgton State Department of Ecology and Proposed Mitigation Measures 

Cleanup activities, relative to past industrial uses, would continue to occur. These could affect 

developed areas and associated disturbed upland habitats. Vessel traffic would continue and any 

aquatic wildlife disturbance or injury associated with vessel movements would continue at levels 

similar to current conditions. 

4.8.6 Required Permits 

The Proposed Action would require the following permits for wildlife. 

• Endangered Species Act Consultation-U.S. Fish and Wildlife Service and National Marine 

Fisheries Service. The Proposed Action could affect wildlife species or designated critical 

habitats protected under the ESA. In accordance with Section 7( a )(2) of the ESA, as amended, 

any action that requires federal authorization or funding, or is carried out by a federal agency, 

must undergo consultation with the USFWS andfor NMFS to ensure the action is not likely to 

jeopardize the continued existence of any listed threatened or endangered animal species or 

result in the destruction or adverse modification of designated critical habitat. 

• Clean Water Act Authorization, Section 404-U.S. Army Corps of Engineers. Construction 

and operation of the Proposed Action would affect waters of the United States, including 

wetlands. Because impacts would exceed 0.5 acre, Individual Authorization from the Corps 

under Section 404 of the Clean Water Act and appropriate compensatory mitigation for the 

acres and functions of the impacted wetlands would be required. 

Clean Water Act, Section 401 Water Quality Certification-Washington State Department 

of Ecology. The Proposed Action would result in the construction and operation of a facility that 

would discharge into the navigable waters and would require a Clean Water Act, Section 401 

water quality certification. This certification is administered by Ecology. The dredged materials 

management plan requires site-specific sediment sampling to characterize sediments and 

determination of suitability of dredged material for disposal. 

Local Critical Areas and Construction Permits-Cowlitz County. The Proposed Action would 

require local permits related to clearing and grading of the project area and relative to impacts 

on regulated critical areas. Cowlitz County would issue a fill and grade permit, and would review 

the Proposed Action for consistency with the County's critical areas ordinance. 

• Hydraulic Project Approval-Washington Department of Fish and Wildlife. The Proposed 

Action would require a hydraulic project approval from WDFW because project elements would 

affect and cross the shoreline of the Columbia River. 

The following were identified by the Applicant as measures that would be implemented during 

construction and/or operations. These measures are assumed conditions or requirements of 

permits identified above that would be issued for the project, and thus are described here. 

The following measures were considered when evaluating the potential impacts of the project. 

While the Applicant would plan to limit construction for an 8- to 10-hour day, 5 days per week, 

on occasion, dredging may occur 7 days per week to complete work within specific fish 

windows. 

• The Applicant would limit the impact of turbidity to a defined mixing zone and would otherwise 

comply with WAC 173-201A. 

• The Applicant would not stockpile dredged material on the river bottom surface. 

Millenmom Bulk Terminals-Longview 

Fmal SEPA Environmental Impact Statement 4.8-30 April2017 
355 


31623.286

Cowlitz County 

Washmgton State Department of Ecology 

Chapter4. Natural Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

The Applicant would contain all dredged material in a barge prior to flow lane disposal; dredged 

material would not be stockpiled on the riverbed. 

During hydraulic dredging, the Applicant would not operate the hydraulic pumps unless the 

dredge intake is within 3 feet of the bottom. 

The Applicant would remove any floating oil, sheen, or debris within the work area as necessary 

to prevent loss of materials from the site. The contractor would be responsible for retrieval of 

any floating oil, sheen, or debris from the work area and any damages resulting from the loss. 

• For material being transported to flow lane disposal sites, the Applicant would remove all debris 

(larger than 2 feet in any dimension) from the dredged sediment prior to disposal. Similar-sized 

debris floating in the dredging or disposal area would also be removed. 

The Applicant would dispose materials to the flow lane using a bottom-dump barge or hopper 

dredge. These systems release material below the surface, minimizing surface turbidity. 

• The Applicant would limit all construction activities to daylight hours to ensure that 

construction noise levels would be controlled and within local and state noise limits. 

The Applicant would install and maintain a noise-monitoring station at an appropriate location 

on or near the site boundary to create 24-hours-per-day noise record during construction. The 

measurements would be recorded and monitored on a real-time basis, and the contractor would 

take actions to halt or alter construction activities that exceed noise levels. 

To reduce the sound along the rail line, the Applicant would work with the Longview Switching 

Company to convert both the Oregon Way and Industrial Way crossings to quiet crossings and 

would fund such improvements to the rail line as necessary to achieve this mitigation. 

The Applicant would plan construction for an 8- to 10-hour day, 5 days per week. On occasion, it 

may be necessary to work 6 or 7 days per week depending on the nature of the task For 

example, dredging may occur 7 days per week to complete work within specific fish windows. 

• The Applicant would use activity-specific work windows designed to minimize specific impact 

mechanisms that may affect individual species (or populations within those species) of concern. 

These proposed work windows would protect species of concern while providing feasible 

construction periods for the in-water portion of construction over a 2-year schedule. 

The Applicant would conduct impact pile-driving using a confined bubble curtain or similar 

sound attenuation system capable of achieving approximately 9 decibels of sound attenuation. 

• Where possible, the Applicant would keep extraction equipment out of the water to avoid 

"pinching" pile below the water line in order to minimize creosote release during extraction. 

• During pile removal and pile driving, the Applicant would place a containment boom around the 

perimeter of the work area to capture wood debris and other materials released into the waters 

as a result of construction activities. The Applicant would collect all accumulated debris and 

dispose of it upland at an approved disposal site. The contractor would deploy absorbent pads 

should any sheen be observed. 

• The Applicant would provide a containment basin on the work surface on the barge deck or pier 

for piles and any sediment removed during pulling. 

Upon removal from substrate, the Applicant would move the pile expeditiously from the water 

into the containment basin. The contractor would not shake, hose, strip, or scrape the pile, nor 

Mlllenn1um Bulk Terminals longv1ew 

Fmal SEPA Environmental Impact Statement 4.8·31 April2017 
356 


31623.287

Cowlitz County 

Chapter 4. Natural Environment 

Existing Conditions, Protect Impacts, 

Washington State OepMtment of Ecology and Proposed Mitigation Measures 

4.8.7 

leave it hanging to drip or any other action intended to clean or remove adhering material from 

the pile. 

Proposed Mitigation Measures 

This section describes the proposed mitigation measures that would reduce impacts related to 

wildlife from construction and operation of the Proposed Action. These mitigation measures would 

be implemented in addition to project design measures, best management practices, and compliance 

with environmental permits, plans, and authorizations that are assumed as part of the Proposed 

Action. 

4.8.7.1 Applicant Mitigation 

The Applicant would implement the following mitigation measures to mitigate impacts on wildlife. 

MM FISH-Z.Implement a "Soft-Start" Method during Pile-Driving. 

To minimize underwater noise impacts on fish during pile driving, the Applicant will commence 

impact pile-driving using a "soft-start," or other similar method. The "soft-start" method is a 

method of slowly building energy of the pile driver over the course of several pile strikes until 

full energy is reached. This "soft-start" method cues fish and wildlife to pile-driving commencing 

and allows them to move away from the pile-driving activity. 

MM FISH-3. Monitor Pile-Driving and Dredging Activities for Distress to Fish and Wildlife. 

To minimize the potential harm to marine mammals, diving birds, or fish, a professional 

biologist will observe the waters ncar pile-driving and dredging activities for signs of distress 

from fish and wildlife during these activities. If any offish or wildlife species were to show signs 

of distress during pile driving, the biologist will issue a stop work order until the species are 

recovered, moved, or relocated from the area. The Applicant will immediately report any 

distressed fish or wildlife observed to the appropriate agencies (i.e., Washington Department of 

Fish and Wildlife, U.S. Fish and Wildlife Service, and National Marine Fisheries Service) and 

determine the appropriate course of action. 

MM CDUST-1. Monitor and Reduce Coal Dust Emissions in the Project Area. 

To address coal dust emissions, the Applicant will monitor coal dust during operation of the 

Proposed Action at locations approved by the Southwest Clean Air Agency (SWCAA). A method 

for measuring coal dust concentration and deposition will be defined by SWCAA. If coal dust 

levels exceed nuisance levels, as determined by SWCAA, the Applicant will take further action to 

reduce coal dust emissions. Potential locations to monitor coal dust concentration and 

deposition will be along the facility fence line in close proximity to the coal piles, where the rail 

line enters the facility and operation of the rotary dumper occurs, and at a location near the 

closest residences to the project area, if agreed to by the property owner(s). The Applicant will 

conduct monthly reviews of the concentration and deposition data and maintain a record of data 

for at least 5 years after full operations, unless otherwise determined by SWCAA. If measured 

concentrations exceed particulate matter (PM) air quality standards, the Applicant will report 

this information to SWCAA, Cowlitz County and Ecology. The Applicant will gather 1 year of 

fence line data on PM2.5 and PM 10 prior to beginning operations and maintain the data as 

reference. This data will be reported to the SWCAA, Cowlitz County, and Ecology. 

Millennium Bulk Termmals longview 

Final SEPA Env1ronmental Impact Statement 4.8-32 April 2017 
357 


31623.288

Chapter 4. Natural Environment: 

Cowlitz County Existmg Conditions, Project Impacts, 

Washington State Department of and Proposed Mitigation Measures fcology 

MM CDUST-3. Reduce Coal Dust Emissions from Rail Cars. 

To address coal dust emissions, the Applicant will not receive coal trains unless surfactant has 

been applied at the BNSF Railway Company (BNSF) surfactant facility in Pasco, Washington for 

BNSF trains traveling through Pasco. While other measures to control emissions are allowed by 

BNSF, those measures were not analyzed in this EIS and would require additional 

environmental review. For trains that will not have surfactant applied at the BNSF surfactant 

facility in Pasco, before beginning operations, the Applicant will work with rail companies to 

implement advanced technology for application of surfactants along the rail routes for Proposed 

Action-related trains. 

MM-WQ-Z. Develop and Implement a Coal Spill Containment and Cleanup Plan 

To limit the exposure of spilled coal to the terrestrial, aquatic, and built environments during 

coal handling, the Applicant will develop a containment and cleanup plan. The plan will be 

reviewed by Cowlitz County and Ecology and implemented prior to beginning export terminal 

operations. In the event of a coal spill in the aquatic environment by the Applicant during export 

terminal operations, action will be taken based on the specific coal spill, and the Applicant will 

develop a cleanup and monitoring plan consistent with the approved containment and cleanup 

plan. This plan will include water quality and sediment monitoring to determine the potential 

impact of the coal spill on the aquatic habitat and aquatic species. The Applicant will develop the 

cleanup and monitoring plan in coordination with Cowlitz County, Ecology, and the Corps. The 

cleanup and monitoring will be similar in scope to the monitoring completed for the Aquatic 

Impact Assessment (Borealis 2015) associated with a coal spill in British Columbia, Canada in 

2014. 

4.8.7.2 Other Measures to Be Considered 

The co-lead agencies recommend BNSF identify and monitor wildlife-train collision and migration 

barrier hotspots along the rail corridors to determine whether current and projected levels of rail 

traffic would result in levels of mortality or migration barrier effects that could measurably affect 

the status of local wildlife populations. If levels of collision mortality and delays to wildlife 

movement are determined to have a measurable effect on the status of local wildlife populations, 

suitable wildlife crossing structures and other measures, such as fencing, should be considered as 

appropriate. BNSI' should consult with WDFW and USFWS in designing approaches to identify and 

monitor hotspots and in identifying suitable crossing structures and other measures. 

4.8.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Compliance with laws and implementation of the voluntary measures and mitigation measures 

described above would reduce impacts on wildlife. There would be no unavoidable and significant 

adverse environmental impacts. 

Millenn1urn Bulk Termmals-Longview 

Final SEPA Environmental Impact Statement 4.8-33 April 2017 
358 


31623.289

Cowlitz County 

Washington State Department of Ecology 

Chapter 4. Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigat1on Measures 

4.9 Energy and Natural Resources 

The availability and conservation of energy and natural resources are important factors to consider 

for large projects, such as the Proposed Action. Construction, operations, and transportation to and 

from the project area would require energy and natural resources. 

This section describes energy and natural resources in the study area. It then describes impacts on 

energy and natural resources that could result from construction and operation of the Proposed 

Action and under the No-Action Alternative. This section also presents the measures identified to 

mitigate impacts resulting from the Proposed Action. 

4.9.1 Regulatory Setting 

Laws and regulations relevant to energy and natural resources are summarized in Table 4.9-1. 

Table 4.9-1. Regulations, Statutes, and Guidelines for Energy and Natural Resources 

Regulation, Statute, Guideline 

State 

Washington State Energy Code, 

Commercial Provisions (WAC 51-11 C) 

Cowlitz County Building Code (CCC 16.05) 

Notes: 

Description 

Regulates the design and construction ofbuildings for 

the use and conservation of energy over the life of each 

Establishes standards for construction and the use of 

buildings and structures within unincorporated Cowlitz 

County. Requires conformance with the Washington 

State CCC 1605.130. 

WAC= Washington Administrative Code; CCC= Cowlitz County Code 

4.9.2 Study Area 

The study area for direct impacts on energy and natural resources is the project area. The study area 

for indirect impacts on energy and natural resources is the area within 0.25 mile of the project area. 

When assessing the availability of energy and natural resources, the analysis considers those 

resources that are available regionally, beyond the 0.25-mile study area. 

4.9.3 Methods 

This section describes the sources of information and methods used to evaluate the potential 

impacts on energy and natural resources associated with the construction and operation of the 

Proposed Action and No-Action Alternative. 

4.9.3.1 Information Sources 

The following sources of information were used to identify the potential impacts of the Proposed 

Action and No-Action Alternative on these resources in the study area. 

Millennium Bulk Terminals-longview 

Final SEPA EnVIronmental Impact Statement 4.9-1 April2017 
359 


31623.290

Chapter 4. Natural Environment: 

Cowlitz County 

Washington State Department of Ecology 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

Applicant-provided data 

Cowlitz Public Utility District 

Cowlitz Conservation District 

Cascade Natural Gas 

• U.S. Energy Information Administration 

4.9.3.2 Impact Analysis 

The following methods were used to evaluate the potential impacts of the Proposed Action and NoAction Alternative on energy and natural resources. 

Energy Consumption 

Energy consumption was evaluated quantitatively. Potential impacts on energy were evaluated 

based on the estimated energy consumed during construction and operation of the Proposed Action 

and the estimated change in fuel consumption in the study area. Estimated hours of operation and 

types of fuel consumed were used to quantify energy consumption. Baseline energy usage and 

energy usage with the Proposed Action were estimated using data provided by the Applicant. 

Natural Resource Consumption 

Natural resource consumption was evaluated qualitatively. Potential impacts on natural resources 

were estimated based on the proposed consumption of resources during construction. The following 

assumptions were made for the analysis. 

Heavy construction materials, such as gravel, sand, concrete, and timber would be sourced 

locally to the extent possible. 

Adequate quantities of natural resources needed to support the Proposed Action would be 

readily available. 

4.9.4 

Long-distance transport of these materials would be undesirable because of associated 

transportation costs. 

Steel used in construction would be available from both local and regional sources. 

Existing Conditions 

This section describes the existing environmental conditions in the study area related to energy and 

natural resources that could be affected by the construction and operation of the Proposed Action 

and the No-Action Alternative. 

4.9.4.1 Energy 

This section describes the enerb'Y sources and usage local to the area and project area. 

Millennium Bulk Termmals Longv1ew 

Final SEPA EnVIronmental Impact Statement 4.9·2 Apnl 2017 
360 


31623.291

Cowlitz County 

Washington State Department of Ecology 

Local Energy Sources 

Chapter 4. Natural Environment' 

Existing Cond1t1ons, Project Impacts, 

and Proposed Mitigation Measures 

The project area is served by multiple local energy sources and providers, including electricity, 

natural gas, and diesel fuel facilities. The following provides an overview of these local energy 

sources. 

Electricity 

Electricity is provided to the project area by Cowlitz Public Utility District (PUD), which supplies 

electricity throughout Cowlitz County. Cowlitz PUD buys over 90%, of its wholesale power from 

Bonneville Power Administrative (BPA]. The majority of the BPA power comes from the Columbia 

River system hydroelectric projects. 

Cowlitz PUD provides service throughout Cowlitz County and is among the largest public utility 

districts in Washington State. Cowlitz PUD estimates that customers will use 609 average megawatts 

and 821 peak megawatts of electricity in 2015 (Cowlitz Public Utility District 2015). Approximately 

14% of Cowlitz PUD's power is sold to residential users, and approximately 8% to small industrial 

users (22 companies or industries). Major industrial users consume approximately 71 o/o of the 

power. Small general service and street( area lighting account for the other electrical usage 

(Cowlitz Public Utility District 2015). 

Natural Gas 

Natural gas is provided to the project area by Cascade Natural Gas, which supplies residential, 

commercial, and industrial users throughout Cowlitz County and beyond. The Cascade Natural Gas 

service area is concentrated in western and central Washington, and central and eastern Oregon. 

Interstate pipelines transmit the company's natural gas from production areas in the Rocky 

Mountains and western Canada (Cascade Natural Gas Company 2014). 

Diesel Fuel 

Local suppliers provide diesel fuel in the Longview-Kelso area. In Washington State, approximately 

88.36 million gallons of diesel fuel were sold annually to railroad-related uses in 2012 (U.S. Energy 

Information Administration 2014). This represents approximately 9% oftotai diesel sales for all 

uses in the state. The largest consumers were on-highway users, or motor vehicles, accounting for 

62% of diesel sales, or approximately 618 million gallons, in Washington State in 2012. 

Tank vessels primarily use diesel or residual fuel oil. Diesel fuel sales for vessel uses in Washington 

State (excluding the military) totaled 80.5 million gallons in 2012, which accounted for 8.2% of the 

total diesel sales in the state (U.S. Energy Information Administration 2014).In 2013, the total prime 

supplier sales volume of fuel oil was 469.86 million gallons for Washington State (U.S. Energy 

Information Administration 2014). 

Project Area Energy Usage 

Cowlitz PUD provides electricity to the project area via overhead 230-kilovolt and 115-kilovolt 

power lines along Industrial Way. Other power lines run perpendicular to the north end of the 

project area, where they converge with a BPA substation. The existing power configuration is 

sufficient for the current operations at the project area (URS Corporation 2014). The existing annual 

electricity use for the existing bulk product terminal (outside the project area but within the 

Applicant's leased area) averages 20 megawatts based on the average electrical usages for 2014. 

Millennium Bu!k Terminals-Longview 

Fmal SEPA Environmental Impact Statement 4.9-3 April 2017 
361 


31623.292

Cowlltz County 

Washmgton State Department of Ecology 

Chapter 4. Natural EnVIronment· 

Existing Condlt!ons, Project Impacts, 

and Proposed Mitigation Measures 

Within the project area, electricity is provided by Cowlitz PUD. Other energy consumed comes from 

diesel- or gasoline-powered generators provided by local fuel suppliers. 

4.9.4.2 Natural Resources 

This section describes the natural resources local to the area and the natural resources available 

specifically in the project area. 

Local Natural Resources 

The Cowlitz County economy was historically centered on forestry and timber products. 

Weyerhaeuser manufactures wood and paper products at a facility near the project area along the 

Columbia River. Many other timber-industry companies are located in nearby Longview. 

Groundwater resources in the vicinity are an upper alluvium aquifer (i.e., shallow groundwater), 

and the deeper confined aquifer from which industries, small farms, and domestic well users 

withdraw groundwater. The Mint Farm Regional Water Treatment Plant, operated by the Beacon 

Hill Water and Sewer District and located less than 1 mile north of the project area, began 

withdrawing groundwater from the deep confined aquifer in january 2013 (URS Corporation 2014). 

Numerous quarries and mines in Cowlitz County provide crushed stone, sand, and graveL 

Project Area Natural Resources 

No forest products are located in the project area. The project area landowner, Northwest Alloys, 

holds several historical water rights to extract groundwater from a deep aquifer. The Applicant has a 

ground lease with Northwest Alloys that includes use of water rights. Refer to Section 4.4, 

Groundwater, for additional information on existing water rights in the project area. 

4.9.5 Impacts 

This section describes the potential direct and indirect impacts related to energy and natnral 

resources that wonld resnlt from construction and operation of the Proposed Action and the 

No-Action Alternative. 

4.9.5.1 Proposed Action 

This section describes the potential impacts that could occur in the study area as a result of 

construction and operation of the Proposed Action. 

Construction-Direct Impacts 

Construction-related activities associated with the Proposed Action could result in direct impacts as 

described below. As explained in Chapter 2, Project Objectives, Proposed Action, and Alternatives, 

construction-related activities include demolishing existing structures and preparing the site, 

constructing the rail loop and dock, and constructing supporting infrastructure (i.e., conveyors and 

transfer towers). 

Heavy machinery would be operated to prepare foundations and footings for construction of the 

coal export terminal, associated services, and utilities. Diesel fuel and gasoline would be used in 

most construction equipment such as cranes, wheel loaders, dozers, dump trucks, excavators, 

graders, rollers, compactors, drill rigs, pile-driving equipment, portable ready-mix batch plant, 

Milfenmurn Bulk Terminals-Longvtew 

Final SEPA Environmental Impact Statement 4.9-4 April2017 
362 


31623.293

Cowlitz County 

washington State Department of Ecology 

Chapter 4. Natura! Environment: 

Existing Conditions, Project Impacts, 

and Proposed Mitigation Measures 

ready-mix trucks, concrete pumps, elevated work platforms, forklifts, rail-track-laying equipment, 

water pumps, and other similar machinery (URS Corporation 2014 ). A fuel truck would visit the site 

as required. The frequency during construction would vary based on usage and activities and could 

range from once or twice per day to once or twice per week Fuel trucks that would be used during 

construction would have a 3,000-gallon to 4,000-gallon capacity. A temporary increase in fuel use 

would result from the need to transport employees and materials to the project area and to operate 

construction equipment. 

Increase Energy Use 

Construction-related energy uses would include the use of electricity, diesel fuel, gasoline, oil, 

and natural gas. Construction would require on average each month approximately 500 gallons 

of gasoline, SO gallons of oil, and 20,000 gallons of diesel fueL 

Electricity from Cowlitz PUD would be consumed to provide construction lighting and power 

tools and equipment. Natural gas would be used for minor purposes, including to heat water for 

showers and other sanitary uses, but not for industrial uses. Heavy machinery would operate 

during construction, which would increase fuel use. The demand for gasoline, oil, diesel fuel, and 

natural gas during construction would be minor compared to the current regional demand for 

these fuels and could be met by the existing local and regional supply. 

Increase the Use of Natural Resources 

Natural resources that would be consumed during construction would include water, gravel, f\11 

dirt, steel, and wood. 

Groundwater available in the project area would be used during upland construction as 

necessary for dust suppression, which would be approximately 40,000 gallons per day 

(URS Corporation 2014 ). Approximately 2.1 million cubic yards of fill material would be 

imported to the project area to be used as preload material, and approximately 2.5 million cubic 

yards of material would be moved around the project area during preloading activities 

(URS Corporation 2014). Dredging would occur as part of the construction of the two docks 

(Docks 2 and 3), which would include removing approximately 500,000 cubic yards of fill 

materiaL All regularly used roads in the project area would require gravel. Any new impervious 

surface area would generate stormwater, but all stonnwater would be collected and treated to 

meet state and federal water quality requirements prior to discharge to the Columbia River. Rail 

loop construction would require importing and placing approximately 130,000 cubic yards of 

ballast rock for the rail foundations; placing railroad ties; laying steel rail lines; and installing 

signaling, switching equipment, and track lighting (URS Corporation 2014). 

The demand for these natural resources during construction would be minor compared to the 

current regional demand for these resources and could be met by existing local and regional 

supply. 

Construction-Indirect Impacts 

Construction of the Proposed Action would result in the following indirect impacts. 

Millen mum Bulk Terminals-Longview 

Fmal SEPA Environmental Impact Statement 4.9-5 April2017 
363 


31623.294

Cowlitz County 

Washmgton State Department of Ecology 

Increase Energy Use 

Chapter 4. Natural Environment 

Ex1st1ng Conditions, Project !mpacts, 

<tnd Proposed Mitigation Measures 

A temporary increase in fuel consumption would result from the transport of employees and 

materials to the project area during construction. This fuel consumption would be a minor 

amount compared to the current demand for these fuels in the study area, and could be met by 

the existing local and regional supply. 

Operations-Direct Impacts 

Operation of the Proposed Action would result in the following direct impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Increase Energy Use 

Electricity, gasoline, oil, propane, and diesel fuel would be the primary energy types consumed 

during operations of the Proposed Action. Electricity would be used to heat buildings and light 

indoor and outdoor areas, to power the automated system used to unload coal from trains, store 

coal, reclaim the coal from storage, and load the vessels. Specific types of equipment used for 

these processes include rail car unloading facilities, stacking conveyers, bucket wheel 

reclaimers, the belt conveyer system, and shiploaders. 

The Applicant estimates electricity usage during full operations of the terminal would be 

approximately 6,624,000 kilowatt hours per year, and electricity requirements would be 20 to 

25 megawatts per year. The Proposed Action's energy use would represent an average of 

approximately 4% of the total electricity supplied to users in the Cowlitz PUD service area. This 

electricity demand is anticipated to be met by existing regional supply because Cowlitz PUD 

currently has the capacity to meet the electricity demand. 

Gasoline, propane, and diesel would be used to power vehicles and equipment used for standard 

operations and routine maintenance. Operation of the Proposed Action is anticipated to require 

each month on average approximately 100 gallons of gasoline, 75 gallons of oil, and 865 gallons 

of diesel. 

The demand for energy during operations would be minor compared to the current regional 

demand for these fuels and could be met by the existing local and regional supply. 

Increase the Use of Natural Resources 

Natural resources that would be used would include water, gravel. fill dirt, and wood. Impacts 

on these resources are discussed below. Impacts on groundwater and water quality are 

discussed in Sections 4.4, Groundwater, and 4.5, Water Quality, respectively. 

A water treatment facility would be designed to treat all surface runoff and process water with 

capacity to store the water for reuse. The use of stormwater in combination with a storage 

reservoir and groundwater would be used for processing water and fire protection. All of the 

storm water would be processed through the water treatment facility prior to reuse. Water uses 

would include dust control, stockpile sprays, wash down, and clean up (URS Corporation 2014). 

Water would also be used to control dust from operating conveyors, transfer points, rail car 

unloaders, stockpiling, and ship loading. Approximately 120 million gallons per year would be 

reused from runoff during operations. Combined with the groundwater demand from existing 

activities in the project area (approximately 1,994 acre-feet per year), the total demand on 

Millennium Bulk Termmals-Longview 

Final SEPA Environmental Impact Statement 4.9·6 April 2017 
364 


31623.295

CowlitZ County 

Washington 5tate Department of Ecology 

Chapter 4. Natura! Environment 

Existing Conditions, Project Impacts, 

and Proposed M1t1gation Measures 

groundwater supplies during operation of the Proposed Action would be approximately 

3,019 acre-feet per year. Water would be sourced from existing production wells with water 

rights, and there would be no need for new wells. 

Specific quantities of gravel, fill dirt, and wood during operation of the Proposed Action are not 

known at tbis time. However, the quantities are anticipated to be met by existing local and 

regional supply considering the availability of these resources. 

Operations-Indirect Impacts 

Operation of the Proposed Action would result in the following indirect impacts. Operations-related 

activities are described in Chapter 2, Project Objectives, Proposed Action, and Alternatives. 

Increase Fuel Consumption 

The Proposed Action would increase fuel consumption by the following. 

Approximately 240 unit trains arriving and 240 unit trains departing each month, which 

would increase rail locomotive fuel consumption in the study area. 

• Approximately 140 vessel transits each month, which would increase vessel fuel 

consumption in the study area. 

Approximately 135 employees to operate the facility, which would generate approximately 

270 trips per day assuming two employee trips per day. These vehicle traffic operations 

would increase vehicle fuel consumption in the study area. 

A fuel truck with a 3,000- to 4,000-gallon capacity would come to the project area as needed 

to supply vehicles and equipment with fuel for operations and maintenance. The frequency 

would vary based on usage and activities. This activity would increase fuel consumption in 

the study area. 

Trains and vessels would not be fueled in the project area. Fuel consumption from employee and 

fuel truck trips would be a minor amount compared to the current demand for fuel within the 

study area, and could be met by the existing local and regional supply. 

4.9.5.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant would not construct the coal export terminal, and the 

existing use of energy and natural resources would continue. However, the Applicant could expand 

the existing bulk product terminal onto the project area. Any new construction would be limited to 

uses allowed under existing Cowlitz County development regulations and federal and state permits. 

Potential impacts of the No-Action Alternative are described below. 

Expanding the existing bulk terminal would increase the demand for energy (natural gas, electricity, 

diesel fuel, and gasoline). Cowlitz PUD and Cascade Natural Gas have the capacity to meet the 

anticipated demand and local suppliers would be able to accommodate diesel and gasoline demand. 

Expanding the existing bulk terminal would also increase the demand for natural resources. Use of 

natural resources would not cause a noticeable impact on supplies in the area, and demand for 

natural resources would not adversely affect the supply from local and regional service providers. 

Millennium Bulk Termmals-Longv!ew 

Fmal SEPA Environmental Impact Statement 4.9-7 Apnll017 
365 


31623.296

Chapter 4. Natural Environment: 

Cowlitz County Existing Conditions, Project Impacts, 

Washington State Department of Ecology and Proposed Mitigation Measures 

4.9.6 Required Permits 

The Proposed Action would require building and site development permits from the Cowlitz County 

Department of Building and Planning in relation to the use of energy and natural resources (such as 

electrical and mechanical permits). 

4.9.7 Proposed Mitigation Measures 

This section describes the voluntary mitigation measures that would reduce impacts related to 

energy and natural resources from construction and operation of the Proposed Action. These 

mitigation measures would be implemented in addition to project design measures, best 

management practices, and compliance with environmental permits, plans, and authorizations that 

are assumed as part of the Proposed Action. 

4.9.7.1 Voluntary Mitigation 

The Applicant has committed to implementing the following measures prior to or during 

construction to mitigate impacts on energy and natural resources. 

Prior to construction, prepare a Waste Management Plan in coordination with Cowlitz County's 

Solid Waste Management Plan. The plan will include measures to avoid and minimize the 

generation of wastes and promote waste reuse and recycling. 

• Where feasible, turn off construction vehicles rather than idling engines. 

The Applicant has committed to implementing the following measures during operations to mitigate 

impacts on energy and natural resources. 

Where appropriate, implement energy conservation measures, such as energy-efficient 

electrical system specifications, lighting, mechanical equipment, and building insulation. 

• Switch on lighting in unoccupied areas only when needed and turn off lighting automatically. 

Maximize energy efficiency in facility and equipment specifications and selection, such as 

electric motors that have high power factors, conveyor drives with "quiet drives" that require 

less power to operate, and life-cycle costs advantage of energy efficient components. 

Use power factor correction equipment in substations. 

Use conveyor idlers to specify rim drag to reduce conveyor start up power. 

Revert office equipment to standby mode or switch off when not in use. 

Match vehicle size to the need of the task. 

Choose vehicles based on fuel efficiency. 

• Usc controlled temperature settings on switch room and office air conditioning. 

• Use automatic shutdown controls for idle plant and equipment. 

Manage energy load by using submetering of offices, workshops, conveyors stackers, reclaimers, 

and shiploaders. 

Use soft-start electric motors to minimize peak power demand. 

Millennium Bulk Termmals-Longv1ew 

Fma! SEPA Enwonrnentallmpact Statement 4.9-8 Apn! 2017 
366 


31623.297

Cowlit7 County 

Washington State Department of Ecology 

Chapter 4 Natural Environment: 

Fxisting Conditions, Pro)E'ct Impacts, 

and Proposed Mitigation Measures 

4.9.8 Unavoidable and Significant Adverse Environmental 

Impacts 

Implementation of the voluntary mitigation measures and design features described above would 

reduce impacts on energy and natural resources. There would be no unavoidable and significant 

adverse environmental impacts on energy and natural resources. 

Millennium Bulk Term1nals-tongv1ew 

Fmal SEPA Envnonmenta! Impact Statement 4.9-9 April2017 
367 

Senator BARRASSO. Senator Cardin. 

Senator CARDIN. Mr. Chairman, thank you very much. 

I thank all the witnesses for being here today. 

I would ask consent, if I might, to put into the record, a letter 

from the Attorney General of Maryland, Brian Frosh, raising concern with regard to S. 3303; a letter from the Association of Clean 

Water Administrators also expressing concern with regard to this 

legislation; and related documents. 

Senator BARRASSO. Without objection. 

[The referenced information was not submitted at time of print:] 

Senator CARDIN. Thank you, Mr. Chairman. 

Mr. Willardson, I want to ask a practical question. I have significant concerns about the changes being suggested with regard to the 

401 waiver from the States. I want to ask about the practical problem of shortening the period to 90 days. 

There is an issue whether there is adequate time for a State to 

make that assessment within a 90-day period. There are documents that have to be received and so forth. One of the unintended 

consequences could be that because there is insufficient time and 

information, a States rejects the waiver, therefore counterproductive to the intent of the bill, to expedite the process. 

I would like to get your assessment as to whether this is a real 

concern or not. I have heard from people in Maryland about this 

particular issue. I would like to get your assessment as to how realistic it is for States to have adequate information and make an adequate review within a 90-day period? 

Mr. WILLARDSON. As I noted, most of the decisions are currently 

made within 90 days. Obviously, with a very complex project, such 

as the Millennium Pipeline, it can take more time. The FERC licensing process for hydropower and relicensing generally takes 

about 5 years. FERC has an alternative licensing process which applicants can now opt in to begin early consultation with the States. 

Generally, the 401 question is brought in about 2 years before 

the license would be issued again. Currently, States have 1 year to 

make those determinations. Ninety days would be very difficult on 

complex projects. Obviously, many of these are complex projects. 

As I said, we have not dealt with the pipelines to that degree but 

I would point out in the State of Washington, their determination 

is already under review by the Water Quality Commission which 

will make a determination as to whether or not the director’s decision was appropriate. 

We are very cognizant of the energy needs of this Country, the 

infrastructure needs, and permitting those in a timely manner. I 

would point to the Western Governors Association’s energy policy 

which is in all of the above. 

I would also point out from a council perspective that we have 

worked very hard with our tribal members and with the Crow as 

well on Indian water rights settlements. Under the Clean Water 

Act, tribes are treated as States. They have 401 water quality permitting authority where they have been granted treatment as 

tribes. 

These are very complex projects. Most of them could be completed within the 90 days. Some, I think, it would be very difficult 

to get the information to make a sound decision. 

368 

Senator CARDIN. You may not be familiar with the Conowingo 

Dam which is a very important energy source for the East Coast 

of the United States, the second largest electrical energy generating dam on the East Coast of the United States. It is a very, very 

important source of energy. 

Exelon is the operator of that particular facility. It is in the relicensing stage and review is currently underway. The expectation is 

that ultimately the waiver will be granted but it will be based upon 

certain conditions. That will take well beyond any 90-day period for 

that process. 

It is a pretty complicated process on the Susquehanna and is extremely controversial in regard to water quality in the Bay. Particularly with recent storms, the amount of surge of materials that 

are released is a major concern. A project like that, it is not realistic to look at a 90-day period. 

Mr. WILLARDSON. It would be very difficult to make that determination in 90 days, with the exception of the timing of the request 

for the certification. If that request comes following the completion 

of the environmental impact statement so those questions are coordinated, then the State could act, given that information, promptly. 

Obviously, it would be counterproductive if the time is not sufficient for the State to act because they would simply, as they do 

now, deny the permit generally without prejudice so it could be resubmitted when there was sufficient information or a complete application. 

Senator CARDIN. That is how I expect you would see some of 

these actions by the State in order to get more time if there was 

a hard time period they could not meet. My own assessment in a 

project like the Conowingo Dam is there are so many stakeholders. 

It is such a complicated process. I think it is already 40 years that 

this process goes forward. 

The opportunity only presents itself once in a generation. It is 

the speed bump for a lot of consideration of different issues and a 

lot of stakeholders. It is a complicated process. 

Mr. WILLARDSON. Those permits are generally for 40 or 50 years 

for the operation of the dams. I was a resident of Philadelphia for 

a couple of years so I am familiar with the Susquehanna. 

Senator CARDIN. A lot of good things have happened during the 

certification process. Again, I do not think anyone is questioning 

the continuation of the dam; it is critically important for energy. 

It is also important for water quality that we get it right. 

Thank you, Mr. Chairman. 

Senator BARRASSO. Thank you, Senator Cardin. 

This bill does have the strong support of the American workers 

across the Country. I would like to enter into the record letters of 

support of the bill from representatives of the International Brotherhood of Electrical Workers in Massachusetts, Connecticut, Rhode 

Island, New Hampshire, Vermont and Maine, as well as the Rhode 

Island Building and Construction Trades Council. 

[The referenced information follows:] 

369 


31623.683

6. Do you anticipate an increase in the number of 401 certification requests in the future, and what 

might be the impact on "State administrative resources? 

Most states do not anticipate a significant increase in 401 certification requests. Some do. Some states 

have actually seen significant declines in requests. Again, most requests appear to be related to 404 

permitting, which in turn increase with general economic conditions and related construction starts, oil 

and gas development, etc. 

{Expansion of CWA jurisdiction as may be proposed by new rules could have an undetermined impact on 

the number of requests related to any increase in Section 404 permitting requirements.] 

California expects an increase in requests due to FERC relicensing,license amendments, and new 

projects. Further, as described post-licensing monitoring of conditions, as well as non-hydropower 

certification requests will significantly impact the State's administrative resources. FERC currently lists 

115 non-federal hydropower projects in California, not including transmission line projects, with varying 

expiration dates. Since 2000, 22 FERC project licenses have expired, and another 26 will expire through 

2029, necessitating either relicensing or surrender of the license. Decommissioning can also have water 

quality impacts. SWRCB is already involved in a number of relicensing pre-application activities. The 

Division of Water Rights Water Quality Certification Program also certifies non-hydropower projects that 

involve water rights. 

Colorado does not anticipate a significant increase in the number of requests, but does anticipate 4-S 

very large and complex project certification requests from water diversion and storage projects over the 

next 3-4 years. 

Idaho does expect an increase in requests, as well as additional review requirements related to 

antidegradation reviews and analyses associate with federal permits, placing greater demands on static 

staff. 

New Mexico noted drought limits the viability of hydropower projects. 

Oregon has certified several projects through the federal relicensing process over the past several years. 

Currently there are only a few projects under relicensing review. Oregon anticipates ongoing interest in 

retrofitting both irrigation and drinking water systems with hydro turbines, but many will be exempt 

from licensing and no 401 certification will be required. Many preliminary permit applications have not 

proceeded to licensing, making certification requirements difficult to estimate. 
370 


31623.684

August 13, 2018 

Senator John Barrasso, Chairman 

Committee on Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, D.C. 20510 

Senator Thomas Carper, Ranking Member 

Committee on Environment and Public Works 

456 Dirksen Senate Office Building 

Washington, D.C. 20510 

RE: Water Quality Certification Improvement Act of 2018 (S. 3303) 

Dear Chairman Barrasso and Ranking Member Carper, 

The undersigned trade organizations represent businesses and workers who build 

infrastructure and provide equipment, materials, supplies and services to energy projects and 

operations, including upstream production and midstream transmission infrastructure. The 

projects they build and the operations they support ensure safe, reliable and efficient 

production, transmission and delivery of America's energy to consumers, businesses and 

industry. 

In anticipation of your hearing scheduled for August 16, we are writing in support of the 

recently-introduced Water Quality Certification Improvement Act of 2018 (S. 3303) clarifying 

provisions of Section 401 of the Clean Water Act relating to requests by developers of federallypermitted projects for state water quality certifications needed for final federal project 

approval. 

We especially applaud the proposed Act's amendments requiring that states grant or deny 

those requests in a timely manner and that states inform applicants within 90 days as to 

whether any additional information is needed to complete the review of a water quality 

certification. We also appreciate the clarification that state water quality certification decisions 

under Section 401 be based exclusively upon matters associated with water quality criteria. 

Some states have chosen to exercise their authority under Section 401 in ways that exceed the 

bounds of the statute. When this happens, it damages the cooperative federalism envisioned 

when the Clean Water Act was enacted decades ago, and creates conflict between not only a 

state and the federal government, but also between the offending state and multiple other 

states affected by its action. Action to clarify the appropriate role for a state under Section 401, 

as proposed inS. 3303, would restore the intended cooperative federalism. 

We endorse S. 3303 and believe that its proposed clarifications of Section 401 of the Clean 

Water Act will ensure that the law is interpreted and implemented as originally intended. We 

look forward to your consideration of these points during your Committee hearing and urge the 

Committee and the Senate to act affirmatively on this important reform. 

Sincerely, 
371 


31623.685

ACEC 

American Council of Engineering Companies 

Linda Bauer Darr, President & CEO 

American Road & 

Transportation Builders 

Association 

c~~~--"-- American Road and Transportation Builders Association 

Pete Ruane, President & CEO 

Associated General Contractors of America 

Stephen Sandherr, Chief Executive Officer 

Distribution Contractors Association 

Robert Darden, President & CEO 

American Petroleum Institute 

Mike Sommers, President & CEO 

Associated Equipment Distributors 

Associated Equipment Distributors 

Brian P. McGuire, President & CEO 

Association of Equipment Manufacturers 

Dennis Slater, President & CEO 

I 

Edison Electric 

INSTITU E 

Edison Electric Institute 

Tom Kuhn, President & CEO 
372 


31623.686

dt;/71~ 

Energy Equipment and Infrastructure Alliance 

Toby Mack, President & CEO 

GPA Midstream Association 

Mark Sutton, President & CEO 

Industrial Minerals Association- North America 

Mark Ellis, President 

International Association of Drilling Contractors 

Jason McFarland, President 

f!'!J/2~"~~ Global Energy Institute 

Karen Harbert, President & CEO 

Independent Petroleum Association of America 

Barry Russell, President & CEO 

The INGAA Foundation, Inc. 

Donald F. Santa, President 

Laborers International Union of North America 

Terry O'Sullivan, General President 
373 

Senator BARRASSO. I want to thank all the witnesses for being 

here. Thank you for your testimony and for your timely response. 

The record will stay open for an additional 2 weeks. Members 

may submit written questions. 

Kind of in response to Mr. Stewart’s last answer where he talked 

about an organization or group, I think you mentioned the Sierra 

Club should not be able to stop projects because it is their agenda. 

There is a publication in the New Jersey Spotlight today, August 

16, where it is very clear that Section 401 is viewed by environmental groups and some States as a tool to block energy projects, 

not a tool to keep water clean. 

You talked specifically, Mr. Stewart, about the legislation and 

laws about clean water ought to apply to keeping water clean. The 

director of the New Jersey Sierra Club stated in this article in today’s New Jersey Spotlight, which I am submitting to the record, 

‘‘Section 401 review is probably the most effective tool we have to 

fight pipeline projects,’’ not to keep water clean but to fight 

projects. 

[The referenced information follows:] 

374 


31623.666

0811612018 09:27 15088325351 LOCAL 243 PAGE 02 

LABORERS INTERNATIONAL UNION OF N .A. LOCAL #243 

Marl< Laureyns, Pre.tident 

David Desroches, f!ice President 

J~on Poncr1 s~crctary .. Ttr!O'Stlrer 

Cell: 978-771-6237 

August 15,2018 

Tho Hon, John llarrasso 

Chairman 

882 SOUTHBRIDGE STREET 

AUBURN,MA 01501 

omc~: 508 832-4649 

U.S. Senate Committee on Environment and Public Works 

410 Dirksen Office Building 

Washington, D.C. 2051 0-6175 

Tite Hon. Tom Carpenter 

Ranking Member 

U.S. Senate Committee on Environment nnd Public Works 

410 Dirk"m Office Building 

Washington, D.C. 20510-6175 

Dear Chainnan Barrasso and Ranking Member Carpenter: 

I<cvin J. 01J(fy! Buslrr.rJSS Manager 

John Ma.~ofl, Sergeanf .. At~Arm:J 

Alan Gagne, Recording Secretary 

On behalf of the nearly 400 membtrs of LO<ial 243. l am writing to expt'ess our support for corntnonscnt~~e reform~ that wootd 

remove regulatory barriers to providing New Ensland with the clean, reliable natural ga.• supplies lt desperately needs, To provide a 

reliable solution to New England energy cost crisis, expanding the current natural gas infrastructure represents a guarantee<! chance to 

keep the lighto on and heat our homes during the unpredictable weather in the region. 

The liv~Hhood of our mcmber!i and the economic competitiveness of New Eng.hmd are 11t .stah. Our rnember.s are at the 

forefront -of the -construction industry md rely on family-supporting job~ to esm a living. One oftht most critical clements of our work 

is energy. And the co,\ilt -of energy needed to power equipment and kocp the lights on in our homes and businesses is l.lt an all~tlme high. 

Fortunately, the regional solution to this ongoing energy cost-crisis exists in the fonn of nearby, abundant supplies ofn!ltural 

gas. Unfortunately) the current framework of our regulatory and permitting processes .stand in the way of such a !lio!ution. Fot cxamplc1 

the sta.te ofNew York should not be able to dictate the cneriD" act:~IIS t:~t'its neighbors. Wr! simply cannot afford to disrupten~rgy 

infrastructure improvements with unnecessary regulntory hurdles. 

Continued avoidnnce of these energy infrastructure improyements is not the solution, Clarif)ring existing law ta account far 

the appropriate scope of review for energy projects I$ a .step in the right direction. Please .$.upport tnea5ure~ wk.ich wlll tt:ITIOvc 

unnecessary loopholes and help our region 8e:eure a mort reliable and cost-effective oncrgy future. 

Sinct!:rely, 

Business 

K~~~~ Manager 
375 


31623.667

lehighvalleylive.com 

LEHIGH VALLEY OPINION 

Don't let feds weaken the rules for 

pipelines I letter 

Management Area at a protest event in 2014. (Mmy luvone I For The Times) 

By Express-Times 

One of the most tools in battles to stop unnecessary pipelines is the 401 

Quality The Clean Water Act gives power to states to certify that 

pipeline projects don't pollute waterways. It's something the Federal Energy 

Regulator Commission can't get around. 

Now Congress wants to block states from using this certificate to fight pipelines. This 

is shameful behavior by Washington's fossil fools to help the gas industry. We need 

our House members and senators to block attempts to pass this disastrous 

legislation. 
376 

Senator BARRASSO. With that, I thank the witnesses. We appreciate you all being here. 

This hearing is adjourned. 

[Whereupon, at 11:28 a.m., the committee was adjourned.] 

[Additional material submitted for the record follows:] 

377 


31623.298

Sent by Email and US Mail 

Beth S Ginsberg 

Jason T Morgan 

Stoel Rives LLP 

600 University Street, Suite 3600 

Seattle WA 98101 

Marisa C. Ordonia 

Kristen L. Ooyles 

Jan E. Hasselman 

Earth justice 

705 Second Ave Ste 203 

Seattle WA 98104 

Re: PCHB NO. 17-090 

August 15, 2018 

Thomas J Young, Senior Counsel 

Sonia A Wolfman, Assistant Attorney General 

Ecology Division 

PO Box 40117 

Olympia WA 98504-0117 

Jonathan K. Sitkin 

Timothy D. Schetmctzlcr 

Chmelik Sitkin & Davis P.S. 

1500 Railroad Avenue 

Bellingham, WA 98225 

MILLENNIUM BULK TERMINALS-LONGVIEW, LLC v. STATE OF 

WASHINGTON, DEPARTMENT OF ECOLOGY 

WASHINGTON ENVIRONMENTAL COUNCIL, CLIMATE SOLUTIONS, 

FRIENDS OF THE COLUMBIA GORGE, SIERRA CLUB, and COLUMBIA 

RJVERKEEPER, Intervenors 

Dear Pm1ies: 

Enclosed is the Pollution Control Hearings Board's Order on Summary Judgment in this 

matter. 

This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days. See 

Administrative Procedures Act (RCW 34.05.542) and RCW 43.21 B.l80. 

You are being given the following notice as required by RCW 34.05.461(3): Any party 

may file a petition for reconsideration with the Board. A petition for reconsideration must be 

filed with the Board and served on all parties within ten days of mailing of the final decision. 

WAC 371-08-550. 
378 


31623.299

PCHB Case No. 17-090 

August 15 

Page2 

If you have any questions, please feel free to contact the staff at the Environmental and 

Land Use Hearings Office at 360-664-9160. 

JMM/le/Pl7 -090 

Encl. 

Sincerely, 

Joan M. Marchioro, Presiding 

CERTIFICI\TION 

On this day, I IOrwarded a true and accurate copy of 

thedocumentstowhichthisccrtificatcisllffixedvia 

United States Postal Service postage prepahJ or via delivery through 

State Consolidated Mail Services to the attorneys of r~;conl herein 

I certify under penalty of perjury under the laws of the 

st~~ ~fE6ashin m; th~~ tnfrcgoing'i~ t~ ~~~:~~~~~~~, 

A111tkf1i-.l&Un 
379 


31623.300

POLLUTION CONTROL HEARINGS BOARD 

STATE OF WASHINGTON 

2 

4 

MILLENNIUM BULK TERMINALSLONGVIEW, LLC, 

Appellant, 

5 V. 

6 STATE OF WASHINGTON, 

DEPARTMENT OF ECOLOGY, 

7 

Respondent, 

8 

WASHINGTON ENVIRONMENTAL 

9 COUNCIL, CLIMATE SOLUTIONS, 

FRIENDS OF THE COLUMBIA GORGE, 

10 SIERRA CLUB, and COLUMBIA 

RIVERKEEPER, 

11 

Intervenor-Respondents. 

12 

PCHB No. 17-090 

ORDER ON SUMMARY JUDGMENT 

13 INTRODUCTION 

14 Millennium Bulk Terminals-Longview, LLC (Millennium) filed a Notice of Appeal 

15 seeking review of the Department of Ecology's (Ecology) denial of a Clean Water Act (CWA) 

16 Section 401 Certification (401 Certification) for Millennium's proposed coal export terminal. 

17 Washington Environmental Council, Climate Solutions, Friends of the Columbia Gorge, Siena 

18 Club and Columbia Riverkeepcr (WEC) were granted intervention as respondents. Millennium, 

!9 Ecology, and WEC filed separate motions for summary judgment. BNSF Railway Company 

20 was granted leave to file an amicus curiae brief in support of Millennium. 

2! 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
380 


31623.301

The Board considering this matter was comprised of Board Chair Joan M. Marchioro, 

2 Presiding, and Members Kay M. Brown and NeilL. Wise. Attorneys Beth S. Ginsberg and 

Jason T. Morgan represented Millennium. Senior Counsel Thomas J. Young and Assistant 

4 Attorney General Sonia A. Wolfman represented Ecology. Kristen L. Boyles, Marisa C. Ordonia 

5 and Jan E. Hasselman represented Intervenor-Respondents WEC. 

6 In rendering its decision, the Board considered the following submittals: 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

I. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Millennium's Motion for Summary Judgment on Issues 3-10 and 12; 

Declaration of Beth Ginsberg In Support of Millennium's Motion for Summary 

Judgment, with Exhibits A-C; 

Respondent Department of Ecology's Response to Millennium's Motion for 

Summary Judgment on Issues 3-10 and 12; 

State of Washington, Department of Ecology's Motion for Partial Summary 

Judgment on Legal Issue 2; 

Declaration of Thomas J. Young In Support of Ecology's Response to 

Millennium's Motion for Summary Judgment on Issues 3-10 and 12 and In 

Support of Ecology's Motion for Summary Judgment on Issue 2, with Exhibits AG; 

Declaration of Loree' Randall In Support of Ecology's Response to Millennium's 

Motion for Summary Judgment on Issues 3-10 and 12 and In Support of 

Ecology's Motion for Summary Judgment on Issue 2, with Exhibits A-E; 

Washington Environmental Council eta/. Opposition to Millennium Motion for 

Summary Judgment on Issues 3-10 and 12 and Cross-Motion for Summary 

Judgment on All Remaining Issues; 

Declaration of Marisa Ordonia In Support of Washington Environmental Council 

eta/. Opposition to Millennium Motion for Summary Judgment on Issues 3-10 

and 12 and Cross-Motion for Summary Judgment on All Remaining Issues, with 

Exhibits A-G; 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
381 


31623.302

2 

3 

4 

5 

6 

7 

8 

9 

10 

!1 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

9. Millennium's Reply In Support oflts Motion for Sununary Judgment on Issues 3-

10 and 12; 

10. 

II. 

Second Declaration of Beth Ginsberg In Support of Millennium's Motion for 

Summary Judgment on Issues 3-10 and 12, with Exhibits A-B; 

Millennium Bulk Terminals-Longview's Opposition to Ecology's Motion for 

Summary Judgment on Issues No. 2; 

12. Declaration of Kristin Gaines, with Exhibits A-D; 

13. Declaration of Nicole LaFranchise; 

14. Declaration of Glenn Grette; 

15. 

!6. 

17. 

18. 

19. 

20. 

21. 

22. 

23. 

Declaration of Jason T. Morgan in Opposition to Department of Ecology's 

Motion for Summary Judgment on Issue No. 2, with Exhibits A-F; 

BNSF Railway Company's Amicus Curiae Briefln Support of Millennium Bulk 

Terminals Longview, LLC's Motion for Summary Judgment and In Opposition to 

Department of Ecology's Motion for Partial Summary Judgment; 

Respondent Department of Ecology's Response to BNSF Railway Company's 

Amicus Curiae Brief; 

State of Washington, Department of Ecology's Reply In Support of Motion for 

Partial Summary Judgment on Legal Issue 2; 

Declaration of Sally Toteffln Support of Department of Ecology's Reply to 

Millennium's Response to Ecology's Motion for Summary Judgment on Issue 2; 

Second Declaration of Loree' Randall In Support of Ecology's Motion for partial 

Summary Judgment on Legal Issue 2, with Exhibit A; 

Declaration of Rebecca Rothwell, with Exhibit A; 

Declaration of James DeMay; 

WEC eta!. Reply In Support of Cross-Motion for Summary Judgment; 

ORDER ON SUMMARY JUDGMENT 

PCHB No. !7-090 
382 


31623.303

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

l3 

14 

15 

16 

17 

18 

19 

20 

21 

24. Millennium Bulk Terminals-Longview, LLC's Sur-Reply In Opposition to 

Ecology's Motion for Summary Judgment on Issue 2; and 

25. The Board's file in this matter. 

The parties' motions address the following legal issues from the !'rehearing Order 

previously entered by the Board: 1 

2. 

3. 

4. 

5. 

6. 

7. 

Whether there is reasonable assurance that the construction and operation of 

Millennium's proposed project will meet applicable water quality standards 

pursuant to 40 C.F.R. §121.2(a)? 

Whether Ecology's Denial is ultra vires because it is based on concerns that are 

not related to water quality? 

Whether Ecology's Denial is arbitrary, capricious, contrary to law and 

unsupported by substantial evidence? 

Whether Ecology's application ofRCW 43.21C.060 to support the Denial is 

overbroad? 

Whether Ecology's application ofRCW 43.21C.060 to support the denial is 

preempted by 33 U.S.C. §1341? 

Whether Ecology's was precluded from denying the certification based on RCW 

43.21 C.060 when water quality certifications are exempt from SEPA pursuant to 

WAC 197-11-800(9)? 

8. Whether Ecology waived its certification rights under 33 U.S. C. § 1341? 

9. Did Ecology have substantive authority under the State Environmental Policy Act 

(SEPA), RCW 43.21 C.060, to deny the section 40 I certification with prejudice, 

regardless of whether such authority existed under section 4017 

1 The Board previously granted summary judgment on Issue l, concluding that it had jurisdiction to hear the appeal 

of the denial of a Clean Water Act Section 401 water quality certification under RCW 43.2JB.ll0. Millennium Bulk 

Terminals-Longview. LLC v. Ecology, PCHB No. 17-090 (Order Granting Motion for Partial Summary Judgment on 

Legal Issue!, Feb. 27, 2018). 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
383 


31623.304

2 

3 

4 

5 

6 

7 

8 

9 

10 

10. Was Ecology authorized by the terms of section 401 to use its substantive SEPA 

authority to deny the section 401 certification? 

II. 

I2. 

10.1 Is Ecology's supplemental authority under SEPA (RCW 43.21 C.060) an 

"other appropriate requirement of state law," under the Clean Water Act, 

section 401(d)? 

10.2 Was Ecology's use of substantive SEPA authority to deny the certification 

authorized by section 401 of the Clean Water Act, when the exercise of 

that authority was based, in part, on impacts related to water quality? 

Is Millennium batTed Jiom challenging the Final Environmental Impact 

Statement's findings and conclusions regarding the nine areas of significant, 

adverse, unmitigated impacts cited in Ecology's section 40I denial? 

Did Ecology have authority to deny the section 40 I water quality certification 

"with prejudice" upon concluding that Millennium failed to demonstrate 

reasonable assurance, or was Ecology required to deny the section 40I 

certification "without prejudice"? 

J I On May 31, 2018, the parties presented oral argument on the motions. Based on its 

12 review of the record and foregoing pleadings, and the arguments of the parties, the Board enters 

13 the following decision: 

14 BACKGROUND 

15 Millennium proposes to construct and operate a coal export terminal (the Project) on an 

16 existing industrial site in and adjacent to the Columbia River in Cowlitz County. The Project 

17 would be developed on 190 acres primarily within a 540-acre site leased by Millennium. Coal 

18 would be transpmted to the Project site by rail and stockpiled for eventual loading onto oceanI 9 going vessels for transport to Asia via the Columbia River and Pacific Ocean. The completed 

20 Project would consist of "one operating rail track, eight rail tracks for storing rail cars, rail car 

21 unloading facilities, a stockyard for coal storage, and conveyor and reclaiming facilities. The 

ORDER ON SUMMARY ruDGMENT 

PCHB No. 17-090 
384 


31623.305

terminal would include two new docks (Docks 2 and 3) in the Columbia River, and shiploading 

2 facilities on the two docks. Dredging would be required to provide access to and from the 

3 Columbia River navigation channel (navigation channel) and for berthing at Docks 2 and 3." 

4 Young Dec!., Ex. A at S-1. 

Millennium intends to construct the Project in two stages. During Stage I, Millennium 

6 would construct the two docks, two stockpile pads, railcar unloading facilities, the operating rail 

7 track and rail storage tracks, Project site area b'l'ound improvements, associated facilities and 

8 infrastructure. The Project's throughput capacity at the completion of Stage 1 would be 25 

9 million metric tons of coal per year (MMTPY). Stage 2 facilities, construction of which would 

l 0 begin at the completion of Stage I, consist of one additional ship loader on Dock 3, two 

II additional stockpile pads, conveyors, and equipment necessary to increase throughput to 44 

12 MMTPY. Young Dec!., Ex. A at S-20-22. 

13 The Project will impact more than 32 acres of wetlands and approximately six acres of 

14 ditches. Millennium proposes to mitigate for these impacts through the construction of a wetland 

15 mitigation site of approximately 100 acres. The Project will create new overwaler coverage 

16 totaling 4.83 acres, the impacts of which will be addressed through the construction of an off17 channel mitigation site. Ginsberg Dec!., Ex. A at 3-4. 

18 The Project is intended to operate 24 hours per day, seven days per week, and is designed 

19 for a minimum 30-year period of operation. Young Dec!., Ex. A at S-8. The Project also 

20 requires the dredging of approximately 500,000 cubic yards of sediment from the Columbia 

21 River in order to provide site access from the river's navigation channel and berthing at Docks 2 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
385 


31623.306

and 3. !d., Ex. A at 2-17. At full terminal operations, the Project would "bring approximately 8 

2 loaded unit trains each day carrying coal to the project area, send out approximately 8 empty unit 

trains each day from the project area, and load an average of 70 vessels per month or 840 vessels 

4 per year, which would equal I ,680 vessel transits in the Columbia River annually." !d., Ex. A at 

5 S-8. 

6 Cowlitz County and Ecology served as co-lead agencies for environmental review of the 

7 Project under the Washington State Environmental Policy Act (SEPA), ch. 43.21C RCW. On 

September 9, 20 13, Cowlitz County issued a revised Determination of Significance stating that 

9 the Project was likely lo result in significant adverse environmental impacts and that an 

I 0 environmental impact statement (EIS) was required. Cowlitz County and Ecology elected to 

II prepare a joint SEPA EIS. Young Dec!., Ex. A at S-2. 

12 On April 28, 2017, Cowlitz County and Ecology issued the final EIS (FEIS) for the 

13 Project. The FEIS identified unavoidable and significant adverse environmental impacts 

14 associated with construction and operation of the Project, as well as proposed mitigation 

15 measures. With respect to the significant adverse enviromnental impacts and mitigation, the 

16 FEIS stated: 

17 If the proposed mitigation measures were implemented, they would reduce but 

not completely eliminate significant adverse environmental impacts resulting 

18 from construction and operation of the [Project]. Unavoidable and significant 

adverse environmental impacts could remain for nine environmental resource 

19 areas: social and community resources; cultural resources; tribal resources; rail 

transportation; rail safety; vehicle transportation; vessel transportation; noise 

20 and vibration; and air quality. 

21 Young Dec!., Ex. A at S-41; see also S-41-44, S-46-60. The FEIS was not appealed. 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
386 


31623.307

In order to construct the project, Millennium must obtain a CWA Section 401 water 

2 quality certification from Ecology. 33 U.S.C. §§ 1341. Millennium submitted a Joint Aquatic 

Resources Permit Application requesting a Section 401 water quality certification from Ecology. 

4 On September 26, 2017, Ecology issued Order# 15417 denying Millennium's request for a 

5 Section 40 I water quality certification with prejudice. Ecology denied the 401 Certification on 

6 two bases: (I) the Project's significant, unavoidable adverse impacts identified in the FEIS 

7 conflicted with Ecology's SEPA policies in WAC 173-802-11 0; and (2) Ecology did not have 

8 reasonable assurance that the Project as proposed would meet applicable water quality standards 

9 and other appropriate requirements of state Jaw. Ginsberg Dec!., Ex. A. Millennium timely 

10 appealed Ecology's decision. 

1I ANALYSIS 

12 A. Summary Judgment Standard 

13 Summary judgment is a procedure available to avoid unnecessary trials where there is no 

14 genuine issue of material fact. Am. Express Centurion Bank v. Stratman, 172 Wn. App. 667, 

]5 675-76, 292 P.3d 128 (20 12). The summary judgment procedure is designed to eliminate trial if 

16 only questions oflaw remain for resolution, and neither party contests the facts relevant to a 

17 legal determination. Rainier Nat'/ Bank v. Security State Bank, 59 Wn. App. 161, 164, 796 P.2d 

18 443 (1990), review denied, 117 Wn.2d 1004 (1991). 

19 The party moving for summary judgment must show there are no genuine issues of 

20 material fact and the moving party is entitled to judgment as a matter of law. Magula v. Benton 

21 Franklin Tille Co., Inc., 131 Wn.2d 171, 182, 930 P.2d 307 (1997). A material fact in a 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
387 


31623.308

summary judgment proceeding is one affecting the outcome under the governing law. Eriks v. 

2 Denver, 118 Wn.2d 451, 456, 824 P.2d 1207 (1992). If the moving party satisfies its burden, 

3 then the nonmoving party must present evidence demonstrating that material facts are in dispute. 

4 Atherton Condo Ass 'n v. Blume Dev. Co., 115 Wn.2d 506, 516,799 P.2d 250 (1990). Bare 

5 assertions concerning alleged genuine material issues do not constitute facts sufficient to defeat a 

6 summary judgment motion. Sentine/C3, Inc. v. Hunt, 181 Wn.2d 127, 140,331 P.3d 40 (2014). 

7 When determining whether an issue of material fact exists, all facts and inferences are construed 

8 in favor ofthe nonmoving party. Jones v. Allstate Ins. Co., 146 Wn.2d 29 t, 300, 45 P.3d I 068 

9 (2002). The Board will enter summary judgment for a non-moving pruty under appropriate 

10 circumstances. Impecoven v. Department of Revenue, 120 Wn.2d 357, 365, 842 P.2d 470 

II (1992). 

12 The pruties contend that there are no material issues in dispute and this matter is 

13 appropriate for summary judgment. The Board concurs. 

14 B. Ecology can use substantive SEPA to deny 401 certification (Issues 3, 4, S, 6, 7, 9 and 

10) 

15 

16 

17 

18 

19 

20 

21 

Millennium challenges Ecology's use of substantive SEPA authority to deny the 401 

Certification. Millennium asserts that, pursuant to WAC 197-11-800(9), its 401 Certification 

request for the Project is categorically exempt from the requirements of SEPA. Millennium also 

contends that Ecology's use of substantive SEPA authority to deny the 401 Certification 

exceeded the scope of the agency's authority under Section 401 of the CW A. 

ORDER ON SUMMARY JUDGMENT 

POlB No. 17-090 
388 


31623.309

Ecology and WEC disagree. Citing WAC 197-11-305(l)(b), they argue that because 

2 segments of the Project are not SEPA exempt, the 401 Certification is likewise not exempt. 

3 Ecology and WEC asse11 that because SEP A is supplementary to all other existing 

4 authorizations, an agency can use its substantive SEPA authority to deny a pem1it even though 

5 all criteria for the permit have otherwise been met. Finally, Ecology and WEC argue that no 

6 provision of the CWA precludes Ecology's use of substantive SEPA authority when acting on a 

7 401 ce11ification request. 

8 As discussed below, the Board agrees with Ecology and WEC. Under the facts of this 

9 case, the 401 Certification is not categorically exempt tram SEPA. Nor docs Section 401 of the 

10 CWA preclude Ecology's use of substantive SEPA in this instance. The Board concludes that 

11 Ecology's use of substantive SEPA authority to deny Millcm1ium's 401 Certification request was 

12 not clearly erroneous. Therefore, the Board grants summary judgment to Ecology and WEC on 

13 Issues 3, 4, 5, 6, 7, 9, and 10. 

14 1. SEPA 

15 With the enactment of SEPA in 1971, the legislature sought to bring an environmental 

!6 consciousness into government decision making. Columbia Riverkeeper v. Port of Vancouver 

17 USA, 188 Wn.2d 80, 91, 392 PJd 1025 (2017). The stated purposes ofSEPA are 

18 ( 1) To declare a state policy which will encourage productive and enjoyable 

harmony between humankind and the environment; (2) to promote efforts which 

19 will prevent or eliminate damage to the environment and biosphere; (3) and [to] 

stimulate the health and welfare of human beings; and (4) to enrich the 

20 understanding of the ecological systems and natural resources important to the 

state and nation. 

21 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
389 


31623.310

RCW 43.21C.OIO (alteration in original). SEPA recognizes the broad policy "that each person 

2 has a fundamental and inalienable right to a healthful environment." RCW 43.21C.020(3). The 

3 primary focus of SEPA is on the decision making process. SEPA seeks to ensure that 

4 environmental values are given appropriate consideration. Stempel v. Dep 't of Water Res., 82 

5 Wn.2d 109, 118,508 P.2d 166 (1973); Moss v. City of Bellingham, 109 Wn. App. 6, 14,31 P.3d 

6 703 (200 I). SEP A imposes a duty on the government agency to assemble and review full 

7 environmental information before rendering a decision. Davidson Series & Assocs. v. City of 

8 Kirkland, 159 Wn. App. 616,634-35,246 P.3d 822 (2011). 

9 SEPA requires an EIS only for "major actions having a probable significant, adverse 

I 0 environmental impact." Boehm v. City of Vancouver, Ill Wn. App. 711, 718, 47 P.3d 137 

II (2002); RCW 43.21 C.031 (I). "The primary function of an EIS is to identify adverse impacts to 

12 enable the decisionmaker to ascertain whether they require either mitigation or denial of the 

13 proposal." Victoria Tower P'ship v. City of Seattle, 59 Wn. App. 592, 601, 800 P.2d 380 (1990); 

14 WAC 197-11-400(2) ("An EIS shall provide impartial discussion of significant environmental 

15 impacts and shall inform decision makers and the public of reasonable alternatives, including 

16 mitigation, that would avoid or minimize adverse impacts or enhance environmental quality.") 

17 The purpose of an EIS is to provide decision makers with "sufficient information to make a 

18 reasoned decision." Citizens Alliance To Protect Wetlands v. City of Auburn, 126 Wn.2d 356, 

19 362, 894 P.2d 1300 (1995). 

20 

21 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
390 


31623.311

Issuance of an EIS does not approve or deny a project. Rather, the EIS accompanies a 

2 proposal through the agency review process so that agency officials can use the document when 

3 making permitting decisions. RCW 43.21C.030(2)(d). "Any governmental action may be 

4 conditioned or denied" based on the adverse environmental impacts disclosed in an EIS. RCW 

5 43.21C.060; WAC 197-11-660; Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 64, 578 P.2d 

6 1309, 1312 ( 1978)("SEP A confers substantive authority to the deciding agency to act on the 

7 basis of the impacts disclosed"). The granting or denial of a Section 401 water quality 

8 certification is a governmental action within the meaning ofRCW 43.21C.060. See WAC 197-

9 11-704(2) ("actions" defined to include the licensing of a project). Ecology is the state agency 

10 authorized to issue or deny certifications under Section 401 ofthe CWA. RCW 90.48.260. 

II The policies and goals of SEPA are supplementary to "existing authorizations of all 

12 branches of government." RCW 43.21C.060. SEPA serves as an "overlay" on existing 

13 authority, making formerly ministerial decisions discretionary. Polygon, 90 Wn.2d at 65. Using 

14 SEPA substantive authority, a decision maker may deny a permit even if it meets all of the 

15 requirements for approval under permit criteria. Polygon, 90 Wn.2d at 63-65; West Main Assoc. 

16 v. City of Bellevue, l 06 Wn.2d 47, 53, 720 P.2d 782 (1986) ("under [SEPA], a municipality has 

17 the discretion to deny an application for a building permit because of adverse environmental 

18 impacts even if the application meets all other requirements and conditions for issuance"). 

19 The denial of a proposal must be predicated "upon policies identified by the appropriate 

20 governmental authority and incorporated into regulations, plans, or codes which are formally 

21 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
391 


31623.312

designated by the agency" or appropriate legislative body. RCW 43.21C.060; WAC 197-11-

2 660(1)(a). In order to deny a proposal under SEPA, a decision maker must find that 

3 (I) The proposal would be likely to result in significant adverse environmental 

impacts identified in a final or supplemental environmental impact statement 

4 prepared under this chapter; and (2) reasonable mitigation measures are 

insufficient to mitigate the identified impact 

5 

RCW 43.21C.060; WAC 197-ll-660(1)(f). "The decision maker shall cite the agency SEPA 

6 

policy that is the basis of any condition or denial under this chapter[.]" WAC 197-11-660(1)(b). 

7 

Failure to sufficiently document compliance with these requirements can result in reversal of a 

SEPA-bascd deniaL2 Cougar Mountain Assoc. v. King County, Ill Wn.2d 742,752-53,765 

9 

P.2d 264 (1998). 

10 

2. Millennium's 401 Certification request not categorically exempt from SEPA 

11 

Certain actions are statutorily or administratively exempt from SEPA's threshold 

12 

determination and EIS requirements. Statutory exemptions are set forth in chapter 43.2 I C RCW. 

13 

As for administrative or categorical exemptions, the legislature directed Ecology to adopt rules 

14 

identifying categories of govemmental actions "not to be considered as potential major actions 

15 

significantly affecting the quality of the environment" RCW 43.21B.IJO(I)(a). Additionally, 

16 

"the rules shall provide for certain circumstances where actions which potentially are 

17 

categorically exempt require environmental review. An action that is categorically exempt under 

18 

the rules adopted by the department may not be conditioned or denied under this chapter." !d. 

19 

20 

:z Millennium does not claim that Ecology's 401 Certification decision failed to comply with the requirements of 

2! RCW43.21C.060orWAC 197-11-660(1). 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
392 


31623.313

Reviewing this provision, the court of appeals stated that its plain language directed Ecology "(1) 

2 to develop its own list of government-action categories that are not major actions affecting the 

3 quality of the environment ('administratively-created' categorical exemptions), and (2) to create 

4 a rule-based exception that governs when a proposal potentially falling under an otherwise 

5 exempt government-action category may nonetheless require environmental review." Alpine 

6 Lakes Prot. Soc'y v. Dep't of Ecology, 135 Wn. App. 376, 391, 144 P.3d 385 (2006). 

7 Canying out the legislative directive, Ecology adopted a number of categorical 

8 exemptions. See WAC 197-11-305,-800 to -890. The SEPA regulations define "categorical 

9 exemption" as "the type of action, specified in these rules, which does not significantly affect the 

10 environment[.]" WAC 197-11-720. One such categorical exemption is the granting or denial of 

11 a Section 401 water quality certification. WAC 197-11-800(9). Addressing the directive to 

12 create an exception to exemption, the SEPArules provide in relevant part that a proposal is not 

13 categorically exempt if"(b) [T]he proposal is a segment of a proposal that includes: (i) [a] series 

14 of actions, physically or functionally related to each other, some of which are categorically 

15 exempt and some of which arc not[.]"3 WAC 197-11-305(l)(b)(i). Under the SEPA regulations, 

16 "proposal" means "a proposed action. A proposal includes both actions and regulatory decisions 

17 ofagencics as well as any actions proposed by applicants." WAC 197-11-784. 

18 

19 

20 3 Citing to WAC 197-11-305, the definition of"categorica1 exemption" states that the SEPA rules "provide tor those 

circumstances in which a specific action that would fit within a categorical exemption shall not be considered 

21 categorically exempt[.]" WAC 197-11-720. 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
393 


31623.314

Millermium contends that its 40 I Certification request is categorically exempt from 

2 SEPA. As such, pursuant to RCW 43.21C.IIO(l)(a) Ecology could not use substantive SEPA 

3 authority to deny the request. Millennium argues that by identifying a Section 40 I water quality 

4 certification as an action categorically exempt from SEPA, Ecology determined that such action 

5 remains categorically exempt even if Millennium's proposal as a whole is subject to SEPA. 

6 According to Millennium, Ecology is incorrect in claiming that WAC 197-ll-305(1)(b)(i) 

7 negates the categorical exemption status of its 40 l Certification request. Millennium asserts that 

8 its reading of WAC 197-ll-305(1)(b)(i) is supported by the court of appeals decision in Clallam 

9 County Citizens for Saft Drinking Water v. City of Port Angeles, 137 Wn. App. 214, !51 P.3d 

I 0 I 079 (2007). 

II Ecology and WEC argue that, under WAC 197-ll-305(1)(b)(i), Millennium's 401 

12 Certification request is not categorically exempt as it is part of a larger proposal where some 

13 actions are categorically exempt and others are not. They assert that this conclusion is consistent 

14 with Ecology's longstanding interpretation of its own regulation and, as such, it is entitled to 

15 deference. See Randall Dec!., Ex. A at~ 4. Ecology and WEC contend that, because 

16 Millennium's 401 Cettification request was not SEPA exempt, Ecology rightfully employed its 

17 SEP A substantive authority to deny 40 I Certification for the Project. Finally, Ecology asserts 

18 that Millennium's reliance on Clallam County Citizens is misplaced as the court's reasoning in 

19 that case was unique and did not establish any binding precedent on this issue. 

20 The Board concludes that Millennium's request for a 401 Certification is not 

21 categorically exempt from SEPA. The categorical exemption for Section 401 water quality 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
394 


31623.315

certifications does not apply to Millennium's 401 Certification request as it is undisputedly a 

2 segment of a proposal that includes"[ a l series of actions, physically or functionally related to 

each other, some of which are categorically exempt and some of which arc not[.]" WAC 197-

4 11-305(1 )(b)(i); Foster v. King County, 83 Wn. App. 339, 348, 921 P.2d 552 (1996) (SEPA 

5 "categorical exemptions do not apply to actions that are a mixture of exempt and non-exempt 

6 activities"). 

7 This conclusion is consistent with Ecology's longstanding interpretation of its SEPA 

8 regulations. See Randall DecL, Ex. A at~ 4 (if project requires at least one SEPA non-exempt 

9 pem1it, Ecology requires compliance with SEPA for 401 certification). Ecology's interpretation 

10 of its own regulation is entitled to great weight, unless such interpretation conflicts with the 

II statute's plain language. Port of Seattle v. Pollution Control Hearings Board, 151 Wn.2d 568, 

12 593-94, 90 P.3d 659 (2004). The Board concludes that Ecology's interpretation does not conflict 

13 with RCW 43.21CIIO, which specifically directs Ecology to develop a rule addressing those 

14 instances when an otherwise categorically exempt action would be subject to SEPA 

15 The Board disagrees with Millennium's assettion that Clallam County Citizens suppotts 

16 its position that WAC 197-11-305(l)(b)(i) does not apply. It is unclear precisely what proposal, 

17 if any, the Court of Appeals considered in its analysis when it summarily concluded that WAC 

18 197-11-305(1 )(b )(i) did not apply because the underlying action was categorically exempt from 

19 SEPA. !d. at 222. As a result, the decision in Clallam County Citizens lacks necessary clarity on 

20 the status of a SEP A categorical exemption in the context of a larger proposal. The Board does 

21 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
395 


31623.316

not consider Clallam County Citizens to be helpful to its resolution of the categorical exemption 

2 issue raised in this case. 

3. CW A Section 401 does not preclude use of substantive SEP A 

4 Millennium asserts that the plain language ofCWA Section 401(a)(l), 33 U.S.C. § 

5 134l(a)(l ), precludes Ecology's use of substantive SEPA authority when reviewing a request for 

6 a Section 401 water quality certitication. According to Millennium, under Section 401 (a)(1) 

7 Ecology can only consider whether a discharge meets the applicable provisions of the CWA set 

8 forth in that section, all of which relate to water quality. 33 U.S. C.§ 1341(a)(l) (citing sections 

9 1311, 1312, 1313, 1316, and 1317). 1n support of this assertion, Millennium relies on Arnold 

10 Irrigation District v. Department of Environmental Quality, 79 Or. App. 136, 717 P.2d 1274 

11 (1986), where the Oregon court reversed the state's finding of non-compliance with land use 

12 regulations as the basis for denying a Section 401 water quality certification. 

13 Millennium further asserts that Section 401 (a) preempts Ecology's use of SEP A 

14 substantive authority to deny the 401 Certification. Millennium states that its use of the word 

!5 "preempt" is intended to mean "to prevent from happening or taking place" and it is arguing that 

16 Ecology's denial was ultra vires, not that there is field or conflict preemption. Millennium 

17 Reply at 8. Millennium contends that Ecology acts under federal law when deciding whether to 

18 issue a Section 401 water quality certification and the agency "cannot use state law authority to 

19 expand the scope of federal certification requirements under 33 U.S.C. § 134l(a)." Millennium 

20 Mot. for S.J. at 13 (emphasis omitted). Millennium asserts that, by using substantive SEPA 

21 authority, Ecology is improperly attempting to graft an additional criterion into Section 

ORDER ON SUMMARY JUDGMENT 

PCI!ll No. 17-090 
396 


31623.317

401(a)(l). Millennium argues that the 401 Ce11ification denial must be set aside as Ecology did 

2 not limit its denial to water quality effects of the discharge under the CW A sections identified in 

Section 401(a)(l ). 

4 Rejecting Millennium's reading of Section 401, Ecology argues that the text of the statute 

5 does not prescribe what the agency may consider when denying a Section 40 I water quality 

6 certification. Ecology and WEC note that SEPA is supplementary to all other authorizations and 

7 assert that, in order for it not to apply to Section 401, it must be preempted. Millennium did not 

engage in a preemption analysis, choosing instead to simply cite the text of Section 401. 

9 Ecology and WEC contend that the CW A does not preempt SEPA and Ecology can use 

10 substantive SEPA to deny Millennium's 401 Certification request even if the Project meets all of 

II the standards in Section 40 I. 

12 Ecology and WEC assert that Millennium's reliance on Arnold is misplaced as Oregon 

13 does not have a statutory equivalent to SEPA. Ecology contends that, contrary to Millennium's 

14 assertion, the state Supreme Court's citation of Arnold in Dep 't of Ecology v. PUD No. I of 

15 Jefferson C)., 121 Wn.2d 179,849 P.2d 646 (1993) lends no support to its argument that Section 

16 401 "supersedes" state law. Rather, the state Supreme Court cited Arnold only for the 

17 proposition that Section 40l(d) provides a state with broad authority to condition a project. 

18 Ecology and WEC fUI1her contend that Arnold and other out-of-state cases cited by Millennium 

19 are inapplicable as they dealt with hydroelectric projects subject to the jurisdiction of the Federal 

20 Energy Regulatory Commission (FERC) and governed by the Federal Power Act. Unlike the 

21 CWA, the Federal Power Act preempts state and local law. According to Ecology and WEC, 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
397 


31623.318

absent preemption of SEP A by the CW A, Ecology was not precluded from using its SEPA 

2 substantive authority in denying Millennium's 401 Certification request. 

The Board concludes that the text ofCWA Section 401 does not preclude Ecology's use 

4 of substantive SEPA authority when acting on a Section 401 water quality certification request. 

5 As detailed above, SEPA's policies and goals are supplementary to "existing authorizations of all 

6 branches of government." RCW 43.2!C.060. SEPA serves as an "overlay" on existing 

7 authority, making formerly ministerial decisions discretionary. Polygon, 90 Wn.2d at 65. A 

8 decision maker can use SEPA substantive authority to deny a permit even if it meets all of the 

9 requirements for approval under permit criteria. Polygon, 90 Wn.2d at 63-65; West Main Assoc. 

10 v. City of Bellevue, 106 Wn.2d 47, 53,720 P.2d 782 (1986). Pursuant to RCW 43.21C.060, 

[ 1 "[a]ny governmental action may be conditioned or denied" under SEPA. See WAC 197-11-660; 

12 Polygon, 90 Wn.2d at 64. There is no dispute that the f,>ranting or denial of a Section 401 water 

13 quality certification constitutes a governmental action within the meaning ofRCW 43.21C.060. 

14 See WAC 197-11-704(2). The Board concludes that Ecology lawfully employed its SEPA 

15 substantive authority to deny Milleimium's 401 Certification request based on the significant 

16 adverse environmental impacts identified in the FEIS. 

17 The Board further concludes that court's reasoning in Arnold does not apply to this case. 

18 Unlike Washington, Oregon does not have a statute comparable to SEPA. In addition, Arnold 

19 involved a FERC permit governed by the Federal Power Act, which preempts state and local 

20 laws. First Iowa Hydro-Elec. Coop. v. FPC, 328 U.S. 152, 181-82 (1946) (Federal Power Act 

21 establishes comprehensive federal scheme for regulating hydroelectric power projects on 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
398 


31623.319

navigable waters and thus preempts state law by occupying the field). Contrary to Millennium's 

2 claim, the text of Section 40 I does not suppo1t the conclusion that Ecology is precluded from 

3 employing SEPA in the review of a Section 401 water quality certification request. 

4 4. Ecology's denial of 401 Certification not clearly erroneous 

5 Unless otherwise required by law, the Board's scope and standard of review shall be de 

6 novo. WAC 371-08-485(1). SEPA does not prescribe the scope or standard ofreview on 

7 appeal. Deferring to case law, the Board reviews the exercise of SEPA substantive authority to 

8 condition or deny a proposal under the "clearly erroneous" standard of review. Polygon Corp. v. 

9 Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (J 978); see also McQuarrie v. Seattle, SHB No. 08-033 

10 (Findings of Fact, Conclusions of Law, and Order, Aug. 5, 2009) ("review of an agency's 

11 exercise of substantive SEPA authority (i.e. the content of agency action, such as mitigation or 

12 conditions) is also under the clearly erroneous standard"). Under this standard, the Board "does 

13 not substitute its judgment for that of the administrative body and may find the decision clearly 

14 erroneous only when it is left with the definite and firm conviction that a mistake has been 

15 committed." Polygon, 90 Wn.2d at 69 (quoting Ancheta v. Daly, 77 Wn.2d 255,259-60,461 

16 P.2d 531 (1969)) (internal quotations omitted). 

17 There are no material issues of fact in dispute that preclude the granting of summary 

18 judgment. In this case, Ecology relied on the unchallenged FEIS in exercising its SEPA 

19 substantive authority to deny the 401 Certification. Millennium does not dispute the factual 

20 findings in the FEIS. The Board will not substitute its judgment for that of Ecology when 

21 reviewing under a clearly erroneous standard of review. Based on the Board's review ofthe 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
399 


31623.320

FEIS, and the FEIS's conclusion that the Project will have unavoidable and significant adverse 

2 impacts, the Board is not left with the definite and firm conviction that Ecology made a mistake 

3 when it denied Millennium's request for a 401 Certification under the agency's substantive 

4 SEPA authority. The Board grants summary judgment to Ecology and WEC on Issues 3, 4, 5, 6, 

5 7, 9 and 10 and dismisses Millennium's appeal. 

6 c. Remaining Issues (Issues 2, 8, 11, and 12) 

7 The remaining issues ask whether there was reasonable assurance that the Project would 

meet water quality standards, whether Ecology waived its certification rights under Section 401,4 

9 whether Ecology had authority to deny the 401 Certification with prejudice, and whether 

I 0 Millennium was barred from challenging the FEIS. Because the Board concludes that the 401 

II Certification is not exempt from SEPA and Section 40 I ofthe CW A does not preclude 

12 Ecology's use of substantive SEPA to deny a certification request, it need not reach Issues 2, 8, 

13 II, and 12. 

14 

15 

16 

17 

18 

19 

20 

21 

4 Section 40 l (a)( l) of the CW A provides that if a state certifying agency "fails or refuses to act on a request for 

certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request," the 

state agency waives its right to issue a certification. 33 U.S.C. § l34l(a)(l). Millennium asserted that, although 

Ecology acted on the certification request within the one year time period, Ecology's actions in denying certification 

were "tantamount to a refusal or failure to act in the manner contemplated by section 40 I, and the Board should 

declare and adjudge that Ecology has waived its opportunity to certify the project." Millennium Mot. for S.J. at 22. 

\Vhile the Board need not reach the issue, it does note that Section 401 by its unambiguous terms limits the finding 

of waiver to a determination of whether the certifying agency acted within the prescribed time period, There is no 

dispute that Ecology acted within one year of receiving Millennium's 401 Certification request. No legal basis 

exists for the Board to take the action advanced by Millennium. 

ORDER ON SUMMARY JUDGMENT 

PCHB No. 17-090 
400 


31623.321

2 The Board GRANTS summary judgment to Washington Environmental Council, Climate 

3 Solutions, Priends of the Columbia Gorge, Sierra Club and Columbia Rivcrkccpcr, and the State 

4 of Washington, Department of Ecology on Issues 3, 4, 5, 6, 7, 9 and I 0 and AFFIRMS the 

5 Department of Ecology's denial of the Clean Water Act Section 401 Certii!cation requested by 

6 Millennium Bulk Terminals-Longview, LLC. 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

~iVi 

SO ORDERED this J day of August, 2018. 

ORDER ON SUMMARY JUDGMENT 

PCfiB No. 17-090 

POLLUTION CONTROL HEARINGS BOARD 
401 


31623.322

[/ntE>tJwliona[ !Bwthnhood of £{r;.d>ticaf<Wo>tkeu 

Locaf 1Unlon dVo. 96 

August 13, 2017 

The Honorable John Barrasso 

Chairman 

242 MILL STREET • WORCESTER, MASSACHUSETIS 01602 

TElEPHONE: (508) 753-a635 

U.S, Senate Committee on Environrnent and Publfc Works 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-5175 

The Honorable Tom Carper 

Ranking Member 

U.S. Senate Committee an Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-5175 

Dear Chairman Barrasso and Ranking Member Carper: 

For over 100 years, IBEW Local96 has provided electrical services across Worcester County. Our 350 

members ensure the lights are on in the businesses and residences In our region. 

Natural gas plays a critical role In meeting our region's energy needs. lt is clear that New England 

currently lacks the adequate pipeline capacity to meet growing demand and keep costs low for energy 

consumers. 

The expansion of our region's pipeline infrastructure has come to a standstill despite such persistent 

energy challenges. Recently, the state of New York has blocked pipeline development. Our region 

already pays some of the highest electrl1:1ty and home heating prices in the nation. Without 

commonsense reform and willing regional partners, this situation will threaten the wallets of consumers 

In our region and the livelihood of our members. 

We simply cannot afford unnecessary regulatory barriers which prevent the modernization of our 

natural gas infrastructure. Clarifying existing law regarding the appropriate scope and review of regional 

pipeline projects and removing regulatory abuses under the dean water certification process is a critical 

step forward. 

Addressing pipeline obstruction in the northeast is long overdue. Not only is it commonsense 

governance, it has the potential to unleash economic savings and improve the fuel security of our region 

as well. 

Business Manager 
402 


31623.323

The Honorable John Barrasso 

Chairman 

RHODE ISLAND 

fl\JlLDJNG TRADES 

U.S. Senate Committee on Environment and 

Public Works 

c/o John Barrasso(Jibarrasso.senatc.gov 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-6175 

The Honorable Tom Carper 

Ranking Member 

U.S. Senate Committee on Environment and 

Public Works 

Tom Capcr@.caper.senate.gov 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-6175 

Dear Chairman Barrasso and Ranking Member Carper: 

August 15, 2018 

The Rhode Island Building and Construction Trades Council represents seventeen (17) unions 

and approximately 9,500 members in and around the Rhode Island area. On behalf of our organization 

I am writing to you regarding to support proposed reforms to the Clean Water Act. 

Currently, states are using existing provisions of the CW A to deny pipeline permits for projects 

that already have approval by FERC. This abuse has and is resulting in the loss of hundreds of 

construction jobs for existing projects. This situation is adversely affecting our economy, the 

construction industry, and our members in particular. Moreover, it is driving up energy costs that is 

resulting in citizens not being able to afford to pay their energy bills as well as stifling new economic 

development. 

The proposed reforms do not diminish existing environmental standards in anyway; rather it 

clarifies the intent and scope of existing law and insulates the process from being politicized. 
403 


31623.324

The Honorable John Barrasso 

The Honorable Tom Carper 

August 15, 2018 

Page 2 

Accordingly, on behalf of our council! am writing to you to support these efforts. Thank you for your 

time and attention to this correspondence. If you have any questions, please do not hesitate to contact 

the undersigned. 

Sincerely, 

is/Michael F. Sabitoni 

Michael F. Sabitoni 

President 

lion. Sheldon Whitehouse- Sheldon whitchousc(i/!whitchouse.scnatc.QOV 

EPW GOP Staff Director Richard Russell - !i\)l~llL.Lu5.~ill:<:L'Jl\',.'.C.lJili~£'2l: 

EPW Democratic Staff Director Mary frances Repko-- man lh111cc, rg,l,oJ'~Ql.\1~\',''li'l~Sl': 

Elizabeth Horner-- LU!<.~hctb_I_L(lr!lCr{/_.9l\\.sc·mllf.g'l': 

Christophe Tulou --lJ:II:j~l\l.[>Jlf_IL<IQli.!:Li.l'l~~'illJGillll 

Elizabeth L. llorner.l:li!«.!lc.lllJlc'Lil£'"d_cl2\\~'"·m't.C:.g_(l}: 

410 South Main Street, Providence, Rl 02903 
404 


31623.334

nate ))escription Citation I Appendix 

Page Numbers 

.June 21, 2012 NYSDEC submitted a letter to Constitution that Appendix 000022-

identifies "initial areas of DEC concern to be included in 000026. 

the draft [Environmental Impact Statement]." 

.July 17, 2013 NYSDEC submitted a letter to FERC stating that it Appendix 000080-

"intends to rely upon the federal environmental review 000122;000027 

prepared pursuant to [NEPA] to determine if the Project 000032. 

will comply with the applicable New York standards." 

NYSDEC submitted an identical statement to FERC in a 

November 7. 2012 letter to the Commission. 

.July 18-19,2013 NYSDEC conducted a two-day field visit of streams with Appendix 000123-

the Corps and Constitution. NYSDEC ·'selected as many 000125. 

priority streams as access, visibility and time will allow." 

July 22-23, 2013 NYSDEC conducted another two-day field visit of Appendix 000126. 

streams with the Corps and Constitution. Again, 

NYSDEC ·'selected as many priority streams as access, 

visibility and time will allow.'' 

f-july 31 - NYSDEC conducted another two-day field visit of Appendix 000127 

August I, 2013 streams with the Corps and Constitution. 000130. 

August 7-8, 2013 NYS DEC conducted another two-day field visit of Appendix 00013 I -

streams with the Corps and Constitution. "The 000133. 

remainder ofNYDEC protected streams will be visited." 

August 22, 2013 Constitution submitted a single joint application to I Appendix 000134-

NYSDEC for a Section 40 I water quality certification 000136 (letter); 000 !37 

and to the Corps for a Section 404 permit. - 000139 Uoint 

application form). 

September 5, 2013 Constitution submitted to NYSDEC a spreadsheet that Appendix 000140-

compiled information regarding the streams visited 000149. 

during field views in July and August 2013. "Each visit 

consisted of an engineering and biological assessment of 

the type and method of crossing [and] helped clarify the 

feasibility of construction methods." 

September 12, 2013 NYSDEC issued to Constitution a Notice oflncompletc Appendix 000 !50 -

Application identifying additional steps and information 000 !53 (letter); 000154 

required for the application to be deemed complete. (notice). 
405 


31623.335

Date Description Citation I Appendix 

Page Numbers 

September 13, 2013 Constitution sent an email to NYSDEC following up on Appendix 000155 -

the spreadsheet that Constitution submitted on September 000164. 

5, 2013 that compiled information regarding the streams 

visited during field views in July and August 2013. 

"[W]e would like to get confirmation from DEC on our 

field notes relative [to] Protection of Water jurisdiction 

and timing restrictions .... •· 

September 23, 2013 Constitution sent an email to NYSDEC to invite Appendix 000165 -

NYSDEC and the Corps on a field visit to a stream 000174. 

property for which Constitution was granted access. 

NYSDEC and the Corps agreed that day to conduct the 

field visit on September 26,2013. 

September 26, 2013 NYSDEC conducted another field visit with the Corps Appendix 000177. 

and Constitution to visit a stream property for which 

Constitution was granted access. 

November 14,2013 NYSDEC conducted an additional field visit with Appendix 000178 

Constitution to visit NYSDEC-regulated wetlands. 000183. 

"We'll cover as many wetlands as we can ... based on 

time and land permissions:· 

November 27, 2013 Constitution submitted to NYSDEC a supplement to its Appendix 000184-

application that included, among other things, updated 000376. 

information for components of the Project that had been 

modified or new inf(mnation that had been obtained 

since the August 2013 application submission. This 

supplemental information addressed the items in 

NYSDEC's September 12,2013 Notice of Incomplete 

Application. 

January 14,2014 Constitution submitted to NYSDEC applications to Appendix 000377-

conduct geotechnical investigations for Pine Hill Road 000380. 

and Old Route 96. 

January 29, 2014 Constitution submitted to NYSDEC a Scope of Work Appendix 000381 

regarding the evaluation of Alternative M in order to (email); 000382-

further evaluate routing sections of Alternative M within 000384 (scope of 

the Interstate 88 controlled access area. work). 
406 


31623.336

Date Description Citation I Appendix 

Page Numbers 

March 3, 2014 NYSDEC wrote in an email to Constitution that it ''will Appendix 000385-

allow blasting if needed in dewatered trenches" as long 000386. 

as NYSDEC is able "to witness the first blasting to 

confirm that minimal impacts to biota is occurring."' 

NYSDEC's email went on to state that "[i]fwe lind 

anything that needs changing. we would hope to be able 

to work together to make any needed operational 

changes." 

March 4, 2014 The Corps issued its public notice regarding Appendix 000387-

Constitution'sjoint application, reflecting its 000398. 

determination that Constitution's application was 

complete. 

March 17, 2014 NYSDEC issued to Constitution a request that Appendix 000399 

Constitution further evaluate Alternative M as a route (letter); 000400-

alternative. 000403 (scope of 

work). 

April 23, 2014 Constitution submitted to NYSDEC applications to Appendix 000427 

conduct geotechnical investigations for Middle Brook in 000530. 

the vicinity ofSexsmith Lake Road, Steward Road, and 

Highway 23. 

April 23-25, 2014 NYSDEC conducted additional stream and wetland field Appendix 000531 -

reviews with the Corps and Constitution. "We have 000534. 

selected as many priority streams as property access, 

visibility and time will allow." 

April 29, 2014 Constitution submitted to NYSDEC a Storm water Appendix 000535-

Pollution Prevention Plan outlining the Best 000536. 

Management Practices ("BMPs'') that Constitution will 

implement before, during, and after construction to 

minimize erosion of disturbed soils and transportation of 

sediment outside of the construction right-of-way and 

into environmentally sensitive areas such as wetlands and 

streams. 

May 9, 2014 At NYSDEC's request, Constitution withdrew and Appendix 000540 -

resubmitted its application. 000541. 
407 


31623.337

·-----· Date Description Citation I Appendix 

Page Numbers 

.June 16,2014 Constitution submitted to NYSDEC a 582-page analysis Appendix 000545 -

of Alternative M, addressing NYSDEC's request that 001!!9. 

Constitution analyze Alternative M's constructability and 

environmental impact. NYSDEC never commented on 

litis submission to eitfter Constitution or FERC, and 

NYSDEC did not seek rehearing of FERC's Certificate. 

. June 19, 2014 NYSDEC conducted another field visit with Constitution Appendix 001120 . 

to view NYSDEC-regulated wetlands. 

July 3, 2014 NYSDEC issued a 4-page memorandum to Constitution Appendix 001121-

with recommendations for revised materials in support of 001124. 

Constitution's application. Constitution revised its 

application format as requested. See, e.g. August 13, 

2014 and September 30, 2014 entries, infra. 

1-=-c-------·-

July 9, 2014 Constitution met with NYSDEC and Corps staff to Appendix 00112s---

discuss the recommendations set forth in NYSDEC's (email); 001126 

July 3, 2014 memorandum. (agenda). 
408 


31623.338

Date Description Citation I Appendix 

Page Numbers 

August 13, 2014 Constitution submitted to NYSDEC a supplement to its Appendix 001127 

application that included, among other things: 001133 (letter). 

. the recommendations made in NYSDEC's July 3, 

2014 memorandum (detailed in italicized font), 

followed by Constitution's responses as to the 

location within the support documentation 

submitted to date where the requested 

information can be found, 

. an updated hydraulic and hydrologic analysis for 

waterbodics crossed by the project, 

. new wetland and waterbody features that were 

field delineated since the application was filed. 

. an expansion of details in the Waterbody and 

Wetland Impact Master Table in response to 

specific items that NYSDEC recommended in its 

July 3, 2014 memorandum, and 

. a table that details all of the NYSDEC requested 

re-routes and Constitution proposed re-routes 

associated with the project since August 2013. 

September 5, 2014 Pennsylvania issued its Section 40 I Certification for the Appendix 001134-

Project. 001139. 

September 12, 2014 Constitution emailed NYSDEC with a list of components Appendix 001140-

that wi II be included in wetland and waterbody feature- 001141. 

specific documentation packages, the re-packaging that 

NYSDEC had requested. 

September 30, 2014 Constitution submitted to NYSDEC reformatted Appendix 001142 

application materials as requested in NYSDEC's July 3, 001188 (excerpt). 

2014 memorandum. The application was reformatted to, 

among other things, include all relevant information tor 

eacb wetland or waterbody crossing in one package. 
409 


31623.339

Date Description Citation I Appendix 

Page Numbers 

October 24, 2014 FERC issued a 450-page Final Environmental Impact Appendix 001189 

Statement for the project, concluding that any adverse 001653 (FElS); 001654 

environmental impacts from the Project would be - 00 16 72 (excerpt of 

reduced to less than significant levels with the FERC FElS appendix). 

implementation of Constitution's proposed mitigation 

and the additional measures recommended by staff in the 

Final Environmental Impact Statement. The Final 

Environmental Impact Statement also included an 

appendix that explicitly concurred with Constitution's 

assessment that it is not practicable to use trenchless 

crossing methods for waterbodies less than 30 feet in 

width. 

October 31, 2014 NYSDEC conducted another field visit with Constitution Appendix 001674-

to visit perennial stream crossing locations that NYSDEC 001681. 

identified. 

November 10, 2014 NYSDEC conducted another field visit with Constitution Appendix 001684-

to visit additional perennial stream crossing locations that 001685. 

NYSDEC identified. 

November 13, 2014 Constitution and NYSDEC met to discuss remaining Declaration of Keith 

items to be provided in order to support a ·'Notice of Silliman,,, 7. 

Complete Application.'' 

November 17,2014 Constitution submitted additional information in Appendix 001682-

response to NYSDEC's November 13, 2014 request in 001683. 

order to support a Notice of Complete Application. 

November 18,2014 NYSDEC called Constitution and stated that NYSDEC Declaration of Keith 

was targeting November 26,2014 for issuance of the Silliman. '18. 

Notice of Complete Application. 

·-- November 24, 2014 Constitution submitted to NYSDEC responses to Appendix 001686 

NYSDEC comments on Constitution's proposed wetland 001696. 

mitigation plan. 

December 1, 2014 Constitution submitted to NYSDEC a letter responding Appendix 001697 

to NYSDEC's request for additional clarification (made 001699. 

during a November 25, 2014 phone call) regarding 

proposed wetland impacts. 
410 


31623.340

Date 

December 2, 2014 

Date 

December 3, 2014 

December 24,2014 

December 31, 2014 

Description Citation I Appendix 

Page Numbers 

FERC issued a Certificate of Public Convenience and Appendix 001700 

Necessity authorizing the Project and determining that it 00!757. 

would serve the national public interest by transpotting 

necessary supplies of natural gas to markets in New York 

and New England. 

Constitution had no less than forty meetings, conference calls, and 

field visits with NYSDEC between December 2, 2014 and July 8, 

2015, including three meetings in December 2014. three meetings 

in January 2015, three meetings in February 2015, four meetings in 

March 2015, six meetings in April 2015. eleven meetings and three 

field visits in May 2015, five meetings in June 2015, and two 

meetings in July 2015. 

Description Citation I Appendix 

Page Numbers 

NYSDEC stated in a conference call with Constitution Declaration of Keith 

that it was waiting on the Governor's office for Silliman,~ 9; Appendix 

authorization to issue the Notice of Complete 001758. 

Application. 

NYSDEC issued its Notice of Complete Application for Appendix 001759 -

Constitution's Section 401 Certification application. 001766. 

NYSDEC sent an email to Constitution that included an Appendix 001767 

Excel spreadsheet attachment labeled "Boring (email); 001768 

Feasibility." The email did not include any information (spreadsheet). 

request, but rather stated that "Josh has lett for the day 

but I believe the attached is what he was looking at this 

morning when we spoke." This is the correspondence 

that NYSDEC claims in its April 22, 2016 denial letter is 

NYSDEC's "informational request table" for stream 

crossing techniques. 
411 


31623.341

Date Description Citation I Appendix 

Page Numbers 

January 22,2015 Constitution submitted to NYSDEC a report detailing Appendix 001769-

changes to previously proposed trench less crossing 001771 (letter); 001772 

locations based on the subsurface geotechnical • - 002191 (report). 

investigations that Constitution conducted at the majority 

of the proposed HOD and Direct Pipe trench less 

locations. 

January 23,2015 Constitution met with NYSDEC to present on its ~I'.?e~~;,, 002192-

crossing methods for protected streams. 193 (email); 

002194 002196 

(attendance sheet). 

January 27, 2015 NYSDEC sent an email to Constitution requesting Appendix 002197 

geotechnical reports for two particular crossings. That 002199. 

same day. Constitution responded via email that the 

geotechnical data for these crossings was included with a 

hardcopy version submitted to NYSDEC. 

February 2, 2015 Constitution submitted to NYSDEC an updated >Vetland Appendix 002200 

mitigation plan. (letter). 

February 4, 2015 NYSDEC made a recommendation to re-route the project Appendix 00220 I -

around a wetland complex located on and adjacent to the 002205. 

Kernan parcel. Constitution subsequently agreed to this 

re-route. See, e.g., February 19,2015 and July 8, 2015 

entries, infra. 

February 6, 2015 Constitution submitted to NYSDEC additional Appendi~g~~;~~ information in support of its trenchless crossing 

feasibility studies, including justification for using dry 001672 (excerpt of 

crossing methods for streams less than 30 feet in width. FERC FE!S appendix). 

This information was in response to NYSDEC's 

December 31, 2014 request. FERC had already 

concurred with Constitution's assessment that it is not 

practicable to use trench less crossing methods for 

waterbodies less than 30 feet in width. 

February 19,2015 NYSDEC proposed a re-route around a wetland complc" Appendix 002213. 

on the Kernan property. 
412 


31623.342

Date Description Citation I Appendix 

Page Numbers 

March 2, 2015 NYSDEC requested, via email, that Constitution provide Appendix 002214. 

a map that depicts all NYSDEC wetlands along the 

project route. Constitution provided to NYSDEC a set of 

maps ofNYSDEC wetlands on March 24,2015. 

March 17, 2015 NYSDEC provided to Constitution a list of twenty Declaration of Keith 

streams that NYSDEC wanted Constitution to cross via Silliman, '11 II; 

trenchless crossing methods. Appendix 002215 

(email); 002216-

002217 (list). 

March 24, 20 IS Constitution provided to NYSDEC a set of maps that Appendix 002218 

depict all NYSDEC wetlands along the project route, as 002248. 

requested by NYSDEC on March 2, 2015. 

March 27, 2015 Constitution submitted supplemental information to Appendix 002249 -

NYSDEc, which updated information in its application 002253 (letter). 

obtained through additional survey access, including, 

among other things: 

. revised full size alignment sheets depicting the 

I 

project route, 

I . full size drawings of access roads, 

. a revised blasting plan with further detail 

regarding in-water blasting, 

. revised site-specific drawings for all wetlands and 

waterbodies crossed by the Project, 

. specific items requested by NYSDEC in its July 

3, 2014 memorandum, including details regarding 

waterbody and wetland impacts, 

. an updated trench less feasibility report including 

the results of geotechnical investigations and 

trench less feasibility assessments for certain 

wetlands and waterbod ies proposed to be crossed 

utilizing HDD or Direct Pipe trench less 

construction methods. 
413 


31623.343

Date Description Citation I Appendix 

Page Numbers 

April1, 2015 Constitution continued to have weekly calls with Appendix 002254. 

NYSDEC. An agenda for the call on April 1, 2015 

included the wetland mitigation plan, the re-route around 

the wetlands on the Kernan property, and an update on 

trench less crossings, among other things. 

April 20, 2015 NYSDEC sent an email to Constitution increasing the Appendix 002255 

number of streams that it wanted Constitution to cross (email); 002256 (list). 

via trenchless crossing methods to 26. 

April 21, 2015 Constitution met with NYSDEC to review a draft permit Declaration of Keith 

that NYSDEC had prepared. While NYSDEC had Silliman,~ 13. 

assured Constitution that it was close to issuing the 

Section 401 Certification, it then advised Constitution 

that due to NYSDEC's concern about the "one-year" 

deadline for it to act on the Section 401 Certification 

under the Clean Water Act, NYSDEC would deny the 

application unless Constitution withdrew and resubmitted 

the pending permit application. NYSDEC assured 

Constitution that this withdrawal and refiling approach 

was in Constitution's best interests and would not delay 

the agency's processing of the Section 401 Certification. 

April24, 2015 Constitution submitted to NYSDEC a report responding Appendix 002257-

to NYSDEC's list of streams f(lf trenchless construction 002258 (letter); 002259 

consideration. including conceptual drawings depicting (trenchless crossings); 

the layout f(lr the trenchless construction method at each 002260 002261 (draft 

stream and potential draft permit conditions. permit conditions); 

002262-002298 

(drawings). 
414 


31623.344

Date 

April27, 2015 

April 29, 2015 

May 5-6,2015 

May 11-12,2015 

Description 

At NYSDEC's urging, Constitution again withdrew and 

resubmitted its application for a Section 401 

Certification. That same day, NYSDEC published its 

second Notice ofComplcte Application. wherein 

NYSDEC informed the public that the ''re-submitted 

application incorporates all application materials 

previously provided" and that public comments that were 

previously submitted to NYSDEC did not need to be resubmitted. Also that day, NYSDEC sent Constitution an 

email to "follow-up to our meeting here last week to 

discuss draft permit conditions .... " NYSDEC also 

conducted additional field visits with the Corps and 

Constitution to visit several streams to be crossed by the 

project. ''At each location we will discuss the proposed 

trenchless crossing method developed by Constitution's 

engitteering staff" 

NYSDEC issued a press release stating that: 

fdfue to the extended willler preventing 

necessary field work by staff, DEC requested 

additional time to complete its review of any 

potential impacts on wetlands and water quality 

... [a]s requested and to continue the substantial 

progress reviewing the application and supporting 

documents that has been made to date. the 

applicant withdrew and subsequently resubmitted 

its application with IUJ changes or modifications 

... the applicant's withdrawal and resubmission is 

not expected to utulu(v delay tile agency's final 

determination. (Emphasis added.) 

Constitution met with NYSDEC to further discuss stream 

crossing methods and draft permit conditions. 

Following the April27, 2015 Notice ofComplete 

Application, NYSDEC conducted additional field visits 

with the Corps and Constitution over two days "to look 

at streams previously inaccessible." These were the last 

field Pi.~ its that NYSDEC C!mducted. 

Citation I Appendix 

Page Numbers 

Declaration of Keith 

Silliman,~ 13; 

Appendix 002299 

002300 (letter); 002301 

-002302 (notice); 

002303 (email); 

002304-002305 (field 

visit itinerary). 

Appendix 002306-

002307. 

Declaration of Keith 

Silliman,~ 14; 

Appendix 002308. 

Appendix 002309 

002315. 

L__ ____________ _l _________________________________ __L _______ _ 
415 


31623.345

Date Description -ca.;,;oo Page Numbers < AP<""'"' ~ 

May 13,2015 Constitution submitted to NYSDEC revisions to the Appendix 002316 

proposed re-route around wetlands on the Kernan (emml); 002317 (map) 

property. "'Constitution would hke concurrence from the 

DEC that the items discussed in the field have been 

addressed and you concur with the proposed [re-route] 

.... " Constitution subsequently submitted to NYSDEC 

supplemental information for the 2.9 mile re-route 

around the wetland complex on the Kernan property that 

NYSDEC had requested. Constitution purchased the 

land rights associated with this re-route at a cost of 

$3,540,000. See July 8, 2015 entry, infra. 

May 20,2015 Constitution submitted to NYSDEC drawings showing Appendix 0023 18 

the conceptual layout of the preferred trenchless crossing 002320 (letter); 002321 

method for each waterbody, a spreadsheet detailing (spreadsheet). 

Constitution's feasibility evaluation oftrcnchless 

construction methods at protected waterbodies as 

identified by NYSDEC, photos of each waterbody 

crossing location, and geological maps used to identify 

the location of each waterbody relied on to formulate 

certain assumptions in the Trench less Feasibility 

Assessment. 

May 22,2015 NYSDEC sent an email to Constitution eliminating Appendix 002322. 

I certain streams for consideration oftrenchless crossing 

methods, which narrowed the number of streams for 

analysis of trench less crossing methods to 21. 

May 26,2015 Constitution met with NYSDEC to discuss Constitution's Declaration of Keith 

wetland mitigation plan and NYSDEC's request that Silliman,~ 15; 

Constitution purchase a 70-acre shoreline parcel along Appendix 002323. 

Canadarago Lake in Otsego County that was under threat 

of development in order to preserve, in perpetuity, the 

high quality wetlands that existed at the site. 

1--:-::--

May27,2015 NYSDEC provided comments on Constitution's stream Appendix 002324-

crossing feasibility analysis. Constitution submitted an 002329. 

updated stream crossing feasibility analysis in response 

to NYSDEC's comments on June 30, 2015. See June 30, 

2015 entry, i~fra. 

_ _j 
416 


31623.346

Date Description Citation I Appendix 

Page Numbers 

.June 2, 2015 Constitution submitted a 158-page "Responsiveness Appendix 002330-

Summary" to NYSDEC. which addressed all of the 002487; Declaration of 

thousands of public comments related to water quality, Keith Silliman, 1 17. 

stream crossings, wetlands, pipeline burial depth, 

alternatives, cumulative impacts, and blasting, among 

other issues that were raised during NYSDEC's public 

comment periods. Among other things, the 

Responsiveness Summary discusses a conditioned 

Section 40 I Certitlcation that would require the 

submission of additional geotechnical information after 

the issuance of the Section 40 I Certification. 

.June 5, 2015 Constitution submitted an updated Stormwater Pollution Appendix 002488-

Prevention Plan to NYSDEC. 002489 (letter); 002490 

! - 002631 (plan 

excerpt). 

.June 11,2015 Constitution met with NYSDEC to further discuss stream Declaration of Keith 

crossing methods, wetland mitigation, and draft permit Silliman,, 18; 

conditions. Appendix 002632-

002633. 

June 16, 2015 Constitution sent an email to NYSDEC with a document Appendix 002634 

labeled Final Trench less Conditions. The document (email); 002635 

included a proposed two-page permit condition for 002636 (final 

trench less waterbody crossings subject to a site-specific trenchless conditions); 

constructability and risk assessment, including a 00263 7- 002640 

geotechnical investigation. That same day, Constitution (memo); Declaration of 

submitted a memo to NYSDEC summarizing the June Lynda Schubring,,~ 7-

11, 2015 meeting with respect to the inclusion of the lL 

Canadarago Lake property in Constitution's wetland 

mitigation package and to outline Constitution's 

understanding ofNYSDEC's expectations regarding the 

timing for acquisition of the property and the level of 

detail to be included in the mitigation plan. Constitution 

subsequently purchased a 70-acre shoreline parcel along 

Canadarago Lake in Otsego County, New York that was 

under threat of development in order to preserve, in 

perpetuity, the high quality wetlands that exist at the site. 

Constitution purchased the Canadarago Lake property for 

$475,000. 
417 


31623.347

Date Description Citation I Appen~ Page Numbers 

June 22, 2015 Constitution met with NYSDEC to discuss Constitution's Declaration of Keith --

proposed trench less crossings. Silliman,~ 18; 

Appendix 002641. 

,June 30,2015 Constitution submitted to NYSDEC an updated Stream Appendix 002642 

Crossing Feasibility Analysis matrix evaluating the (email); 002643 

technical feasibility of using trench less methods on the (spreadsheet). 

21 streams identified by NYSDEC for trench less 

crossings, and incorporating responses to NYSDEC's 

comments on the feasibility analysis, as requested by 

NYSDEC on May 27, 2015 ("Here is the updated version 

of the trench less crossing matrix, updated based on our 

discussion over the last two weeks"). 

July 8, 2015 NYSDEC indicated in a phone call that Constitution's Declaration of Keith 

Stream Crossing Feasibility Analysis matrix was Silliman,~ 20; 

sufficient for review. NYSDEC also indicated that it had Appendix 002644 

no comments on the Responsiveness Summary. Further, (agenda); 002645 

NYSDEC told Constitution that it expected to issue the 002672 (supplemental 

water quality certification by tlte end of July 21115. That in formation on resame day, Constitution submitted to NYSDEC route); Declaration of 

supplemental information for the 2.9 mile re-route Lynda Schubring,~ I I. 

around the wetland complex on the Kernan property that 

NYSDEC had requested. Constitution purchased the 

land rights associated with this re-route at a cost of 

$3,540,000. 

July 14, 2015 Constitution submitted to NYSDEC additional Appendix 002673-

information in support of the Canadarago Lake wetland 002680. 

mitigation site, following up on the June 11,2015 

meeting between NYSDEC and Constitution. 

.July 20,2015 Consistent with the expectation that NYSDEC expected Appendix 002681 -

to issue the Section401 Certification by the end of .July 002703 (trenchless 

2015, NYSDEC provided a draft Section 401 1 crossing conditions on 

Certification to the Corps. The terms ofthe draft 002699- 002701 ). 

certification confirmed that NYSDEC and Constitution 

had a mutual understanding regarding permit conditions 

regarding trenchless crossings that would require 

I additional geotechnical analysis after tlte issuance of the 

I 

Section 401 Certification to confirm feasibility. 
418 


31623.348

Date Description Citation I Appendix 

Page Numbers 

July 27,2015 The Corps cmailed NYSDEC regarding comments on the Appendix 002704-

draft Section 40! Certification and asked if there is "a 002706. 

chance we can get them to you next week?" NYSDEC 

responded: '"Things are moving fast here. The sooner the 

better." 

July 28, 2015 NYSDEC advised Constitution in a phone call that it had Declaration of Pamela 

no unresolved substantive issues and hoped to issue the Goodwin,~ 6. 

water quality certilication to Constitution by August 7, 

20!5. 

.July 29-30, 2015 In a series of cmails between NYSDEC and Constitution, Appendix 002707-

NYSDEC proposed permit conditions regarding 002708; Declaration of 

temporary stream crossing bridges and the depth of Keith Silliman,~ 2!. 

abutments in stream beds. Constitution concurred with 

the proposed conditions via email. On July 29,2015, 

NYSDEC advised Constitution in a phone call that the 

then-acting NYSDEC Commissioner had signed off on 

Constitution's permits and had directed them for 

issuance. 

August 3, 2015 NYSDEC again informed Constitution in a phone call Declaration of Keith 

that it had no remaining issues with respect to Silliman,~ 22. 

Constitution's application. 

August 7, 2015 NYSDEC advised Constitution in a phone call that Declaration of Keith 

although NYSDEC was ready to issue the permits, the Silliman,, 23. 

Governor 1

S office was not. 

August 18, 2015 NYSDEC advised Constitution that the permit had been Declaration of Keith 

signed and was merely awaiting approval from the Silliman,, 24. 

Governor's office to be dated and issued. 

August 28, 2015 NYSDEC advised Constitution in a phone call that a Declaration of Keith 

public notice for permit issuance had been drafted. Silliman,~ 25. 
419 


31623.349

Date 

!-September 4, 2015 

September 10, 2015 

September 14, 2015 

September 15, 2015 

NYSDEC cannot point to a single document after August 2015 

where it requested additional information regarding the fl1ur bases 

for its denial: stream-crossing methods, depth of pipeline burial 

under waterbodies, blasting in or ncar watcrbodies, and wetlandcrossing methods. 

* * * 

Description Citation I Appendix 

Page Numbers 

Constitution asked NYSDEC in an email whether draft Appendix 00270~ 

watermarks could be removed from the Responsiveness 002710. 

Summary. NYSDEC responded in an email that it 

''cannot answer your questions at this time.,. 

Constitution requested a status update from NYSDEC on Declaration of Keith 

permitting. NYSDEC did not request any additional Silliman,~~ 26; 

information with respect to Constitution's Section 401 Appendix 002711. 

Certification application. 

Constitution submitted an application to NYSDEC for Appendix 002712 

approval to conduct geotechnical investigation test 002713. 

boring operations in Schoharie County, New York. 

NYSDEC approved the permit for this work on 

November 5, 2015. 

Constitution submitted to NYSDEC supplemental Appendix 002714-

information to conform Constitution's site-specific plans 002720; Declaration of 

to survey data obtained from parcels acquired through Lynda Schubring,~~ 

judicial condemnation proceedings. The updated 12-14. 

information resulted in a decrease of308.38 acres in 

impacts fi·om the original August 2013 application. 

NYSDEC did not provide any response, feedback, or 

questions regarding this supplement. 
420 


31623.350

nate 

October 15, 2015 

October 26, 2015 

November 2, 2015 

November 5, 2015 

November 9, 2015 

Constitution periodically contacted NYSDEC regarding the status 

of permits up until NYSDEC's denial letter on April 22, 2016. 

Each time, NYSDEC indicated in phone calls that no further action 

had been taken concerning the Section 40 I Certification. and at no 

time did NYSDEC indicate that it was waiting for additional 

information from Constitution. 

*** 

l>escription Citation I Appendix 

Page Numbers 

Constitution submitted an application to NYSDEC for Appendix 002721 

approval to conduct geotechnical investigation test 002793. 

boring operations at certain locations in Delaware 

County, New York. NYSDEC approved the permit for 

this work on October 26, 2015. 

NYSDEC approved Constitution's September 14,2015 Appendix 002794-

application to conduct geotechnical investigation test 002808. 

boring operations at certain locations in Schoharie 

County, New York. NYSDEC also approved 

Constitution's October 15,2015 application to conduct 

geotechnical investigation test boring operations at 

certain locations in Delaware County, New York. 

Constitution submitted a revised Third-Party Monitoring Appendix 002809-

Plan to NYSDEC. 002811 (letter); 002812 

-002871 (revised 

plan). 

NYSDEC approved Constitution's September 14, 2015 Appendix 002872 -

application to conduct geotechnical investigation test 002895. 

boring operations at certain additional locations in 

Schoharie County, New York. 

Constitution submitted an application to NYSDEC for Appendix 002896-

approval to conduct geotechnical investigation test 002968. 

boring operations at certain additional locations in 

Delaware County, New York. NYSDEC approved the 

permit for this work on November 18, 2015. 
421 


31623.351

Date Description Citation I Appendix 

Page Numbers 

November 18, 2015 NYSDEC issued a letter to Constitution requesting that Appendix 002969-

I 

Constitution revise the communication protocol in the 002971 (letter); 002972 

Third-Party Monitoring Plan. That same day, NYSDEC , -- 002978 (permit). 

approved Constitution's application to conduct 

geotechnical investigation test boring operations at 

certain locations in Delaware County, New York. 

November 23, 2015 Constitution submitted a letter to NYSDEC responding Appendix 002979-

to NYSDEC's comments on Constitution's Third-Party 002980 (letter); 002981 

Monitoring Plan and providing an updated Third-Party - 003 041 (updated 

Monitoring Plan. plan). 

Occembcr II, 2015 Constitution submitted to NYSDEC an updated Appendix 003042-=-----

Storm water Pollution Prevention Plan outlining the Best 003062. 

Management Practices (''BMPs") that Constitution will 

implement before, during, and after construction to 

minimize erosion of disturbed soi Is and transportation of 

sediment outside of the construction right-ol~way and 

into environmentally sensitive areas such as wetlands and 

streams. Constitution's Stormwater Pollution Prevention 

Plan includes site-specific drawings that depict the 

location and configuration of the project workspace and 

specific BMPs, which NYSDEC has approved to control 

discharges necessary to meet applicable water quality 

standards. NYSDEC's April 22, 2016 denial letter 

makes 110 reference to Constitution's site-specific plans 

and dmwi11gs ussociated willt tile Stormwater Pollution 

Prevention Plan. 

.January 4, 2016 Constitution had a stutus call with NYSDEC. NYSDEC Declaration of Keith 

did not request any additional information with respect to Silliman.~~ 26; 

Constitution's Section 401 Certification application. Appendix 003063. 

.January 7, 2016 NYSDEC sent an email to Constitution requesting a Appendix 003064. 

conference call to discuss the most recent version of 

Constitution's Third-Party Monitoring Plan. 

January 20, 2016 Constitution met with NYSDEC to provide an Appendix 003065 -

informational brieting for NYSDEC conservation 003067 (attendance 

oflicers and Forest Rangers. The meeting covered the I sheet); 003068 

environmental inspector and third-pm1y monitoring 003113 (briefing). 

program. in addition to security briefings. 
422 


31623.352

Date Description Citation I Appendix 

Page Numbers 

February 23, 2016 NYSDEC issued a letter to Constitution stating that it Appendix 003!14-

would concur with Constitution's third-party monitoring 003115. 

plan as long as Constitution incorporated certain 

communication procedures. Constitution did so via 

submission dated March 28, 2016, 

March 17,2016 Constitution requested a status update tfom NYSDEC on Declaration of Keith 

permitting. NYSDEC did not request any additional Silliman, 'If 26; 

information with respect to Constitution's Section 401 Appendix 003116. 

Ccrtiftcation application. 

March 28,2016 Constitution submitted to NYSDEC a revised third-party Appendix 003117-

monitoring plan, incorporating NYSDEC's February 23, 003118 (letter); 003119 

2016 comments. : - 003 178 (revised 

plan). 

April 20, 2016 The Corps confirmed by letter that it received all the Appendix 003179 

information it had requested in prior permit review 003180. 

correspondence and that it was waiting only for the 

Section 401 Cettification from NYSDEC. 

April 22, 2016 NYSDEC issued a letter notice denying Constitution's Appendix 003181 -

application for a water quality certification, claiming that 003194. 

Constitution failed to provide "sufficient information to 

enable the Department to determine if the Application 

demonstrates compliance with" New York's water 

quality standards. 

May II, 2016 The Corps denied Constitution's application for a Clean Appendix 003195 

I 

Water Act Section 404 permit without prejudice to 003196. 

i 

Constitution's right to reinstate review of the application 

upon submission orNYSDEC's waiver of its Section 401 

Certification. 
423 


31623.353

17-3770-ag 

In re N.Y. State Dep't of Envtl. Conserv. v. FERC 

3Jn tbe 

Wniteb $>tates <!Court of ~ppeals 

jfor tbe ~econb (!Circuit 

AUGUST TERM 2017 

No. 17-3770-ag 

of12 

NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, 

Petitioner, 

SARAH E. BURNS, AMANDA KING, MELODY BRUNN, BRUNN LIVING 

TRUST, PRAMILLA MAUCK, CHAIR OF PROTECT ORANGE COUNTY, 

PROTECT ORANGE COUNTY, (POC), AN ASSOCIATION, 

Intervenors, 

v. 

FEDERAL ENERGY REGULATORY COMMISSION, 

Respondent, 

MILLENNIUM PIPELINE COMPANY, L.L.C. and CPV VALLEY, L.L.C., 

Intervenors. 

Petition for Review from the Federal Energy Regulatory 

Commission. 

Nos. CP16-17-000, CP16-17-003. 

ARGUED: JANUARY 24, 2018 

DECIDED: MARCH 12, 2018 
424 


31623.354

[)(!CUll H'l!l .. J 

2 No. 17-3770-ag 

Before: CABRANES, LIVINGSTON, and CARNEY, Circuit judges. 

Petitioner New York State Department of Environmental 

Conservation requests that we vacate two orders of the Federal 

Energy Regulatory Commission. Together, these orders authorized 

Intervenor-Respondent Millennium Pipeline Company, L.L.C. to 

construct a natural gas pipeline in Orange County, New York, and 

determined that the Department had waived its authority to provide 

a water quality certification for the pipeline project under Section 401 

of the Clean Water Act. 

We DENY the petition for review. 

FREDERICK A. BRODIE, Assistant Solicitor General 

(Barbara D. Underwood, Solicitor General; 

Andrew D. Bing, Deputy Solicitor General Lisa M. 

Burianek, Deputy Bureau Chief; and Brian 

Lusignan, Assistant Attorney General, on the brief), 

for Eric T. Schneiderman, Attorney General, State 

of New York, Albany, NY,for Petitioner. 

ROBERT H. SOLOMON, Solicitor (James P. Danly, 

General Counsel; Holly E. Cafer, Senior Attorney; 

and Ross Fulton, Attorney, on the brief), Federal 

Energy Regulatory Commission, Washington, DC, 

for Respondent. 

CAROLYN ELEFANT (Sarah A. Burns, New York 

University School of Law, New York NY; and 

David Wallace, David Wallace Law Offices, 
425 


31623.355

c 

3 

of 12 

No. 17-3770-ag 

Montague, NJ, on the brief), Law Offices of Carolyn 

Elefant, PLLC, Washington, DC, for Intervenors 

Sarah E. Burns, Amanda King, Melody Brunn, 

Brunn Living Trust, Pramilla Malick, Chair of 

Protect Orange County, Protect Orange County, 

(POC) an association. 

CATHERINE E. STETSON (Sean Marotta, Hogan 

Lovells US LLP, Washington, DC; and Paul 

Korman, Michael R. Pincus, and A. Gregory Junge, 

Van Ness Feldman LLP, on the brief), Hogan 

Lovells US LLP, Washington, DC, for Intervenors 

Millennium Pipeline Company, L.L.C. 

Elizabeth W. Whittle, Nixon Peabody LLP, 

Washington, DC, for Intervenors CPV Valley, L.L.C. 

JOSE A. CABRANES, Circuit Judge: 

The questions presented are: (1) whether the Federal Energy 

Regulatory Commission ("FERC") correctly determined that 

petitioner New York State Department of Environmental 

Conservation ("the Department") waived its authority to review the 

request of Intervenor Millennium Pipeline Company, L.L.C. 

("Millennium") for a water quality certification under Section 401 of 

the Clean Water Act by failing to act on that request within one year; 

and (2) whether FERC has jurisdiction to regulate the pipeline at 

issue, and, if so, whether FERC appropriately accepted and reviewed 

the application pursuant to its exclusive jurisdiction over interstate 

natural gas transportation under the Natural Gas Act. 
426 


31623.356

4 No. 17-3770-ag 

The Department challenges two FERC orders. These orders 

effectively authorized Millennium to construct a natural gas pipeline 

to serve a power plant run by Intervenor CPV Valley, L.L.C. ("CPV") 

absent the water quality certification otherwise required to be 

procured from the Department under Section 401 of the Clean Water 

Act, 33 U.S.C. § 1341. In the orders under review, FERC determined 

that the Department waived its certification authority for the pipeline 

by failing to respond within one year of receiving Millennium's 

request for water quality certification, as required by statute. 

Additionally, the Protect Orange County Intervenors ("the Landover 

Intervenors") challenge FERC's jurisdiction over the pipeline at issue. 

We conclude that the Department waived its authority to 

review Millennium's request for a water quality certification under 

the Clean Water Act by failing to act on that request within one year. 

We also conclude that FERC does have jurisdiction over the pipeline. 

Accordingly, we DENY the petition for review. 

BACKGROUND 

The Valley Energy Center, owned by CPV, is an electric power 

generation facility under construction in the Town of Wawayanda, in 

Orange County, New York. 1 CPV contracted with Millennium to 

build the pipeline as a means of connecting the plant to Millennium's 

existing interstate natural gas pipeline, which runs through Orange 

County.2 

On November 13, 2015, Millennium filed an application with 

FERC, pursuant to section 7(c) of the Natural Gas Act, 15 U.S.C. § 

717f(c), requesting certificate authorization to construct and operate 

7.8 miles of sixteen-inch-diameter lateral pipeline and related 

I J.A. 539. 

2Jd. 
427 


31623.357

of 

5 No. 17-3770-ag 

facilities. 3 The Natural Gas Act requires applicants to obtain "any 

permits, special use authorizations, certifications, opinions, or other 

approvals as may be required under Pederallaw."4 Since the pipeline 

would cross several streams of water in southern New York, 

Millennium was also required to apply to New York's Department for 

a water quality certification under the Clean Water Act to confirm that 

the proposed pipeline project ("Project") would comply with the Act, 

state water quality standards, and other requirements of state law.5 

Section 401 of the Clean Water Act provides that "[i]f the State. 

fails or refuses to act on a request for certification, within a 

reasonable period of time (which shall not exceed one year) after 

receipt of such request, the certification requirements ... shall be 

waived with respect to such Federal application." 6 

On forms dated November 18, 2015, Millennium submitted an 

application for a water quality certification to the Department.' The 

Department received the application on November 23, 2015.8 On 

December 7, 2015, the Department notified Millennium that it 

deemed the application incomplete, pending PERC's environmental 

assessment.9 PERC issued its assessment on May 9, 2016.1° On June 17, 

2016, the Department issued a second notification that it considered 

Millennium's application incomplete, requesting further information 

regarding the Project's potential environmental impact. 11 In August 

3 J.A.I-28 

4 15 U.S.C. §§ 717n(a)(1), (2). 5 33 U.S.C. § 1341(a)(l). 

6fd 

7 J.A. 29-127. 8 !d at 128. 

9 !d. 

10 ld.at217. 

II fd. at40J. 
428 


31623.358

lii!Ciil 

6 No. 17-3770-ag 

2016, Millennium submitted responses conveying additional 

information to the Department.12 

On November 9, 2016, FERC issued a certificate under section 

7(c) of the Natural Gas Act approving the Project ("Certificate 

Order"). 13 The Certificate Order did not authorize Millennium to 

begin construction immediately, instead listing various conditions 

that the company would need to satisfy before starting work. 14 After 

FERC issued the Certificate Order, Millennium requested expedited 

review of its application for a water quality certification. 15 In response, 

the Department acknowledged that Millennium had fully responded 

to the second notice of incomplete application and stated that it would 

continue its review. 16 It contended that it had, "at a minimum, until 

August 30, 2017," to either approve or deny the applicationY 

Eager to begin construction, Millennium petitioned the United 

States Court of Appeals for the District of Columbia Circuit to compel 

the Department to act on its application for water quality certification, 

on the basis that the Department failed to act on Millennium's 

application for a water quality certification within the one-year time 

limit mandated by Section 401 of the Clean Water Act. 1H On June 23, 

2017, that court dismissed Millennium's petition for lack of standing, 

holding that Millennium could seek a remedy for the delay only from 

FERC. 19 

Accordingly, on July 21, 2017, Millennium requested that PERC 

determine that the Department had waived its authority under the 

12 !d. at 407, 441, 472. 13 Jd. at 538; see generally .\fillennium Pipeline Co., 157 FERC ~ 61096 (Nov. 9, 2016). 14 J.A. at 590-95. 

IS fd at 597. 16 !d. at 618. 17 !d 

18 See Mi!lennium Pipeline Co. v. Seggos, 860 F.3d 696 (D.C. Cir. 2017). 19 !d. at 701. 
429 


31623.359

of 12 

7 No. 17-3770-ag 

Clean Water Act, and thus permit Millennium to proceed with 

construction.20 While that request was pending, on August 30, 2017-

nearly two years after Millennium's initial submission to the 

Department-the Department denied Millennium's application. 21 It 

determined that PERC's environmental assessment had failed to 

evaluate the downstream greenhouse gas emissions from the Project. 

The Department therefore considered the environmental assessment 

incomplete and rejected the water quality certification request.22 

Millennium petitioned this Court for review of the Department's 

decision. 23 

On September 15, 2017, following the Department's decision, 

FERC found that the Department's delay constituted a waiver of the 

Department's authority under the Clean Water Act ("Waiver 

Order"). 24 It held that under the plain language of Section 401-which 

states that the window for review opens upon "receipt of such 

request" -the relevant date for assessing waiver is the day the agency 

receives an application, in this case, November 23, 2015. 25 

The Department, and, separately, the Landowner Intervenors 

sought rehearing of the Waiver Order. 26 FERC denied rehearing on 

20 J.A. 646. 21 !d at 736-37. 

22 !d. 21 That case has been held in abeyance pending the outcome of the instant appeal. See Millennium 

Pipeline Co. v. NY. State Dep 't of Envtl. Conserv., No. 17-3465 (2d Cir., filed Oct. 26, 2017). 24 Mi!lennium Pipeline Co., 160 FERC ~ 61,065 (Sept. 15, 2017); J.A. 753. 25 J.A. 757-58. 26 J.A. 763. On October 27, 2017, following entry of the Waiver Order, FERC issued a "Notice to 

Proceed with Construction" authorizing Millennium to begin construction without receiving a 

Section 401 certification from the Department. J.A. 783. To prevent Millennium from 

commencing construction until FERC acted on the Department's motion for rehearing, on October 

30, 2017, the Department brought an emergency petition for a writ of prohibition to this Court. See 

!n re N.Y. State Dep 'I qf Envtl. Conserv. v. Mil!ennium Pipeline Co., No. 17-3503 (2d Cir. Oct. 30, 

2017). We issued an administrative stay regarding the Notice to Proceed. We dissolved that stay 

after FERC issued the Waiver Rehearing Order. 
430 


31623.360

Case 17-3770. Dc>curnr:nl l 

8 No. 17-3770-ag 

November 15, 2017 ("Waiver Rehearing Order"). 27 Two days after 

FERC' s denial of rehearing, the Department filed this petition for 

review of the Waiver Order and the Waiver Rehearing Order. 28 On 

appeal, the Landowner Intervenors claim that FERC lacks jurisdiction 

under the Natural Gas Act to regulate the pipeline. 

DISCUSSION 

A. Standard of Review 

Two issues are presented by this proceeding: (1) whether 

FERC correctly interpreted Section 401 of the Clean Water Act when 

it held that the Department waived its right to act on Millennium's 

application; and (2) whether FERC appropriately accepted and 

reviewed the application as subject to its exclusive jurisdiction under 

the Natural Gas Act. 

We review FERC's interpretation of the Clean Water Act, a 

statute that it does not administer, de novo. 29 The Department 

contends that we should grant Chevron deference to a state agency's 

interpretation of a federal statute. It claims that since Section 401 

contemplates a joint federal-state program in which the Department 

is responsible for determining whether a proposal complies with the 

Clean Water Act, we should afford deference to its interpretation.30 

' 7 Millennium Pipeline Co .. 161 FERC ~ 61,186 (Nov. 15. 20!7); J.A. 793. 28 As part of its petition, the Department filed an emergency motion for stay of construction 

pending review of the Waiver Orders. On December 7. 2017, following briefing and oral 

argument, this Court denied the Department's emergency motion for a stay, dismissed the 

Department's earlier petition (No. 17-3503) as moot, and dissolved the administrative stay it had 

previously issued. The Landowner Intervenors subsequently requested a similar stay in this case 

and in the separate appeal of FERC's Certificate Orders ( 17-3966 ). We denied those requests on 

December 15, 2017. N. J". Dep 't of Envtl. Consen•., No. 17-3770 (2d Cir. Dec. 15, 2017); Protect 

Orange Cty. v. FERC, No. 17-3966 (2d Cir. Dec. 15, 2017). 09 Consri!ulion Pipeline Co. r. N. J'. S!ale Dep 'r of Em•t/. Conserv., 868 F.3d 87, 100 (2d Cir. 

2017). 

30 Pet'r's Br. 26-27. 
431 


31623.361

9 No. 17-3770-ag 

The Department argues that we have afforded Chevron deference to 

a state agency's interpretation of a federal statute in the case of 

Medicaid, another joint federal-state program.31 

Our precedents, however, foreclose extending such deference. 

A state agency's interpretation of a federal statute does not receive 

deference unless the federal agency charged with administering that 

statute has expressly approved the state's interpretation and 

implementation.32 Although the Department has a role in 

determining compliance with Section 401 of the Clean Water Act, 

the federal agency charged with administering the Clean Water Act 

(the Environmental Protection Agency) is not involved in reviewing 

or approving the Department's interpretation of the waiver period.33 

We therefore construe Section 401 de novo, according no 

deference to the interpretations of FERC or the Department. 

Regarding the Landowner Intervenors' challenge to FERC' s 

authority over the Project, we must first determine whether the 

Intervenors have standing before addressing whether the Natural 

Gas Act provides FERC with jurisdiction. 

B. Whether the Department Waived Its Authority Under the 

Clean Water Act 

The Department contends that the review process under 

Section 401 begins only once it, a state agency, deems an application 

"complete." FERC, on the other hand, argues that the one-year 

31 See Peny 1'. Dowling, 95 F.3d 231,236 (2d Cir. 1996). 32 See id ("When the federal-statute interpretation is that of a state agency and 'no federal agency 

is involved,' deference is not appropriate." (quoting Turner v. Perales, 869 F.2d 140, 141 (2d Cir. 

1989)); see also Conslilu/ion Pipeline, 868 F.3d at 100 (reviewing de novo interpretation of same 

statutory provision). 33 See Alabama Rivers All. v. FE.RC., 325 F.3d 290,296-97 (D.C. Cir. 2003) (noting federal 

Environmental Protection Agency is charged with administering Clean Water Act). 
432 


31623.728

Cc: Senator John Barrasso, Chainnan, Senate Committee on Environment and Public Works 

Senator Thomas R. Carper, Ranking Member, Senate Committee on Environment and 

Public Works 
433 


31623.362

Case 1 Docurnent ?0"1 . fJ:l!J 

10 

() 

\) 

No. 17-3770-ag 

review period commences when the Department receives a request 

for water quality certification. We agree with FERC. 

The plain language of Section 401 outlines a bright-line rule 

regarding the beginning of review: the timeline for a state's action 

regarding a request for certification "shall not exceed one year" after 

"receipt of such request." 34 It does not specify that this time limit 

applies only for "complete" applications. If the statute required 

"complete" applications, states could blur this bright-line rule into a 

subjective standard, dictating that applications are "complete" only 

when state agencies decide that they have all the information they 

need. The state agencies could thus theoretically request 

supplemental information indefinitely. 

The Department warns that requiring state agencies to act on 

a request within one year will force it to render premature decisions. 

Among other harms, the Department notes, such a requirement may 

undermine public notice and comment, impede a state from 

working with the applicant to refile in accordance with its 

requirements, and prompt applicants to flood the courts with 

appeals. 

These concerns are misplaced. If a state deems an application 

incomplete, it can simply deny the application without prejudicewhich would constitute "acting" on the request under the language 

of Section 401. It could also request that the applicant withdraw and 

resubmit the application. 35 Such a denial does not preclude a state 

from assisting applicants with revising their submissions.36 Nor does 

l4Jd 

15 Constitution Pipeline, 868 FJd at 94 (noting that an applicant for a Section 401 certification had 

withdrawn its application and resubmitted at the Department's request-thereby restarting the 

one-year review period). 16 In fact, Millennium met with the Department on August I 0, 2015, before submitting its 

application, to "avail[] itself of[ the Department's] pre-application process," which included the 

Depattment providing comments on Millennium's plans. Crouse Dec!. Ex. Gat 2, Dkt. 7. 
434 


31623.363

nf 12 

11 No. 17-3770-ag 

it harm the process of public notice and comment, which would 

simply begin once a state decided that it did not need to deny an 

application for incompleteness. And what the Department calls 

"premature" denials of applications are not likely to prompt a 

deluge of litigation. The Department itself notes that this litigation 

incentive already exists; applicants can argue before FERC that their 

applications are complete under New York regulations.37 

Accordingly, we conclude that the Department waived its 

authority under Section 401 and that FERC properly issued a waiver 

order permitting Millennium to proceed with construction without a 

water quality certification. 

C. FERC's Jurisdiction over the Project 

The petitioner (the Department) in this instance did not raise 

the issue of whether FERC has jurisdiction over Millennium's 

application regarding the Project. Generally, "intervenors may only 

argue issues that have been raised by the principal parties; they 

simply lack standing to expand the scope of the case to matters not 

addressed by petitioners in their request for review." 38 Nonetheless, 

courts may exercise discretion to entertain a new argument raised by 

an intervenor. 39 We choose to do so here. 

The Natural Gas Act provides that FERC has plenary 

authority over the transportation of natural gas in interstate 

commerce.40 Natural "gas crossing a state line at any stage of its 

movement to the ultimate consumer is in interstate commerce 

37 Reply Br. Pet. 23. 38 Petro Star Inc. v. FERC, 835 F.3d 97, 110 (D.C. Cir. 2016) (brackets omitted) (quoting Nat'/ 

Ass 'n of Regulatory Uti/. Comm 'rs v. ICC, 41 F.3d 721, 729 (D.C. Cir. 1994)). 19 See New York v. At/. States kfarine Fisheries Comm ·n, 609 F .3d 524, 529 n.4 (2d Cir. 201 0). 40 15 U.S.C. § 717(b). 
435 


31623.364

Cnsc: 17-3770, ?04-J ' 

12 No. 17-3770-ag 

during the entire journey."41 If a pipeline is an integrated part of an 

interstate system, FERC has jurisdiction over it even if that pipeline 

is a "lateral" line off a company's mainline and that lateral line is 

solely located in one state, and the transporting gas never leaves that 

state.42 

The pipeline at issue here will transport gas that is in 

interstate commerce as part of an integrated system. Millennium's 

mainline system is linked to interstate pipelines that run both in and 

out of the state of New York. 43 Although the pipeline at issue here is 

located entirely within New York and will deliver gas only to the 

Valley Energy Center, it will receive out-of-state gas from the 

Millennium mainline.44 FERC therefore has jurisdiction. 

CONCLUSION 

For the foregoing reasons, we DENY the petition for review. 

' 1 Afich. Conwl. Gas Co. v. Panhandle E. Pipe Line Co., 887 F.2d 1295, 1299 (6th Cir. 1989) 

(quoting Mmyland v. Louisiana, 451 U.S. 725,755 (1981)). 42 See Okla. Nat. Gas Co. v. FERC, 28 F.3d 1281. 1287 (D.C. Cir. 1994). 43 J.A. 544, 546. 

·"!d. at 544. 
436 


31623.365

Paqel of 1 

United States Court of Appeals for the Second Circuit 

Thurgood Marshall U.S. Courthouse 

ROBERT A. KA TZMANN CHIEF JUDGE 

Date: March 12, 2018 

Docket#: 17-3 770ag 

40 Foley Square 

New York, NY 10007 

Short Tille: New York State Department of E v. Federal 

Energy Regulatory Comm 

CATHERINE O'HAGAN WOLFE CLERK OF COURT 

Agency#: CP16-17 

Agency: Federal Energy 

Regulatory Commission 

BILL OF COSTS INSTRUCTIONS 

The requirements for filing a bill of costs are set forth in FRAP 39. A torm for filing a bill of 

costs is on the Court's website. 

The bill of costs must: 

* be filed within 14 days after the entry ofjudgment; 

* be verified; 

* be served on all adversaries; 

* not in elude charges for postage, delivery, service, overtime and the filers edits; 

* identify the number of copies which comprise the printer's unit; 

* include the printer's bills, which must state the minimum charge per printer's unit for a page, a 

cover, foot lines by the line, and an index and table of cases by the page; 

* state only the number of necessary copies inserted in enclosed form; 

* state actual costs at rates not higher than those generally charged for printing services in New 

York, New York; excessive charges are subject to reduction; 

* be filed via CM/ECF or if counsel is exempted with the original and two copies. 
437 


31623.366

United States Court of Appeals for the Second Circuit 

Thurgood Marshall U.S. Courthouse 

ROBERT A. KA TZMANN 

ClliEF Jl!DGE 

Date: March 12, 2018 

Docket#: 17-3770ag 

40 Foley Square 

New York, NY 10007 

Short Title: New York State Department of E v. Federal 

Energy Regulatory Comm 

CATHERINE O'HAGAN WOLFE 

CLERK Of.' COliRT 

Agency#: CPJ6-17 

Agency: Federal Energy 

Regulatory Commission 

VERIFIED ITEMIZED BILL OF COSTS 

Counsel for 

respectfully submits, pursuant to FRAP 39 (c) the within bill of costs and requests the Clerk to 

prepare an itemized statement of costs taxed against the 

and in favor of 

for insertion in the mandate. 

Docketing Fee 

Costs of printing appendix (necessary copies ___ ) --"----

Costs of printing brief (necessary copies ___ _ 

Costs of printing reply brief(necessary copies---·--·"---

(VERIFICATION HERE) 

Signature 
438 


31623.367

HAL QUINN 

President & CEO 

July 31, 2018 

The Honorable John Barrasso 

Chairman 

Senate Committee on Environment and Public Works 

410 Dirksen Senate Office Building 

Washington, DC 20510 

Dear Chairman Barrasso, 

NMA. 

The National Mining Association (NMA) supports the introduction of the Water Quality 

Certification Improvement Act of 2018. Clean Water Act Section 401 water quality 

certifications are an important component of mine permitting and of key infrastructure 

development upon which the mining industry relies. Today's legislation will bring muchneeded clarity and transparency to the 401 process, while preserving the central role of 

states in protecting local waterways. 

Section 401 was intended to ensure the application of rigorous water quality 

requirements to federally permitted activities. However, certain states have misused the 

process to block projects for political reasons that have nothing to do with water quality 

concerns. These states have thwarted Congressional intent by hijacking the 401 

certification process as a means to interfere with international trade policy in violation of 

the Commerce Clause of the U.S. Constitution. 

The U.S. holds more of the world's coal reserves than any other country, and western 

U.S. coal is preferred for high efficiency, low emission power plants that are in operation 

and being built around the world. These resources are critical to our export trade, but 

the ability for U.S. coal producers to serve fast-growing Asian markets is hindered by 

the inability to gain state approval to build state of the art coal export facilities on the 

West Coast. In 2017, 97 million short tons of U.S. coal were exported, and the demand 

for coal worldwide continues to grow with May 2018 representing the 191

h straight month 

for year-over-year gains in exports from the U.S. 

The Water Quality Certification Improvement Act of 2018 ensures that water quality 

certifications focus on their intended environmental purpose- the protection of local 

waterbodies potentially impacted by federally licensed activities - and will therefore help 

promote U.S. trading power while protecting the health of local communities. The 

National Mining Association l 0 t Const,tution /\venue, NW! Suite ~100 r-~st I Wdsh1ngton, DC 20001 I (202) 463 ·7.60D 
439 


31623.390

Ms. Kristin Gaines 

October 23, 2017 

Page 2 

Impacts to the Highlands neighborhood, a minority and low-income neighborhood 

adjacent to the Reynolds Lead in Longview, Washington fi·om increases of noise, vehicle 

delays, and inhalation cancer risk from diesel particulate matter. 

• Exccedances of rail line capacity at three rail segments on the main line tl·om adding IG 

trains a day to Washington rail traffic. 

An increase to the train accident rate by 22 percent along the rail routes in Cowlitz 

County and Washington ll·otn Millcrurium-rclated trains. 

• Increases to vessel related emergencies and vessel accidents from Milknnium-relatcd 

vessels. 

Demolition of the Reynolds Metals Heduetion Plant Historic District. 

Delayed access to 20 managed tribal fishing sites along the Columbia River fl·om 

increased rail trafl!c, and impacts to tribal resources fl·om the construction and operation 

of the proposed facility on «qua tic resources. 

Although Ecology cannot prevent Millennium fl·om Jlling fi.rture permit applications for the 

proposed coal export terminal, these EIS Jlndings likely preclude Ecology from approving such 

applications. Therefore, at this time, Ecology staffwillnot be spending time on permit 

preparation related to Millennium's additional applications for the coal export terminal. 

lf you have any questions regarding future permit applications, please direct those questions 

through your attorneys to Mr. Tom Young at the Washington Attorney General's Office. 

Additionally, Mr. Young will serve as Ecology's point of contact in regard to the legal challenge 

that Millennium h«s indicated it willllle against Ecology, regarding the denial of the Section 401 

Water Quality Certification. 

Sincerely, 

1VlcM ~D&~L(ar LMaia D. Bellon 

Director 

cc: Tom Young, Attorney General's Office 
440 


31623.391

THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

Lighthouse Resources Inc.; Lighthouse 

Products, LLC; LHR Infrastructure, 

LLC; LHR Coal, LLC; and Millennium 

Bulk Terminals-Longview, LLC, 

Plaintiffs, 

V. 

Jay lnslee, in his official capacity as 

Governor of the State of Washington; 

Maia Bellon, in her official capacity as 

Director of the Washington 

Department of Ecology; and Hilary S. 

Franz, in her official capacity as 

Commissioner of Public Lands, 

Defendants. 

Case No. 17-CV-__ _ 

COMPLAINT FOR DECLARATORY 

AND INJUNCTIVE RELIEF 

INTRODUCTION 

l. From the framing of the Constitution, the federal government has enjoyed 

supreme authority to regulate foreign and interstate commerce. 

2. In giving the federal government this authority, the Constitution necessarily 

prohibits individual states from discriminating against, or unreasonably burdening the free 

flow of, such commerce. 

3. Plaintiff Lighthouse Resources Inc. and its subsidiaries are filing this action 

because the Defendants are actively preventing coal mined in other states from moving in 

foreign and interstate commerce. 
441 


31623.392

4. In particular, the Defendants have unreasonably delayed and denied a 

number of permits and approvals for a port facility that would enable the export of coal to 

U.S. allies and trading partners in Asia. 

5. Those Asian trading partners want the United States to help them meet their 

coal demands. They have specifically identified coal from the Powder River Basin in 

Wyoming and Montana as having ideal characteristics, including for the next generation 

of high efficiency, low emissions coal-fired power plants. 

6. The United States, which possesses the largest coal reserves in the world, 

wants to supply coal to its Asian allies, and is aggressively pursuing a national policy that 

facilitates coal exports to Asia. 

7. Lighthouse Resources Inc. (Lighthouse) and its subsidiaries are working to 

meet Asian coal demand. They have already contracted for delivery of coal to customers in 

Asia. But Lighthouse cannot address Asian demand or fulfill its contracts with Asian 

customers unless additional economic coal export capacity opens on the West Coast. 

8. To address this capacity deficit, one of Lighthouse's subsidiaries is proposing 

a new coal export facility at the existing Millennium Bulk Terminal in Longview, 

Washington. That facility would directly generate numerous jobs, grow tax revenues for 

state and local governments, attract further investment, and support thousands of 

additional jobs throughout the country. 

9. The Defendants oppose coal exports on policy grounds. So they have 

unreasonably delayed and denied a number of permits and approvals needed to construct 
442 


31623.393

the proposed new coal export facility at the Millennium Bulk Terminal. And they have 

ceased processing other pending permits for the proposed facility, without basis in law. 

10. The Defendants' delays and denials are not consistent with normal 

permitting procedures. They have, among other things, improperly expanded the scope of 

their environmental review, arbitrarily and capriciously declined to approve a sublease, and 

illegally refused to grant a Clean Water Act section 401 water quality certification based on 

alleged effects that are exclusively within federal jurisdiction. 

II. The Defendants' actions have both the intent and effect of discriminating 

against and unduly burdening foreign and interstate commerce, in violation of the United 

States Constitution's dormant commerce clause, the federal ICC Termination Act, and the 

federal Ports and Waterways Safety Act. 

JURISDICTION AND VENUE 

12. This Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343 and 42 U.S.C. 

§ 1983 because this controversy arises under the Constitution and laws of the United States, 

and involves the deprivation, under state law, of rights and privileges secured by the United 

States Constitution and acts of Congress. 

13. This Court also has jurisdiction pursuant to its inherent equitable powers to 

enforce federal law and to enjoin state actions that are preempted by federal law. 

14. The requested relief is proper under 28 U.S.C. §§ 2201 and 2202. 

15. Venue is proper under 28 U.S. C.§ 139i(b)(2) because a substantial part of the 

events or omissions giving rise to the claim occurred in this district. 
443 


31623.394

PARTIES 

16. Lighthouse is a privately held company headquartered in Salt Lake City, 

Utah. Lighthouse's wholly owned subsidiary companies include the parent company of 

entities owning or leasing coal mining rights, and operating two coal mines (one in 

Montana and one in Wyoming); the parent company of entities that have proposed to 

develop port facilities in Oregon and Washington to export coal from Wyoming, Montana, 

Utah, and Colorado, including the company that has proposed an export terminal in 

Longview, Washington; and an entity that contracts with rail carriers, ports, and customers 

in Asian markets for delivery of coal and is currently seeking additional port capacity to 

export coal through terminals with economic access to foreign markets. 1 

17. LHR Coal, LLC (LHR Coal) is a wholly owned subsidiary of Lighthouse. LHR 

Coal, through its subsidiaries, is in the business of owning and operating upstream 

production and mining assets, including coal mines. LHR Coal's subsidiaries own or lease 

coal mining rights, coal loading and rail infrastructure, and operate existing coal mines in 

Montana and Wyoming. 

18. LHR Infrastructure, LLC (LHR Infrastructure) is a wholly owned subsidiary 

of Lighthouse. LHR Infrastructure, through its subsidiaries, is in the business of identifying 

and developing infrastructure projects, including coal export facilities, to connect 

downstream demand to upstream supply. LHR Infrastructure's subsidiaries own or lease 

'Lighthouse was previously known as Ambre Energy North America, Inc. In 2014, Ambre Energy North 

America, Inc. separated from its Australian parent company, Ambre Energy Limited, when it recapitalized. 

Ambre Energy North America, Inc. announced that it had changed its name to Lighthouse Resources, Inc. 

in April 2015. 
444 


31623.395

assets to develop marine terminals for transloading bulk products, including coal, from rail 

to marine vessels. 

19. Millennium Bulk Terminals-Longview, LLC (MBT Longview) is a wholly 

owned subsidiary of LHR Infrastructure and operates an existing bulk product marine 

terminal in Longview, Washington. MBT Longview has proposed a coal export terminal at 

that site to receive coal from Lighthouse and other third party customers for loading and 

shipment to customers in northeast Asia, presently including Japan and South Korea. 

20. Lighthouse Products, LLC (LHP) is a wholly owned subsidiary of Lighthouse. 

LHP markets, sells, and delivers products to its customers. It is in the business of supplying 

Lighthouse products to meet downstream demand. LHP delivers coal mined by LHR Coal 

subsidiaries in Montana and Wyoming to Asian customers at the point of sale, which is 

usually free-on-board (FOB) an ocean-going vessel at a coal export terminal on the Pacific 

Coast. 

21. jay lnslee is the current governor of the state of Washington, an office he 

assumed in january 2013. He is being sued in his official capacity. 

22. Maia Bellon is the current director of the Washington Department of 

Ecology. She has served in that role since she was appointed by Governor Inslee in February 

2013. She is being sued in her official capacity. 

23. Hilary S. Franz is the current Washington Commissioner of Public Lands. She 

was elected to that position in November 20!6 and sworn in on January 11, 20!7. She is 

being sued in her official capacity. 
445 


31623.396

FACTUAL BACKGROUND 

A. Asian demand for coal 

24. The top five coal-importing countries in the world are located in Asia. 

Together these countries accounted for 63% of global coal imports in 2014. 

25. Japan and South Korea, both of which are among the world's top five coal 

importers, have each signed the Paris Accords. 

26. Despite having the largest coal reserves in the world, the United States has 

historically supplied less than five percent of Asia's demand for imported thermal coal. The 

United States accordingly has pursued a policy of facilitating coal exports to Asia. 

27. Japan in particular has limited domestic energy resources. 2 Following the 

Fukushima nuclear power plant accident, Japan imports more than 90% of its primary 

energy. 

28. Japan is installing new, clean coal plant technologies to meet environmental 

targets.J Overall, "Japanese companies plan to develop about 45 additional coal power 

plants, adding more than 20 GW of capacity in the next decade."• 

29. Japan has specifically identified Powder River Basin (PRB) coal from the 

United States as having the quality characteristics that are desirable for Japan's next 

generation of high efficiency, low emissions coal-fired power plants.s 

'Limited land mass limits Japan's options. The Footprint of Energy: Land of U.S. Electricity Production, 

STRATA (June 2017), https://'>lo-ww.strata.org/pdf/2017/footprints-full.pdf. 

'See MET!, Clean Coal Technology in Japan (Sept. 6, 2<n7), 

http://www. jcoal.or. j pI event/upload /15. %zoCI ean %zoC oal%zo Tech nology%zoi n ')hzo ]a pan. pdf. 

4 japan: Overview, U.S. ENERGY INfO. ADMIN. (Feb. 2, 2017), 

https://www.eia.gov /beta/intemational/ analysis.cfm 'iso= JPN. 5 Yoshiyuki Wakabayashi, Clean Coal Technologiesfor IGCC Power Plants, MITSUGISHI HITACHI POWER 

SYSl'EMS (Sept. 6, 2017), 
446 


31623.397

30. South Korea-the world's ninth-largest energy consumer in 2015-lacks 

domestic energy reserves, making it one of the top energy importers in the world. 

31. In recent years, South Korea has also scaled back its long-term reliance on 

nuclear power and increased its coal imports from 131 million short tons in 2010 to 149 

million short tons in 2015.6 

32. South Korea is the fourth-largest importer of coal in the world. Coal accounts 

for 28% of South Korea's installed electricity generating capacity, and 20 new coal-fired 

power plants are scheduled to enter service by 2022. South Korean energy companies also 

seek additional U.S. coal imports to diversifY the sources of their coal supply. 

33. Increasing its U.S. coal imports would also allow South Korea to diversifY 

away from its dependence on imports from Indonesia and the Russian Federation. 

34. japan, South Korea, and other U.S. allies in Asia want stable and secure 

energy supplies for their economies and stability in the region, especially in light of the 

threat from North Korea and the growing international activism of China and the Russian 

Federation. 

B. Lighthouse's coal supply chain 

35. Since 2009, Lighthouse and its affiliated companies have responded to Asian 

demand by pursuing a strategy to secure port capacity and deliver U.S. coal to Asia. 

http:/ /www.jcoal.or.jp/event/upload/16.%20Ciean%20Coal%20Technologies%20for%201GCC%20Power% 

20Plants%20%28Mr.%20W akabayashi%29'%20new .pdf. 

6 Korea, South, U.S. ENERGY INm. ADMIN. (jan. 19, 2017), 

https:/ /www.eia.gov/beta/international/analysis.cfm>iso~KOR. 
447 


31623.398

36. Lighthouse, through its subsidiaries, operates a coal energy supply chain 

company. That means that Lighthouse manages or arranges the mining of coal, the transfer 

of coal from rail to ocean-going vessels, and the sale of coal to end users. 

37. Since 2011, Lighthouse subsidiary LHR Coal has owned and leased coal 

mining rights, maintained coal loading infrastructure, and operated coal mines in Montana 

and Wyoming through its own subsidia1y companies. These mining properties were 

acquired primarily to meet current and projected demand from Asian customers. 

38. Under federal regulations, LHR Coal's subsidiaries are obligated to seek the 

maximum economic recovery for minerals mined on federal lands. Lighthouse's efforts to 

export coal to Asia are part of its effort to seek maximum economic recovery. 

39. One of LHR Coal's subsidiaries owns and operates the Decker Coal Mine in 

southern Montana. The Decker mine, which has been in operation since the early 1970s, is 

on the northern corridor of the BNSF railroad. 

40. The Decker mine has two load out facilities, each of which can handle up to 

14 million tons of coal per year. The mine has over 60,000 acres of mineral and surface 

rights under lease from federal, state, and private mineral owners. 

41. Coal from the Decker mine is in high demand from overseas customers. 

Reserves at Decker are approximately 241 million tons, with additional resources estimated 

at over 1.2 billion tons. 

42. Another one of LHR Coal's subsidiaries owns a 50% interest in, and operates, 

the Black Butte mine in Wyoming. The Black Butte mine, which has been in operation since 

the 1970s, is on the Union Pacific railroad. 
448 


31623.399

43. The Black Butte mine has a rail load out facility capable of handling up to 

14.5 million tons of coal per year. Reserves at Black Butte are over 50 million tons, with 

additional resources estimated at over 90 million tons. 

44. LHR Coal's subsidiary Big Horn Coal Company also has rights to 

approximately 40 million tons of recoverable coal leased from the State of Wyoming. 

45. LHP is party to an amended ten-year contract with a customer in South Korea 

that was originally executed on May ll, 2012 to deliver two million metric tons per year 

with the option for the customer to elect to receive an additional one million metric tons 

per year (Contract #I). 

46. LHP is party to another amended contract with a second customer in South 

Korea, originally executed as a ten-year contract on June 5, 2012, to deliver one million 

metric tons per year with the option for the customer to purchase an additional one million 

tons per year (Contract #2). 

47. LHP also sold a trial shipment of coal to other potential Japanese customers, 

but is unable to execute long-term contracts for larger volumes until it secures more coal 

export capacity and can be more certain about when deliveries can be made. 

48. Other customers in South Korea, Japan, and Taiwan have expressed interest 

in purchasing coal from Lighthouse and its subsidiaries. 

49. The lack of sufficient economic west coast coal export capacity has prevented 

delivery of the coal volumes specified in both Contract #I and Contract #2. As a result, the 

contracts had to be amended in December 2015 to make both contracts subject to 

termination for failure to deliver. 
449 


31623.400

50. At present, LHP supplies coal to its Asian customers by shipping coal out of 

a Canadian port. That port has not contracted sufficient capacity to LHP to fulfill the 

contracts to which LHP is a party and is approximately 250 miles farther from the mines 

than the Millennium Bulk Terminal, resulting in increased shipping costs. 

51. LHP needs additional economic coal export capacity to fulfill its contracts 

and meet market demand. 

C, Lighthouse's efforts to secm·e coal export capacity 

52. Given that there is not sufficient economic coal export capacity for 

Lighthouse and its subsidiaries to fulfill existing contracts and meet increasing Asian 

market demand, Lighthouse and predecessor entities have been working to identifY, 

contract with, and/or develop new coal export facilities on the West Coast since 2009. 

53. In 2010, Lighthouse investigated over two dozen potential coal export 

locations, including 14 potential sites in Washington, 5 in Oregon, 4 in California, and 4 in 

British Columbia. 

54. Based on this thorough investigation, Lighthouse concluded that the 

Millennium Bulk Terminal brownfield site in Longview, Washington (the Terminal) was 

the preferred site for coal exports. It entered into an asset purchase and sale agreement that 

ultimately resulted in its acquisition of substantially all Terminal assets. 

55. ln July 2010, Washington State offered potential tax abatement, rail 

infrastructure improvements, assistance to streamline permitting, and job training 

incentives to redevelop the Terminal into a bulk products facility that included coal 

exports. 
450 


31623.401

56. While it sought to acquire and permit the Millennium Bulk Terminal facility, 

LHP continued searching for other coal export capacity. 

57. Starting in 201!, Lighthouse-through LHR Infrastructure and its 

subsidiaries Coyote Island Terminal, LLC and Pacific Transloading, LLC-proposed to 

construct the Morrow Pacific Project, a coal export facility at the Port of Morrow near 

Boardman, Oregon. 

58. The Port of Morrow is the second-busiest port in Oregon, and has more than 

12,000 acres ofland that is used and available for a variety of industries. Oregon law (ORS 

777.250) gives the port very broad operational authority, including for "storing, 

warehousing, distributing, or selling or servicing any products of agriculture, mining or 

industry .... " 

59. After taking two and one-half years to review it, the Oregon Department of 

State Lands denied Coyote Island Terminal's application for a removal-fill permit to 

construct an industrial dock. Despite the heavy commercial use and industrial purpose of 

the Port, the Department asserted that the Port of Morrow's busy waters were best used for 

fishing. That decision effectively blocked U.S. coal exports through Oregon. 

D. The proposed Millennium Bulk Terminal coal export facility 

60. The proposed Millennium Bulk Terminal coal export facility would provide 

sufficient capacity to enable Lighthouse's subsidiaries to economically fulfill existing and 

new contracts with Asian customers by shipping coal from Montana and Wyoming through 

the Terminal and onto ocean-going vessels bound for Asia. 
451 


31623.402

61. The Terminal has been an active industrial site since 1941, with an active 

industrial dock that was used for decades before MBT Longview acquired it in 20ll with 

the goal of expanding it into a state-of-the-art coal export facility. 

62. At present, the Terminal receives coal by rail weekly, which is then loaded 

onto trucks for distribution. The Terminal also maintains readiness to unload shiploads of 

alumina imported primarily from Australia for transportation by rail to an aluminum 

smelting facility in Wenatchee, Washington. 

63. A 2008 Aquatic Lands Lease between the State of Washington and 

Northwest Alloys, Inc. (the Aquatic Lands Lease) expressly allows coal to be handled over 

and across the Terminal's existing dock and two new planned docks. 

64. The Aquatic Lands Lease further specifies that the "State believes that this 

Lease is consistent with the Public Trust Doctrine" and makes clear that approval of a 

sublease "shall not be unreasonably conditioned or withheld." 

65. MBT Longview acquired the Terminal assets and executed a ground lease 

with Northwest Alloys, Inc. (the "Ground Lease") in 2011. At the same time, MBT Longview 

agreed to certain performance obligations (including but not limited environmental 

remediation) for the property, including on the aquatic lands, the uplands of the proposed 

coal export terminal, and the uplands of the existing bulk terminal. 

66. Lighthouse is a guarantor ofMBT Longview's performance under the Ground 

Lease. MBT Longview and Northwest Alloys, Inc. further intended that MBT Longview 

would become a sublessee under the Aquatic Lands Lease. 
452 


31623.403

67. The Terminal is connected to the existing national rail freight network, 

already receives common carrier service from BNSF, and is capable of receiving trains from 

Union Pacific. 

68. The Terminal is on the Columbia River, which has been designated by the 

U.S. Department of Transportation Maritime Administration as a Marine Highway for the 

transportation of commerce. The river was deepened pursuant to an Act of Congress-at a 

cost exceeding $]80 million-so it could handle more cargo and facilitate growth. 

69. At full build-out the Terminal would be capable of exporting 44 million 

metric tons of coal, which would both satisfy the export requirements of Lighthouse and 

its subsidiaries and provide export capacity to third party shippers. 

70. MBT Longview began the permitting process for the proposed Terminal coal 

export facility in February 2012. That process requires MBT Longview to acquire roughly 

two dozen separate federal and state plans, permits, and approvals. 

E. Benefits of the Millennium Bulk Terminal 

71. The Millennium Bulk Terminal has been underutilized for more than 15 

years. Lighthouse's and MBT Longview's plans would redevelop it into a world-class port 

facility. 

72. In part due to underutilization of facilities like the Terminal, Cowlitz County 

has faced economic challenges that have left it lagging behind state averages for 
453 


31623.404

employment. The proposed coal export facility at the Terminal is expected to add over 

1,300 construction jobs and approximately 135 family-wage jobs7 

73. The Terminal would generate substantial direct tax receipts at the state and 

local levels. 8 A 2012 economic study estimated that the Terminal would generate $146 

million in tax revenues over a 30-year period, with approximately 26% of this revenue going 

to the County, 54% to the State, and 20% to special purpose districts.9 

74. Investment in the Terminal would also attract further investment to improve 

infrastructure around Cowlitz County, resulting in upgrades to rail and other methods of 

transportation. Improved freight transportation along the Columbia River would increase 

the value and attractiveness of other industrial properties,'" including the Port of 

Longview's proposed port development at Barlow Point, which is adjacent to the 

Millennium Site. 

75. In addition to the local jobs in Cowlitz County, the Terminal at full build-out 

would support thousands of direct and indirect jobs throughout the country," and bring 

substantial benefits to the economies of Washington's sister states, including Montana and 

Wyoming. 

7 COWLITZ CTY. & WASH. DEP'T ECOLOGY, MBT Longview SEPA Final Environmental Impact Statement at 2-2 

(April28, 2017), bllp:~Lm_ilJ.~,:nn.iwJll1~llk.(:.i::;,y_,).g~J~..i~~·Jl~·L~:.i~~hl!J_U. 

8 /d. at 2-1. 

'MILLENNIUM BULK TERMINALS-LONGVIEW, l.LC & BERK, ECONOMIC & FISCAL IMPACT OF MILLENNIUM BULK 

TERMINALS LONGVIEW 25 (Apr. 12, 20!2), hHp:;_/I)lill,•tJJ.llllllJll<lilq>11lLo' p· 

( 1 IJ}!_~·rn11tl)_lQchi:;/?_O! \JJP/1_._(,~(}\HIJftiL. )\ tld~- _1-ult-Yc;H~.U ,p(if. 10 !d. at Executive Summary, 

"See ERNST & YOUNG, U.S. COAL EXPORTS: NATIONAL AND STATE ECONOMIC CONTRIBUTIONS 8-9, 68 (May 

2013), http://www.uscoalexports.org/data/National-and-State-Economic-Contributions-5-22-l3.pdf. 
454 


31623.405

76. In 2015, Montana coal sales generated nearly $ll5 million in federal and state 

revenue, much of which funds schools, state parks, libraries, and local infrastructure.'" 

Because Montana holds one-fourth of America's demonstrated coal reserves, coal export is 

essential to the state's economy.'3 

77. Likewise, coal production and export is a cornerstone of Wyoming's 

economy.'• The majority of the coal mined in Wyoming is exported by rail out of state or 

out of the country.'' In 2012, coal accounted for 14% of gross state product, 9.3% of total 

labor income, and 5.9% of total employment in Wyoming.'6 

78. The Terminal also has the potential to increase annual U.S. coal exports by 

44 million metric tons, increasing the annual value of U.S. exports by more than $2.5 billion 

and shrinking U.S. trade deficits with Asian trading partners.'7 

79. At the same time, the Terminal will provide Asian markets greater access to 

coal mined under U.S. laws and regulations, giving Asian customers the alternative they 

"Dep't of Interior, Explore Data: Montana, NAT. RESOURCES REVENUE DATA, 

https:/ /revenuedata.doi.gov/explore/MT/#revenue (last visited Nov. !3, 2017). An average train load of coal 

in Montana is assessed approximately s30,800 in federal, state and local taxes. Working for the Coal 

Industry in Montana, MONTANA COAL COUNCIL, http:/ jwww.montanacoalcouncil.com/ (last visited Nov. 13, 

2017). 

'

3 Montana holds one-fourth of the nation's demonstrated coal reserves. ANNUAL COAL REPORT 2015, U.S. 

ENERGY INFO. ADMIN. 32 (Nov. 20!6), https:/ /www.eia.gov/coal/annual/pdf/acr.pdf. 

'

4 See State of Wyoming Mot. for Summ. Determination 5, Coyote Island Terminal LLC, OAH Case No.: 

1403883 (May 6, 2016), https:/ /drive.google.com/file/d/OB_ 4EQ9PebvQldmx6Nl!hBemkwYkU/view 

(Wyoming produced 401,457,074 tons of coal in 2012, which represented 39 percent of the entire nation's 

coal production). 

's I d. 

'

0 ROBERT GODBY ET AL., CTR. FOR ENERGY ECON. & PUB. POLICY, THE IMPACT OF THE COAL ECONOMY ON 

WYOMING 4 (Feb. 2015), https:/ /www.uwyo.edu/cee/_files/docs/wia_coal_full-report.pdf. 17 48 million short tons x s57.87 per short ton~ $2.7 billion, using Platt's North East Asian Thermal Coal 

Index Netback Price at Vancouver BC, dated November 24, 2017. 
455 


31623.406

seek to achieve their energy policy objectives, including by meeting their environmental 

commitments. 

F. Defendants' opposition to coal and coal exports 

80. The Defendants have all expressed unyielding opposition to coal and coal 

exports. 

81. Defendant Inslee co-authored a 2007 book titled Apollo's Fire: Igniting 

America's Clean Energy Economy in which he opines that coal is "killing us."'8 More 

specifically, he claims that "[s]hould we fail to restrain the growth of C02 emissions" from 

coal, "all six billion of us on this little spaceship are at risk .... "•9 

82. In the same part of his book, Defendant lnslee claims that "[c]oal is in a race 

with cars to be the greatest danger to our climate."'" He also specifically points to the 

growth of coal use in Asia as a looming threat to the environment.'' 

83. In November 2012, following Defendant Inslee's election as Governor of 

Washington, an article reported that state and national environmental groups viewed him 

as "their best chance to block the coal ports [in Washington]."'" According to the article, 

environmental groups believed that Defendant lnslee "could push rigorous environmental 

reviews that could slow and complicate the permitting process or impose so many 

conditions that it would be difficult for developers to build the terminals." 

'' )AY INSLH & BRACKEN HENDRICKS, APOLLO'S FIRE: IGNITING AMERICA'S CLEAN ENERGY ECONOMY 199 (2008). 

'''/d. at 200. 

'"/d. 

"!d. at 201. 

22 Maria Gallucci, Will Washington's Super Green Governor Take Up the Fight Against Coal Exports?, INSIDE 

CLIMATE NEWS (Nov. 261 2012), hJJJ l'-..!./in-._.1£1~·tltnJ,H_q(t_'\l ':'-L!nVl.l.~'~', -.j).(~L~_ll !( J~·\~ ,l•,hin~!,! 1 'il··'-t:!ll' l !~<_d-v\L}_CliJ 

!_C[lD_iJH!.0·:l1\JJ:tlJ\\ ~'-;_t j,~~-in<.j_~,_·)-._': ( ~'Cill]Pltl~:1,'.1 t'g\_IJl .(_.Jld\l_Ll1L1-()id. 
456 


31623.407

84. During his first inaugural address as the Governor of Washington, Governor 

lnslee proclaimed that he would not "consciously accept the dangers of climate change" 

and described Washington State as the "first responders" who must help "solve this global 

problem.""3 

85. During his first press conference as Governor, Defendant Ins lee discussed his 

concerns about the "ramifications" of "burn[ing] the enormous amounts of Powder River 

Basin coal that are exported through our ports." He called permitting those exports "the 

largest decision we will be making as a state, certainly during my lifetime and nothing 

comes close to it.""• 

86. In May 2014, Defendant Inslee, speaking at a "Climate Solutions" fundraiser, 

touted his view that Washingtonians could be "leaders" by taking advantage of 

Washington's "attributes as a state"-meaning that states on "the West Coast" could fight 

climate change by preventing coal exports.'5 

87. Following the 2016 U.S. presidential election, Defendant Inslee claimed that 

President Trump "has made it clear that he wants to go backwards on our efforts to fight 

climate change," and promised that Washington would continue its "aggressive effort to 

''Jay lnslee, Governor ofVvash., 2013 Inaugural Address: The World Will Not Wait (Jan. !6, 2013), 

http://www .governor. wa.gov I sites I de fau It/ files I speeches /20130ll6_! nau gu ral. pdf. 

"Jessica Goad, Governor Inslee Calls Coal Exports "The Largest Decision We Will Be Making as a State from 

a Carbon Pollution Standpoint," TH!NKPROGRESS (Jan. 22, 2013, 7:56PM), 

''See Climate Solutions, Governor jay Inslee on Washington's Role in Climate Solutions, YouTube (May 20, 

20!4), https://www.youtuhe.com/watch'?v;5njtFvVjMnO&feature;youtu.he. 
457 


31623.408

fight climate change."26 He went on: "No matter what happens in Washington D.C., 

Washington State is going to fight climate change, and we're going to win .... "2

7 

88. In October 2017, while speaking at Climate Change town hall meeting, lnslee 

indicated that "[you] do not want to lock yourself into infrastructure that is going to be 

there 50 years to essentially expand fossil fuel. We do not want to get into that mindset for 

making that kind of decision." 2 H 

89. In another Climate Change town hall meeting, Defendant lnslee again 

referenced Millennium, warned against "build[ing] an infrastructure that locks us into 

fossil fuels," and asserted that Washington State will "do some great things to reduce our 

carbon pollution from all sources wherever it is, so we can reduce carbon whether it is 

produced in China, or Montana, or Brazil .... " 2

9 

90. Defendant lnslee's policy goal of stopping coal exports is implemented in 

large part through the Washington Department of Ecology. 

91. Defendant Bellon was appointed by Defendant lnslee to the position of 

Director of the Washington Department of Ecology in February 2013. In that position, she 

has worked with Defendant lnslee to oppose coal exports. 

92. In November 2013, Defendant Bellon explained during a panel discussion 

that 'This effort starts with Governor lnslee's vision, his mission .... I've been asked to 

lead the sustainable energy and clean environment goal area .... Governor lnslee is 

' 6 Governor jay Inslee Press Conference, TVW (Mar. 25, 2017), www.tvw.org/watch/?eventiD=201703!315. 

'7/d. 

''Climate Townhalll with Gov lnslee Q&A (Oct 19 2017) (see hltp.·i'juutll.h 'h qohlql YAK). At 2:oo 

'9 Governor Ins lee Climate Change Town Hall October 25, 2017 (see ·" t.::) - see 

~~~~.)~~'!.- -LL\.L~)_Q_;j_~,- ,1 U,: h.:: j~.'ii-,'J l L\12~-:_~Qlj__l_!}l_U~J. 
458 


31623.409

pushing us hard on 'You don't do your work in a silo. You check in with [other 

administration officials]' ... Something that I may push from the environmental or water 

quality perspective may be problematic in a different area."Jo 

93. When the Washington Department of Ecology (Ecology) published its 

Environmental Impact Statement (EIS) for the Millennium Bulk Terminal in April2017, its 

official Twitter account tweeted out four "key findings" from the EIS, while paying little 

attention the E!S's findings of no significant adverse impact. 

94. When Ecology tweeted a "key finding" that "[t]he project would increase 

carbon pollution globally by 2 million metric tons," Defendant Bellon retweeted that 

statement. 

95. Despite Ecology having jurisdiction over several pending and future permits 

for the Terminal project, Defendant Bellon also tweeted in April 2017 that "[t]he proposed 

coal terminal in Longview would significantly impact the environment .... " 

96. Defendant Franz campaigned against coal exports when running for 

Washington State Lands Commissioner, indicating in response to a questionnaire that she 

"opposes coal and oil exports from Washington ports."J' 

97. Defendant Franz's campaign website also argued that coal "is projected to be 

an economically outdated energy source within 10 years," and praised the U.S. Army Corps 

3" Panel Discussion on "A New Direction in Washington"with Maia Bellon (Director, Dept of Ecology), Carol 

Nelson (Director, Dept. of Revenue), and joel Sacks (Director, Dept. of Labor & Industries), TVW (Nov. 14, 

2013 9:00AM), ·'''.'!>O.<.J.cc<.U.'.ll.>-'~J-'0!.' ""''"'-'~"~'-"C.CCU.=k•.l!J~C!.U.\3'-13· 

"Tj Martinelli, Visions for Public Lands Chief, THE LENS (Sept. 7, 2016), 

http:/ /thelens.news/2016/09 /07 /a-different-visions-for-public-lands-chief/; see 46'' District Democrats 

Legislative & Statewide Questionnaire, THE LENS, http:/ /thelens.news/wpcontent/uploads/2016/09/CommissionerofPublicLands_HllaryFranz.pdf7 (last visited Nov. ll, 2013). 
459 


31623.410

of Engineers for "suspend[ing] the Cherry Point Coal Terminal project," another proposed 

coal export terminal in Washington StateY 

98. In sum, all the Defendants steadfastly oppose the use of coal as a source of 

energy and, more specifically, the export of coal to Asian markets. 

99. As public officials of the state of Washington, the Defendants have translated 

their personal opposition to coal exports into official state policy by actively thwarting 

Lighthouse's plans to ship coal from Montana and Wyoming to the proposed Millennium 

Bulk Terminal for export to Asia. 

G. Defendants' coordination with other states to block coal exports 

100. On information and belief, the Defendants have also coordinated with 

officials in Oregon and California in a "subnational" effort to prevent any new coal exports 

from the United States Pacific Coast to Asian markets. 

101. The Pacific Coast Collaborative (PCC), a partnership between Washington, 

Oregon, California, Alaska, and British Columbia that was initially formed in June 2008, 

has been used to coordinate policies and actions between the states of Oregon, 

Washington, and California, as well as British Columbia. 

102. Opposition to coal exports originated with one PCC member state at least as 

early as February 2011, when then-Oregon First Lady Cylvia Hayes responded to an email 

''Hilary Franz. Issue Priorities, ELECT HILARY FRANL, http://www.hilaryfranz.com/issues/ (last visited Nov. 

11, 20!3). 
460 


31623.411

from the environmental group Climate Solutions about the proposed Millennium Bulk 

Terminal coal export facility.3l 

103. Hayes and her fiancee, then-Oregon Governor John Kitzhaber actively 

worked to stop coal exports in Oregon and expanded collaboration with officials in 

Washington, including one or more of the Defendants, in an attempt to block all coal 

exports from the West Coast. 

104. On information and belief, subnational efforts to prevent coal exports from 

the West Coast by PCC member states were also intertwined with the efforts of 

environmental groups seeking to block coal exports to Asia. 

lOS. For instance, while acting as First Lady of Oregon, Hayes was being paid by 

the Clean Economy Development Center to develop "a strategic approach to preventing 

the development of coal export facilities on the west coast."J4 A substantial part of that 

compensation came from the Energy Foundation, a group that also worked with Governor 

Kitzhaber to align anti-coal policies in Washington, Oregon, and California.J' 

106. Hayes worked with Governor Kitzhaber to ensure that Oregon's policies and 

decisions opposing coal exports were consistent with the positions taken by the 

33 See E-mail from Cylvia Hayes, CEO, 3E Strategies, to KC Golden, Senior Policy Advisor, Climate Solutions 

(Feb. 19, 2011), http:/ /media.oregonlive.com/politics_impact/other/Nelson%20Hayes%20email.pdf; see also 

Nick Budnick, Kitzhaber Told Staf{State Policies Should Match Cylvia Hayes' Paid Agenda, OREGON LiVE 

(july 20, 2015, 1:47PM), 

.:-i.UJL_t~qlJlt!Jll; Anne 

Mulkern, West Coast Pact on Climate Action Pulled into former Ore. Governor's Scandal, E&ENEWS (Feb. 23, 

2015), htJJl).C.::fJ\:_iY_'iLQ_~:D_t:_\\:-;,lJ~'.\/ 'lt,)J_i.t:~Ll.\!J?.t 1.0 !58}2 . 34 Budnick, supra note 27. 35 Nick Budnick, Cylvia Hayes Scandal: Kitzhaber Associates Help Create Jobs for Her That Had Oregon 

Influence in Mind, OREGON LiVE (Feb. 9, 2015, 9:15PM), 

http:!./\,-~Y\Y.·-~ n:~'g_\HJ li~ S-' .(Ol u/ pq_j itk~: wdc:::;>.)t/ ?iUS/(~),< ytxia _b<J\ ~-_-'":_kitiht.l.h\'r f1~.s.os·i_a_.htnlJ, 
461 


31623.412

environmental groups who paid her salary. They also worked with the Defendants to help 

Washington adopt the same anti-coal export policies. 

107. In December 2012, before Defendant Inslee was sworn into office, Oregon 

Governor Kitzhaber left him a message to invite his participation in a project that would 

create a systemic case against investment in west coast coal export infrastructure. 

lOS. In March 2013, Defendant lnslee and Governor Kitzhaber co-authored a 

letter to the chair of the White House Council on Environmental Quality that decried the 

"inevitable consequences of coal leasing and coal export ... [which] are likely to lead to 

long-term investments in coal generation in Asia" and urges the federal government "in the 

strongest possible terms to undertake and complete a thorough examination of the 

greenhouse gas and other air quality effects of continued coal leasing and export .... "36 

109. The Defendants also continued to coordinate with Oregon and California 

officials through the PCC, using the PCC to "present united fronts opposing new coal export 

facilities on the West Coast," and seeking grant funding for the PCC from environmental 

organizations opposed to coal exports.37 

110. On October 28, 2013, as part of their public efforts with the PCC, California, 

Oregon, Washington, and British Columbia signed an "Action Plan on Climate and Energy" 

that agreed to "meaningful coordination and linkage between states and provinces in North 

America ... [to J improve the effectiveness of [their] actions, increase their overall positive 

'

6 Letter from jay Inslee, Governor of Wash., and John Kitzhaber, Governor of Or., to Nancy Sutley, Chair, 

Council Envtl. Quality (Mar. 25, 2013), http:/ /critfc.org/wp-content/uploads/2012/l0/sutleycoal.pdf?x78172. 

37 See Ins lee's Enviro Outsourcing: 5 Things We Learned from jay Manning's Grant Proposals, SHIFT WA 

(june 2, 2014), 
462 


31623.413

impact and build momentum for broader international coordination to combat climate 

change." 

lll. Officials in Oregon also sought funding for the PCC from groups opposed to 

coal exports with the idea that the states on the west coast, including the Defendants, could 

work with those anti-coal export groups as a unified "network." 

112. During an April 19, 2014 speech to the League of Conservation Voters, 

Governor Kitzhaber made it clear that he intended to stop all coal exports: "It is time once 

and for all to say no to coal exports from the Pacific Northwest .... The future of Oregon 

and the West Coast does not lie in nineteenth century energy sources."J8 

ll3. On October 8, 2014, Willamette Week published a story explaining how First 

Lady Hayes had misused her position in Governor Kitzhaber's administration. In January 

2015, it came to light that Hayes had not disclosed her contract with the Clean Economy 

Development Center in her ethics filings. 

ll4. On February 4, 2015, the Oregonian editorial board called for Kitzhaber to 

resign. On February 9, 2015, Oregon Attorney General Ellen Rosenblum announced a 

criminal investigation. On February 13, the U.S. Attorney's Office issued a subpoena for 

records.39 
463 


31623.414

115. Kitzhaber resigned as Governor of Oregon effective February 18, 2015, but 

PCC member states continued to act in opposition to coal exports. 

116. On June I, 2016, members of the PCC-British Columbia, California, Oregon, 

and Washington-together with the cities of Los Angeles, Oakland, Portland, San 

Francisco, Seattle, and Vancouver, signed the "Pacific North America Climate Leadership 

Agreement." The Preamble to that agreement noted that the parties are "embracing the 

Pacific Coast's opportunity to demonstrate global leadership by providing a model for 

decisive, coordinated subnational climate action .... " 

H. Washington's environmental review of the proposed Terminal 

117. In November 2010, MBT Longview received a Shoreline Substantial 

Development Permit from Cowlitz County for initial development of a coal export facility 

at the Terminal. Several environmental groups appealed that decision. 

118. The Washington Department of Ecology filed to intervene in the appeal. 

Ecology's Southwest Regional Office claimed in an email that Ecology was not "suggesting 

that the SEPA analysis should include emissions that occur from the burning of coal in 

China." Instead, Ecology's position was that the greenhouse gas emissions inventory should 

evaluate transportation impacts from the border ofWashington to the three mile territorial 

limit. 

119. Rather than litigate the appeal of its original Shoreline Development Permit, 

MBT Longview withdrew its permit application and began a new process that would 

evaluate the environmental effects of the possible expansion of coal exports at the 

Terminal-including preparation of an ElS. 
464 


31623.415

120. In October 2012, the U.S. Army Corps of Engineers, Washington Department 

of Ecology, and Cowlitz County agreed to collaborate on a joint National Environmental 

Policy Act (NEPA)/State Environmental Policy Act (SEPA) document. Approximately three 

years later, after Defendants lnslee and Bellon were in office, the parties amended their 

Memorandum of Understanding to allow separate state and federal environmental reviews. 

121. The separation of the federal and state environmental review process 

stemmed from a disagreement over the scope of the document. As Defendant Bellon 

explained on August 22, 2013, the State's broader scope of environmental review was based 

on "the end use of a product" and that "there is no speculation as to the end use of the 

exported coal; it will be combusted for thermal power."4o 

122. In other words, Defendant Bellon explicitly proposed to expand the 

environmental review of proposed Terminal project beyond the scope originally envisioned 

with the federal government solely because of the commodity being exported: coal.4' 

123. In November 2013, just 2 days after the public scoping comment period to 

define the scope of the Millennium Bulk Terminal EIS ended, Governor Kitzhaber praised 

Defendant lnslee for assuring that Washington's review of coal export facilities would 

4" Letter from Maia Bellon, Dir. of Wash. Dept. of Ecology, to Doug Erickson, Wash. State Senator 4, 7 (Aug. 

22, 2013), http:/ /washingtonports.org/wp-content/uploads/2013/ll/Annuall3-CLEEcologyLetterGatewayReview.pdf. 

4l The proposed MBT Longview coal export terminal is almost six years into the permitting process and it 

has undergone repetitive, burdensome, and unnecessarily complex government processes. As of October 

20!7, MBT Longview has invested about SIS million in permitting. A report by james Bacchus and Rosa 

Jeong of the law firm Greenberg Traurig LLP prepared for the National Association of Manufacturers noted 

that expanded SEPA review could constitute export restrictions under World Trade Organization rules. See 

)AMES BACCHUS & ROSA)F.ONG, GREENBERG TRAURIG LLP, LNG AND COAL: UNREASONABLE DELAYS IN APPROVING 

EXPORTS LIKELY VIOLATE INTERNATIONAL TREATY OBLIGATIONS 3-5 (Nov. 2013), 

http://www. nam .org/lssues/E ne rgy I LN G-an d -Co a 1-Report-NOV-20 I3 /LNG-COAL-Rcpo rt. pdf. 
465 


31623.416

include a full examination of upstream and downstream impacts, including rail effects and 

the effects of coal's use as a fuel in Asia. 

124. In February 2014, Ecology formally decided that the Draft EIS for the 

Terminal project would evaluate impacts beyond the State's borders, including impacts 

from lifecycle greenhouse gas emissions and transportation that occurs outside of the 

project area and the State of Washington. This change in scope was inconsistent with both 

Ecology's stated position in 2011 and its original scoping agreement with the federal 

government. 

125. The U.S. Army Corps of Engineers declined to follow Ecology's decision to 

conduct an expansive environmental review. 

126. The Corps explained its scoping decision in a February 2014 Memorandum 

of Record. In sum, the Corps concluded that Ecology's broader analysis infringed on 

numerous areas over which "other Federal agencies may have regulatory control." 

127. On information and belief, Defendant Inslee and Defendant Bellon 

influenced the scope and preparation of the E1S in a manner to include factors over which 

Washington State has no jurisdiction, some of which are exclusively under federal 

jurisdiction. 

128. In June 2016, following publication of the state's Draft EIS, Defendant Bellon 

reiterated the State of Washington's goal of being a national and global leader in opposing 
466 


31623.417

the use of carbon-based fuels, and argued that if Washington, Oregon, and California show 

leadership, then "others will fall in line."4' 

129. During the same June 2016 interview, Defendant Bellon acknowledged that 

the state has little authority to regulate rail transportation, and that if a recently passed law 

went further, it would be "beyond our authority again and ... interfering with commerce 

clause concepts."4J 

130. The unusually broad, global scope of analysis for the Final EIS is just one of 

the ways that the Defendants undermined the Terminal expansion project's goal of 

exporting U.S. coal to Asian markets. 

13l. On information and belief, Defendant lnslee and Defendant Bellon also 

influenced the preparation of the EIS to exclude analysis that did not support their 

opposition to coal exports. 

132. For example, the draft EIS excluded the analysis of greenhouse gas emissions 

during coal extraction. After several comment letters noted the omission, the final EIS 

added two paragraphs referencing "uncertainty associated with estimated coal extraction 

emissions"-but entirely excluded the results of that analysis from its conclusion that the 

project would increase greenhouse gas emissions. 

133. This omission is particularly glaring in light of the 122-page SEPA 

Greenhouse Gas Emissions Technical Report-prepared by Ecology's own third-party 

4' Inside Olympia, Interview with WA Dept. of Ecology Director Maia Bellon, TVW {June 2, 2016,7:00 PM). 

www.tvw.org/watchf7eventlD=201606l084. 

43/J. 
467 


31623.418

consultant-which found that U.S. coal mining actually reduces total greenhouse gas 

emissions by displacing mining with higher emissions elsewhere in the world, even when 

accounting for uncertainty.44 

134. Ultimately, the Defendants used their substantive authority under SEPA to 

reject MBT Longview's proposal by finding that it would cause signiftcant adverse 

environmental effects not reasonably capable of mitigation. 

135. In particular, the Defendants concluded that the environmental effects of a 

coal export facility at the Terminal could not be mitigated because those effects were 

subject to federal jurisdiction, and not within the state's authority to mitigate. 

136. On May 25, 2017, following publication of the Final EIS, Defendant Bellon 

admitted that the state subjected the Terminal project to a greater level of scrutiny because 

the coal it would export is "meant to be used as an end product for combustion."45 These 

comments again confirmed Defendant Bellon's opposition to coal export to Asian markets. 

137. Washington State's expanded review of the Terminal stands in sharp contrast 

to its treatment of the Barlow Point terminal, which is adjacent lo the MBT Longview site 

and is served by the same rail line that serves the Terminal. 

138. At Barlow Point, the Port of Longview aims to export dry or liquid bulk 

commodities including bio-diesel, crude oil, methanol, potash, urea/ammonia, and wood 

"The final ElS reported that the project increased total net annual emissions in 2028 by 1.19 million metric 

tons of C02 equivalent. MBT Longview SEPA Final Environmental Impact Statement, supra note 4, at 5.8-

18. However, if coal extraction analysis is included as reported in the Technical Report, total net annual 

emissions in 2028 decreases by 3.77 million metric tons of C02 equivalent. See lCF, SEPA GHEENHOUSE GAS 

EMiSSIONS TECHNiCAL REP .. 3-23 tbl. 67 (Apr. 20!7). 

•'Inside Olympia, Interview with Wash. Dept. of Ecology Maia Bellon, TVW (May 25, 2017, 7:00PM), 

www.tvw.org/watch/?event1D=201705l094. 
468 


31623.419

chips•6 State officials and agencies are actively pushing for expedited development of 

Barlow Point.47 It was estimated that its environmental review process will take between 18 

and 24 months.•8 

139. The primary material difference between the Barlow Point project and the 

Terminal is the commodity being shipped from the Terminal: coal. 

140. Washington State's expanded review of the Terminal also stands in sharp 

contrast to its review of a grain export terminal that was originally proposed at the Port of 

Longview in or about June 2009.49 

141. Despite the fact that this grain export terminal also receives 110-car trains 

from Montana and other states, and transloads grain onto oceangoing vessels bound for 

Asian markets,>0 it proceeded quickly through the environmental review and permitting 

process. It began receiving trains in September 20ll.S' 

46 See PORT OF LONGVIEW: MASTER PLAN PHASE 1 fEASIBILITY STUDY, PORT OF LONGVIEW 1-3 (Mar. 9, 2016), 

http://wa-portotlongview.civicplus.com/DocumentCenter/Home/View/49. 

47 See Letter from Roger Millar, Sec'y ofTransp., and Dan Gatchet, Chair, Wash. State Freight Advisory 

Comm., to David Schumacher, Dir., Office of Fin. Mgmt., Curtis King, Chair, Senate Transp. Comm., and 

judy Clibborn, Chair, House Transp. Comm. (Oct. 31, 2016), http://waportotlongview.civicplus.com/DocumentCenter/Home/View/70; see also DRAFT 2017 WASHINGTON STATE 

FREIGHT SYSTEM PLAN, WASH. STATE DEP'TOFTRANSP. (2017), 

·}J )(:}?tJJJ\:~H~.\}_,:JJr,lJJJ_L1j~dH~} ::-.tr.mE1JJl.llPU~J.l\il.t£5_2JJCO,t)l~ .. p_<1f; KPFF & PORT OF LONGVIEW, PORT OF 

LONGVIEW: MASTER PLAN PHASE 1 FEASIBILITY STUDY EXECUTIVE SUMMARY REPORT, 14 (Mar. 9, 2016), 

http://wa-portoflongview.civicplus.com/DocumentCenter/Home/View/49. 

48 PORT OF LONGVIEW: MASTER PLAN PHASE I FEASIBILITY STUDY EXECUTIVE SUMMARY REPORT at 14. 

<J9 Bunge partners with two leading agribusiness firms to build export grain terminal in the Pacific 

Northwest (June 1, 2009), l1nr</_\\_\Y~cu_Lg.L1i!l~t,'_\HnL!K~:2l.l~~t~'!-li:'_dillulg.t::.Po)_ItJl~l5::"1:ULh-J~}:5,~.J£,)0.illL~.­

,·u~dhtl 'iiJ lL:~.'c_:Jlxnl'i- LQ:J~t.tlLd.: ~::-.w1 rt ~ gr~1iu_: 1~·nnLni!tln::Jht:.:J1Zl£Ji3r:::ruJJtb '~'ilL 

so Longview Export Grain Terminal, htt.P.~L\n~:,~: .. ~')J.lg@in,_umJ!_Ll\,;illt~L. 

5' EGT receives first wheat shipment from Washington State (Sept. 21, 2011), 

htUJ :}._1_ \'!'\ D~· J.'_gtJ.; ~~,1i t) .. _q~.nli JtP\~:slg: I~ \1S!-:! cgt - r~' ~:_~::i\:t,:~.: {l_e::if :\YlkJ.i"::?ib irJ1WJJt :Lcmn :·w£~hiJJiW) J.LSl·JL~. 
469 


31623.420

142. The primary material difference between the grain export terminal at the 

Port of Longview and the Millennium Bulk Terminal is the commodity being shipped from 

the Terminal: coal. 

143. The State of Washington's treatment of the Terminal further stands in 

contrast to its review of a 2015 Port of Seattle proposal to modernize its currently-vacant 

Terminal 5, including associated dredging, to allow much bigger container ships to call at 

that terminal. 

144. The Port of Seattle's proposed container terminal modernization project is 

targeted at attracting new shipping to the Northwest through upgrades that would allow 

Terminal 5 to handle at least 1 million more twenty foot shipping containers per year than 

the facility's current permits allow. 

145. SEPA review for the Port ofSeattle's Terminals modernization project, which 

was initiated in 2015, limited its analysis of GHG emissions to emissions related to the 

operation of the project itself. This limitation was in spite of the revitalized terminal's 

potential effects on the dynamics international trade in any number of products. 

146. Ecology also did not request an analysis of GHG emissions from the transPacific shipping of goods to or from the terminal, or any analysis of the market effects of a 

modernized terminal designed to accommodate much bigger vessels than any port in the 

Northwest can currently handle. 

147. The final EIS was issued in October 2016, just one year after the Port of Seattle 

determined that an EIS would be prepared. 
470 


31623.421

148. Again, the primary material difference between the Port of Seattle terminal 

expansion and the Millennium Bulk Terminal is the commodity being shipped from the 

Terminal: coal. 

I. Washington State's denial of a sublease to MBT Longview 

149. LHR Infrastructure initially approached the Washington Department of 

Nature Resources (DNR) in August 2010 to discuss LHR Infrastructure becoming the 

sublessee under the Aquatic Lands Sublease at the Terminal. 

ISO. After LHR Infrastructure transmitted the lessee's consent to DNR, the 

Department's representative indicated in an October 18 email that he had "no objections" 

to the sublease. He then explained that "[t]he only thing [DNR] require[s] will be the 

security and insurance be in place at the time or before the sublease is in place." 

lSI. On October 19, 2010, in a follow up telephone conversation, the same DNR 

representative confirmed that his October 18 email was DNR's consent to the sublease, and 

that DNR would not sign a written consent because there was no one within the agency to 

sign such a document. 

152. Later in October 2010, as part of the transaction for MBT Longview to acquire 

the Terminal assets, Northwest Alloys submitted a written request for approval of an 

aquatic lands sublease to MBT Longview. 

153. On November 12, 2010, four environmental groups (Sierra Club, Columbia 

Riverkeeper, Washington Environmental Council, and Climate Solutions) sent thenWashington DNR Commissioner, Peter Goldmark, a letter urging him to deny consent to 
471 


31623.422

a "sublease transfer" to LHR Infrastructure and requesting a meeting to discuss DNR's 

decision. 

154. Six days later, on November 18, 2010, DNR left a voice message for LHR 

Infrastructure's attorney to inform him that an attorney would be taking over the sublease 

issue. 

155. More than six years later, in January 2017, DNR announced that it would not 

approve the proposed sublease between Northwest Alloys and MBT Longview. 

156. Although the ostensible reason for this sublease denial was a lack of 

information about MBT Longview's finances and the structure of the sublease, MBT 

Longview had in fact provided all of the information normally required. 

157. Opponents of the Terminal project hailed DNR's decision as "a firm no to the 

largest coal terminal in the country."s2 

158. Defendant Franz, who assumed leadership of the DNR just weeks after her 

predecessor's decision, subsequently explained that the denial of the sublease was "right" 

because "the answer to sustainable, long-term revitalization of our economies is best served 

by looking forward to the development of new technologies that protect the environment, 

not backward to technologies that exploit it."53 

''Hal Bernton, Departing DNR Boss jolts Longview Coal-Terminal Plan, THE SEATTLE TIMES (Jan. 4, 2017, 

10:21 AM), https://www.seattletimes.com/seattle-news/environment/dnr-boss-rejects-longview-coalexport -loading-dock-sub lease/. 

53 Marissa Luck, Millennium Appeals State's Denial of Coal Dock Sublease. TDN (Feb. 11, 2017). 

http://tdn.com/news/local/millennium-appeals-state-s-denial-of-coal-dock-sublease/article_la70be78-

0l91-5ebl-bc50-4a9b4f4e78c6.html. 
472 


31623.423

159. Defendant Franz's statement is consistent with the platform she espoused 

when running for her current office, when she indicated that she "opposes coal and oil 

exports from Washington ports,"54 but inconsistent with DNR's stated reasons for denying 

the sublease. 

160. When MBT Longview challenged DNR's sublease denial in Cowlitz County 

Superior Court, the judge ruled that DNR's decision was "arbitrary and capricious." 

]. Washington State's denial of a Clean Water Act§ 401 certification 

161. In July 2016, MBT Longview requested a water quality certification under 

section 401 of the Clean Water Act (CWA) from the Washington Department of Ecology 

(Ecology). Obtaining that certification is a key step in securing a CW A section 404 dredge 

and fill permit for the Terminal project from the U.S. Army Corps of Engineers. 

162. On September 26, 2017-just 3 business days after receiving 240 pages of 

additional information in response to Ecology's requests and questions-Ecology denied 

the request for a CWA section 401 certification "with prejudice." 

163. Lighthouse and MBT Longview are not aware of any other instances in which 

Ecology denied a request for CWA section 401 certification "with prejudice." Ecology has 

also admitted that does not know of other "with prejudice" 401 certification denials. 

164. Ecology's denial was not based on the water quality effects of the Terminal, 

as required by CWA section 401. Indeed, the SEPA EIS for the Terminal project concluded 

that it would not have any significant adverse effects on water quality. 

54 TJ Martinelli, Different Visions for Public Lands Chief, THE LENS (Sept. 7, 20!6), 

http://thelens.news/2016/09/07/a-different-visions-for-public-lands-chief/; see 46'; District Democrats 

Legislative & Statewide Questionnaire, THE LENS, http:/ /thelens.news/wpcontent/uploads/2016/09/CommissionerofrublicLands_HllaryFranz.pdf (last visited Nov. ll, 2017). 
473 


31623.424

165. Unable to rely on water quality issues, Ecology denied the certification based 

almost entirely on effects that would be caused by rail carriers transporting coal into 

Washington from Montana and Wyoming, where it is being mined by LHR Coal's 

subsidiaries. 

166. Ecology's denial was also founded in part on the potential effects of the 

oceangoing vessels that would transport coal from the Terminal to LHP's customers in Asia. 

167. Defendant Bellon announced Ecology's denial ofMBT Longview's request for 

CW A section 401 certification on her Twitter account. She has not mentioned other CWA 

section 401 certification decisions on Twitter. 

168. Defendant Bellon also "liked" several responses to her tweet announcing 

Ecology's denial, including a tweet that said "Let's keep Powering Past Coal!" 

169. In October 2017, on the heels of Ecology's section 401 denial, Defendant 

lnslee publicly argued that "[c]limate change policy is under attack at the federal level, 

making state and local action more urgent and important than ever."ss 

170. Defendant Jnslee further stated that because Washington State has "control 

of [its] own destiny," it has "done some very progressive things leading the country and the 

world to reduce carbon pollution that is damaging our future here in the state."56 This 

appears to be a direct reference to Ecology's denial of MBT Longview's requested CWA 

section 401 certification. 

"WA Governor's Office, Ins lee Visits Colleges to Urge Climate Action, MEDIUM (Oct. 25, 2017), 

https://medium.com/wagovernor/inslee-visits-colleges-to-urge-climate-action-5a5b385fd290. 

'

6 See Governor Ins lee Climate Change Town Hall, TVW (Oct. 25, 2017, 2:45PM), 

www.tvw.org/watch/?eventJD;20l710!08l. 
474 


31623.425

171. During the same October 2017 discussion, Defendant Inslee specifically 

referenced the proposed Terminal as a project that could not meet Washington's rigorous 

environmental standards in order to receive permits .57 In another apparent reference to the 

Terminal, he warned against building "an infrastructure that locks us into a fossil fueJ."58 

172. MBT Longview's CWA section 401 certification request was not treated like 

other requests of its kind. It was denied because the Defendants oppose coal exports and 

construction of a coal export facility at the Terminal. 

K. Washington State's refusal to permit improvements to the Terminal 

173. In August 2017, the current lessee of the Millennium Bulk Terminal, 

Northwest Alloys, sought DNR's consent under the lease to make certain improvements to 

the existing terminal. 

174. The proposed improvements to the terminal were part of MBT Longview's 

plan to construct a coal export facility, but they did not exempt MBT Longview from any 

permitting or approval requirements. 

175. Because the lease already allows transloading of coal and the coal export 

facility would still be subject to numerous federal and state environmental review and 

permitting requirements, DNR approval should have been straightforward and consistent 

with the 60 days allowed for such review under the lease. 

"/d.; see also Emily Boerger, Gov. Inslee Encourages Action and Innovation at Climate Town Hall, WASH. 

STATE WIRE (Oct. 26, 2017), https://washingtonstatewire.com/gov-inslee-encourages-action-innovationclimate-town-hall/. 

sB Governor Ins lee Climate Change Town Hall, TVW (Oct. 25, 2017), 

www.tvw.org/watch/'eventlD=2017101081. Similarly, at a Climate Change Town Hall at Bellevue College, 

Defendant lnslee noted that he doesn't want Washington to "lock [it]selfinto infrastructure that is going to 

be there 50 years that will essentially expand fossil fuel and lock you into that. We do not want to get into 

that mindset or make those kinds of decisions." 350 Seattle, Climate Townha/1 with Gov. lnslee Q&A 

10.19.2017, YouTUBE (Oct. 24, 2017), https:/ /youtu.be/h_qOhlqCYx8. 
475 


31623.426

176. Nonetheless, on October 26, 2017, Defendant Franz sent a lengthy legal 

memorandum to the lessee explaining that DNR had determined the proposed 

improvements were not "in the best interests of the State." 

177. Defendant Franz's memorandum rejecting the proposed lease improvements 

adopts Ecology's rationale for denying MBT Longview's request for CWA section 401 

certification, including Ecology's reliance on the environmental effects of rail 

transportation. 

178. Despite having executed a lease that expressly allows a coal export facility at 

the site, DNR did not treat the request to make improvements to the Terminal like other 

similar requests. It refused to consent to the proposed improvements because Defendant 

Franz and the other Defendants do not support construction of a coal export facility at the 

Terminal. 

L. Defendants' actions lead to the denial ofMBT Longview's shoreline 

permit 

179. As part of its proposal to construct a coal export facility at the Terminal, MBT 

Longview applied for a Shoreline Substantial Development Permit and a Shoreline 

Conditional Use Permit from Cowlitz County. In November 2017, the permits came before 

a Cowlitz County Hearing Examiner for review. 

180. The Cowlitz County staff who reviewed MBT Longview's proposal found that 

it was consistent with all requirements of the county's Shoreline Master Plan and with the 

Shoreline Management Act and recommended that the permits be approved. 
476 


31623.427

181. Despite Cowlitz County's recommendation, the Hearing Examiner explicitly 

relied on Ecology's EIS, as well as the findings that Ecology made in connection with its 

CWA section 401 decision, to deny the permits. 

182. The Hearing Examiner further observed that DNR's refusal to authorize 

improvements related to MBT Longview's proposal made it "likely" that DNR would also 

deny future permits. 

183. Despite the fact that the Cowlitz County staff recommended granting the 

permits requested by MBT Longview, the Hearing Examiner relied on the prior decisions 

of the Defendants to block MBT Longview's proposed coal export terminal. Those prior 

decisions were motivated by the Defendants' opposition to coal exports, and were not 

based in law or consistent with the facts of the case. 

M. Defendants have no intention of ever approving the Terminal 

184. it is well established that the Defendants oppose coal and coal exports on 

policy grounds. Their actions in denying the proposed sublease, the CWA section 401 

certification, and the proposed lease improvements demonstrate that they have no 

intention of allowing the Terminal to be constructed. 

185. On October 23, 2017, Ecology sent a letter to MBT Longview that makes the 

state's position on the proposed Terminal crystal clear. 

186. In that letter, Ecology stated that the same potential environmental effects 

on which it relied to deny MBT Longview's request for CWA section 401 water quality 

certification "likely preclude Ecology from approving" any ofMBT Longview's other permit 

applications. 
477 


31623.428

187. Ecology's letter also bluntly stated that its "staff will not be spending time on 

permit preparation" related to those applications. 

188. The letter, which was signed by Defendant Bellon, referred any questions 

MBT Longview might have to the Washington Attorney General's Office. 

189. Defendants, in their capacity as Washington public officials, are using the 

state's regulatory approval authority to set economic and foreign policy for the United 

States as a whole. 

190. Any bulk commodity shipped by train would have many of the same in-state 

environmental effects as coal. If the environmental review processes and regulatory 

standards that Defendants have applied to the proposed coal export facility at the Terminal 

were applied more broadly, it would have a chilling effect on virtually all interstate and 

foreign commerce. 

191. The SEPA EIS concludes that the project can meet all state and federal 

environmental standards. But because they believe that coal exports should not be 

permitted, the Defendants are blocking both foreign and interstate commerce by not 

approving-or even processing-the permits for the Millennium Bulk Terminal. 

LEGAL AND REGULATORY BACKGROUND 

A. Federal support for coal and coal exports 

192. The United States government has long supported coal mining and coal 

export to other countries. 
478 


31623.429

193. Twenty-five years ago, Congress directed the Secretary of Commerce to 

prepare "a plan for expanding exports of coal mined in the United States."59 

!94. Between 2002 and 2012, total U.S. coal exports grew from 39.6 million short 

tons to 125.7 million short tons. 60 

195. The current administration continues to pursue a policy of "export[ing] 

American energy all over the world," including into Asian markets.6' 

196. On March 29, 2017, Secretary of Interior Ryan Zinke published Secretary's 

Order 3348, which lifted a moratorium on the federal coal leasing program that had been 

put in place by the prior administration. 

197. Secretary's Order 3348 directed the Bureau of Land Management to process 

coal lease applications and modifications expeditiously. Much of the coal that will be mined 

under these leases and modifications is intended for export to Asia. 

198. Secretary Zinke issued a statement accompanying Order 3348 in which he 

explained that "it is better to develop our energy here under reasonable regulations and 

export it to our allies .... [A]chieving American energy independence will strengthen our 

national security by reducing our reliance on foreign oil and allowing us to assist our allies 

with their energy needs." 

'" 42 U.S. C.§ I3367(a). 6

" Coal Data Browser, U.S. ENERGY INFO. ADMIN., 

https:/ jwww .eia.gov /beta/ coal/data/browser I# /topic I 41 ?agg=2, l, O&rank=o k&linechart=COAL. EXPORT_ Q 

TY.TOT-TOT-TOT.A&columnchart=COAL.EXPORT __ QTY.TOT-TOTTOT.A&map=COAL.EXPORT_ QTY.TOT -TOTTOT.A&freq=A&ctype=map<ype=pin&rtype=s&pin=&rse=O&maptype=O (last visited Nov. 11, 2013). 6' Office of the Press Secretary, Remarks by President Trump at the Unleashing America Energy Event, THE 

WHITE HOUSE (June 29, 2017,3:31 PM), https:jjwww.whitehouse.gov/the-press-offlce/20!7/06/29/remarkspresident-trump-unleashing-american-energy-event. 
479 


31623.430

199. More than a quarter of all existing United States coal exports are shipped to 

South Korea, Japan, China, and lndia. 6' And demand for coal in Asian markets is continuing 

to increase.63 

200. Japan, for example, is "highly interested in importing coal from the United 

States" to stabilize and secure its energy supplies.64 

201. The United States recently launched a "U.S.-Japan Economic Dialogue," 

aimed at, among other things, "deepen[ing) energy ties."65 

202. The United States also recently forged an agreement with the Government of 

Ukraine that facilitates purchase of American coal. In connection with that agreement, 

Secretary of Energy Rick Perry issued a statement indicating that the U.S. "looks forward 

to making available even more of our abundant natural resources to allies and partners like 

Ukraine in the future to promote their own energy security through diversity of supply and 

source."66 

203. Secretary of Commerce Wilbur Ross also issued a statement in connection 

with the agreement to supply coal to the Ukraine. There, he emphasized that he "look[s) 

6'25% of U.S. Coal Exports go to Asia, but Remain a Small Share of Asia's Total Coal Imports, U.S. ENERGY 

INFO. ADMIN. (June 21, 2013), https://www.eia.gov/todayinenergy/detail.php?id=ll791. 

''Southeast Asia's Coal Demand Boom, lNST. FOR ENERGY RESEARCil (Nov. 6, 2017). 

https :// instituteforene rgyresearch.o rg/ analysis/ southeast -asias-coal-d emand- boom/. 6• Shozo Kaneko, The Coal-Terminal Debate: A View from japan, THE SEATTLE TlMES (Sept. 19, 2017, 2:03 

PM), https://www.seattletimes.com/opinion/the-coal-terminal-debate-a-view-from-japan/. 

"'Press Release, Office of the Vice President, Joint Press Release from Vice President Mike Pence and 

Deputy Prime Minister Taro Aso on the Second Round ofU.S.-Japan Economic Dialogue (Oct. 16, 2017), 

htt ps ://wv..w. whitehouse. go v /the-press-a ffice/2 017/10 /I 6/ joint-press-release-vice-president-mike-penceand-deputy-prime-minister; see a/so Roberta Rampton & Minami Funakoshi, Pence Kicks OJJ]upun Talks, 

Both Sides Seek 'Near Term' Results, REUTERS (April 17, 20!7, 2:05PM), https:/ /www.reuters.com/article/uspence-asia-japan/pence-kicks-olf-japan-talks-both-sides-seek-near-term-results-idUSKBNI7)1Gl. 

66 Dept. of Energy, Secretary Perry and Secretary Ross Hail New Coal Deal with Ukraine, ENERGY.Gov (JULY 

3!, 2017), https://energy.gov/articles/secretary-perry-and-secretary-ross-hail-new-coal-deal-ukraine. 
480 


31623.431

forward to working with Secretary Perry and others in industry and government to further 

expand American exports in support of our goals of keeping this country safe and 

promoting robust economic growth." 

204. In December 2017, the White House released its updated National Security 

Strategy. Its discussion of energy issues includes "Promote Exports" in a list of "Priority 

Actions."67 

205. The National Security Strategy further explains that "[t]he United States will 

promote exports of our energy resources," including by "expand[ing] our export capacity 

through the continued support of private sector development of coastal terminals .... "68 

B. The dormant commerce clause 

206. The U.S. Constitution's commerce clause provides that "Congress shall have 

Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and 

with the Indian Tribes." 

207. Though the commerce clause only explicitly mentions Congress' affirmative 

power to regulate commerce, federal courts have long read into it a "dormant" or negative 

limitation that also constrains the states' power to regulate foreign and interstate 

commerce. 

208. States violate the dormant commerce clause if their actions discriminate 

against or unduly burden foreign or interstate commerce. 

67 White House, National Security Strategy for the United States of America at 23 (December 2017), 

https :/ /www. whitehouse. gov fw p-content/ u ploads/zm7/tz/NSS-Final-tz-t8-zm7-0905.pdf. 

''I d. 
481 


31623.432

209. More specifically, state regulation runs afoul of the foreign commerce clause 

if it (l) creates a substantial risk of conflicts with foreign governments; or, (2) undermines 

the ability of the federal government to speak with "one voice" concerning foreign 

commercial affairs. 

210. Dormant interstate commerce clause claims are analyzed using a two-tier 

framework: If an action is facially discriminatory, either in purpose or "practical effect," it 

is unconstitutional unless it serves a legitimate local purpose that could not be served by 

available nondiscriminatory means. Nondiscriminatory actions, on the other hand, are 

unconstitutional when the burden imposed on interstate commerce is clearly excessive in 

relation to the putative local benefits. 

C. General Agreement on Tariffs and Trade 

211. The United States has been a party to the General Agreement on Tariffs and 

Trade (GATT) since January 1, 1948, and a member of the World Trade Organization 

(WTO) since January 1, 1995. 

212. Article Xl:l of the GATT provides "[n]o prohibition or restrictions other than 

duties, taxes or other charges, whether made effective through quotas, import or export 

licenses or other measures, shall be instituted or maintained by any contracting party ... 

on the exportation or sale for export of any product destined for the territory of any other 

contracting party." 

213. Article Xl:2 provides a number of exceptions to this general rule, including 

"[e]xport prohibitions or restrictions temporarily applied to prevent or relieve critical 

shortages of foodstuffs or other products essential to the exporting contracting party" and 
482 


31623.433

"export prohibition or restrictions necessary to the application of standards or regulations 

for the classification, grading or marketing of commodities in international trade." 

214. Article XX of the GATI provides certain additional exceptions to the 

requirements of Article XI, provided that the measure in question is not "a disguised 

restriction on international trade." 

215. In the past, the United States has relied on GATI Article XI:! to protect its 

commercial interests. For instance, in a recent case, the United States successfully 

challenged Chinese export restrictions on rare earths, tungsten, and molybdenum. 

D. ICC Termination Act 

216. Congress and the courts long have recognized a need to regulate railroad 

operations at the federal level. Today that regulation is performed pursuant to the ICC 

Termination Act (ICCTA), 69 which created the Surface Transportation Board and gave it 

complete jurisdiction, to the exclusion of the states, over the regulation of railroad 

operations. 

217. ICCTA further provides that "remedies ... with respect to regulation of rail 

transportation are exclusive and preempt the remedies provided under Federal or State 

law."7o 

218. Any form of state or local permitting or preclearance that, by its nature, could 

be used to deny, or place conditions on, a railroad's ability to conduct some part of its 

operations is "categorically" preempted by ICCTA. 

69 49 U.S. C.§§ 10101, et. seq. 

7" 49 u.s. c.§ l050J(b). 
483 


31623.434

219. Even when state actions are not categorically preempted, they are still 

preempted if they may reasonably be said to have the effect of managing or governing rail 

transportation. 

E. Ports and Waterways Safety Act 

220. The Ports and Waterways Safety Act (PWSA)7' regulates the operation of 

marine tanker vessels in U.S. harbors. 

221. In enacting the PWSA, Congress intended to provide for sole federal 

regulation of national and international maritime commerce. 

222. The PWSA accordingly preempts state and local laws that are inconsistent 

with the federal statutory structure. 

223. Where state actions bear on national and international commerce, there is 

no threshold assumption that concurrent regulation by the State is a valid exercise of its 

police power. 

CLAIMS FOR RELIEF 

Count l - Dormant Foreign Commerce Clause 

224. Plaintiffs incorporate and re-allege the foregoing paragraphs. 

225. By unreasonably denying and refusing to process permits for the Millennium 

Bulk Terminal, the Defendants have discriminated against Lighthouse's and its 

subsidiaries' efforts to export coal to their Asian customers, in violation of the dormant 

foreign commerce clause. 

7 ' 33 U.S. C.§§ 1221, et seq. 
484 


31623.435

226. By expanding the scope of their SEPA review beyond the boundaries of 

Washington State, and especially by including the environmental effects of coal exports to 

foreign nations, the Defendants have further discriminated against Lighthouse's and its 

subsidiaries' efforts to export coal to their Asian customers, in violation of the dormant 

foreign commerce clause. 

227. The Defendants' actions have created a substantial risk of conflict with 

foreign governments, which rely on American coal exports for power production. 

228. In addition, the federal government has made it clear that the policy of the 

United States is to favor the expansion of coal exports to foreign countries, including 

countries in Asia. 

229. By taking actions and refusing to act in ways consistent with the federal 

government's coal export policies, the Defendants have severely undermined the ability of 

the United States to speak with one voice in foreign commercial affairs and to implement 

its National Security Strategy. 

230. By unilaterally imposing an embargo on new coal exports, the Defendants are 

interfering with Washington's sister states'-including Wyoming and Montana-ability to 

engage in foreign commerce. 

23l. By expanding the scope of their SEPA review beyond the boundaries of 

Washington State, and especially by including the environmental effects of coal shipments 

destined for foreign nations, the Defendants have further discriminated against 

Lighthouse's and its subsidiaries' efforts to engage in foreign commerce. 
485 


31623.436

232. By concluding that potential environmental effects cannot be mitigated 

under SEPA if those effects are within the jurisdiction of the federal government, the 

Defendants are unduly burdening, and in effect regulating, foreign commerce. 

233. Defendants' refusal to license a coal export facility is prohibited under the 

United States' obligations as a member of the WTO, as it constitutes a prohibition or 

restriction on exportation under GATT Article Xl:l; is not covered by any of the exceptions 

set out in GATT Articles Xl:2 or XX; and, in any case, is a "disguised restriction on 

international trade." 

234. In addition, Defendants' actions could be cited and leveraged by respondents 

in WTO disputes involving export restrictions brought by the United States, and may 

interfere with the ability of the United States to compel other nations through the WTO 

dispute settlement process and other available bilateral, regional, and multilateral 

mechanisms to reduce or remove export restrictions that impair the foreign commerce of 

the United States. 

235. The Defendants' actions also injure Lighthouse and its subsidiaries by 

impacting the willingness of the private sector to invest in the development of coal export 

facilities in the State of Washington, and along the entire Pacific Coast. 

236. Defendants' actions have injured Lighthouse and its subsidiaries directly and 

have created a disincentive to build or expand other coal export facilities, which will 

negatively impact U.S. economic growth, job creation, and exports. 

237. Defendants' actions amount to an embargo or quota on American coal 

exports to Asia, in violation of the dormant foreign commerce clause. 
486 


31623.437

238. On information and belief, the Defendants' true reason for denying the 

Plaintiffs' permit applications is the desire to prevent American coal export to Asia. 

239. In all of these ways, the Defendants in their capacity as public officials of the 

state of Washington have violated the dormant foreign commerce clause and 42 U.S.C. § 

1983. 

Count II- Dormant Interstate Commerce Clause 

240. Plaintiffs incorporate and re-allege the foregoing paragraphs. 

241. By unreasonably denying and refusing to process permits for the Millennium 

Bulk Terminal, the Defendants have discriminated against Lighthouse's and its 

subsidiaries' efforts to transport into Washington coal that is being mined in Montana, 

Wyoming, and other states in violation of the dormant interstate commerce clause. 

242. By expanding the scope of their SEPA review beyond the boundaries of 

Washington State, and especially by including the environmental effects of coal shipments 

being transported from other states, the Defendants have further discriminated against 

Lighthouse's and its subsidiaries' efforts to transport into Washington coal that is being 

mined in Montana and Wyoming. 

243. By concluding that potential environmental effects cannot be mitigated 

under SEPA if those effects are within the jurisdiction of the federal government, the 

Defendants are unduly burdening, and in effect regulating, interstate commerce. 

244. Defendants' actions and inactions with respect to the Millennium Bulk 

Terminal discriminate against interstate commerce in both purpose and practical effect, 
487 


31623.438

and they serve no legitimate local purpose that could not be served by nondiscriminatory 

means. 

245. Defendants' actions and inactions with respect to the Millennium Bulk 

Terminal have also imposed a burden on interstate commerce that is clearly excessive in 

relation to its putative local benefits. 

246. Defendants' actions also injure Lighthouse and its subsidiaries by impacting 

the willingness of the private sector to invest in the development of coal export facilities in 

the State of Washington, and along the entire Pacific Coast. 

247. Defendants' actions have injured Lighthouse and its subsidiaries directly and 

have created a disincentive to build or expand other coal export facilities, which will 

negatively impact U.S. economic growth, job creation, and exports. 

248. In all of these ways, the Defendants in their capacity as public officials of the 

state of Washington have violated the dormant interstate commerce clause and 42 U.S.C. 

§ 1983. 

Count III- ICCTA Preemption 

249. Plaintiffs incorporate and re-allege the foregoing paragraphs. 

250. Lighthouse, LHR Coal and its subsidiaries, and LHP are all rail customers 

who have a right to common carrier rail service under lCCTA. 

251. Defendants' actions and inactions with respect to the Millennium Bulk 

Terminal are forms of permitting or preclearance that are being used to deny or condition 

rail carriers' ability to provide common carrier service to Lighthouse and its subsidiaries. 
488 


31623.439

252. Defendants' actions and inactions with respect to the Millennium Bulk 

Terminal have the effect of managing or governing rail transportation, including the 

common carrier service requested by Lighthouse's subsidiaries. 

253. Defendants' conclusion that potential environmental effects cannot be 

mitigated under SEPA if those effects are within the jurisdiction of the federal government, 

and their actions in denying permits and approvals on that basis, have the effect of 

managing or governing rail transportation, including the common carrier service requested 

by Lighthouse's subsidiaries. 

254. Defendants' actions also injure Lighthouse and its subsidiaries by impacting 

the willingness of the private sector to invest in the development of coal export facilities in 

the State of Washington, and along the entire Pacific Coast. 

255. Defendants' actions have injured Lighthouse and its subsidiaries directly and 

have created a disincentive to build or expand other coal export facilities, which will 

negatively impact the investment-backed expectations of Lighthouse investors specifically, 

as well as U.S. economic growth, job creation, and exports generally. 

256. For all these reasons, Defendants' actions in their capacity as public officials 

of the state of Washington are preempted by ICCTA and violate Lighthouse's and its 

subsidiaries' rights to receive common carrier service under 42 U .S.C. § 1983. 

Count IV- PWSA Preemption 

257. Plaintiffs incorporate and re-allege the foregoing paragraphs. 

258. Lighthouse, LHR Coal and its subsidiaries, and LHP all have a right to receive 

vessel service as a means of exporting coal to their Asian customers. 
489 


31623.440

259. The PWSA preempts state laws that attempt to regulate the operation of 

vessels in U.S. harbors, including the vessels that would provide service to Lighthouse and 

its subsidiaries at the proposed Millennium Bulk Terminal coal export facility. 

260. By concluding that potential environmental effects cannot be mitigated 

under SEPA if those effects are within the jurisdiction of the federal government, the 

Defendants are in effect regulating the operation of vessels in U.S. harbors, including the 

vessels that would provide service to Lighthouse and its subsidiaries at the proposed 

Millennium Bulk Terminal coal export facility. 

261. Defendants in their capacity as public officials of the state of Washington 

have acted to prevent vessels from serving the Terminal, including by relying on the effects 

of vessel traffic as one reason for the denial of MBT Longview's request for CWA section 

401 certification. 

262. Defendants' actions also injure Lighthouse and its subsidiaries by impacting 

the willingness of the private sector to invest in the development of coal export facilities in 

the State ofWashington, and along the entire Pacific Coast. 

263. Defendants' actions have injured Lighthouse and its subsidiaries directly and 

have created a disincentive to build or expand other coal export facilities, which will 

negatively impact U.S. economic growth, job creation, and exports. 

264. For all these reasons, Defendants' actions in their capacity as public officials 

of the state of Washington are preempted by the PWSA and violate Lighthouse's and its 

subsidiaries' rights to receive vessel service under 42 U.S. C. § 1983. 
490 


31623.441

PRAYER FOR RELIEF 

Wherefore, the Plaintiffs respectfully request the following relief: 

A. A declaration that Defendants' denial ofMBT Longview's requested sublease 

for the Millennium Bulk Terminal was an unconstitutional violation of the dormant 

commerce clause. 

B. A declaration that Defendants' denial of MBT Longview's requested CWA 

section 401 certification was an unconstitutional violation of the dormant commerce 

clause. 

C. A declaration that Defendants' denial of MBT Longview's requested CWA 

section 401 certification was preempted by ICCTA and the PWSA. 

D. A declaration that any environmental reviews of the proposed coal export 

facility at the Millennium Bulk Terminal-or any future coal export terminal that 

Lighthouse or its subsidiaries propose-may not be used to deny or unreasonably condition 

a permit beyond the standards applied to other non-coal terminal projects, including 

denying or unreasonably conditioning a permit based on the effects of transporting coal to 

and from the Terminal by rail and vessel traffic in interstate or foreign commerce. 

E. A declaration that potential environmental effects within the jurisdiction of 

the federal government cannot be the basis of a conclusion that the environmental effects 

of the Millennium Bulk Terminal-or any future coal export terminal that Lighthouse or 

its subsidiaries propose-project are unmitigable. 

F. A declaration that any decision by any state or local entity relying on the 

Defendants' denial of the sublease or the Defendants' denial of the CWA section 401 
491 


31623.442

certification, including the denial of MBT Longview's requested shoreline permit, is an 

unconstitutional violation of the dormant commerce clause and/or is preempted by ICCTA 

and the PWSA. 

G. An order vacating any and all of the Defendants' unconstitutional and illegal 

decisions regarding the Millennium Bulk Terminal, as well as any state or local decisions 

relying on Defendants' unconstitutional or illegal actions. 

H. An injunction ordering the Defendants to apply the same review standards 

to the Millennium Bulk Terminal-or any future coal export terminal that Lighthouse or 

its subsidiaries propose-that are applied to other non-coal terminal proposals. 

I. An injunction ordering the Defendants not to deny MBT Longview's 

requested CW A section 401 certification or any other permit or approval for the 

Millennium Bulk Terminal on the basis of rail or vessel traffic, or any other potential 

environmental effects within the jurisdiction of the United States. 

J. An injunction ordering the Defendants to continue processing any and all 

current and future MBT Longview permit applications. 

K. An order awarding plaintiffs their costs oflitigation, including attorneys' fees 

and expert witness fees, including those awardable under 42 U.S.C. § 1988. 

L. Such other relief as the court deems just and proper. 
492 


31623.453

~Ileiiiiiuiii LONfo1VTJ:W, LLC 

In closing, we can have clean water and a healthy environment while safely utilizing the vast natural 

resources provided by the Columbia River. We thank you for your efforts to clarify the original intent of 

the CWA, and section 401 in particular, and trust that this letter will both set the record straight as it 

concerns Millennium's project, and provide support for the badly needed clarifying amendment your 

committee is debating. 

Sincerely, 

Kristin Gaines 

Sr. Vice President of Regulatory Affairs 

Millennium Bulk Terminals-longview 

CC: Patty Murray, Senator 

Maria Cantwell, Senator 

Jaime Herrera Beutler, Representative 

Senate Environment & Public Works Committee Members 

_______________________________________________________________ Page to 

4029 Industrial Way • PO Box 2098 • Longview. WA 98632 • (360) 425-2800 • (360) 636-8340 Fax 

www.millenniumbulk.com 

98519204.1 0021523·00007 
493 


31623.454

NEWS POWER 

PAST 

IMPOSSIBLE.ORG 

202.682.81141 press@api.org 

API welcomes Senate action to increase certainty in pipeline permitting process 

WASHINGTON, July 31, 2018- API welcomed action today by Senate Environment and Public 

Works Committee Chairman John Barrasso, R-Wyo., along with Sen. Shelley Moore Capito, RW. Va., Sen. Steve Daines, R-Mont., and Sen. James lnhofe, R-Okla., to introduce the Water 

Quality Certification Improvement Act of 2018. The legislation would improve the permitting 

process for energy infrastructure projects subject to section 401 of the Clean Water Act (CWA). 

"Restoring certainty in the pipeline permitting process is critical to American jobs and ensuring 

that American consumers have the energy they need and demand every day," said API 

Midstream Group Director Robin Rorick. "For too long, politicians have abused the Clean Water 

Act to block energy projects designed to improve the safely and integrity of our infrastructure. 

For example in New York State, these efforts to restrict natural gas delivery to New England 

have especially hurt consumers who depend on natural gas to generate the affordable electricity 

that's needed to heat and cool their homes in extreme temperatures. 

"The legislation will strengthen the Clean Water Act by protecting it from these types of abuses 

and will help better protect the environment and communities surrounding energy infrastructure 

projects around the country. We hope that this legislation will advance quickly through the 

legislative process so that American consumers, workers and the environment can continue to 

benefit from America's energy resources." 

API is the only national trade association representing all facets of the oil and natural gas 

industry, which supports 10.3 million U.S. jobs and nearly 8 percent of the U.S. economy. API's 

nearly 620 members include large integrated companies, as well as exploration and production, 

refining, marketing, pipeline, and marine businesses, and service and supply firms. They 

provide most of the nation's energy and are backed by a growing grassroots movement of more 

than 47 million Americans. 

### 
494 


31623.455

2 

4 

6 

7 UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

8 ATTACOMA 

9 LIGHTHOUSE RESOURCES INC., et al., 

10 Plaintiffs, 

11 and 

12 BNSF RAILWAY COMPANY 

13 Intervenor-Plaintiff, 

14 v. 

15 JAY INS LEE, in his official capacity as 

Governor of the State of Washington; 

16 MAlA BELLON, in her official capacity as 

Director of the Washington Department of 

17 Ecology; and HILARY S. FRANZ, in her 

official capacity as Commissioner of Public 

18 Lands of the State of Washington, 

Defendants. 

No.: 3:18-cv-05005-RJB 

Honorable Robert J. Bryan 

INTERVENOR-PLAINTIFF BNSF 

RAILWAY COMPANY'S 

COMPLAINT IN INTERVENTION 

FOR DECLARATORY AND 

INJUNCTIVE RELIEF 

19 

20 

21 

22 

23 

24 

25 

26 

Intervenor-PiaintiffBNSF Railway Company ("BNSF") alleges as follows: 

I. INTRODUCTION 

I. BNSF operates rail lines in interstate commerce. BNSF's rail lines run through 

Washington, among other places. And, among many other commodities, BNSF transports coal 

destined for Asia across BNSF's rail lines. 

BNSF'S COMPLAINT IN INTERVENTION- I 

NO.: 3:18-CV-05005 
495 


31623.456

2. Well before his inauguration, Defendant Inslee made clear that, if elected Governor, 

2 he would work to build a regulatory wall to block expanded coal shipments through Washington. 

3. Since his inauguration, Governor lnslee, and Defendants Bellon and Franz among 

4 others, have abused their state regulatory authority to prevent interstate and international commerce 

involving coal transport, because they oppose the use of coal by anyone, anywhere. 

6 4. No one in Washington would use the export coal that Defendants seek to stop. Rather, 

7 that coal would flow in interstate commerce from sources in Montana and Wyoming, through 

8 Washington, and over international waters, to destinations in Asia. 

9 5. Washington has few and narrow ties to this flow of coal in interstate and international 

10 commerce. Specifically, the coal would move by rail within Washington, much of which lies within 

I 1 BNSF's congressionally granted railroad rights of way. Then, upon the coal's arrival at an export 

12 terminal, workers would load the coal from rail cars onto ships destined for Asian coal markets. 

13 Defendants' illegal actions and inactions show that they intend to stop coal from being used halfWay 

14 across the globe by building a regulatory wall to stop the expanded flow of coal in interstate and 

15 foreign commerce. 

16 6. Defendants built this wall by commandeering a variety of state regulatory processes. 

17 Defendants abuse these processes to delay, deny, and otherwise prevent activities needed to effect 

18 the flow of coal in interstate and foreign commerce. 

19 7. Departing from ordinary past practices, Defendants' plan specifically targets 

20 railroads, the instrumentality of interstate commerce most essential and efficient for moving coal to 

21 port and then to Asia. Washington normally evaluates projects that rely on rail transport without 

22 examining the ultimate use of the commodity that is moved through the project or examining the rail 

23 system that currently exists. 

24 8. For example, in 2010, Washington's Department of Transportation ("WSDOT"), 

25 under Defendant lnslee's leadership, examined the effects of adding eight roundtrip passenger rail 

26 trips per day in roughly the same area as the proposed site for the Millennium Bulk Terminal project 

BNSF'S COMPLAINT IN INTERVEI<TION- 2 

NO.: 3: 18-CV -05005 
496 


31623.457

in Longview, Washington ("Terminal" or "Project"). Ultimately, WSDOT and the Federal Railroad 

2 Administration issued a Finding of No Significant Impact under the National Environmental Policy 

3 Act. In that document, both entities concluded that using an existing railroad right of way for that 

4 passenger rail project would mitigate the likelihood of any community or other impact. 

9. Most recently, Defendants' plan to stop new coal exports has targeted the proposed 

6 transloading and export terminal at the Project. 

7 10. Plaintiffs designed the Tenninal to export coal mined in the Powder River Basin in 

Montana and Wyoming, and the Unita Basin in Utah and Colorado, by interstate rail to port in 

9 Washington. BNSF owns large parts of this interstate railway. 

10 11. For nearly five years, Plaintiffs have been pursuing penn its and approvals for the 

11 Project from the State of Washington. 

12 12. BNSF's rail system would be used to deliver up to eight unit trains per day from 

13 Plaintiffs' operations in Montana, Wyoming, and elsewhere to the Tenninal. Defendants' actions 

14 have directly harmed BNSF's economic interests in the Project. 

15 13. Defendants, unable to deny the penn its and approvals needed to construct the 

16 Tenninal on credible or legal grounds, have instead zeroed in the transportation of coal via rail to the 

17 Terminal. Defendants' scrutiny of and desire to regulate rail transport and operations in this way is 

18 not allowed, let alone required, because federal law preempts state regulation of railroad operations. 

19 14. Defendants largely justifY denying or delaying pennits necessary for the Project by 

20 alleging harmful impacts from BNSF's railway operations. But their strategy of relying on those 

21 alleged rail impacts to deny or delay the Tenninal further impacts, implicates, and hanns BNSF, 

22 because the strategy creates uncertainty for future rail transport-dependent projects where politically 

23 disfavored commodities are involved. 

24 15. On January 3, 2018, Plaintiff Lighthouse Resources Inc., and others ("Plaintiffs") 

25 involved in the sale to companies in Asia of coal that can only be delivered by rail, including rail 

26 operated by BNSF, sued Defendants. Plaintiffs' Complaint ("Campi.'') (Dkt. # 1) asserts that 

BNSF'S COMPLAINT IN INTERVENTION· J 

NO.: J:IS-CV-05005 
497 


31623.458

Defendants' conduct violates the United States Constitution and three federal statutes. Plaintiffs' 

2 Complaint also seeks relief from Defendants' pattern of unreasonable delay and denial of permits 

and approvals for the Project. 

4 16. Consistent with the Complaint's allegations that Defendants rationalize their 

regulatory abuses by relying on purported rail impacts, Defendants have violated BNSF's rights 

6 under the United States Constitution and other federal law. 

7 17. Defendants' actions have both the intent and effect of discriminating against and 

unduly burdening foreign and interstate commerce, in violation of the United States Constitution's 

9 dormant commerce clause, and the ICC Termination Act ("ICCT A"). 

10 18. Defendants' actions have the effect of choosing where BNSF may haul goods and 

11 what companies may ship which commodities on the interstate rail system upon that rail line's 

12 crossing into Washington. This directly regulates the railroad and violates ICCTA. 

13 19. Further, the United States Constitution vests the federal government with exclusive 

14 authority to administer foreign affairs, free from local interference. In giving the federal government 

15 this exclusive authority, the Constitution preempts state laws that intrude on this solely federal 

16 power. Defendants' actions and their application of the law based on political objections to the 

17 international shipment of coal have unduly interfered with the federal government's national policy 

18 regarding coal resources and exports. In so doing, Defendants have also violated the foreign affairs 

19 doctrine. 

20 

21 20. 

II. JURISDICTION AND VENUE 

This Court has jurisdiction under 28 U.S.C. § 1331 and because this controversy 

22 arises under the Constitution and laws of the United States. 

23 21. This court has independent jurisdiction under 28 U.S.C. § 1343 and 42 U.S.C. § 1983 

24 because this controversy involves the deprivation, under state law, of rights and privileges secured 

25 by the United States Constitution and acts of Congress. 

26 

BNSF'S COMPLAINT IN INTERVENTION- 4 

NO.: 3:18-CV-05005 
498 


31623.459

22. This Court also has jurisdiction under its inherent equitable powers to enforce federal 

2 law and to enjoin state actions that federal law preempts. 

23. The requested relief is proper under 28 U.S.C. §§ 2201 and 2202. 

4 24. Venue is proper under 28 U.S.C. § 1391(b)(2) because a substantial part of the events 

5 or omissions giving rise to the claim occurred in this district. 

6 

7 

9 

III. PARTIES 

25. BNSF adopts Plaintiffs' description of themselves. Compl. '1['1[16-20. 

26. BNSF adopts Plaintiffs' description of Defendants. Compl. 'll'lf21-23. 

27. BNSF is a corporation, organized and existing under the laws of the State of 

10 Delaware. BNSF's principal place of business is in Texas; BNSF's officers direct, control, and 

11 coordinate BNSF's activities from Texas. BNSF's railroad system would be used to deliver up to 

12 eight unit trains per day from Plaintiffs' mines in Montana and Wyoming to the Terminal for loading 

13 and shipment to customers in northeast Asia, including Japan and South Korea. 

14 

15 28. 

IV. STANDING 

Defendants have injured BNSF's economic and legal interests in transporting 

16 commodities in interstate and foreign commerce, including by delaying and deterring private sector 

17 investment in coal export facility development in Washington. Similarly, these injuries extend to 

18 BNSF directly because they negatively affect the volume of freight that can move across the country 

19 to the west coast, whether coal or otherwise. 

20 29. Defendants' abuse of state regulatory processes to build a regulatory wall blocking 

21 expanded coal transport in Washington has caused BNSF's injuries. 

22 30. The declaratory and injunctive relief that BNSF requests will likely redress BNSF's 

23 injuries, because Defendants' illegal practices will be reversed, and Defendants would presumably 

24 not violate this Court's award of such relief in the future. Further, this Court could further ensure 

25 compliance with its orders by retaining jurisdiction over this case. 

26 

BNSF'S COMPLAINT IN INTERVENTION· 5 

NO.: 3:I8-CV-05005 
499 


31623.460

V. FACTUAL BACKGROUND 

2 31. This pleading adopts and incorporates by reference, as if fully set forth herein, 

3 Plaintiffs' Factual Background. Com pl.,, 24-191. 

4 A. BNSF's History and Operations 

32. BNSF operates one of the largest freight railroad networks in North America, and is 

6 one of seven North American Class I railroads, defined as "having annual carrier operating revenues 

7 of$250 million or more." 49 C.F.R. § 1201.1-1. BNSF owns or controls considerable amounts of 

g land, including over II, 700 parcels, covering over 160,000 acres. Congress provided some of that 

9 land to BNSF's predecessor railroads as part of congressional land grants. 

10 33. BNSF serves the western two-thirds of the United States (28 states), as well as 

11 portions of Canada and key Mexican gateways, with approximately 32,500 route miles. BNSF 

12 operates three transcontinental routes in the United States. BNSF moves an average of 1,600 trains 

13 per day and shipped over 570 million tons of freight in 2016. BNSF also employs more than 40,000 

14 individuals and serves more than 40 ports. 

15 34. BNSF is one of the nation's top transporters of consumer goods; grain and other 

16 agricultural products; low-sulfur coal; industrial goods such as petroleum and chemicals; housing 

17 materials; and food and beverages. BNSF's shipments help feed, clothe, supply, and power 

18 American homes and businesses every day. BNSF also helps connect local businesses with the 

19 global supply chain, which is especially critical in Washington State where 40 percent of all jobs are 

20 tied to trade. 

21 35. Over the past five years, BNSF has invested approximately $940 million to expand 

22 and maintain its network in Washington. In 2018 alone, BNSF's capital expenditure program in 

23 Washington will be approximately $160 million, which will help keep BNSF's network 

24 infrastructure in optimal condition. This year, BNSF's maintenance program in Washington includes 

25 approximately 490 miles of track surfacing, undercutting work, or both, as well as the replacement 

26 of about 40 miles of rail and close to 230,000 ties. Along the Fallbridge Subdivision, BNSF plans to 

BNSF'S COMPLAINT IN INTERVENTION- 6 

NO.: 3:18-CV-05005 
500 


31623.461

install new double-track between Washougal and Mt. Pleasant. The company will also begin to 

2 install new double-track along the Spokane Subdivision between Hauser, Idaho and Spokane. Two 

bridge replacement projects are also slated to begin this year in Home Valley and North Bonneville. 

4 The construction of a new unloading track and additional parking capacity at the Orillia Automotive 

Facility is also planned for 2018. 

6 B. Asian Demand for Coal and the Search for a West Coast Export Facility 

7 36. Coal producers and exporters, such as Plaintiffs, rely on rail transportation to reach 

8 end-user markets, including markets in Asia. 

9 37. The five countries that import the most coal in the world are in Asia. They accounted 

10 for 63% of global coal imports in 2014. Historically, the United States has supplied less than five 

11 percent of Asia's demand for imported coal, but recently the federal government has announced and 

12 pursued a policy of aiding coal exports to Asia. Japan and South Korea, both signatories to the Paris 

13 Accord on climate change and both among the world's top five coal-importing countries, seek to 

14 import coal from the United States. Compl. '11'1124-34. 

15 38. Lighthouse, through its subsidiaries, operates a coal energy supply chain. It manages 

16 and arranges coal mining, coal transfer from rail to ocean-going vessels, and coal sales to end users. 

17 Lighthouse subsidiaries own and lease mining properties in Montana and Wyoming and have coal 

18 sale contracts with South Korea and Japan. Its subsidiary Lighthouse Products, LLC ("LHP") 

19 supplies coal to Asian customers by shipping coal out of a Canadian port. That port, however, lacks 

20 the capacity to fulfill all ofLHP's contracts. Lighthouse and its subsidiaries need more coal export 

21 capacity to fulfill all their contracts and meet market demand. Compl. '11'1135-51. 

22 39. Because the west coast of North America lacks sufficient coal export capacity for 

23 Lighthouse and its subsidiaries to fulfill existing contracts and meet increasing Asian market 

24 demand, since 2009 Lighthouse has been working to identifY additional existing port capacity and 

25 develop new west coast coal export facilities. 

26 

BNSF'S COMPLAINT IN INTERVENTION-7 

NO.: 3:18-CV-05005 
501 


31623.462

40. The Project site has been an active industrial site since 1941, and it presently receives 

2 weekly coal shipments subject to capacity limits. A 2008 Aquatic Lands Lease between Washington 

and Northwest Alloys, Inc. allows coal to be handled at the Project site. Yet, since 2013, Defendants 

4 have built a regulatory wall to block coal exports of kind and degree subject to Defendants' 

judgment on how much coal anyone in the world should be able to sell, buy, or use. BNSF 

6 anticipates that at least some coal will be shipped by BNSF on its rail lines to the Terminal. 

7 Accordingly, if Defendants' illegal actions and inaction are allowed to stand, BNSF's service will be 

limited by Defendants' regulatory wall. 

9 41. In 2011, MBT Longview bought the Terminal assets and executed a ground lease 

10 with Northwest Alloys, Inc. Upon completion, the Terminal is expected to export 44 million metric 

11 tons of coal annually, which would satisfy Lighthouse's export requirements and also provide export 

12 capacity to third-party shippers. The Terminal currently receives common carrier service from 

13 BNSF. 

14 42. In part because the Millennium Bulk Terminal is significantly underutilized, Cowlitz 

15 County suffers serious economic challenges and lags state employment averages. Experts expect that 

16 the Terminal will bring over 1,300 construction jobs and approximately 135 long-term family-wage 

17 jobs to Cowlitz County and the surrounding area. A 2012 economic study estimated that the 

18 Terminal would generate $146 million in tax revenues over a 30-year period and opined that 

19 investment in the Terminal would attract further investment to improve other infrastructure in the 

20 area. The Terminal would also directly and indirectly support thousands of jobs throughout the 

21 country and generate revenue for Wyoming and Montana. Finally, the Terminal would help shrink 

22 the United States' trade deficit with Asia and give Asian customers options to meet energy demand, 

23 reducing their reliance on higher-sulfur coal from other countries, and on other fuel sources 

24 including wood and trash. 

25 C. BNSF's Interest in the Millennium Bulk Terminal 

26 

BNSF'S COMPLAINT IN INTERVENTION- 8 

NO.: 3:18-CV-05005 
502 


31623.463

43. BNSF's railway system is an integral part of Plaintiffs' proposed trans loading and 

2 coal export terminal. Customers would use BNSF's existing railroad system to deliver up to eight 

unit trains (i.e., rail cars that carry the same commodity) per day from Plaintiffs' operations in 

4 Montana and Wyoming to the Terminal for export to Asia. 

44. BNSF trains would travel on existing BNSF rail lines in Montana, Wyoming, Idaho, 

6 and Oregon to Washington. Trains would then travel on BNSF main line routes in Washington State 

7 and the BNSF Spur and Reynolds Lead in Cowlitz County, Washington, to the Project site. 

45. While customers would use BNSF's existing rail system to deliver unit trains to the 

9 Terminal, the BNSF rail system is not part of the Project and no permits are required ofBNSF for 

t 0 this Project. 

t t D. Washington's Pretextual Expanded Environmental Review of the Terminal 

12 46. In 2012, MBT Longview began a new process to evaluate the Project's potential 

]3 environmental impacts, including preparation of an environmental impact statement. 

14 47. In October 2012, the U.S. Army Corps of Engineers (the "Corps"), Washington 

15 Department of Ecology ("Ecology"), and Cowlitz County agreed to collaborate on a joint National 

t6 Environmental Policy Act ("NEPA")/State Environmental Policy Act ("SEPA") Environmental 

17 Impact Statement ("E!S") document. The Corps, Ecology, and Cowlitz County memorialized their 

18 agreement in a Memorandum of Understanding. 

19 48. In February 2014, Ecology formally decided that the Draft E!S for the Project would 

20 evaluate impacts beyond the State's borders, including impacts from rail transportation that occurs 

21 outside of the project area and outside of Washington. This scope change was inconsistent with 

22 Ecology's position in 2011 and with the Memorandum of Understanding's terms. 

23 

24 

25 

26 

49. The Corps declined to follow Ecology's move to expand environmental review to 

focus on non-Project rail activities. The Corps explained: 

When considered in accordance with applicable laws and regulations, many of the 

activities of concern to the public, such as rail traffic, coal mining, shipping coal 

overseas, and the burning of exported coal in other countries, are outside the Corps' 

BNSF'S COMPLAfNT IN INTERVENTION- 9 

NO.: 3:18-CV-05005 
503 


31623.464

2 

4 

control and responsibility .... [W]hile there is general Federal oversight of existing 

rail lines and rail traffic, neither the [Surface Transportation Board] nor the [Federal 

Railroad Association] have a licensing role or are funding any aspect of the proposed 

project. Federal oversight of existing rail lines is limited to [Federal Railroad 

Association] authority over rail safety. 

If transportation of coal requires new rail lines, the Surface Transportation Board 

5 (STB) would be responsible for approving the new rail lines that might be needed to 

move coal to its ultimate destination.' 

6 

7 The Corps concluded that Ecology's broader analysis, including rail-related issues, infringed on 

8 numerous areas over which "other Federal agencies may have regulatory contro1."2 

9 50. On information and belief, Defendants Inslee and Bellon decided to expand the 

10 Project's environmental review beyond the scope that Ecology and the federal government originally 

II envisioned solely because of one commodity that would be exported via the Terminal coal. 

12 51. Defendants have consistently and publicly expressed their opposition to the use of 

13 coal, anywhere by anyone. Defendant lnslee co-authored a book, Apollo's Fire: Igniting America's 

14 Clean Energy Economy, which asserts that coal is "killing us" and cites coal demand growth in Asia 

15 as compounding climate change issues. Defendant lnslee reiterated his opposition to coal use during 

16 his 2013 inaugural address, his first press conference as Governor, at campaign fundraisers, and 

17 during various meetings. Defendant Bellon has stated she supports Defendant lnslee's opposition to 

18 coal, and has tweeted that "[t]he proposed coal terminal in Longview would significantly impact the 

19 environment." Defendant Franz campaigned against coal exports when she ran for Commissioner of 

20 Public Lands. 

21 52. On information and belief, Defendant Ins lee and Defendant Bellon directed the 

22 expansion of the EIS scope to include factors over which Washington State has no jurisdiction, 

23 including rail-related matters as well as the actual use of the coal in other parts of the world., 

24 

25 1 U.S. Army Corps of Engineers, Memorandum For Record, NWS-2010-1225, Millennium Bulk 

Terminals--Longview, LLC, February 14,2014, p. 4, fn.I (last visited on February 7, 2018 at 

26 http://www .millenniumbulkeiswa.gov/assets/mbtl-nepa-eis-scope-mfr-( l4feb20 14 ).pdf) 2 Id. at 4. 

BNSF'S COMPLAINT IN INTERVENTION- 10 

NO.: 3: 18-CV -05005 
504 


31623.465

thousands of miles from Washington. On May 25, 2017, after Ecology published its Final EIS, 

2 Defendant Bellon admitted that Washington subjected the Project to greater scrutiny because the 

3 coal that would pass through the Terminal was "meant to be used as an end product for combustion." 

4 Defendant Bellon's comments confirm her broad opposition to coal exports to Asian markets. 

53. The pretext behind Ecology's Final EIS for the Project is demonstrated by, among 

6 other things, contrasting it with EIS's drafted for similar projects, such as the Barlow Point terminal, 

7 which is adjacent to the Project and is served by the same rail line that serves the Terminal. The 

8 contrast is stark. Permitting authorities estimated that that the environmental review process for 

9 Barlow Point terminal would take between 1.5 and 2 years, compared to over 6 years for the Project. 

10 54. The State of Washington's expanded review of the Terminal also stands in sharp 

11 contrast to its review of the EGT export grain terminal. The Project was subjected to far greater 

12 expanded environmental review than was the EGT export grain terminal permitted at the Port of 

13 Longview which opened in 2012, despite the fact that the export terminal can accommodate six 110-

14 car grain trains at any given time from Montana and other states; a comparable number the Terminal. 

15 And, just as the Terminal would transload coal to ships bound for Asian markets, so too does the 

16 EGT export terminal transload grain to ships bound for Asian markets. The latter proceeded quickly 

17 through the environmental review and permitting process; the former has faced only delay and 

18 obstruction from Washington State officials. There is little to explain why one facility would be 

19 treated so differently than the other, except that the EGT terminal exports grain; the Project would 

20 export coal. 

21 55. Defendants' treatment of the Terminal and non-Project rail activities also stands in 

22 stark contrast to the State of Washington's review of other rail projects within the state. In 2009, 

23 WSDOT, in close coordination with the Federal Railroad Administration, completed an 

24 Environmental Assessment of the Pacific Northwest Rail Corridor project.' The purpose of that 

25 

26 3 WSDOT, Washington Segment of the Pacific Northwest Rail Corridor, Program Environmental 

Assessment (September 2009) (last visited on February 19,2018 

BNSF'S COMPLAINT IN INTERVENTION- II 

NO.: 3: 18-CY -05005 
505 


31623.466

project is to enhance intercity passenger rail service in Washington. Both WSDOT and the Federal 

2 Railroad Administration determined that the project, which includes the addition of eight trains to 

the BNSF rail system in the same geographic area as the Terminal, would result in no significant 

4 impacts.4 Importantly, unlike Defendants' review of distant rail-related impacts of Terminal, 

WSDOT analyzed rail impacts, such as air quality impacts from increased rail operations, consistent 

6 with federal guidance under NEPA and with due deference to the Federal Railroad Administration. 

7 Defendants have treated passenger rail, which is primarily an intrastate program where people move 

g within Washington, significantly differently than the Defendants treat interstate and international 

9 coal shipments. 

10 56. Similarly, in 2009, WSDOT, in conjunction with the federal Surface Transportation 

1 1 Board, completed an Environmental Assessment for the Northern Columbia Basin Railroad project 

12 in Eastern Washington, which stressed the local economic benefits of building new rail that would 

13 attract new industries. The project includes the construction of two new rail line segments and the 

14 refurbishment of an existing rail segment. The Northern Columbia Basin Railroad project's purpose 

15 is to provide rail service to lands designated for industrial development in the City of Moses Lake 

16 which would, in turn, enhance economic development opportunities and attract new rail-dependent 

17 business to the area. The commodities expected to be shipped via the rail line include steel, 

18 manufactured parts, and specialty chemicals. The Environmental Assessment concluded that if the 

19 mitigation measures identified in the Assessment are imposed by the Surface Transportation Board, 

20 the potential impacts resulting from the proposed rail project would not be significant. Again, unlike 

21 Defendants' review of the far removed rail-related impacts of the Terminal, WSDOT analyzed rail 

22 impacts consistent with federal guidance under NEPA and with due deference to the Surface 

23 Transportation Board. Again, the primary material difference between the Northern Columbia Basin 

24 

https://www.wsdot.wa.gov/NR/rdonlyres/3B84DD70-5569-48FE-BB33-

25 A63 7193A 17F7/0/PNWRCProgramEnvironmenta1Assessment.pdf). 4 Federal Railroad Administration, Washington Segment of the Pacific Northwest Rail Corridor, 

26 Finding of No Significant Impact (November 20IO) (last visited on February 19, 2018 at 

https://www.fra.dot.gov/eLib/Details/LO 1417). 

BNSF'S COMPLAINT IN INTERVENTION- 12 

NO.: 3:18-CV-05005 
506 


31623.467

project and the Terminal is the opposition of State officials to the commodity being exported from 

2 the Terminal: coal. 

3 57. As early as 2014, Washington's Freight Advisory Committee, which is responsible 

4 for advising WSDOT on freight transportation projects, highlighted Defendants' novel and harmful 

use ofSEPA reviews, noting that the "[u]nprecedented use ofSEPA to include environmental 

6 impacts beyond the jurisdiction of the project site and beyond what is normally required under 

7 NEPA causes concern among rail, ports, and private sector investment interests in Washington," and 

8 that this practice "is a significant departure from standard planning and policy work in 

9 Washington."' The Washington State Freight Advisory Committee recommended that WSDOT 

10 "[w]ork with Ecology to create a parallel review process with NEPA, and limit a project's impact 

II area to the location of the project."6 

12 58. On June 13, 2016, BNSF submitted 36 pages of comments in response to the 

13 publication of the Terminal's draft Environmental Impact Statement. BNSF's comments echoed 

14 concerns that the Washington Freight Advisory Committee raised regarding Defendants' 

15 unprecedented decision to expand the geographic scope of the state SEPA analysis. BNSF's 

16 comments alerted Defendants to the fact that ICCT A grants exclusive jurisdiction over railroad 

17 operations to the Surface Transportation Board. Accordingly, BNSF's comments advised that the 

18 SEPA analysis should defer to the Surface Transportation Board and Federal Railroad 

19 Administration's consideration and regulation of the interstate rail system. BNSF also commented 

20 on the draft EIS's discussion of impacts associated with commodity transport by rail, including 

21 purported rail capacity issues and other environmental impacts. BNSF's comments highlighted the 

22 speculative nature of the impacts identified in the draft EIS and offered information that would 

23 

24 5 Washington State Freight Advisory Committee, Washington State Freight Trends & Policy 

Recommendations for Air Cargo, Freight Rail, Ports & Inland Waterways, & Trucking (May 2014), 

25 pp. 24, 30. 

http://www. wstc.wa.gov/Meetings/ AgendasMinutes/agendas/20 14/J une 17 /documents/20 14 _ 0618 _ B 

26 f9 _FMSJBFreightTrendsPolicyRecommendations.pdf). 

ld. at 14. 

BNSF'S COMPLAINT IN INTERVENTION- l3 

NO.: 3:18-CV-05005 
507 


31623.468

correct the erroneous assumptions that permeated the draft EIS's assessment of non-Project rail 

2 impacts. Defendants ignored BNSF's comments and recommendations and proceeded with 

finalizing the EIS based on an unprecedented scope of analysis and unfounded assessment impacts 

4 from rail operations. 

6 

E. Washington's Unprecedented and Pretextual Denial of the Clean Water Act Section 

401 Water Quality Certification 

59. The Final EIS's unusually broad scope is but one of the ways in which the 

7 Defendants have sought to block the Terminal's development. Defendants abused their power under 

SEPA to reject MBT Longview's proposal by denying a federally-required water quality 

9 certification, erroneously concluding that the Project would cause significant adverse environmental 

10 effects not reasonably capable of mitigation. Specifically, Defendants concluded that the Terminal's 

11 environmental effects could not be mitigated because those effects are subject to federal jurisdiction, 

12 and not within the state's authority to mitigate. The majority of those purported environmental 

13 effects were alleged rail-related impacts, not Project impacts on water quality. 

14 60. In July 20 I 6, MBT Longview requested from Ecology a water quality certification 

15 under section 401 of the Clean Water Act. Obtaining that certification is a key step in securing a 

16 CWA section 404 dredge and fill permit for the Terminal from the Corps. 

17 61. On September 6, 2017, Ecology and the Governor's Office indicated they would send 

18 MBT Longview a letter which would state that its section 40 I certification request lacked sufficient 

19 information and would be denied without prejudice. In other words, that denial would not preclude 

20 MBT Longview from resubmitting its request along with the requested additional information. Upon 

21 information and belief, that letter never arrived. 

22 62. On September 26,2017, only three business days after receiving 240 pages ofthe 

23 additional information that it had requested, Ecology denied MBT Longview's request for a section 

24 40 I certification "with prejudice." Ecology has admitted that it does not know that it has ever issued 

25 any other 401 certification denial "with prejudice". 

26 

BNSF'S COMPLAINT IN INTERVENTION- 14 

NO.: 3:18-CV-05005 
508 


31623.469

63. As with the Final EIS, Ecology based its unprecedented "with prejudice" denial on 

2 unusual grounds. Specifically, Ecology based its water quality certification denial almost entirely on 

3 various purported rail transport effects, not on findings that the Terminal would significantly and 

4 adversely affect water quality. For example, Ecology cited rail impacts of train hom noise, safety, 

and rail capacity. None of those impacts relates to or affects water quality, and all of them are 

6 regulated under federal law, not state law. 

7 F. Washington's Pretextual Environmental Review and Section 401 Water Quality 

Certification and Terminal Improvement Permit and Shorelines Permit Denials 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

64. In August 2017, the current lessee of the Millennium Bulk Terminal, Northwest 

Alloys, sought the consent of the Washington Department of Natural Resources' ("DNR") under its 

lease from DNR to make certain improvements to the existing terminal. 

65. MBT Longview's proposed improvements to the Terminal are part of its plan to build 

a coal export facility. The proposed improvements do not exempt MBT Longview from permitting 

or approval requirements. But, because the DNR lease already allows transloading of coal, and 

because the coal export facility would remain subject to numerous federal and state environmental 

review and permitting requirements, DNR approval should have been straightforward and consistent 

with the 60-days' review period allowed under the lease. 

66. On October 24, 2017, however, Defendant Franz, consistent with Defendant Bellon's 

personal objection to approving any coal related project, rejected the proposed lease. Defendant 

Franz's rejection adopted Ecology's rationale for denying MBT Longview's request for a Clean 

Water Act section 401 water quality certification, including Ecology's reliance on the alleged 

environmental effects of rail transportation. 

67. Despite having executed a lease which allows a coal export facility at the site, DNR 

did not treat the request to make improvements to the Terminal as it had treated similar requests by 

others. DNR instead refused to consent to the proposed improvements, because Defendants do not 

support a coal export facility's construction at the Terminal. 

BNSF'S COMPLAINT IN INTERVENTION· I 5 

NO.: 3:18-CV..Q5005 
509 


31623.470

68. As part of its proposal to construct a coal export facility at the Terminal, MBT 

2 Longview also applied to Cowlitz County for a Shoreline Substantial Development Permit and a 

3 Shoreline Conditional Use Permit. The Cowlitz County staff who reviewed MBT Longview's 

4 proposal concluded that it met all requirements and recommended that the permits be issued. Despite 

Cowlitz County's recommendation, the Hearing Examiner also relied on Ecology's EIS and 

6 Ecology's findings from its unprecedented "with prejudice" denial of a section 401 certification. 

7 Consistent with Ecology's and DNR's baseless rejection of the Terminal, the Hearing Examiner 

8 relied on purported rail impacts to deny the shoreline permits. 

9 G. Defendants Try to Use Rail Transport to Justify Their Illegal Actions 

10 69. Defendants oppose coal, coal exports, and coal use anywhere in the world. 

11 Defendants have made clear that they will not allow the Project to be completed and that they will 

12 use whatever mechanism they can find as a pretext to stop it, including claims about rail transport 

13 impacts that are speculative and beyond their authority to regulate. 

14 70. In an October 23, 2017 letter, Ecology said that the environmental effects outlined in 

15 the SEPA EIS which it relied on to deny section 40 I certification, including purported issues related 

16 to train horns, train traffic, and train capacity, would "likely preclude Ecology from approving" other 

17 permit applications and its "staff will not be spending time on permit preparation" for those other 

18 applications. 

19 71. Defendants, in their capacity as Washington public officials, are abusing 

20 Washington's regulatory power to directly undermine international economic and foreign policy set 

21 by the United States. 

22 72. Any bulk commodity shipped by train would have essentially the same rail effects 

23 that Defendants claim increased coal transport to the Terminal would have. Applying the same 

24 environmental review processes and regulatory standards that Defendants have applied to the Project 

25 to similar projects involving commodities other than coal would result in a chilling effect on 

26 virtually all interstate and foreign commerce where major rail transport is involved. 

BNSF'S COMPLA!NTIN INTERVENTION- 16 

NO.: 3:18-CV-05005 
510 


31623.471

73. The SEPA EIS concludes that the Project can in fact meet all state and federal 

2 environmental standards. But because they believe that coal exports should not be allowed, 

Defendants effectively block foreign and interstate commerce by refusing to process, let alone 

4 approve, permits required for the Terminal. 

VI. LEGAL AND REGULATORY BACKGROUND 

6 A. ICC Termination Act 

7 74. Congress has recognized a need to regulate railroad operations at the federal level. 

Today, the federal government regulates railroad operations under ICCTA. Specifically, ICCTA 

9 created the Surface Transportation Board and gave it complete and exclusive jurisdiction over the 

1 o regulation of railroad operations. 

11 75. ICCTA further provides that "remedies ... with respect to regulation of rail 

12 transportation are exclusive and preempt the remedies provided under Federal or State law." 

13 49U.S.C. § 10501(b). 

14 76. Any form of state or local permitting or preclearance that, by its nature, could be used 

15 to deny, or place conditions on, a railroad's ability to conduct some part of its operations is 

16 "categorically" preempted by ICCTA. 

17 77. Even when state officials' actions are not categorically preempted, they are still 

18 preempted if they may reasonably be said to have the effect of managing or governing rail 

19 transportation. 

20 78. Courts have repeatedly and consistently upheld these Congressional directives. 

21 B. The Dormant Commerce Clause 

22 79. The United States Constitution's commerce clause provides that "Congress shall have 

23 Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the 

24 Indian Tribes." U.S. Const. art. I, § 8, cl. 3. 

25 

26 

BNSF'S COMPLAINT IN INTERVENTION- I 7 

NO.: 3:18-CV-05005 
511 


31623.472

80. Though the commerce clause explicitly only mentions Congress' affirmative power to 

2 regulate commerce, federal courts have long read into it a "dormant" or negative limitation that also 

3 constrains the states' power to regulate foreign and interstate commerce. 

4 81. States violate the dormant commerce clause if their actions discriminate against or 

unduly burden foreign or interstate commerce. More specifically, state regulation runs afoul of the 

6 foreign commerce clause if it (I) creates a substantial risk of conflicts with foreign governments, or 

7 (2) undermines the federal government's ability to speak with "one voice" concerning foreign 

g commercial affairs. 

9 82. Dormant interstate commerce clause claims are analyzed using a two tier framework: 

10 If an action is facially discriminatory, either in purpose or "practical effect," it is unconstitutional 

11 unless it serves a legitimate local purpose that could not be served by available nondiscriminatory 

12 means. Nondiscriminatory actions, on the other hand, are unconstitutional when the burden imposed 

13 on interstate commerce is clearly excessive in relation to the putative local benefits. 

14 C. Tbe Foreign Affairs Doctrine 

15 83. The United States Constitution grants the federal government plenary power to 

16 administer foreign affairs. U.S. Cons!. art. IV,§ 2; art. II,§ 2; art. I,§ 8. This is the source of the 

17 foreign affairs doctrine. 

18 84. The foreign affairs doctrine preempts states intruding on the exclusively federal 

19 power to direct the nation's foreign affairs. A state law or action must yield if it conflicts with an 

20 express federal foreign policy, such as a treaty, federal statute, of executive branch policy. 

21 D. Federal Support for Coal Exports 

22 85. Multiple federal treaties, statutes, and policy statements preempt Defendants' scheme 

23 to prevent coal exports to Asia, including: 

24 86. The General Agreement on Tariffs and Trade. The United States has been a party to 

25 the General Agreement on Tariffs and Trade (GATT) since January I, 1948, and a member of the 

26 World Trade Organization (WTO) since January I, 1995. Article XI: I of the GATT provides: "No 

BNSF'S COMPLAINT IN INTERVENTION· 18 

NO.: 3:18-CV-05005 
512 


31623.473

prohibition or restrictions other than duties, taxes or other charges, whether made effective through 

2 quotas, import or export licenses or other measures, shall be instituted or maintained by any 

contracting party ... on the exportation or sale for export of any product destined for the territory of 

4 any other contracting party." 

87. The United States-Korea Free Trade Agreement. Article 2.8 of the U.S.-Korea Free 

6 Trade Agreement provides that "Except as otherwise provided in this Agreement, neither Party may 

7 adopt or maintain any prohibition or restriction on the importation of any good of the other Party or 

8 on the exportation or sale for export of any good destined for the territory of the other Party, except 

9 in accordance with Article XI of GATT 1994 .... " 

10 88. Energy Policy and Conservation Act of 1975 and Energy Policy Act of 1992. The 

11 Energy Policy Act of 1975 authorizes the President to restrict coal exports. Over the past four 

12 decades, however, the President has not used this power to impose significant coal export 

13 restrictions. Instead, section 1338 of the Energy Policy Act of 1992 directs the Secretary of 

14 Commerce to create a plan for expanding coal exports. 

15 89. The current presidential administration continues to pursue a policy of"export[ing] 

16 American energy all over the world," including to Asian markets. 7 

17 a. On March 29, 2017, Secretary of the Interior Ryan Zinke published Secretary's Order 

18 3348, which lifted a moratorium on the federal coal leasing program that had been put 

19 in place by the prior administration. Secretary Zinke issued a statement 

20 accompanying Order 3348 in which he explained that "it is better to develop our 

21 energy here under reasonable regulations and export it to our allies .... [A]chieving 

22 American energy independence will strengthen our national security by reducing our 

23 reliance on foreign oil and allowing us to assist our allies with their energy needs." 

24 

25 7 Office of the Press Secretary, Remarks by President Trump at the Unleashing America Energy 

Event, THE WHITE HOUSE, p. 23 (June 29, 2017) (last visited on February 7, 2018 at 

26 https://www.whitehouse.gov/briefings-statements/remarks-president-trump-unleashing-americanenergy-event/). 

BNSF'S COMPLAINT IN INTERVENTION- 19 

NO.: 3:18-CV-05005 
513 


31623.474

2 

4 

5 

6 

7 

b. The United States also recently forged an agreement with the Government of Ukraine 

which facilitates Ukraine's purchase of American coal. 8 

c. In December 2017, the White House released its updated National Security Strategy, 

which explains directs that "[t]he United States will promote exports of our energy 

resources," including by "expand[ing] our export capacity through the continued 

support of private sector development of coastal terminals .... "9 

VII. CLAIMS FOR RELIEF 

8 Count I- ICCTA Preemption 

9 

10 

II 

90. 

91. 

92. 

BNSF incorporates andre-alleges the foregoing paragraphs. 

BNSF is a rail carrier with rights under ICCTA. 

Defendants' actions and inactions with respect to the Project are forms of permitting 

12 or preclearance that are being used to deny or condition BNSF's ability to provide common carrier 

13 service to Plaintiff Lighthouse and its subsidiaries. 

14 93. Defendants' actions and inactions with respect to the Terminal have the effect of 

15 managing or governing rail transportation, including BNSF rail operations and Lighthouse's 

16 subsidiaries' request for BNSF's common carrier service. 

17 94. Defendants' actions and inactions with respect to the Terminal have the effect of 

18 choosing where BNSF may haul goods and what companies may ship which commodities on the 

19 interstate rail system upon that rail line's crossing into Washington. This directly regulates the 

20 railroad and violates the ICCTA. 

21 95. Defendants' conclusion that potential environmental effects cannot be mitigated 

22 under SEPA if those effects are within the jurisdiction of the federal government, and their actions in 

23 

24 8 See Com pl., 202; Alessandra Prince, After Trump meeting, Ukraine to import US. thermal coal 

for the first time, REUTERS (July 31, 2017) https://www.reuters.com/article/us-ukraine-usa-coal/after25 trump-meeting-ukraine-to-import -u-s-thermal-coal-for-the-first -time-idU SKBN 1 A G20 8. 9 WHITE HOUSE, NATIONAL SECURITY STRATEGY FOR THE UNITED STATES OF 

26 AMERICA at 23 (Dec. 2017) (last visited on February 7, 2018 at https://www.whitehouse.gov/wpcontent/uploads/2017/12/NSS-Final-12-18-2017-0905.pdf). 

BNSF'S COMPLAINT IN INTERVENTION- 20 

NO.: 3:18-CV-05005 
514 


31623.475

denying permits and approvals on that basis, have the effect of managing or governing rail 

2 transportation, including BNSF's rail operations and Lighthouse's subsidiaries' request for BNSF's 

common carrier service. 

4 96. Defendants' actions also injure BNSF by impacting the willingness of the private 

sector to invest in the development of coal export facilities in the state of Washington, and along the 

6 entire Pacific Coast, that would be served by BNSF rail lines. 

7 97. Defendants' actions have injured BNSF directly and have created a disincentive to 

8 build or expand other coal export facilities that would be served by BNSF rail lines, which will 

9 negatively U.S. economic growth, job creation, and exports generally. 

10 98. For all these reasons, Defendants' actions in their capacities as public officials of the 

11 State of Washington are preempted by ICCTA and violate BNSF's common carrier rights under 42 

12 u.s.c. § 1983. 

13 Count II- Violation ofthe Foreign Commerce Clause 

14 99. BNSF incorporates andre-alleges the foregoing paragraphs. 

15 100. By unreasonably denying and refusing to process permits for the Terminal, 

16 Defendants have discriminated against and interfered with BNSF's ability to engage in foreign 

17 commerce through the transport of coal to the Terminal for export to Asian markets, in violation of 

18 the dormant foreign commerce clause. 

19 I 0 I. Defendants' illegal actions and inaction have created a substantial risk of conflict 

20 with foreign governments, which rely on American coal exports for power production. 

21 102. In addition, the federal government has made clear that the United States' policy 

22 favors the expansion of coal exports to foreign countries, including to countries in Asia. 

23 103. By exercising and abusing their regulatory power in a way which is at cross-purposes 

24 with the federal government's coal export policies, Defendants have severely undermined the United 

25 States' ability to speak with one voice in foreign commercial affairs and to implement its National 

26 Security Strategy. 

BNSF'S COMPLAINT IN INTERVENTION- 2 I 

NO.: 3:18-CV-05005 
515 


31623.476

I 04. By concluding that potential environmental effects, including alleged rail-related 

2 effects, cannot be mitigated under SEPA because those effects are within the federal government's 

jurisdiction, the Defendants unduly burden, and in effect seek to regulate, foreign commerce. 

4 105. Defendants' refusal to license a coal export facility is prohibited under the United 

States' obligations as a member of the WTO. Indeed, Defendants' refusal constitutes a prohibition or 

6 restriction under GATT Article XI: I; is not covered by any of the exceptions set out in GATT 

7 Articles X1:2 or XX; and, in any case, is a "disguised restriction on international trade." 

8 106. Defendants' actions could be cited and leveraged by respondents in WTO disputes 

9 involving export restrictions brought by the United States, and may interfere with the ability of the 

10 United States to compel other nations through the WTO dispute settlement process and other 

1 1 available bilateral, regional, and multilateral mechanisms to reduce or remove export restrictions that 

12 impair the foreign commerce of the United States. 

13 107. Defendants' actions amount to an embargo or quota on American coal exports to 

14 Asia, including coal that would be shipped to the Terminal by BNSF, in violation of the dormant 

15 foreign commerce clause. 

16 108. On information and belief, the Defendants' true reason for denying the Plaintiffs' 

17 permit applications is the desire to prevent American coal exports to Asia. 

18 109. In all of these ways, the Defendants in their capacities as public officials of the State 

19 of Washington have violated the dormant foreign commerce clause and 42 U.S.C. § 1983. 

20 Count III- Violation of the Interstate Commerce Clause 

21 110. BNSF incorporates and re-alleges the foregoing paragraphs. 

22 I I I. By unreasonably denying and refusing to process permits for the Terminal, 

23 Defendants have discriminated against BNSF's efforts to transport coal into Washington from 

24 Montana, Wyoming, and other states, in violation of the dormant interstate commerce clause. 

25 112. By expanding the scope ofSEPA review beyond the boundaries of Washington, to 

26 include purported environmental effects of rail transport of coal from states other than Washington, 

BNSF'S COMPLAINT IN INTERVENTION· 22 

NO.: 3:18-CV-05005 
516 


31623.477

Defendants have discriminated against BNSF's efforts to transport into Washington coal from 

2 Montana and Wyoming. 

113. By concluding that potential environmental effects cannot be mitigated under SEPA 

4 if those effects are within the jurisdiction of the federal government, including alleged effects related 

to rail transportation, the Defendants are unduly burdening, and in effect regulating, interstate 

6 commerce. 

7 114. Defendants' actions and inactions with respect to the Terminal discriminate against 

8 interstate commerce in both purpose and practical effect, and they serve no legitimate local purpose 

9 that could not be served by nondiscriminatory means. 

10 115. Defendants' actions and inactions with respect to the Terminal also burden interstate 

11 commerce excessively when weighed against any putative local benefits of Defendants' abuse of 

12 their regulatory power. 

13 116. Defendants' actions also injure BNSF by discouraging private sector willingness to 

14 invest in the development of coal export facilities in Washington that would be served by BNSF rail 

15 lines. 

16 117. Defendants' actions have injured BNSF directly by impacting BNSF's economic 

17 interest in providing rail delivery services for the Project and have created a disincentive to build or 

18 expand other coal export facilities that would be served by BNSF rail lines, which will negatively 

19 impact U.S. economic growth, job creation, and exports. 

20 I 18. In all of these ways, the Defendants in their capacities as public officials of the State 

21 of Washington have violated the dormant interstate commerce clause and 42 U.S.C. § 1983. 

22 Count IV- Violation of the Foreign Affairs Doctrine 

23 119. BNSF incorporates andre-alleges the foregoing paragraphs. 

24 120. On information and belief, the Defendants' true reason for denying the Plaintiffs' 

25 permit applications is their desire to prevent coal exports to Asia. 

26 

BNSF'S COMPLAINT IN INTERVENTION- 23 

NO.: 3:I8-CV-05005 
517 


31623.478

121. The federal government has made it clear that the policy of the United States is to 

2 favor the expansion of coal exports to foreign countries, including countries in Asia. 

3 122. By unreasonably denying and refusing to process permits for the Terminal based on 

4 their policy of opposing the export of coal for the purposes of energy generation by U.S. allies in 

Asia, Defendants have intruded on the exclusively federal power to direct the nation's foreign affairs 

6 in violation of the foreign affairs doctrine. 

7 123. By expanding the scope of SEPA review beyond the Washington's boundaries, and 

8 especially by including the environmental effects of coal shipments destined for foreign nations as a 

9 basis to deny permits for the Project, Defendants fail to address any area of traditional state 

10 responsibility. 

11 124. Defendants have created a substantial risk of conflict between the United States and 

12 foreign governments that rely on coal imports for power production. 

13 125. Defendants' actions have injured BNSF directly and have created a disincentive to 

14 build or expand other coal export facilities that would be served by BNSF rail lines, which runs 

15 counter to the federal government's foreign policy. 

16 126. In all ofthese ways, the Defendants in their capacities as public officials of the State 

17 of Washington have violated the foreign affairs doctrine and 42 U.S.C. § 1983. 

18 VIII. PRAYER FOR RELIEF 

19 BNSF respectfully requests the following relief: 

20 127. A declaration that ICCTA preempts any decision by any state or local entity relying 

21 on the Defendants' denial of the sublease or the Defendants' denial of the CWA section 401 

22 certification, including the denial ofMBT Longview's requested shoreline permit, when such denials 

23 are based on the purported rail-related impacts of a proposed project. 

24 128. A declaration that Defendants' denial ofMBT Longview's requested sublease for the 

25 Millennium Bulk Terminal violates the dormant commerce clause. 

26 

BNSF'S COMPLAINT IN INTERVENTION- 24 

NO.: 3:18-CV-05005 
518 


31623.479

129. A declaration that Defendants' denial ofMBT Longview's requested CWA section 

2 401 certification violates the dormant commerce clause. 

130. A declaration that any environmental reviews of the proposed coal export facility at 

4 the Millennium Bulk Terminal-or any future coal export terminal that Plaintiffs or BNSF may 

5 propose-may not be used to deny or unreasonably condition a permit beyond the standards applied 

6 to other non-coal terminal projects, including denying or unreasonably conditioning a permit based 

7 on the effects of transporting coal to and from the Terminal by rail traffic in interstate or foreign 

8 commerce. 

9 131. A declaration that potential environmental effects within the jurisdiction of the 

1 o federal government cannot be the basis of a conclusion that the Project's environmental effects-or 

11 any future coal export terminal that Plaintiffs or BNSF propose-are not mitigatable. 

12 132. An order vacating any and all of the Defendants' unconstitutional and illegal 

13 decisions regarding the Project, as well as any federal, state, or local decisions relying on 

14 Defendants' unconstitutional or illegal actions. 

15 133. An injunction ordering the Defendants to apply the same review standards to the 

16 Project-or any future coal export terminal that Plaintiffs or BNSF propose-that are applied to 

17 other non-coal terminal proposals. 

18 134. An injunction ordering the Defendants not to deny MBT Longview's requested CWA 

19 section 401 certification or any other permit or approval for the Terminal on the basis of rail traffic, 

20 or any other potential environmental effects within the jurisdiction of the United States. 

21 135. An injunction ordering the Defendants to continue processing any and all current and 

22 future MBT Longview permit applications. 

23 136. An order awarding to BNSF the costs of this litigation, including attorneys' fees and 

24 expert witness fees, including those awardable under 42 U.S.C. § 1988. 

25 137. Such other relief as the court deems just and proper. 

26 Dated this 27th day of February, 2018. 

BNSF'S COMPLAINT IN INTERVENTION- 25 

NO.: 3:18-CV-05005 
519 


31623.480

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

BNSF'S COMPLAINT IN INTERVENTION- 26 

NO.: 3:18-CV-05005 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

By: Is/ Robert M McKenna 

Is/ Adam N Tabor 

Robert M. McKenna (WSBA No. 18327) 

rmckenna@orrick.com 

Adam N. Tabor (WSBA No. 50912) 

atabor@orrick.com 

701 Fifth Avenue, Suite 5600 

Seattle, W A 98104-7097 

Telephone: 206-839-4300 

Facsimile: 206-839-4301 

K&L GATES LLP 

By: Is/James M Lynch 

James M. Lynch (WSBA No. 29492) 

jim.lynch@klgates.com 

925 41

h Ave., Suite 2900 

Seattle, WA 98!04-1158 

Telephone: 206-623-7580 

Facsimile: 206-623-7022 

By: Is/Barry M. Hartman 

Barry M. Hartman (pro hac pending) 

barry.hartman@klgates.com 

1601 K. Street, NW 

Washington DC 20006 

Telephone: 202-778-9000 

Facsimile: 202-778-9100 
520 


31623.481

CERTIFICATE OF SERVICE 

2 I hereby certify that on February 27,2018, I caused the foregoing document to be 

electronically filed with the Clerk of the Court using the CM/ECF system which will send 

4 notification of the filing to all counsel of record. 

6 

7 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

DATED: February27,2018 

BNSF'S COMPLAINT IN INTERVENTION- 27 

NO.: 3: 18-CV -05005 

ORRICK, HERRINGTON & SUTCLIFFE LLP 

By: l.s! Robert M McKenna 

Robert M. McKenna (WSBA No. 18327) 

rmckenna@orrick.com 

701 Fifth Avenue, Suite 5600 

Seattle, W A 98104-7097 

Telephone: 206-839-4300 

Facsimile: 206-839-430! 
521 


31623.482

8/7!20Hl U.S. Senator Steve Daines of Montana 

08.01.18 

Daines Defends Montana's Right to 

Export Coal to Asia 

Introduces Bill to Clear Pathfhr Construction of 

Millennium Bulk Terminal, Create Hundreds ofJobs 

U.S. SENATE -U.S. Senators Steve Daines, John Barraso, Shelley Moore Capito 

and James lnhofe introduced a bill clearing the way for construction of the 

Millennium Bulk Terminal, which would create hundreds of Montana jobs by 

expanding trade opportunities for Montana coal. The legislation clarifies that Section 

401 of the Clean Water Act cannot be used as a weapon to prohibit Montana's 

exportation of clean and reliable coal to the nation's allies in the Asia Pacific Region. 

Watch HERE 

Download HERE 

https:ltwww.daines.senate.gov/~daines-defends~montanas~right-to-export-coa!-to-asia 113 
522 


31623.483

8/712018 U.S, Senator Steve Daines of MontanE~ 

"Montana is rich in natural resources and has the capability of supplying energy not 

only for our nation, but to the entire the world," Daines said. "This bill will ensure our 

state's abundant resources are no longer gridlocked by activist bureaucrats and will 

spur high-paying Montana jobs, empower our Tribes, and importantly, strengthen 

our national security. • 

Today, there is a large demand for Montana's clean coal in Asia. Despite this, the 

State of Washington has blocked the construction of the Millennium Bulk Terminal, 

which is the point of access for Montana coal to make its way to Asia. 

Earlier this month, Daines pushed for congressional action to stop the abuse of 

power by Washington State to construct the terminal and get Montana's clean coal 

into Asia's markets. 

Opening the terminal would allow coal from Montana's Decker Mine, Spring Creek 

Mine and the Grow's Big Metal Project to have access to Asian markets. An 

operating terminal would create an estimated 300 to 400 high-paying mining jobs -

most of them in Montana. 

Statement of Support: 

Everett King, President & CEO, Ughthouse Resources: "When a project meets all 

water quality standards, the project's water quality certification should be awarded. 

Unfortunately, this was not the case with our coal export project in Washington 

state. This legislation ensures that Clean Water Act decisions remain about water 

quality and are not used for an improper purpose. In addition, the proposed 

legislation will bring greater clarity for the development of the port for other non-coal 

products." 

Tim Fox, Attorney General of Montana: "Montana is a commodity-rich state and our 

businesses need reliable access to overseas markets. Sen. Daines' legislation is an 

important step in depoliticizing the environmental review process for export 

terminals. By leveling the playing field among the states, we can maintain robust 

environmental protection standards while also ensuring Montanans can ship their 

goods to customers around the world." 

Background: 

The Water Quality Certification Improvement Act of 2018 would: 

2/3 
523 


31623.484

8/7/2018 U.S. Senator Steve Daines of Montana 

• Clarify that the scope of a section 401 review is limited to water quality impacts 

only 

• Clarify that states, when evaluating water quality, can only consider discharges 

that would result from the federally permitted or licensed activity itself- not 

from other sources. 

• Require states to publish clear requirements for water quality certification 

requests; 

• Require states to make final decisions on whether to grant or deny a request in 

writing based only on water quality reasons. 

• Require states to inform a project applicant within 90 days whether the states 

have all of the materials needed to process a certification request. 

Click here for bill text. 

### 

https:/twww.daines.senate.gavt~daines~defends~ll)ontanas·right·to·export-coaHo-asia 3/3 
524 


31623.485

WESTERN STATES WATER COUNCIL 

Summary of State Responses 

Clean Water Act Section 401 Water Quality Certification Activities 

April2014 

The Council surveyed its 18 member states. Responses have not yet been received from Nebraska, 

North Dakota and Washington. 

Hydropower permitting-related requests vary widely by state as might be expected, with little or no 

hydropower development and related 401 certification requirements in most Plains States. Even in the 

Rocky Mountains there appear to be relatively few active requests. West Coast States have more 

certification and permitting actions. 

It appears that 401 certifications related to CWA Section 404 permitting dominate the number of 

certification requests. Coordination and collaboration between the States and Corps often expedite the 

process, but projects requiring an individual404 permit can be time consuming. 

CWA 401 certifications are also used to inform state 402 NPDES permits issued by states, and would be 

required in those states without primacy to issue 401 permits, which would include Idaho and New 

Mexico. 

1. In your opinion is State 401 certification authority a significant obstacle to timely federal licensing 

and permitting activities? Specifically hydropower licensing? Other permits (such as CWA Section 404 

permits)? 

States unanimously reported that the CWA 401 State Water Quality Certification is not usually an 

obstacle in itself to timely federaliicensing and permitting, provided that all applications are complete 

and ancillary federal activities are complete or nearly complete (e.g. public notice, study requirements, a 

complete EIS, mitigation requirements, etc.). 

States report certification applications filed with missing signatures, illegible maps, and/or required 

documents such as a CWA Section 404 application. Often substantive details of the proposed action 

requirement certification can also change. Many times certification requests are filed before the Corps 

has completed their assessment. Certifications may also be held up by the applicant not responding to 

requests for additional information, or failing to comment on proposed project conditions. 

EPA and other federal agency comments, conditions and other actions can delay certification. It is not 

uncommon for example for 404 permitting applications to be elevated to Corps/EPA Headquarters for 

consideration. 

The complexity and long duration of the FERC licensing and relicensing process is a major contributing 

factor in those States with related 401 certification requests pending. FERC's Integrated Licensing 

Process (ILP) takes a minimum of five years to complete. 
525 


31623.486

Some States have separate environmental review requirements, such the California Environmental 

Quality Act (CEQA) process required for non-governmental entities (which can be time consuming). The 

federal NEPA process is the starting point for CEQA. Further, the California State Water Resources 

Control Board, consistent with maintaining a transparent and public process, provides a public comment 

opportunity on draft certification decision before issuance. As project licenses typically range from 3050 

years, this is considered to be important, though this is not a required step. 

Oregon has a separate state hydropower licensing process, in parallel to the federal process. 

2. How long does it usually take for your State to act on a certification application? It there a specific 

goal or timeline for action? 

This varies by state, but all are within the one year period allowed by law. The majority, on average, fall 

between 40-90 days, while some may process certification requests within a couple of weeks. Action on 

a request can depend on a number of factors, such as a 30-day public comment period requirement. 

Other reasons for delay are listed below under Question 113. 

States generally do have a process and specific rules outlining a formal timetable or goal for action, but 

where there is not, every effort is made to issue the certification or a waiver in a timely manner. 

Alaska has a goal of processing 401 certification requests within 10 days after the close of the public 

notice and comment period. 

Similarly, the Texas Commission on Environmental Quality (TCEQ) reviews 401 certification requests in 

parallel with federal licensing and 404 permitting activities, and based on an memorandum of 

agreement (MOA) with the Corps Southwestern Division, TCEQ make a decision within 10 days of the 

Corps having reached a permitting decision (certification is required before a permit is issued). 

3. Does the State currently have a backlog of certification applications? If so, what is the size of the 

backlog? What types of licenses or permits are most likely to be delayed? What are the primary 

reasons for delays (incomplete applications, study requirements, state staff or other resource 

limitations, etc.)? 

The vast majority of states have no backlog of certification actions, but a few do. Delays are typically 

due to submission of an incomplete application, completion of study requirements, and constraints on 

state resources, including staff limitations. Often, 401 certification is a part-time duty for staff, assigned 

as needed. State turnover is another problem, and often entry level staff is assigned 401 certification 

responsibilities. Given the length of the FERC permitting process staff may change over time. 

California reported the most delayed FERC projects and certification requests (only 2-3 staff are devoted 

to requests). California is working on certification for sixteen FERC licensed projects where their license 

has expired. Most should be completed within two years. Post-licensing monitoring of certification and 
526 


31623.487

permitting conditions, which may involve continuing studies given the uncertainty regarding future 

conditions, also place an increasing burden on staff time. 

Oregon does have two large hydropower projects which haven't been certified within one year of the 

original application, one due to ongoing federal activities, and ongoing mitigation studies have delayed 

the other. 

At least one state will no longer accept 401 certification applications as complete until required federal 

actions have already been approved or completed. 

4. What actions has the state taken to simplify or expedite the certification process (such as 

interagency MOUs, online applications, etc.)? Please provide references and copies. 

States have undertaken various process improvements, including coordinating state and federal 

environmental reviews, some through formal memoranda of understanding. 

The Alaska Department of Environmental Conservation has developed a waiver process applied to 

individual404 permits issued by the U.S. Army Corps of Engineers. Criteria are based on the potential 

risk of a particular activity that may affect water quality, such as the size of the wetlands fill, the type of 

activity, the proximity to a waterbody and the particular wetlands functions and values. 

On November 19, 2013, The California State Water Resources Control Board (SWRCB) executed a 

memorandum of understanding (MOU) with FERC that covers coordination of pre-application activities 

that include "consultation, environmental scoping, study planning, and submittal of and commenting on 

the applicant's preliminary licensing proposal." A copy of the MOU is available online at: 

http:Uwww.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ferc mou/ind 

ex.shtml 

Also, with the support of the California Hydropower Reform Coalition and FERC licensees, SWRCB is 

ramping up staffing resources and increasing fees. Three 401 certification requests were completed 

within an eight month period. Each project request is also assigned a back-up staff person to assure 

continuity. There are templates for standard letters and more common certification conditions, and 

SWRCB is developing a program manual and training staff on up-to-date techniques. 

For large, complex projects the Colorado Department of Public Health and Environment works with 

applicants prior to formal filing of a certification request to streamline the review process and minimize 

requests for additional information. In 2010, Colorado executed an MOU with FERC, and also hired a 

contractor to identify a number of small projects that were reviewed and certified, but the contract was 

not renewed and FERC has not informed the State of new conduit or other small scale hydropower 

project licensing applications, though some potential projects have come to light through public 

information and conversations with Corps staff. 

Idaho has used settlement agreements to develop FERC 401 certifications. 
527 


31623.488

New Mexico has expedited the certification process through the use of general permits and established 

procedures. The "New Mexico Implementation Plan" governs the process for issuing NPDES permits. 

Oklahoma meets regularly with the Corps to coordinate procedures for public notice and processing of 

permit and certification applications. 

Oregon Department of Environmental Quality staff work with applicants on study design and data 

review early on to ensure a 401 request is complete. Oregon also has a statute outlining state review of 

hydropower relicensing in coordination with federal relicensing to avoid duplication through a 

Hydroelectric Application Review Team (HART) with staff from DEQ, the Department of Water 

Resources, and the Department of Fish and Wildlife. Other state agencies may participate as well. 

HART may provide applicants with an estimate of costs for relicensing work, including certification, and 

one applicant entered into an agreement to pay the state agencies' costs. HART addresses relicensing, 

but state agencies coordinate as needed for any new project to reduce inefficiencies. Also, DEQ invoices 

all401 certification applicants for costs incurred in processing, providing the revenue necessary for 

timely action, including reassigning staff work. 

A Texas/Corps MOA implements a tiered classification system for projects that require an individual 

CWA 404 permit, which require certification reviews for proposed projects that directly impact aquatic 

resources of greater than three acres or 1500 linear feet of stream (Tier II projects). For Tier I projects 

(below that threshold), TCEQ waives certification if the permit applicant agrees to incorporate specific 

best management practices. 

In Wyoming, electronic delivery of certification requests directly from the USACE (Corps) Wyoming 

Regulatory Office to the Department of Environmental Quality facilitates timely review and processing. 

WY DEQ encourages project proponents to contact the agency prior to submitting their 404 application 

to the Corps. lastly, Wyoming has categorically certified several nationwide permits, further expediting 

the process. 

5. What public information regarding 401 certification is available from the State (include state 

websites and addresses)? 

Many states provide information in advance to assist applicants in navigating the 401 certification 

process, including online resources. This may include current program activity, staffing, current 

projectspecific webpages, 401 certifications issued, etc. FERC also posts 401 certification information on 

its website. Further, Corps Districts may post information on 404 permit applications. 

AK: http://dec.alaska.gov/water/wwdp/wetlands/index.htm 

AZ: http://www.azdeq.gov/environ/water/permits/cwa401.html 

CA: http://www.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ 
528 


31623.489

CO: http://www.colorado.gov/cs/Satellite/CDPHE-WQ/CBON/1251596872987 

ID: http:ljwww.deq.idaho.gov/water-quality/surface-water/standards/401-certification.aspx 

This is Idaho's 401 certification website. The 401 certification list of projects is on these webpages: 

NPDES: http://www.deq.idaho.gov/water-guality/surface-water/standards/401-

certification/401certifications-npdes-permits.aspx 

404 Permits: http://www.deg.idaho.gov/water-guality/surface-water/standards/401-

certification/401certifications-dredge-fill.aspx 

MT: All FERC related 401 water quality certifications are posted on the FERC website. Montana 

shares the public notice with the Army Corps of Engineers for individual404 related 401 water quality 

certifications. 

NV: http://ndep.nv.gov/bwgp/401cert.htm 

NM: Section 404 program can be found at http://www.nmenv.state.nm.us/swqb/404/. The web 

site for the NPDES program can be found at http://www.nmenv.state.nm.us/swqb/Permits/. 

OK: http://www.deg.state.ok.us/wgdnew/401 404/index.htm. 

Public notices for the Section 404 permits are located on the U.S. Army Corps of Engineers, Tulsa District 

website: http://www.swt.usace.army.mii/Missions/Regulatorv/PublicNotices.aspx 

OR: http://www.deg.state.or.us/wq/sec401cert/hydro.htm 

SD: http://denr.sd.gov/des/sw/401.aspx 

TX: The TCEQ maintains several public web pages containing information about the TCEQ 401 

certification program. Each page can be accessed from the following URL: 

http://www. tceq. texas.gov /permitting/401certification UT: 

http://www.waterguality.utah.gov/permits/index.htm 

WA: 

WY: The USACE Wyoming Regulatory Office website provides a link to the Wyoming Department of 

Environmental Quality website that contains information on specific State 401 certification. 
529 


31623.490

6. Do you anticipate an increase in the number of 401 certification requests in the future, and what 

might be the impact on State administrative resources? 

Most states do not anticipate a significant increase in 401 certification requests. Some do. Some states 

have actually seen significant declines in requests. Again, most requests appear to be related to 404 

permitting, which in turn increase with general economic conditions and related construction starts, oil 

and gas development, etc. 

[Expansion of CWA jurisdiction as may be proposed by new rules could have an undetermined impact an 

the number of requests related to any increase in Section 404 permitting requirements.] 

California expects an increase in requests due to FERC relicensing, license amendments, and new 

projects. Further, as described post-licensing monitoring of conditions, as well as non-hydropower 

certification requests will significantly impact the State's administrative resources. FERC currently lists 

115 non-federal hydropower projects in California, not including transmission line projects, with varying 

expiration dates. Since 2000, 22 FERC project licenses have expired, and another 26 will expire through 

2029, necessitating either relicensing or surrender oft he license. Decommissioning can also have water 

quality impacts. SWRCB is already involved in a number of relicensing pre-application activities. The 

Division of Water Rights Water Quality Certification Program also certifies non-hydropower projects that 

involve water rights. 

Colorado does not anticipate a significant increase in the number of requests, but does anticipate 4-5 

very large and complex project certification requests from water diversion and storage projects over the 

next 3-4 years. 

Idaho does expect an increase in requests, as well as additional review requirements related to 

antidegradation reviews and analyses associate with federal permits, placing greater demands on static 

staff. 

New Mexico noted drought limits the viability of hydropower projects. 

Oregon has certified several projects through the federal relicensing process over the past several years. 

Currently there are only a few projects under relicensing review. Oregon anticipates ongoing interest in 

retrofitting both irrigation and drinking water systems with hydro turbines, but many will be exempt 

from licensing and no 401 certification will be required. Many preliminary permit applications have not 

proceeded to licensing, making certification requirements difficult to estimate. 
530 


31623.491

WIR WESTERN 

INTERSTATE 

REGION 

August 9, 2018 

The Honorable Paul Ryan 

Speaker of the House 

U.S. House of Representatives 

H-232 U.S. Capitol 

Washington, D.C. 20515 

The Honorable Nancy Pelosi 

Minority Leader 

U.S. House of Representatives 

H-204 U.S. Capitol 

Washington, D.C. 20515 

ASSOCIATION uf 

fiSH &wllDLIH 

AGI:NCfES 

WI->.!1-R'\,',!:\I!--,'-, 

\\<i\!H-1.. (\_ll!N(:!t 

The Honorable Mitch McConnell 

Majority Leader 

United States Senate 

S-230 U.S. Capitol 

Washington, D.C. 20510 

The Honorable Charles Schumer 

Minority Leader 

United States Senate 

419 Hart Senate Office Building 

Washington, D.C. 20510 

Dear Senators McConnell and Schumer, and Representatives Ryan and Pelosi: 

We write to express our concerns about various proposals to alter the state certification process 

under Section 401 of the federal Clean Water Act (CWA). Because each state is unique, we need the 

flexibility and authority to address our individual water needs. We urge Congress to reject any 

legislative or administrative effort that would diminish, impair or subordinate states' ability to 

manage or protect water quality within their boundaries. 

States have primary legal authority over the allocation, administration, protection and development 

of their water resources. Responsible growth and development, as well as proper environmental 

management, depend upon the recognition and preservation of state stewardship. 

We recognize the importance of partnerships between states and the federal government. To 

implement the CWA, Congress purposefully designated states as co-regulators under a system of 

cooperative federalism that recognizes state interests and authority. Congress recognizes the legal 

position of states in the CWA; Section 101 clearly expresses Congress's intent to: 

recognize, preserve, and protect the primary responsibilities and rights of States to 

prevent, reduce, and eliminate pollution, to plan the development and use (including 

restoration, preservation, and enhancement) of land and water resources, and to 
531 


31623.492

The Honorable Paul Ryan 

The Honorable Mitch McConnell 

The Honorable Nancy Pelosi 

The Honorable Charles Schumer 

August 9, 2018 

Page 2 

consult with the Administrator in the exercise of his authority under this 

chapter ... Federal agencies shall co-operate with state and local agencies to develop 

comprehensive solutions to prevent, reduce, and eliminate pollution in concert with 

programs for managing water resources. 

A balanced system of cooperative federalism has enabled states to implement the CWA effectively 

and with flexibility. The CWA correctly recognizes that a one-size-fits-all approach to water 

management and protection does not accommodate the practical realities of geographic and 

hydrologic diversity among states. 

A vital component of the CW A's system of cooperative federalism is state authority to certify and 

condition federal permits of discharges into waters of the United States under Section 401. This 

authority has helped ensure that activities associated with federally permitted discharges will not 

impair state water quality. The U.S. Supreme Court has addressed this issue of state authority and 

concluded that, "(s]tate certifications under (Section]401 are essential in the scheme to preserve 

state authority to address the broad range of pollution." S.D. Warren Co. v. Maine Board of 

Environmental Protection, 547 U.S. 370 (2006), citing 116 Cong. Rec. 8984 (1970). 

Curtailing or reducing state authority or the vital role of states in maintaining water quality within 

their boundaries would inflict serious harm to the division of state and federal authorities 

established under the Constitution and recognized by Congress in the CW A. Any legislative or 

regulatory effort to streamline environmental permitting should be developed in consultation with 

states and must not be achieved at the expense of authority delegated to states under the CWA or 

any other federal law. Any such effort must also recognize, and defer to, states' sovereign authority 

over the management and allocation of their water resources. We implore you to ensure that the 

CWA continues to effectively protect water quality while maintaining the proper balance between 

state and federal authorities. 

Sincerely, 

~~~ President "i':c:tive 

n~ Director 

Association of Fish and Wildlife Agencies Association of State Wetland Managers 
532 


31623.496

The Honorable John Barrasso 

The Honorable Tom Carper 

August 15, 2018 

Page) 

oversight over their own decision-making have nevertheless felt empowered to second-guess 

every comma and semicolon in our filings. Again and again, they have grossly mischaracterized 

our decisions, impugned our motives and challenged longstanding legal precedents. 

Many legal bodies have already examined our authority and our decision. All of them have 

aftirmed our actions. The water quality certification itself is just one of23 approvals needed 

ti·mn local, state and federal authorities. Department of Ecology is one of three independent 

government bodies that has rejected this proposal. 

The company's appeal of the Department of Ecology's decision now appropriately rests with 

Washington State's Pollution Control Hearings Board, which has indicated that it will issue a 

summary judgment decision in the days ahead. We anticipate the pollution board's decision will 

validate ours. 

A copy of the state's denial is enclosed for your reference. I hope this letter helps conunittee 

members understand the facts about the permit denial. I am proud of the effort that my agency 

dedicated to this project. And I will continue to defend our water quality decision every step of 

the way. 

Thank you for your interest in this matter. 

Sincerely, 

Maia D. Bellon 

Director 

cc: Patty Murray, Senator 

Maria Cantwell, Senator 

Senate Environment & Public Works Committee Members 
533 


31623.497

2 

3 

4 

5 

6 

7 

8 

9 

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 1 of 19 

THE HONORABLE ROBERT J. BRYAN 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

No.: 3:18-cv-05005-R.TB 

10 LIGHTHOUSE RESOURCES INC.; 

LIGHTIIOUSE PRODUCTS, LLC; LHR 

11 INFRASTRUCTURE, LLC; LHR COAL, 

LLC; and MILLENNIUM BULK 

12 TERMINALS-LONGVIEW, LLC, 

13 Plaintiff, 

AMICUS CURIAE BRIEF IN OPPOSITION 

TO DEFENDANTS' MOTION FOR 

ABSTENTION BY WYOMING, KANSAS, 

MONTANA, NEBRASKA, SOUTH 

DAKOTA AND UTAH 

14 v. NOTED ON THE MOTION CALENDAR: 

15 JAY INSLEE, in his official capacity as 

Governor of the State of Washington; MAlA 

16 BELLON, in her otlicial capacity as Director 

of the Washington Department of Ecology; 

17 and HILARY S. FRANZ, in her official 

capacity as Commissioner ofPuhlic Lands, 18 

Defendant. 

MAY 15,2018 

19 

20 TABLE OF CONTENTS 

21 TABLE OF AUTHORITIES 

22 INTRODUCTION 

23 BACKGROUND 

24 

25 

26 

I. The Millennium Bulk Terminal Coal Export Facility. 

II. The Defendants' Opposition to the Millennium Bulk Terminal 

Port Facility. 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 1 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: J: 18-cv-05005-RJB 

4 

5 

6 

Uutlivllnt!lloust•r)D~&iley P(' 

!700ScvetUhAvcno,oe, S..rit\\UI10 

Sea!U~. Wa~hinJ:tl<ln 9SJ01-I.l~7 

Telephonc·2fl(,2928'H0 
534 


31623.498

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 2 of 19 

2 

3 

4 

5 

6 

7 

8 

Ill. Defendants' Motion for Abstention of the Commerce Clause 

Claims. 

STANDARD OF REVIEW 

ARGUMENT 

I. The Commerce Clause claims are a matter of overwhelming 

federal interest making abstention inappropriate. 

II. Abstention is not proper under the Pullman doctrine. 

10 

III. Abstention is not proper under the Colorado River doctrine. 

9 CONCLUSION 

10 CERTIFICATE OF SERVICE 

II TABLE OF AUTHORITIES 

12 Cases 

7 

7 

8 

8 

12 

17 

13 Ashcroft v. Iqbal, 

556 u.s. 662 (2009) .................................................................................................................. 6 

14 Bell Atl. Corp. v. Twombly, 

550 u.s. 544 (2007) ........................................................................................................... 6 

15 Bethlehem Contracting Co. v. Lehrer/McGovern, inc., 

800 F.2d 325 (2d Cir. 1986) .............................................................................................. 18 16 

Canton v. Spokane Sch. Dist. No. 81, 

17 498 F.2d 840 (9th Cir. 1974) ............................................................................................. 10 

18 Cingular Wireless, LLC v. Thurston Cty., 

150 F. App'x 633 (9th Cir. 2005) ...................................................................................... 12 

19 Colo. River Water Conservation Dist. v. United States, 

424 u.s. 800,817 (1976) ........................................................................................ 5, 13-15 

20 Courthouse News Serv. v. Planet, 

21 

750 F.3d 776 (9th Cir. 2014) ......................................................................................... 6, 10 

Daniels Sharpsmart, Inc. v. Smith, 

22 No. 1:17-cv-403-L.TO-SAB, 2017 U.S. Dist. LEXIS 90840 

(E.D. Cal. June 13, 2017) .................................................................................. 8, 10, 14, 17 

23 Hancock v. City of Ridgefield, No. C09-5580BHS, 

2009 U.S. Dist. LEXIS 117948 (W.D. Wash. 2009) ......................................................... 12 

24 

Harper v. Pub. Serv. Comm 'n, 

25 396 F.3d 348 (4th Cir. 2005) .......................................................................................... 7, 8 

Lazy Y Ranch LTD v. Behrens, 

26 546 F.3d 580 (9th Cir. 2008) .............................................................................................. 6 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 2 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: !8-cv-05005-RJB 

HullivantllJouscJ·]Hailey J>C 

l1110$cwmhAvcnuc,SuJ!cHI!O 

Sc~l1lc, Wd~hing1nn 9HIOI·Il'J7 

Telcpll<li"IC 21X>1<)28'HO 
535 


31623.499

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 3 of 19 

Life Partners, Inc. v. Morrison, 

484 F.Jd 284 (4th Cir. 2007) .............................................................................................. 8 

2 McCie/!an v. Carland, 

3 

217 U.S. 268 (1910) .......................................................................................................... 13 

Moses H. Cone Mem '/Hasp. v. Mercury Constr. Corp .. 

4 460U.S.1(1983) ........................................................................................................ 17,20 

5 

Nat 'I Ass 'nfor the Advancement of Multijurisdiction Practice v. Berch, 

773 F.3d 1037 (9th Cir. 2014) ............................................................................................. 7 

6 Porter v. Jones, 

319FJd483(9thCir.2003) ....................................................................................... 10-12 

7 Procunier v. Martinez, 

8 

416 U.S. 396 (1974) ............................................................................................................ 7 

Pue v. Sill as, 9 632 F.2d 74 (9th Cir. 1980) ............................................................................................... 17 

10 

R.R. Comm'n ofTex. v. Pullman Co., 

312 u.s. 496 (1941) ........................................................................................................... 5 

11 R.R. St. & Co. v. Transp. Ins. Co., 

656 F.3d 966 (9th Cir. 2011) ...................................................................................... passim 

12 Thornburgh v. Abbott, 

13 

490U.S.401 (1989) ............................................................................................................ 7 

Travelers Jndem. Co. v. Madonna, 

14 914 F.2d 1364 (9th Cir. 1990) ..................................................................................... 17, 18 

United States v. Mon·os, 

15 268 F.3d 695 (9th Cir. 2001) ................................................................................... 7, 14-16 

16 Wisconsin v. Constantineau, 

400 u.s. 433 (1971) ......................................................................................................... 12 

17 Zwickler v. Koota, 

18 

389 u.s. 241 (1967) .......................................................................................................... 1 0 

Statutes 

19 42 U.S.C. § 1983 ........................................................ · ......................................................... 4, 17 

2o U.S. Canst. art. IV, § 8 .............................................................................................................. 7 

21 Other Authol'ities 

22 Fed. R. Civ. P. 12 .................................................................................................................. 5, 6 

23 Leonard Birdsong, Comity and Our Federalism in the Twenty-First 

Century: The Abstention Doctrines Will Always Be With Us Get 

24 Over 11!, 36 Creighton L. Rev. 375 (2003) ........................................................................ 10 

25 

26 

The Federalist No. 22 (Alexander Hamilton) ........................................................................... 2 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 3 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: I 8-cv-05005-RJB 

Uullivnnt!Hon~cl'lllailcy J'C 

!700.'\<!vcutht\V~1UC,Suitc1Rl0 

s~aul~, w~~hinglon <)8 10).)3117 

TelCJlh<.ut<'' 21}02Q28910 
536 


31623.500

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 4 of 19 

INTRODUCTION 

2 ln 2016, the States of Wyoming and Montana generated tax revenues of just over $800 

3 million from coal mining and coal-power generation. (See Atl to Mot. for Amicus status). 

4 These revenues 1\Jnd essential services to the citizens of the States, including water and 

5 highway infl·astructure and education. (!d.). Coal is a critical source of income to the fiscal 

6 health ofthese two states and for the provision of basic services necessary for the health and 

7 well-being of their citizens. In addition to the specific interests of Wyoming and Montana, the 

8 additional amici states have a broad interest in ensuring that no single state can engage in a 

9 pattern of discrimination that results in control over any other state's ability to engage in a 

10 lawful activity involving interstate or foreign commerce. The Defendants' unconstitutional 

11 actions threaten these interests. 

12 The Defendants have publicly expressed their personal antipathy to the use of coal as a 

13 fuel source. (See, e.g., Compl. at ~~~~ 80-99). Defendant Governor Inslee is on record as 

14 opposing coal exports, particularly to Asia. (!d. at~ 86). The other named Defendants either 

15 share or have adopted Governor Inslee's anti-coal position. (ld. at ~1~192-95 (Def. Bellon); 96-

16 97 (De[ Franz)). With regard to the Millennium Bulk Terminal Port Facility, the Defendants 

17 have engaged in a pattern of discrimination to prevent Wyoming and Montana from engaging 

18 in interstate and foreign commerce. Jn doing so, the Defendants' have violated the Dormant 

19 Foreign and Domestic Commerce Clauses of the United States Constitution. The Defendants 

20 are interfering with the free trade of other states, something anathema to the founding 

21 principles of our nation. As Alexander Hamilton succinctly put it: 

22 

23 

24 

25 

26 

The interfering and unneighborly regulations of some States, contrary to the true 

spirit of the Union, have, in different instances, given just cause of umbrage and 

complaint to others, and it is to be feared that examples of this nature, if not 

restrained by a national control, would be multiplied and extended till they 

became not less serious sources of animosity and discord than injurious 

impediments to the intercourse between the different parts of the Confederacy. 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 4 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 

UullivantlllousrriBailcy PC 

1700Scve!\thi\vell\>e.!>wtclll10 

Scat1k, Wa~hington9S!OI-L1'>7 

fdephunc 201>2921!910 
537 


31623.501

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 5 of 19 

The Federalist No. 22 (Alexander Hamilton). 

2 The amici States offer this brief to assist the Court in its consideration of Defendants' 

3 argument that this Court should abstain from adjudicating the Commerce Clause claims in this 

4 suit. This Court should not abstain fl·om considering these claims because abstention is not 

5 appropriate in dealing with Commerce Clause claims. Even if it was, the facts in this case do 

6 not satisfy the requirements under either the Pullman or Colorado River abstention doctrines. 

7 Accordingly, this Court should proceed to adjudicate the Commerce Clause claims. 

8 BACKGROUND 

9 I. The Millennium Bulk Terminal Coal Export Facility. 

10 Since 2012, Lighthouse Resources, Inc., a vertically-integrated coal production, 

11 transportation, and export company, has sought to develop the Millennium Bulk Terminal Port 

12 Facility (Terminal Facility or Project) in Longview, Washington, on the Columbia River. 

13 (CompL at ~~ 60-70). Lighthouse desires to transpmi coal it mines in Montana and Wyoming 

14 by rail to the Terminal Facility and then ship il to meet the growing demand for coal in Asia. 

15 (CompL at ~,135-3 7; 45-50). The Project requires additional coal export capacity on the West 

16 Coast and, accordingly, Lighthouse has applied to obtain the necessary permits from the State 

17 of Washington to expand and develop the Terminal Facility to handle the additional coal. 

18 (CompLat~~51; 117; 149; 161; 173; 179). 

19 The State of Washington has consistently denied Lighthouse's permit applications. 

20 (CompL at ,1,1149-60; 161-72; 173-78; 179-83). There are currently actions related to these 

21 permit denials in state court and the Shorelines Hearing Board involving the denial by the 

22 Washington Department of Natural Resources of the transfer of a sublease for the site of the 

23 proposed Terminal Facility, the Washington Department of Ecology's denial of a Clean Water 

24 Act Section 401 certification on appeal to the Washington Pollution Control Hearings Board, 

25 and Cowlitz County's denial of a shoreline development and conditional use permit. (See 

26 generally Overton DecL Exs. 4, 5, 8, and 10 attached to Dcf. Mot.). 

AMICUS CURIAE BR!EF IN OPPOSITION TO DEFENDANTS' Page 5 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: J: 18-cv-05005-RJD 

DldlivantfllouserjURiley 1~c 

17{10 Sc>'C,I!hAv.::t\tt<',~i•ilc HllO 

Sc.~~ulc,Wa<lH~I~ln9810l·l197 

ldo.•ph<>ll<' 2062')1,8<)3[1 
538 


31623.502

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 6 of 19 

II. The Defendants' Opposition to the Millennium Bulk Terminal Port Facility. 

2 The Defendants have a long-documented public opposition to l'ossil fuels, and coal in 

3 particular. (Com pl. at "il,l 80-99; 107-1 0). Since the Defendants' accession to their current 

4 positions, Washington State agencies have denied every necessary permit for the Terminal 

5 Facility. (!d. at "jJ"iJI21-24; 127-36; 149-59; 162-71; 176-78; 180-83). In response, Lighthouse 

6 has appealed the permit denials through the Washington state administrative and court systems. 

7 Lighthouse initiated this litigation in federal district court not to challenge the outcome of a 

8 specific permitting process, but to stop the Defendants' violation of the Dormant Foreign and 

9 Domestic Commerce Clause provisions of the United States Constitution under 42 U.S.C. !l 

10 1983. (!d. at ,,,, 206-1 0). Specifically, Lighthouse alleges that the Defendants have 

II discriminated against Lighthouse's project because it involves coal, thus preventing Wyoming 

12 and Montana fi·om engaging in foreign and interstate commerce and depriving Lighthouse and 

13 its subsidiaries of an economic opportunity and prospective investment. (!d. at "iJ,J225-39, 241-

14 48). 

15 The Defendants are not parties to any proceeding in a state court or administrative body 

16 where there is a Commerce Clause claim at issue. Further, the claim against the Defendants 

17 and the relief sought against them is distinct from that in the state-level proceedings. In the 

18 state proceedings, the issues are whether the state agencies lawfully denied various permits 

19 under various state laws. (Dkt. No. 21-1 at Ex. 4, 5, 8, 10, and 11). Jfthe Facility prevails in 

20 the state proceedings, the remedy would be to grant the permit or to remand the matter to the 

21 permitting agency for an appropriate consideration of the permit application. By contrast, the 

22 claims in this Court rest on alleged violations ofH:derallaw and the remedy Lighthouse seeks 

23 is fundamentally different than that available in the state proceedings. Specilically, Lighthouse 

24 seeks: (I) an order reversing the Defendant's unconstitutional and illegal actions; (2) an 

25 injunction requiring the Defendants to apply the same standards to Lighthouse's permit 

26 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 6 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: J: J 8-cv-05005-RJB 

Bullivnntjllouse~·!ll:l.ifcy P(' 
539 


31623.503

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 7 of 19 

applications that are applied to non-coal applications; (3) an injunction ordering that the 

2 Defendants not deny Clean Water Act Section 40 J certification on a basis unrelated to the 

3 requirements of that Act; and (4) an injunction requiring the Defendants to continue to process 

4 all future and current pen11it applications made by Lighthouse. (!d. at Prayer for Relief,~~ F5 J). 

6 III. Defendants' Motion for Abstention of the Commerce Clause Claims. 

7 Defendants responded to the Complaint with a "Motion for Partial Dismissal Under 

8 Eleventh Amendment and FRCP 12(b)(6) and Motion for Abstention." The request for 

9 abstention derives fi·om two doctrines established by the United States Supreme Court in the 

10 cases of Railroad Commission of Texas v. Pullman Company, 312 U.S. 496 (1941), and 

II Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976), and 

12 is directed to Lighthouse's Commerce Clause claims. (Def. Mot. at 16-24). Because the 

13 Defendants do not meet the criteria for abstention, the States respectfully request that this Court 

14 deny the Motion for Abstention and adjudicate the Commerce Clause claims. 

15 STANDARD OF REVIEW 

16 Defendants bring their motion for abstention under Federal Rule of Civil Procedure 

17 12(b)(6). (Def Br. at 7). When considering an abstention request under Rule 12(b)(6), the court 

18 generally accepts as true the allegations in the complaint, construes the pleading in the light 

19 most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. 

20 Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008). To survive a Rule 12(b)(6) 

21 motion to dismiss, the plaintiff must "allege enough facts to state a claim to relief that is 

22 plausible on its face." !d. (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A 

23 claim has facial plausibility when the [p]laintiffpleads factual eontent that allows the court to 

24 draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft 

25 v. Iqbal, 556 U.S. 662, 678 (2009). 

26 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 7 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3:18·cv-05005-RJB 

Uullivantjllowo~rfllsliley llC 

l700Seven!IIAvellti<:,SuitcU!lO 

Sc~nk Wa~hingtnn 9SJOI-13n 

Teh::pl!rnJC.20(•29289JU 
540 


31623.504

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 8 of 19 

Further, the Defendants' motion is a "facial" challenge to this Court's exercise of 

2 jurisdiction, not a "factual" one. "A factual challenge relies on ani davits or any other evidence 

3 properly before the court to contest the truth of the complaint's allegations:· Courthouse News 

4 Serv. v. Planet, 750 F.3d 776, 780 (9th Cir. 2014) (internal quotes and brackets omilted). The 

5 Defendants filed a Declaration from counsel identifying the concurrent state proceedings that 

6 included exhibits of related orders, notices of appeal, and other procedural filings. (Dec!. of 

7 Lee Overton). The Defendants, however, do not contest the truth of any of the allegations in 

8 the Complaint. Accordingly, the factual allegations in the Complaint are true for purposes of 

9 this Court's resolution of the Defendants' motion. 

10 ARGUMENT 

11 Defendants assert that the parallel, state-level proceedings require this Court to abstain 

12 ti·om ruling on Lighthouse's Commerce Clause claims. Initially, the Cow1 should reject the 

13 Defendants' request for abstention because the Commerce Clause claims raise important 

14 federal questions that impact the economic interests of other states. Even if the abstention 

15 doctrines did apply, the Defendants have failed to establish that under the facts and 

16 circumstances of this case that either the Pullman or the Colorado River doctrine supports 

17 abstention. 

18 I. 

19 

The Commerce Clause claims are a matter of overwhelming federal interest 

making abstention inappropriate. 

20 "The Commerce Clause ofthe United States Constitution, Article I, Section 8, prohibits 

21 states fi·om discriminating against interstate commerce, and bars regulations that, although 

22 facially nondiscriminatory, unduly burden interstate commerce." Nat '1 Ass 'n for the 

23 Advancement of Multijurisdiction Practice v. Berch, 773 F.3d 1037, 1048 (9th Cir. 2014). 

24 Abstention is not favored when sensitive federal constitutional claims are at stake. See, e.g., 

25 Procunier v. Martinez, 416 U.S. 396, 404 (1974), overruled on other grounds by Thornburgh 

26 v. Abbott, 490 U.S. 401,413-14 (1989); Harper v. Pub. Serv. Comm 'n, 396 F.3d 348,355-56 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 8 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: IS·ev-05005-RJB 
541 


31623.505

Case 3:18-cv-05005-RJB Document 78-2 Filed 05108118 Page 9 of 19 

(4th Cir. 2005); United States v. Morms, 268 F.3d 695,706-07 (9th Cir. 2001 ). The "commerce 

2 clause power itself justiiles a narrower view of state interests in the abstention context." 

3 Harper, 396 F.3d at 357. 

4 

5 

6 

7 

8 

9 

10 

ll 

12 

The commerce power plays a role in abstention analysis quite different from 

many of the other provisions of the Constitution. The dormant Commerce 

Clause demonstrates a difference of kind, not merely of degree. By its very 

nature, it implicates interstate interests. It protects all states by ensuring that no 

state ere cis the kind of barriers to trade and economic activi(v that threatened 

the survival of afledging country under the Articles of Confederation. 

Giving the power over commerce to Congress was easily seen as structurally 

creating an interstate interest ... Our "national common market" does not allow 

states even inadvertently- to impede commerce and sow disunity. 

When there is an overwhelming federal interest - an interest that is as much a 

core attribute of the national government as the list of important state interests 

are attributes of state sovereignty in or constitutional tradition- no state interest, 

for abstention purposes, can be nearly as strong at the same time!.] 

13 Harper, 396 F.3d at 355-56 (emphasis added; internal ellipses omitted); see also Lifo Partners, 

14 Inc. v. Morrison, 484 F.3d 284, 300-01 (4th Cir. 2007) (determining that the district court did 

15 not abuse its discretion in declining to abstain on Commerce Clause claim); Daniels 

16 Shmpsmart, Inc. v. Smith, No. 1:17-cv-403-LJO-SAB, 2017 U.S. Dist LEXTS 90840, at *11-

17 20 (E. D. Cal. June 13, 20 17) (finding that abstention on a Commerce Clause claim is generally 

l8 inappropriate under any of the recognized abstention doctrines). 

19 The Defendants' illegal actions have violated the United States Constitution and 

20 adversely impacted the economic and fiscal interests of states that seek to export commodities 

21 to foreign markets. The Defendants are trying to force on other stales their policy preferences 

22 regarding the use of coal as a source of fuel, and thus, they are impeding the fi·ee flow of 

23 commerce. Today it is coal, tomorrow it could be natural gas or non-organic produce. The 

24 interests of interior states in developing foreign trade are now subject to the barriers erected 

25 by the policy whims of states that control access to international markets through their ports. 

26 

AMICUS CURIAE BRIEF IN OPPOSlTlON TO DEFENDANTS' Page 9 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 

Dulliv-ant!11ou~cr!R»iley PC 

J700ScventhAWIJ\IC.Snil~ !8!() 

Seaulc,W~shhudou9H!O!-JJ<)7 

Tdc'jlhone 20b-2'12S9:10 
542 


31623.506

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 10 of 19 

This is clear!Jl a matter of "overwhelming federal interest" that is crucial to the trade and 

2 economic activity of this nation, and there is no state interest, tor purposes of abstention, that 

3 is comparable. Indeed, the Defendants cannot explain how a decision in any of the state 

4 proceedings would prevent them Ji·om continuing to engage in actions improper under the 

5 Commerce Clause. 

6 Consequently, this Court should not engage in an assessment of the different factors of 

7 either the Pullman or the Colorado River doctrines, as abstention on a Commerce Claim is 

8 inappropriate under both in these circumstances. Instead, the Court should hear Lighthouse's 

9 claims under the Commerce Clause on the merits. 

10 II. 

II 

Abstention is not proper under the Pullman doctrine. 

In Pullman, the United States Supreme Court counseled "abstention by federal courts 

12 in order to avoid decisions of fecleral constitutional questions when the case may be disposed 

13 of on questions of state law." Leonard Birdsong, Comity and Our Federalism in the Twenty14 First Century: The Abstention Doctrines Will Always Be With Us- Get Over It!, 36 Creighton 

15 L. Rev. 375, 388 (2003). "Pullman abstention 'is an extraordinary and narrow exception to the 

16 duty of a [d)istrict [c]ourt to adjudicate a controversy' that is properly before it." Porter v. 

17 Jones, 319 F.3d 483,492 (9th Cir. 2003) (quoting Canton v. Spokane Sch. Dist. No. 81, 498 

18 F.2d 840,845 (9th Cir. 1974)). A court should give a plaintiffs choice of a federal forum tor 

19 hearing and adjudication of their federal constitutional claims "due respect" and "Pullman 

20 abstention should rarely be applied." Porter, 319 F.3d at 492 (citing Zwickler v. Koota, 389 

21 u.s. 241, 248 (1967)). 

22 Pullman abstention is appropriate only if three mandatory criteria are established: "(I) 

23 the case touches on a sensitive area of social policy upon which the federal courts ought not 

24 enter unless no alternative to its adjudication is open, (2) constitutional adjudication plainly 

25 can be avoided if a definite ruling on the state issue would terminate the controversy, and (3) 

26 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Poge 10 Bulliv••IIJIIouscrlllallcy I'C 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv·OSOOS·RJB 
543 


31623.507

Case 3:18-cv-05005-RJB Document 78-2 Filed 05108118 Page 11 of 19 

the proper resolution of the possible determinative issue of state law is uncertain." Courthouse 

2 News Serv., 750 F.3d at 783-84 (quoting Porter, 319 F.3d at 492)). 

3 None of these criteria are satistied here. This case docs not involve "a sensitive area of 

4 social policy" which has been defined to include "land use planning, landlord-tenant 

5 relationships, foreclosure policy, and death penalty procedures." Daniels, 2017 U.S. Dist. 

6 LEXIS 90840, at *15, n.ll (listing cases). The Defendants characterize this as a land use case. 

7 (Def. Mot. at 17). This is incorrect. This is actually a Commerce Clause claim under the United 

8 States Constitution. The premise of this case is that the Defendants used their official positions 

9 to interfere with the permitting process. There is no constitutional challenge to the validity of 

10 Washington's rules and laws governing the issuance of permits for projects like the Terminal 

II Facility. The dispute does not touch on Washington's sovereign authority to regulate its lands, 

12 protect its environment, and the health and safety of its citizens. The dispute is that the 

13 Washington officials charged with enforcing those laws manipulated or simply ignored them 

14 in pursuit of their predetermined, personal agenda to block the export of coal through the State 

15 of Washington. Since a Commerce Clause challenge to the propriety of an administrative 

16 process is not "a sensitive area of social policy[,]" this alone makes Pullman abstention 

17 inappropriate in this case. 

18 Moreover, Defendants fail to satisfy the second and third criteria. The second criterion 

19 asks whether a "constitutional adjudication plainly can be avoided if a definite ruling on the 

20 state issue would terminate the controversy[.]" Porter, 319 F.3d at 492. The Defendants 

21 assume that the mere existence of related parallel claims in concurrent state proceedings is a 

22 sufticient basis for the federal court to abstain from addressing an important federal 

23 constitutional claim. (Def. Mot. at 18). In a series of conclusory statements, Defendants 

24 maintain that resolution of state law claims relating to the denied permits "would likely moot 

25 the constitutional challenges." (!d). The Commerce Clause claims derive from the Defendants' 

26 improper and extra-constitutional actions to block the transportation of coal across 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 11 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 

Hullivl!nrjllousct·fllHltcy JlC 

1700SevemhAwnue,Suit~ IIIlO 

sc~ul..-. w~shinJ!.wu9EtO!-Jl<J7 

T~tk!lh<'r"r20~">2nli<Jlo 
544 


31623.508

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 12 of 19 

Washington's border for export into foreign commerce. Defendants do not address how 

2 resolution of the state low issues would resolve the federal constitutional claim or prevent the 

3 Defendants from continuing to advance their anti-coal agenda through impermissible actions 

4 in future proceedings. A delinite resolution of the state law claims would not necessarily avoid 

5 a constitutional adjudication and, therefore, the second criterion does not support abstention. 

6 The third criterion crystalizcs the difiiculty with the Defendants' request for abstention: 

7 "[T]he proper resolution of the possible dete1111inative issue of' state law is uncertain[.]" Porter, 

8 319 F.3d at 492. "Where there is no ambiguity in the state statute, the federal court should not 

9 abstain but should proceed to decide the federal constitutional claim." Wisconsin v. 

10 Constantineau, 400 U.S. 433,439 (1971). Defendant has not identified "an unsettled issue of 

11 state or local law that would be determinative of the federal claims." Hancock v. City of 

12 Ridgefield, No. C09-5580BHS, 2009 U.S. Dist. LEXIS 117948, at *6 (W.D. Wash. 2009) 

13 (emphasis added); (See DeC Mot. at 16-24 (no state or local law has been identified)); see also 

14 Cingular Wireless, LLC v. Thurston Cty., 150 F. App'x 633, 635-36 (9th Cir. 2005) (finding 

15 that Pullman abstention is not appropriate absent "an unsettled area of state law"). Defendants 

16 do not identify any "unclear" or "unsettled" state law and, accordingly, they have not met the 

17 third criterion necessary for Pullman abstention. 

18 III. Abstention is not proper under the Colorado River doctrine. 

19 The Defendants also argue that this Court should abstain fi·om determining the 

20 Commerce Clause claim under the Supreme Court's decision in Colorado River, but 

21 "[g]enerally, as between state and federal courts, the mle is that 'pendency of an action in the 

22 state court is no bar to proceedings concerning the same matter in the Federal court having 

23 jurisdiction[.]" Colo. River, 424 U.S. at 817 (quoting McClellan v. Carland, 217\J.S. 268,282 

24 (1910)). "Only in rare cases will 'the presence of a concurrent state proceeding' permit the 

25 district court to dismiss a concurrent federal suit 'for reasons of wise judicial administration.'" 

26 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 12 llullivant!floust•r!ll•iley I'C: 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 
545 


31623.509

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 13 of 19 

R.R. St. & Co. v. Transp. Ins. Co., 656 F.3d 966, 977-78 (9th Cir. 2011) (quoting Colo. River, 

2 424 U.S. at 818)). 

3 In Colorado River, the federal government brought a federal court action against 

4 various water users seeking a declaration of rights on the Colorado River and several 

5 tributaries. Colorado River, 424 U.S. at 805. Colorado had already established water districts 

6 to adjudicate water rights in state courts. !d. at 804. The federal district court dismissed the 

7 action in deference to the state court proceedings. !d. at 806. The Supreme Court affirmed, 

8 stressing, in particular, the "highly interdependent" relationship between the claims in the two 

9 courts and federal policy, embodied in law, of avoiding the piecemeal adjudication of water 

10 rights. !d. at 819-20; see also R.R. St. & Co., 656 F.3d at 978. 

11 Given the factual context of this case, the Colorado River abstention doctrine is not 

12 applicable because "Colorado River was a state law case that the Government sought to have 

13 federally adjudicated ... [t]his case is the converse: a federal law case that the state seeks to 

14 have adjudicated in state court." Morros, 268 F.3d at 707. This case does not present a situation 

15 where "there is evidence of a strong federal policy that all claims should be tried in the state 

16 courts." Morros, 268 F.3d at 706-07. The federal adjudication of the Commerce Clause claims 

17 would not reach into an area of concern specific to the state; rather, it concerns an area of 

18 particular concern to the federal government: interstate commerce. Therefore, this is not a 

19 "rare" or "exceptional" case that calls H1r the federal court to abstain from adjudicating federal 

20 claims, and this Court should proceed to adjudicate the Commerce Clause claims. See Daniels 

21 Shwpsmart, 2017 U.S. Dist. LEXJS 90840, at *14-15 ("This case is premised on [a] claim, 

22 brought under a federal statute, that [ d]efendants violated the Commerce Clause, a provision 

23 of the federal constitution .... Consequently, Colorado River abstention has no applicability 

24 here.") (citations and quotation marks omitted). 

25 Considering the substance of the Defendants' motion also leads to the conclusion that 

26 abstention is nol appropriate under the circumstances. To determine whether the federal case 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 13 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3:18-cv-05005-RJD 

llullivantjllouser]Hail(')' flC 

llOOSe>~~lllhAvenuc,Suite !1!!0 

Se~HI~. WMhin~;t<m 9~lOJ.!J[)7 

TeleJlhnne 2002'l2R930 
546 


31623.510

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 14 of 19 

presents the "exceptional circumstances" justifying abstention under Colorado River, "the 

2 district court must carefully consider 'both the obligation to exercise jurisdiction and the 

3 combination of factors counseling against that exercise."' R.R. St. & Co., 656 F.3d at 978 

4 (quoting Colo. River, 424 U.S. at 818). The Ninth Circuit applies eight factors for assessing 

5 the appropriateness of a Colorado River stay or dismissal: 

6 

7 

8 

9 

10 

(I) which court first assumed jurisdiction over any property at stake; (2) the 

inconvenience of the federal forum; (3) the desire to avoid piecemeal litigation; 

(4) the order in which the forums obtained jurisdiction; (5) whether federal law 

or state law provides the rule of decision on the merits; (6) whether the state 

court proceedings can adequately protect the rights of the federal litigants; (7) 

the desire to avoid forum shopping; and (8) whether the state court proceedings 

will resolve all issues before the federal court. 

11 R.R. St. & Co., 656 F.3d at 978-79. Defendants conclude that factors 3, 4, 6, 7, and 8 weight 

12 in favor abstention. But neither these five factors, nor the other three, weigh in !avor of 

13 abstention. 

14 The Colorado River court was primarily concerned with avoiding piecemeal litigation. 

15 Morros, 268 F.3d at 706-07 (quoting Colo. River, 424 U.S. at 819). "Piecemeal litigation 

16 occurs when different tribunals consider the same issue, thereby duplicating efforts and 

17 possibly reaching different results ... [t]he mere possibility of piecemeal litigation docs not 

18 constitute an exceptional circumstance." R.R. St. & Co., 656 F.3d at 979 (internal quotations 

19 and citations omitted). 

20 

21 

22 

23 

24 

25 

26 

Colorado River does not say that every time it is possible for a state court to 

obviate the need for federal review by deciding !actual issues in a particular 

way, the federal court should abstain. As the Supreme Court has observed, such 

a holding would "make a mockery of the rule that only exceptional 

circumstances justify a federal court's refusal to decide a case in deference to 

the States." Rather, Colorado River stands for the proposition that when 

Congress has passed a law expressing a preference for unified state adjudication, 

courts should respect that preference. As the Third Circuit astutely observed, '•it 

is evident that the avoidance of piecemeal litigation factor is met, as it was in ... 

Colorado River itself: only when there is evidence of a strong federal policy that 

all claims should be tried in the state courts. 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 14 llnllivnntlllnuseo·jllnilcy rc 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 
547 


31623.511

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 15 of 19 

Morros, 268 F.3d at 706-07 (footnotes and internal quotation marks omitted). This case offers 

2 only the mere possibility of piecemeal litigation. There is no identified federal policy favoring 

3 the adjudication in the state courts of constitutional claims of state official misconduct in 

4 administrative permitting. 1 This factor strongly favors this Court exercising its jurisdiction to 

5 adjudicate these claims. 

6 The fourth factor is the order in which jurisdiction was obtained. The Defendants admit 

7 the measure of the weight given to this factor does not depend on whether the state was the 

8 first to exercise jurisdiction. (De f. Mot. at 22). Indeed, "[t]he mere existence of a case on the 

9 state docket in no way causes a substantial waste ofjudicial resources nor imposes a burden 

10 on the defendant which would justify abstention." Travelers lndem. Co. v. Madonna, 914 F.2d 

11 1364, 1370 (9th Cir. 1990). Further, abstention is particularly inappropriate when the federal 

12 proceeding, like this case, is brought under 42 U.S. C. ~ 1983. See Daniels Sharpsmart, 2017 

13 U.S. Dist. LEXIS 90840, at *19-20; see also Pue v. Sillas, 632 F.2d 74, 77 n.4 (9th Cir. 1980). 

14 Defendants acknowledge the progress of the state proceedings but do not offer any 

15 analysis of how that progress atlects the federal litigation. See Moses H. Cone Mem 'I Hosp. v. 

16 Mercury Constr. Corp., 460 U.S. I, 28 (1983) (stating that Colorado River abstention 

17 contemplates that "the parallel state-court litigation will be an adequate vehicle for the 

18 complete and prompt resolution of the issues ... [i]fthere is any substantial doubt as to this, it 

19 would be a serious abuse of discretion to grant the stay or dismissal at all"). A recitation of the 

20 progress of the state court proceedings tells us nothing about the adequacy of that vehicle to 

21 completely and promptly resolve those claims; nor does it address the consequences of this 

22 action being filed under 42 U.S.C. § 1983. Thus, this factor does not support abstention. 

23 

24 

25 1 For example, the Washington Shorelines Hearings Board's enabling statutes and administrative rules 

do not provide that body with jurisdiction to consider federal constitutional questions. See RCW 90.58 

26 etseq.,and WAC46l-8-315. 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 15 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 

Bullivant!llous~r!lb.!lry )'(: 

nuo Sewntl\ /w~nuc, Sui!c !1110 

Scanle.Wi!~hing!on JII!Ot·lW1 

rc!etlll<><lll2061'12!1'l30 
548 


31623.512

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 16 of 19 

Applying the sixth factor, courts are to ask whether the state court proceedings can 

2 adequately protect the rights of the federal litigants. Defendants interpret this to mean that so 

3 long as the state courts are competent to hear federal constitutional claims, then the factor 

4 weighs in favor of abstention. (Def. Mot. at 21 ). Defendants misinterpret the nature of the 

5 factor. The Ninth Circuit "has not applied this factor against the exercise of federal jurisdiction, 

6 only in favor of it." Travelers, 914 F.2d at 1370. "This factor, like choice of law, is more 

7 impm1ant when it weighs in favor of federal jurisdiction." ld. (quoting Bethlehem Contracting 

8 Co. v. Lehrer/McGovern, Inc., 800 F.2d 325, 328 (2d Cir. 1986); see also R.R. St. & Co., 656 

9 F.3d at 981. This factor is of no value to the Defendants' argument because to the extent the 

I 0 courts consider the factor, it is only to determine whether it weighs in favor of federal 

II jurisdiction, not against it. So, even if a party advocating abstention can show that the state 

12 tribunal can protect the rights of the federal plaintiiT, this factor is merely eliminated tl·om 

13 consideration; it lacks any weight. By asking this Court to weigh this factor in favor of 

14 abstention, Defendants eJT. 

15 The seventh factor addresses concerns over forum shopping. Naturally, the Defendants 

16 argue that this factor weighs in favor abstention because Lighthouse, allegedly, did not focus 

17 "its efforts in the forum that it deems most favorable, [but] has flung its claims across as many 

18 forums as possible in the hopes of finding a single sympathetic one ... [withl [tlhe result 

19 [being] vexatious litigation in which [Lighthouse] seeks to litigate tive lawsuits 

20 simultaneously." (Def. Mot. at 24). 

21 "In the Colorado River context, this Circuit has held that forum shopping weighs in 

22 favor of a stay when the party opposing the stay seeks to avoid adverse rulings made by the 

23 state court or to gain a tactical advantage fl·om the application offederal court rules." Travelers, 

24 914 F.2d at 1371. Defendants do not identify any adverse state court ruling Lighthouse is 

25 seeking to avoid or how the federal court rules could give Lighthouse a tactical advantage in 

26 this litigation. Further, that there are on-going state lawsuits has more to do with the fractured 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 16 llulli>Out[llouser[llnHeyl'C 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 
549 


31623.513

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 17 of 19 

pennitting process employed by the Stale of Washington than it does with any conscious 

2 choice by Lighthouse to seek out advantageous forums or to create vexatious litigation. Unless 

3 the Defendants are advocating that a party must give up certain due process rights to appeal 

4 adverse state rulings before filing an action in federal court, there is no evidence of forum 

5 shopping. 

6 The Jinal factor the Defendants contend weighs in favor of abstention is the eighth one 

7 in which this court should ask whether the state court proceedings will resolve all issues before 

8 it. Defendants argue that all they need show is that the state courts can adequately protect the 

9 rights of the litigants in the federal case for this factor to favor abstention. (Def. Mot. at 20-

10 21 ). But this factor favors abstention when the parallel state coutt proceeding will "ensure 

II comprehensive disposition oflitigation ... [ o ]therwise, a stay or dismissal will neither conserve 

12 judicial resources nor prevent duplicative litigation." R.R. St. & Co., 656 F.3d at 982-83. 

13 Defendants' argument on this factor rests solely on the existence of parallel state proceedings. 

14 There is no analysis of whether the state court proceedings will "ensure [a] comprehensive 

15 disposition of[the]litigation." Accordingly, this factor is of little weight. 

16 The ultimate "decision whether to dismiss a federal action because of parallel state17 court litigation hinges on a careful balancing of the [relevant] factors ... with the balance 

18 heavily weighted in favor of the exercise of jurisdiction." R.R. St. & Co., 656 F.3d at 983 

19 (quoting Moses H. Cone, 460 U.S. at \6). In this case, the balance weighs overwhelmingly in 

20 tavor of this Court exercising jurisdiction. 

21 I. CONCLUSION 

22 The Defendants failed to meet their burden to show that the Commerce Clause claims 

23 set forth in Lighthouse's Complaint are of the rare and extraordinary type that would support 

24 abstention. Accordingly, amicus curiae the States of Wyoming, Kansas, Montana, Nebraska, 

25 South Dakota, and Utah respectfully request that this Court deny the Motion for Abstention 

26 and proceed to adjudicate the Commerce Clause claims. 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: 18-cv-05005-RJB 

Page 17 Rulliv~tnt!flouscrjDniley P(: 

1100 S~vcnth Aveuue, Sui!~ U!lO 

S;:anlc,Washingwn'llllOI·IJ'J7 

Tc!cph<\00 2(1(,1\12.8930 
550 


31623.514

2 

3 

4 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 18 of 19 

DATED: May 8, 2018 

4~20-48R 1·3925.1 

SULLIVANT HOUSER BAILEY PC 

By Is/ Michael A. Guadagno 

Michael A. Guadagno, WSBA #34633 

E-mail: michael.guadagno@bullivant.com 

By Is/ Hol/v D. Brauchli 

Holly D. Brauchli, WSBA #44814 

E-mail: holly.brauchli@bullivant.com 

By Is! Rachel Tallon Revnolds 

Rachel Tallon Reynolds, WSBA #38750 

E-mail: raehel.reynolds@bullivant.com 

Erik E. Petersen, (Pro Hac Vice Admission 

Pending) 

Michael M. Robinson, (Pro Hac Vice Admissio 

Pending) 

Senior Assistant Attorneys General 

Wyoming Attorney General's Office 

2320 Capitol Avenue 

Cheyenne, WY 82002 

(307) 777-6946 (phone) 

(307) 777-3542 (fax) 

erik.petersen@wyo.gov 

mike.robinson@wyo.gov 

Attorneys for the State of Wyoming 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 18 Bulliv•ntiHnuscriBaHcy I'C 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAll 

No.: 3: 18-cv-05005-R.JB 
551 


31623.515

Case 3:18-cv-05005-RJB Document 78-2 Filed 05/08/18 Page 19 of 19 

CERTIFICATE OF SERVICE 

2 The undersigned attorney certities that on the 8th day of May, 2018, l electronically 

3 tiled the foregoing with the Clerk of' the Court using the CM/ECF system which will send 

4 notification of such filing to all counsel on record in the matter. 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Is! Rachel Tallon Revnolds 

Rachel Tallon Reynolds, WSBA #38750 

E-mail: rachel.reynolds@bullivant.com 

1700 Seventh Avenue, Suite 1810 

Seattle, WA 98101 

Telephone: 206-292-8930 

AMICUS CURIAE BRIEF IN OPPOSITION TO DEFENDANTS' Page 19 IJullivllufiHousc!iH:Iilcy P( 

MOTION FOR ABSTENTION BY WYOMING, KANSAS, MONTANA, 

NEBRASKA, SOUTH DAKOTA AND UTAH 

No.: 3: I 8-cv-05005-RJB 

l700S:cwuth<\,cnuc,Suitc!SIO 

Scanle. Wa.~\!ln~ton ~~101-13'17 

!'clcplwne2llil292H'H(l 
552 


31623.516

August 15, 2018 

The Honorable Paul Ryan 

Speaker of the House 

U.S. House of Representatives 

H-232 U.S. Capitol 

Washington, DC 20515 

The Honorable Nancy Pelosi 

Minority Leader 

U.S. House of Representatives 

H-204 U.S. Capitol 

Washington, DC 20515 

The Honorable Mitch McConnell 

Majority Leader 

U.S. Senate 

S-230 U.S. Capitol 

Washington, DC 20510 

The Honorable Charles Schumer 

Minority Leader 

U.S. Senate 

419 Hart Senate Office Building 

Washington, DC 20510 

Dear Senators McConnell and Schumer, and Representatives Ryan and Pelosi: 

The Environmental Council of the States (ECOS), the Association of Clean Water Administrators 

(ACWA), and the Association of State Wetland Managers (ASWM) urge Congress to preserve states' 

ability to protect water quality under Section 401 of the Clean Water Act. Our members believe that 

Section 401 is an important tool states can use to protect their waters for the benefit of their citizens. 

Congress built the Clean Water Act on the foundation of cooperative federalism-the principle that 

states are best positioned to implement federal environmental laws because of their expertise on local 

conditions and concerns. The Act therefore allows states to take on the legal authority to protect, restore, 

develop, and use their water resources. It also creates the Section 40 I certification process, which allows 

states to review federal agencies' permitting decisions to ensure that permitted activities do not lead to 

violations of a water quality standard. This makes sense; states are best situated to determine whether a 

federally permitted activity will fully protect designated uses because states comprehensively manage 

water quality and water quantity within their borders. 

For nearly 50 years, states have used Section 40 l authority to review the water quality impact of federal 

licenses and permits, impose water quality conditions where necessary, and, in rare cases, withhold 

water quality certification entirely. States recognize that regulated entities depend on etlicient and timely 

responses to certification requests, but states sometimes face challenges in issuing these responses. One 
553 


31623.517

source of delay is resource limitations; funding for Section 40 I programs has not grown at the same 

pace as the frequency and complexity of certification requests. But delays also frequently occur when 

state agencies lack proper access to the information they need to evaluate resource impacts and 

guarantee compliance with state water quality standards. Federal agencies and permit applicants can also 

cause delays when they do not adequately engage states during the scoping phase of infrastructure 

projects. Meaningful early engagement gives states a chance to raise water quality concerns about 

projects during the planning process, and gives federal agencies and private parties a chance to address 

those concerns in ways that facilitate the certification process. Early engagement also ensures that states 

have timely access to the information they need to make informed certification decisions. 

In recent years, states, regulated communities, and others have also raised concerns about the ways in 

which the Section 40 I certification process has been used in the context of certain energy related 

development projects. While these concerns are recognized, to be fair, it should also be recognized that 

states only rarely deny permit certifications. Congress should exercise caution when considering 

proposals to altering its scope or substance. Any alteration of Section 40 I should be done with great care 

and caution to avoid unintended consequences for states, and done in such a manner that preserves 

states' rights to use Section 401 authority to protect their waters from the impact of a wide range of 

federal permitting decisions, including: 

Clean Water Act Section 404 permits for discharge of dredged or fill material 

FERC licenses for hydropower 

Permits issued under sections 9 and 10 of the Rivers and Harbors Act 

National Pollutant Discharge Elimination System (NPDES) permits in states where U.S. EPA 

administers the permitting program and 

Licenses from the Nuclear Regulatory Commission. 

As Congress considers legislation that would modify the certification process, we ask that it work with 

ECOS and the states to ensure that any changes respect principles of cooperative federalism. 

If you would like to discuss this further, please feel free to contact us. Thank you for your attention. 

Sincerely, 

Sambhav (Sam) Sankar 

Executive Director, ECOS 

ssankar@ecos.org 

202.266.4929 

Julia Anastasio 

Executive Director, ACW A 

janastasio@acwa-us.org 

202.756.0600 

Jeanne Christie 

Executive Director, ASWM 

jeanne.christie@aswm.org 

207.892.3399 
554 


31623.518

FOR IMMEDIATE RELEASE 

August 1, 2018 

Contact Toby Mack (202) 870-7715 

info@eeia.org 

Reform Legislation Will Prevent Pipeline Permitting Abuse by States 

Legislation will make it harder for states to slow or stop pipeline projects by abusing the water 

quality permitting process 

Washington, DC- The Energy Builders coalition on Tuesday announced its support for legislation just 

introduced in the U.S. Senate that will make it harder for states to abuse the water quality permitting 

process to slow or stop pipeline projects based on unrelated political or ideological grounds. 

The Water Quality Certification Improvement Act of 2018 clarifies the Federal Water Pollution Control 

Act to ensure that state water quality permitting reviews of a proposed project are limited to direct 

water quality impacts of that project, and that decisions to grant or deny a permit must be made based 

on water quality reasons only. 

The measure was introduced by four energy state Senators led by John Barrasso (R-WY), chairman ofthe 

Senate Committee on Environment and Public Works, along with Shelley Moore Capito (R-WV), Jim 

lnhofe (R-OK), and Steve Daines (R-MT). In a Committee release, Senator lnhofe said "States hostile to 

fossil fuels have been taking advantage of loopholes in the Clean Water Act 401 certification process to 

block projects they simply don't like, circumventing the needs and interests of other states and 

communities. There is no better example of that than how the Northeast corridor is forced to import 

LNG from Russia because they lack the pipeline infrastructure to transport natural gas produced in 

America." 

Committee Chairman Barrasso added, "The water quality certification process is being abused by a few 

states in order to delay important projects. The state of New York has taken similar steps to slow the 

construction of natural gas pipelines. This kind of obstruction is about politics, not water quality. This 

legislation returns the process to what it was originally designed for- protecting America's water." 

Toby Mack, President of the Energy Equipment and Infrastructure Alliance, announced that EEIA and its 

Energy Builders coalition have made passage of the bill a top legislative priority for the current session 

of Congress. In announcing EEIA's support 1 Mack stated that" America1

S energy infrastructure workers 

and the businesses that build and support pipeline projects have too often seen their jobs and 

investments threatened by states whose leaders are simply opposed to building needed energy 

infrastructure. These projects must be built to deliver reliable and affordable energy to their own 

citizens and those in surrounding states that would be served by proposed pipelines." 

# # # 

EEIA's Energy Builders coalition consists of companies and trade organizations of businesses and 

workers that build and provide equipment, supplies and services for pipeline projects. 
555 


31623.519

September 20, 2018 

The Honorable John Barrasso 

Chairman 

DONALD F. SANTA 

PRESIDENT & CEO 

Committee on Environment and Public Works 

United States Senate 

Washington, DC 205\0 

Re: Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water 

Quality Certification Improvement Act of 2018 

Dear Chairman Barrasso: 

On behalf of the Interstate Natural Gas Association of America (INGAA), thank you for your 

efforts to bring clarity to section 401 of the Clean Water Act through both your legislation and the 

committee hearing process. 

Section 40 I is being used by those who oppose energy infrastructure development as a tool to 

disrupt or delay projects, sometimes using justifications unrelated to water quality. S. 3303, the 

Water Quality Certification Improvement Act of 2018, would restore the cooperative federalism 

intended by Congress by providing much-needed clarity on the appropriate federal and state roles 

under section 40 l. The section 40 I process also can be improved by means of administrative 

reforms that can be implemented by the Environmental Protection Agency (EPA). We appreciate 

Acting Administrator Wheeler's commitment to work with you in achieving these refom1s. 1 

The testimony provided to the Environment and Public Works Committee during the August 16, 

2018, legislative hearing on S. 3303 identified many of the challenges associated with section 401. 

Still, this testimony did not highlight one of the primary sources of confusion in implementing 

section 40!, that being EPA's Interim 2010 handbook. 2 This EPA guidance document, which was 

never finalized, conflicts directly with both the statute and recent case law from the U.S. Courts of 

Appeals for the D.C. Circuit and the Second Circuit.3 Despite this, some agencies implementing 

the section 40 I process consider the interim handbook to be authoritative. This inconsistency 

warrants examination as part of your committee's oversight of the section 401 process. 

1 Senate Committee on Environment and Public Works, Examining EPA's Agenda: Protecting the Environment and 

Allowing America's Economy to Grow, August I, 2018. 

2 Clean Water Act Section 401 Water Quality Certification: A Water Quality Protection Tool for States and Tribes, 

April2010, https://www.epa.gov/sites/production/ftles/2016-ll/documents/cwa 401 handbook 2010.pdf. 

3 See New York State Department of Environmental Conservation v. FERC, 884 F.3d 450 (2018); Millennium 

Pipeline Co. v. Seggos, 860 F.Jd 696 (2017). 

INTERSTATE NATURAL GAS ASSOCIATION OF AMERICA 

20 F STREET, NW, SUITE 450 ·WASHINGTON, DC 20001 
556 


31623.520

INGAA appreciates your attention to this important issue. We request that this letter be submitted 

to the record for the August 16 legislative hearing on S. 3303. 

Respectfully, 

Donald F. Santa 
557 


31623.521

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

The Honorable Robert J. Bryan 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

LIGHTHOUSE RESOURCES INC.; 

LIGHTHOUSE PRODUCTS, LLC; LHR 

INFRASTRUCTURE, LLC; LHR COAL, LLC; 

and MILLENNIUM BULK TERMINALSLONGVIEW, LLC, 

Plaintiffs, 

v. 

JAY INS LEE, in his official capacity as 

Governor of the State of Washington; MAlA 

BELLON, in her official capacity as Director of 

the Washington Department of Ecology; and 

HILARY S. FRANZ, in her official capacity as 

Commissioner of Public Lands, 

Defendants. 

NO. 3:18-cv-5005-RJB 

BRIEF OF THE NATIONAL MINING 

ASSOCIATION, NATIONAL 

ASSOCIATION OF MANUFACTURERS, 

AMERICAN FARM BUREAU 

FEDERATION, AND AMERICAN FUEL 

& PETROCHEMICAL 

MANUFACTURERSASAMICJCUJUAE 

IN OPPOSITION TO DEFENDANTS' 

MOTION FOR PARTIAL DISMISSAL 

AND ABSTENSION 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSJON (NO. 3:18-cv-5005-RJB) 

BYHNJ<:S t KELLER • CHOMWELL LI.P 

38TH FLOOK 

lOOOStCONDAVENllE 

SF.ATTI.E, WA."'HINGTON 9810<1 

(1!06) 622-2000 
558 


31623.522

2 

3 

4 

6 

7 

8 

TABLE OF CONTENTS 

Table of Authorities ............................................................................................................... ii 

Interest of the Amici Curiae ............................................................................................................. 1 

Introduction ...................................................................................................................................... 2 

Argument ........................................................................................................................................ .3 

I. State Interference With Foreign Trade Undermines a Uniform Foreign 

Policy and Is Harmful to the National Economy ............................................................. .3 

A. Trade Plays an Important Role in America's Foreign Policy .................................. .3 

B. State Interference Impedes Federal Efforts to Establish and Implement 

Foreign Trade Policy ................................................................................................. 5 

II. Vigorous Enforcement of the Commerce Clause Is Essential to the 

9 Executive's Exclusive Foreign Policy Prerogatives ......................................................... 6 

10 A. The Foreign Commerce Clause Prohibits States From Impairing 

Federal Policy Uniformity in Foreign Commerce, or Imposing Burdens 

11 on Foreign Commerce That Outweigh Any Local Benefit. ...................................... 6 

12 

13 

14 

15 

B. Defendants' Conduct Violates These Principles ....................................................... 8 

I. Defendants' Actions Interfere With the Uniformity of Federal 

Policy ................................................................................................................. 9 

2. Defendants' Actions Impose Burdens That Far Outweigh Any 

Local Benefits .................................................................................................. 1 0 

Ill. Dismissing the Case Would Give States a Green Light to Interfere With 

16 Foreign Trade Policy in Other Contexts ......................................................................... 13 

1

7 Conclusion ..................................................................................................................................... 15 

18 

19 

20 

21 

22 

23 

24 

25 

26 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- i 

BYRNES • KF.LLER • CROM"\VE LL LT .P 

38TH FLOOR 

1000 SECOND AVENUE 

SEATTI.E, WASHII-IGTON 98104 

(206)622-2000 
559 


31623.523

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

TABLE OF AUTHORITIES 

Cases 

Barclays Bank PLC v. Franchise Tax Bd of Cal., 

512 u.s. 298 (1994) ................................................................................................................... 7 

Bd. of Trustees v. United States, 

289 u.s. 48 (1933) ..................................................................................................................... 6 

Brown-Forman Distillers Corp. v. N.Y. State Liquor Auth., 

476 u.s. 573 (1986) ................................................................................................................... 7 

Dep 't of Revenue of Ky. v. Davis, 

553 u.s. 328 (2008) ................................................................................................................. 11 

.Japan Line, Ltd v. Los Angeles Cty., 

441 u.s. 434 (1979) ........................................................................................................... 6, 8, 9 

Keating v. FERC, 

927 F.2d 616 (D.C. Cir. 1991) ................................................................................................. 11 

Kraft Gen. Foods Inc. v. Iowa Dep 't of Revenue & Fin., 

505 u.s. 71 (1992) ................................................................................................................. 7, 8 

Nat'/ Foreign Trade Council v. Natsios, 

181 F.3d 38 (1st Cir. 1999) ...................................................................................................... 10 

Or. Waste Sys., Inc. v. Dep 't of Envtl. Quality, 

511 u.s. 93 (1994) ..................................................................................................................... 7 

Pac. Nw. Venison Producers v. Smitch, 

20 F.3d I 008 (9th Cir. 1994) ..................................................................................................... 8 

Pharm. Research & Mfrs. of Am. v. Cty. of Alameda, 

768 F.3d 1037 (9th Cir. 2014) ................................................................................................... 7 

Piazza's Seafood World, LLC v. Odom, 

448 F.3d 744 (5th Cir. 2006) ..................................................................................................... 8 

Rapanos v. United States, 

54 7 U.S. 715 (2006) (plurality opinion) .................................................................................. 12 

United Haulers Ass 'n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 

550 u.s. 330 (2007) ................................................................................................................. 10 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- ii 

BYRNES t KELLER t CROM'-l'ELL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SEATTLE, WA.'liHN01'0N 98104 

(206.622-2000 
560 


31623.524

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

!3 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

United States v. Marathon Dev. Corp., 

867 F.2d 96 (1st Cir. 1989) ...................................................................................................... 11 

United States v. Puerto Rico, 

721 F.2d 832 (1st Cir.1983) ..................................................................................................... 11 

Wardair Canada, Inc. v. Fla. Dep 't of Revenue, 

477 U.S. I (1986) ....................................................................................................................... 7 

Statutes, Rules and Regulations 

33 u.s.c. § 1251(b) ....................................................................................................................... ll 

33 u.s.c. § 134! ............................................................................................................................ 11 

33 U.S.C. § 1341(a) ....................................................................................................................... 12 

42 U.S.C. § 13367(a) ....................................................................................................................... 4 

Other Authorities 

Alan I. Abramowitz & Steven Webster, The Rise of Negative Partisanship and the 

Nationalization of US. Elections in the 21st Century, 41 Electoral Stud. 12 

(2016) ....................................................................................................................................... 14 

Bureau of Econ. Analysis, Gross Domestic Product: Percent change from 

preceding period, perma.cc/8WJR-MBYZ ................................................................................ 4 

Concerning the Federal Coal Moratorium, Order No. 3348 (Mar. 29, 2017), 

perma.cc/HZW5-3RYU ............................................................................................................. 4 

Craig S. Hakkio & Jun Nie, Fed. Reserve Bank of Kansas City, Implications of 

Recent US. Energy Trends for Trade Forecasts 5, perma.cc!V3FC-24W8 .............................. 3 

Ernst & Young, US. Coal Exports: National and State Economic Contributions 

(May 20 13 ), perma.cc/6VE6-AKPL ......................................................................................... .4 

Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not Ideology: A Social 

Identity Perspective on Polarization, 76 Pub. Opinion Q. 405 (20 12) .................................... 14 

Jeffrey M. Jones, Gallup, Red States Outnumber Blue for First Time in Gallup 

Tracking (Feb. 3, 20 16), perma.cc/K35X-BBKE .................................................................... 14 

Nat'l Ass'n of Mfrs., United States Manufacturing Facts 2, perma.cc/U8A VNGVT) ....................................................................................................................................... 5 

Office of the President, National Security Strategy of the United States of America 

23 (Dec. 2017), perma.cc/QLU5-WR4J .................................................................................... 5 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJIJ)- iii 

BYRNES t KELLER t CROM"''F.LL LLl' 

38Tl1FLOOR 

JOOO SECONDAVENllE 

SEATTLE, WASHINGTON 98104 

(206)6Z2-ZOOO 
561 


31623.525

2 

4 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Office of the U.S. Trade Rep., 2018 Fact Sheet: USTR Success Stories: Opening 

Markets for U.S. Agricultural Exports, perma.cc/G8WF-U8DY .............................................. 5 

Office of the U.S. Trade Rep., Benefits of Trade, perma.cc/_ 4UP6-TUW7) .................................. 3 

Press Release, U.S. Dep't oflnterior, Secretary Zinke Takes Immediate Action to 

Advance American Energy Independence (Mar. 29, 2017), perma.cc/F5NHPK6L .......................................................................................................................................... 5 

LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 6-21 (2d ed. 1988) ............................... 8 

U.S. Army Corps ofEng'rs, Permit Requirements for the State of Illinois I, 

perma.cc/6T6W-E5YM ........................................................................................................... 13 

U.S. Energy Information Admin., U.S. Coal Exports, perma.cc/E4GA-KTKG ............................ .4 

Qinnan Zhou, The U.S. Energy Pivot: A New Era for Energy Security in Asia?, 

Woodrow Wilson Int'l Center for Scholars New Security Beat, Mar. 26,2015, 

perma.cc/5CXZ-LNKT .............................................................................................................. 5 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITfON TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB) · iv 

BYRNES t KELLER t CROM~"ELL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SEA'M'I...E, WASHINGTON 9810.f, 

(Z06)622-:1.000 
562 


31623.526

2 

INTEREST OF THE AMICI CURIAE 

The National Mining Association (NMA) is a national trade association whose members 

produce most of America's coal, metals, and industrial and agricultural minerals. Its membership 

4 also includes manufacturers of mining and mineral processing machinery and supplies, 

transporters, financial and engineering firms, and other businesses involved in the nation's 

6 mining industries. 

7 The National Association of Manufacturers (NAM) is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector 

9 and in all 50 states. Manufacturing employs more than 12 million men and women, contributes 

10 $2.25 trillion to the U.S. economy annually, has the largest economic impact ofany major sector 

II and accounts for more than three-quarters of all private-sector research and development in the 

12 nation. The NAM is the voice of the manufacturing community and the leading advocate for a 

13 policy agenda that helps manufacturers compete in the global economy and create jobs across the 

14 United States. 

15 The American Farm Bureau Federation (AFBF) is a voluntary general farm organization 

16 formed in 1919 to protect, promote, and represent the business, economic, social, and educa17 tiona! interests of American farmers and ranchers. It is headquartered in the District of Columbia. 

18 Through its state and county Farm Bureau organizations, AFBF represents about 6 million 

19 member families in all 50 states and Puerto Rico. 

20 The American Fuel & Petrochemical Manufacturers (AFPM) is a national trade associ21 ation whose members comprise virtually all U.S. refining and petrochemical manufacturing 

22 capacity. AFPM's members supply consumers with a wide variety of products that are used daily 

23 in homes and businesses. They also rely on a secure, uninterrupted, and plentiful supply of raw 

24 materials to produce products that are consumed both here and abroad. 

25 Amici have a significant interest in this case because Washington's actions to block con26 struction of a new coal export facility at the Millennium Bulk Terminal threaten the United 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS" MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- 1 

BYRNES t KELLER t CROM\VELL LLP 

38TUFLOOR 

1000 St::COI'oiDAVENUE 

SEATTLE, WASHINGTON 98104. 

(206) 622-2000 
563 


31623.527

States' energy economy and will set a harmful precedent that encourages other states to interfere 

2 with national trade policy that they oppose, in violation of the Constitution's command that the 

3 federal government be the sole representative of the nation in trade and foreign affairs. Denial of 

4 relief would, moreover, open the floodgates to local obstruction of national foreign policy 

initiatives with which coastal states disagree.' 

6 INTRODUCTION 

7 Defendants in this case-local policymakers in the State of Washington-have steadS fastly refused to allow construction of a coal export facility at the Millennium Bulk Terminal at 

9 the Port of Longview. They have done so not to protect legitimate local interests, but because 

I 0 they oppose the use of coal as an energy source throughout the world. There is nothing local 

II about it. Their avowed goal is, in other words, to inhibit the exportation of American coal and to 

12 slow its consumption in global markets. 

13 In attempting to control American foreign policy in this way, Defendants have over14 stepped the constitutional limitations on their authority. The Constitution allocates exclusive 

15 authority over international trade to the federal government alone. And it does so for good 

16 reason: International trade not only impacts the economy of the entire nation, but it is a critical 

17 tool-both a carrot and stick-in the executive's dealings with foreign allies and adversaries 

18 alike. The common-sense corollary of the Constitution's allocation of exclusive authority to the 

19 federal government over foreign commerce, moreover, is its denial of that authority to the states, 

20 which may not regulate in ways that either interfere with the uniformity of federal policy 

21 regarding foreign trade or impose burdens on foreign trade that outweigh local benefits. 

22 Defendants' actions here violate both of those proscriptions. First, their attempts to block 

23 construction of a major export facility have undeniably undermined the uniformity of federal 

24 trade policy, which is to encourage the export of coal, both for the benefit of American producers 

25 

26 ' No counsel for a party authored this brief in whole or in part, and no person other than the 

amici curiae, their members, or their counsel contributed money that was intended to fund the 

preparation or submission of this brief. 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ARSTENSION (NO.3: I 8-cv-5005-RJB)- 2 

BYRNES+ KELLER t CHOMV~'ELL LLT> 

38TH FUXlR 

1000 SECOND AVEN1.1E 

S&Pt.TT'LE, WAS1fl1'10TON 98104 

(206}62Z·2000 
564 


31623.528

(who rely on exports for billions of dollars in job-creating income) and of the United States' 

2 allies in Asia (who rely on American exports as a critical source of energy). Second, Defendants' 

3 actions fail the Commerce Clause's so-called Pike balancing test because there is no appreciable 

4 local benefit of their conduct. Rather, defendants are overtly promoting their own, preferred 

international-level environmental policy interests in preventing the use of coal for energy. 

6 This Court should deny the pending motion and enjoin Defendants' attempts to obstruct 

7 the federal government's policy of encouraging energy exports. To do otherwise would be an 

8 invitation to states across the country to begin legislating their own foreign policy, in flat 

9 contradiction of the Framers' plans and Supreme Court's teachings and disrupting national and 

I 0 international trade policies of all sorts. 

II ARGUMENT 

12 I. State Interference With Foreign Trade Undermines a Uniform Foreign Policy and 

Is Harmful to the National Economy, 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

A. Trade Plays an Important Role in America's Foreign Policy. 

International trade is the lifeblood of the American economy. As the world's largest 

exporter and importer of goods and services (see Office of the U.S. Trade Rep., Benefits of 

Trade, perma.cc/4UP6-TUW7), the United States depends on trade relationships and trade 

facilities to help American goods find their ways to buyers around the world and to bring critical 

resources and investment to the United States. As of2013, America's exports of goods supported 

nearly 5,600 jobs per $1 billion exported, including an estimated 25% of all manufacturing jobs. 

!d. These benefits enrich Americans in every industry across the country. 

The United States' abundant energy resources are critical to the country's export trade. 

Energy exports have accounted for a "substantial part" of U.S. economic growth in recent years, 

contributing approximately 10% of the nation's annual real GOP growth from 2006 to 2013. See 

Craig S. Hakkio & Jun Nie, Fed. Reserve Bank of Kansas City, Implications of Recent U.S. 

Energy Trends for Trade Forecasts 5, perma.ccN3FC-24W8; Bureau of Econ. Analysis, Gross 

Domestic Product: Percent change from preceding period, perma.cc/8WJR-MBYZ. American 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO.3: I 8-cv-5005-RJB)- 3 

BYRNES t KELLER t CROMWELL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SEATTLE, WASHINGTON 98104 

(206) 622~2000 
565 


31623.529

energy exports have been fueled in no small part by a growth in coal exports, which grew by 

2 68% between 2016 and 2017 alone. See U.S. Energy Information Admin., U.S. Coal Exports, 

perma.cc/E4GA-KTKG. For every million short tons of U.S. coal exported, an estimated 1,320 

4 jobs are created, and expenditures on downstream transportation services related to coal exports 

5 supported another 8,850 jobs at transportation companies in 20 II. Ernst & Young, U.S. Coal 

6 Exports: National and Stale Economic Contributions at i-ii (May 2013), perma.cc/6VE6-AKPL. 

7 It is no surprise, therefore, that the proposed coal export facility at the Millennium Bulk 

8 Terminal would be a substantial economic boon to several states and, indirectly, to the rest of the 

9 country. The increased coal exports made possible by the new facility would generate more than 

10 one hundred million dollars in tax revenue for Washington State and its localities (Compl. ~ 73); 

II millions of dollars in new revenue for Montana and Wyoming (id n 76-77); and support 

12 thousands of jobs in those states and around the country (id. n 72, 75). Benefits such as these are 

13 the reason why Congress has made it a national priority for more than two decades to increase 

14 exports of American-mined coal and directed the Commerce Department to prepare plans for 

15 encouraging these exports. See 42 U.S.C. § 13367(a). 

!6 In addition to its economic benefits, America's international trade is also an essential 

17 foreign policy tool for the United States to advance its interests around the world. By providing 

18 economic assistance to our allies, while denying it to our adversaries, the United States can 

19 strengthen the community of democratic nations economically and foster ties of cooperation and 

20 respect between those nations and the United States. 

21 The current administration has made energy exports a key foreign policy focus. The 

22 administration's efforts have been particularly significant in the coal sector, where the 

23 Department of the Interior has moved to facilitate more leases of federal land for coal 

24 development (see Concerning the Federal Coal Moratorium, Order No. 3348 (Mar. 29, 2017), 

25 perma.cc/HZW5-3RYU), with the express goal of "assist[ing] our allies with their energy 

26 needs." Press Release, U.S. Dep't of Interior, Secretary Zinke Takes Immediate Action to 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ADSTENSION (NO.3: 18-cv-5005-RJB)- 4 

BYRNES • KELLER + CROMWELL T.LP 

38TH FLOOR 

1000 SECOND AVENUE 

SEATTI..E, WASHINGTON 98104 

(20&)022-2000 
566 


31623.530

Advance American Energy Independence (Mar. 29, 2017), perma.cc/F5NH-PK6L See also 

2 Compl. n 192-205. These energy exports are critically needed in Asia, where allies such as 

Japan and South Korea have strong demand for American energy. See, e.g., Qinnan Zhou, The 

4 U.S. Energy Pivot: A New Era for Energy Security in Asia?, Woodrow Wilson lnt't Center for 

Scholars New Security Beat, Mar. 26, 2015, perma.cc/5CXZ-LNKT. And in order to reach Asian 

6 markets, coal producers must have access to export facilities on the West Coast-which is why 

7 the administration's current National Security Strategy states that it is critical for the United 

States to give "continued support of private sector development of coastal terminals" for energy 

9 exports. Office of the President, National Security Strategy of the United States of America 23 

10 (Dec. 2017), perma.cc/QLU5-WR4J. 

II Yet the implications of Defendants' conduct reach far beyond the energy industry. 

12 Numerous other American industries rely on foreign trade-including agriculture, which has 

13 posted an annual trade surplus for over 50 years and contributed more than $138 billion to 

14 American exports in 2017 (see Office of the U.S. Trade Rep., 2018 Fact Sheet: USTR Success 

15 Stories: Opening Markets for U.S. Agricultural Exports, perma.cc/G8WF-U8DY); and the 

16 manufacturing sector, which produced $1.2 trillion in exports in 2016 (see Nat'! Ass'n ofMfrs., 

17 United States Manzifacturing Facts 2, perma.cc!U8A V -NGVT). Each of these trade-reliant 

18 industries makes critical contributions to the American economy and to relationships with 

19 America's trading partners, and the United States has a strong interest in ensuring that exports in 

20 these sectors remain strong. 

21 

22 

23 

24 

25 

26 

B. State Interference Impedes Federal Efforts to Establish and Implement 

Foreign Trade Policy. 

Against this backdrop, it is not difficult to see how and why interference like Defendants' 

undermines the federal government's plenary control over the nation's trade policy. 

"Foreign commerce," as the Supreme Court has repeatedly recognized, "is pre-eminently 

a matter of national concern." Japan Line, Ltd v. Los Angeles Cty., 441 U.S. 434, 448 (1979). 

"In international relations and with respect to foreign intercourse and trade, the people of the 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- 5 

BYRNES • KELLER • CN0}1WELL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SF..ATTLE, WASIUNOTON 9810~ 

(206)622·2000 
567 


31623.531

United States act through a single government with unified and adequate national power." Bd. of 

2 Trustees v. United States, 289 U.S. 48, 59 (1933). The rationale for this approach is self-evident: 

The federal government, which comprises members from every state and an executive elected by 

4 the nation as a whole, is best positioned to balance the interests of different states and regions 

and to balance domestic goals with foreign policy objectives. The Constitution's design reflects 

6 this clear preference for federal policymaking in the realm of foreign trade. And while it grants 

7 Congress power to regulate both domestic and foreign commerce, "there is evidence that the 

8 Founders intended the scope of the foreign commerce power to be the greater" of the two. Japan 

9 Line, 441 U.S. at 448 & n.12 (collecting authorities). 

I 0 Yet it would be impossible for the federal government to speak with one voice on behalf 

II of the nation in foreign affairs and international trade if individual states could adopt their own 

12 policies that contradict or otherwise interfere with federal policy. When states attempt to 

13 influence international affairs through their own regulatory efforts and pursuing their own local 

14 agendas, they at best create legal uncertainty and burdens for international partners. At worst, 

15 they frustrate the federal government's efforts to implement its foreign policy altogether-just as 

16 the state of Washington has sought here to do. 

17 II. Vigorous Enforcement of the Commerce Clause Is Essential to the Executive's 

Exclusive Foreign Policy Prerogatives. 18 

19 

20 

21 

22 

23 

24 

25 

26 

To prevent states from interfering with federal trade policy, the Commerce Clause (which 

entrusts Congress with power to regulate foreign and interstate trade) has been held to preclude 

state regulation that discriminates against or burdens foreign commerce. Washington's actions, 

which run afoul of that prohibition, demonstrate the importance of vigorous enforcement of the 

Constitution's exclusive commitment of the foreign commerce power to the federal government. 

A. The Foreign Commerce Clause Prohibits States From Impairing Federal 

Policy Uniformity in Foreign Commerce, or Imposing Burdens on Foreign 

Commerce That Outweigh Any Local Benefit. 

The Supreme Court has "held on countless occasions that, even in the absence of specific 

action taken by the Federal Government to disapprove of state regulation implicating interstate 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ADSTENSION (NO.3: 18-cv-5005-RJB)- 6 

BYRNES • KELLER t CRO.M"\\'ELL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SF.AM'l.E, WASHINGTON 98104 

(Z06)G22-2000 
568 


31623.532

or foreign commerce, state regulation that is contrary to the constitutional principle of ensuring 

2 that the conduct of individual States does not work to the detriment ofthe Nation as a whole, and 

3 thus ultimately to all of the States, may be invalid under the unexercised Commerce Clause." 

4 Wardair Canada, Inc. v. Fla. Dep't of Revenue, 477 U.S. I, 7-8 (1986). 

In its domestic-trade dormant Commerce Clause cases, "[t]he Supreme Court 'has 

6 adopted ... a two-tiered approach to analyzing state economic regulations under the Commerce 

7 Clause."' Pharm. Research & Mfrs. ofAm. v. Cty. of Alameda, 768 F.3d 1037, 1039-40 (9th Cir. 

8 2014) (quoting Brown-Forman Distillers Corp. v. NY. State Liquor Auth., 476 U.S. 573, 578-79 

9 (1986)). First, when a state law discriminates against interstate or foreign commerce by treating 

10 in-state or in-country economic interests better than out-of-state or out-of-country economic 

II interests, the law "is virtually per se invalid." Or. Waste Sys., Inc. v. Dep 't of Envtl. Quality, 511 

12 U.S. 93, 99 (1994). Second, when a state law "regulates evenhandedly" with only "incidental 

13 effects" on interstate or foreign commerce, the law is invalid only if "the burden imposed on 

14 such commerce is clearly excessive in relation to the putative local benefits." !d. (quotations 

15 omitted). 

16 Courts often rely on this general framework to resolve dormant Commerce Clause cases 

17 involving international trade as well. See, e.g., Kraft Gen. Foods, Inc. v. Iowa Dep 't of Revenue 

18 & Fin., 505 U.S. 71, 81-82 (1992) (relying on interstate Commerce Clause decisions). However, 

19 it is well understood that the prohibitory power of the Commerce Clause is especially strong in 

20 the context of foreign commerce, with respect to which "a State's power is further constrained 

21 because of the special need for federal uniformity." Barc/ays Bank PLC v. Franchise Tax Ed. of 

22 Cal., 512 U.S. 298, 311 (1 994) (internal quotation marks omitted). Thus, "the constitutional 

23 prohibition" against state regulation of foreign commerce is even "broader than the protection 

24 afforded to interstate commerce" because "matters of concern to the entire Nation are imp25 licated." Kraft Gen. Foods, 505 U.S. at 79; accord, e.g., Piazza's Seafood World, LLC v. Odom, 

26 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:I8-cv-5005-RJB) • 7 

llYUNES t KELLB1>:: • CN0~1WELL LLP 

38THFI.OOR 

1000 SECOND AVENUE 

SI':A'ITLE, WASHJNGTON 98104 

(206)622-2000 
569 


31623.533

448 F.3d 744, 749 (5th Cir. 2006) ("[T]he scope of Congress's power to regulate foreign com2 merce, and accordingly the limit on the power of the states in that area, is greater"). 

For these reasons, and in light of the importance of unifonn federal regulation in the area 

4 of foreign affairs, "a more extensive constitutional inquiry is required" to decide a donnant 

Commerce Clause challenge involving foreign commerce. Japan Line, 441 U.S. at 446. As the 

6 Ninth Circuit has put it, "when state regulations affect foreign commerce, additional scrutiny is 

7 necessary to determine whether the regulations 'may impair uniformity in an area where federal 

8 unifonnity is essential,' or may implicate 'matters of concern to the whole nation ... such as the 

9 potential for international retaliation."' Pac. Nw. Venison Producers v. Smitch, 20 F.3d 1008, 

10 1014 (9th Cir. 1994) (quoting Japan Line, 441 U.S. at 448, and Kraft Gen. Foods, 505 U.S. at 

II 79). Accord, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW§ 6-2!, at 469 (2d ed. 

12 1988) ("If state action touching foreign commerce is to be allowed, it must be shown not to 

13 affect national concerns to any significant degree, a far more difficult task than in the case of 

14 interstate commerce."). 

15 According to this more demanding standard, a court must ask additionally whether a state 

16 law regulating foreign commerce threatens to "impair federal uniformity in an area where federal 

17 uniformity is essential." Japan Line, 441 U.S. at 448. Such laws "are invalid 'if they (I) create a 

18 substantial risk of conflicts with foreign governments; or (2) undermine the ability of the federal 

19 government to speak with one voice in regulating commercial affairs with foreign states."' 

20 Piazza's Seafood World, 448 F.3d at 750. That is so regardless of local benefit. Kraft Gen. 

21 Foods, 505 U.S. at 79. 

22 B. Defendants' Conduct Violates These Principles. 

23 The burden on foreign commerce from Washington's attempts to block development of 

24 the coal export facility at the Millennium Bulk Terminal far outweighs any benefit to the state. 

25 But the Court need not engage in any weighing of burdens and benefits because the resulting 

26 

NATIONAL MINING ASSOCIATION. ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- 8 

BYRNES t K~<.:LLER t CROMWELL LLP 

38TH FLOOII 

lOOOSECONDAVENUE 

SEATTU, WASHINGTON 98104 

(206)622--2000 
570 


31623.534

disruption of the uniform federal policy in favor of exporting American energy is an amply 

2 sufficient basis for finding a Foreign Commerce Clause violation here. 

3 

4 

1. Defendants' Actions Interfere With the Uniformity of Federal Policy. 

The question whether the United States should export coal-m any other good or 

commodity-and in what amounts, is one that squarely falls within the purview of the federal 

6 government. Japan Line, 441 U.S. at 448. As described above (at 3-5), the federal government 

7 has taken the initiative to set policy for the nation in this area, by prioritizing energy exports in 

8 general, and coal exports in particular, as key to the economic prosperity and national security of 

9 both the United States and its allies in Asia. 

10 Washington's actions regarding the coal export facility at the Millennium Bulk Terminal 

II threaten to undermine this uniform federal policy. Geography dictates that, in order to export 

12 coal to Asia from Montana and Wyoming (or, indeed, most anywhere in the United States), a 

13 coal producer must have access to export facilities on the West Coast, including in Washington. 

14 But Washington has sought to block development of any such facility in its jurisdiction-and 

15 worse, it has coordinated with other West Coast states to bring them along in this scheme, 

16 effectively closing the nation's west coast to the exportation of coal. See Com pl. '11'11 I 00-16. If 

17 these efforts are successful, it will frustrate US energy and trade policy by restricting the ability 

18 to export coal to Asia. If allowed to stand, Washington's conduct will effectively have set the 

19 coal exportation policy for the entire Nation. 

20 This kind of direct interference with an express federal policy unquestionably violates 

21 Japan Line's "'one voice" requirement. State laws have been held to violate the Commerce 

22 Clause where they merely articulated a foreign policy that tangentially diverged from the federal 

23 government's. See, e.g., Nat'/ Foreign Trade Council v. Natsios, 181 F.3d 38, 68 (1st Cir. 1999) 

24 (Massachusetts law restricting state's ability to transact with companies doing business in Burma 

25 prevented the federal government from speaking with one voice). If such laws are unconstitu26 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO.3: 18-cv-5005-RJB)- 9 

BYRNES t KELLEH: t CRO~H\'ELL LLI' 

38TIJFLOOR 

1000 SECONDAVEI'/UE 

SEATTL.E, WASHINGTON 98104 

(206)62~MOOO 
571 


31623.535

tiona!, a fortiori Washington's overt attempt to undermine the federal government's export 

2 policy is as well. 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

IS 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

2. Defendants' Actions Impose Burdens That Far Outweigh Any Local 

Benefits. 

Even under the more permissive Pike balancing test that applies to state actions under the 

domestic Commerce Clause analysis, Washington's attempt to block development of Plaintiffs' 

coal export facility is unconstitutional. See, e.g., United Haulers Ass'n,lnc. v. Oneida-Herkimer 

Solid Waste Mgmt. Auth., 550 U.S. 330, 346 (2007). Whatever benefit accrues to Washington 

from denying these benefits is slight, and the cost to the rest of the country is massive. 

Washington's refusal to permit the development of the export facility at the Millennium 

Bulk Terminal is blocking as much as $2.5 billion per year in coal trade-an amount that could 

provide significant benefits to the American economy and put a sizable dent in America's trade 

deficits with Asian nations. Campi.~ 78. This commerce would also provide substantial benefits 

to the economies of the states where the coal is produced-supporting local jobs and services in 

these states and communities. ld. ~~ 75-77. There currently is insufficient port capacity on the 

West Coast to allow export of sufficient coal to meet our Asian allies' demands. The proposed 

terminal would add capacity and open a vastly larger volume of commerce. But Washington is 

unilaterally blocking this development, imposing an enormous burden on foreign trade. In this 

way, Defendants are leveraging Washington's position on the coast to set energy and trade 

policy for the entire nation.' 

Defendants would have to establish overwhelming local benefits to overcome the 

enormous costs of this interference on the national economy and withstand Plaintiffs' Commerce 

Clause challenge-and they plainly cannot. Indeed, development of the export facility would 

benefit Washington economically, producing substantial new tax revenues for the state and 

creating a significant number of new jobs and infrastructure opportunities in Cowlitz County, 

'This impact on coal and energy trade, moreover, is just the tip of the iceberg, as a decision 

upholding Washington's actions would permit it to restrict other exports as well. 

NATIONAL MINING ASSOCIATION. ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB) • 10 

BYR~ES • KJ.::.LT...ER • CRO)-IWELL LLP 

38TH FLOOR 

lOOOSECONDAVENUE 

SEATTLE, WASHTNGTON 98104 

(2116)622-2000 
572 


31623.536

where the facility would be located. Compl. ~~ 72-74. Defendants' willingness to forgo these 

2 benefits and block development of the terminal lays bare their true motivation, which is an 

ideological opposition to coal exports in general, not a desire to benefit Washington specifically. 

4 To be sure, some of Defendants' actions rested on purported environmental concerns 

5 about the project. But none of the environmental concerns raised had anything to do with 

6 Washington's environment or natural resources; rather, they concerned the projected global 

7 effects of consuming the coal that would be exported through the Millennium Bulk Terminal 

8 facility. See, e.g., Compl. ~ 124. Those concerns cannot satisfy the Commerce Clause inquiry, 

9 which looks only to "the benefits of a state or local practice," not to a state's desire to regulate 

10 national or international matters. See. e.g., Dep 't of Revenue of Ky. v. Davis, 553 U.S. 328, 353 

11 (2008). 

12 Defendants' rationale underlying the denial of a certification under Section 401 of the 

13 Clean Water Act (33 U.S.C. § 1341) exemplifies the lack of local interests at stake here and-if 

14 allowed to stand-would pave the way for all kinds of obstructive conduct in violation of the 

15 Commerce Clause. Through the Clean Water Act, Congress sought to "recognize, preserve, and 

16 protect the primary responsibilities and rights of States to prevent, reduce, and eliminate [water] 

17 pollution" (33 U.S.C. § 125l(b)), and Section 401 was "[o]ne of the primary mechanisms" by 

18 which it set out to achieve that goal. Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991). 

19 Congress's intent in Section 401 was "to give the states veto power over the grant of federal 

20 permit authority for activities potentially affecting a stale's water quality" (United States v. 

21 Marathon Dev. Corp., 867 F.2d 96, 99-100 (1st Cir. 1989) (emphasis added)), preserving their 

22 role as the "prime bulwark in the effort to abate water pollution." See United States v. Puerto 

23 Rico, 721 F.2d 832,838 (lsi Cir.l983). 

24 Under Section 401, an applicant for a Section 404 discharge permit must obtain a 

25 certification from the State that the proposed discharge will comply with the applicable water 

26 quality standards under the Act. 33 U.S.C. § 134l(a). Here, however, the denial of plaintiffs' 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO.3: 18-cv-5005-RJB) • II 

llYR:SF.S • KELLEn • CRO.MWELL LLP 

36TH FLOOR 

lUOO SECOND AVENUE 

SEATTLE. WASHINGTON 91H94 

(206)622-2000 
573 


31623.537

application for certification for the coal export facility had nothing to do with the water quality 

2 provisions of the Act, or indeed with water quality issues at all. Nor could it have. The environ3 mental impact statement for the project prepared pursuant to Washington's State Environmental 

4 Policy Act ("SEPA") found that there would not be any adverse effects on water quality from the 

5 facility. Compl. 'If 164. Instead, the denial rested on out-of-state environmental impacts from 

6 transporting the coal before and after export. This use of the Section 401 process to pursue 

7 interests that have nothing to do with water quality demonstrates that Defendants were not 

8 pursuing any putative "local benefit" when they blocked development of the export facility. 

9 Perhaps more importantly, the implications of allowing states to hijack Section 401 for 

I 0 purposes unrelated to water quality would be disruptive to numerous sectors of the economy. If 

II Washington can prohibit the export of coal by way of Section 401 permitting, states all across 

12 the country could similarly restrict domestic and foreign trade. After all, the mining industry is 

13 not the only industry that depends upon state certifications under Section 401 in order to do 

14 business. Recent years have seen an "immense expansion of federal regulation of land use" 

15 under the Clean Water Act, with the relevant agencies asserting federal jurisdiction over 

16 "virtually any parcel of land containing a channel or conduit-whether man-made or natural, 

17 broad or narrow, permanent or ephemeral-through which rainwater or drainage may 

18 occasionally or intermittently flow." See Rapanos v. United States, 547 U.S. 715, 722 (2006) 

19 (plurality opinion). Section 401 state certifications have accordingly become necessary for 

20 significant numbers of real estate, infrastructure, and agricultural projects. Indeed, in many 

21 states, Section 404 and 401 approvals are broadly required for any project that may involve 

22 "dredg[ing], fill[ing] or otherwise alter[ing] the bed or banks of any stream, lake, wetland, 

23 floodplain or floodway"-which describes the vast majority of agricultural projects. See U.S. 

24 Army Corps of Eng'rs, Permit Requirements for the State of Illinois I, perma.cc/6T6W-E5YM. 

25 

26 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- 12 

BYRNES • KELLER • CROMWELL LLP 

38TH FLOOR 

UIOOSECo~AVENt!'E 

SEATTLE, WASHlNOTON 98104 

(206)622·2000 
574 


31623.538

This kind of political gamesmanship is not what Congress contemplated when it granted states 

2 the authority to review proposed projects for water quality issues in Section 401.3 

It also bears emphasis that Defendants have treated the Millennium Bulk Terminal 

4 facility differently from other port development projects proposed during the same time period. 

Plaintiffs allege that Washington supported development of several other export facilities in the 

6 state and that the only salient difference between those facilities and the proposed coal export 

7 facility is that the latter involves coal and the others did not. Compl. n 138-48. Defendants 

8 therefore cannot deny that their true intent-and the actual effect of their conduct-is to 

9 unilaterally manipulate U.S. energy policy and foreign trade practices rather than to regulate 

10 Washington's environment. The Commerce Clause cannot abide that kind of preferential treat-

! I ment with respect to foreign trade. 

12 III. 

13 

Dismissing the Case Would Give States a Green Light to Interfere With Foreign 

Trade Policy in Other Contexts. 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

As discussed above, there is more at stake here than just the export of coal to Asia, 

although that alone is a serious enough issue to warrant relief. 

In light of the widespread polarization of the American electorate, many state 

governments themselves have assumed polarized political characters. Whereas the bodies politic 

and state governments in California, Oregon, Maryland, and New Mexico are known to lean 

strongly in favor of liberal foreign policy and trade policy, for example, those in states like South 

Carolina, Texas, Montana, and Alaska are known to lean strongly in the other direction. See 

Jeffrey M. Jones, Gallup, Red States Outnumber Blue for First Time in Gallup Tracking (Feb. 3, 

2016), perma.cc/K35X-BBKE; Shanto Iyengar, Gaurav Sood & Yphtach Lelkes, Affect, Not 

3 Declining to invalidate Defendants' conduct here would have implications beyond offense to 

the donnant Commerce Clause. If a state with an ideological axe to grind can use a Section 401 

certification to upend federal control over foreign affairs, so too can it use Section 40 I 

certifications to interfere with any conduct by any industry it disapproves of. States whose 

officials disapprove of certain farming operations might use Section 40 I to block construction of 

animal feedlots or other agricultural operations. Likewise, state officials who disapprove of 

infrastructure development or large-scale factories might deny Section 40 l certification to new 

projects when they are proposed on lands subject to the Clean Water Act. 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- l3 

BYRNES • KELLEH t CROM \\.""ELL r.LP 

38TH f'LOOR 

lOOOSECONDAVENUE 

SEA'ITLP.., WASHINGTON 98104 

(206)622-2000 
575 


31623.539

Ideology: A Social Identity Perspective on Polarization, 76 Pub. Opinion Q. 405,412-15 (2012); 

2 Alan I. Abramowitz & Steven Webster, The Rise of Negative Partisanship and the 

3 Nationalization of U.S. Elections in the 21st Century, 41 Electoral Stud. 12 (2016). 

4 Each of these states controls, to some degree, American export trade with our foreign 

allies, including Mexico and Canada and those in Asia and Europe. If the Court allows 

6 Defendants' obstructionist conduct in this case to stand, it will serve as an open invitation to 

7 states like these to use their geographic leverage over international trade to obstruct any 

8 administration with whose policies they disagree. This is not a one-way ratchet; just as 

9 Republican administrations can expect obstruction from Democratic-leaning states, Democratic 

I 0 administrations can expect obstruction from Republican-leaning states. 

II The results would be disastrous for American foreign trade policy and a clear offense to 

12 the nation's federalist scheme. California could deny port access and refuse to permit new port 

13 facilities for agricultural exports if it disagrees with the manner in which livestock are raised. Cf 

14 Missouri v. California, No. 22-0-148 (S. Ct. filed Dec. 7, 20 17) (Missouri has sued California, 

15 challenging California's efforts to limit the sale of non-cage-free eggs within California). 

16 Conversely, South Carolina could refuse port access or to permit new port facilities for handing 

17 exports of manufactured goods if it disagrees with liberal immigration policies that ensure 

18 sufficient labor supply needed to make those goods. Cf United States v. California, No. 18-cv19 490 (E.D. Cal. filed Mar. 6, 20 18) (United States' suit against California concerning immigration 

20 policy). And because virtually all international trade is bilateral, these states likewise could 

21 attempt to obstruct the importation of such goods from our foreign allies based on other policy 

22 objections. Worse still, states like Texas, New Mexico, and Montana could attempt to override in 

23 practice the prevailing administration's uniform federal policies concerning free trade (or not) 

24 with Mexico and Canada. 

25 It was precisely to prevent such intrastate meddling in foreign trade policy that the 

26 Framers of the Constitution saw fit to allocate exclusive authority over international trade and 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB) • 14 

BYRNES t KELLER t CRO:M'\\<"ELL f.LP 

SSTH FLOOR 

1000 SECOND AV!l:NUE 

SEATTLE. WA.SHlNOTON 98104 

U06)6U-2000 
576 


31623.540

foreign policy to the federal government. Washington's conduct in this case is inconsistent with 

2 that constitutional framework. In this case, it is coal; in the next case, it could be agriculture or 

3 manufactured goods. This Court should not tolerate Defendants' efforts to assume for themselves 

4 the unilateral power to set aside the federal government's judgments with respect to international 

trade in coal resources, just as it should not tolerate similar conduct in related contexts. 

6 CONCLUSION 

7 The Court should deny defendants' motion for partial dismissal and abstention. 

8 DATED this 3rd day of May, 2018. 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

BYRNES KELLER CROMWELL LLP 

By Is/ Bradley S. Keller 

Bradley S. Keller, WSBA #10665 

By /s/ Keith D. Petrak 

Keith D. Petrak, WSBA #19159 

Byrnes Keller Cromwell LLP 

1000 Second Avenue, 38th Floor 

Seattle, WA 98104 

Telephone: (206) 622-2000 

Facsimile: (206) 622-2522 

Email: bkeller@byrneskeller.com 

kpetrak@byrneskeller.com 

MAYER BROWN LLP 

Michael Kimberly (pro hac vice admission 

pending) 

1999 K Street, N.W. 

Washington, District of Columbia 20006-1101 

Telephone:(202) 263-3000 

Facsimile: (202) 263-3300 

Email: mkimberly@mayerbrown.com 

-andTimothy Bishop (pro hac vice admission 

pending) 

71 S. Wacker Drive 

Chicago, Illinois 60606 

Telephone: (312) 701-7829 

Facsimile: (312) 706-8607 

Email: tbishop@mayerbrown.com 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:I8-cv-5005-RJB) -I5 

BYR~ER. KELLER. CRO~l"\VELL LLl' 

38TH FLOOR 

1000 SECONOAVENUE 

SEATTLE, WASHINGTON 98104 

(206) 622-2000 
577 


31623.541

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Attorneys for Amici Curiae American Farm 

Bureau Federation, American Fuel & 

Petrochemical Manufacturers, National 

Association of Manufacturers, and National 

Mining Association 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB) • 16 

BYR~F:S • KELLER • CROM"-''"ELL LLP 

38THFLOOil 

1000 SecoND AVENUE 

SEATTLE, WASHINGTON 98104 

(206)6112·2000 
578 


31623.542

2 

3 

4 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

CERTIFICATE OF SERVICE 

The undersigned attorney certifies that on the 3rd day of May, 2018, I electronically filed 

the foregoing with the Clerk ofthe Court using the CM/ECF system which will send notification 

of such filing to all counsel on record in the matter. 

Is/ Bradley S. Keller 

Byrnes Keller Cromwell LLP 

1000 Second A venue, 38th Floor 

Seattle, W A 981 04 

Telephone: (206) 622-2000 

Facsimile: (206) 622-2522 

bkeller@byrneskeller.com 

NATIONAL MINING ASSOCIATION, ET AL. AS AMICI CURIAE 

IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL 

DISMISSAL AND ABSTENSION (NO. 3:18-cv-5005-RJB)- 17 

BYRNES • KE.LLER t CROM"\\ci'.::LL LLP 

38TH FLOOR 

1000 SECOND AVENUE 

SEATTLE. WASHINGTON 98104 

(206)622-2000 
579 


31623.543

MILLENNIUM BULK TERMINALS-LONGVIEW 

SEPA ENVIRONMENTAL IMPACT STATEMENT 

SEPA GREENHOUSE GAS EMISSIONS 

TECHNICAL REPORT 

PREPARED FOR: 

Cowlitz County 

207 4th Avenue North 

Kelso, WA 98626 

Contact: Elaine Placido, Director of Building and Planning 

IN COOPERATION WITH: 

Washington State Department of Ecology, Southwest Region 

PREPARED BY: 

lCF 

710 Second Avenue, Suite 550 

Seattle, WA 98104 

April2017 
580 


31623.544

ICF. 2017. Millennium Bulk Terminals-Longview, SEPA Environmental Impact 

Statement, SEPA Greenhouse Gas Emissions Technical Report. April. (ICF 00264.13.) 

Seattle, WA. Prepared for Cowlitz County, Kelso, WA, in cooperation with Washington 

State Department of Ecology, Southwest Region. 
581 


31623.545

Contents 

List of Tables .....................•........•............................................................•.............................................. iii 

List of Figures ......................................................................................................................................... vi 

List of Acronyms and Abbreviations ..................................................................................................... vii 

Chapter !Introduction ...................................................................................................................... 1-1 

1.1 Project Description .......................................................................................................... 1-1 

1.1.1 Proposed Action ............................................................................................................... l-1 

1.1.2 No-Action Alternative ...................................................................................................... 1-5 

1.2 Regulatory Setting ........................................................................................................... 1-5 

1.3 Study Area ........................................................................................................................ l-7 

Chapter 2 Existing Conditions ............................................................................................................ 2-1 

2.1 Greenhouse Effect ........................................................................................................... 2-1 

2.2 Methods ........................................................................................................................... 2-4 

2.2.1 Data Sources .................................................................................................................... 2-4 

2.2.2 Impact Analysis ................................................................................................................ 2-5 

2.3 Existing Conditions ......................................................................................................... 2-51 

2.3.2 Cowlitz County ............................................................................................................... 2-51 

2.3.3 Washington State ........................................................................................................... 2-52 

Chapter 3 Impacts ............................................................................................................................. 3-1 

3.1 Proposed Action ............................................................................................................... 3-1 

3.1.1 Upland and Wetland Land-Cover Change ........................................................................ 3-1 

3.1.2 Dock Dredging During Terminal Construction and Operations-Sediment 

Carbon .............................................................................................................................. 3-2 

3.1.3 Coal Extraction ................................................................................................................. 3-2 

3.1.4 Rail Transport ................................................................................................................... 3-9 

3.1.5 Vehicle-Crossing Delay ................................................................................................... 3-10 

3.1.6 Coal Export Terminal Construction ................................................................................ 3-11 

3.1. 7 Coal Export Terminal Operation-Equipment Operation ............................................. 3-14 

3.1.8 Coal Export Terminal Operation-Electricity Consumption .......................................... 3-15 

3.1.9 Employee Commuting .................................................................................................... 3-15 

3.1.10 Vessel Idling and Tugboat Use at Coal Export Terminal ................................................ 3-16 

3.1.11 Helicopter and Pilot Boat Trips ...................................................................................... 3-16 

3.1.12 Vessel Transport ............................................................................................................ 3-17 

3.1.13 Coal Combustion ............................................................................................................ 3-18 

3.1.14 Induced Natural Gas Consumption ................................................................................ 3-19 

Millennium Bulk Terminals-Longview Aprill017 

SEPA Greenhouse Gas Emissions Technical Report 
582 


31623.546

Cowlitz County Contents 

3.1.15 Net Greenhouse Gas Emissions ..................................................................................... 3-20 

3.2 No-Action Alternative .................................................................................................... 3-40 

Chapter 4 Supplementary Data ......................................................................................................... 4-1 

4.1 Interpolated Results from Coal Market Assessment ...................................................... .4-1 

Chapter 5 References ........................................................................................................................ 5-1 

5.1 Written References .......................................................................................................... 5-1 

5.2 Personal Communications ............................................................................................... 5-6 

Millennium Bulk Terminals-Longview April2017 

SEPA Greenhouse Gas Emissions Technical Report 
583 


31623.547

Cowlitz County Contents 

Tables 

Table 1. Regulations, Statutes, and Guidance for Greenhouse Gases ...................................................... 1-5 

Table 2. Global Warming Potentials .................................................................................••...•.........•......•. 2-3 

Table 3. Scenarios in the Coal Market Assessment .....................................•........................•................. 2-13 

Table 4. Upland Emission Factors ........................................................................................................... 2-19 

Table 5. Wetland Emission Factors .....................................•................................................................... 2-20 

Table 6. Sediment Carbon Assumptions ................................................................................................. 2-21 

Table 7. U.S. Mining Coal Extraction Factors .......................................................................................... 2-23 

Table 8. International Underground and Surface Mining Coal Extraction Factors ................................. 2-26 

Table 9. Mass of Coal Train Components ................................................................................................ 2-29 

Table 10. Coal Supply Regions and Distances to Washington State ...................................••.................. 2-30 

Table 11. Emission Factors from Rail Diesel Fuel .......................................................•............................ 2-30 

Table 12. Coal Types and Distances within Washington State beyond Cowlitz County ......................... 2-31 

Table 13. Rail Distances Traveled within Cowlitz County ....................................................................... 2-31 

Table 14. Emission Factors for Locomotives ........................................................................................... 2-32 

Table 15. Weighted Vehicle Fleet Mix for Cowlitz County, 2028 ............................................................ 2-33 

Table 16. Activity Data for Vehicle Delay in Cowlitz County, 2028 ......................................................... 2-34 

Table 17. Major Construction Activities and Typical Equipment Fleets ................................................. 2-35 

Table 18. Construction Equipment Activity Data and Emission Factors ................................................. 2-36 

Table 19. Barge Activity and Energy Use for Coal Export Terminal Construction ................................... 2-3 7 

Table 20. Emission Factors for Construction Barges ............................................................................... 2-3 7 

Table 21. Terminal Material Mass and Emission Factors ........................................................................ 2-38 

Table 22. Coal Export Terminal Equipment and Emission Factors- Dredging Equipment .................... 2-40 

Table 23. Coal Export Terminal Equipment and Emission Factors- Mobile Combustion and 

Emergency Equipment ................................................................................................................ 2-41 

Table 24. Coal Export Terminal Equipment and Emission Factors- Maintenance Dredging ................. 2-41 

Table 25. Monthly and Annual Electricity Demand for Coal Export Terminal ........................................ 2-42 

Table 26. Average Fuel Mix and Fuel-Specific Emission Factor for the Cowlitz Public Utilities 

District Region ............................................................................................................................. 2-42 

Table 27. Emission Factors for Idling Vessels and Tugboats ................................................................... 2-43 

Table 28. Annual Helicopter and Pilot Boat Transfers per Vessel, 2028 ................................................. 2-44 

Table 29. Helicopter and Pilot Boat Trips and Nautical Miles Travelled ................................................. 2-44 

Table 30. Helicopter Fuel Consumption .................................................................................................. 2-45 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report iii April2017 
584 


31623.548

Cowlitz County Contents 

Table 31. Combustion Emissions for Aviation Gasoline .......................................................................... 2-45 

Table 32. Factors for Pilot Boat Fuel Consumption ................................................................................ 2-45 

Table 33. Combustion Emissions for Residual Fuel... .............................................................................. 2-46 

Table 34. Emission Factors for Vessels in Transit.. .................................................................................. 2-47 

Table 35. Average Vessel Characteristics ................................................................................................ 2-47 

Table 36. Auxiliary Engine and Boiler loads ............................................................................................ 2-48 

Table 37. Vessel Emission Factors by Equipment Type ........................................................................... 2-48 

Table 38. Emission Factors by Vessel Type ............................................................................................. 2-48 

Table 39. Net Change in Nautical Miles Traveled by Proposed Action-Related Vessels ........................ 2-49 

Table 40. Heat Content and Carbon Coefficients for U.S. and Asian Reference Coals ........................... 2-50 

Table 41. Current Vessel Transport Activities in the Project Area .......................................................... 2-51 

Table 42. Vegetation Removal, Soil Disturbance, and Wetland loss Emissions (MtC02e) ....................... 3-1 

Table 43. Potential loss of Sediment Carbon from Dock Dredging (MtCOze) .......................................... 3-2 

Table 44. Emissions from Coal Extraction (MMTC02e) ............................................................................. 3-3 

Table 45. Range of Coal Mine Methane Emission Factors for Coal Extraction ......................................... 3-6 

Table 46. locomotive Emissions from Extraction Sites to Washington State (MMTC02e) ...................... 3-9 

Table 47. Locomotive Emissions within Washington State (Excluding Cowlitz County) 

(MMTC02e) ................................................................................................................................. 3-10 

Table 48. locomotive Operation Emissions within Cowlitz County (MMTC02e) ................................... 3-10 

Table 49. Vehicle-Crossing Delay Emissions from Fossil Fuel Combustion from Vehicles Idling 

within Cowlitz County (MtCO,e) ................................................................................................. 3-11 

Table 50. Coal Export Terminal Construction Emissions (MtCO,e) ......................................................... 3-12 

Table 51. Embedded Emissions in Construction Materials (MtCO,e) ..................................................... 3-13 

Table 52. Emissions from Dredging during Construction Fuel Use (MtC02e) ...................................... 3-14 

Table 53. Coal Export Terminal Operation Emissions from Mobile Combustion (MtCO,e) ................... 3-14 

Table 54. Dredging Emissions during Operations- Fuel Use (MtCO,e) ................................................. 3-15 

Table 55. Coal Export Terminal Operation-Indirect Emissions from Electricity Consumption 

(MtC02e) ..................................................................................................................................... 3-15 

Table 56. Employee Commuting (MtC02e) ............................................................................................. 3-15 

Table 57. Emissions from Vessel Idling and Tugboat Use at Coal Export Terminal (MtCO,e) ................ 3-16 

Table 58. Emissions from Helicopter and Pilot Boat Trips for Pilot Transfers to Vessels 

(MtC02e) ..................................................................................................................................... 3-16 

Table 59. Emissions from Vessel Transport within Cowlitz County (MMTC02e) .................................... 3-17 

Table 60. Emissions from Vessel Transport within Washington State (Excluding Transport 

within Cowlitz County) (MMTCO,e) ............................................................................................ 3-17 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report iv April2017 
585 


31623.549

Cowlitz County Contents 

Table 61. Net Emissions from Changes in International Vessel Transport to Asian Markets 

(MMTCO,e) ................................................................................................................................. 3-18 

Table 62. Net Emissions from Coal Combustion (MMTCO,e) ................................................................. 3-19 

Table 63. Net Emissions from Natural Gas Substitution in the United States (MMTC02e) .................... 3-20 

Table 64. Direct Emissions (Generated in Cowlitz County) for the Proposed Action 

(MMTC02e) ................................................................................................................................. 3-21 

Table 6S. Emissions Generated within Washington State, Excluding Cowlitz County 

(MMTCO,e) ................................................................................................................................. 3-21 

Table 66. Net (Direct and Indirect) Emissions for the Proposed Action Excluding Coal 

Extraction (M MTC02e) ................................................................................................................ 3-22 

Table 67. Net Emissions (Direct+ Indirect) for the Proposed Action Including Coal Extraction 

(MMTC02e) ................................................................................................................................. 3-23 

Table 68. Net Emissions (Direct and Indirect) Excluding Coal Extraction by Phase {MMTC02e) ............ 3-36 

Table 69. Net Emissions (Direct and Indirect) Including Coal Extraction by Phase (MMTC02e) ............ 3-37 

Table 70. No-Action Alternative Annual Average Emissions from Rail, Vessel, and Haul 

Trucks Operating within Cowlitz County (MMTC02e) ................................................................ 3-41 

Table 71. Interpolated Coal Market Assessment Results, 2015 U.S. and International Energy 

Policy ......................................................................................................................................... 4-2 

Table 72. Interpolated Coal Market Assessment Results, lower Bound .................................................. 4-3 

Table 73. Interpolated Coal Market Assessment Results, Upper Bound .................................................. 4-4 

Table 74. Interpolated Coal Market Assessment Results, No Clean Power Plan ...................................... 4-5 

Table 75. Interpolated Coal Market Assessment Results, Cumulative .................................................... .4-6 

Table 76. Coal Extraction by Region {Million Metric Tons) ....................................................................... 4-7 

Millennium Bulk. Terminals Longview April2017 

SEPA Greenhouse Gas Emissions Tech meal Report 
586 


31623.550

Cowlitz County Contents 

Figures 

Figure 1. Project Vicinity ...............................................•.....•..................................................................... 1-3 

Figure 2. Proposed Action ......................................................................................................................... 1-4 

Figure 3. Model of the Natural Greenhouse Effect ................................................................................... 2-2 

Figure 4. Coal Export Stages and GHG Analysis Boundaries ..................................................................... 2-6 

Figure 5. Annual Coal Throughput, 2018-2038 ....................................................................................... 2-17 

Figure 6. Rail Transport of Coal to the Project Area ............................................................................... 2-29 

Figure 7. Net GHG Emissions from Coal Extraction by Country and U.S. Coal Basin for 2015 

U.S. and International Energy Policy Scenario .............................................................................. 3-4 

Figure 8. Net GHG Emissions from Coal Extraction by Country and U.S. Coal Basin for No 

Clean Power Plan, Lower Bound, Upper Bound, and Cumulative Scenarios ................................ 3-5 

Figure 9. Range of Net GHG Emissions from Coal Extraction for the 2015 Energy Policy 

Scenario ........................................................................................................................................ 3-7 

Figure 10. Range of Net GHG Emissions from Coal Extraction for the No CPP, Lower Bound, 

Upper Bound, and Cumulative Scenarios ..................................................................................... 3-8 

Figure 11. Total Net Emissions for Each Scenario, Excluding Coal Extraction 2018-2038 

(MMTCO,e) ................................................................•................................................................ 3-24 

Figure 12. Total Net Emissions for Each Scenario, Including Coal Extraction 2018-2038 

(MMTC02e) ................................................................................................................................. 3-25 

Figure 13. No Clean Power Plan-Net Annual Emissions Excluding and Including Coal 

Extraction, 2018-2038 ................................................................................................................ 3-30 

Figure 14. Lower Bound- Net Annual Emissions Excluding and Including Coal Extraction, 

2018-2038 .................................................................................................................................. 3-32 

Figure 15. Upper Bound- Net Annual Emissions Excluding and Including Coal Extraction, 

2018-2038 .................................................................................................................................. 3-33 

Figure 16. 2015 U.S. and International Energy Policy-Net Annual Emissions Excluding and 

Including Coal Extraction, 2018-2038 ........................................................................................ 3-35 

Figure 17. Cumulative Scenario-Net Annual Emissions, 2018-2038 .................................................... 3-40 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report vi Aprll2017 
587 


31623.551

Cowlitz County 

OF 

Applicant 

AR4 

BNSF 

Btu 

Btu(lb 

CCC 

CFR 

co, 

co,e 

eGRID 

EIS 

EPA 

FR 

GHG 

GMI 

GREET 

GWP 

hp 

IPCC 

kgC02e 

kgCO,e(MWh 

kgC02e(Mt 

kWh 

LVSW 

MJ 

MMBtu 

MMTCO,e 

MOVES 

MtCO,e 

MWh 

NEPA 

RCW 

SEPA 

UN FCC 

UP 

usc 

WAC 

Contents 

Acronyms and Abbreviations 

degrees Fahrenheit 

Millennium Bulk Terminals-Longview, LLC 

IPCC Fourth Assessment Report 

BNSF Railway Company 

British thermal unit 

British thermal units per pound 

Cowlitz County Code 

Code of Federal Regulations 

carbon dioxide 

carbon dioxide equivalent 

Emissions & Generation Resource Integrated Database 

Environmental Impact Statement 

U.S. Environmental Protection Agency 

Federal Register 

greenhouse gas 

Global Methane Initiative 

Greenhouse gases, Regulated Emissions and Energy use in Transportation 

Model 

global warming potential 

horsepower 

Intergovernmental Panel on Climate Change 

kilograms of carbon dioxide equivalent 

kilograms of carbon dioxide equivalent per megawatt hour 

kilograms of carbon dioxide equivalent per metric ton 

kilowatt hour 

Longview Switching Company 

megajoule 

million British thermal units 

million metric tons of carbon dioxide equivalent 

MOtor Vehicle Emission Simulator 

metric tons of carbon dioxide equivalent 

megawatt hour 

National Environmental Policy Act 

Revised Code of Washington 

Washington State Environmental Policy Act 

United Nations Framework Convention on Climate Change 

Union Pacific Railway 

United States Code 

Washington Administrative Code 

Millennium Bulk Terminals Long..,.iew vii April1017 

SEPA Greenhouse Gas Emissions Technical Report 
588 


31623.552

Chapter 1 

Introduction 

This technical report assesses the potential greenhouse gas (GHG) emissions impacts of the 

proposed Millennium Bulk Terminals-Longview project (Proposed Action) and No-Action 

Alternative. For the purposes of this assessment, GHG emissions include the emissions from 

construction and operation of the Proposed Action as well as the indirect, market-influenced 

transportation, coal extraction, and end-use fossil fuel combustion emissions from operations. This 

report describes the regulatory setting. establishes the methods for assessing potential GHG 

emissions impacts, presents current GHG emissions in the study area, and assesses potential net 

GHG emissions from the Proposed Action and the No-Action Alternative. 

1.1 Project Description 

Millennium Bulk Terminals-Longview, LLC (Applicant) is proposing to construct and operate a coal 

export terminal (Proposed Action) in Cowlitz County, Washington, along the Columbia River 

(Figure 1). The coal export terminal would receive coal from the Powder River Basin in Montana and 

Wyoming and the Uinta Basin in Utah and Colorado via rail shipment. The coal export terminal 

would receive, stockpile, and load coal onto vessels and transport the coal via the Columbia River 

and Pacific Ocean to overseas markets in Asia. 

1.1.1 Proposed Action 

Under the Proposed Action, the Applicant would develop the coal export terminal on 190 acres 

(project area) primarily within an existing 540-acre site that is currently leased by the Applicant 

(Applicant's leased area). The project area is adjacent to the Columbia River in unincorporated 

Cowlitz County, Washington near Longview, Washington (Figure 2). The Applicant currently 

operates and would continue to operate a bulk product terminal within the Applicant's leased area. 

BNSF Railway Company (BNSF) or Union Pacific Railroad (UP) trains would transport coal on BNSF 

main line routes in Washington State, and the BNSF Spur and Reynolds Lead in Cowlitz County to 

the project area. Coal would be unloaded from rail cars, stockpiled, and loaded by conveyor onto 

ocean-going vessels for export at two new docks (Docks 2 and 3) located in the Columbia River. 

Once construction is complete, the Proposed Action could have a maximum annual throughput 

capacity of up to 44 million metric tons of coal per year. The coal export terminal would consist of 

one operating rail track, eight rail tracks for storing up to eight unit trains, rail car unloading 

facilities, a stockpile area for coal storage, conveyor and reclaiming facilities, two new docks in the 

Columbia River (Docks 2 and 3), and ship loading facilities on the two docks. Dredging of the 

Columbia River would be required to provide access to and from the Columbia River navigation 

channel and for berthing at the two new docks. 

Vehicles would access the project area from Industrial Way (State Route 432), and vessels would 

access the project area via the Columbia River. The Reynolds Lead and BNSF Spur track-both 

jointly owned by BNSF and UP and operated by Longview Switching Company (LVSW)-provide rail 

access to the project area from a point on the BNSF main line (Longview junction) located to the east 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissiom Technical Report 1-1 Apri12017 
589 


31623.553

Cowlitz County Contents 

in Kelso, Washington. Coal export terminal operations would occur 24 hours per day, 7 days per 

week. The coal export terminal would be designed for a minimum 30-year period of operation. 

At full terminal operations, approximately 8loaded unit trains each day would carry coal to the 

export terminal, 8 empty unit trains each day would leave the export terminal, and an average of 70 

vessels per month or 840 vessels per year would be loaded, which would equate to 1,680 vessel 

transits in the Columbia River annually. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 1-2 Apri12017 
590 


31623.554

J 

-;;; 

• i " • u 

~ ~~ 

·u 

·c H 5 ~~ tl 'E )ti 

"' ~" ·e ~ 0 

I ... 3 ~ ~~ 

...; E ~ 

I!! i ~ ] " .. ::; <:'-

;;;: ,.:;; 
591 


31623.555
592 


31623.556

Cowlitz County Introduction 

1.1.2 No-Action Alternative 

The Applicant plans to continue operating its existing bulk product terminal located adjacent to the 

project area. Ongoing operations would include storing and transporting alumina and small 

quantities of coal and continued use of Dock 1. Maintenance of the existing bulk product terminal 

would continue, including maintenance dredging at the existing dock every 2 to 3 years. The 

Applicant plans to expand operations at the existing bulk product terminal, which could include 

increased storage and upland transfer of bulk products utilizing new and existing buildings. The 

Applicant would likely need to undertake demolition, construction, and other related activities to 

develop expanded bulk product terminal facilities. 

If the coal export terminal is not constructed, the Applicant would likely propose expansion of the 

bulk product terminal onto areas that would have been subject to construction and operation of the 

proposed coal export terminal. Additional bulk product transfer activities could involve products 

such as a calcined pet coke, coal tar pitch, cement, fly ash, and sand or gravel. Any new operations 

would be evaluated under applicable regulations. Upland areas of the project area are zoned Heavy 

Industrial and it is assumed future proposed industrial uses in these upland areas could be 

permitted. Any new construction would be limited to uses allowed under existing Cowlitz County 

development regulations. 

1.2 Regulatory Setting 

The jurisdictional authorities and corresponding regulations, statutes, and guidance for determining 

potential impacts on GHG emissions are summarized in Table 1. 

Table 1. Regulations, Statutes, and Guidance for Greenhouse Gas Emissions 

Regulation, Statute, Guideline 

Federal 

National Environmental Policy Act 

(42 USC 4321 etseq.) 

Clean Air Act of1963 (42 USC 7401) as 

amended 

Carbon Pollution Emission Guidelines 

for Existing Stationary Sources: 

Electric Utility Generating Units 

United States Submittal to the United 

Nations Framework on Climate Change 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 

Description 

Requires the consideration of potential environmental 

effects. NEPA implementation procedures are set forth in 

the President's Council on Environmental Quality 

Regulations for Implementing NEPA ( 49 CFR 11 OS). 

In 2007, the U.S. Supreme Court ruled that GHGs are air 

pollutants under the Clean Air Act. 

In 2015, under the Clean Power Plan, EPA set statespecific target emission reductions to reduce C02 

emissions in the power sector by 32% below 2005 levels 

by 2030 (80 FR 64661). The rate-based COz emission goal 

for Washington state is 983 pounds of COz per net MWh 

(80 FR 64962) and the mass-based COz emission goal for 

Washington state for the 2 year block of2030-2031 is 

21,478,344 short tons ofCOz (80 FR 64963) (or a final 

goal of 10,739,172 short tons ofCOz (80 FR 64825). 

United States and other nations submitted Intended 

Nationally Determined Contribution to the United Nations 

in 2015. 

1-5 Apri12017 
593 


31623.557

Cowlitz County 

Regulation, Statute, Guideline 

State 

Washington State Environmental Policy 

Act (WAC 197-11, RCW 43.21C) 

Limiting Greenhouse Gas Emissions 

(RCW 70.235) 

Washington Clean Air Act (RCW 70.94) 

Washington Carbon Pollution and Clean 

Energy Action (Executive Order 14-04, 

2014) 

Washington Clean Air Rule (WAC 173-

442) 

Washington's Leadership on Climate 

Change (Executive Order 09-05, 2009) 

Path to a Low-Carbon Economy: An 

Interim Plan to Address Washington's 

Greenhouse Gas Emissions (2010) 

Ml!!ennium Bull( Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 

Introduction 

Description 

Requires state and local agencies in Washington to 

identify potential environmental impacts that could result 

from governmental decisions. 

Requires state to reduce overall GHG emissions as 

compared to a 1990 baseline and report emissions to the 

governor bi-annually. Specific goals include achieving 

1990 GHG emissions levels by 2020; 25% below 1990 

levels by 2035; and SO% below 1990 levels by 2050 or 

70% below the state's expected emissions that year. 

Establishes rules regarding preservation of air quality and 

penalties for violations. COz mitigation fees are evaluated 

as part of the permit required by the Clean Air Act (RCW 

70.94.892) to reflect requirements from RCW 80.70. RCW 

70.94.151 states that the department will be responsible 

for adopting rules requiring reporting of emissions 

defined by 70.235.010 from facility, source, site, or fossil 

fuel supplier that meet or exceed 10,000 metric tons of 

COze annually. 

In April2014, Governor Inslee established the Governor's 

Carbon Emissions Reduction Taskforce to provide 

recommendations to the 2015 legislative session on the 

design and implementation of a carbon emissions limits 

and market mechanisms program for Washington State. 

The task force delivered its findings in November 2014, 

noting that a harmonized, comprehensive emissionsbased or price-based policy approach would add unique 

features to an overall carbon emission reduction policy 

framework. 

Establishes requirements to cap and reduce GHG 

emissions. Parties covered under the Clean Air Rule are 

required to reduce their covered GHG emissions along an 

emission reduction pathway by reducing their emissions 

or by obtaining emission reductions from other covered 

parties, in-state emission reduction projects, or out-ofstate emissions market (cap & trade) programs. The Clean 

Air Rule covers two-thirds of Washington's GHG 

emissions. 

In 2009, Governor Gregoire ordered the state to assess the 

effectiveness of various GHG reduction strategies by 

estimating emissions, quantifYing necessary reductions, 

and identifYing strategies and actions that could be used 

to meet the 2020 target. Assessments were done across 

multiple sectors and sources of emissions, including 

industrial facilities, the electricity sector, low-carbon fuel 

standards, vehicle miles traveled, coal plants, and forestry. 

The second Climate Comprehensive Plan report to the 

Governor and State Legislature outlines a plan to achieve 

emission reductions to 1990 levels by 2020, as required 

by RCW 70.235. 

1-6 April2017 
594 


31623.558

Cowlitz County 

Local 

Cowlitz County SEPA Regulations 

(CCC 19.11) 

Notes: 

Introduction 

Provides for the implementation ofSEPA in Cowlitz 

County. 

a ln 2009, EPA proposed the Endangerment Finding and the Cause or Contribute Findings for Greenhouse Gases 

under Section 202(a) ofthe Clean Air Act. The Endangerment Findings determined that the current and 

projected concentrations for carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorinated 

chemicals, and sulfur hexafluoride posed a threat to the health and welfare of current and future generations 

(U.S. Environmental Protection Agency 2009). This sets the legal foundation for regulating GHG emissions from sources of these six well-known GHGs, such as vehicles, industrial facilities, and power plants. 

b Light duty vehicles include passenger cars, light-duty trucks, and medium~duty passenger vehicles. 

USC= United States Code; CFR =Code of Federal Regulations; EPA= U.S. Environmental Protection Agency; 

FR =Federal Register; COz =carbon dioxide; MWh =megawatt per hour; COze::::: carbon dioxide equivalent; GHG::: 

greenhouse gas; WAC= Washington Administrative Code; RCW::: Revised Code of Washington; SEPA = 

Washington State Environmental Policy Act; CCC= Cowlitz County Code 

1.3 Study Area 

GHG emissions contribute to the global greenhouse effect, which is the process by which the Earth 

retains heat (Section 2.1, Greenhouse Effect). GHGs emitted anywhere in the globe affect the global 

environment.! The study area for GHG emissions for Cowlitz County as a Washington State 

Environmental Policy Act (SEPA) co-lead agency is defined as Cowlitz County. GHG emissions forthe 

Washington State Department of Ecology as a SEPA co-lead agency is based on the expected rail and 

vessel transportation routes and emissions from the combustion of coal. While the study areas for 

the co-lead agencies are different, the analysis used the same approach to calculate GHG emissions 

attributable to the Proposed Action. 

1 Some short~lived climate pollutants, such as black carbon, have only a local impact and are not considered in this 

analysis. 

Millennium Bulk: Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 1-7 April 2017 
595 


31623.559

Chapter 2 

Existing Conditions 

This chapter introduces the greenhouse effect, which is the primary consequence of GHG emissions. 

The chapter then describes the sources of information and methods used to characterize the existing 

conditions and assess the potential impacts of the Proposed Action. 

2.1 Greenhouse Effect 

The Earth retains outgoing thermal energy and incoming solar energy in the atmosphere, thus 

maintaining heat temperature levels suitable for biological life. This retention of energy by the 

atmosphere is known as the greenhouse effect.' When solar radiation reaches the Earth, most of the 

solar radiation is absorbed by the Earth's surface, reflected by the Earth's surface and atmosphere, 

or-to a lesser degree- absorbed by the Earth's atmosphere. Simultaneously, the Earth radiates 

its own heat and energy out into the Earth's atmosphere and space. Factors such as the reflectivity of 

the Earth's surface, the abundance of water vapor, or the extent of cloud cover affects the degree to 

which solar radiation may be absorbed and reflected. Figure 3 shows the energy flows to and from 

Earth and the role that the greenhouse effect plays in maintaining heat in the atmosphere. 

The composition of gases in the Earth's atmosphere determines the amount of energy absorbed and 

re-emitted by the atmosphere or simply reflected back into space. The predominant gases in the 

Earth's atmosphere, nitrogen and oxygen (which together account for nearly 90% of the 

atmosphere) exert little to no greenhouse effect. Some naturally occurring gases, such as carbon 

dioxide (CO,), methane, and nitrous oxide, trap outgoing energy and contribute to the greenhouse 

effect. Additionally, manufactured pollutants, such as hydrofluorocarbons, can contribute to the 

greenhouse effect. Unlike most air pollutants (e.g., sulfur dioxide and particulate matter) that have 

only a local impact on air quality, GHGs affect the atmosphere equally regardless of where they are 

emitted, and thus they are truly global pollutants. Therefore, a ton of C02 emissions in Asia affects 

the global atmosphere to the same degree as a ton ofCOz emissions in the United States. 

2 The Intergovernmental Panel on Climate Change (2013) defines the greenhouse effect as follows: 

The infrared radiative effect of all infrared-absorbing constituents in the atmosphere. Greenhouse gases (GHGs), 

clouds, and (to a small extent) aerosols absorb terrestrial radiation emitted by the Earth's surface and elsewhere in 

the atmosphere. These substances emit infrared radiation in all directions, but, everything else being equal, the net 

amount emitted to space is normally less than would have been emitted in the absence of these absorbers because 

of the decline of temperature with altitude in the troposphere and the consequent weakening of emission. An 

increase in the concentration ofGHGs increases the magnitude ofthis effect; the difference is sometimes called the 

enhanced greenhouse effect The change in a GHG concentration because of anthropogenic emissions contributes to 

an instantaneous radiative forcing. Surface temperature and troposphere warm in response to this forcing, 

gradually restoring the radiative balance at the top of the atmosphere. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-1 April2017 
596 


31623.560

Cowlitz County Existing Conditions 

Figure 3. Model of the Natural Greenhouse Effect 

Source: Intergovernmental Panel on Cllmate Change 2007 

The extent to which a given GHG traps energy in the atmosphere and contributes to the overall 

greenhouse effect is characterized by its global warming potential (GWP). Some gases are more 

effective at trapping heat, while others may be longer-lived in the atmosphere. The reference gas 

against which others are compared is carbon dioxide, and GWP is thus expressed in terms of carbon 

dioxide-equivalent (CO,e). The unit CO,e represents both a gas's ability to trap heat and the rate at 

which it breaks down in the atmosphere. Most analyses use 100 years as the period of reference for 

GWPs, and this technical report conforms to that convention. For example, 1 unit of carbon dioxide 

has a 100-year GWP of 1, whereas an equivalent amount of methane has a GWP of 25 

(Intergovernmental Panel on Climate Change 2007]. For this analysis, a 100-year period is used. 

Millennium Bulk Termina!s-longYlew 

SEPA Greenhouse Gas Emissions Technical Report 2-2 April 2017 
597 


31623.561

Cowlitz County Existing Conditions 

Table 2 presents the 100-year GWPs from the Intergovernmental Panel on Climate Change (IPCC) 

Fourth Assessment Report (AR4) for the GHGs included in the study,3.4 

Table 2. Global Warming Potentials 

Greenhouse Gas 

Carbon dioxide 

Methane 

Nitrous oxide 

IPCC AR4 tOO· Year Global Warming Potential 

1 

25 

298 

Source: Intergovernmental Panel on Climate Change 2007 

GHG emissions occur from both natural as well as human-made (anthropogenic) sources. Examples 

of natural sources include decomposition of organic matter and aerobic respiration. Anthropogenic 

GHG emissions are predominantly from the combustion of fossil fuels, although other sources 

including industrial processes, land-use change, agriculture, and waste management are also 

contributors. 

The increase of GHGs in the atmosphere has been determined to pose risks to human and natural 

systems (Intergovernmental Panel on Climate Change 2014).Atmospheric concentrations ofGHGs 

have increased since the Industrial Revolution, but the natural processes that remove those GHGs 

from the atmosphere have not scaled proportionally. Additionally, concentrations of long-lived 

manufactured pollutants such as hydrofluorocarbons have increased in recent decades. As the 

atmospheric concentrations of GHGs increase, the atmosphere's ability to retain heat increases as 

well. Since the instrumental record began in 1895, the U.S. average temperature has risen by 

approximately 1.3 to 1.9 degrees Fahrenheit ('F) (U.S. Global Change Research Program 2014). 

Furthermore, U.S. average temperatures throughout the 21st century are expected to increase at a 

faster pace, by 2.5'F to 11 °F above pre-industrial levels by 2100 (U.S. Global Change Research 

Program 2014). 

The impacts of higher global surface temperatures include widespread changes in the Earth's 

climate system. This may affect weather patterns, biodiversity, human health, and infrastructure. A 

discussion of climate impacts as they relate to the Proposed Action is provided in the SEPA Climate 

Change Technical Report (ICF 2017a) 

3 While additional GHGs (HFCs, PFCs, SF,) were considered for this analysis as per the Council on Environmental 

Quality (2016) guidance, carbon dioxide, methane, and nitrous oxide are the greenhouse gases emitted from the 

fossil fuel combustion and vegetation and wetland activities considered in the analysis. 

4 GWP values for methane have been revised over time from 21 in the IPCC Second Assessment Report (SAR] to 28 

in the IPCC Fifth Assessment Report (AR5]. GWP values for nitrous oxide have also been revised from 310 in the 

IPCC SAR report to 265 in the IPCC AR5 report (Intergovernmental Panel on Climate Change 2013; 

Intergovernmental Panel on Climate Change 1995). This range shows there is uncertainty associated with GWP 

values. The GWP values used for this report were selected to be consistent with standards developed for the U.S. 

GHG inventory. The United States and other developed countries of the UNFCCC have agreed to submit annual 

inventories in 2016, and future years to the UNFCCC using the 100-year GWP values from the IPCC AR4 report EPA 

follows this guidance in generating the national greenhouse gas inventory (U.S. Environmental Protection Agency 

2016b]. Using the AR4 100-year GWPs in the EIS is consistent with the practice of the UNFCCC, and provides 

greenhouse gas data that are consistent with other corporate, national. and subnational reporting. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-3 April2017 
598 


31623.562

Cowlitz County Existing Conditions 

2.2 Methods 

This section presents the data sources and methods used to estimate project related GHG emissions 

for the study area. First, the data sources that were used are summarized. Second, the methods used 

to estimate each source of GHG emissions are described. 

2.2.1 Data Sources 

The technical reports supporting the SEPA Draft Environmental Impact Statement (EIS) for the 

Millennium Bulk Terminals-Longview project provided activity data and emissions data to support 

the GHG analysis. The following sources of information were used to evaluate the GHG emissions 

from construction and operation of the Proposed Action, the combustion of coal from coal exported 

from the Proposed Action, domestic and international transport of the coal, and changes in the use 

of coal and natural gas in response to the operation of the Proposed Action. 

• SEPA Air Quality Technical Report (ICF 2017b). 

• SEPA Coal Market Assessment Technical Report (ICF 2017c).S 

• SEPA Energy and Natural Resources Technical Report (ICF 2017 d). 

• SEPA Rail Transportation Technical Report (ICF and Hellerworx 2017). 

• SEPA Vessel Transportation Technical Report (ICF 2017e). 

• SEPA Vegetation Technical Report (ICF 2017f). 

• SEPA Vehicle Transportation Technical Report (ICF and DKS Associates 2017). 

To estimate the GHGs emitted as a result of the processes described in the above reports, ICF used 

those reports' estimates of fuel consumption and vehicle operation, referred to as activity data, and 

combined that data with GHG emission factors in order to estimate GHG emissions for the Proposed 

Action.• The GHG emission factors are drawn from the following sources. 

• California Air Resources Board. 2011. Appendix D: Emissions Estimation Methodology for 

Ocean-Going Vessels. 

• Clean Cargo Working Group, 2014. Global Maritime Trade Lane Emissions Factors. 

• Energy Information Agency 1994. COz Emission Factors for Coal Study for International Coals. 

Hansen 2009. The Viability of Creating Wetlands for the Sale of Carbon Offsets. 

• Intergovernmental Panel on Climate Change 2006: Volume 4: Agriculture, Forestry, and Other 

Land Use. 

s The SEPA Coal Market Assessment Technical Report (ICF 2017c), hereafter referred to as the coal market 

assessment, provides estimates on the net changes in international coal extraction and combustion, domestic 

substitution of natural gas for coal and resulting combustion, extraction of coal at U.S. coal mines, domestic 

transport of coal to the proposed project, and international transport of the coal to importing countries. The report 

provides estimates for several scenarios to cover a range of potential changes in net GHG emissions because of the 

Proposed Action. 

6 An activity is a practice or ensemble of practices that take place on a delineated area over a given period. Activity 

data are data on the magnitude of a human activity resulting in emissions or removals taking place during a given 

period of time (e.g., data on energy use, data on equipment used during construction of the Proposed Action) 

(Intergovernmental Panel on Climate Change 2006). 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-4 April 2017 
599 


31623.563

Cowlitz County Existing Conditions 

• Coal Mine Methane Country Profiles (Global Methane Initiative 2015). 

• International Energy Statistics (Energy Information Agency 2017). 

• IPCC Guidelines for National Greenhouse Gas Inventories (Intergovernmental Panel on Climate 

Change 2006). 

• National Council for Air and Stream Improvement and U.S. Forest Service 2016. Carbon Online 

Estimator. 

• Trettin and Jurgensen 2003. Carbon Cycling in Wetland Forest Soils. 

• U.S. Environmental Protection Agency. 1996. AP-42, Section 3.4 Large Stationary Diesel and All 

Stationary Dual-fuel Engines. 

• U.S. Environmental Protection Agency. 2009a. NON ROAD Model (Non-road engines, equipment, 

and vehicles). 

• U.S. Environmental Protection Agency. 2009b. Emission Factors for Locomotives. 

• U.S. Environmental Protection Agency. 2014a. MOVES (Motor Vehicle Emission Simulator). 

• U.S. Environmental Protection Agency. 2015c. U.S. Greenhouse Gas Inventory Report: 1990-

2013. 

• U.S. Greenhouse Gas Inventory Report: 1990-2014 (U.S. Environmental Protection Agency 

2016b). 

2.2.2 Impact Analysis 

This section describes the methods used to evaluate the potential impacts of the Proposed Action on 

GHG emissions. The method for estimating the GHG emissions associated with each emission source 

is described, along with that source's activity data and the calculations used to estimate its 

associated GHG emissions. The GHG analysis addresses the same set of sources addressed in the 

SEPA Air Quality Technical Report (ICF 2017b), plus several additional sources (e.g., transportation 

emissions beyond a S-mile radius, net emissions from changes in domestic and international coal 

use). 

2.2.2.1 Scope of Analysis 

The Proposed Action would emit GHGs during construction and operation, both in the United States 

and abroad. The emissions would come predominantly from the combustion of fossil fuels for 

construction and operation, as well as changes in the combustion of coal, both domestically and 

internationally. 

This analysis includes activity data from the technical reports described in Section 2.2.1, Data 

Sources. Additionally, the GHG analysis evaluates emissions scenarios based on the ultimate flow of 

coal to and through the coal export terminal (ICF 2017c). Figure 4 shows the pathway of coal from 

extraction to transport to terminal operation to export to its final combustion. 

Geographically, the analysis of GHG emissions from the Proposed Action includes the extraction of 

Powder River Basin and Uinta Basin coals, the rail transport of the coal to Cowlitz County from their 

points of extraction, coal export terminal operation in Cowlitz County, vessel transport to Asia, and 

the substitution of coal for end-use combustion in China, Hong Kong, japan, South Korea, and 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-5 April2017 
600 


31623.564

Cowhtz County Ex1sting Conditions 

Taiwan. Changes in coal combustion elsewhere in Asia (e.g., India) are included in this analysis 

where coal use would be affected by the import of coal from the coal export terminal (i.e., by induced 

demand for coal and substitution of international coals for U.S.-based coals). The substitution of 

natural gas for coal in the United States because of an increase in domestic coal prices is also 

evaluated.' 

Figure 4. Coal Export Stages and GHG Analysis Boundaries 

Flow of Coal through MBTL 

,.-, 

I I Boundaries of GHG Analysis 

______ , 

The scope of the GHG emissions analysis considers the following elements. 

Analysis period. To be consistent with activity data from the other technical reports prepared 

for the Proposed Action, this analysis considers construction, operation, coal extraction, rail and 

vessel transport, and fossil fuel combustion emissions from 2018 through 2038. 

Direct sources of GHG emissions. Direct emissions refer to GHG emissions from coal export 

terminal construction, operation, and transportation within Cowlitz County. The following 

processes are included. 

o Upland and wetland land-cover change 

o Coal export terminal construction 

o Dock dredging during coal export terminal construction and operations and subsequent 

release of sediment carbon 

o Rail transport of coal in Cowlitz County 

o Vehicle-crossing delay in Cowlitz County 

7 The proposed coal terminal could increase the demand for U.S. coal, resulting in a corresponding increase in coal 

prices. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-6 Apri!2017 
601 


31623.565

Cowlitz County Existing Conditions 

o Equipment use during coal export terminal operation 

o Vessel idling and tugboat use at the coal export terminal 

o Vessel transport of coal in Cowlitz County 

o Employee commuting to and from the coal export terminal 

• Indirect sources of GHG emissions. Indirect emissions refer to GHG emissions that would 

result from the Proposed Action but are not concurrent with construction or operation on the 

project area, or that would occur outside of Cowlitz County. The following are indirect sources of 

GHG emissions. 

o Coal export terminal construction-embedded GHG emissions in materials for coal export 

terminal construction 

o Extraction of coal at the mining sites 

o Rail transport of coal from extraction sites to Washington State 

o Rail transport of coal within Washington State 

o Consumption of electricity used for coal export terminal operations 

o Helicopter and pilot boat trips for pilot transfers to vessels 

o Vessel transport of coal between the Cowlitz County border and international waters and 

return of vessels with only ballast water 

o Vessel transport of coal in international waters to markets in China, Hong Kong, Japan, South 

Korea, and Taiwan and return of vessels with only ballast water 

o Market effects on coal combustion in Asia and the United States 

o Induced natural gas combustion in the United States 

• Geographic scope. The geographic scope includes GHG emissions that would occur within and 

outside of the project area. Emissions are evaluated outside of the area because greenhouse 

gases are a global pollutant as stated in Section 2.1, Greenhouse Effect, and there are market 

impacts from the Proposed Action at multiple geographic scales resulting in GHG emissions. 

Direct emissions that occur on the project area include those from mobile sources during 

construction and operation. Additional direct emissions would occur in Cowlitz County from rail 

and vessel transport of coal. The following indirect emissions would occur. 

o Rail and vessel transport of the coal beyond Cowlitz County and within Washington State 

o Net extraction of the coal in the United States and international coal markets 

o Rail transport of coal from extraction sites to Washington State 

o Transport of coal to Asian markets and the return of vessels with only ballast water in 

international waters 

GHG emissions are also estimated that would result from shifts in coal combustion and demand 

in Asian markets and from induced natural gas combustion due to the shift from coal as coal 

prices increase (relative to the no-action as defined in the coal market assessment) in the United 

States. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·7 April2017 
602 


31623.566

Cowlitz County Existing Conditions 

The international coal market is a global commodity market, such that changes in supply or 

demand in one country can affect coal prices and distribution patterns globally. The global 

nature of the coal market was demonstrated most recently in the fall of 2016 when China 

reduced production capacity and international coal prices shot up by SO% over a 2-month 

period. In addition, coal competes with other fuel sources, such as natural gas, for electric 

generation. To capture the dynamic changes in the international coal market and the 

competition among fuel types for electric generation in the United States and Canada, a 

comprehensive and integrated modeling platform is required. Without this type of modeling. 

assumptions would be required regarding the ultimate outcome of the exported coal and 

changes in coal consumption in the United States that would be difficult to make and justify 

without comprehensive modeling. The importance of modeling is best illustrated by examples. 

o The model established that there are very large existing international coal markets, and 

there is at most a relatively small increase in coal consumption because of the introduction 

of a new coal supply. 

o The model established thatthere are multiple suppliers and that, while U.S. exports are 

competitive, they are not significantly lower in cost than coal supplied from Australia, China, 

Indonesia, or Russia. The model showed outcomes where displacement-i.e., sale of U.S. coal 

rather than sale of competing coal produced in other countries-resulted in small changes 

in delivered coal price and small to no increases in coal used, except in the Upper Bound 

Scenario. 

o The model established that the variation in coal emission rates had limited effects on total 

emissions, although differences in carbon content have somewhat greater effect on net 

emissions from the Proposed Action. Thus, depending on the scenario, the substitution of 

coal with different carbon contents in Asia can be one of the key drivers of net emissions 

compared to other sources such as international vessel transport. 

o The U.S. power and fuel markets are highly integrated, diverse, and competitive, and, 

consequently, the increase in coal price in the United States results in substitution of gas and 

other sources for coal. 

• Induced demand for energy. This analysis addresses coal combustion in Asia that would result 

from the increased supply of coal due to the operation of the Proposed Action. The addition of 

44 million metric tons of coal to the supply of coal in Asia would increase supply and lower 

international coal prices. Asian coal markets would respond to lower prices by consuming more 

coal overall. This additional demand for coal that is a result of shifts due to the shift in the price 

of coal is referred to as induced demand. 

• Offset energy sources. Operation of the Proposed Action could offset demand for other energy 

sources, nationally and internationally. Depending on the scenario, operations could affect 

production of coal from Australia, China, Indonesia, and Russia and its consumption throughout 

Asia. Additionally, this analysis considers the increased use of U.S. natural gas as a substitute for 

coal combustion. Consequently, changes in GHG emissions are estimated assuming that coal 

shipped through the coal export terminal would replace other sources of coal (e.g., coal 

imported from Australia, China, Indonesia, and Russia) and for the substitution of natural gas for 

U.S. coal. The GHG emissions associated with replacement of other sources of coal would include 

differences in the extraction and combustion of these coals compared to U.S. coal from Powder 

River and Uinta Basins. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-8 April 2017 
603 


31623.567

Cowlitz County Existing Conditions 

• Coal market assessment scenarios. Each coal market assessment scenario represents a range 

of GHG emissions estimates, based on economic and policy projections through 2040. For each 

scenario, the GHG emissions from Asian coal combustion, U.S. coal combustion, and U.S. natural 

gas combustion are influenced by factors such as coal prices, transportation costs, demand for 

thermal coal, status of U.S. and international climate policies, and competing energy sources. 

Estimates of coal transport, coal consumption, and natural gas substitution are informed by 

projections in the coal market assessment, which considers four scenarios based on economic 

and policy projections through 2040.8 The scenarios represent a range ofGHG emissions 

estimates determined using a multi-dimensional model. Two model runs were conducted for 

each scenario: a no action model and an action model with the Proposed Action. The resulting 

net GHG emissions are influenced by the relative differences in coal combustion, distribution, 

and substitution for each of these model runs. 

The coal market assessment kept the throughput of exported coal constant at 44 million metric 

tons for the 6 years modeled (2016, 2018, 2020, 2025, 2030, and 2040) for the Proposed 

Action.9 However, for the GHG analysis and as described in Section 2.2.2.2, Method for 

Assembling an Emissions Time Series, only years 2025,2030, and 2040 from the coal market 

assessment results are used and adjusted to account for changes in quantities of exported coal 

from 2021 to 2028, the period when the coal exportterminal would ramp up operations to 

reach full capacity in 2028.1" 

All four scenarios use a common set of base assumptions, many of which were updated between 

the Draft ElS and Final E!S. Detailed descriptions of these assumptions are included in the coal 

market assessment. The set of base assumptions include, but are not limited to, the following. 

Assumptions. 

o Coal supply curves for U.S. and international coal supply regions. In the No Clean Power Plan 

scenario, the base coal supply curves result in Powder River Basin Wyoming 8800 British 

thermal units per pound (Btu/lb) of coal being priced at $12.6/ short ton, Uinta Basin 

11,280 Btu/lb coal being priced at $39/ short ton, and Australian 10,800 Btu/lb (6,000 

kilocalories per kilogram) coal being priced at $62.8/ short ton.!' All prices are in 2012$ for 

the year 2018. 

o Coal transportation costs. The base rail transportation costs are $30 to $36 per short ton for 

coal transported from the Powder River Basin and Uinta Basin to the proposed terminal. 

o Natural gas supply curves 

o Air, waste, and water regulations 

o Renewable energy standards and regulations 

BIn some other studies, scenarios of economic and policy conditions are compared against a common baseline. For 

this GHG Analysis, the baseline is redefined for each scenario. This approach is used to capture the range of 

economic and policy conditions that could exist in the future (i.e., 2025, 2030, and 2040). 

9 As described in the coal market assessment, 44 million metric tons of coal is modeled for each year rather than a 

gradual increase as the coal export terminal reached full capacity. 

1° For purposes of the GHG analysis, the effect of the Proposed Action on net GHG emissions starts in 2021 when 

the proposed terminal initiates operations, and therefore net GHG emissions from emission sources affected by the 

coal market assessment are assumed to be 0 MMTCO,e for 2016, 2018, and 2020. See Section 6.1 of the SEPA Coal 

Market Assessment Technical Report (ICF 2017c) for further information. 

11 British thermal units (Btu) are a standardized measurement of the heat content of coal. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-9 Apri12017 
604 


31623.568

Cowlitz County Existing Conditions 

o Reserve margin targets for each U.S. electric demand region 

o Firmly planned new generating capacity and retirements 

o Electric transmission limits 

o Electric demand 

o Capital costs for new electric-generating capacity 

o International coal demand. The base assumption for international coal demand is the 

Current Policies scenario from the International Energy Agency's 2015 World Energy 

Outlook. The Current Policies scenario includes only those GHG reduction policies for which 

implementing measures have been formally adopted as of mid-2015, and assumes that these 

policies remain unchanged going forward. 

o Elasticity of coal demand for the Asian countries that can receive coal from the proposed 

terminal. The base elasticity of coal demand for China is -0.44 and is -0.11 for Hong Kong, 

India, japan, South Korea, and Taiwan. 

The four scenarios incorporate the base assumptions and are differentiated by the following six 

parameters: 

o International coal curves 

o International coal demand 

o Coal demand elasticity 

o Powder River Basin and Uinta Basin coal curves 

o U.S. rail transportation costs 

o U.S. and international climate policy. The U.S. climate policy is incorporated into the 

modeling by using an assumed version of the Clean Power Plan, or by not including the 

Clean Power Plan.' 2 The international climate policies are incorporated into the modeling 

through the international coal demand used in each scenario. 

The four scenarios and their key concepts are described below and summarized in Table 3. 

o 2015 U.S. and International Energy Policy Scenario. The 2015 U.S. and International 

Energy Policy scenario includes U.S. and international climate policies as the defining 

feature of this scenario. The U.S. climate policy is modeled using a representation of the 

Clean Power Plan. The international climate policy is modeled by using the international 

coal demand in the International Energy Agency's 2015 World Energy Outlook New Policies 

scenario. 13 The 2015 U.S. and International Energy Policy scenario uses the base set of 

assumptions except for three parameters. First, the international thermal coal demand is 

taken from the World Energy Outlook demand forecast for the New Policies scenario, 

12 Because implementation of the Clean Power Plan wiJl occur at the state level and states have not determined 

how they will implement the Clean Power Plan, a version of the Clean Power Plan consistent with one of the 

alternatives under the EPA's proposed Federal Plan for the Clean Power Plan that features state specific mass 

standards for existing units is used. 

13 The 2015 World Energy Outlook New Policies Scenario incorporates the policies and measures that affect energy 

markets that had been adopted by non·U.S. countries as of mid-2015 and other relevant intentions that have been 

announced, even when the precise implementing measures have not been fully defined. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·10 April2017 
605 


31623.569

Cowlitz County Existing Conditions 

because it represents coal demand under current and proposed GHG reduction policies. 

Second, the elasticity of coal demand for China is -0.32. Third, this scenario includes the 

Clean Power Plan, which reduces coal consumption in the United States (U.S. Environmental 

Protection Agency 2015b). The final Clean Power Plan was released in August 2015.14 

o No Clean Power Plan Scenario. The No Clean Power Plan scenario represents the state of 

the energy markets as of 2016. However, it does not include implementation of the Clean 

Power Plan. The No Clean Power Plan scenario uses the base set of assumptions and 

assumes that no additional national or international climate policies will be enacted beyond 

those implemented by mid- 2015. 

o Lower Bound Scenario. Due to uncertainty over future coal consumption trends, the coal 

market assessment constructed the Upper and Lower Bound scenarios in a way that they 

produce illustrative results for a broad range of outcomes. The Lower Bound scenario 

represents a plausible low estimate of global C02 emissions from coal combustion. This 

scenario is designed to be a plausible and reasonable lower bound of global COz emissions 

and does not attempt to model an absolute lowest bound of C02 emissions. The energy 

markets under the Lower Bound scenario could reflect a large component of renewable 

energy resulting in reduced demand for coal combustion. To achieve the low estimate of 

global CO, emissions from coal combustion, the Lower Bound scenario adjusts all six of the 

parameters used to define the scenarios beyond the base set of assumptions. 

First, the international coal supply curves are decreased by 10% to reduce the likelihood of 

induced demand. Second, international coal demand is assumed to be as estimated in the 

International Energy Agency's 2015 World Energy Outlook New Policies scenario, as this 

scenario includes both existing and proposed GHG reduction policies, which result in less 

coal consumption. Third, the coal demand elasticity is assumed to be -0.32, which would 

result in Jess induced demand than in the other scenarios, except the Energy Policy scenario, 

which uses the same value. Fourth, Powder River Basin coal supply curves are increased by 

25% to reflect higher than expected stripping ratios and that would result in lower coal 

consumption. Fifth, U.S. rail costs are increased by 20% to reflect higher than expected 

diesel fuel prices, which would tend to decrease coal consumption in favor of other 

generation. Sixth, the Lower Bound scenario assumes the Clean Power Plan is implemented 

in the United States and that proposed international GHG reduction policies are 

implemented, which are the same assumptions as used in the 2015 U.S. and International 

Energy Policy scenario. 

14 On August 3, 2015, EPA released the final Clean Power Plan, which regulates co, emissions from existing fossil 

fuel generation sources under Section 111(d] of the Clean Air Act. "Existing" refers to units that commenced 

construction before January 8, 2014. EPA estimates that the plan will reduce power sector COz emissions 32% 

below 2005 levels in 2030. States have flexibility to implement the program as a rate credit trading program or a 

mass allowance trading program. The plan specified initial state plans due September 2016, updated plans by 

September 2017, and final state plans by September 2018, with the initial implementation date set for 2022. 

In February 2016, the Supreme Court granted petitioners a stay of the Clean Power Plan. The stay will not be lifted 

until all court proceedings, potentially including a hearing by the Supreme Court of the full case, have been settled. 

The D.C. Circuit heard arguments in the case in September 2016. In March 2017, an Executive Order was issued to 

review the Clean Power Plan. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-11 Apr/12017 
606 


31623.570

Cowlitz County Existing Conditions 

o Upper Bound Scenario. The Upper Bound scenario represents a reasonable upper bound 

estimate of global C02 emissions from coal combustion and uses assumptions that could 

maximize the amount of induced demand from the Proposed Action. International coal plant 

construction and thus coal demand is assumed higher than in all the other scenarios. This 

higher demand causes both international coal consumption and prices to increase. This 

scenario does not attempt to model an absolute upper bound of global C02 emissions or co, 

emissions that would result from the Proposed Action.JS To achieve the high estimate of 

global CO, emissions from coal combustion, the Upper Bound scenario adjusts all six of the 

parameters used to define the scenarios beyond the base set of assumptions. 

First, the international coal supply curves are increased by 50% to reflect the higher 

international demand and increase the likelihood of induced demand. Second, international 

coal demand is assumed to be higher than all the other scenarios due to increased 

development of coal-fired generating assets. The international coal demand is estimated by 

assuming the historical coal consumption growth rates for each country during the 2000 to 

2012 period, which was a time when coal consumption was increasing rapidly. Third, the 

coal demand elasticity is assumed to be -0.68, which would result in more induced demand 

than in the other scenarios. Fourth, Powder River Basin coal supply curves are decreased by 

15% to reflect lower than expected stripping ratios and that would result in higher coal 

consumption. Fifth, U.S. rail costs are decreased by 20% to reflect lower than expected 

diesel fuel prices, which would tend to increase coal consumption. Sixth, the Upper Bound 

scenario does not assume the Clean Power Plan is implemented in the United States and 

assumes that the increased coal consumption does not violate existing international GHG 

reduction policies. 

Table 3 summarizes the scenarios modeled for the coal market assessment, including the cumulative 

scenario. I' Many factors would affect the future export and consumption of coal for the Proposed 

Action. Consequently, the scenarios reflect a range of potential outcomes. For each scenario, the 

table provides the following information. 

Purpose: the phenomena that the scenario is intended to represent. 

U.S. coal markets: the domestic coal market reaction to changes in supply and pricing. 

• Asian coal markets: the international coal market reaction to changes in supply and pricing. 

Coal prices: the increases and decreases in coal production and transportation costs relative to 

the No Clean Power Plan scenario. Coal prices are modeled relative to the No Clean Power Plan 

scenario rather than the other scenarios because it uses the base set of assumptions without 

modifications. 

• Climate policy: Two scenarios (2015 U.S. and International Energy Policy and Lower Bound 

scenarios) capture the effect of the Proposed Action when the Clean Power Plan and 

international GHG reduction commitments are implemented. 

15 Due to uncertainty over future coal consumption trends, the coal market assessment constructed the Upper and 

Lower Bound scenarios to illustrate a broad range of outcomes but not the extreme possibilities, 

16 Additional details on the modeling assumptions for each of the scenarios are provided in the SEPA Coal Market 

Assessment Technical Report (ICF 2017c). 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-12 April2017 

31623.571

Cowlitz. County Exis

Table 3. Scenarios in the Coal Market Assessment,. 

Asian Coal Market Coal Prices 

U.S. Coal Market Conditions (Relative Conditions [Relative 

Conditions (Relative to to Base to Base 

Scenario Purpose Base Assumptions} Assumptions} Assumptions} Climate Polic

2015 U.S. and Represents impacts of Coal consumption in the Coal consumption is Both domestic and Climate policy 

International an international climate United States is lower due lower due to the international coal resembling 

Energy Policy policy on the coal to implementation of the implementation of prices are lower due implementati

market as proposed by Clean Power Plan GHG reduction to the lower overall Clean Power P

mid-2015 and the Clean policies coal demand implementati

Power Plan international 

reduction pol

announced as 

2015 

No Clean Represents the No change from base No change from base No change from base No climate po

Power Plan assumed future state of assumptions assumptions assumptions implemented 

energy markets in the United States 

absence of climate those internat

policies policies that h

fully impleme

mid-2015 

Lower Bound Represents energy Coal consumption in the • Lower assumed coal • Higher Powder Climate policy 

markets where United States is lower due demand due to River Basin and resembling 

renewable penetration to implementation of the increased Uinta Basin coal implementati

is high and Clean Power Plan and renewables prices due to Clean Power P

international coal prices higher assumed Powder • Lower coal prices assumed higher implementati

and demand are low, River Basin and Uinta due to lower production costs international 

making domestic coal Basin coal prices and rail demand • Lower international reduction pol

exports less attractive transportation costs coal prices, due to proposed as o

to international assumed lower 

markets production costs 

Upper Bound Represents energy Higher coal demand due Higher coal demand • Lower Powder River No climate po

markets where coal to lower Powder River resulting in higher Basin and Uinta 

consumption is high, Basin and Uinta Basin coal prices Basin coal prices 

leading to high coal prices due to assumed 

international demand 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas EmiSSIOns Technical Report 2·13 

31623.572

Cowlitz County 

Scenario 

Cumulativeb 

Notes: 

Purpose 

and prices, making 

domestic coal exports 

more attractive to 

international markets 

Represents the impact 

of other planned export 

terminals in the Pacific 

Northwest 

U.S. Coal Market 

Conditions (Relative to 

Base Assumptions) 

Coal consumption in the 

United States is lower 

because the higher 

amount of exports 

increases coal prices, 

which causes a reduction 

in demand 

Asian Coal Market 

Conditions (Relative 

to Base 

Assumptions) 

No change from base 

assumptions 

a Scenario conditions are defined relative to the No Clean Power Plan scenario. 

b Further details on the Cumulative scenario can be found in Section 3.1.15, Net Greenhouse Gas Emissions. 

GHG=greenhousegases 

Mil!enmum Bulk Terminals-Long.,.iew 

SEPA Greenhouse Gas EmtSSions Technical Report Z-14 

Coal Prices Conditions (Relative 

to Base 

Assumptions) 

lower production 

costs 

• Higher international 

coal prices due to 

increased demand 

and assumed higher 

production costs 

Domestic coal prices 

are higher due to 

increased demand 

from exports, while 

international coal 

prices remain 

unchanged 

Exis

Climate Polic

No climate pol

31623.573

Cow!JtzCounty 

";:;" 20,000 

c 19,000 

18,000 

i 8 17,000 

8 16,0tXJ 

;; .: "';;' " 15,000 

] 14,000 

j 13,000 

12,000 

.:! 11,000 

:; 2025 2030 1:04-CI 

-No Clean ?ewer Plan ' Lower Eound 

-Uppe:r Bour\d Energy ?o!icy 

"'- 13,000 ! 12,800 

·§ :z 12,500 6· 12,400 .!i! u 12,200 

] 12,000 

e !. 11,soo 

§ :3 11,600 

g 11,400 'ti 11,200 

& c{ 11,000 

·2.5 

2025 

0.2 

203D 

-0.3 

2040 

Difference in GHG £mfs:sions between Action 

Alternatives(MMTC01e) 

112015 Energy Pdk:y ·No Ac!lon 

MJ!Ienn.um Bulk Terminals-longview 

S£PA Greenhouse Gas EmiSsions Techn1cal Report 

Emissions Across Coal Market Assessment Scenarios 

Each coal market assessment scenario represents a range of GHG 

estimates, based on economic and nolicv nroiections from 2016 to 2040. 

Fossil fuel combustion emissions refer to coal combustion in Asia and the U.S. as 

well as US. natural gas combustion (ICF 2017c). 

2-15 
610 


31623.574

Cowlitz County Existlng Conditions 

2.2.2.2 Method for Assembling an Emissions Time Series 

Because GHGs accumulate in the atmosphere, a complete assessment of GHGs associated with the 

Proposed Action requires a characterization of the GHGs over a full analysis period (2018 through 

2038). Construction of the coal export terminal would occur between 2018 and 2020. The coal 

export terminal would become operational in 2021, and reach full capacity by 2028. The GHG 

analysis estimates emissions for each year during this analysis period as well as for each scenario. 

Assembling a complete emissions time series for the GHG analysis requires interpolation of 

estimates from the other technical reports prepared for the Proposed Action (i.e., coal market, air, 

and vessel) for the following reasons. 

• The coal market assessment provides estimates only for 2025, 2030, and 2040Annual estimates 

are interpolated from these results.!' 

• The activity data that characterize coal export terminal operations represents conditions in 

2028, when the facility is expected to be operational. These data do not reflect coal export 

terminal start-up, in which the coal throughput increases from zero immediately after 

construction in 2020 to its full capacity of 44 million metric tons by 2028. 

In order to generate estimates of GHG emissions for the full analysis period, the expected coal 

throughput is increased linearly from zero in 2020 to 25 million metric tons (27.5 million short 

tons) in 2025. Between 2025 and 2028, the throughput is increased linearly at a slightly faster rate 

to reach full capacity at 44 million metric tons (48.4 million short tons) by 2028. For this approach, 

market-influenced emissions are assumed directly proportional to the amount of coal processed by 

the Proposed Action. The total coal exports for the analysis period add up to 627 million metric tons 

of coal, including 7 start-up years between 2021 and 2028 and 11 full years of operation from 2028 

through 2038 (Figure 5). 

17 This analysis assumes the net impacts from the coal market assessment are 0 in 2020, and thus values are 

linearly interpolated from 0 in 2020 to the 2025 values in the coal market assessment. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-16 April2017 
611 


31623.575

Cowlitz County 

Figure 5. Annual Coal Throughput, 2018-2038 

~ 

" 0 

44.0 

--Annual Co<l! Throughput (Mi!lion Metric Tons! 

Existing Conditions 

The coal market assessment does not consider a start-up period, so the activity data and emissions 

estimates for 2025, which assume a full44 million metric tons of coal throughput, are prorated by 

57%; i.e., the ratio of the projected 25 million metric tons of the start-up period and the full44 

million metric ton throughput This proration factor is applied to all data outputs from the coal 

market assessment in 2025, including coal extraction, rail transport, coal throughput, fossil fuel 

combustion emissions,lB and ocean vessel traffic. Assuming that net emissions and activity from 

operation of the export terminal in the Proposed Action are zero in 2020, the analysis assumes a 

linear growth to the prorated 2025 data, reaching full operation in 2028, and linear interpolation 

between the 2030 and 2040 data outputs. 

Activity data and emissions estimates are derived and presented in tables in this report only for 

2028. Emission estimates for interpolated years from 2021 through 2038 are calculated by 

interpolating between the emissions values of the closest IPM model run years as well as the 

calculated value for 2028 (i.e., 2025, 2028, 2030, 2040). 

2.2.2.3 Method for Impact Analysis 

This section describes the method and approach for each emission source. The methods used for the 

following emission sources are described: upland and wetland land-cover change; dock dredging 

during terminal construction and operations-sediment carbon; coal extraction, rail transport, 

vehicle-crossing delay; coal export terminal construction; coal export terminal operationequipment operation; coal export terminal operation-electricity consumption; employee 

18 Changes in domestic and international coal combustion are assessed separately. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-17 April 2017 
612 


31623.576

Cow!iU County Existing Conditions 

commuting; vessel idling and tugboat use at coal export terminal; helicopter and pilot boat trips; 

vessel transport; coal combustion in Asia and the United States; induced natural gas consumption in 

the United States. 

Upland and Wetland Land-Cover Change 

The vegetation removal, soil disturbance, and wetland loss associated with construction of the 

Proposed Action would result in the loss of carbon stocks, the loss of ongoing carbon sequestration, 

and a reduction in annual emissions in the case of certain wetland vegetation cover types over the 

analysis period (2018 through 2038). 

To estimate the loss of upland carbon stocks from the net change in upland vegetation cover types 

as a result of construction, estimates of vegetation cover (e.g., aboveground carbon, belowground 

carbon, understory carbon) and soil carbon stocks (i.e., soil organic carbon) in the project area are 

based on average carbon stock per area estimates for Cowlitz County taken from the Carbon Online 

Estimator (National Council for Air and Stream Improvement and U.S. Forest Service 2016). The 

upland land cover includes forested, scrub-shrub, herbaceous, and managed herbaceous vegetation 

cover types. The average forested carbon stock per area value may overestimate the actual forested 

carbon stocks in the project area because the average estimates for Cowlitz County likely include 

areas with higher carbon stocks (e.g., managed production forests) than the areas within the project 

area. 

These estimates of the carbon stock per area for forested, scrub-shrub, and herbaceous19 upland 

vegetation cover types are multiplied by the corresponding changes in area resulting from the 

construction to estimate the change in carbon stocks associated with construction (e.g .. vegetation 

removal and surface soil disturbance) for the Proposed Action compared to the No Action 

Alternative. Given the potential high value of the forested carbon stock per area value, these 

emission estimates likely overestimate the actual construction emissions in the project area but are 

representative for average areas in Cowlitz County. That said, in the absence of detailed site-level 

carbon stock surveying, these average values are likely representative and conservative-i.e., they 

overestimate rather than underestimate emissions. 

Loss of ongoing carbon sequestration for the forested, scrub-shrub, and herbaceouszo upland 

vegetation cover types are then estimated based on IPCC guidelines (Intergovernmental Panel on 

Climate Change 2006: Volume 4). These estimates of the lost sequestration per area for forested, 

scrub-shrub, and herbaceousZl upland vegetation cover types are multiplied by the corresponding 

changes in area resulting from construction over the analysis period (2018 through 2038) to 

estimate the lost sequestration. 

Table 4 shows the emission factors (lost carbon stock and lost sequestration values) derived for the 

upland land cover type. 

19 There is only one carbon stock per area factor available for herbaceous upland vegetation cover type. This 

carbon stock density is applied for both herbaceous and managed herbaceous vegetation cover types. The carbon in 

both of these systems predominantly resides in the soil, and is largely independent of management. 

zo The annual carbon sequestration for the forested and scrub-shrub vegetation types is based on the aboveground 

net biomass growth in natural temperate continental forests in North America. The annual carbon sequestration for 

the herbaceous vegetation type is assumed zero because the soil carbon gains and losses were assumed to have 

reached an equilibrium for an established herbaceous system. 

21 The same carbon stock density is applied for both herbaceous and managed herbaceous vegetation cover types 

since the carbon in both of these systems predominantly resides in the soil. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·18 Apri\2017 
613 


31623.577

Cowlitz County Existing Conditions 

Table 4. Upland Emission Factors 

One-time Lost Carbon 

Land Cover Vegetation Cover Stock (metric tons Annual Lost Sequestration 

Category Type co,ejacre)• (metric tons co,ejacrejyear)" 

Upland Forested 510.5 2.8 

Scrub-shrub 325.6 2.8 

Herbaceous 140.7 0 

Managed 

herbaceous 140.7 0 

Notes: 

a One-time lost carbon stock values derived from Carbon On-Line Estimator search result in information for 

Cowlitz County (National Council for Air and Stream Improvement and U.S. Forest Service 2016). 

h Annual lost sequestration values are from IPCC (2006) 

GHG =greenhouse gas; COze =carbon dioxide equivalent 

To estimate the loss of wetland carbon stocks, estimates of vegetation cover carbon stocks in the 

project area are also based on average carbon stock per area estimates for Cowlitz County taken 

from the Carbon Online Estimator, with the soil carbon stocks taken from a study by the U.S. 

Department of Agriculture Forest Service (Trettin and Jurgensen 2003). These estimates of the 

carbon stock per area for forested, scrub-shrub, and herbaceous wetland cover types are multiplied 

by the corresponding changes in wetland area resulting from construction to estimate the change in 

carbon stocks associated with construction. 

To estimate the loss of ongoing carbon sequestration for the forested, scrub-shrub, and herbaceous 

wetland vegetation cover types, representative estimates of annual carbon sequestration for 

wetlands assumed similar to those in the project area are from a study by Hansen (2009). Based on 

values reported by Trettin and Jurgensen (2003), these annual carbon sequestration estimates are 

adjusted to include the reduction in annual carbon dioxide and methane emissions for wetlands. 

These adjusted estimates of the lost sequestration and reduction in emissions per area for forested, 

scrub-shrub, and herbaceous wetland vegetation cover types are multiplied by the corresponding 

changes in area resulting from the construction over the analysis period (2018 through 2038) to 

estimate the lost sequestration and reduction in emissions. 

Table 5 shows the emission factors (i.e., lost carbon stock and lost sequestration and reduction in 

emission values] derived for the wetland vegetation cover types. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-19 April2017 
614 


31623.578

Cowlitz County 

Table 5. Wetland Emission Factors 

Land Cover 

Category 

Wetland 

Notes: 

Vegetation 

Cover Type 

Forested 

Scrub-shrub 

Herbaceous 

One-time Lost Carbon 

Stock 

(MtCOzefacre)•· 

451.43 

266.52 

81.61 

ExiSting Conditions 

Annual Lost Sequestration 

[MtCOzefacrefyear)• 

-5.51 

-2.12 

1.26 

a One~time lost carbon stock values are derived from Carbon On~Line Estimator search result information for 

Cowlitz County (National Council for Air and Stream Improvement and U.S. Forest Service 2016), with the soil 

carbon stocks taken from a study by the Trettin and Jurgensen (2003) 

b Annual Jost sequestration values are from a study by Hansen (2009), adjusted to include the reduction in annual 

carbon dioxide and methane emissions taken from Trettin and Jurgensen (2003) 

GHG =greenhouse gas; COze =carbon dioxide equivalent; MtCOze =metric tons of carbon dioxide equivalent 

Dock Dredging During Terminal Construction and Operations-Sediment Carbon 

To estimate the potential loss of sediment carbon associated with dock dredging during coal export 

terminal construction and operations, the volume of sediment removed during coal export terminal 

construction and operations is multiplied by the density of the sediment, the total solids percentage 

in the sediment, and the total organic carbon percentage in the sediment. The resulting sediment 

carbon mass is converted to COz equivalents. The density of the sediment is based on engineering 

density information available online (Engineering ToolBox 2016). The total organic carbon 

percentage and the total solids percentage in the sediment are based on the chemical analysis 

results value reported for the existing bulk product terminal (Dredged Material Management 

Program 2016). 

Dredged material disposal would be determined through the Dredged Material Management 

Program process and options could include flow lane disposal for beneficial use in the Columbia 

River, or upland use of dredged material for pre-loading stockpile areas (Grette Associates 2014). 

For these dredge disposal options, how much of the organic carbon contained in the sediment that 

will actuaHy be exposed to the air, oxidized, and emitted as carbon dioxide is unknown. As a result, 

the estimates represent the potential loss of sediment carbon, and likely overestimate the actual 

sediment carbon emissions associated with dock dredging during terminal construction and 

operations. 

Table 6 shows the sediment carbon assumptions. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 2-20 April 2017 
615 


31623.579

Cowlitz County 

Table 6. Sediment Carbon Assumptions 

Dock Dredging Sediment 

Removed Period (cubic yard) 

Construction 500,000 

Annual Operations 100,000 

Notes: 

Sediment Density 

(lbs/ft3)• 

80 

80 

Total Solids 

(%)• 

78.84 

78.84 

Existing Conditions 

Total Organic 

Carbon 

(%)' 

0.271 

0.271 

1 cubic yard;:: 27 cubic feet; 1 pound;:: 0.00454 metric tons; 1 metric ton carbon= 44/12 metric tons C02e 

a Sediment density value is based on engineering density information available online (Engineering ToolBox 2016). 

b Total solids percentage value is from Dredged Material Management Program Suitability Determination for the 

existing bulk product terminal (Dredged Material Management Program 2016). 

c Total organic carbon percentage value is from the Suitability Determination for the existing bulk product terminal 

(Dredged Material Management Program 2016). 

Coal Extraction 

The coal market assessment indicates that coal extraction in the United States would increase in all 

four scenarios under the Proposed Action, as the export of coal through the coal export terminal 

would cause additional coal to be mined in the United States beyond that which is extracted for 

domestic consumption under the no-action. While coal production may increase, decrease, or stay 

the same across the U.S coal regions depending on the year and the scenario, in general the net 

change in extracted coal would come primarily from the Powder River Basin in Montana and 

Wyoming and the Uinta Basin in Utah and Colorado. Some change in domestic coal extraction is also 

expected in other regions outside the Powder River Basin and Uinta Basin due to indirect effects on 

the domestic coal market by the Proposed Action. 

The coal market assessment also indicates that coal extraction outside the United States would 

decrease in all four scenarios under the Proposed Action, as the export of coal through the terminal 

would reduce the demand for coal mining in other countries beyond what is currently extracted 

under the no-action. While coal extraction may increase, decrease, or stay the same across 

international coal regions depending on the year and the scenario, in general, the avoided extraction 

of competing coal (i.e., coal extraction in international markets that would no longer occur due to 

the substitution ofU.S.-based coal] would occur primarily in Australia, Indonesia, Russia, India, and 

China. Some change in international coal extraction is expected in other regions, both within and 

outside Asia. 

Coal extraction from regions assessed in the coal market assessment (i.e., the Powder River Basin, 

Uinta Basin, other U.S. regions, and non-U.S. regions] would result in GHG emissions from: 

Energy consumption (electricity and diesel fuel] for mining operations, including overburden 

removal. coal extraction, and reclamation. 

Methane from surface and underground mining. 

Under this approach, the indirect coal extraction GHG emissions from the Proposed Action are 

calculated by applying the GHG emission factors for each source of indirect emissions to the volumes 

of U.S. coal extraction that would be induced by the Proposed Action, covering the Powder River 

Basin, the Uinta Basin, and other U.S. coal regions. These GHG estimates are offset by GHG emissions 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas £missions Technical Report 2-21 Apri12017 
616 


31623.580

Cowlitz County Existing Conditions 

from competing coal extraction outside the United States, primarily in Australia, Indonesia, Russia, 

and China. From these annual estimates of net GHG emissions, the total indirect GHG emissions are 

calculated for coal extraction that would result from the Proposed Action during operations from 

2021 through 2038. 

The following sections describe the methods for assessing the GHG emissions impacts from coal 

extraction for each of the coal extraction regions impacted by the Proposed Action. 

Coal Extraction from U.S. Mines 

For all scenarios under the Proposed Action, surface mining is expected to increase in the United 

States, with changes in coal extraction occurring primarily in the Powder River Basin and the Uinta 

Basin during the analysis period. Smaller changes in surface coal extraction occur in other U.S. 

regions. 

Diesel fuel consumption needed for each ton of extracted at the surface mine as part of mine 

operation is estimated based on a recent life-cycle assessment study of coal exports from the 

Powder River Basin from the National Energy Technology Laboratory (Skone et al. 2016). The result 

is 0.351 gallon of diesel fuel per metric ton of coal mined. Based on estimates provided in Skone et 

al. (2016), the electricity consumption needed for mine operation (e.g., equipment, lighting) is 

estimated to be 11,500 megawatt-hours per million metric ton of coal mined. 

The GHG emissions from diesel fuel combustion are estimated using emission factors from Argonne 

National Laboratory's Greenhouse gases, Regulated Emissions, and Energy use in Transportation 

(GREET) model (Argonne National Laboratory 2016). The GHG emissions from electricity 

production are based on EPA's eGRID annual combustion output emissions rate for states where 

surface coal extraction is expected to change: Colorado, Illinois, Indiana, Montana, Pennsylvania, 

Utah, Virginia, West Virginia, Wyoming, Alabama, Arizona, Arkansas, Kansas, Kentucky, Maryland, 

New Mexico, North Dakota, Oklahoma, Tennessee, Texas, and Mississippi (U.S. Environmental 

Protection Agency 2017). 

Based on estimates provided in Spath et al. (1999), the electricity consumption needed for 

underground mine operation (e.g., equipment, lighting) is estimated to be 12,755 megawatt-hours 

per million metric ton of coal mined. The GHG emissions from electricity production use the same 

EPA eGRJD emission factors as the surface mining assessment. 

The surface mining methane emissions specific to each U.S. surface mining coal extraction basin are 

estimated per metric ton of coal mined based on data provided in EPA's 1990-2014 GHG Inventory. 

Underground mining emissions specific to each basin are unavailable. To estimate underground 

mining methane emissions, a U.S. average emission factor based on total 2014 U.S. underground 

mining emissions and production data from the EPA GHG Inventory was used for all underground 

basins (U.S. Environmental Protection Agency 2016b). For each basin a weighted average methane 

emission factor was calculated based on the share of basin underground and surface mining 

production (Mining Safety and Health Administration 2016) and underground and surface mining 

emission factors. Emission factors for surface and underground mining include both emissions 

directly from mining and from post-mining activities (e.g., handling, transportation). Table 7 

presents a summary of the consumption and emission factors used to assess the GHG emissions 

from U.S. coal extraction. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-22 April2017 
617 


31623.581

Cowlitz County 

Table 7. U.S. Mining Coal Extraction Factors• 

Material Input/Process 

Surface Mining Electricity Consumption 

Underground Mining Electricity Consumption 

Electricity emissions- Colorado 

Electricity emissions- Illinois 

Electricity emissions- Indiana 

Electricity emissions- Montana 

Electricity emissions - Pennsylvania 

Electricity emissions- Utah 

_!:f.:ctri~ty e_l11is~()~::- \fir~inia 

Electricit:y_ernissions-::1fV.est1/_irginia__ 

Electricity emissions- Wyoming 

Factor 

11,500 

12,755 

0.723 

0.452 

0.900 

0.591 

0.452 

0.809 

0.913 

Existing Conditions 

Unit Source 

MWh/Million Mt Skone et al. 2016 

of Coal 

MWh/Million Mt Spath et al. 1999 

of Coal 

MtC02ejMWh U.S. EPA 2017 

MtC02e/MWh U.S. EPA 2017 

MtC02e/MWh U.S. EPA 2017 

MtC02e/MWh U.S. EPA 2017 

MtC02e/MWh U.S. EPA 2017 

MtC02ejMWh U.S. EPA 2017 

U.S. EPA 2017 

MtC02e/MWh U.S. EPA 2017 

_!=Je~t_r:ic~t)re!11issions - Alabam~ 

Electricity emissions- Arizona 

Electricity _emissions- Arka~a~ 

Electr~city _"missions- Kansas 

Elec!r.icity_ernissions -l(entucky 

Electri_cit:y_ernissions- Marl~and 

~ ___ ():_<1:_81_ ___ MtC02_"/1:1_',\,'~-~-~_!!:5:_1i~ A 20 !2.__ 

0.507 MtC02e_,l~l,\fh__ U.S. EPA 2017 

0.587 f,1tC_~2"{":1_~ ______ 1J_:S. EP~_2_017 

_Electricityell1issions -]'jew_t>lexico __ _ 

_lil_ectri_city_emissions- North Dakota 

. ~lectricit)'e_missions- Oklahoma 

Electricity emissions- Tennessee 

Electricity emissions- Texas 

Electricity emissions- Mississippi 

Diesel consumption 

Diesel combustion emissions 

0.946 

0.531 

0.768 

0.827 

0.487 

0.540 

0.450 

0.351 

0.011 

MtC02e{f,1\VIl 

MtC02e/MWh 

MtC02e/MWh 

MtC02e/MWh 

Gallons/Mt of Coal 

MtC02e/Gallon 

U.S. EPA 2017 

U.S. EPA 2017 

-------- u.s. EPA 2017 

U.S. EPA 2017 

U.S. EPA 2017 

Skone et al. 2016 

Argonne National 

_ ..................... ____ ····~-~-· .................. - ......... ~ ... -~.- ·-·····~ __ Labora~rz~E~~-- Surface Mining Methane Emissions- Central 0.025 MtC02ejMt of U.S. EPA 2016b 

P,pp_a~chia Basin - Virgini"._ Coal 

Surface Mining Methane Emissions- Central 0.025 MtC02e/Mt of U.S. EPA 2016b 

Appalachia Basin- West Virginia Coal 

Surface Mining Methane Emissions- Central 0.024 MtC02e/Mt of U.S. EPA 2016b 

~l.'r.~!".~~LaB_a~in-:: E.~.st ··--··~·---·_c __ o __ a_I ______ ···---·------~------·-·--·-·--- Surface Mining Methane Emissions -Illinois 0.035 MtC02e/Mt of U.S. EPA 2016b 

Basin ......... ··--··----~--... coal 

Surface Mining Methane Emissions- Northern 0.020 MtC02e/Mt of U.S. EPA 2016b 

Great Plains (Powder River Basin)- Wyoming Coal 

and Montana 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·23 Apri12017 
618 


31623.582

Cowlitz County Existing Conditions 

Material Input/Process Factor Unit Source 

Surface Mining Methane Emissions- Northern 0.005 MtC02e/Mt of U.S. EPA 2016b 

Great Plains (Powder River Basin)- North Coal 

Dakota 

Surface Mining Methane Emissions- Northern 0.061 MtC02e/Mt of U.S. EPA 2016b 

Appalachia Basin Coal 

Surface Mining Methane Emissions- Rockies 0.034 MtCOZe/Mt of U.S. EPA 2016b 

~~_reen_ Riv"_f,~_i'i_ Coal 

Surface Mining Methane Emissions- Rockies 0.016 MtC02e/Mt of U.S. EPA 2016b 

Coal 

Surface Mining Methane Emissions- Rockies 0.007 MtC02e/Mt of U.S. EPA 2016b 

(San Juan Basin) Coal 

Surface Mining Methane Emissions- Rockies 0.032 MtC02e/Mt of U.S. EPA 2016b 

. (R_ato~t1_13~~nL__ Coal 

Surface Mining Methane Emissions- Warrior 0.029 MtC02e/Mt of U.S. EPA 2016b 

Basin Coal 

Surface Mining Methane Emissions- West 0.071 MtC02eJMt of U.S. EPA 2016b 

Interior (Arkoma Basin) Coal 

Surface Mining Methane Emissions- West 0.033 MtCOZe/Mt of U.S. EPA 2016b 

Interior (Forest City, Cherokee Basins) Coal 

Surface Mining Methane Emissions West 0.011 MtCOZe/Mt of U.S. EPA 2016b 

__ IIl~erio_r_{G_ulf Coast~asj!l) Coal 

Underground Mining Methane Emissions- U.S. 0.171 MtC02e/Mt of U.S. EPA 2016b 

Coal 

'Emission factors for surface and underground mining include both mining and post mining activities. 

Sources: Argonne National Laboratory 2016, Skone et al. 2016, U.S. Environmental Protection Agency 

2015b, U.S. Environmental Protection Agency 2016b 

Mt =metric tons of material; MWh =megawatt-hour; co,e =carbon dioxide equivalent 

Coal Extraction from International Mines 

For all scenarios under the Proposed Action, with the exception of China in the Upper Bound 

scenario, coal mining is expected to decrease outside the United States, with changes in coal 

extraction occurring primarily at underground and surface coal mines in Australia, Indonesia, India, 

Russia, and China across the analysis period. Smaller changes in surface and underground coal 

extraction are expected to occur in Canada and South Africa. 

For each of these international regions, coal extraction emissions were estimated using region· 

specific emission factors for coal mining methane emissions, electricity use, and diesel fuel use. 

Indirect GHG emissions from methane released in coal mining were obtained from the latest United 

Nations Framework Convention on Climate Change (UNFCCC) GHG inventory data for methane 

emissions from underground and surface coal mining emissions (United Nations Framework 

Convention on Climate Change 2015). These emissions estimates include underground and surface 

mining and post-mining fugitive emissions but exclude abandoned mine emissions, as they are not 

directly related to ongoing coal extraction. 

China, Indonesia, and India did not report coal mining methane emissions to UNFCCC; for these 

regions this analysis used average Tier 1 underground and surface mining, including mining and 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·24 April 2017 
619 


31623.583

Cowlitz County Existing Conditions 

post-mining, from IPCC GHG inventory guidelines (Intergovernmental Panel on Climate Change 

2006). These IPCC emission factors were combined with Global Methane Initiative data for shares of 

surface mining and underground mining of total coal production. According to the Global Methane 

Initiative data, Indonesia produced coal from 100% surface mines, China produced coal from 10% 

surface and 90% underground mines, India produced coal from 90% surface and 10% underground 

mines, and South Africa produced coal from 51% underground and 49% surface mines. For China, 

the emission factor was adjusted to account for quantities of utilized methane based on Global 

Methane Initiative data (Global Methane Initiative 2015). Utilized methane represents coal-mining 

methane that is captured and consumed on site or off site. This method for China's emission factor 

follows IPCC guidelines (Intergovernmental Panel on Climate Change 2006). 

For regions where UNFCCC methane emission data were used, a coal mining methane emission 

factor was derived by dividing the total methane emissions for the most recent available year 

(2014) by Energy Information Agency coal production data for the specific region and year (2017). 

Electricity and diesel consumption from on-site mining activities came from an Ecoinvent report on 

environmental impact inventories from international energy systems (Dones et al. 2007 in 

International Energy Agency 2015). Region-specific electricity emission factors as indicated in the 

International Energy Agency were applied to calculate indirect C02 emission based on the 

Dones et al. consumption values (International Energy Agency 2015), and used diesel combustion 

emission factors from the Argonne National Laboratory's GREET model (Argonne National 

Laboratory 2016). 

Table 8 presents a summary of the consumption and emission factors used to assess the GHG 

emissions from international coal extraction. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report z-zs April2017 
620 


31623.584

Cowlitz County Existing Conditions 

Table 8. International Underground and Surface Mining Coal Extraction Factors 

Material Input/Process 

Australia:_:le_ctr_i~~r_c:onsurnption 

Canada~- _electrici~_<:())l_S!Jl:'lP.ti"_n_~-· 

Indonesia- electricity consumption 

Russia- electricity consumption 

South Africa- electricity consumption 

Australia- electricity emissions 

Canada -electricity emissions 

China- electricity emissions 

India- electricity emissions 

Indonesia- electricity emissions 

RussiaChina - diesel emissions 

. .!_rl_clia - di:_s_:i_c."_~Uill_P~.."n_ 

Indonesia- diesel consli!Tlf'E_i_<ln ________ _ 

Russia- diesel consumption 

South Africa -diesel consumption 

Diesel combustion emissions 

Australia- Coal Mine Methane 

Canada- Coal Mine Methane 

China- Coal Mine Methane 

Indonesia- Coal Mine Methane 

Russia- Coal Mine Methane 

South Africa- Coal Mine Methane 

Factor 

25.1 l<_\\'~/f1.1t()fCoal 

12.9 kWh/Mt of Coal ,.,.,~ ---------,--, 

--······· .. -···~kWh,I_Mt of Coal 

12.9 kWh/Mt of Coal 

93.0 kWh/Mt of Coal 

13.9 kWh/Mt of Coal 

798.38 g COz/kWh 

158.4 g COz/kWh 

711.9 g COz/kWh 

789.24 g COz/kWh 

761.21 g COz/kWh 

41.8 

48.3 

0.011 

0.04 

0.02 

0.30 

MJ/Mt of Coal 

MtC02e/Gallon 

Mt COze/Mt of Coal 

Mt COze/Mt of Coal 

Mt COze/Mt of Coal 

Mt COze/f1.1_~of Coal 

Mt COze/Mt of Coal 

Mt COzeJ'Mt of Coal 

Mt COze/Mt of Coal 

Source 

Dones et al. 2007 

Dones et al. 2007 

Dones et al. 2007 

Dones et al. 2007 

Dones eta!. 2007 

Dones et al. 2007 

lEA 2015b 

lEA 2015b 

lEA 2015b 

lEA 2015b 

lEA 2015b 

Dones et al. 2007 

Dones et al. 2007 

Argonne National 

Laboratory 2016 

UNFCCC 2017, EIA 2016 

UNFCCC 2017, EIA 2016 

IPCC 2006, GMI 2015, 

EIA 2016 

IPCC 2006, GMI 2015 

IPCC 2006, GMI 2015 

UNFCCC 2017, EIA 2016 

IPCC 2006, GMI 2015 

Sources: Argonne National Laboratory 2016, Intergovernmental Panel on Climate Change 2016, Dones 

et al. 2007, Global Methane Initiative 2015, lEA 2015, UNFCCC 2017 

Mt =metric tons of material; kWh= kilowatt-hour; g grams of material; Mj =mega joule; COz =carbon 

dioxide; COze =carbon dioxide equivalent; IPCC =Intergovernmental Panel on Climate Change; GMI = 

Global Methane Initiative 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-26 April ?017 
621 


31623.585

Cowlitz County Existing Conditions 

Uncertainty Associated with Methane Emissions from Coal Extraction 

Methane emissions during coal extraction represent a major source ofGHG emissions in the 

production of coal. In particular. methane concentrated in coal deposits is released during extraction processes. The 

amount of methane concentrated in coal deposits varies significantly between regions, but underground deposits 

have much higher concentrations than surface deposits (Intergovernmental Panel on Climate Change 2006). 

Measurements and estimates of methane Underground Mining Surface Mining 

released during mining can be highly Tier 

uncertain, even at the mine or basin level. As Methodology Mining Post-Mining Mining Post-Mining 

indicated in the adjacent table, tbe Tier 3 ~Mine 

uncertainty for coal mine methane emissions Specific Factors +/-2-30% N/A 

can be well over 100%.• The majority of Tier 2 - Basin international emission factors used in the Specific Factors +j-50-75% +/-50% +/-200% +j-50% GHG analysis are from UNFCCC sources, Tier I - Global where participating countries report both Averages +j-200% +/-300% +/-300% +/-300% mining and post-mining methane for 

underground and surface activities. Source: Intergovernmental Panel on Climate Change 2006 

However, which Tier each country used and 

IPCC Tier 1 Methane Emission the associated uncertainty are not reported. For 

Factors - Mining and Post-Mining countries that do not report coal mining emissions (t.e., 

(Mt COzeLMt coal} China, Indonesia, India, and South Africa for this 

Source assessment), IPCC (2006) Tier 1 emission factors are 

Catego!:.Y Low Average High used as shown in tbe table to the left. These factors have 

Underground uncertainty ranges from+/· 200 to 300 percent. 

Mining 0.18 0.34 0.49 

Surface Mining 0.01 0.02 0.04 

Source: Intergovernmental Panel on Climate Change 2006 Uncertainty Range for 

2014 GHG lnvento!:,Y 

Source Catego!:,Y Low High 

In general, the uncertainty associated with the GHG emission Coal Mining estimates from coal mining are an order of magnitude higher Methane -12% 15% than those associated with coal combustion. As an example, the Fossil Fuel table to the right contrasts the source uncertainties for emission Combustion -2% 5% measurements from coal methane and fossil fuel combustion 

from tbe latest U.S. Environmental Protection Agency GHG Source: U.S. EPA 2016b 

inventory estimates.b As indicated, coal mining methane emissions have a relatively higher uncertainty than those 

from fossil fuel combustion. 

Coal methane emissions from extraction are key contributors to net GHG emissions in the GHG analysis. Because of 

this contribution, the net GHG estimates are estimated for both with and without coal extraction emissions for each 

ofthe coal market assessment scenarios. 

I 'lPCC uncertainties for coal mine methane emissions reflect ranges of percent deviations from the reported emission factors 

I and are based on expert judgement (IPCC 2006). 

bThese values reflect the 95% confidence interval in percent deviations above and below the reported 2014 value for each 

source category [U.S. EPA 2016b). 

Mlllennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-27 April2017 
622 


31623.586

Cowlitz County Ex1stmg Conditions 

Coal methane emissions from extraction are key contributors to net GHG emissions in the GHG 

analysis. Because of this contribution, the net GHG estimates are estimated both with and without 

coal extraction emissions. The uncertainties of these estimates are detailed in the text box above. 

China, a major driver of this assessment's extraction emissions, currently produces large amounts of 

coal from methane-intensive underground mines. China has greatly expanded coal mine methane 

recovery and utilization over the past decade (Global Methane Initiative 2015). Based on its recently 

developed Intended Nationally Determined Contributions, China plans to continue to enhance 

vented methane recovery and utilization (United Nations Framework Convention on Climate Change 

2015), but this is not reflected in this analysis due to data restrictions. Coal mine methane utilization 

values were taken into account in the emission factor for China based on data reported as of 2013 

(Global Methane Initiative 2015). Increases in coal mine methane utilization in China would result in 

a decrease in the emission factor for China and an increase in the resulting net GHG estimates for 

each scenario (i.e., the offsetting of underground mined coal in China would result in offsetting a 

smaller quantity of methane from the estimate of net GHG emissions). 

Rail Transport 

Rail Transport to Washington State 

Indirect sources of GHG emissions from coal transport from the Uinta and Powder River Basins to 

Washington State include diesel combustion emissions from locomotive operation of empty and 

loaded Proposed Action-related trains. The Uinta Basin is located in Colorado and Utah, whereas the 

Powder River Basin is located in Montana and Wyoming. The distances from six coal extraction sites 

(one each in Colorado and Utah; two in Montana; two in Wyoming) to Washington State range from 

627 miles to 946 miles by rail. For this analysis, each train is assumed to consist of four locomotives 

and 125 rail cars, each loaded with 121 metric tons of coal22 (ICF and Hellerworx 2017). For the 

return trip, this analysis assumes that the train would make a return trip to the coal basins with four 

locomotives and empty rail cars. Figure 6 provides an illustration of coal train routes from the 

Powder River Basin and the Uinta Basin to the project area. 

22 The approximate amount of coal that would be required to transport 44 million metric tons of coal in Bloaded 

unit trains, 125 rail cars per day, 365 days per year. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-28 April2017 
623 


31623.587

Cowlitz County Existing Conditions 

Figure 6. Rail Transport of Coal to the Project Area 

To calculate emissions, the gross mass of the loaded and empty coal trains is derived from BNSF 

data to determine the gross ton-miles of rail traffic associated with each scenario.23 Table 9 provides 

an overview of the mass associated with the locomotives, the loaded coal, and the rail cars. 

Table 9. Mass of Coal Train Components 

Train Component 

Locomotive (one] 

Rail car (one) 

Coal per car 

Gross train mass (full) 

196 

19 

121 

18,222 

The mass of the trains is multiplied by the total distance traveled to bring coal from mines in 

Colorado, Montana, Utah, and Wyoming to Washington State. The relative amount of train traffic 

from each extraction site is dependent on the coal market assessment scenario and year. For 

example, as the coal throughput at the coal export terminal remains constant, the relative shares of 

coal coming from the Uinta and Powder River Basins shifts. Table 10 provides estimates of rail 

23 Gross-ton miles refer to ton-miles travelled that include the mass of the railcars and locornotives in addition to 

the mass of the cargo. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse G~s Emissions Technlca! Report 2-29 April2017 
624 


31623.588

Cowlitz County Existtng Conditions 

distances from coal extraction sites to Washington State for the coal supply regions modeled that 

could export from the project area. 

Table 10. Coal Supply Regions and Distances to Washington State 

Coal Type Rail Distance to Washington State (Miles) 

Montana Powder River Basin Coal 

Montana Signal Peak 

Wyoming Powder River Basin Coal (8,400 Btuflb) 

Wyoming Powder River Basin Coal (8,800 Btuflb) 

Colorado Uinta Basin Coal 

Utah Uinta Basin Coal 

Source: Distances estimated via geographic information system mapping. 

Btuflb = British thermal units per pound 

797 

760 

946 

946 

839 

1,013 

The fuel consumption for transport to Washington State is estimated by multiplying the ton-miles 

travelled for each data year by a fuel consumption per ton-mile factor for average locomotive diesel 

consumption.24 The GHG emissions are estimated by multiplying the total fuel consumption by a rail 

diesel-specific combustion factor, as shown in Table 11. 

Table 11. Emission Factors from Rail Diesel Fuel 

Greenhouse Gas Emission Factor (MtCOze/1,000 gallons) 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Source: U.S. Environmental Protection Agency 2015a 

MtC02e =metric tons of carbon dioxide equivalent 

Rail Transport in Washington State beyond Cowlitz County 

10.26 

O.Dl 

0.02 

10.29 

Indirect sources of GHG emissions from rail transport of coal in Washington State include diesel 

combustion emissions from locomotives. GHG emissions from rail transport of coal within 

Washington State to the border of Cowlitz County are estimated using the same approach as for 

transport to Washington State. Powder River and Uinta Basin coal would be transported through 

Washington State to Cowlitz County via Pasco and through the Columbia River Gorge, entering 

Cowlitz County near Woodland. Empty trains returning to the Powder River Basin would take a 

longer northern route (via Stampede Pass) whereas empty trains returning to the Uinta Basin return 

along the southern route. Therefore, returns to Powder River Basin are longer (Table 12). 

24 An estimate of 833 gross-short ton miles per gallon of diesel is used (BNSF Railway Company 2013). 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-30 April 2017 
625 


31623.589

Cowlitz County Existing Conditions 

Table 12. Coal Types and Distances within Washington State beyond Cowlitz County 

Coal Type Loaded Train Distance (Miles) Empty Train Distance (Miles) 

Powder River Basin coal 

Uinta Basin Coal 

401 

18 

Note: Estimate does not include distance travelled within Cowlitz County 

Source: ICF and Hellerworx 2017 

Rail Transport in Cowlitz County 

488 

18 

Direct sources of GHG emissions from rail transport of coal in Cowlitz County include diesel 

combustion emissions from the operation of locomotives in Cowlitz County. Emissions include 

round-trip emissions from loaded and empty trains on the BNSF main line as well as the Reynolds 

Lead and BNSF Spur leading to the project area from the BNSF main line. Loaded trains travel to the 

project area from near Woodland, whereas empty trains travel along the BNSF main line to near 

Vader. GHG emissions from rail transport of coal from the border of Cowlitz County to the project 

area are estimated using the same approach as for the transport outside the county. Emissions are 

estimated from the project area to the county border; a distance of 25.1 miles for loaded trains 

entering Cowlitz County and 28.5 miles for empty trains leaving the county (Table 13). 

Table 13. Rail Distances Traveled within Cowlitz County 

Rail Route 

Cowlitz County Border to Longview junction 

Longview junction to project area 

Longview junction to Cowlitz County Border 

Total 

Source: ICF and Hellerworx 2017 

Locomotive Operation in the Project Area 

Loaded Train Distance 

(Miles) 

17.9 

7.1 

25.1 

Empty Train Distance 

(Miles) 

7.1 

21.4 

28.5 

Direct GHG emissions at the project area for the Proposed Action include emissions from the 

movement of coal trains around the 1.65- mile loop, the on-site idling of coal trains, and the 

operation of a switch locomotive to move cars and assemble trains for departure. The analysis 

assumes that it takes 1.85 hours to unload a 125-car unit train, each train has a 5-hour idle period 

prior to departing the facility, and the switch locomotive operates for 8 hours a day. This emission 

source includes the sum of these three activities. Emission factors for line-haul locomotives are 

based on projected changes in the locomotive fleet over the next 30 years (U.S. Environmental 

Protection Agency 2009b). These emission factors are based on engine load and associated fuel 

consumption during transport to and from the facility, time to unload coal from the train cars, and 

total annual coal throughput. The power demand is proportional to engine load, which varies in 

intensity depending on whether the locomotive is hauling freight or idling. The fuel consumption is 

estimated based on the power demand, which is estimated based on the engine load and duration of 

the activity. The fuel consumption is then multiplied by fuel combustion emission factors for 

locomotives as provided in Table 14. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-31 Aprll 2017 
626 


31623.590

Cowlitz County Existing Conditions 

Table 14. Emission Factors for Locomotives 

Greenhouse Gas Emission Factor (Mtco,e; 1,000 gallons) 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Source: U.S. Environmental Protection Agency. 2009b. Emission Foctorsfor Locomotives. 

MtCOze :::: metric tons of carbon dioxide equivalent 

Vehicle-Crossing Delay 

10.23 

<0.1 

0.1 

10.31 

Direct sources of GHG emissions from vehicle-crossing delay include the incremental fuel emissions 

caused by vehicle delay at grade crossings in Cowlitz County due to train traffic to the project area. 

This emission source is based on existing rail infrastructure. GHG emissions are determined by 

estimating the gate downtime per day at grade crossings along the BNSF Spur and Reynolds Lead 

(between the BNSF main line and the project area) and at public at-grade crossings along the BNSF 

main line in Cowlitz County, and then estimating the average delay per vehicle for each crossing. The 

emission estimate does not consider any track improvements to the Reynolds Lead and BNSF Spur. 

Emissions are estimated based on the average volume of vehicle traffic for each crossing. The fleet 

mix, or relative shares of vehicle types delayed at the crossing, is assumed representative of Cowlitz 

County as a whole, and is derived from the MOtor Vehicle Emission Simulator (MOVES) model (U.S. 

Environmental Protection Agency 2014a). The MOVES model provides emission factors for each 

vehicle type in grams per mile travelled, which are converted into vehicle delay emissions by 

multiplying by the assumed average vehicle speed of 2.5 miles per hour.25 The mix of vehicles and 

their contribution to the weighted average Cowlitz County vehicle traffic emission factor is shown in 

Table 15. 

zs The MOVES emission factor for vehicle idling is based on a slow operation speed of 2.5 miles per hour. 

Millennium Bulk: Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 2-32 Apri12017 
627 


31623.591

Cowlitz County Existing Conditions 

Table 15. Weighted Vehicle Fleet Mix for Cowlitz County, 2028 

Emission Fraction of Weighted Emission 

Vehicle Factor Each Vehicle Factor (g CO,ef 

Vehicle Type Speed (mph) (gfmi)• (%)b vehicle-hour) 

Combination long-haul truck 2.5 1,866 1.13 52.71 

Combination short-haul truck 2.5 1,821 0.82 37.33 

Intercity bus 2.5 1,909 0.01 0.48 

Light commercial truck 2.5 375 8.07 75.57 

Motor home 2.5 1,259 0.88 27.70 

Motorcycle 2.5 443 3.22 35.67 

Passenger car 2.5 273 48.12 328.01 

Passenger truck 2.5 367 33.14 304.23 

Refuse truck 2.5 1,839 0.15 6.90 

School bus 2.5 1,253 0.36 11.28 

Single unit long-haul truck 2.5 1,108 0.16 4.43 

Single unit short-haul truck 2.5 1,153 3.92 112.99 

Transit bus 2.5 1,648 0.04 1.65 

Total 100.00 998.95 

Notes: MOVES assumes a vehicle speed of 2.5 miles per hour to simulate idling emissions. 

Sources: 

a U.S. Environmental Protection Agency 2014a 

b ICF 2017b 

The delay is estimated for each road segment in the county and described as the total minutes of 

delays (in vehicle-hours) as well as the total vehicles affected. The emissions are estimated by 

multiplying the above fleet mix by vehicle-specific emission factors (in grams per vehicle-hour of 

delay) and then by the total amount of delay over the period of a year (Table 16). 

Millennium Built; Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2·33 April 2017 
628 


31623.592

Cowlitz County Existing Conditions 

Table 16. Activity Data for Vehicle Delay in Cowlitz County, 2028 

Avg. Avg. Daily Number of Total Vehicles 

Train Train Traffic in Both Lanes in Delay Delayed 

Daily Length Speed Directions Both (min per Day 

Street Trains (feet) (mph) (vehfday) Directions fday) (vehfday) 

Study Crossings along the Reynolds Lead and BNSF Spur 

Industrial Way 16 5,944 10 12,100 2 4,315 975 

(SR 432) 

Oregon Way (SR 16 5,944 10 18,770 4 6,379 1,513 

433) 

California Way 16 5,946 8 4,800 2 2,401 477 

3rd Avenue (SR 16 5,946 8 20,720 4 10,893 2,060 

432) 

Dike Road 16 6,301 10 1,100 2 371 94 

Project access 16 5,944 5 1,340 2 1,522 209 

(opposite 38th 

Avenue) 

Weyerhaeuser 16 5,944 8 3,900 4 1,840 388 

Access (opposite 

Washington 

Way) 

Weyerhaeuser 16 5,944 10 800 2 240 64 

Access 

Public At-Grade Crossings along the BNSF Main Line In Cowlitz County 

Taylor Crane 8 5,546 so 50 2 0.4 0.5 

Road in Castle 

Rock 

Cowlitz Street in 8 5,546 so 1,450 2 13 14 

Castle Rock 

Cowlitz Gardens 8 5,546 62 850 2 6 7 

Road in Kelso 

Mill Street in 8 5,546 40 3,000 2 39 35 

Kelso 

S River Road/ 8 5,546 40 2,200 2 28 25 

Yew Street in 

Kelso 

Toteff Road/ 8 5,546 62 1.450 2 10 12 

Port Road in 

Kalama 

W Scott Avenue 8 5,546 62 3,100 2 21 26 

in Woodland 

Davidson Avenue 8 5,546 62 2,350 2 16 20 

in Woodland 

Whalen Road in 8 5,546 62 1,800 12 15 

Woodland 

Source: ICF and DKS Associates 2017. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-34 April2017 
629 


31623.593

Cowlitz County Existing Conditions 

Coal Export Terminal Construction 

Direct sources ofGHG emissions from construction include operation of the construction equipment 

itself as well as the vehicles to bring employees and construction materials to the project area. Fossil 

fuels are com busted for the operation of mobile combustion equipment used for demolition and 

earthwork to prepare the site. In addition, indirect GHG emissions result from production of the 

materials required for construction of the Proposed Action, such as conveyors, roadways, docks, and 

berms. Table 17 summarizes the required equipment and duration of use. 

Table 17. Major Construction Activities and Typical Equipment Fleets' 

Rail Infrastructure and Conveyors, Transfer 

Rotary Car Dump Stations and Surge Shiploader, Dock, and 

Construction Bins Trestles 

Equipment MaxQty. Duration MaxQty. Duration MaxQty. Duration 

Type per Month (months) per Month (months) per Month (months) 

Mobile cranes 2 18 2 18 2 18 

(25-50 ton) 

Mobile cranes 2 18 2 18 2 18 

(50-150 ton) 

Mobile cranes 18 18 18 

(150-300 ton) 

Water trucks 1 12 12 0 0 

Dump trucks 3 12 1 12 0 0 

Dozers 5 0 0 0 0 

Excavators 1 9 2 12 3 

Rollers 2 9 2 12 3 

Graders 2 9 0 0 3 

Compactors 2 9 2 12 3 

Track laying z 0 0 0 0 

machine 

Drill rigs z 2 6 0 0 

Impact piling rigs 2 6 z 6 2 6 

Loaders 12 1 12 1 9 

River barge 0 0 0 0 2 18 

Generator 2 18 2 18 2 18 

Air compressor z 18 2 18 2 18 

Notes: 

' Typical construction fleet may be modified with equivalent items as construction activities demand. 

Sources: URS Corporation 2014b, ICF 2017b 

Combustion emissions estimates are obtained from the NON ROAD emissions model 

(U.S. Environmental Protection Agency 2009a) for the nonroad equipment. Construction activity is 

assumed to occur 8 hours per day, 5 days a week, 52 weeks per year, with the exception of the tracklaying machine, which operates 4 hours per day. Emission factors are applied to the maximum 

numbers of equipment operated, duration of use, and horsepower, to obtain annual emissions. 

Table 18 provides information on the emission factors for construction equipment. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-35 Apri12017 
630 


31623.594

Cowlitz County 

Table 18. Construction Equipment Activity Data and Emission Factors 

Equipment Type 

Crane, 50-ton 

Crane, 150-ton 

Crane, 300-ton 

Water trucks 

Dump trucks 

Dozers 

Excavators 

Rollers 

Graders 

Compactors 

Track laying machine 

Drill Rigs 

Impact Piling Rigs 

Loaders 

Generator 

Air Compressor 

Notes: 

Engine Size 

165 

280 

450 

350 

350 

185 

230 

350 

185 

25 

(NONROAD Default)• 

(NONROAD Default)• 

140 

30 

25 

Fuel 

Type 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Diesel 

Number of 

Equipment 

Units 

1 

4 

0.4 

2 

3.8 

1.8 

3.8 

0.5 

1.2 

3 

1 

6 

6 

Existing Conditions 

Emission Factor 

(MtCOzejyear per Unit)' 

109.3 

183.0 

195.4 

98.8 

98.8 

396.5 

886.6 

100.3 

132.7 

0.2 

416.8 

57.1 

57.1 

416.8 

108.8 

0.3 

a Assumes track~laying machine uses one diesel locomotive and one front end loader engine. Assumes full·time 

locomotive used 4 hours/day. 5 daysjweek. 

b Horsepower and weight estimates are based on capacity ratings and industry specifications, or average ratings 

per equipment type. Where horsepower could not be assumed, an average horsepower rate in NON ROAD for 

the equipment type is used. 

' To calculate annual emissions. this emission factor is multiplied by 1.5 years to estimate the emissions for 18 

months of construction. 

Source: ICF 2017b 

MtCOze =metric tons of carbon dioxide equivalent 

The impact of construction employee commuting is calculated using the MOVES model (U.S. 

Environmental Protection Agency 2014a), assuming that construction workers would use singleoccupant vehicles with a mean round-trip travel time of 48.2 minutes. The analysis assumes that the 

200 workers would be commuting during construction. At an estimated speed of 35 miles per hour, 

this amounts to 1,462,067 miles per year travelled. This distance is multiplied by emission factors 

for typical commuting vehicles provided by the MOVES model to calculate annual emissions. 26 

For the construction barges (operating under their own power or pushedjtowed by another vessel), 

emissions are calculated using the EPA's AP-42 method for large diesel engines (U.S. Environmental 

Protection Agency 1996). The analysis assumes that the construction barges would have a 

positioning time of 1 hour with 1 round trip per day, 5 days per week, 52 weeks per year. 

Summaries of the barge activity and emission factors are available in Table 19 and Table 20, 

respectively. 

26 The analysis assumes a S0/50 mix of gasoline and E·BS for construction employee commuting vehicles. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-36 April 2017 
631 


31623.595

Cowlitz County Existing Conditions 

Table 19. Barge Activity and Energy Use for Coal Export Terminal Construction 

Barge Activity 

Barges used 

Engine size (propulsion) 

Positioning time 

Total power per trip 

Construction trips 

Annual power 

Source: ICF 2017b 

hp =horsepower; MMBtu= million British thermal units per year 

Table 20. Emission Factors for Construction Barges 

Greenhouse Gas 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

kgCOze per MMBtu 

74.8 

0.1 

0.1 

75.0 

Source: U.S. Environmental Protection Agency 1996 

Energy Consumption Variables 

2 

3,500 hp 

1 hour 

7,000 hp 

260 trips per year 

1,820,000 MMBtu per year 

Emission Factor (MtCOze/ 1,000 gallons) 

10.23 

0.1 

0.1 

10.25 

kgCOze =kilograms of carbon dioxide equivalent; MMBtu:::: million British thermal units; MtC02e =metric tons of 

carbon dioxide equivalent 

The project area does not have an existing barge dock. Therefore, the material from incoming barges 

would be off-loaded at an existing dock elsewhere on the Columbia River and transported to the 

project area by truck. Emissions from trucks hauling construction material to the project area are 

estimated by determining the annual miles traveled by trucks going to and from the construction 

site and then multiplying those miles traveled by a per-mile emission factor from EPA's MOVES 

model. The peak annual trips for the Proposed Action are assumed 56,000 round trips (88,000 

throughout the entire construction period) (URS Corporation 2015). Short-haul combination 

tractor-trailer trucks are assumed to move construction material with 4 7 roundtrip miles of travel 

in the county. The GHG emission factor is from a MOVES model run for Cowlitz County for the year 

2018 (i.e., 1,561 to 1,930 grams ofC02e per mile, depending on operating conditions]. 

The GHG emission assessment of the Proposed Action also includes an analysis of the emissions 

associated with the production of materials used in the initial construction of the coal export 

terminal. Production of materials, for the purpose of this analysis, includes raw materials extraction 

and processing, and product manufacturing. Transportation requirements are included for all 

supply chain elements up to the point of product manufacturing. The transportation of products 

from the manufacturer to the project area is modeled separately, as described in the previous 

paragraph. 

The GHG emissions associated with construction materials for the Proposed Action are estimated 

using primary data from coal export terminal facility designs from the Applicant for total estimated 

material mass. Table 21 presents the estimated material masses for the coal export terminal by 

general type of material (e.g., concrete, steel, aggregate, and asphalt). The material masses are 

applied to the most recent and relevant emission factors for manufacturing of each material type. 

Table 21 summarizes these emission factors, modeling sources, and specific assessment notes or 

assumptions. 

Mii!Emnium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-37 April 2017 
632 


31623.596

Cowlitz County Existing Conditions 

Table 21. Terminal Material Mass and Emission Factors 

Emission 

Facility Material/ Mass Emission Factor Material(s) Factor (kg Emission Factor 

Application (Mt)• Assumed COze/Mt) Source 

Concrete 410,000 Concrete 180.3 UC Berkeley 2016 

Berm Import 730,000 Primarily aggregates, assumed to 3.9 Wernet et al. 

Material be limestone gravel 2016 

Transfer towers, galleries, etc. 

Structural Steel 9,500 Low-alloy steel 799.8 Wernet etal. 

2016 

Steel Piles 6,900 Low-alloy steel 799.8 Wernet etal. 

2016 

Rebar 9,300 Reinforcing steel 2,361.2 Wernet etal. 

2016 

Miscellaneous Steel 1,900 Low-alloy steel 799.8 Wernet et al. 

2016 

Rail System 

Rail 1,600 Steel 3,100.0 Hill et al. 2011 

Gravel Ballast 57,600 Aggregate 8.0 Hill et al. 2011 

Concrete Ties 9,800 Concrete 180.3 UC Berkeley 2016 

Conveyors 

Idlers, belts, drives, 8,300 Low-alloy steel 799.8 Wernet et al. 2016 

take-up, stringers 

Bridge Structures~> 

Concrete 8,190 Concrete 180.3 UC Berkeley 2016 

Rebar 910 Reinforcing steel 2,361.2 Wernet et al. 2016 

Roadway;< 

Asphalt 18,050 Asphalt 91.1 EIO-LCA: 2002 

Purchaser (CMU 

GDI 2008) 

Aggregate 11,950 Limestone gravel 3.9 Wernet et al. 2016 

Buildings 200 Assumed to be made up of low- 532.2 Wernet etal. 

(Administration & alloy steel (33.3% of mass) and 2016,UC 

Maintenance) reinforced concrete (66.6%) Berkeley 2016 

Piping/Utilities SOD Ethylene pipeline 1,509.2 Wernet et al. 2016 

Miscellaneous 250 Assumed to be made up oflow- 532.2 Wernet et al. 

pumps, precast alloy steel (33.3% of mass) and 2016, UC Berkeley 

concrete, etc. reinforced concrete (66.6%) 2016 

Electrical 

Substation 100 Low-alloy steel 799.8 Wernet et al. 2016 

MCC Buildings 125 Assumed to be made up of steel 799.8 Wernet eta!. 

(33.3% of mass) and reinforced 2016, UC Berkeley 

concrete ( 66.6%) 2016 

Conduit, cable tray, 700 General cable 4,923.8 Wernet et al. 2016 

cable, etc. 

Mi!lenn·lum Bulk Terminals long•./tew 

SEPA Greenhouse Gas Emissions Technical Report 2-38 April 2017 
633 


31623.597

Cowlitz County Existing Conditions 

Emission 

Facility Material/ Mass Emission Factor Material(s) Factor (kg Emission Factor 

Application (Mt)• Assumed COze/Mt) Source 

Major Equipment 

Tandem Rotary 500 Low-alloy steel 799.8 Wernet et al. 2016 

Dumper 

Stackers 1,875 Low-alloy steel 799.8 Wernet et al. 2016 

Reclaimers 3,300 Low-alloy steel 799.8 Wernet et al. 2016 

Trestle)Dockj Shiploaders 

Concrete 36,300 Concrete 180.3 UC Berkeley 2016 

Rebar 900 Reinforcing steel 2,361.2 Wernet et al. 2016 

Steel Piles 20,000 Low-alloy steel 799.8 Wernet et al. 2016 

Shiploaders 3,300 Low-alloy steel 799.8 Wernet et al. 2016 

10% Miscellaneous 135,200 Estimated material type, mass, 121.8 Emission factor 

and emission factor based on based on 

distribution of known materials distribution of 

known materials 

Notes: 

'Source: Millennium Bulk Terminals-Longview 2016, Hill et al. 2011, Wernet et al. 2016, UC Berkeley 2016 

bStructures made of reinforced concrete. Assumed 90% of mass from concrete, 10% steel rebar. 

'Roadways are designed with 3" of pavement (asphalt), 3" of sub grade (aggregate). Assumed a road width of32" 

based on Cowlit2 County (2007) standards. 

Mt = metric tons of material; kgCOze/Mt =kilograms of carbon dioxide equivalent per metric ton of material 

Construction of the coal export terminal would require dredging a 48-acre area (an estimated 

500,000 cubic yards of sediment) of the river bottom to provide berthing at Docks 2 and 3. 

Emissions from equipment use for dock dredging were estimated by first determining the 

equipment necessary for typical dredging operations. Assumptions on the number of tugboats were 

based on a similar dredging analysis for the Port of Long Beach (Port of Long Beach 2012), while the 

dredge was assumed to be a diesel clamshell dredge with a capacity of 1,800 cubic yards per hour 

(Gaines pers. comm.). Horsepower assumptions were used from a similar dredging analysis 

performed for the Puget Sound Maritime Air Forum (Puget Sound Maritime Air Forum 2012) for 

tugboat engines, and Ellicott Dredges 2016 for the diesel dredge engines to estimate annual exhaust 

emissions from dredging equipment use (Table 22). The estimated 500,000 cubic yards of sediment 

were used to determine the number of tugboat trips required to transport dredged sediment, where 

1 hour per round trip was assumed for transporting dredged material for a maximum distance of 3 

miles back and forth along the Columbia River (Millennium Bulk Terminal-Longview 2014). The 

number of trips along the Columbia River was determined by the barge capacity of2,250 cubic yards 

(Gaines pers. comm.). Based on these activities and the emission factor for diesel use of 692 g 

COze/kWh (California Air Resources Board 2011 ), an annual emission factor for equipment was 

calculated as provided in Table 22. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2-39 April 2017 
634 


31623.598

Cowlitz County Existing ConditiOns 

Table 22. Coal Export Terminal Equipment and Emission Factors - Dredging Equipment 

Engine Fuel Emission Factor 

Equipment Type Size Type (MtCOze/year)• Data Sources 

Tugboat (Propulsion) 1,506 hp Diesel 42.8 Puget Sound Maritime 

Air Forum 2012 

Tugboat (Auxiliary) 125hp Diesel 3.1 Puget Sound Maritime 

Air Forum 2012 

Tugboat aux at berth 125 hp Diesel 1.0 Puget Sound Maritime 

Air Forum 2012 

Diesel hydraulic dredge 2,680 hp Diesel 98.0 Ellicott Dredges 2016, 

California Air 

Resources Board 2016 

Auxiliary engine for 1,410 hp Diesel 43.5 Ellicott Dredges 2016, 

hydraulic dredge California Air 

Resources Board 2016 

MtCOze =metric tons of carbon dioxide equivalent; hp =horsepower 

a Calculated based on duration of 2 years for dredging activities to remove a total of 500,000 cubic yards of 

sediment, and engine horsepower and load factors as provided in Puget Sound Maritime Air Forum 2012, El1icott 

Dredges 2016, California Air Resources Board 2016, and a diesel emission factor from California Air Resources 

Board 2011. 

Coal Export Terminal Operation-Equipment Operation 

Direct sources of GHG emissions from equipment operation at the terminal include fossil fuel 

emissions from mobile equipment on land, mobile equipment for maintenance dock dredging, and 

emergency equipment. Examples of equipment used for coal export terminal operation include 

loaders, maintenance vehicles, cranes, and emergency water pump and generator equipment. This 

equipment uses diesel, gasoline, and propane fuels. Emissions from mobile combustion sources and 

emergency equipment are estimated by first determining the equipment necessary for typical 

operation and maintenance and then using the NONROAD model (U.S. Environmental Protection 

Agency 2009a) to estimate annual exhaust emissions from that mobile and emergency equipment 

(Table 23). In addition to removing 500,000 cubic yards during construction, annual maintenance 

dredging of up to 100,000 cubic yards would occur during operation of the coal export terminal. 

Greenhouse gas emissions are estimated using the same method used during construction and the 

resulting emission factors are presented in Table 24. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 2-40 April 2017 
635 


31623.599

Cowlitz County Existing Conditions 

Table 23. Coal Export Terminal Equipment and Emission Factors- Mobile Combustion and 

Emergency Equipment 

Equipment Type Engine Size 

Loader 300hp 

Bobcat so hp 

10· Ton Truck 300 hp 

Crane so hp 

Forklift 40 hp 

Maintenance Trucks 300 hp 

Fire Water Pump 200 hp 

Emergency 30 hp 

Generators 

Fuel Type 

Diesel 

Diesel 

Diesel 

Diesel 

Propane 

Gasoline 

Diesel 

Diesel 

Number of 

Equipment 

Units• 

1 

4 

Emission Factor 

(MtCOze/year per Unit)• 

671.7 

16.6 

98.8 

0.0 

0.1 

0.2 

3.S 

0.5 

Source: U.S. Environmental Protection Agency 2009a, U.S. Environmental Protection Agency 2016c 

a An equipment unit represents the number of equipment types are that are used in a year for annual operations. 

Hours of operation are based on those specified in the SEPA Air Quality Technical Report (ICF 2017b ]. 

h-Cakulated based on horsepower and hours of operation assumptions used in the SEPA Air Quality Technical 

Report (ICF 2017b]. 

MtC02e =metric tons of carbon dioxide equivalent; hp =horsepower 

Table 24. Coal Export Terminal Equipment and Emission Factors- Maintenance Dredging 

Engine Fuel Emission Factor 

Equipment Type Size Type (MtCOze/year)• Data Source 

Puget Sound Maritime 

Tugboat (Propulsion) 1,S06 hp Diesel 17.1 Air Forum 2012 

Puget Sound Maritime 

Tugboat (Auxiliary) 12S hp Diesel 1.2 Air Forum 2012 

Puget Sound Maritime 

Tugboatauxatberth 12S hp Diesel 0.4 Air Forum 2012 

Ellicott Dredges 2016, 

California Air 

Diesel hydraulic dredge 2,680 hp Diesel 39.2 Resources Board, 2016 

Ellicott Dredges 2016, 

Auxiliary engine for California Air 

hydraulic dredge 1.410 hp Diesel 17.4 Resources Board, 2016 

MtC02e =metric tons of carbon dioxide equivalent; hp =horsepower 

h -Calculated based on engine size, emission factor for diesel, and equipment use for one year of operation dredging 

100,000 cubic yards of sediment. 

Coal Export Terminal Operation-Electricity Consumption 

Indirect sources ofGHG emissions for electrical consumption include fuel combustion emissions at 

off-site power plants to produce electricity consumed at the coal export terminal. The local energy 

grid would provide electricity for operation of coal export terminal facilities. The additional 

electricity consumption that would be required for the coal export terminal is assumed similar to 

the annual energy use for the existing bulk product terminal (Chany pers. comm.). To estimate net 

Millennium Bulk Terminals-Longview 

SfPA Greenhouse Gas Emissions Technical Report 2-41 April2017 
636 


31623.600

Cowlltz County EKisting Conditions 

annual increase in GHG emissions from electricity consumption, the monthly electricity demand for 

the existing bulk product terminal is annualized in kilowatt-hours, as shown in Table 25. 

Table 25. Monthly and Annual Electricity Demand for Coal EKport Terminal 

Time Period 

Monthly 

Annual 

Notes: 

552,000 kWh 

MWh 

Additional demand is assumed to occur throughout the entire 

analysis period, including construction. 

Source: Chany pers. comm. 

kWh o kilowatt hour; MWh = megawatt hour 

To derive additional GHG emissions from electricity consumption for coal export terminal 

operations, the electricity fuel mix for an average water year is obtained from the Cowlitz Public 

Utility District. Emission factors for each fuel type are then derived from individual plant data for 

each fuel in the Western Electricity Coordinating Council Northwest subregion as provided in the 

Emissions & Generation Resource Integrated Database ( eGR!D). These individual fuel emission 

factors are combined using the Cowlitz Public Utility District fuel mix to obtain a weighted average 

emission factor to apply to electricity consumption from the Proposed Action. Table 26 provides the 

fuel mix and emission factors used to derive GHG emissions from electricity consumption for coal 

export terminal operations. 

Table 26. Average Fuel MiK and Fuel-Specific Emission Factorfor the Cowlitz Public Utilities 

District Region 

Share of Carbon Nitrous Oxide 

Fuel Electricity Dioxide (kg Methane (kg (kg Total (kg 

Source Fuel Mix(%) CO,e/MWh) co,efMWh) CO,efMWh) co,efMWh) 

Hydro 84.64% 0 0 0 0 

Nuclear 9.70% 0 0 0 0 

Wind 2.66% 0 0 0 0 

Coal 2.08% 1,095.8 0.3 5.5 1,101.5 

Natural Gas 0.79% 436.8 0.2 0.3 437.3 

Other' 0.13% 302.0 0.1 1.4 303.5 

Weighted 100% 26.6 0.01 0.1 26.8 

Average 

. Other is made up of biomass, cogeneration, geothermal, landfill gas, petroleum, solar, and waste incineration . 

Source: Cowlitz Public Utility District 2015, U.S. Environmental Protection Agency 2015b 

Employee Commuting 

Direct sources of GHG emissions from employee commuting include the emissions from fossil fuel 

combustion associated with the daily commuting traffic for employees to and from the site. The GHG 

emissions from employees commuting to the project area are calculated using the MOVES model 

(U.S. Environmental Protection Agency 2014a), assuming that employees would use single-occupant 

vehicles with a mean round-trip travel time of 48.2 minutes. The analysis assumes that there are 

135 employees, with 25 commuting 5 days per week and 110 commuting 7 days per week. At an 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-42 April2017 
637 


31623.601

Cowlitz County Ex1sting Conditions 

estimated speed of35 miles per hour, this amounts to 1,092,051 miles per year travelled. This 

distance is multiplied by emission factors for typical commuting vehicles provided by the MOVES 

model to calculate annual emissions." 

Vessel Idling and Tugboat Use at Coal Export Terminal 

Direct sources of GHG emissions from vessel idling and tugboat use at the coal export terminal 

include current vessel operations at the coal export terminal, as vessels use main and auxiliary 

motors to maneuver in and out of the loading area. Additionally, this source includes fossil fuel 

combustion emissions from tugboats that are used to assist in vessel maneuvering at the project 

area. 

GHG emissions from vessel idling and tugboat use are calculated by estimating the power consumed 

by idling vessels, converting the power demand into fuel consumption, and multiplying that fuel 

consumption by a fuel combustion emission factor. An average of 13 hours would be needed to load 

each vessel with coal, and during this period, the vessel would be hoteling using auxiliary engines. 

For each vessel, the typical main and auxiliary engine size is based on Lloyd's Register of Ships Seaweb, which has a database of ship characteristics for ships over 100 gross tons (Sea-web 2015). 

Each vessel receiving coal is assumed to need three tugs to maneuver the ship. These tugs would 

operate for 3 hours to assist with docking and departing. The time spent operating the vessels in 

each mode, multiplied by the estimated engine load and size provided power demand for both the 

idling vessels and tugboats. The power demand is then multiplied by the emission factors provided 

in Table 27. 

Table 27. Emission Factors for Idling Vessels and Tugboats 

Greenhouse Gas 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Main Engine Emission Factor 

(g co,e per kWh) 

588 

1.75 

0.12 

590 

Auxiliary Engine Emission 

Factor (g COze per kWh) 

690 

2.25 

0.12 

692 

Source: California Air Resources Board 2011.Appendix D: Emissions EsUmation Methodology for Ocean-Going 

Vessels. 

gCOze =grams of carbon dioxide equivalent; kWh= kilowatt-hour 

Helicopter and Pilot Boat Trips 

Indirect sources of GHG emissions for helicopter and pilot boat transfers include fossil fuels burned 

to pilot vessels along the Columbia River. GHG emissions from helicopter and pilot boat trips that 

transfer pilots to vessels are calculated as described in the SEPA Vessel Transportation Technical 

Report (ICF 2017e). The trips for both vehicle types are multiplied by the distance for each trip to 

derive the total mileage and fuel consumption for each trip. Assuming that at full capacity, the 

Proposed Action would service 840 vessels annually and each vessel would require piloting in and 

out of the Columbia River Bar, this use equates to 1,680 pilot transfers per year. Incoming and 

outgoing vessels are piloted 15 nautical miles (17 standard miles) from the mouth of the Columbia 

River, for an average distance of 30 nautical miles (34 standard miles) per trip. The bar pilot to river 

27 The analysis assumes a 50/50 mix of gasoline and E-85 for employee commuting vehicles. 

Millennium Bulk Terminals-Longview 

SEPA Greent'louse Gas Emissions Technical Report Z-43 April2017 
638 


31623.602

Cowlitz County Existlng Conditions 

pilot changeover takes place at Tongue Point near Astoria for both outbound and inbound vessels, 

therefore only one pilot transfer is needed for each incoming and outgoing vessel (Ellenwood pers. 

comm.). Helicopters are used for offshore transfer of Columbia River Bar pilots 70% of the time, 

with the remaining 30% of the offshore transfers conducted using a pilot boat due to more 

challenging weather conditions (Table 28). 

Table 28. Annual Helicopter and Pilot Boat Transfers per Vessel, 2028 

Total Number 

Total Number of Vessels of Pilot 

Traveling to the Coal Number of Pilot Transfers Transfers 

Project Year Export Terminal Helicopter Pilot Boat All 

2028 840 1,176 504 1.680 

Source: ICF 2017e, Ellenwood pers. comm. 

The trips are multiplied by the distance to estimate the total nautical miles travelled per mode of 

transport, as shown in Table 29. 

Table 29. Helicopter and Pilot Boat Trips and Nautical Miles Travelled 

Helicopter Pilot Boat 

Project Year Trips Total Miles Trips Total Miles 

2028 1,176 40,600 504 17,400 

Source: ICF 2017e 

GHG emissions from each mode of transport are based on the time of travel from shore to the 

vessels. The average trip time for helicopters is assumed 18 minutes (Ellenwood pers. comm.). For 

pilot boats, an average speed of 14 miles per hour is assumed (Columbia River Bar Pilots 2015), 

resulting in a roundtrip travel time of 2.5 hours. For helicopters, the fuel consumption rate of 1 

gallon per minute was obtained directly from Brim Aviation (Ellenwood pers. comm.]. Fuel 

consumption and aviation gasoline emission factors are presented in Table 30 and Table 31, 

respectively. The emissions are calculated by first estimating the amount of fuel consumed per 

helicopter trip, multiplying that by the emission factor for aviation gasoline, and then by the number 

of helicopter trips. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas: Emissions Technical Report 2·44 April2017 
639 


31623.603

Cowlitz County 

Table 30. Helicopter Fuel Consumption 

Aircraft 

Sikorsky 5-76 "Seahawk" 

Source: Ellenwood pers. comm, 

Average Fuel Consumption 

Rate (Gallons per Minute) 

Table 31. Combustion Emissions for Aviation Gasoline 

Existing Conditions 

Average Trip Time (Minutes) 

18 

Greenhouse Gas Emission Factor (MTCOze/1,000 gallons) 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Source: U.S. Environmental Protection Agency 201Sa 

MTCOze metric tons of carbon dioxide equivalent 

8.31 

0.18 

0.03 

8.52 

GHG emissions from pilot boats are based on the energy required for the pilot boat to make one trip 

based on the estimated round-trip duration of 2.5 hours. Energy is converted into gallons of residual 

fuel and multiplied by an emission factor for residual fuel combustion in order to calculate the GHG 

emissions for a single pilot boat trip. This value is then multiplied by the total number of annual 

pilot boat trips to estimate the total annual GHG emissions. The factors used to estimate the energy 

consumption and the emissions for pilot boats are shown in Table 32 and Table 33, respectively. 

Table 32. Factors for Pilot Boat Fuel Consumption 

Factor 

Trip duration 

Horsepower of enginesa 

Average engine load over tripb 

Energy consumed, kWh 

Energy consumed, MMBtu' 

Energy in residual fueJd 

Gallons of residual fuel consumed 

Notes: 

a Brusco Tug and Barge Undated 

b California Air Resources Board 2011 

Estimated by converting kWh to MMBtu 

d U.S. Environmental Protection Agency 2015a 

hp = horsepower; MMBtu = million British thermal units 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 2·45 

Magnitude 

2.5 hours 

1,800 hp 

45% 

1,511 kWh 

5.2 MMBtu 

0.15 MMBtu per gallon 

34.4 gallons per trip 

April2017 
640 


31623.604

Cowlitz County 

Table 33. Combustion Emissions for Residual Fuel 

Greenhouse Gas 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Source: U.S. Environmental Protection Agency 2015a 

MTCOze =metric tons of carbon dioxide equivalent 

Vessel Transport 

Existing Conditions 

Emission Factor (MtCOze/1,000 gallons) 

11.24 

0.003 

0.17 

11.41 

Vessel transport is calculated in three phases: the transport of coal between the project area and the 

border of Cowlitz County, the transport of coal down the Columbia River through Washington State, 

and lastly, the transport of coal to markets in Asia. Both incoming and outgoing vessel traffic are 

accounted for within Cowlitz County and Washington State, while only a share of the returning 

vessels from Asia are accounted for since only a share of these vessels return with ballast water 

only. 

Vessel Transport in Cowlitz County 

Direct sources of GHG emissions from vessel transport in Cowlitz County include fossil fuel 

combustion associated with current vessel transport from the coal export terminal down the 

Columbia River to the border of Cowlitz County, a 9.87 nautical mile (11.35 mile) distance. This 

distance is repeated to account for empty vessels returning to the coal export terminal. GHG 

emissions from vessel transport are calculated using the same method as for air emissions and 

summarized in the SEPA Air Quality Technical Report (2017b ). This analysis assumes that the coal 

export terminal would be serviced by a mix of Panamax (80%) and Handymax (20%) vessels. To 

incorporate this assumption, the engine size is considered a weighted average of Panamax and 

Handymax vessels. For each vessel, the typical main and auxiliary engine size is based on Lloyd's 

Register of Ships Sea-web, which has a database of ship characteristics for ships over 100 gross tons 

(Sea-web 2015). 

GHG emissions from vessel idling and tugboat use are calculated by estimating the energy consumed 

by vessels exiting Cowlitz County, which is a factor of the duration to enter or exit the county, the 

engine size, and engine load for loaded ships in transit. The annual energy demand is multiplied by 

an emission factor for main engine vessel use for loaded transit. The one-way transit time within 

Cowlitz County is assumed 0.9 hour. The annual energy demand is then multiplied by the emission 

factors provided in Table 34. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·46 April2017 
641 


31623.605

Cowlitz County 

Table 34. Emission Factors for Vessels in Transit 

Greenhouse Gas 

Carbon dioxide 

Methane 

Nitrous oxide 

Total 

Main Engine Emission Factor 

(g COze per kWh) 

588 

1.75 

0.12 

590 

Existing Conditions 

Auxiliary Engine Emission Factor 

(g COze per kWh) 

690 

2.25 

0.12 

692 

Source: California Air Resources Board 2011. Appendix D: Emissions Estimation Methodology for Ocean-Going 

Vessels. 

kgC02e = kilograms of carbon dioxide equivalent; kWh = kilowatt-hours 

Vessel Transport in Washington State beyond Cowlitz County 

As previously mentioned, the coal export terminal would be serviced by a mix of Panamax (80%) 

and Handymax (20%) bulk carrier vessels. To incorporate this assumption for vessel transport 

outside of Cowlitz County through Washington State and overseas to Asian markets, IHS Sea-Web 

data (Sea-web 2015), a database of ship characteristics for ships over 100 gross tons, is used to 

determine average service speed and total propulsion power for the two vessels. Four vessels for 

each size are used with the same approximate deadweight tons of the two vessels to determine the 

averages. Ship characteristics for the two vessels are shown in Table 35. 

Table 35. Average Vessel Characteristics 

Vessel Size 

Handy Max 

PanaMax 

Source: Sea-web 2015 

Main Engine Propulsion Power 

(kW) 

7,789 

9,473 

Average Vessel Service Speed 

(knots) 

14.40 

14.39 

Emissions are estimated depending upon operating mode. Three operating modes are defined here, 

namely, open-ocean, transit down the Columbia and hoteling at berth. Movement in the open-ocean 

between the mouth of the Columbia River and Asia occurs at service speed. Transit down the 

Columbia River occurs at 8.4 knots (average between 6.5 knots up and 12 knots down the Columbia 

River due to currents) (Breen pers. comm.). 

Propulsion engine load factors are determined using the propeller law, which is the cube of the 

actual vessel speed divided by the maximum vessel speed. Service speed is typically 93.5% of 

maximum speed (ICF 2009). Auxiliary engine and boiler loads are from the 2014 Port of Los Angeles 

Emissions Inventory Document and are listed in Table 36 (Starcrest Consulting Group 2015). When 

the propulsion engines are operating at 20% load or more, exhaust economizers supply steam so 

boilers are shut off. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 2-47 Apr/12017 
642 


31623.606

Cowlitz County 

Table 36. Auxiliary Engine and Boiler loads 

Loads (kW) 

Operation Auxiliary Boiler 

225 132 

Source: Starcrest Consulting Group 2015 

kW =kilowatt 

Ex1sting Conditions 

Emission factors in grams per kilowatt-hour from the California Air Resources Board are used to 

develop overall ship emission factors in terms of kilograms per nautical mile. Table 37 presents 

emission factors in grams per kilowatt-hour for each greenhouse gas. 

Table 38 presents the overall ship emission factors in kg per nautical mile based on the various 

speed and load assumptions for the two ships. 

Table 37. Vessel Emission Factors by Equipment Type 

Main Engine Auxiliary Engine 

Emission Factor Emission Factor (g co,e Boiler Emission Factor 

Greenhouse Gas (g co,e per kWh) per kWh) (g co,e per kWh) 

Carbon dioxide 588 690 970 

Methane 1.75 2.25 0.75 

Nitrous oxide 0.12 0.12 0.12 

Total 590 692 971 

Source: California Air Resources Board 20ll.Appendix D: Emissions Estimation Methodology for Ocean-Going 

Vessels. 

kgC02e =kilograms of carbon dioxide equivalent; kWh= kilowatt· hours 

Table 38. Emission Factors by Vessel Type 

Ship 

HandyMax 

PanaMax 

Source: Calculated. 

kg/nm =kilograms per nautical mile 

At Sea 

277.69 

335.59 

co,e emission factors 

(kgfnm) 

Columbia 

124.28 

144.14 

Indirect sources of GHG emissions from vessel transport outside of Cowlitz County but within 

Washington State include fossil fuel combustion. This analysis assumes a distance of 4 7.78 nautical 

miles (54.94 miles), which takes the vessels from the border of Cowlitz County to 3 nautical miles 

past the mouth of the Columbia River. This distance is repeated for vessels returning to the state to 

pick up coal. Emissions are calculated by multiplying this distance by the Columbia River emission 

factor. 

Vessel Transport to Asian Markets 

Indirect sources of GHG emissions from vessel transport to Asian markets include fossil fuel 

combustion. GHG emissions are based on nautical miles of shipping from the coal market 

assessment, which provides yearly total nautical miles of coal shipped throughout the Pacific Basin 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-48 April2017 
643 


31623.607

Cowlitz County Existing Conditions 

for both the action and no-action models for each scenario. The difference in ship traffic between 

these scenarios is used to estimate the change in nautical miles attributable to the Proposed Action. 

Table 39 summarizes the distances to Asian markets from the United States. 

For changes in coal shipments within the Pacific Basin, GHG emissions are based on an estimate in 

the coal market assessment of the total net change in nautical miles traveled within the Pacific Basin. 

This estimate considers the total change in Pacific Basin coal traffic because of the Proposed Action, 

including the new coal coming from the United States, and shifts in coal shipments from producers 

primarily in Indonesia, Australia, Russia, and China. 

Table 39. Net Change in Nautical Miles Traveled by Proposed Action-Related Vessels 

Scenario 2020 2025 2030 2040 

2015 U.S. and International Energy Policy 0 2,722,792 2,525,104 3,145,596 

Lower Bound 0 3,459,178 2,524,928 3,176,780 

Upper Bound 0 3,324,926 2,555,506 3,721,348 

No Clean Power Plan 0 2,086,181 2,591,077 2,311,512 

Cumulative 0 5,805,597 7,365,846 8,235,972 

Notes: 1 nautical mile is equivalent to 1.15078 miles. The net change in nautical miles includes vessels departing 

from the terminal, and vessels that would be substituted by vessels departing from the terminal. The distances 

provided in this table are one~way distances. 

Source: ICF 2017c 

The total change in nautical miles traveled in the Pacific Basin from the Proposed Action is 

multiplied by the At Sea emission factor as provided in Table 38. The net impact of this emission 

source is the sum of the new emissions (delivery of coal from the Proposed Action) to Asian markets 

and the emissions offset from changes in Pacific Basin coal transport. In addition to the five Asian 

markets importing coal as identified in the coal market assessment, the effect of the Proposed Action 

on coal markets could cause shifts in additional Asian markets as Australian and Indonesian coals 

find new markets. The additional countries include India and other smaller consumers in the Pacific 

Basin that are grouped into the "Asia Other" demand region. 28 For example, for some scenarios, the 

coal market analysis indicates that Hong Kong substitutes some of its consumption of Indonesian 

coal with coal exported from the Proposed Action; however, the Asia Other demand region increases 

its purchases of the Indonesian coal displaced from Japan. 

With few exceptions, dry bulk vessels "do not travel repetitive routes" and "dry bulk carriers seldom 

operate on round-trip voyages; the norm is multi-leg or triangular service to avoid excessive 

ballasting (traveling without paying cargo)" (Coal Age 2015). To estimate the share of trips that 

return empty and filled with ballast water, an analysis of data from the Automatic Identified System 

(AIS) from 2016 was performed.'" The dataset was filtered to account for vessels that had the vessel 

type description of Handymax/Panamax. The percent of similar vessels that leave Asia in ballast is 

based on an evaluation of Automatic Identified System data to determine vessels of a similar size 

and class that transit near the mouth of the Columbia River and travel to/from Asia, and to conduct 

comparative data analysis of scantling and design draft of the individual vessels with the actual 

reported draft for each voyage. Based on this method, a conservative estimate of 40% of trips 

returning from Asia empty filled with ballast water was used. The same 40% is added onto 

28 This category includes Malaysia, the Philippines, Thailand, and Vietnam, as well as smaller importers of coal. 

29 An overview of the Automated Identified System is available from U.S. Department of Homeland Security, 2014. 

Mill€nnium Bulk T€rminats Longview 

SEPA Greenhouse Gas Emissions Technical Report 2-49 Apr/12017 
644 


31623.608

Cowlitz County Existing Condit1ons 

international vessel transport from non-U.S. coal exports {e.g., Australia, Indonesia, Russia, and 

China) being substituted by the Proposed Action. 

Coal Combustion in Asia and the United States 

Indirect sources ofGHG emissions from coal combustion include the change in both U.S. and Asia 

coal consumption that would result from a new coal export terminal. The coal market assessment 

estimates net coal combustion in Asia and the United States. These estimates are presented in the 

GHG analysis for each scenario relative to the no-action model results. 

GHG emissions from coal combustion include those associated with market effects, which dictate the 

total amount of coal produced and com busted in the United States and Asia in response to coal 

supply and price. Emissions also reflect coal substitution, which is driven by the difference in carbon 

content between Powder River Basin coal, Uinta Basin coal, and coals produced in Asia. Table 40 

summarizes the differences in carbon and heat contents among some of the coals assessed in the 

coal market assessment. 30 

Table 40. Heat Content and Carbon Coefficients for U.S. and Asian Reference Coals 

Heat Content C02 Emission Factor 

Source Coal Type (MMBtu per ton)• (pounds per MMBtu) 

Powder River Basin-WY Sub bituminous 17.6 209.4 

Powder River Basin-MT Subbituminous 18.641 17.08 213.8 

Uinta-CO Bituminous 22.22 208.4 

Uinta-UT Bituminous 22.56 1 24.06 205.6 

Australia Bituminous 21.6 206.0 

Indonesia Bituminous 23.43 1 20.33 203.7 

Indonesia Sub bituminous 18.05 1 17.191 15.12 214.8 

China Bituminous 23.85 212.2 

China Lignite 14.04 218.5 

a For some coal types, more than one heat content value is indicated, because multiple coal types are modeled that 

have the same COz emissions factor. 

Source: JCF 2017c 

MMBtu =million metric British thermal units; COz::::: carbon dioxide 

Induced Natural Gas Consumption in the United States 

Indirect sources of GHG emissions from induced natural gas consumption would result from 

changes in consumption as a function of changes in the coal market. As coal prices increase due to 

the increased demand by the project for coal to export, the United States' natural gas consumption is 

expected to increase. 

The Proposed Action could result in supply and price shifts in the coal markets, which affect the 

consumption of natural gas in the United States. The coal market assessment describes the 

substitution of natural gas for coal and estimates the GHG emissions from induced natural gas 

30 See the SEPA Coal Market Assessment Technical Report, Section 4.2.13 for the carbon and heat content of all of 

the coal types modeled. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 2-50 April2017 
645 


31623.609

Cowlitz County Existing Conditions 

consumption in the United States. Depending on the scenario, natural gas consumption changes 

based on coal prices and U.S. coal consumption. 

2.3 Existing Conditions 

The existing environmental conditions related to GHG emissions in the study area are described in 

the sections that follow. 

2.3.1 Applicant's Leased Area 

The existing bulk product terminal in the Applicant's leased area draws electricity from the regional 

electricity grid, amounting to 552,000 kilowatt hours of electricity demand per month, or 6,624 

megawatt hours of electricity annually (Chany pers. comm.). The emissions from this source are 

already occurring and would continue whether or not the coal export terminal is constructed. 

Electricity usage results in indirect emissions of approximately 177 metric tons of COze annually, as 

estimated in Section 3.1.8, Coal Export Terminal Operation-Electricity Consumption. 

The current vessel traffic at Dock 1 is six ships per year. Using the method described in Section 

2.2.2.3, Method for Impact Ana(ysis, under Vessel Transport in Cowlitz County, and assuming that the 

vessels are docking for approximately 13 hours per trip, maneuvering for 1 hour, and transiting 

within Cowlitz County for 0.9 hour each way, their operation emissions total95 metric tons ofCO,e 

annually. Table 41 describes the current vessel transport activity at the project area. The current 

emissions from the project area for the Proposed Action are relatively small compared to the scale of 

emissions from the Proposed Action and are thus not taken into account when estimating the net 

emissions associated with the Proposed Action. 

Table 41. Current Vessel Transport Activities in the Project Area 

Transport Type 

Handymax Class 

Vessel 

Transport 

Activity 

6 ships per 

year 

Facility Activity 

Ships currently deliver alumina over Dock 1; the cargo is 

temporarily stored and then shipped to Chelan County by train 

Source: !CF and Hellerworx 2017, and ICF 2017e 

2.3.2 Cowlitz County 

Approximately 7 trains per day consisting of approximately 78 cars typically pass between the BNSF 

Spur and main line (ICF and Hellerworx 2017). Using the method described in Section 2.2.2.3, 

Method for lmpactAna(ysis, under Rail Transport of Coal in Cowlitz County, and assuming that the 

trains haul122.1 metric tons of material per rail car, use two locomotives, and travel20.0 miles 

through Cowlitz County to and from the north on the main line and BNSF Spur, the annual emissions 

from those trains are currently 2,206 metric tons of CO, e. Baseline traffic on the Reynolds Lead at 

the project area in Cowlitz County is about two trains per day. Assuming that the trains traveling on 

the Reynolds Lead also haul122.1 metric tons of material per rail car, use one locomotive, and travel 

the approximately S-mile length of the Reynolds Lead, the annual emissions from those trains are 

currently 79 metric tons of CO,e. These totals include trains delivering grain as well as trains 

connecting to other port facilities. 

Ml!!ennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 2·51 April2017 
646 


31623.610

Cowlitz county Existing Conditions 

2.3.3 Washington State 

Washington State's total GHG emissions were 92.0 MMTCOze in 2012, the most recent year for 

which a GHG Inventory was conducted. Of that total, 42.5 MMTC02e ( 46.2%) are attributable to the 

transportation sector, and 12.1 MMTCOze (13.2%) are attributable to coal combustion in the 

electricity sector (Washington State Department of Ecology 2016). 

Rail traffic in Washington is busy in areas, with some route segments seeing as many as 70 trains 

per day (lCF and Hellerworx 2017). Existing rail capacity provides passenger service as well as 

transport for a variety of goods. The rail network accommodates empty and full coal trains as well as 

intermodal, grain, and general manifest trains from both BNSF and UP. Similarly, existing vessel 

traffic along the Columbia River is heavy due to the amount of bulk cargo transported in the region. 

The gross tonnage of vessel traffic in a 1-year period (averaged from 2010 to 2014) is approximately 

91 million gross short tons (ICF 2017e). 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas £missions Technical Report 2-52 Aprill017 
647 


31623.611

Chapter 3 

Impacts 

This chapter describes the potential GHG emissions that would result from construction and 

operation of the Proposed Action relative to the No-Action Alternative. 

3.1 Proposed Action 

The GHG emissions are presented in terms of the 2028 emissions and total net emissions over the 

2018 through 2038 analysis period. The total net emissions are the sum of emissions for the entire 

analysis period, including construction beginning in 2018 and operation through 2038. 

The results are presented by emission sources, which are described in Section 2.2.2.3, Method for 

lmpoctAnolysis. The source emissions are then combined into an estimate of total net GHG 

emissions. 

3.1.1 Upland and Wetland Land-Cover Change 

The vegetation removal, soil disturbance, and wetland loss associated with construction of the coal 

export terminal would result in the loss of accumulated carbon stocks during construction, as well 

as the loss of ongoing carbon sequestration from the removed vegetation (resulting in net increases 

in emissions) and a reduction in carbon dioxide and methane emissions from permanently filled 

wetlands over the analysis period (2018 through 2038). Table 42 presents the estimated emissions 

associated with construction of the coal export terminal. 

Table 42. Vegetation Removal, Soil Disturbance, and Wetland Loss Emissions (MtC02e) 

2015 

Energy Lower Upper No Clean 

Emission Source Policy Bound Bound Power Plan 

Emissions During 12-Months of Construction 

Period (MtCO,e) 11,771 11,771 11,771 11,771 

Annual Emissions, 2028 (MtC02e) 17 17 17 17 

Total Emissions, 2018-2038 (Mtco,e) 12,121 12,121 12,121 12,121 

Notes: 

Vegetation Removal, Soil Disturbance, and Wetland Loss emissions represent the total emissions resulting from 

the proposed project emission sources, including: (1) loss of accumulated carbon stocks during construction; (2) 

lost sequestration from removed vegetation that results in net increases in emissions; and (3) reduction in carbon 

dioxide and methane emissions from permanently filled wetlands. 

MtCOze = metric tons of carbon dioxide equivalent 

For construction of the Proposed Action, carbon stock losses are estimated to be 11,771 metric tons 

of COze and total (2018 through 2038) emissions are estimated to be 12,121 metric tons of C02e 

(which includes GHG emissions of 350 metric tons of C02e from lost sequestration/wetland 

emission reductions). 

Millennium Bulk Terminals-Longview 

S£PA Greenhouse Gas Emissions Technical Report 3-1 Apnl1017 
648 


31623.612

Cowlitz County Impacts 

3.1.2 Dock Dredging During Terminal Construction and 

Operations-Sediment Carbon 

Dock dredging during terminal construction and operations associated with the Proposed Action 

would result in the potential loss of sediment carbon. Table 43 presents the estimated emissions 

associated with the potential loss of sediment carbon from dock dredging during coal export 

terminal construction and operations associated with the Proposed Action. 

Table 43. Potential Loss of Sediment Carbon from Dock Dredging (MtC02e) 

Emission Source 

Emissions During 12-Months of Construction 

Period' (MtCOze) 

Annual Emissions, 2028 (MtCOze) 

Total Emissions, 2018-2038 (MtCOze) 

Notes: 

2015 Energy 

Polley 

1,919 

768 

17,654 

Lower 

Bound 

1,919 

768 

17,654 

Upper No Clean 

Bound Power Plan 

1,919 1,919 

768 768 

17,654 17,654 

a Dredging during the construction period is expected to occur over two annual approved work periods to 

coincide with fish protection during the construction phase (Millennium Bulk Terminal-Longview 2014). One 

of the approved work periods is assumed to coincide with the first 12 months of construction period, while the 

second dredging event is assumed to occur within the following year. Therefore, emissions during the 12 

months of construction period shown above are assumed to be half of the total emissions of 3,838 MMTCOze 

during the entire construction period from 2018~2020. 

MtCOze =metric tons of carbon dioxide equivalent 

For dock dredging during terminal construction associated with the Proposed Action from 2018 

through 2020, the potential loss of sediment carbon is estimated to be 3,838 metric tons of C02e and 

total (2018 through 2038) potential losses are estimated to be 17,654 metric tons ofCO,e. The 768 

metric tons of CO,e in 2028 is the potential loss of sediment carbon during annual maintenance 

dredging. 

3.1.3 Coal Extraction 

Coal extraction emissions are assumed to occur throughout the analysis period based on the coal 

extraction scenarios described in the coal market assessment. Under the approach described in 

Section 2.2.2.3, Method for Impact Analysis, the net indirect coal extraction GHG emissions from the 

Proposed Action are calculated by applying the GHG emission factors for each source of indirect 

emissions to the mass of U.S. coal extraction that would be induced by the Proposed Action, covering 

the Powder River Basin, the Uinta Basin. and other U.S. coal regions. These GHG estimates are offset 

by changes in GHG emissions from competing coal extraction outside the United States, primarily in 

Australia, China, and Russia. From these annual estimates of net GHG emissions, the net indirect 

GHG emissions are calculated for coal extraction that would result from the Proposed Action from 

2018 through 2038. 

The net emissions from coal extraction vary across the four scenarios depending on the magnitude 

of the increase in coal extraction in the United States, the different U.S. extraction regions impacted 

by the Proposed Action, the magnitude of the decrease in international coal extraction, and the 

different international extraction regions impacted by the Proposed Action throughout the analysis 

period. Coal extraction emissions vary for coal extracted in regions within the United States and 

regions outside the United States due to differences in the energy needed for coal extraction by 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-2 April2017 
649 


31623.613

Cowlitz County Impacts 

region and mine type, grid electricity emission factors, grid electricity production mix, and methane 

emitted from different mining basins and mine types (i.e., underground or surface mining). Table 44 

below presents estimates based on the coal extraction results provided in the coal market 

assessment. 

Table 44. Emissions from Coal Extraction (MMTCO,e) 

Scenario 

2015 Energy No Clean 

Annual Emissions, 2028 1.37 1.22 1.46 1.31 

Annual Emissions, 2028 -0.04 0.02 0.22 <0.005 

Annual Emissions, 2028 0.09 0.27 <0.005 <0.005 

Annual Emissions, 2028 -0.39 -0.40 0 -1.22 

Annual Emissions, 2028 0 <0.005 0 0 

Annual Emissions, 2028 -2.56 -2.17 1.87 -2.74 

Annual Emissions, 2028 0 -0.50 0 -0.28 

Annual Emissions, 2028 -0.28 -0.04 -0.41 -0.27 

Annual Emissions, 2028 -3.15 -3.08 -1.65 <0.005 

Annual Emissions, 2028 0.04 0 -0.41 <0.005 

Annual Emissions, 2028 -4.91 -4.68 1.08 -3.21 

Total Emissions, 2018-2038 -85.90 -80.74 21.07 -56.50 

Notes: "Other U.S. Coals" includes the following basins: Central Appalachia (VA, WV, East KY), Illinois, Northern 

;;pparacrua, Rockies (Green River, San Juan, Raton), Warrior, North Great Plains (Non-Powder River Basin- WY, MT, 

West Interior (Arkoma, Gulf Coast, Forest City, Cherokee)MMTC02e =million metric tons of carbon dioxide 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3·3 April2017 
650 


31623.614

Cowlitz County lmpacts 

Figure 7 presents the net GHG emissions from changes in coal extraction in each country between 

2021-2038 for the 2015 U.S. and International Energy Policy scenario. Reduced GHG emissions in 

China have the largest impact on the net GHG emissions, as production is increasingly offset by 

greater PRB and Uinta coal production. The black bars in the Figure 7 indicate the resulting net GHG 

emissions from coal extraction. Figure 8 details net GHG emissions by country over time for each of 

the four scenarios. 

Figure 7. Net GHG Emissions from Coal Extraction by Country and U.S. Coal Basin for 2015 U.S. 

and International Energy Policy Scenario 

ii 

I I I 

M11!eonium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-4 Aprii2D17 

31623.615

Cowl!tt County 

Figure 8. Net GHG Emissions from Coal Extraction by Country and U.S. Coal Basin for No Clean Power Plan, lower Bound, Upper 

and Cumulative Scenarios 

"' &i !ill 

m ! I 

3-5 

Mi!!ennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 
652 


31623.616

Cowlitz County Impacts 

As previously mentioned in Section 2.2.2.3, Method for Impact Analysis, the uncertainty of the 

estimates for coal extraction is relatively high. To illustrate this uncertainty, the methane emissions 

from coal extraction are estimated for a range of emission factors for non-U.S. countries to reflect 

the-/+ uncertainty of 200% for underground mining and -/+300% for surface mining emission 

factors. However, use of these uncertainty values resulted in emission factors that are outside the 

range provided by JPCC for Tier 1 default values, except for in the case of Canadian underground 

mining. Consequently, the emission factor range for non-U.S. countries is the lower and upper bound 

as provided by JPCC." The proportion of underground and surface mining relative to total 

production are from GMI (2015) and were applied to the high and low Tier 1 emission factors 

following the same method described in Section 2.2.2.3 for countries that did not report to 

UNFCCC. As part of this uncertainty, a range of emission factors is used for U.S. coal mines based on 

the uncertainty values provided in the U.S. GHG Inventory (U.S. Environmental Protection Agency 

2016b ). The uncertainty values for the U.S. estimates are approximately 10% (e.g., an order of 

magnitude less than the uncertainty estimates used for other countries). Table 45 shows the 

emission factors used for U.S. basins and non-U.S. countries evaluating the range of net GHG 

emissions from coal extraction. 

Table 45. Range of Coal Mine Methane Emission Factors for Coal Extraction 

Emission Factors (MT COze/MT Coal) 

Coal Basin Low Modeled High 

All U.S. Coal- Underground 0.15 0.17 0.20 

PRB - Surface 0.02 0.02 0.02 

Uinta- Surface O.Dl 0.02 0.02 

Other U.S.- Surface 0.03 0.03 0.03 

Australia 0.04 0.04 0.13 

Canada 0.01 0.02 0.04 

China 0.16 0.30 0.44 

India 0.02 0.05 0.08 

Indonesia 0.01 0.02 0.04 

Russia 0.05 0.15 0.16 

South Africa 0.1 0.19 0.27 

Figure 9 and Figure 10 reflect the resulting net GHG emissions for coal extraction. The upper range 

is based on using the high estimate for the emission factor for countries and basins where coal 

extraction is increasing, and using the low estimate for the emission factor for countries where coal 

is being displaced. Alternatively, the lower range is based on using the low estimate for the emission 

factor for countries and basins where coal extraction is increasing, and using the high estimate for 

the emission factor for countries where coal is being displaced. 

31 The Canadian upper bound underground emission factor was derived using IPCC's +200% uncertainty value for 

underground mining. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-6 April 2017 
653 


31623.617

Cowlitz County Impacts 

Figure 9. Range of Net GHG Emissions from Coal Extraction for the 2015 Energy Policy Scenario 

2015 Energy Policy Scenario~ Range of Net Coal Extraction Estimates 

•. 

8 

! 

• • 

1! 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-7 April 2017 

31623.618

Cowlitz County 

Figure 10. Range of Net GHG Emissions from Coal Extraction for the No CPP, Lower Bound, Upper and Cumulative Scena

No CI'.P Somario- Range of Net Cci!l b:tra<;tion tower Sound S<::enario • Flange of Net Coal Estimates 

UpJJer s,er1nrlo • Ran of Net Coal Ext1adlon ht1mates tumulil!Jve Stenarlo · Range of Nl'f C<:l<1l E1ttt<1ction Estimates 

Mil!enmum Bulk Terminals-Longview 

SEPA Greenhouse Gas Em1ssions Technical Report 3·8 
655 


31623.619

Cowlitz County Impacts 

3.1.4 Rail Transport 

Model results indicate that rail transport across the four scenarios is relatively constant, with slight 

fluctuations occurring depending on the share of Uinta Basin coal exported via the Proposed Action 

relative to the Powder River Basin coal. Although the distance from the Uinta Basin to Washington 

State is shorter than the distance from the Powder River Basin, the majority of the transport 

emissions occur from the transport of Powder River Basin coal. as its lower price results in higher 

demand despite the longer distances. The largest source of rail transport emissions is from 

transport to Washington State. The second largest source of emissions from rail transport is from 

transport within Washington, which is approximately half the distance as the distance outside 

Washington State. Once the return trip is taken into account, the difference in emissions between 

the two routes taken from the different coal basins increases, as empty and loaded Uinta Basin 

trains return along the same route. Empty Powder River Basin coal trains, however, travel a longer 

northern route to the Powder River Basin (ICF and Hellerworx 2017). 

Emissions from transport of coal within Cowlitz County also vary slightly for Powder River Basin 

and Uinta Basin coal due to the different directions travelled for empty Powder River Basin and 

Uinta Basin coal trains. However, due to the small distances involved, this difference does not have a 

large impact on emissions. The coal market assessment captures changes in the transportation 

routes from extraction sites to the project area due to shifts in coal demand and prices. 

Consequently, the emissions change across the scenarios. In Table 4 7 and Table 48, the Lower 

Bound scenario has slightly higher total emissions than the No Clean Power Plan and the Upper 

Bound scenarios because less coal from the Uinta Basin is transported under this scenario. In the 

Lower Bound scenario, less coal is transported from the Uinta Basin because the higher coal prices 

assumed under this scenario make the Powder River Basin coal more economical to export than the 

Uinta Basin coal. Thus, total emissions are higher under the Lower Bound scenario because the total 

ton-miles of coal transported is greater than in the No Clean Power Plan or Upper Bound scenarios, 

as the distance from the Powder River Basin is greater than from the Uinta Basin. The on-site 

emissions are equal across all scenarios, as those emissions are proportional solely to coal 

throughput for the Proposed Action. Table 46, Table 47, and Table 48 summarize rail emissions for 

each scenario. 

Table 46. Locomotive Emissions from Extraction Sites to Washington State (MMTCO,e) 

Period 

Annual Emissions, 2028 

(MMTCOze) 

Total Emissions, 2018-2038 

(MMTCOze) 

2015 Energy 

Policy 

0.67 

9.50 

Lower Bound 

0.74 

10.63 

MMTCOze =million metric tons of carbon dioxide equivalent 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-9 

Upper Bound 

0.63 

9.29 

No Clean Power 

Plan 

0.63 

8.96 

April2017 
656 


31623.620

Cowlitz County Impacts 

Table 47. locomotive Emissions within Washington State (Excluding Cowlitz County) (MMTC02e)32 

Period 

Annual Emissions, 2028 

(MMTCOze) 

Total Emissions, 2018-2038 

(MMTCOze) 

2015 Energy 

Policy 

0.32 

4.42 

Lower Bound 

0.32 

4.62 

MMTCOze = million metric tons of carbon dioxide equivalent 

Upper Bound 

0.31 

4.12 

No Clean Power 

Plan 

0.32 

4.62 

Table 48. locomotive Operation Emissions within Cowlitz County (MMTCO,e) 

2015 

Emission Source Lower Bound 

Locomotive Operation, BNSF Main Line & Spur (MMTCOze) 

Annual Emissions, 2028 0.02 0.02 

Total Emissions, 2018-2038 

Locomotive at Terminal 

Annual Emissions, 2028 

Total Emissions, 2018-2038 

Subtotal (MMTCOze) 

Annual Emissions, 2028 

Total Emissions, 2018-2038 

<0.005 

0.03 

0.02 

0.31 

MMTCOze = million metric tons of carbon dioxide equivalent 

3.1.5 Vehicle-Crossing Delay 

0.29 

<0.005 

0.03 

0.02 

0.31 

No Clean Power 

Bound Plan 

0.02 0.02 

0.29 0.29 

<0.005 

0.03 

0.02 

0.31 

<0.005 

0.03 

0.02 

0.31 

The GHG emissions from vehicle-crossing delays are consistent across all four scenarios, as they are 

directly proportional to the throughput of the Proposed Action. After the start-up period, emissions 

from this source remain constant throughout the analysis period (Table 49). 

32 Locomotive operation within Cowlitz County is not included in this table, thus results from Table 46, Table 

47, and Table 48 are additive. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3·10 Apr\12017 
657 


31623.621

Cowlitz County Impacts 

Table 49. Vehicle-Crossing Delay Emissions from Fossil Fuel Combustion from Vehicles Idling 

within Cowlitz County (MtCOze) 

2015 Energy 

Track SectionfPeriod Polley Lower Bound Upper Bound 

Study Crossings along the Reynolds Lead and BNSF Spur (MtCOze) 

Annual Emissions, 2028 170 170 170 

Total Emissions, 2018-2038 2,427 2,427 2,427 

Public At-Grade Crossings along the BNSF Main Line In Cowlitz County (MtCOze) 

Annual Emissions, 2028 1 1 1 

Total Emissions, 2018-2038 13 13 13 

All Vehicle Crossings (MtCOze) 

Annual Emissions, 2028 

Total Emissions, 2018-2038 

171 

2,439 

MtCOze =metric tons of carbon dioxide equivalent 

171 

2,439 

3.1.6 Coal Export Terminal Construction 

171 

2,439 

No Clean Power 

Plan 

170 

2,427 

13 

171 

2,439 

Coal export terminal construction emissions are assumed to occur in an 18-month period prior to 

the operation of the Proposed Action. Because construction dates are unknown, the GHG analysis 

assumes that the 18-month construction period would occur at some point between the years 2018 

and 2020. For the purposes of estimating emissions associated with coal export terminal operation, 

the GHG analysis assumes that construction would be completed before the end of 2020. As the 

construction would be structurally similar across the four scenarios, construction GHG emissions 

are equal across all four scenarios (Table SO). The emissions from the operation of construction 

equipment would exceed those of the barges used for bringing construction materials to the project 

area. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-11 April 2017 
658 


31623.622

Cowlitz County Impacts 

Table SO. Coal Export Terminal Construction Emissions (MtC02e) 

Scenario 

Z015 Energy 

Policy 

Lower 

Bound 

No Clean Power 

Emission Source Upper Bound Plan 

Construction Equipment (MtCOze) 

Emissions During 12 Months 

of Construction Period 5,349 5,349 5,349 5,349 

Total Emissions, 2018-2038' 8,024 8,024 8,024 8,024 

Employee Commuting (MtCOze) 

Emissions During 12 Months 

of Construction Period 465 465 465 465 

Total Emissions, 2018-2038• 698 698 698 698 

Construction Trucks Carrying Materials to Project Area (MtCOze) 

Emissions During 12 Months 

of Construction Period 1,081 1,081 1,081 1,081 

Total Emissions, 2018-2038• 1,621 1,621 1,621 1,621 

Construction Barges Carrying Materials to Project Area (MtCOze) 

Emissions During 12 Months 

of Construction Period 955 955 955 955 

Total Emissions, 2018-2038• 1,433 1,433 1,433 1,433 

Subtotal (MtCOze) 

Emissions During 12 Months 

of Construction Period 7,851 7,851 7,851 7,851 

Total Emissions, 2018-2038 11.776 11,776 11,776 11,776 

Notes: 

a Construction emissions occur over an 18-month period prior to the operation of the coal export terminal; 

therefore, emissions from 2021 through 2038 are zero. Given the 18-month period for construction, total 

construction emissions are those for the 12~month period multiplied by 1.5. 

MtC02e = metric tons of carbon dioxide equivalent 

The GHG emissions resulting from the production of materials used to construct the coal export 

terminal occur upstream of the project area. Table 51 summarizes the GHG emissions by general 

material type. The "Other" category includes plastics and cable wiring, but is mostly composed of the 

"10% Miscellaneous" materials expected to be used in the construction process. These emissions are 

assumed to occur once, and have been prorated over the 18-month construction period. 

While aggregates compose the majority of total materials mass from berms and roadways (material 

masses can be found in Table 21, the associated emissions are a minimal portion of the total 

estimated emissions. In contrast to this distribution of materials, steel materials represent less than 

So/o of total material mass, but almost 30% of total GHG emissions. This distribution of emission 

occurs because steel manufacturing emission factors are an order of magnitude higher than any 

other material due to the energy-intensive nature of the production process. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3·12 April2017 
659 


31623.623

Cowlitz County 

Table 51. Embedded Emissions in Construction Materials (MtCO,e) 

Emissions During 12 Months 

of Construction Period 

Total2018-2038" 

Emissions During 12 Months 

of Construction Period 

Total 2018-2038·' 

Emissions During 12 Months 

of Construction Period 

Total2018-2038·' 

2015 Energy 

83,727 

26,233 

49,588 

A~higal:e!> PrOduction and~\lPRlr(1'1#lO~e} 

Emissions During 12 Months 2,225 

of Construction Period 

Total2018-2038" 3,338 

Emissions During 12 Months 

of Construction Period 

Total 2018-2038" 1,644 

Scenario 

Lower 

83,727 

49,588 

2,225 

1,644 

Reinforl:ed (;oricl'etel>roductioil.and AAJlply {1\fttti~t~} 

Emissions During 12 Months 160 

of Construction Period 

Total 2018-2038" 239 

Otner. M;;lterials Priilt\lct1on an~ SJipply {\lf~~OZ.:i) ' 

Emissions During 12 Months 

of Construction Period 

Total2018-2038" 

Emissions During 12 Months 

of Construction Period 

Total Emissions, 2018-

2038·' 

Notes: 

13.781 

20,672 

185,441 

160 

239 

13,781 

20,672 

185,441 

Impacts 

No Clean 

83,727 83,727 

49,588 49,588 

2,225 2,225 

1,644 1,644 

160 160 

239 239 

13,781 13,781 

20,672 20,672 

185,441 185,441 

~Construction emissions occur over an 18~month period prior to the operation of the coal export terminal; 

therefore, embedded emissions in construction materials from 2021 through 2038 are zero. Given the 18¥month 

period for construction, total construction emissions are those for the 12¥month period multiplied by 1.5. 

MtC02e::::: metric tons of carbon dioxide equivalent 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-13 April2017 
660 


31623.624

Cowlitz County Impacts 

GHG emissions from fuel use occur from initial dock dredging of 500,000 cubic yards of sediment 

during the construction period. These emissions result from the operation of tugboats and dredging 

equipment (Table 52). 

Table 52. Emissions from Dredging during Construction- Fuel Use (MtCO,e) 

2015 Energy No Clean Power 

Emission Source Policy Lower Bound Upper Bound Plan 

Emissions from Dredging Operations (MtCOze) 

Emissions During 12 Months 188 188 188 188 

of Construction Period' 

Total Emissions, 2018-2038' 377 377 377 377 

Notes: 

a Construction emissions occur over an 18-month period prior to the operation of the coal export terminal; 

therefore, emissions from 2021 through 2038 are zero. Emissions from maintenance dredging occur during the 

operational phase; however, these are presented in Section 3.1.7, Coal Export Terminal Operation-Equipment 

Operation. Dredging is expected to occur over two annual approved work periods to coincide with fish 

protection during the construction phase [Mi1lennium BulkTerminal-l..ongview 2014). One of the approved 

work periods is assumed to coincide with the 12 months of construction period, while the second dredging 

event is assumed to occur within the following year. Therefore, emissions during the 12 months of 

construction period shown above are assumed to be half of the total emissions during the entire construction 

period from 2018·2020. 

MtCOze:;;; metric tons of carbon dioxide equivalent 

3.1.7 Coal Export Terminal Operation-Equipment Operation 

GHG emissions from mobile equipment used for routine operation of the coal export terminal are 

consistent across all four scenarios, as they are directly proportional to the throughput of the 

Proposed Action (Table 53). After the start-up period, emissions from this source would remain 

constant throughout the analysis period. 

Table 53. Coal Export Terminal Operation Emissions from Mobile Combustion (MtCO,e) 

Scenario 

2015 Energy No Clean Power 

Period Policy Lower Bound Upper Bound Plan 

Annual Emissions, 2028 908 908 908 908 

(MtCOze) 

Total Emissions, 2018-2038 12,977 12,977 12,977 12,977 

(MtCOze) 

MtCOze:::: metric tons of carbon dioxide equivalent 

GHG emissions from fuel use occur from maintenance dock dredging of an estimated 100,000 cubic 

yards per year of sediment during the operations period. These emissions result from the operation 

of tugboats and dredging equipment (Table 54)-

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-14 April 2017 
661 


31623.625

Cowlitz County 

Table 54. Dredging Emissions during Operations- Fuel Use (MtCOze) 

Period 

Annual Emissions, 2028 

(MtCO,e) 

Total Emissions, 2018-2038 

(MtCO,e] 

2015 Energy 

Policy 

75 

1,355 

MtC02e =metric tons of carbon dioxide equivalent 

Scenario 

Lower 

Bound Upper Bound 

75 75 

1,355 1,355 

3.1.8 Coal Export Terminal Operation-Electricity 

Consumption 

Impacts 

No Clean Power 

Plan 

75 

1,355 

Electricity consumption emissions for operation of the new coal export terminal are assumed 

constant across all years of the analysis period and for all scenarios (Table 55). 

Table 55. Coal Export Terminal Operation-Indirect Emissions from Electricity Consumption 

(MtCOze) 

Period 

Annual Emissions, 2028 

(MtCO,e) 

Total Emissions, 2018-2038 

(MtCOze] 

2015 Energy 

Policy 

177 

3,191 

MtCOze = metric tons of carbon dioxide equivalent 

3.1.9 Employee Commuting 

Scenario 

Lower Bound Upper Bound 

177 177 

3,191 3,191 

No Clean Power 

Plan 

177 

3,191 

GHG emissions from employee commuting are consistent across all four scenarios, as they are 

directly proportional to the throughput of the Proposed Action (Table 56). After the start-up period, 

emissions from this source would remain constant throughout the analysis period. 

Table 56. Employee Commuting (MtCOze) 

Period 

Annual Emissions, 2028 

(MtCO,e] 

Total Emissions, 2018-2038 

(MtCOze) 

2015 Energy 

Policy 

275 

3,922 

MtCOze = metric tons of carbon dioxide equivalent 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 

Scenario 

Lower Bound Upper Bound 

275 275 

3,922 3,922 

3·15 

No Clean Power 

Plan 

275 

3,922 

April 2017 
662 


31623.626

Cowlltz. County Impacts 

3.1.10 Vessel Idling and Tugboat Use at Coal Export Terminal 

GHG emissions from idling vessels and tugboats are consistent across all four scenarios, as they are 

directly proportional to the throughput of the Proposed Action (Table 57). Tugboats emit 

approximately twice as many emissions as idling vessels. After the start-up period, emissions from 

this source remain constant throughout the analysis period. 

Table 57. Emissions from Vessel Idling and Tugboat Use at Coal Export Terminal (MtCOze) 

Scenario 

2015 Energy No Clean Power 

Emission Source Policy Lower Bound Upper Bound Plan 

Vessel Idling at Terminal (MtCOze) 

Annual Emissions, 2028 2,498 2,498 2,498 2,498 

Total Emissions, 2018-2038 35,660 35,660 35,660 35,660 

Tugboat Operation (MtCOze) 

Annual Emissions, 2028 4,840 4,840 4,840 4,840 

Total Emissions, 2018-2038 69,081 69,081 69,081 69,081 

Subtotal (MtCOze) 

7,338 7,338 7,338 7,338 

3.1.11 Helicopter and Pilot Boat Trips 

GHG emissions from pilot transfers are consistent across all four scenarios, as they are directly 

proportional to the throughput of the Proposed Action (Table 58). Helicopters emit about the same 

GHGs as pilot boats and are assumed responsible for 70% of the pilot transfers. After the start-up 

period, emissions from this source would remain constant throughout the analysis period. 

Table 58. Emissions from Helicopter and Pilot Boat Trips for Pilot Transfers to Vessels (MtCOze) 

Scenario 

2015 Energy No Clean Power 

Emission Source Policy Lower Bound Upper Bound Plan 

Helicopter Operation (MtCOze) 

Annual Emissions, 2028 180 180 180 180 

Total 2018-2038 

Pilot Boat Operation (MtCOze) 

Annual Emissions, 2028 198 198 198 198 

Total Emissions, 2018-2038 2,827 2,827 2,827 2,827 

Subtotal (MtCOze) 

Annual Emissions, 2028 378 378 378 378 

Total Emissions. 2018-2038 5,402 5,402 5,402 5.402 

MtCOze = metric tons of carbon dioxide equivalent 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-16 Apri12017 
663 


31623.627

Cowlitz County lrnpacts 

3.1.12 Vessel Transport 

Vessel transport GHG emissions are equivalent across all scenarios within Cowlitz County and 

Washington State but diverge for international transport (Table 59 and Table 60). The differences in 

international transport emissions result from different destinations for the exported coal and the 

extent to which demand for existing sources of Asian coal is substituted, primarily by coal from 

Indonesia, China, Russia, Australia, and India Consequently, the net emissions from international 

transport of coal include both transport to the Asian market and the adjustment for the substituted 

vessel transport from other international coal production sources to the Asian market (Table 61). In 

all of the scenarios, the addition of 44 million metric tons of coal would displace less than 44 million 

metric tons of coal traffic within the Pacific Basin because of differences in the heat content of the 

coals. In the Upper Bound scenario, displacement of international coal is less than in other scenarios 

because coal demand increases due to induced demand, and thus the amount of coal displaced by 

the proposed coal export terminal is even less than in other scenarios. 

Table 59. Emissions from Vessel Transport within Cowlitz County (MMTCO,e) 

Scenario 

2015 Energy No Clean Power 

Period Policy Lower Bound Upper Bound Plan 

Annual Emissions, 2028 0.01 0.01 0.01 0.01 

(MMTCO,e) 

Total Emissions, 2018-2038 0.12 0.12 0.12 0.12 

(MMTCO,e) 

MMTCOze =million metric tons of carbon dioxide equivalent 

Table 60. Emissions from Vessel Transport within Washington State (Excluding Transport within 

Cowlitz County) (MMTC02e)33 

Scenario 

Period 

Annual Emissions, 2028 

(MMTCOze) 

Total Emissions, 2018-2038 

(MMTCOze) 

2015 Energy 

Policy Lower Bound 

0.01 0.01 

0.15 0.15 

MMTC02e =million metric tons of carbon dioxide equivalent 

Upper Bound 

0.01 

0.15 

No Clean Power 

Plan 

0.01 

0.15 

33 This table does not include emissions generated from vessel transport within Cowlitz County so that the 

results in Table 59, Table 60, and Table 61 are additive. 

Millennium Bulk: Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-17 April 2017 
664 


31623.628

Cowlitz County Impacts 

Table 61. Net Emissions from Changes in International Vessel Transport to Asian Markets 

(MMTCOze)' 

Period 

Net Annual Emissions, 2028 

(MMTCOze) 

Net Total Emissions, 2018-

2038 (MMTCOze) 

2015 Energy 

Policy 

1.01 

15.16 

Scenario 

Lower Bound Upper Bound 

1.13 1.12 

16.17 16.87 

a Net GHG emlssions represent the difference between the Proposed Action and the no~action. 

MMTCOze =metric tons of carbon dioxide equivalent 

3.1.13 Coal Combustion 

No Clean Power 

Plan 

0.93 

13.32 

Coal combustion in the United States and Asia is one of the largest and most variable sources of GHG 

emissions associated with the Proposed Action. Model results indicate that this source of emissions 

varies significantly throughout the analysis period and between scenarios, indicating that it is 

sensitive to policy and market factors. For most scenarios, the coal combustion emissions in the 

United States decrease while coal combustion emissions in Asia increase, to varying degrees. The 

key factor behind this shift is U.S. and Asian markets' reactions to price and supply shifts for coal. As 

the Proposed Action exports U.S. coal, prices in the United States go up in response to supply 

decreasing, thus reducing coal combustion. Likewise, the increased supply of coal in Asia decreases 

prices and facilitates additional coal combustion. 

Coal combustion emissions in Asia are separated in Table 62 into two subcategories: emissions from 

induced coal demand and emissions from coal substitution. Induced demand emissions would occur 

because oflowered coal prices in response to an increase in coal supply caused by the Proposed 

Action. Coal substitution emissions are a result of one of two processes. In the first process, lower· 

heat-content coal displaces higher-heat-content coal, which results in a net increase in emissions to 

generate the same amount of energy. In the second process, coal with a higher CO, emissions rate 

displaces coal with a lower COz emissions rate, which also results in a net increase in emissions. 

Both of these processes may occur in reverse as well, which would result in lower net emissions. 

The differences between scenarios are driven by the following factors. 

• Coal combustion emissions in the United States are less than the no-action for all scenarios, 

except for the Upper Bound scenario. Thus the net emissions from coal combustion are negative 

in the United States except for the Upper Bound scenario. Domestic coal prices increase in every 

scenario in response to the export of Powder River Basin and Uinta Basin coal. The higher prices 

then reduce the U.S. demand for coal, except in the Upper Bound scenario. In the Upper Bound 

scenario, changes in solar and combined cycle builds in the North and South Carolina electric 

demand region result in increases in coal consumption by an average of 0.40 million metric tons 

per year over the 2025 through 2040 period. 3' 

• In the Upper Bound scenario, the additional coal exported to Asia from the Proposed Action 

reduces the delivered Asia coal prices, inducing demand. This increases overall coal 

34 A solar build of 29 megawatts is delayed in the Proposed Action from coming online in 2020 to coming online in 

2030. Also, there is 4 megawatts less combined cycle builds. Both actions result in greater coal consumption. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3·18 April2017 
665 


31623.629

Cowlitz County Impacts 

consumption even as some Asian coals from Indonesia and Australia are substituted by Powder 

River Basin and Uinta Basin coals. 

• There is a secondary driver of emissions in Asia, as lower-heat-content coal from the United 

States is a substitute for higher-heat-content coal, or higher-COz-content coal is a substitute for 

lower-C02-content coal. This substitution of higher-heat-content coal results in additional lowheat-content coal being combusted in order to meet electricity demands (i.e., Btu demands), 

therefore raising emissions in Asia.35 There is an increase in COz combustion emissions due to 

this driver in all but the Lower Bound scenario. 

• In the 2015, U.S. and International Energy Policy scenario, the increase in Asian COz emission is 

driven by the mix of coal consumed. U.S. coal consumption decreases slightly relative to the noaction because U.S. coal prices are already low due to a decrease in consumption from the 

enactment of EPA's Clean Power Plan in 2022, as modeled. 

The coal market assessment provides a thorough discussion of the market. 

Table 62. Net Emissions from Coal Combustion (MMTCO,e)• 

Emission Source 

2015 Energy 

Policy 

Coal Combustion, United States (MMTCOze) 

Net Annual Emissions, 2028 -1.25 

Net Total Emissions, 2018-2038 -14.02 

Coal Combustion from Induced Demand, Asia (MMTCOze) 

Net Annual Emissions, 2028 0 

Net Total Emissions, 2018-2038 0 

Coal Combustion from Coal Substitution, Asia (MMTCOze) 

Net Annual Emissions, 2028 0.32 

Net Total Emissions, 2018-2038 5.47 

Subtotal (MMTCOze) 

Net Annual Emissions, 2028 -0.93 

Net Total Emissions, 2018-2038 -8.55 

Notes: 

Scenario 

Lower 

Bound 

-7.94 

-93.59 

<0.005 

<0.005 

-0.54 

-7.86 

-8.48 

-101.44 

Upper 

Bound 

0.03 

0.77 

52.48 

747.07 

0.41 

1.62 

52.92 

749.46 

a Net GHG emissions represent the difference between the Proposed Action and the no-action. 

MMTC02e =million metric tons of carbon dioxide equivalent 

3.1.14 Induced Natural Gas Consumption 

No Clean 

Power Plan 

<0.005 

-0.04 

0 

0 

1.84 

23.95 

1.83 

23.91 

Natural gas consumption in the United States is a large and highly variable source of emissions. 

Higher coal prices or lower natural gas prices in the United States induce electricity generators to 

switch to natural gas. Relative to the no-action, natural gas emissions increase for all scenarios 

except for the Upper Bound scenario, although the results display significant variation depending on 

35 For example, for the No Clean Power Plan scenario, coal consumption in Taiwan increases by 1.7 million metric 

tons in 2025 over the no-action; however, there is no induced demand in this scenario. Thus the full1.7 million 

metric tons of the increase in coal consumption in Taiwan in 2025 is due to changes in the mix of coal consumed. 

MJI!ennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-19 April2017 
666 


31623.630

Cowlitz County Impacts 

the extent to which coal is displaced (Table 63). The differences among scenarios are driven by the 

following two factors. 

• The inclusion of the Clean Power Plan, which generally reduces coal consumption and prices and 

increases natural gas consumption and prices. One of the components of compliance with the 

Clean Power Plan is increased energy efficiency. Thus in the scenarios without the Clean Power 

Plan the increased energy efficiency is removed, which results in overall electric demand being 

higher. This results in higher coal and natural gas consumption in the scenarios without the 

Clean Power Plan in 2025 and later when the Clean Power Plan implementation is ramped up. 

• The assumed Powder River Basin coal production costs. Higher Powder River Basin coal 

production costs, as in the Lower Bound scenario, result in a greater increase in natural gas 

consumption under the Proposed Action, because there is a greater increase in coal prices. The 

greater increase in coal prices results in a larger decrease in coal consumption and a subsequent 

larger increase in natural gas consumption. 

Table 63. Net Emissions from Natural Gas Substitution in the United States (MMTCOze)' 

Scenario 

2015 Energy Lower Upper 

Period Policy Bound Bound 

Net Annual Emissions, 2028 [MMTCOze) 0.07 2.42 -0.02 

Net Total Emissions, 2018-2038 [MMTCOze) 0.89 27.78 -0.24 

Notes: 

a Net GHG emissions represent the difference between the Proposed Action and the no·action. 

MMTCOze "" miiJion metric tons of carbon dioxide equivalent 

3.1.15 Net Greenhouse Gas Emissions 

No Clean 

Power Plan 

<0.005 

<0.005 

This section presents the aggregated results of each of the emission sources described previously. 

Model results indicate that the direct GHG emissions from the Proposed Action (Table 64) are the 

same for each of the four scenarios, as they are emitted in proportion to the throughput of the 

Proposed Action and are not influenced by outside economic factors. The largest contributors to the 

direct emissions are transportation-related emissions, including locomotive operation and vessel 

transport within Cowlitz County. Together, these two sources contribute about 72% of direct 

emissions. For the 2015 U.S. and International Energy Policy scenario, the total direct emissions 

contributed an increase of approximately 0.60 MMTCOze (0.9%) (Table 64). This value is compared 

to a total net increase in emissions of 22.36 MMTCO,e excluding coal extraction (Table 66) and a net 

decrease in emissions of 63.54 MMTCO,e including coal extraction (Table 67) throughout the 2018 

through 2038 analysis period once market-influenced and indirect sources of emissions are 

considered. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-20 April2017 
667 


31623.631

Cowlitz County Impacts 

Table 64. Direct Emissions (Generated in Cowlitz County) for the Proposed Action (MMTCOze)" 

Scenario 

Period 

2015 Energy 

Policy 

Lower 

Bound 

Upper 

Bound 

No Clean 

Power Plan 

Annual Emissions, 2028 (MMTCOze) 

Total Emissions, 2018-2038 (MMTCOze) 

MMTCOze = million metric tons of carbon dioxide equivalent 

0.04 

0.60 

0.04 

0.60 

0.04 

0.60 

0.04 

0.60 

Statewide, emissions are about 9 times as high as the county emissions, largely driven by the greater 

distances traveled by locomotives and vessels outside of Cowlitz County. Locomotive transport 

constitutes about 97% of emissions generated within Washington State and outside of Cowlitz 

County (Table 65). 

Table 65. Emissions Generated within Washington State, Excluding Cowlitz County (MMTC02e) 

Scenario 

Upper No Clean 

Period 

2015 Energy Lower 

Polley Bound Bound Power Plan Cumulative 

Annual Emissions, 2028 (MMTCOze) 

Total Emissions, 2018-2038 (MMTCOze) 

0.33 0.33 0.32 0.33 0.33 

4.57 4.77 4.27 4,77 4.77 

Notes: 

The Cumulative scenario is provided here For comparison and is addressed in Section 3.1.15, Net Greenhouse Gas Emissions, under Cumulative Scenario. 

MMTCOze =million metric tons of carbon dioxide equivalent 

The total net indirect emissions from activities outside the project area and Cowlitz County 

attributed to the operation of the Proposed Action come from a variety of sources, including: 

• Extraction of coal at the mining sites 

• Rail Transport 

• Coal export terminal construction-embedded GHG emissions in materials for coal export 

terminal construction 

• Coal Export Terminal Operation-Electricity Consumption 

• Helicopter and Pilot Boat Trips 

• Vessel Transport 

• Coal Combustion in Asia and the United States 

• Induced Natural Gas Consumption in the United States 

Net indirect emissions over the 2018 through 2038 analysis period excluding coal extraction vary 

depending on the scenario, from a decrease of 41.904 MMTC02e in the Lower Bound scenario to an 

increase of 779.83 MMTCOze in the Upper Bound scenario (Table 66). The total net impacts (i.e., 

direct and indirect emissions) excluding coal extraction range from a decrease in emissions of 41.31 

MMTCO,e in the Lower Bound scenario relative to the no-action to an increase in emissions of 

780.42 MMTCOze in the Upper Bound scenario relative to the no-action. The No Clean Power Plan 

36 By definition, direct emissions are equivalent to emissions generated in Cowlitz County. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-21 April2.017 
668 


31623.632

Cowlitz County Impacts 

scenario, which depicts a "business as usual" projection of market conditions in the absence of 

climate policy, indicates a net increase of 51.75 MMTCOze across the entire analysis period studied. 

Table 66 summarizes direct emissions, indirect emissions, and total net emissions excluding coal 

extraction. 

Table 66. Net (Direct and Indirect) Emissions for the Proposed Action Excluding Coal Extraction 

(MMTC02e) 

Scenario 

2015 

Energy Lower Upper No Clean 

Period Policy Bound Bound Power Plan Cumulative 

Direct emissions (generated in Cowlitz County) excluding coal extraction (MMTCOze) 

Annual Emissions, 2028 0.04 0.04 0.04 0.04 0.04 

Total Emissions, 2018-2038 0.60 0.60 0.60 0.60 0.60 

Net indirect emissions excluding coal extraction (MMTCOze) 

Annual Emissions, 2028 1.15 -3.84 54.97 3.72 19.45 

Total Emissions, 2018-2038 21.76 -41.90 779.83 51.16 350.64 

Net emissions (direct+ indirect) excluding coal extraction (MMTCOze) 

Annual Emissions, 2028 1.19 ·3.80 55.01 3.76 19.49 

2018-2038 22.36 -41.31 780.42 51.75 351.24 

The Cumulative scenario is provided here for comparison and is addressed in Section 3.1.15, Net Greenhouse Gas 

Emissions, under Cumulative Scenario 

MMTC02e =million metric tons of carbon dioxide equivalent 

Net indirect emissions over the 2018 through 2038 analysis period including coal extraction vary 

depending on the scenario, from a decrease of 122.64 MMTCO,e in the Lower Bound scenario to an 

increase of 800.90 MMTC02e in the Upper Bound scenario (Table 6 7). The total net impacts (i.e., 

direct and indirect emissions) including coal extraction range from a decrease in emissions of 

122.04 MMTCOze in the Lower Bound scenario relative to the no-action to an increase in emissions 

of 801.49 MMTC02e in the Upper Bound scenario relative to the no-action. The No Clean Power Plan 

scenario, which depicts a "business as usual" projection of market conditions in the absence of 

climate policy, indicates a net decrease of 4.75 MMTC02e across the entire analysis period studied. 

Table 67 summarizes direct emissions, indirect emissions, and total net emissions including coal 

extraction. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-22 April 2017 
669 


31623.633

Cowlitz County 

Table 67. Net Emissions (Direct+ Indirect) for the Proposed Action Including Coal Extraction 

(MMTCO,e)' 

Scenario 

2015 

Energy Lower Upper No Clean 

Impacts 

Period Policy Bound Bound Power Plan Cumulative 

Direct emissions (generated in Cowlitz County) including coal extraction (MMTCOze) 

Annual Emissions, 2028 0.04 0.04 0.04 0.04 0.04 

Total Emissions, 2018-2038 0.60 0.60 0.60 0.60 0.60 

Net indirect emissions Including coal extraction (MMTCO,e) 

Annual Emissions, 2028 -3.77 -8.52 56.05 0.51 

Total Emissions, 2018-2038 -64.14 -122.64 800.90 -5.34 

-3.73 -8.48 56.09 0.55 

-63.54 -122.04 801.49 -4.75 

.a Net GHG emissions represent the difference between the Proposed Action and the no~action. 

MMTCOze:::: million metric tons of carbon dioxide equivalent 

7.11 

164.83 

7.15 

165.43 

Figure 11 depicts the range of net total emissions from the operation of the Proposed Action 

excluding coal extraction across the different scenarios studied.37 This figure, which identifies the 

major sources of emissions, shows that the largest contributors to net emissions vary across 

scenarios. In the 2015 U.S. and International Energy Policy scenario, international vessel 

transportation is the largest contributor to net emissions. In the Lower Bound scenario, coal 

displacement in the United States is the largest contributor to net emissions. In the No Clean Power 

Plan scenario, coal substitution in Asia is the largest contributor to net emissions, while in the Upper 

Bound and Cumulative scenarios, induced demand in Asia is the largest contributor to net emissions. 

37 The bars in this figure do not include some of the smaller sources of emissions (for instance on~site emissions are 

not included]. However, the number for each bar denotes the total net emissions for each scenario modeled and 

includes all emission sources. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-23 Apri!Z017 
670 


31623.634

Cowlitz County 

Figure 11. Total Net Emissions for Each Scenario, Excluding Coal Extraction 2018-2038 

(MMTCOze)' 

Impacts 

Notes: a Net GHG emissions represent the difference between the proposed action and the no~action. The bars in this 

figure do not include some of the smaller sources of emissions (for instance on~site emissions are not included), 

However, the number for each bar denotes the total net emissions for each scenario modeled and includes all 

emission sources apart from coal extraction. The Cumulative scenario is provided here for comparison and is 

addressed in Section 3.1.15, Net Greenhouse Gas Emissions, under Cumulative Scenario 

Figure 12 depicts the range of net total emissions from the operation of the Proposed Action, 

including coal extraction across the different scenarios studied.38 Similar to Figure 11, this figure 

also shows that the largest contributors to net emissions vary across scenarios. In the 2015 U.S. and 

International Energy Policy and No Clean Power Plan scenarios, coal extraction is the largest 

contributor to net emissions, In the Lower Bound scenario, coal displacement in the United States is 

the largest contributor to net emissions, while in the Upper Bound and Cumulative scenario, induced 

demand in Asia is the largest contributor to net emissions. 

38 The bars in this figure do not include some of the smaller sources of emissions (for instance onMsite emissions are 

not included). However, the number for each bar denotes the total net emissions for each scenario modeled and 

includes all emission sources. 

Millennium Bulk Terminals Longview 

S£PA Greenhouse Gas Emissions Technical Report 3-24 April 2017 
671 


31623.635

Cowlitz County Impacts 

Figure 12. Total Net Emissions for Each Scenario, Including Coal Extraction 2018-2038 (MMTC01e)• 

Notes:<~ Net GHG emissions represent the difference between the Proposed Action and the no~action. The bars in this 

figure do not include some of the smaller sources of emissiom.· (for instance on~site emissions are not included). 

However, the number for each bar denotes the total net emissions for each scenario modeled and includes all 

emission sources, The Cumulative scenario is provided here for comparison and is addressed in Section 3.1.15, Net 

Greenhous-e Gas Emissions, under Cumulative Scenario 

The shift in coal prices both domestically and internationally have a major impact on the resulting 

net GHG emissions for each scenario compared to the no-action. The textboxes that follow illustrate 

key concepts on the shift in coal prices. These shifts are mentioned as they influence the net change 

in GHG emissions as described below. For additional details, see the SEPA Coal Market Assessment 

Technical Report (lCF 2017c]. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Techmcal Report 3-25 Apnl2017 
672 


31623.636

Cowlitz County Impacts 

Impact of the Proposed Action on Domestic Coal Supply and Demand, Assuming Coal 

Export Terminal Operates at Full Capacity 

The operation of the Proposed Action would have the effect of improving integration of the U.S. 

and Asian coal markets. However, to the extent that Asian coal prices are higher than U.S. coal 

prices, operation of the Proposed Action would cause Asian coal prices to decline, while U.S. coal 

prices would increase. These changes in price would cause Asian coal demand to increase and 

U.S. coal demand to decrease. Increase in demand for U.S. coal as coal is exported from the 

Proposed Action (D, shifts to Dz) would result in higher U.S. coal prices and a subsequent 

decrease in domestic coal demand compared to the no-action. The international "demand" from 

the coal export terminal is inelastic (i.e., for a 1 o/o change in coal price, there is no change in 

demand for coal from the export terminal) while the domestic demand from coal plants is elastic 

and decreases with an increase in coal prices (e.g., for a 1 o/o increase in coal price, the demand for 

coal will decrease 0.3%). 

G.l 

.... 

·;::: 

Q. 

U.S. Coal Market 

Terminal comes online 

and shifts U.S. demand 

Quantity 

-Demand 1 -Demand 2 ~~-,supply 

decreasing coal demand 

Quantity 

s 

D, 

s 

Dz 

-Demand 1-Demand 2 • ·Supply -Demand 3 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-26 Apr!l2017 
673 


31623.637

Cowlitz County Impacts 

Impact of the Proposed Action on International Coal Supply and Demand, Assuming Coal 

Export Terminal Operates at Full Capacity 

1. Increase in coal supplied to international market from the Proposed Action. 

2. This increase in the coal supply in Asia would result in lower international coal prices and a 

subsequent increase in international coal demand compared to the no-action. 

Pacific Basin Coal Market 

Quantity 

'"-Demand -Supply 1 -Supply2 

Pacific Basin Coal Market Response 

Pacific Basin market 

Quantity 

<<"-·Demand -Supply 1-Supply 2 -Demand 2 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-27 April2017 
674 


31623.638

Cowlitz County Impacts 

The diagrams above explain the general impact of the Proposed Action on coal markets regardless of 

the scenario. What makes each scenario different, however, is that the supply and demand curves 

for coal each have different slopes. The slopes of the supply and demand curves vary based on 

economic and policy conditions dictated by each scenario. For example, the Lower Bound scenario 

has a lower slope for coal demand than the No Clean Power Plan scenario, indicating a lower 

elasticity of demand in response to supply changes. Likewise, the slope of the demand curves in the 

Upper Bound Scenario is higher than the No Clean Power Plan Scenario, which results in greater 

elasticity of demand and thus greater induced demand. In effect, the differences in supply and 

demand curves differentiate the emissions between each scenario. 

3.1.15.1 No Clean Power Plan Scenario 

Emissions estimated in the coal market assessment are assumed zero from 2018 through 2020 

because the proposed terminal is not operating yet. Emissions start to ramp up when the coal export 

terminal would begin operating in 2021 and continue through 2038. As shown in Figure 13, there is 

significant variation from year to year, as well as a ramp-up period where the coal export terminal 

would increase exports from zero to 44 million metric tons of coal per year. In the No Clean Power 

Plan Scenario, U.S. coal consumption and thus emissions do not change under the Proposed Action 

because domestic coal prices do not increase enough to cause a change in demand. The coal 

exported through the proposed terminal replaces coal produced primarily from Indonesia, China, 

Russia, Australia, and India, resulting in a net decrease in annual GHG emissions of 3.21 million 

metric tons from coal extraction when the terminal reaches full capacity in 2028 (Table 44). 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-28 April Z017 
675 


31623.639

Cowlitz County Impacts 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-29 Aprl! 2017 
676 


31623.640

Cowlitz County Impacts 

Figure 13. No Clean Power Plan-Net Annual Emissions Excluding and Including Coal Extraction, 

Z018-Z038 

_ _ _ m m; I 

--- ""1\! 

2018 2023 

!,l:l Domestic Coal Displacement 

Domestic Rail Transport 

Induced Demand for Coal {Asia) 

2028 2033 

*''Coal Substitution (As1a) llill DomestiC Natural Gas Substitution 

~International Transport A% Coal Extraction 

-Net Emissions (Major Sources} 

Note: Net GHG emissions represent the difference between the Proposed Action and the no-action. 

Millennium Bulk Termmals-Longvnoow 

SEPA Greenhouse Gas Emissions Technical Report 3-30 April2017 

2038 
677 


31623.641

Cowlitz County Impacts 

3.1.15.3 Lower Bound Scenario 

In the Lower Bound scenario (Figure 14), coal displacement in the United States results in a 

reduction ofGHG emissions. The displacement of U.S. coal is highest in the Lower Bound Scenario 

because the PRB and Uinta Basin coal supply curves are assumed higher than the base assumption 

coal curves, which results in higher coal prices in both the No Action and Proposed Action 

alternatives. Thus the domestic coal demand is more sensitive to the coal price increase that occurs 

in the Proposed Action (i.e., for a percent increase in price, coal demand would decrease by 1.6 

million metric tons on average). Induced demand in Asia increases Asian coal GHG emissions. In the 

Lower Bound Scenario, there is a decrease in emissions due to the mix of coal consumed in Asia as 

more coal with a lower carbon emissions rate is consumed and less coal with a higher carbon 

emissions rate is consumed. Thus the overall net emissions in Asia are less than in the 2015 U.S. and 

International Energy Policy Scenario. Compared to the No Clean Power Plan scenario, the Lower 

Bound Scenario results in higher natural gas emissions in the United States due to the deeper 

reduction of coal use domestically and the replacement of some of that coal energy with natural gas. 

In summary, the Lower Bound scenario results in the following emissions conditions. 

• Overall net emissions are lower than in the No Clean Power Plan scenario. 

• Coal emissions in Asia would be lower than in the No Clean Power Plan scenario because of the 

mix of coals consumed. 

Natural gas substitution is higher because domestic coal prices are more sensitive to changes in 

demand in the Lower Bound than the No Clean Power Plan scenario. 

Coal extraction emissions are lower than in the No Clean Power Plan scenario, driven by coal 

production reductions in Russia and China. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3-31 Apr/12017 
678 


31623.642

Cowhtz County Jmpacts 

Figure 14. lower Bound- Net Annual Emissions Excluding and Including Coal Extraction, 2018-

2038 

10 

iii 

8 5 01) O>N 

·= 0 't)U :ol- 0 'Y:E 

,:l:E 

~ s -5 .2 'Z ..., u 

.!2 ~ 

- - - R I I I I I i i i i I I i i i i I i 

e 1< -1o I.U w ~ 

z "' -15 

10 

-15 

- - - II 

2018 2023 

s Domestic Coat DLsp!acement 

Domestic Rail Transport 

Induced Demand for Coat (.Asia) 

2028 

'N Coal Substitut~<:m {Asia) 

w International Transport 

-Net Emissions {Major Sources) 

2033 2038 

l!'ll Domestic Natural Gas Substitut1on 

iS Coal Extraction 

Note: Net GHG emJsswns represent the difference between tbe Proposed Actwn and the no-actwn. 

3.1.15.4 Upper Bound Scenario 

The Upper Bound scenario (Figure 15), which has a higher sensitivity to coal price changes, exhibits 

stronger induced demand from Asia, resulting in higher Asian coal emissions than the No Clean 

Power Plan scenario. There is a higher sensitivity to coal price changes due to the overall higher 

global coal demand, which in turn stresses the coal supply chain more than the other scenarios.J9 In 

summary, the Upper Bound scenario results in the following emissions conditions. 

Overall net emissions are higher than in the No Clean Power Plan scenario. 

• Coal emissions in Asia rise more than in the No Clean Power Plan scenario because more 

demand is induced in the Upper Bound Scenario than in the No Clean Power Plan Scenario. 

39 The Upper Bound Scenario international coal demand is 33% higher than the No Clean Power Plan Scenario and 

71% higher than the Lower Bound and 2015 U.S. and International Energy Policy Scenarios demand in 2040. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 

Apri! 2017 3-32 
679 


31623.643

Cowlitz County !mpac:ts 

Coal extraction emissions are higher than in the No Clean Power Plan scenario, driven by coal 

production increases in the Powder River and Uinta Basins, and China. 

Figure 15. Upper Bound- Net Annual Emissions EMcluding and Including Coal Extraction, 2018-

2038 

60 i'ii 

8 Q.l so 0D N :5 § 40 

-5:;:: 

,l:) :;:: 30 

"' " " 0 20 .2 ·;:: 

.!!! "'~ " 10 E 'X ww 

z "' 

i'ii 

0 

·10 

60 

8 Q.l 50 t>j) N 

:5 § 40 

~~ .: :;:: 30 

g "' c: 0 20 ... 'tl 

·~ ~ 10 ww 

1i: 

z 0 

-10 

2018 2023 

Ill Domestic Co a! Displaceme11t 

Domestic Rail Transport 

!nducE:'d Demand for Coal (Asia) 

2028 

m Coa! Substitution (Asia) 

:eJ International Transport 

-Net Emi~~ions (Major Sources} 

2033 2038 

1!111 Domestic Natura! Gas Substitution 

Q.t Coal Extraction 

Note: Net GHG emissions represent the difference between the Proposed Action and the no·action. 

3.1.15.5 2015 U.S. and International Energy Policy Scenario 

The 2015 U.S. and International Energy Policy scenario (Figure 16) has U.S. coal displacement that is 

lower than the No Clean Power Plan Scenario and higher than the Lower Bound scenario. This shift 

in coal displacement occurs because the climate policy in the United States depresses coal demand 

and prices and reduces coal combustion. Therefore, in this scenario, domestic coal emissions and 

natural gas emissions stay relatively flat throughout the analysis period. Net emissions in Asia are 

lower than in the No Clean Power Plan scenario and are driven by the change in the mix of coals. 

(One important note is that, although state climate emissions goals drive up the use of renewables 

relative to the No Clean Power Plan scenario, use of coal is permissible). Natural gas substitution is 

low in the 2015 U.S. and International Energy Policy Scenario because the Proposed Action does not 

cause coal prices to increase enough to result in a large decrease in coal consumption. 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 3·33 April2017 
680 


31623.644

Cowlitz County Impacts 

• The decrease in net emissions 40 from domestic coal combustion is greater than in the No Clean 

Power Plan scenario because coal consumption in the 2015 U.S. and International Energy Policy 

scenario is more sensitive to changes in coal prices due to lower overall electric demand (the 

coal elasticity of demand results in a decrease in coal demand of 0.5 million metric tons for 

every 1% increase in price). 

Net emissions from coal combustion in Asia increase less than in the No Clean Power Plan 

scenario because of changes in the mix of coal consumed. 

• Net GHG emissions in Asia from coal combustion in the 2015 U.S. and International Energy 

Policy scenario are driven by changes in coal types consumed (i.e., low COz-content versus high 

COz-content coal). 

Net emissions from domestic natural gas combustion are greater than in the No Clean Power 

Plan scenario because of the larger decrease in domestic coal consumption in the 2015 U.S. and 

International Energy Policy scenario. 

• Net emissions in coal extraction are lower than in the No Clean Power Plan scenario, driven by 

coal production reductions in Russia and China. 

40 Net GHG emissions represent the difference between the Proposed Action and the No~ Action. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-34 April2017 
681 


31623.645

Cowlitz County Impacts 

Figure 16. 2015 U.S. and International Energy Policy-Net Annual Emissions Excluding and 

Including Coal Extraction, 2018-2038 

... 

0 

u "' bQ N 

~8 " ,_ -.:;::!: 

.::;: 

c "' c 0 

10 

-10 

10 

0 

.E "B 

.!a ~ -5 

~3 

-10 

- -- ... 

- - - """ i 

2018 2023 

ea Domestic Coat Displacement 

Domestic Rail Transport 

Induced Demand for Coal {Asia} 

i 

2028 

N¥ Coal Substitution (Asia) 

00 International Transport 

-Net Emissions (Major Sources) 

UUi 

2033 2038 

l!ll! Domestic Natura! Gas Substitution 

~Coal Extraction 

Note: Net GHG emissions represent the difference between the Proposed Action and the no~action. 

To highlight the differences between net emissions during construction, net emissions during initial 

operation of the terminal, and net emissions during full operation of the terminal. Table 68 presents 

total net emissions for each phase as well as average net emissions if coal extraction is excluded. 

Table 69 shows net emissions if coal extraction is included. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-35 April2017 

31623.646

Cowlitz County 

Table 68. Net Emissions (Direct and Indirect) Excluding Coal Extraction by Phase (MMTCO,e) 

2015 Energy Policy Lower Bound Upper Bound No Clean Power Plan 

Avg. Avg. Avg. Avg. 

GHG Annual GHG Annual GHG Annual GHG Annual 

Phase Years Emissions Emissions Emissions Emissions Emissions Emissions Emissions Emissions 

----------

Net Emissions Excluding Coal Extraction (MMTCOze} 

Construction 2018- 0.21 O.Q7 0.21 0.07 0.21 0.07 0.21 0.07 

Emissions 2020 

Total Net 2021- 0.30 0.04 ·13.66 ·1.95 183.41 26.20 14.19 2.03 

Emissions for 2027 

Initial 

Operation 

Total Net 2028- 21.85 1.99 ·27.86 ·2.53 596.80 54.25 37.35 3.40 

Emissions for 2038 

Full 

_ _!)p_~-~~~----- --------- ~-- ~-~-~---- Total 2018- 22.36 ·41.31 780.42 51.75 

Emissions 2038 Mill~:nnium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions TechniCal Report 3-36 

31623.647

Cowlitz county Impacts 

Table 69. Net Emissions (Direct and Indirect) Including Coal Extraction by Phase (MMTCO,e) 

2015 Energy Polley Lower Bound Upper Bound No Clean Power Plan 

Avg. Avg. Avg. Avg. 

GHG Annual GHG Annual GHG Annual GHG Annual 

Phase Years Emissions Emissions Emissions Emissions Emissions Emissions Emissions Emissions 

Net Emissions Including Coal Extraction (MMTCOze) 

Construt'tion 2o18- I 0.21 0.07 I 0.21 0.07 I 0.21 0.07 0.21 0.07 

Emissions ---~-----~ Total Net 

Emissions for 

Initial ~p!_:_~~~-n Total Net 2028- I -51.38 -4.67 I -95.34 -8.67 

Emissions for 2038 

Full 

Operations 

Total 2o18- 1 -63.54 I -122.04 I 801.49 I -4.75 

Emissions 2038 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 3-37 
684 


31623.648

Cowlitz County Impacts 

3.1.15.6 Cumulative Scenario 

The Cumulative scenario includes other planned export coal terminals in the Pacific Northwest Each 

terminal would operate at full capacity, except for the Ridley terminal due to its long distance from 

the Powder River Basin, for a total export tonnage of 175 million metric tons, which includes both 

thermal and metallurgical coa\.41 The emissions from the operation of the other coal export 

terminals are not included in the cumulative emissions analysis. Their impact is solely limited to 

their ability to influence coal supplies and prices. All other assumptions are the same as the No Clean 

Power Plan scenario. The Cumulative scenario compares the no-action without the additional coal 

export terminals against the Proposed Action that includes the other coal export terminals. 

The Cumulative scenario emissions are dominated by changes in Asian coal emissions (Figure 17.). 

The operation of multiple coal export terminals changes the mix of coal types consumed in Asia with 

only a small decline in domestic coal consumption. The additional export capacity beyond the 

Proposed Action causes a decrease in coal prices in 2030, which results in induced demand 

equivalent to about 12.5 million metric tons. In summary, the Cumulative scenario results in the 

following emissions conditions. 

Net emissions relative to the no-action are higher than the No Clean Power Plan scenario 

(351.24 MMTCOze versus -51.75 from 2018 through 2038 excluding coal extraction, and 165.43 

MMTCOze versus -4.75 from 2018 through 2038 including coal extraction). 

• The change in Asian coal combustion emissions is due to a mix of induced demand and a change 

in the mix of coals consumed. 

• Coal use in the United States declines more relative to the No Clean Power Plan scenario due to 

the increased demand from multiple coal export terminals that is a greater stimulus to the 

domestic supply system and, as such, causes coal prices to rise higher and coal demand to fall 

farther. The change in coal use in the United States is less than 0.9 million metric tons in both 

the Cumulative and No Clean Power Plan Scenarios. 

• Natural gas substitution follows the same pattern as in the No Clean Power Plan scenario as 

natural gas consumption moves in the opposite direction of coal consumption changes in each 

scenario. 

• Coal extraction emissions show a similar trend as the No Clean Power Plan scenario; however, 

emissions are almost exclusively driven by a reduction in coal production in China. 

41 The analysis for the EIS only models thermal coal as only thermal coal would be exported through the proposed 

terminal. The total export capacity for thermal coal is 157 million metric tons. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3·39 April2017 
685 


31623.649

Cowlitz County Impacts 

Figure 17. Cumulative Scenario-Net Annual Emissions, 2018-2038 

40 

n; 

8 CIJ 30 00 N 

·= 0 ., ~ 20 

~:! 

~ ~ 10 

" 0 .!2 ·.;; 

.!a~ "' " 0 - - - - - - • = ~ E '>! '-"W -10 

·20 

40 

- - - - ii 

-20 

2018 2023 2028 2033 2038 

lil'l Domestic Coal Displacement 

Domestic Rail Transport 

Induced Demand for Coal (Asia) 

~"Coal Substitution {Asia) 

~InternatiOnal Transport 

Sl Domestic Natural Gas Substitution 

"Coal Extract1on 

-Net EmiSSions {Major Sources) 

Note: Net GHG emissions represent the difference between the Proposed Action and the no-action. 

3.2 No-Action Alternative 

Under the No-Action Alternative, the Applicant wonld not construct the coal export terminal and 

GHG emissions would not be affected by construction or operation. However, the Applicant has 

indicated that the operation of the current bulk product terminal would continue and increase 

within the project area. The Applicant would not construct Docks 2 and 3. Dock 1 would continue to 

be used for bulk cargo, primarily alumina, and might be used for general cargo. 

Alternative uses of the project area would be expected to result in minimal increases in GHG 

emissions relative to current conditions in Cowlitz County. Under the No-Action Alternative, the 

Applicant anticipates importing from Asia up to 600,000 short tons of calcined pet coke a year. This 

material would arrive by vessel and be stored in a building at the facility. Approximately 200,000 

short tons of coal tar pitch per year could also be imported by vessel, as well as an undetermined 

amount of cement. Future operations would result in two additional daily trains arriving and 

departing the facility with an average rail car length of 30 cars carrying bulk product. Each train is 

M1Uennlum Bulk Termma!s-longview 

SEPA Greenhouse Gas Emissions Technical Report 

Apnl2017 3-40 
686 


31623.650

Cowlitz County Impacts 

composed of two locomotives. In addition, an average of 26 Panamax-sized vessels would arrive and 

depart each year, an increase of 20 vessels compared to the 6 vessels that currently arrive and 

depart. Truck haul emissions associated with the transport of coal to the nearby Weyerhaeuser 

facility would increase and are included in estimate of GHG emissions. Emissions from the 

consumption of electricity at the bulk product terminal would increase due to the planned terminal 

expansion; however, the extent of this increase is uncertain. The estimated emissions are shown in 

Table 70. 

Table 70. No-Action Alternative Annual Average Emissions from Rail, Vessel, and Haul Trucks 

Operating within Cowlitz County (MMTC02e) 

Source 

Locomotive combustion 

Vessel combustion 

Haul trucks 

Total 

Maximum Annual Average 

Emissions (MMTCOze) 

0.0005 

0.0004 

0.0002 

0.0012 

MMTCOze =million metric tons of carbon dioxide 

equivalent 

The no-action in coal market assessment contains different boundaries than the emission sources 

above (i.e., the coal market assessment examines effects on the international coal market, while the 

No-Action Alternative examines alternative uses of the project area). While the no-action for the coal 

market assessment examines the implications of not building the coal export terminal, net emissions 

between a given coal market scenario and the no-action consider changes in emissions from coal 

combustion in Asia and the U.S. for instance, but do not consider changes in emissions from 

emission sources described in Table 70. In particular, the no-action as it relates to the coal market 

assessment does not evaluate net impacts associated with existing vessel, rail, and vehicle traffic. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 3-41 Apri12017 
687 


31623.651

Chapter 4 

Supplementary Data 

4.1 Interpolated Results from Coal Market 

Assessment 

The GHG analysis used coal market assessment estimates on changes in domestic and international 

coal demand for 2025, 2030, and 2040. For the GHG analysis, the years 2025, 2028, and 2038 are 

extracted from the full, interpolated time series and presented below. As mentioned in 

Section 2.2.2.2, Method for Assembling an Emissions Time Series, the coal market assessment values 

were adjusted to capture the gradual increase in coal exports from 2020 to 2025 (from zero to 25 

million metric tons] and 2028 (full capacity of 44 million metric tons]. This chapter presents the 

interpolated results based on the coal market assessment results. The following tables are 

presented. 

• Table 71. Interpolated Coal Market Assessment Results, 2015 U.S. and International Energy 

Policy 

• Table 72. Interpolated Coal Market Assessment Results, Lower Bound 

Table 73. Interpolated Coal Market Assessment Results, Upper Bound 

Table 74. Interpolated Coal Market Assessment Results, No Clean Power Plan 

• Table 75. Interpolated Coal Market Assessment Results, Cumulative 

In addition, Table 76 provides the net change in coal extraction volumes for the year 2028 and the 

entire 2018 through 2038 analysis period. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 4·1 April 2017 
688 


31623.652

Cowlitz County Supplementary Data 

Table 71. Interpolated Coal Market Assessment Results, 2015 u.s. and International Energy Policy 

2025 2028 2038 

Coal Exported Through the Proposed Action 25.0 44.0 44.0 

(million metric tons) 

Coal by Origin exported Through the Proposed Action 

(million metric tons) 

Powder River Basin- Total 25.0 44.0 37.5 

MT Powder River Basin 9.9 29.0 36.1 

MT Signal Peak 0.0 0.0 0.0 

Powder River Basin WY 8400 0.0 0.0 0.0 

Powder River Basin WY 8800 15.1 15.0 1.4 

Uinta Basin- Total 0.0 0.0 6.5 

Colorado 0.0 0.0 3.2 

Utah 0.0 0.0 3.3 

Total U.S. COz Emissions· Coal (thousand metric tons) ·953.2 ·1,251.4 -498.8 

Total Asian COz Emissions- Coal (thousand metric tons) -482.5 317.1 252.9 

Asia- Other -1,179.9 -830.7 0.0 

Australia 0.0 0.0 0.0 

China -66.8 1.6 16.2 

Hong Kong 472.4 416.5 149.0 

India 0.0 0.0 0.0 

Indonesia 0.0 0.0 0.0 

Japan -95.1 -165.9 35.7 

Korea -151.8 -6.3 118.5 

Taiwan 538.8 901.8 -66.5 

Total U.S. Natural Gas Consumption (TBtu) 0.0 1.2 0.8 

Total U.S. COz emissions- Natural Gas 0.0 65.2 41.6 

(thousand metric tons) 

Net Change in Shipping GHG Emissions from all Asian 602.6 1,013.2 1,179.9 

Sources, Excluding Transport from coal export terminal 

to WA State Border- Thousand MTCOze 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 4-2 April2017 
689 


31623.653

Cowlitz County Supplementary Data 

Table 72. Interpolated Coal Market Assessment Results, Lower Bound 

2025 2028 2038 

Coal Exported Through the Proposed Action (million 25.0 44.0 44.0 

metric tons) 

Coal by Origin exported Through the Proposed Action 

[million metric tons) 

Powder River Basin -Total 25.0 44.0 44.0 

MT Powder River Basin 0.0 0.0 0.0 

MT Signal Peak 0.0 0.0 0.0 

Powder River Basin WY 8400 0.0 0.0 11.4 

Powder River Basin WY 8800 25.0 44.0 32.6 

Uinta Basin- Total 0.0 0.0 0.0 

Colorado 0.0 0.0 0.0 

Utah 0.0 0.0 0.0 

Total U.S. COz Emissions- Coal [thousand metric tons) -4,92B.4 -7,940.6 -3,725.4 

Total Asian co, Emissions- Coal (thousand metric tons) -473.B -535.5 -652.1 

Asia- Other -161.2 -113.5 0.0 

Australia 0.0 0.0 0.0 

China -52.4 -89.8 -122.2 

Hong Kong 269.2 45.4 -256.0 

India -632.9 -445.5 0.0 

Indonesia 0.0 0.0 0.0 

japan -95.1 -165.9 -41.6 

Korea -151.8 -252.2 -59.1 

Taiwan 350.4 486.1 -173.3 

Total U.S. Natural Gas Consumption [TBtu) 28.8 45.6 18.3 

Total U.S. co, emissions- Natural Gas (thousand metric 1,531.1 2,424.0 972.4 

tons) 

Net Change In Shipping GHG Emissions from all Asian 769.8 1,130.8 1,189.9 

Sources, Excluding Transport from coal export terminal to 

WA State Border- Thousand 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 4-3 April2017 
690 


31623.654

Cowlitz County Supplementary Data 

Table 73. Interpolated Coal Market Assessment Results, Upper Bound 

2025 2028 2038 

Coal Exported Through the Proposed Action 

(million metric tons) 25.0 44.0 44.0 

Coal by Origin exported Through the Proposed Action 

(million metric tons) 

Powder River Basin- Total 25.0 42.4 32.1 

MT Powder River Basin 25.0 42.4 32.1 

MT Signal Peak 0.0 0.0 0.0 

Powder River Basin WY 8400 0.0 0.0 0.0 

Powder River Basin WY 8800 0.0 0.0 0.0 

Uinta Basin Total 0.0 1.6 11.9 

Colorado 0.0 0.0 2.9 

Utah 0.0 1.6 9.0 

Total U.S. co, Emissions - Coal (thousand metric tons) 17.4 26.0 115.3 

Total Asian COz Emissions- Coal (thousand metric tons) 30,790.8 52,895.8 51,805.7 

Asia- Other 0.0 -440.4 -160.0 

Australia 0.0 0.0 0.0 

China 28,225.5 49,371.7 49,168.2 

Hong Kong 23.4 149.7 278.0 

India 1,429.7 2,289.3 1,525.4 

Indonesia 0.0 0.0 0.0 

Japan 477.4 618.8 350.6 

Korea 130.9 292.4 251.1 

Taiwan 503.9 614.3 392.4 

Total U.S. Natural Gas Consumption (TBtu) -0.4 -0.5 -0.1 

Total U.S. COz emissions · Natural Gas 

(thousand metric tons) -18.9 -24.1 -3.6 

Net Change in Shipping GHG Emissions from all Asian 

Sources, Excluding Transport from coal export terminal to 

WA State Border- Thousand MTCOze 739.3 1,116.7 1,366.4 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 4-4 April2017 
691 


31623.655

Cowlitz County Supplementary Data 

Table 74. Interpolated Coal Market Assessment Results, No Clean Power Plan 

2025 2028 2038 

Coal Exported Through the Proposed Action 25.0 44.0 44.0 

(million metric tons) 

Coal by Origin exported Through the Proposed Action 

(million metric tons) 

Powder River Basin- Total 25.0 44.0 44.0 

MT Powder River Basin 25.0 44.0 44.0 

MT Signal Peak 0.0 0.0 0.0 

Powder River Basin WY 8400 0.0 0.0 0.0 

Powder River Basin WY 8800 0.0 0.0 0.0 

Uinta Basin- Total 0.0 0.0 0.0 

Colorado 0.0 0.0 0.0 

Utah 0.0 0.0 0.0 

Total U.S. COz Emissions· Coal (thousand metric tons) ·2.6 ·2.1 -4.0 

Total Asian COz Emissions- Coal (thousand metric tons) 1,579.4 1,835.5 1558.8 

Asia- Other 0.0 -672.2 -224.1 

Australia 0.0 0.0 0.0 

China 183.3 300.0 57.0 

Hong Kong 522.6 979.5 356.1 

India -357.0 -251.3 0.0 

Indonesia 0.0 0.0 0.0 

Japan 710.1 499.9 102.9 

Korea 0.0 0.0 92.5 

Taiwan 520.5 979.5 1,174.4 

Total U.S. Natural Gas Consumption (TBtu) 0.0 o.o 0.0 

Total U.S. COz emissions- Natural Gas 0.8 o.z -0.1 

(thousand metric tons) 

Net Change In Shipping GHG Emissions from all Asian 458.0 9Z7.Z 918.5 

Sources, Excluding Transport from coal export terminal to 

WA State Border- Thousand MTCOze 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 4-5 April2017 
692 


31623.656

Cowlitz County Supplementary Data 

Table 75. Interpolated Coal Market Assessment Results, Cumulative 

2028 2038 

Coal Exported Through the Proposed Action 

(million metric tons) 25.0 44.0 44.0 

Coal by Origin exported Through the Proposed Action 

(million metric tons) 

Powder River Basin - Total 25.0 44.0 44.0 

MT Powder River Basin 25.0 44.0 44.0 

MT Signal Peak 0.0 0.0 0.0 

Powder River Basin WY 8400 0.0 0.0 0.0 

Powder River Basin WY 8800 0.0 0.0 0.0 

Uinta Basin- Total 0.0 0.0 0.0 

Colorado 0.0 0.0 0.0 

Utah 0.0 0.0 0.0 

Total U.S. COz Emissions- Coal (thousand metric tons) -556.0 -1,028.3 -734.3 

Total Asian COz Emissions- Coal (thousand metric tons) -394.0 16,801.8 27,986.3 

Asia- Other 0.0 -678.4 -300.7 

Australia 0.0 0.0 0.0 

China 247.9 16,306.7 26,876.6 

Hong Kong 522.6 953.6 -163.6 

India -357.0 -251.3 0.0 

Indonesia 0.0 0.0 0.0 

Japan -1,327.9 -796.7 230.3 

Korea 0.0 89.3 148.8 

Taiwan 520.5 1,178.7 1,194.9 

Total U.S. Natural Gas Consumption (TBtu) -0,4 0.8 0.4 

Total U.S. COz emissions- Natural Gas 

(thousand metric tons) -23.7 43.1 20.2 

Net Change in Shipping GHG Emissions from all Asian 

Sources, Excluding Transport from coal export terminal to 

WA State Border- Thousand MTCOze 1,302.6 2,666.8 3,194.4 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 4-6 April2017 
693 


31623.657

Cowlitz County Supplementary Data 

Table 76. Coal Extraction by Region (Million Metric Tons) 

Scenario 

2015 No Clean 

Energy Lower Upper Power 

Extraction Source L Period Poli~ Bound Bound Plan Cumulative 

Powder River Basin 

Annual Extraction, 2028 43.46 36.09 40.07 44.00 83.08 

Total Extraction, 2018-2038 582.64 524.93 522.80 628.00 1,309.33 

Uinta Basin 

Annual Extraction, 2028 -0.24 0.09 1.15 <0.005 -0.03 

Total Extraction, 2018-2038 21.10 3.98 56.15 <0.005 -0.22 

Other U.S. Coals 

Annual Extraction, 2028 0.45 2.26 <0.005 <0.005 1.37 

Total 2018-2038 14.92 26.47 10.22 -0.01 19.04 

Annual Extraction, 2028 -6.15 -6.19 0.00 -19.09 -0.44 

Total Extraction, 2018-2038 -75.80 -76.39 0.00 -238.25 -58.72 

Canada 

Annual Extraction, 2028 0.00 -0.02 0.00 0.00 0.00 

Total 2018-2038 0.00 -0.22 0.00 0.00 0.00 

China 

Annual Extraction, 2028 -8.36 -7.09 6.11 -8.96 -48.25 

Total Extraction, 2018-2038 -226.57 -197.99 75.40 -146.45 -721.00 

India 

Annual Extraction, 2028 0.00 -7.59 0.00 -4.28 -4.28 

Total Extraction, 2018-2038 0.00 -62.12 -70.45 -35.04 -35.04 

Indonesia 

Annual Extraction, 2028 -8.29 -1.13 -12.32 -8.01 -14.44 

Total Extraction, 2018-2038 -67.83 -9.27 -135.61 -94.96 -209.24 

Russia 

Annual Extraction, 2028 -16.08 -15.72 -8.45 0.00 O.Ql 

Total Extraction, 2018-2038 -170.44 -167.Q1 -104.25 -48.86 0.17 

SouthAhica 

Annual Extraction, 2028 0.18 0.00 -2.04 <0.005 0.00 

Total Extraction, 2018-2038 1.49 0.00 -25.15 <0.005 -0.05 

Net Extraction 

Annual Extraction, 2028 4.78 0.67 26.57 3.65 17.Q1 

Total Extraction, 2018-2038 78.03 42.38 354.27 64.43 304.33 

Millennium Bulk Terminals Longview 

SEPA Greenhouse Gas Emissions Technical Report 4-7 April 2017 
694 


31623.658

Chapter 5 

References 

5.1 Written References 

Argonne National Laboratory. 2016. The Greenhouse Gases, Regulated Emissions and Energy Use in 

Transportation Model (GREET). Department of Energy, Argonne National Laboratory. Available 

at: https:/ /greet.es.anl.gov f. Accessed January 11, 2017. 

Australian Government Department of Environment and Energy. 2016. Quarterly Update of 

Australia's National GHG Inventory: Apri/2016. Available at: 

https:/ fwww.environ ment.gov.a uf system /files /resources/ 48 2 75 b9 2 -3f4b-44d O-aa4e50ece408df86/filesfnggi-quarterly-update-jun-2016.pdf. Accessed january 11, 2017. 

Baltic and International Maritime Council. 2016. Road to Recovery, Available: 

https:/ jwww.bimco.org/News/2016/05 /-/media/ 1 FEB6B6DE5494AE29AD63 FE164E2F296. 

ashx. Accessed December 22, 2016. 

Brusco Tug and Barge. Undated. Captain Bob Campbell Specifications. Available: 

http:/ jwww.tugboatinformation.comftug.cfm?id=4000. Accessed: july 8, 2015. 

California Air Resources Board. 2011. Initial Statement of Reasons for Proposed Rulemaking, 

Proposed Amendments to the Regulations "Fuel Sulfur and Other Operational Requirements for 

Ocean-Going Vessels within California Waters and 24 Nautical Miles of the California Baseline". 

Appendix D, Emission Estimation Methodology for Ocean Going Vessels, May 2011. Available: 

http:/ fwww.arb.ca.gov /msei/ categories.htm#ogv _category. 

California Air Resources Board. 2016. Mobile Source Emissions Inventory- Categories. Available at: 

https:/ fwww.arb.ca.gov /mseifcategories.htm. Accessed: November 22, 2016. 

Clean Cargo Working Group. 2014. Global Maritime Trade Lane Emissions Factors. Available: 

http:/ fwww.bsr.org/reports /BSR_CCWG_ Trade_Lane_Emissions_Factors.pdf. Accessed: May 8, 

2015. 

Coal Age. 2015. Ocean Freight Rates for Coal. Available: http:/ fwww.coalage.com/features/3230-

ocean-freight-rates-for-coal.html#.WFbkDrlrKOO. Accessed: December 22, 2016. 

Columbia River Bar Pilots. 2015. Pilot Transfers. Available: 

http:/ fwww.columbiariverbarpilots.com/columbiariverbarpilots_transfers.html. Accessed: May 

8, 2015. 

Council on Environmental Quality. 2016. Final Guidance for Federal Departments and Agencies on 

Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National 

Environmental Policy Act Reviews. Available: 

h ttps: I fwww. white house.gov /sites fwhi teh ouse.gov /files/ documents /nepa_final_ghg_guidance. 

pdf. Accessed: january 10, 2017. 

Millennium Bulk Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 5-1 April2017 
695 


31623.659

Cowlitz County References 

Cowlitz Public Utility District. Cowlitz PUD's Fuel Mix. Available: 

https:/ jwww.cowlitzpud.org/fuel_mix.php. Accessed: December 3, 2015. 

Dones et al. 2007. See International Energy Agency 2015. 

Dredged Material Management Program, 2016. Determination regarding the suitability of 

proposed dredged material from Northwest Alloys Longview for open-water flowlane 

disposal in the Columbia River (Memorandum). Prepared for Dredged Material Management 

Program. january 7, 2016. 

Ellicott Dredges. 2016. 4170 "SUPER-DRAGON" CUTTERHEAD DREDGE. Available: 

http:/ jwww.dredge.com /dredge-equipment-models/ 41 7 0-dragon-cu tter head-dredge j specs4170-dragon-dredge.html. Accessed November 22, 2016. 

Energy Information Agency. 1994. C02 Emission Factors for Coal Study for International Coals. 

Available: http:/ /www.eia.gov /coal/productionjquarterly /co2_articlejco2.html. Accessed: May 

8, 2015. 

Energy Information Agency. 2017.1nternational Energy Statistics. Available: 

http:/ jwww.eia.gov jbeta/internationaljdata/browserj. Accessed: March 3, 2017. 

Engineering ToolBox. 2016. Dirt and Mud- Densities. Available: 

http:/ /www.engineeringtoolbox.comjdirt-mud-densities-d_1727.html. Accessed: November 2, 

2016. 

Executive Office of the President. 2013. The President's Climate Action Plan. Final. Available: 

h ttps :/ jwww. whitehouse .gov /sites/ default/files/ image/ presid en t2 7 sclimateactionplan.p df 

Grette Associates, 2014. Millennium Coal Export Longview, Washington: Docks 2 and 3 and Associated 

Trestle Direct Effects of Construction (Report). Prepared by Grette Associates, LLC for Millennium 

Bulk Terminals- Longview, LLC. September 15, 2014. 

Global Methane Initiative. 2015. Coal Mine Methane Country Profiles. 

llllil&LJlflv_;lu;J o baLm etil;mrJlU\Ltlv.rJilllQ.!ltd[Iilll.L'-ir£5_.L\1iJL!lYJ:t:Ylr'iY _fu.!lnm.QxlJJ_df. Accessed 

january 12, 2017. 

Hill, N., Brannigan, C., Smokers, R., Schroten, A., van Essen, H., and Skinner, I. 2012. EU Transport 

GHG: Routes to 2050 II. Final Report Appendix 2: The Role of GHG Emissions from Infrastructure 

Construction, Vehicle Manufacturing, and ELVs in Overall Transport Sector Emissions. Available: 

http:/ jwww.eu transportghg2 0 50 .euj ems/ assets/Uploads/ Reports/ EU-Transport -G H G- 2 0 5OII-Task-2-FINAL-30Apr12.pdf. Accessed: October 13,2016. 

Hansen, L.T. 2009. The Viability of Creating Wetlands for the Sale of Carbon Offsets. journal of 

Agricultural and Resource Economics 34(2):350-365. 

ICF. 2009 Current Methodologies in Preparing Mobile Source Port-Related Emission Inventories. 

Available at: http:/ jarchive.epa.gov jsectorsjwebjpdfjports-emission-inv-april09.pdf. 

ICF. 2017a. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statemen~ SEPA 

Climate Change Technical Report. April. Seattle, W A. Prepared for Cowlitz County, Kelso, WA, in 

cooperation with Washington State Department of Ecology, Southwest Region. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 5-2 April2017 
696 


31623.660

Cowlitz County References 

ICF. 2017b. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statement, SEPA Air 

Quality Technical Report. April. Seattle, WA. Prepared for Cowlitz County, Kelso, WA, in 

cooperation with Washington State Department of Ecology, Southwest Region. 

ICF. 2017c. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statemen~ SEPA Coal 

Market Assessment Technical Report. April. Seattle, W A. Prepared for Cowlitz County, Kelso, WA, 

in cooperation with Washington State Department of Ecology, Southwest Region. 

ICF. 2017d. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statement, SEPA 

Energy and Natural Resources Technical Report. April. Seattle, W A. Prepared for Cowlitz County, 

Kelso, W A, in cooperation with Washington State Department of Ecology, Southwest Region. 

ICF. 2017e. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statemen~ SEPA 

Vessel Transportation Technical Report. April. Seattle, WA. Prepared for Cowlitz County, Kelso, 

WA, in cooperation with Washington State Department of Ecology, Southwest Region. 

ICF. 2017f. Millennium Bulk Terminals -Longview, SEPA Environmental Impact Statement, SEPA 

Vegetation Technical Report. April. Seattle, W A. Prepared for Cowlitz County, Kelso, WA, in 

cooperation with Washington State Department of Ecology, Southwest Region. 

ICF and DKS Associates. 2017. Millennium Bulk Terminals-Longview, SEPA Environmental Impact 

State men~ SEPA Vehicle Transportation Technical Report April. Seattle, WA. Prepared for Cowlitz 

County, WA, in cooperation with Washington State Department of Ecology, Southwest Region. 

ICF and Hellerworx. 2017. Millennium Bulk Terminals -Longview, SEPA Environmental Impact 

State men~ SEPA Rail Transportation Technical Report. April. Seattle, WA. Prepared for Cowlitz 

County, Kelso, WA, in cooperation with Washington State Department of Ecology, Southwest 

Region. 

Intergovernmental Panel on Climate Change, 1995. Climate Change 1995: The Science of Climate 

Change. Contribution of Working Group 1 to the Second Assessment Report of the 

Intergovernmental Panel on Climate Change. [Houghton, j.T., Meira Filho, LG., Callander, B.A, 

Harris, N., Kattenberg, A., and Maskell, K.] Cambridge University Press, Cambridge, United 

Kingdom and New York, NY, USA. 

Intergovernmental Panel on Climate Change. 2006.2006 IPCC Guidelines for National Greenhouse Gas 

Inventories. Prepared by the National Greenhouse Gas Inventories Programme, Eggleston H.S., 

Buendia L., Miwa K., Ngara T., and Tanabe K. (Eds.). japan: IGES. 

Intergovernmental Panel on Climate Change. 2007. Climate Change 2007: The Physical Science Basis. 

Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental 

Panel on Climate Change. Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. 

Tignor and H.L. Miller (Eds.). Cambridge, United Kingdom, and New York, NY: Cambridge 

University Press. 

Intergovernmental Panel on Climate Change, 2013.Annex III: Glossary [Planton, S. (ed.)]. In: Climate 

Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth 

Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G.-K. 

Plattner, M. Tignor, S.K. Allen,). Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. 

Cambridge University Press, Cambridge. United Kingdom and New York, NY, USA. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 5-3 April2017 
697 


31623.661

Cowlitz County References 

Intergovernmental Panel on Climate Change. 2014: Summary for po/icymakers. In: Climate Change 

2014: Impacts, Adaptation, and Vulnerability. Part A: Global and Sectoral Aspects. Contribution of 

Working Group II to the Fifth Assessment Report of the Intergovernmental Panel on Climate 

Change [Field, C.B., V.R. Barros, D.j. Dokken, K.j. Mach, M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, 

K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. 

Mastrandrea, and L.L. White (eds.)]. Cambridge University Press, Cambridge, United Kingdom 

and New York, NY, USA. pp. 1-32. 

International Energy Agency. 2011. World Energy Outlook: 450 Scenario: Methodology and Policy 

Framework. Available: 

http:/ /www.iea.org/media/weowebsite/energymodel/Methodology_ 450_Scenario.pdf. 

Accessed: july B, 2015. 

International Energy Agency. 2015. World Energy Outlook 2014. International Energy Agency, 9 rue 

de la Federation. 75739 Paris Cedex 15, France. ISBN 97B-92-64-20B04-9 

May,). R. and D. f. Brennan. 2003. Life cycle assessment of Australian fossil energy options. Process 

Safety and Environmental Protection: Transactions of the Institution of Chemical Engineers, Part B 

81(5):317-330. 

Millennium Bulk Terminal-Longview. 2014. Responses to General Project Related 

Questions/Information Requests. 

Mine Safety and Health Administration. 2016. Part 50 Data. Mining Industry Accident, Injuries, 

Employment, and Production Data. Available: 

http:/ /www.msha.gov /STATS/PARTSO /p50y2k/p50y2k. HTM. 

Montana Department of Environmental Quality. 2001. Air Quality Permit #1570-06. Issued by 

Montana Department of Environmental Quality [DEQ) to Western Energy Company. july 19, 

2001. Available: http:// www.deq.mt.gov/AirQuality /ARMpermits/1570-06.pdf. 

National Council for Air and Stream Improvement and the U.S. Forest Service. 2016. Carbon Online 

Estimator. Available: http:/ jwww.ncasi2.org/COLE/, 

National Energy Technology Laboratory. 2010. Life Cycle Analysis: Existing Pulverized Coal {EXPC) 

Power Plant. Available: http:/ jwww.netl.doe.gov/energyanalyses/refshelf/. Accessed: 

November 2016. 

Port of Long Beach, 2012. Port of Long Beach Air Emissions Inventory- 2011. Available: 

https:/ jwww.portollosangeles.orgjenvironment/studies_reports.asp. Accessed: November 22, 

2016. 

Puget Sound Maritime Air Forum, 2012.2011 Puget Sound Air Emissions Inventory. Available: 

https:/ jwww.portseattle.org/Environmental/ Air/Seaport-AirQuality/Documents/2011_EI_Full_Report.pdf. Accessed: March 13, 2017. 

Sea-web. 2015. Lloyd's Register of Ships. Available: www.sea-web.com. 

Skone, T. j., G. Cooney, M. jamieson, j. Marriott, M. Mutchek, and M. Krynock. 2016. Life Cycle Analysis 

of Coal Exports from the Powder River Basin, National Energy Technology Laboratory, U.S. 

Department of Energy. 

Millennium Bulk Terminals longview 

SEPA Greenhouse Gas Emissions Technical Report 5-4 April2017 
698 


31623.662

Cowlitz County References 

Spath, P. L., M. K. Mann, and D. R. Kerr. 1999. Life Cycle Assessment of Coal-fired Power Production. 

National Renewable Energy Laboratory, U.S. Department of Energy. Golden, CO. 

Starcrest Consulting Group. 2015. PortofLos Angeles Inventory of Air Emissions· 2014. Available at: 

h ttps: J jwww.portotlosangeles.org/ pdf/ 2 014 _Air _Emissions_( nventory _Full_Reportpdf 

Trettin, C.C., M.F. Jurgensen, and F. Martin. 2003. Carbon Cycling in Wetland Forest Soils. In: The 

Potential of U.S. Forest Soils to Sequester Carbon and Mitigate the Greenhouse Effect CRC Press. 

Boca Raton. 2003. p. 311-331 Edited by: Kimble, J.M., L.S. Heath, R.A. Birdsey, and R. La!. 

UC Berkeley. 2016. Green Concrete LCA Web Tool. Available: 

http:/ jgreenconcrete.berkeley.edujconcretewebtool.html. Accessed: October 12, 2016. 

United Nations Framework Convention on Climate Change. No date.INDCs as Communicated by 

Parties. Available: 

http:/ jwww4.unfccc.int/submissions/INDC/Submission%20Pagesjsubmissions.aspx. 

United Nations Framework Convention on Climate Change. 2015. Enhanced Actions on Climate 

Change: China's Intended Nationally Determined Contributions. Available: 

http:/ jwww4.unfccc.int/Submissions/INDC/Published%20Documents/China/1/China'so/o20!N 

DC%20-%20on%2030%20June%202015.pdf. 

URS Corporation. 2014a. Millennium Coal Export Terminal, Longview, Washington Environmental 

Report. Air Quality. Appendix H. 

URS Corporation. 2014b. Millennium Coal Export Terminal, Longview, Washington Environmental 

Report. Air Quality. Appendix D-1. 

URS Corporation. 2015. Millennium Coal Export Terminal Longview, Washington Supplementary 

Traffic Report Construction Traffic Analysis. March 2015. URS Corporation. 

U.S. Department of Homeland Security. 2014. Automatic Identification System Overview. Available: 

https:/ jwww.navcen.uscg.gov /?pageName=AlSmain. 

U.S. Environmental Protection Agency. 1996. AP-42, Section 3.4 Large Stationary Diesel and All 

Stationary Dual-fuel Engines. Final. Last Revised: October 1996. Available: 

http:/ jwww.epa.govjttnchie1jap42jch03j. Accessed: May 8, 2015. 

U.S. Environmental Protection Agency. 2009a. NON ROAD Model (Nonroad engines, equipment, and 

vehicles). Last revised: Version 2008a. Posted July. Available: 

http:/ jwww.epa.govjotaqjnonrdmdl.htm. Accessed: May 8, 2015. 

U.S. Environmental Protection Agency. 2009b. Emission Factors for Locomotives. Office of 

Transportation and Air Quality, EPA-420-F-09-025, April. Available: 

http:/ jwww.epa.govjoms/locomotives.htm. Accessed: May 8, 2015. 

U.S. Environmental Protection Agency. 2014a. MOVES (Motor Vehicle Emission Simulator). 

U.S. Environmental Protection Agency. 2014b. Clean Power Plan Overview. Available: 

http: J jwww2.epa.gov J carbon-pollution-standards J fact -sheet -clean -power-plan -overview. 

Accessed: May 26, 2015. 

U.S. Environmental Protection Agency. 2015a. Inventory of U.S. Greenhouse Gas Emissions and Sinks: 

1990-2013. EPA 430-R-15-004. Available: 

Millennium Bulk. Terminals-longview 

SEPA Greenhouse Gas Emissions Technical Report 5-5 Apri/2017 
699 


31623.663

Cowlitz County References 

http:/ jwww.epa.govjclimatechange/ghgemissionsjusinventoryreporthtml. Accessed: May 8, 

2015. 

U.S. Environmental Protection Agency. 2015b. Year 2012 eGRID. Boiler, Generator, Plant, State, PCA, 

eGRID Subregion, NERC Region, U.S., and Grid Gross Loss (%) Data Files. 

U.S. Environmental Protection Agency. 2015c. Clean Power Plan: State at a Glance- Washington. 

Available: http:/ jwww3.epa.gov /airquality jcpptoolboxjwashington.pdf. 

U.S. Environmental Protection Agency. 2016a. Greenhouse Gas Equivalency Calculator. Available: 

http: J /www.epa.gov J cleanenergy J energy-resources/ calculator.html. 

U.S. Environmental Protection Agency. 2016b. Inventory of U.S. Greenhouse Gas Emissions and Sinks: 

1990-2014. EPA 430-R-15-004. Available: https:j jwww.epa.govjghgemissions/us-greenhousegas-inventory-report-1990-2014. Accessed: january 2, 2017. 

U.S. Environmental Protection Agency. 2016c. Non road Compression-Ignition Engines: Exhaust 

Emission Standards. EPA 420-B-16-022. Available: https:/ /www.epa.govjemission-standardsreference-guidejepa-emission-standards-nonroad-engines-and-vehicles. Accessed: March 8, 

2017. 

U.S. Environmental Protection Agency. 2017. Emissions & Generation Resource Integrated 

Database (eGRID) 2014 Data File. Available: https:/ jwww.epa.gov/energyjemissionsgeneration-resource-integrated-database-egrid. Accessed: March 10, 2017. 

U.S. Global Change Research Program. 2014. National Climate Assessment. Available: 

http:/ /nca2014.globalchange.gov/. Accessed: May 18, 2015. 

Washington State Department of Ecology. 2016. Washington State Greenhouse Gas Emissions 

Inventory. Available: http:/ jwww.ecy.wa.gov/climatechange/ghg_inventory.htm. Accessed: 

March 11, 2016. 

Wernet, G., C. Bauer, B. Steubing, ). Reinhard, E. Moreno-Ruiz, and B. Weidema. 2016. The ecoinvent 

database version 3 (part 1): overview and methodology. The International journal of Life Cycle 

Assessment, [online]Z1(9), pp.1218-1230. Available at: 

http:/ /link.springer.com/10.1007 js11367-016-1087-8. Accessed: November 23,2016. 

5.2 Personal Communications 

Breen, David, Air Quality Environmental Program Manager for the Port of Portland, April2007. 

Chany, Katy. AECOM. April13, 2015-Email correspondence regarding energy use for terminal 

facilities. 

Ellenwood, Darren. Brim Aviation. December 9, 2015-Phone correspondence regarding energy use 

for helicopter transfer of pilot. 

Gaines, Kristin. Millennium Bulk Terminal. November 10, 2016- Email correspondence regarding 

dredging specifications. 

Millennium Bulk Terminals-Longview 

SEPA Greenhouse Gas Emissions Technical Report 5-6 April2017 
700 


31623.664

August 10,2018 

The Honorable John Barrasso 

Chairman 

U.S. Senate Committee on Environment and 

Public Works 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-6175 

The Honorable Tom Carper 

Ranking Member 

U.S. Senate Committee on Environment and 

Public Works 

410 Dirksen Senate Office Building 

Washington, D.C. 20510-6175 

Dear Chairman Barrasso and Ranking Member Carper: 

I am writing on behalf of the International Brotherhood of Electrical Workers District 2, 

which includes the states of Massachusetts, Connecticut, Rhode Island, New 

Hampshire, Vermont and Maine, to offer our support for the Water Quality Certification 

Improvement Act of 2018. While upholding important environmental protections, this 

legislation will improve and clarify the permitting process for key energy projects that 

create jobs for America's skilled trades people. 

Over the past several years. our organization has experienced first-hand the troubling 

actions of environmental special interests and state governments to bog down good 

energy projects with unnecessary and costly permitting requirements. The sole aim of 

these actions is to stop energy development regardless of a projects merits and 

benefits, and they have successfully stalled a variety of energy development projects, 

including electrical transmission, power plant construction, gas pipelines and others. 

New England's lack of investment in energy infrastructure, particularly natural gas 

infrastructure, continues to be a critical issue for our region. The impacts of this lack of 

investment and resulting instability to our region's energy market is particularly harmful 

to skilled tradespeople and thousands of working families in New England. 
701 


31623.665

This past winter, these problems continued to undermine our region's competitiveness, 

hampered investment and undermined job creation and retention. Recent negative 

developments in the state's energy sector have included: 

• Limitations on natural gas supplies undermined energy security in the region this 

past winter making New England the costliest natural gas market in the world; 

• Natural gas shortages resulted in New England relying on shipments of imported 

Russian liquid natural gas; 

• Release of an ISO New England analysis that found inadequate fuel supplies 

could lead to future energy shortfalls with most scenarios requiring the frequent 

use of emergency actions, including rolling blackouts; and 

• Continued retirement of existing power facilities and growing pressure on coaland oil-fired generation to retire in coming years - resulting in the loss of skilled 

trades jobs impacting thousands of working families in our state. 

Ultimately, these problems stem from the state's lack of progress in developing natural 

gas infrastructure and ensuring adequate natural gas supplies for electricity generation 

throughout the year. In fact, proposals to make these critical investments have been 

stalled, and there has been little effort by New England elected officials to move this 

issue forward. 

In addition to providing stability to our energy market and economic benefits, investment 

in energy infrastructure will create thousands of jobs in our state. Skilled tradespeople 

needed for various energy project construction include: outside electrical linemen, 

construction laborers, operating engineers, boilermakers, carpenters, inside electricians, 

instrumentation technicians, insulators, ironworkers, millwrights, painters, welders, 

plumbers, and pipefitters. When American workers are employed to build critical 

infrastructure for our country everyone benefits. 

IBEW District 2 urges your continued work and support for the Water Quality 

Certification Improvement Act of 2018. Your leadership on this issue will bring 

significant benefits to all citizens, create a foundation for decades of economic growth, 

and create thousands of skilled trades jobs. 

Sincerely, 

I utemat iona['V'ice {President 

i'WE'W Scco11<f iiJistnct 
702 


31623.668

The 401 Water Quality Certificate has been the most successful tools in preventing 

pipelines. New York denied a 401 permit for the proposed Constitution Pipeline; the 

Island East pipeline was stopped in Connecticut. Both decisions were upheld in court. 

In New Jersey, we are using the 401 Certificate as a tactic for stopping dangerous 

pipelines, including PennEast, from being built. 

Even if Congress passes this terrible bill, we can still stop pipelines with our wetlands 

rules, which we have federal authority for, and flood hazard rules. However, former 

Gov. Chris Christie weakened both rules to make it easier to build pipelines. 

Under pre-Christie rules, it was much harder to get the necessary individual permits 

since they had to prove need and no impact to streams or wetlands. His changes 

including making them general permits, which declares there is no impact. These are 

much easier for pipeline companies to obtain. 

Gov. Phil Murphy must fix these rules and strengthen them to protect our clean water 

and protect us against pipelines . 

. Jeff Tittel 

Director of the New Jersey Sierra Club 

Trenton 
703 


31623.669

New Jersey Conservation FOUNDATION 

August 24, 2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment and Public Works 

United States Senate 

Washington, D.C. 20510 

The Honorable Thomas R. Carper 

Ranking Member 

Committee on Environment and Public Works 

United States Senate 

Washington, D.C. 20510 

Dear Chairman Barrasso and Ranking Member Carper: 

On behalf of New Jersey Conservation Foundation and The Watershed Institute, we write to 

opposeS. 3303, the "Water Quality Cetiification Improvement Act of2018" because it is designed 

to undercut states' long histmy of primacy in protecting their water quality against a panoply of 

banns and employing their expertise to effectively restore their waters for residents' health, safety 

and welfare. 

Under section40l of the Clean Water Act, states ensure that any applications for federal permits or 

licenses comply with state water quality standards by reviewing the contemplated activity's 

potential impacts to state water quality. The proposed legislation attempts to undennine this system 

of cooperative federalism based on the premise that the system is somehow not working or that 

project proponents lack clarity on what they must do. 

There is no such lack of clarity. State certification programs are designed to allow projects that can 

proceed without harming water quality to proceed, attaching any conditions necessary to ensure 

such protection. In a very small percentage of cases, states have found that projects as proposed 

cannot be safely built without harming water quality. The very existence of any pennitting or 

certification system is premised upon the idea that some projects are incompatible with maintaining 

existing water quality under integrated state programs. 

The states and the federal government enjoy a special partnership tor purposes of implementing the 

Clean Water Act. Congress specifically designated states and tribal authorities as co-regulators that 

recognize state interests and authority. As proposed, S. 3303 attempts to thwart the purpose of the 

Act to maintain state authority over its water resources, and appears designed to circumscribe 

states' ability to manage or protect water quality within their boundaries. 

Furthermore, this legislation attempts to unreasonably constrain states' time tor their 40 I 

certification processes. As such, states may be forced to deny certifications more often because 

they will not have enough information for decision making. The proposal includes no requirements 
704 


31623.670

that applicants' requests for certification are based upon applications containing data compliant 

with state certification rules. 

A vital component of the CWA's system of cooperative federalism is state authority to certify and 

condition federal permits of discharges into waters of the United States under Section 401. This 

authority has helped ensure that activities associated with federally permitted discharges will not 

impair state water quality. S. 3303 does not reflect the historic relationship between states and the 

federal government with respect to managing water, and instead would upend the careful balance 

between the states and the federal government inherent in the Clean Water Act. By seizing power 

from states and tribes, S. 3303 puts the interests of power companies, pipelines, railroads and other 

developers ahead of the interests of the states and the public that wants to enjoy access to clean 

water. 

Please accept our attached testimony into the record. We urge the Committee to rejectS. 3303 as 

an attempt to trammel the states' historic regulation of water pollution. 

Sincerely and respectfully submitted, 

Tom Gilbert, Campaign Director 

for Energy, Climate and Natural 

Resources 

New Jersey Conservation Foundation 

Michael L. Pisauro, Jr., Esq. 

Policy Director 

The Watershed Institute 
705 


31623.671

Testimony of New Jersey Conservation Foundation and The Watershed Institute 

for Inclusion in S. 3303 Record 

The proposed changes to Clean Water Act Section 401 are unnecessary and are a thinly 

veiled attempt to upset the careful balance of cooperative federalism underlying the entire Act and 

a long history of state-led water quality protection. The changes would generate -- not resolve --

conflict between and among the federal and state agencies currently responsible for reviewing the 

actual environmental impacts of project proponents' applications. Any attempts to infringe on the 

state's historical rights and obligation to protect residents' water quality should be discarded as a 

solution to an imaginary problem. This solution in search of a problem would have significant 

long term water quality impacts to the states. Importantly, states are charged with implementing 

comprehensive water quality programs tailored to their geographical regions, historical 

development and prospective goals. On the other hand, federal agencies solely evaluate one 

project application at a time, subject to no integrated regional plan designed to ensure the integrity 

of particular water bodies for uses that states designate. States' Section 401 Water Quality 

Certification analyses involve coordination and application of myriad complex state laws, each 

designed to fulfil a critical puzzle piece tailored to the particularized needs of that state, and the 

proposed language seeks to unduly constrain that expert analysis. 

At a time when water quality will become exponentially more difficult to protect because 

climate change impacts are becoming increasingly apparent, we must be vigilant against such 

attempts to roll back state authority. Primary impacts of climate change on water quality result 

from changing air temperature and hydrology. Water temperature is directly affected by ambient 

air temperature, and is expected to increase as a result of global warming. Any variations in water 

temperature govern physico-chemical equilibriums (e.g., nitrification, mineralization of organic 

matter, etc.) of our nation's rivers, and will therefore change contaminant transport and 

concentration. Additionally, water temperature increases will reduce oxygen solubility, thus 

reducing dissolved oxygen concentrations and dissolved oxygen concentrations at which 

saturation occurs. This will have an impact on the duration and intensity of algal blooms, and 

myriad other significant water quality impacts. Safeguarding against impacts to water quality 

from proposed activities - rather than narrowing the lens exclusively to a particular discharge - is 

crucial. 

Historically, water quality regulation was the states' job. See Federal Water Pollution 

Control Act, ch. 758, 62 Stat. 1155 (1948) (declaring a policy to "recognize, preserve, and protect 

the primary responsibilities and rights of the States in controlling water pollution") (emphasis 

added); Federal Water Pollution Control Amendments of 1956, ch. 518, 70 Stat. 498 (declaring 

that "[n]othing ... shall be construed as impairing or in any manner affecting any right or 

jurisdiction of the States with respect to the waters ... of such States."). As water quality 

regulation was gradually federalized, states retained authority to determine water quality 

standards applicable to their own waterways, 1 and in 1970, Congress created the water quality 

certification mechanism to assure that federally permitted activities would not violate state-set 

water quality standards.2 In 1972, the Clean Water Act incorporated this long-standing history 

'See Water Quality Act of 1965, Pub. L. No. 89--234, sec. 5, § 10. 2 Water Quality Improvement Act of 1970, Pub. L. No. 91--224, sec. 102, § 21(b)(l). 
706 


31623.672

into the new cooperative federalism framework: giving states authority to set water quality 

standards subject to minimum standards, and giving states the role of determining whether 

federally permitted activity would comply with those standards.3 

A key legislative purpose of the modem Clean Water Act was to uphold "the primary 

responsibility for controlling water pollution [that] rests with the States."4 From its inception, the 

40 I certification requirement was a mechanism to explicitly protect states' ability to regulate 

water quality standards and pollution control, ensuring states' abilities to enforce more stringent 

standards than federal ones. Senator Muskie, who introduced the 1970 bill that created water 

quality certification, stated "no license or permit will be issued by a Federal agency for an activity 

that through inadequate planning or otherwise could in fact become a source of pollution. " 5 He 

later expounded further on the aim of section 401, contemplating how the certificate program 

would prevent projects proposed for federal authorization such as Natural Gas Act Section 7 or 

Section 3 projects from circumventing the state's certification: 

No polluter will be able to hide behind a Federal license or permit as an excuse 

for a violation of water quality standards. No polluter will be able to make major 

investments in facilities under a Federal license or permit without providing 

assurance that the facility will comply with water quality standards 6 

Congress enacted the certification requirement as a mechanism to ensure that proposed projects 

would not move forward without first complying with state water pollution control standards. 

Congress recognized that occasional project delays could result from state certification 

requirements and decided that certification nonetheless was required before a federal permit 

could be issued, because it represented a critical safeguard. 

Congress purposely enacted the certification program to prevent "investments" in 

projects until the state assured that such projects would abide by water quality standards, 

regardless of the attendant delays. In fact, this has not borne out in practice. Delays, for 

example, in FERC's infrastructure certification processes typically do not stem from states' 

tardiness in issuing a section 40 I certificate. Rather, applicants that postpone their section 40 I 

applications and submit incomplete data to FERC in their CPCN applications create their own 

bottlenecks in the certification process. Furthermore, expediency is insufficient rationale for 

circumventing a carefully crafted statutory scheme. Applicants should anticipate and account 

for any delays that do result from the section 401 process. For example, despite the increase in 

applications, there is no indication that FERC's decision-making process has become overly 

burdened or delayed; recent congressional debates on this issue revealed that 88% of natural 

gas pipeline applications are decided within twelve months.7 The same holds true for project 

permits under other regulatory regimes, governed by other agencies. 

3 Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92--500, §§ 303,401. 4 115 Cong. Rec. 28,970 ( 1969) (statement of Sen. Cooper); see also 33 U.S.C. § 1251 (b). 8 H.R. 

Rep. No. 91--127 (1969). 5 116 Cong. Rec. 8,984 (1970) (statement of Sen. Muskic). 

' 116 Con g. Rec. 8,984 ( 1970) (statement of Sen. Muskie ). 7 Hearing before the Subcommittee on Energy of the Committee on Energy and Commerce, House 

of Representatives, testimony of Terry L. Turpin, Director, Office of Energy Projects, Federal 
707 


31623.673

The complex interplay between Clean Water Act Section 401 and other federal statutes 

has struck the appropriate balance between the respective federal and state agencies 

responsible for reviewing permits under the various applicable statutes, and fulfilled 

Congressional intent to prevent the pursuit of any project activity unless the states certified that 

the project could proceed without harming water quality, as determined by the state 40 I 

programs, which are confirmed by the USEPA. 

Congress explicitly provided that a federally licensed project could not proceed absent 

state certification under the Clean Water Act,8 as evidenced by the plain language of the Clean 

Water Act statute and the foregoing legislative history. Congress enacted the Clean Water Act 

to establish a comprehensive statutory scheme in which states have final authority to set their 

own water quality standards and to impose conditions on federal licensing of projects or reject 

applications that do not meet water quality standards.9 The Clean Water Act section 401 

confers on the state the threshold determination of a project's viability for complying with 

water quality standards. 10 These amendments aim to make that critical determination an 

afterthought or rapid rubber stamp. Doing so would upend decades of jurisprudence that have 

helped states regain healthy waterways and drinking water supplies and reopen water resources 

to compatible recreational uses. 

State water quality standards may regulate water quality more stringently than the 

baselines set out by EPA under the Clean Water Act. See 33 U.S.C. § 1370. The federal 

standards provide the minimum standards to which the states must adhere. A state's water 

quality standards are deemed to be the federal standards. 11 This system, as well as the 

functional basis for it, has been explained and confirmed by a long body of judicial precedent. 

Energy Regulatory Commission (May 3, 2017). https://www.govinfo.gov/content/pkg/CHRG115hhrg26256/pdf/CHRG-115hhrg26256.pdf. 

8 City of Tacoma, 460 F.3d at 67 (explaining that the state's ability to block the project is the 

mechanism through which the state fulfills its primary responsibilities under the Clean Water Act); 

~also Keating, 927 F.2d at 622 (same); Gunpowder, 807 F.3d at 279 (same). The Keating court 

also stated that "an applicant for such a license must first obtain state approval of the 

proposed project" and "section 40 I certification is a predicate to the issuance of any section 404 

permit." Keating v. FERC, 927 F.2d 616, 622 (D.C. Cir. 1991) (making the point that 401 

governs 404 permits because the 404 permit is a federal license). 9 Notably, the state's authority to establish such conditions is not restricted to those "specifically 

tied to a 'discharge"' under section 401, but rather applies to any activities which the state deems 

are necessary to ensure compliance with the Clean Water Act. PUD No. I of Jefferson County v. 

Washington Dep't of Ecology, 511 U.S. 700,701 (1994) (finding that Washington state's 

minimum stream flow requirements were within the state's statutory authority and were entitled to 

deference). 

10 33 U.S.C. § 134l(a)(l) (2012). 11 See Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141 (2d Cir. 2008) ("Clean Water 

and Coastal Zone Management Acts are notable in effecting a federal--state partnership to ensure 

water quality and coastal management around the country, so that state standards approved by the 

federal government become the federal standard for that state."). 
708 


31623.674

The proposed amendments of S. 3303 attempt to upend that jurisprudence, as well as 

fundamentally constrain state's rights. 

States' exercise of Section 40 I authority has been both expeditious and judicious, and 

overwhelmingly resulted in project approvals, with but a handful of denials. The system is 

working. Industry cries of states "abusing" their reserved and primary powers to protect their 

water quality, therefore, must stem from their mistaken belief that any certification denial 

constitutes an abuse of authority. Congress need not disturb its determination that that ability is 

rooted in the prevention of"major investments in facilities under a Federal license or permit 

without providing assurance that the facility will comply with water quality standards." 
709 


31623.675

WESTERN STATES WATER COUNCIL 

682 East vine Street, Suite 7 IMurrto•, Utah 84107 I (80!) 685-2555 I FAX 

(80 l) 685-2559 Web Page: www. westemstateswater.org 

August 14, 2018 

The Honorable Lisa Murkowski, Chairwoman 

Energy and Natural Resources Committee 

United States Senate 

304 Dirksen Senate Building 

Washington, DC 20510 

The Honorable John Barrasso, Chairman 

Environment and Public Works Committee 

United States Senate 

410 Dirksen Senate Office Building 

Washington. DC 20510 

Dear Chairs and Ranking Members: 

The Honorable Maria Cantwell, Ranking Member 

Energy and Natural Resources Committee 

United States Senate 

304 Dirksen Senate Building 

Washington, DC 2051 0 

The Honorable Tom Carper, Ranking Member 

Environment and Public Works Committee 

United States Senate 

456 Dirksen Senate Office Building 

Washington. DC 20510 

The Western States Water Council, a government entity advising western governors on water policy 

issues, supports collaboration and leadership at all government levels- federal, state, tribal, and local- and the 

private sector- to address the Nation's infral)tructure needs and establish water infrastructure improvements as a 

public policy priority. The Council has supported federal investments in water-related infrastructure projects and 

programs, and called on the Congress and the Administration to continue to work together and with States to 

streamline permitting processes and coordinate environmental and other regulatory reviews to eliminate 

duplicative procedures. reduce costs of compliance and construction, and ensure timely completion, maintenance, 

or relicensing of authorized infrastructure projects so vital to the West and the Nation. Clean Water Act Section 

40! State Water Quality Certification alone is not usually an obstacle in itself to timely federal licensing and 

permitting. 

It should be noted that the Council has been a continuous advocate for the rights of States to conserve and 

protect their water resources, a primary responsibility often cited in state constitutions. States and federal agencies 

strive to work in concert as co-regulators to achieve water quality goals. The Clean Water Act (CWA) clearly 

recognizes the important role of the States. Section IOI(b) declares: "It is the policy of Congress to recognize, 

preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution;" 

and Section 10 I (g) adds that the authority of the States to "allocate quantities of water within its jurisdiction shall 

not be superseded. abrogated, or otherwise impaired by this Act.. 

Section 40 I requires: "Any applicant for a Federal license or permit to conduct any activity including, but 

not limited to, the construction or operation of facilities, which may result in any discharge into the navigable 

waters, shall provide the licensing or permitting agency a certification from the State in which the discharge 

originates or will originate ... that any such discharge will comply with the applicable provisions ... " of various 

CW A sections. This state water quality certification authority is a vital component of our federalist system tor 
710 


31623.676

protecting water resources, and any conditions deemed necessary by the States to ensure compliance are a 

mandatory addition to any federal license or permit. 

In 2014, in response to criticism of States' actions under Section 401, including claims of unnecessary project 

delays, primarily as related to development of hydropower, the Council surveyed its membership to get a regional 

perspective on the certification process. Fifteen of our eighteen-member states responded and a summary is 

attached. The following are some of the highlights: 

Provided that applications ore complete and ancillary federal activities are complete or nearly complete 

(e.g. public notice, study requirements, a complete EIS, mitigation requirements, etc.), 401 certification is 

nat usually an obstacle to timely federal licensing and permitting. 

401 certifications related ta CWA Section 404 permitting dominate the number of requests. 

Many times certification requests are filed be fare the Corps has completed their assessment. A/sa, it is 

not uncommon for 404 permitting applications to be elevated to Carps/EPA Headquarters for 

consideration. 

States and the U.S. Army Corps of Engineers collaborate to expedite the process, but projects requiring an 

individua/404 permit can be time consuming. 

CWA 401 certifications are a/sa used ta inform state 402 NPDES permits issued by states. 

Hydropower permitting-related requests vary with hardly any in Plains States, few in the Rocky Mountain 

States, while West Coast States face more permitting and 401 certification requests. 

The complexity and long duration af the FERC licensing and relicensing process is a majar contributing 

factar in those States with related 401 certification requests pending. FERC's Integrated Licensing Process 

(ILP) takes a minimum af five years ta complete. 

All States act an 401 certification requests within the ane-year period allowed by the CWA. The majority 

of requests, on average, are processed within 40-90 days, some in a cauple af weeks. 

States report certification applications filed with missing signatures, illegible maps, and/or lacking 

required documents such as a CWA Section 404 application. 

Certifications may a/sa be held up by the applicant not responding ta States' requests far additional 

information or failing to comment an proposed project canditians. Often substantive details of the 

prapased actian change, requiring further review. 

States generally have a process and rules outlining a formal timetable or gaa/ for action, but where there 

is not, every effort is made to issue the certification or a waiver in a timely manner. 

The vast majority of states have no backlog of certification actions, but a few da. Delays are typically due 

to submission of on incomplete applicotion1 completion of study requirements, and constraints on state 

resources, including staff limitations ond turnover. 

States hove undertaken various process improvements, including coordinating state and federal 

environmental reviews, some through farm a/ memoranda af understanding. 

Many States provide infarmatian in advance ta assist applicants in navigating the 401 certification 

process, including online resources. 

Mast states do nat anticipate a significant increase in 401 certification requests. Same do. Same states 

have actually seen significant declines in requests. Again, mast requests appear ta be related ta 404 

permitting, which in turn increases with general economic conditions and related construction starts, oil 

and gas development, etc. 
711 


31623.677

The 40 I certification process is an important tool for States to fulfill their responsibilities to conserve and 

protect their water resources, and States are responsibly acting to execute their delegated authority in a timely 

manner. Ensuring federally pennitted projects comply with state water quality standards is a proven process. 

Resources should be focused on reforming, streamlining, and expediting time consuming and costly federal 

requirements- such as the 404 permitting process. The Administration's efforts in consultation with the States to 

refine the definition of and jurisdiction over Waters of the United States holds greater promise of simplifying and 

expediting infrastructure project approvals. 

We look forward to working with the Administration and the Congress to appropriately remove obstacles to 

timely action on infrastructure projects. 

Sincerely, 

Tony Willardson, Executive Director 

Western States Water Council 

Attachment 
712 


31623.678

WESTERN STATES WATER COUNCIL 

Summary of State Responses 

Clean Water Act Section 401 Water Quality Certification Activities 

April 2014 

The Council surveyed its 18 member states. Responses have not yet been received from Nebraska, 

North Dakota and Washington. 

Hydropower permitting-related requests vary widely by state as might be expected, with little or no 

hydropower development and related 401 certification requirements in most Plains States. Even in the 

Rocky Mountains there appear to be relatively few active requests. West Coast States have more 

certification and permitting actions. 

It appears that 401 certifications related to CWA Section 404 permitting dominate the number of 

certification requests. Coordination and collaboration between the States and Corps often expedite the 

process, but projects requiring an individual 404 permit can be time consuming. 

CWA 401 certifications are also used to inform state 402 NPDES permits issued by states, and would be 

required in those states without primacy to issue 401 permits, which would include Idaho and New 

Mexico. 

1. In your opinion is State 401 certification authority a significant obstacle to timely federal licensing 

and permitting activities? Specifically hydropower licensing? Other permits (such as CWA Section 404 

permits)? 

States unanimously reported that the CWA 401 State Water Quality Certification is not usually an 

obstacle in itself to timely federal licensing and permitting, provided that all applications are complete 

and ancillary federal activities are complete or nearly complete (e.g. public notice, study requirements, a 

complete EIS, mitigation requirements, etc.). 

States report certification applications filed with missing signatures, illegible maps, and/or required 

documents such as a CWA Section 404 application. Often substantive details of the proposed action 

requirement certification can also change. Many times certification requests are filed before the Corps 

has completed their assessment. Certifications may also be held up by the applicant not responding to 

requests for additional information, or failing to comment on proposed project conditions. 

EPA and other federal agency comments, conditions and other actions can delay certification. It is not 

uncommon for example for 404 permitting applications to be elevated to Corps/EPA Headquarters for 

consideration. 

The complexity and long duration of the FERC licensing and relicensing process is a major contributing 

factor in those States with related 401 certification requests pending. FERC's Integrated licensing 

Process (ILP) takes a minimum of five years to complete. 
713 


31623.679

Some States have separate environmental review requirements, such the California Environmental 

Quality Act (CEQA) process required for non-governmental entities (which can be time consuming). The 

federal NEPA process is the starting point for CEQA. Further, the California State Water Resources 

Control Board, consistent with maintaining a transparent and public process, provides a public comment 

opportunity on draft certification decision before issuance. As project licenses typically range from 3050 

years, this is considered to be important, though this is not a required step. 

Oregon has a separate state hydropower licensing process, in parallel to the federal process. 

2. How long does it usually take for your State to act on a certification application? It there a specific 

goal or timeline for action? 

This varies by state, but all are within the one year period allowed by law. The majority, on average, fall 

between 40-90 days, while some may process certification requests within a couple of weeks. Action on 

a request can depend on a number of factors, such as a 30-day public comment period requirement. 

Other reasons for delay are listed below under Question #3. 

States generally do have a process and specific rules outlining a formal timetable or goal for action, but 

where there is not, every effort is made to issue the certification or a waiver in a timely manner. 

Alaska has a goal of processing 401 certification requests within 10 days after the close of the public 

notice and comment period. 

Similarly, the Texas Commission on Environmental Quality (TCEQ) reviews 401 certification requests in 

parallel with federal licensing and 404 permitting activities, and based on an memorandum of 

agreement (MOA) with the Corps Southwestern Division, TCEQ make a decision within 10 days of the 

Corps having reached a permitting decision (certification is required before a permit is issued). 

3. Does the State currently have a backlog of certification applications? If so, what is the size of the 

backlog? What types of licenses or permits are most likely to be delayed? What are the primary 

reasons for delays (incomplete applications, study requirements, state staff or other resource 

limitations, etc.)? 

The vast majority of states have no backlog of certification actions, but a few do. Delays are typically 

due to submission of an incomplete application, completion of study requirements, and constraints on 

state resources, including staff limitations. Often, 401 certification is a part-time duty for staff, assigned 

as needed. State turnover is another problem, and often entry level staff is assigned 401 certification 

responsibilities. Given the length of the FERC permitting process staff may change over time. 

California reported the most delayed FERC projects and certification requests (only 2-3 staff are devoted 

to requests). California is working on certification for sixteen FERC licensed projects where their license 

has expired. Most should be completed within two years. Post-licensing monitoring of certification and 
714 


31623.680

permitting conditions, which may involve continuing studies given the uncertainty regarding future 

conditions, also place an increasing burden on staff time. 

Oregon does have two large hydropower projects which haven't been certified within one year of the 

original application, one due to ongoing federal activities, and ongoing mitigation studies have delayed 

the other. 

At least one state will no longer accept 401 certification applications as complete until required federal 

actions have already been approved or completed. 

4. What actions has the state taken to simplify or eKpedite the certification process (such as 

interagency MOUs, online applications, etc.)? Please provide references and copies. 

States have undertaken various process improvements, including coordinating state and federal 

environmental reviews, some through formal memoranda of understanding. 

The Alaska Department of Environmental Conservation has developed a waiver process applied to 

individual404 permits issued by the U.S. Army Corps of Engineers. Criteria are based on the potential 

risk of a particular activity that may affect water quality, such as the size of the wetlands fill, the type of 

activity, the proximity to a waterbody and the particular wetlands functions and values. 

On November 19, 2013, The California State Water Resources Control Board (SWRCB) executed a 

memorandum of understanding (MOU) with FERC that covers coordination of pre-application activities 

that include "consultation, environmental scoping, study planning, and submittal of and commenting on 

the applicant's preliminary licensing proposal." A copy of the MOU is available online at: 

http://www.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ferc mou/ind 

ex.shtml 

Also, with the support of the California Hydropower Reform Coalition and FERC licensees, SWRCB is 

ramping up staffing resources and increasing fees. Three 401 certification requests were completed 

within an eight month period. Each project request is also assigned a back-up staff person to assure 

continuity. There are templates for standard letters and more common certification conditions, and 

SWRCB is developing a program manual and training staff on up-to-date techniques. 

For large, complex projects the Colorado Department of Public Health and Environment works with 

applicants prior to formal filing of a certification request to streamline the review process and minimize 

requests for additional information. In 2010, Colorado executed an MOU with FERC, and also hired a 

contractor to identify a number of small projects that were reviewed and certified, but the contract was 

not renewed and FERC has not informed the State of new conduit or other small scale hydropower 

project licensing applications, though some potential projects have come to light through public 

information and conversations with Corps staff. 

Idaho has used settlement agreements to develop FERC 401 certifications. 
715 


31623.681

New Mexico has expedited the certification process through the use of general permits and established 

procedures. The "New Mexico Implementation Plan" governs the process for issuing NPDES permits. 

Oklahoma meets regularly with the Corps to coordinate procedures for public notice and processing of 

permit and certification applications. 

Oregon Department of Environmental Quality staff work with applicants on study design and data 

review early on to ensure a 401 request is complete. Oregon also has a statute outlining state review of 

hydropower relicensing in coordination with federal relicensing to avoid duplication through a 

Hydroelectric Application Review Team (HART) with staff from DEQ, the Department of Water 

Resources, and the Department of Fish and Wildlife. Other state agencies may participate as well. 

HART may provide applicants with an estimate of costs for relicensing work, including certification, and 

one applicant entered into an agreement to pay the state agencies' costs. HART addresses relicensing, 

but state agencies coordinate as needed for any new project to reduce inefficiencies. Also, DEQ invoices 

all 401 certification applicants for costs incurred in processing, providing the revenue necessary for 

timely action, including reassigning staff work. 

A Texas/Corps MOA implements a tiered classification system for projects that require an individual 

CWA 404 permit, which require certification reviews for proposed projects that directly impact aquatic 

resources of greater than three acres or 1500 linear feet of stream (Tier II projects). For Tier I projects 

(below that threshold), TCEQ waives certification if the permit applicant agrees to incorporate specific 

best management practices. 

In Wyoming, electronic delivery of certification requests directly from the USACE (Corps) Wyoming 

Regulatory Office to the Department of Environmental Quality facilitates timely review and processing. 

WY DEQ encourages project proponents to contact the agency prior to submitting their 404 application 

to the Corps. Lastly, Wyoming has categorically certified several nationwide permits, further expediting 

the process. 

s. What public information regarding 401 certification is available from the State (include state 

websites and addresses)? 

Many states provide information in advance to assist applicants in navigating the 401 certification 

process, including online resources. This may include current program activity, staffing, current 

projectspecific web pages, 401 certifications issued, etc. FERC also posts 401 certification information on 

its website. Further, Corps Districts may post information on 404 permit applications. 

AK: http:ljdec.alaska.gov/water/wwdp/wetlands/index.htm 

AZ: http://www.azdeq.gov/environ/water/permits/cwa401.html 

CA: http:ljwww.waterboards.ca.gov/waterrights/water issues/programs/water quality cert/ 
716 


31623.682

CO: http://www.colorado.gov/cs/Satellite/CDPHE-WQ/CBON/1251596872987 

10: http://www.deq.idaho.gov/water-quality/surface-water/standards/401-certification.aspx 

This is Idaho's 401 certification website. The 401 certification list of projects is on these webpages: 

NPDES: http://www.deg.idaho.gov/water-quality/surface-water/standards/401-

ce rtifi cation/40 lee rtifi cati o ns-npd es-perm its. aspx 

404 Permits: http://www.deq.idaho.gov/water-quality/surface-water/standards/401-

certifi cation/40 lee rtification s-d redge-fi II. aspx 

MT: All FERC related 401 water quality certifications are posted on the FERC website. Montana 

shares the public notice with the Army Corps of Engineers for individual404 related 401 water quality 

certifications. 

NV: http://ndep.nv.gov/bwgp/40lcert.htm 

NM: Section 404 program can be found at http://www.nmenv.state.nm.us/swgb/404/. The web 

site for the NPDES program can be found at http://www.nmenv.state.nm.us/swgb/Permits/. 

OK: http://www.deg.state.ok.us/wgdnew/401 404/index.htm. 

Public notices for the Section 404 permits are located on the U.S. Army Corps of Engineers, Tulsa District 

website: http://www.swtusace.army.mii/Missions/Regulatory/PublicNotices.aspx 

OR: http:/lwww.deq.state.or.us/wq/sec40lcert/hydro.htm 

SO: http:l/denr.sd.gov/des/sw/401.aspx 

TX: The TCEQ maintains several public web pages containing information about the TCEQ 401 

certification program. Each page can be accessed from the following URL: 

http:/lwww.tceq.texas.gov/permitting/40lcertification UT: 

http://www.waterquality.utah.gov/permits/index.htm 

WA: 

WY: The USACE Wyoming Regulatory Office website provides a link to the Wyoming Department of 

Environmental Quality website that contains information on specific State 401 certification. 
717 


31623.687

Metals Service Center Institute 

Metals Service Center Institute 

M. Robert Weidner Ill, President & CEO 

National Industrial Sand Association 

Mark Ellis, President 

Natural Gas Supply Association 

Dena Wiggins, President & CEO 

Plastic Pipe Institute 

Tony Radoszewski, President 

American Fuel & Petrochemical Manufacturers 

Chet Thompson, President & CEO 

National Electrical Contractors Association 

John Grau, Chief Executive Offficer 

National Utility Contractors Association 

Bill Hillman, President & CEO 

Pipe Line Contractors Association 

Elizabeth Worrell, Executive Director 

United Association of Plumbers and Pipefitters 

Mark McManus, General President 
718 


31623.688

2 

3 

4 

5 

6 

7 

8 

ENDORSED c::iUoD 

suru~:1c:~ 

COWLITZ 

STAG! L. MY!QEBUS C C~r:r;,":. 

IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 

FOR COWLITZ COUNTY 

9 MILLEN"NIUM BULK 

TERMINALS-LONGVIEW, LLC, Case No. " {J 0 9 iJ '* lj ij 

10 

11 

12 

Plaintiff, 

v. 

WASHINGTON STATE DEPARTMENT 

PETITION FOR REVIEW, COMPLAINT 

AND REQUEST FOR JURY TRIAL 

!3 OF ECOLOGY, and MAlA BELLON, 

Ecology Director, 

14 

15 

16 

17 1. 

Defendants. 

I. INTRODUCTION 

The U.S. and Washington State Constitutions guarantee all citizens the right to 

18 expect that their government will treat them fairly and in accordance with "the rule of law." Our 

19 society "is governed by rules, not individuals," and all property owners are entitled to have 

20 permit applications processed by neutral and objective decision-makers. 

21 2. Millennium Bulk Terminals-Longview, LLC ("Millennium" or the "Company") 

22 was denied that basic right. Millennium applied to the Washington State Department of Ecology 

23 ("Ecology") for a certification to construct and operate a Coal Export Terminal ("CET' or 

24 "Project") under Clean Water Act (''CWA") section 401,33 U.S.C. § 1341. Admittedly, coal (as 

25 a commodity) is out of political favor with some in Washington State, including Washington's 

26 Govemor, who has banked his political career on fighting climate change, and an Ecology 

COMPLAfNT-1 

98377714.2 002ll23·00007 
719 


31623.689

Director who has publicly disparaged Millennium's proposal to export coal to the Far East and 

2 who continues to lobby against the Project. Although Millennium was entitled to the same fair 

3 and equitable treatment as any applicant, Ecology, under the direction of Director Maia Bellon, 

4 provided Millennium with a unique and unfair process, driven by political considerations. After 

5 running Millennium through regulatory hoops for many years, Ecology suddenly denied 

6 Millennium's certification application "with prejudice" (something that it has never done before) 

7 and did so (I) by invoking improper criteria under the State Environmental Policy Act 

8 ("SEPA"); and (2) without any notice to Millennium of Ecology's intent to apply SEPA or 

9 opportunity for Millennium to provide mitigation addressing Ecology's SEPA concerns. 

10 3. Millennium brings this case to challenge the legally improper and unconstitutional 

II manner in which Director Bellon and her Department treated Millennium's application for a 

12 CWA section 401 certification, a key state approval necessary for Project authorization. 

13 4. Rather than applying its standard procedure for handling CWA section 401 

14 applications, Director Bellon instructed Ecology staffto depart from decades of agency practice 

15 and to treat Millennium's certification application in a uniquely unfavorable and punitive 

16 manner. 

17 5. Instead of answering the single question that Congress authorized Ecology to 

18 answer under CWA section 401-whether discharges caused by the construction and operation 

19 of Millennium's proposed Project would violate applicable state water quality standards20 Ecology decided for the first time in its history to answer a different question altogether. 

21 Ecology decided instead to use SEPA to deny the certification "with prejudice" to, in effect, veto 

22 the Project using non-water-quality factors that are prohibited from consideration under CW A 

23 section 40l(a)(l). 

24 6. Even more fundamentally, Ecology and its Director denied Millennium's water 

25 quality certification without providing Millennium with any notice of its intent to use SEP A to 

26 permanently deny the certification, much less any opportunity to discuss its findings or 

COMPLAINT- 2 

98377714 2 0021523-00007 

STOEL RIVES LLP 

AnoRNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Telephone 206.62-1.0900 
720 


31623.690

opportunities for mitigation. 

2 7. Ecology spent $15 million of Millennium's money and six long years in 

producing a 13,600-page Environmental Impact Statement ("EIS"), which unequivocally 

4 concluded that the Project would result in no significant environmental effect on water quality, 

5 fish, wetlands or aquatic resources, and that any potential impacts could be fully mitigated. But 

6 rather than relying on those water quality findings to answer the water quality compliance 

7 question posed by CW A section 40 I, Ecology used conclusions from the EIS about air emissions 

8 from trains, other interstate rail induced effects, and effects from increased vessel traffic on the 

9 Columbia River to summarily deny the certification. 

10 8. Instead of giving Millennium the fundamental procedural and substantive process 

II it was due, Ecology cherry-picked non-water-quality effects found in the EIS as a pretext to veto 

12 the water quality certification-and the Project-altogether. Ecology vetoed the Project even 

13 though it is well established in this state that SEPA may not be used "to block the construction of 

14 projects, merely because they are unpopular." Parkridge v. City of Seattle, 89 Wn.2d 454, 573 

15 P.2d 359, 366 (1978). 

16 9. Millennium now petitions this Court under the State Administrative Procedure 

17 Act ("APA"), RCW 34.05, to review and invalidate Ecology's Denial Order (also referred to 

18 herein as the "Denial"), which is attached hereto as Exhibit A. (In the Matter of Denying Section 

19 401 Water Quality Certification, Order #15417- Corps Reference #NWS-2010-1225 (Sept. 26, 

20 20 17).) Millennium also petitions this Court to review a decision by the Pollution Control 

21 Hearings Board ("Board") improperly upholding that Denial, attached hereto as Exhibit B. 

22 (PCHB No. 17-090, Order On Summary Judgment.) 

23 10. Millennium also petitions the Court to declare and adjudge under 42 U.S.C. 

24 § 1983 and RCW 64.40 that Ecology and Director Bellon violated state and federal law and the 

25 U.S. and Washington State Constitutions by intentionally misapplying the CWA and SEPA to 

26 deprive Millennium of its rights, privileges and immunities. Congress cabined Ecology's 

COMPLAINT- 3 

98377714.2 0021 523~00007 

STOEL RIVES LLP ATTORNEYS 

600Universiry Street, Suite 3600, Seattle, WA 98101 Telephone 206 6U.0900 
721 


31623.691

discretion under section 401(a)(l) to deny a certification-much less deny one "with 

2 prejudice"-by requiring Ecology to consider only those factors explicitly enumerated under 

3 CWA section 40l(a)(l) in deciding whether to certify a project. Instead of applying those 

4 statutorily prescriptive factors as it has uniformly done throughout its 45-year history, Ecology 

5 here decided instead to "color outside the lines" by using SEPA to deny Millennium's water 

6 quality certification. Ecology decided to use SEPA in this manner even though water quality 

7 certifications are themselves exempt from SEPA through a rule promulgated by Ecology under 

8 WAC 197-11-800(a). 

9 II. Even more egregiously, Ecology used this sui generis process without providing 

I 0 the Company notice of its intent to use SEPA in the CW A process, or any opportunity to 

II demonstrate that the alleged unavoidable and significant adverse impacts identified in Ecology's 

12 EIS could be mitigated. 

13 12. Through this action, Millennium asks this Court to redress the injuries 

14 Millennium has suffered as a result of Defendants' animus towards the Project and their intent to 

15 deprive Millennium of its most fundamental rights implicit in the concept of "ordered liberty." 

16 Maytown Sand & Gravel, LLC v. Thurston County, No. 94452-1 (en bane) (Wash. Sup. Ct., Aug. 

17 9, 2018). Millennium asks this Court to award it declaratory and injunctive relief under 42 

18 U.S.C. § 1983, as well as damages under RCW 64.40, as a result of the injuries it has sustained 

19 through Ecology and Director Bellon's actions. 

20 II. PARTIES 

21 13. Defendant Maia D. Bellon is the Director of Ecology and, as such, signed and 

22 adopted the Denial. Her office is located at Ecology headquarters, 300 Desmond Drive SE, 

23 Lacey, Washington 98503. This action is brought against Director Bellon in her official 

24 capacity. Her verified Twitter account is @maiabellon. 

25 14. Defendant Ecology is an administrative agency of the State of Washington that is 

26 charged, among other things, with section 40 I certification decisions under the federal and state 

COMPLAINT - 4 

98377714.2 0021523·00007 

STOEL RIVES LLP 

ATIORNEYS 

600 University ~treet, Suite 3600, Seattle. W A 98! 0 I ldepho11e 2/Jfi 62-1 fJ<JfJO 
722 


31623.692

CW A. Ecology was the agency responsible for drafting and issuing the Denial. Ecology's 

2 mailing address is P.O. Box 47600, Olympia, Washington 98504-7600, and its headquarters are 

located at 300 Desmond Drive SE, Lacey, Washington 98503. Ecology's verified Twitter 

4 account is @EcologyW A. 

5 III. JURISDICTION 

6 15. This Court has jurisdiction under RCW 43.21 B.l80, RCW 34.05.570(4), RCW 

7 64.40, and 42 U.S.C. § 1983. 

8 IV. VENUE 

9 16. Venue is proper in this Court under RCW 4.12.020(b) because the causes of 

I 0 action identified below, or some part thereof, arose in Cowlitz County. Venue is also appropriate 

II in this Court under RCW 34.05.514(1)(b) and (c). Millennium's principal place of business is 

12 Longview, Washington, and the property affected by the Denial and leased by Millennium is 

13 located in Cowlitz County. 

14 V. EXHAUSTION OF ADMINISTRATIVE PROCEDURES 

15 17. Millennium originally filed suit in this Court on October 24, 2017 challenging 

16 Ecology's Denial Order. This Court dismissed Millennium's suit on March 3, 2018, concluding 

17 that Millennium was required to exhaust, but had not exhausted, its administrative remedies. 

18 18. Accordingly, Millennium pursued its administrative challenge to Ecology's 

19 Denial Order before the Board, which entered an order on August 15, 2018, granting Ecology 

20 summary judgment and dismissing Millennium's appeal. Millennium has timely satisfied the 

21 requirement to appeal from the Board's decision within 30 days of its entry under RCW 34.05. 

22 19. The Board found that Ecology acted exclusively under SEPA, RCW 43.21C.060, 

23 in denying Millennium a water quality certification with prejudice. The Board determined 

24 (based on sworn testimony from Ecology that the agency did not rely on CW A section 40 I in 

25 denying the certification with prejudice), that it was not necessary to address section III of 

26 Ecology's Denial Order. That part of the Denial Order listed the information that Ecology 

COMPLAINT - 5 

98377714 2 0021523..00007 

STOEL RIVES LLP ADORNEYS 

600 University ~tree!. Suite 3600, Seattle, WA 98101 Tef.:phone2066U.0900 
723 


31623.693

alleged was missing from Millennium's application, yet was allegedly necessary for certification. 

2 The Board improperly concluded that Ecology had the authority to deny Millennium's 

3 certification on the basis of SEPA alone-and non-water-quality effects found in the EIS4 although CW A section 40 I makes no mention of SEPA, and authorizes a denial based only on 

5 the explicit statutory water quality factors prescribed under 33 U.S.C. § 134l(a)(l). 

6 20. The Board also incorrectly determined that although water quality certifications 

7 are SEPA-exempt, Ecology nonetheless had the authority to deny the certification with prejudice 

8 under RCW 43.21C.060. In so ruling, the Board disregarded the statutory bar against using 

9 SEPA to deny an action that was not required to undergo SEP A review in the first place. RCW 

10 43.21C.IIO(l)(b). 

II VI. BACKGROUND 

12 The CET Project Is Situated Near Existing Interstate Transportation Corridors 

13 21. Millennium proposes to construct a CET at river mile 63 on the lower Columbia 

14 River in Longview, Washington. 

15 22. The CET would be developed on 190 acres (the project area) on a 540-acre site 

16 that is leased by Millennium from Northwest Alloys ("NWA"), a wholly owned subsidiary of 

17 ALCOA, Inc. The lease was purchased in January 20 II because of its location on the river and 

18 its access to the Federal Navigation Channel, which has just been deepened by three feet to 

19 accommodate the type of deeper-draft vessels that the Company's customers plan to use. The 

20 CET would receive coal arriving over existing interstate rail lines, primarily from the Powder 

21 River and the Uinta Basins. The CET would transfer the coal to Panamax-sized vessels, which 

22 would, in turn, navigate down-river and across the Columbia River Bar and the Pacific Ocean to 

23 customers primarily in Japan and South Korea, as well as other countries in the Far East. 

24 23. Congress appropriated hundreds of millions of dollars under the Water Resource 

25 Development Act of 1999 to improve navigation on the lower Columbia. The deepening project 

26 was explicitly aimed at attracting the type of operation that Millennium proposes to construct. 

COMPLAINT - 6 

98377714.2 0021523~00007 

STOEL RIVES LtP ATTORNEYS 

600 University ~treet, Suite 3600, Seaule. WA 98101 '/e/!.:phmw 206.62-1 (}'100 
724 


31623.694

24. The States of Washington and Oregon strongly supported the navigation 

2 improvement project, as did a group of local sponsor ports in both states, including the Ports of 

Longview, Kalama, Woodland, Vancouver, St. Helens and Portland. The sponsor ports 

4 committed millions of dollars in local funds and professional resources to see the deepening 

5 project through, understanding that a deeper channel would attract to their ports and communities 

6 the type of job-creating operation that Millennium proposes to build. 

7 25. The navigation deepening project has led to an infusion of capital on the lower 

8 Columbia River at the Ports of Longview, Kalama and Vancouver. In Cowlitz County alone, 

9 those capital projects include the $230 million Export Grain Terminal at the Port of Longview, 

10 the $100 million expansion ofTemco Grain Terminal, and the $7 million investment in rail 

II infrastructure upgrades at the Port of Kalama. Channel deepening has allowed these public and 

12 private ports to respond to growing demand from the Pacific Rim and to effectively compete for 

13 Asian trade, as evidenced by the fact that the Port of Kalama and Northwest Innovation Works 

14 plan to invest more than $2 billion in the hopes of building a new methanol plant just upstream 

15 from where Millennium plans to build the CET. See https://nwinnovationworks.com/project/. 

16 The CET Is a Typical Port Project 

17 26. Millennium is one of the entities that plans to utilize the deepened Columbia 

18 River channel by building two new docks with ship loaders, and dredging in associated berthing 

19 areas on the river. As is typical for port projects, the Company proposes to also include rail car 

20 unloading facilities, and operating rail track, rail storage tracks, stockpile areas and conveyors21 standard infrastructure for bulk product terminals on the lower Columbia. 

22 27. The proposed CET site was specifically selected not only because it provided 

23 direct access to a deepened federal navigation channel, but because it is also proximate to 

24 existing interstate rail lines with existing capacity. Both BNSF and Union Pacific rail companies 

25 operate rail cargo service from the Powder River Basin across multiple states, including 

26 Washington, to the Pacific Ocean. Access to Cowlitz County's industrial waterfront, including 

COMPLAINT - 7 

98377714.2 0021523-0(]007 

STOEL RIVES LLP ATTORNEYS 

600 University Street, Suite 3600, Seanle. WA 98101 Telephone2066U0900 
725 


31623.695

the Port of Longview, Weyerhaeuser, Kapstone and other industries, as well as the proposed 

2 CET, occurs through operation of a short line run by the Longview Switching Company. 

3 28. Millennium proposes to create suitable berthing areas by using standard dredging 

4 techniques. It also proposes to use standard pile driving and pile removal techniques commonly 

used on the lower Columbia and expressly approved by the National Marine Fisheries Service to 

6 protect water quality, listed species under the Endangered Species Act, and biota. 

7 The CET Will Create Jobs and Tax Revenues for Cowlitz County 

8 29. Longview has an unemployment rate that is significantly higher than the nation's 

9 and the state's. Longview is located within Cowlitz County. Cowlitz County's unemployment 

I 0 rate has stubbornly remained several points above Puget Sound unemployment rates, long after 

II the Great Recession recovery most West Coast communities have experienced. 

12 30. During construction, the CETwill result in the direct creation of 1,350 jobs and 

13 the indirect creation of 1,300 jobs in Cowlitz County and the surrounding region, and will 

14 generate about $70 million in wages in Cowlitz County and the surrounding region .. Following 

15 construction, the CET will result in the creation of 135 direct and 165 indirect jobs, resulting in 

16 about $16 million annually in wages in Cowlitz County and the surrounding region. 

17 31. The CET will also result in tax revenues to Cowlitz County and the State. The 

18 County will receive a one-time construction sales tax benefit of$5.87 million, representing a 5% 

19 increase to the 2012 Cowlitz County revenue of $107.8 million. It will also receive an annual 

20 average of$1.65 million in tax revenues from the ongoing operation of the CET, which equates 

21 to a 30-year present value of over $32 million. The State is estimated to receive over $37 million 

22 in state tax revenue from the construction of the CET and an average annual amount of 

23 $2.18 million from site operations, which equates to a 30-year present value of $41.77 million. 

24 Ecology's SEPA Process and Findings 

25 32. Millennium submitted a Joint Aquatic Resources Permit Application ("JARPA") 

26 to the U.S. Army Corps of Engineers ("Corps") and Ecology on February 23, 2012. The JARPA 

COMPLAINT- 8 

98377714.2 0021523~00007 

STOEL RIVES LLI' 

ATTORNEYS 

600UniversityStrcct,Suite3600,Scattle, WA 98!01 Tdephune 206.62.; 0900 
726 


31623.696

requested that the Corps issue Millennium a joint CWA section 404 permit to dredge and fill 

2 wetlands, and section I 0 authorization to construct docks under the Rivers and Harbors Act of 

1899, 33 u.s.c. § 403. 

4 33. Millennium also requested that Ecology issue a CW A section 401 water quality 

5 certification for construction. Under CW A section 40 I, states are given authority to determine 

6 whether discharges associated with a project requiring a Corps permit will comply with 

7 applicable water quality standards. Obtaining that state certification is a necessary condition 

8 precedent to obtaining a federal permit ftom the Corps to dredge and fill wetlands. 

9 34. Because it has authority to review and either approve or disapprove any shoreline 

10 conditional use permit issued by Cowlitz County for dredging, Ecology conducted a six-year 

II SEPA EIS process that culminated in a Draft EISon April29, 2016, and a Final EIS (or "FEIS") 

12 that exceeded 13,600 pages on April28, 2017. That in-depth EIS contains numerous scientific 

13 and technical evaluations of potential environmental effects, including in-depth water quality 

14 analyses. The appeal period for the Final EIS passed without challenge by any Project opponent. 

15 35. The EIS expressly and unambiguously found that the CET will not result in 

16 significant adverse effects on water quality, aquatic life and designated uses, and that any effects 

17 it would generate in these areas can be fully mitigated. See 

18 http://millenniumbulkeiswa.gov/sepa-eishtml (Vollli.B., SEPA Water Quality Technical 

19 Report). With respect to water quality, the EIS concluded that: 

20 the Project would result in no unavoidable and significant adverse impacts on fish 

21 (SEPA FEIS at4.7-41); 

22 "the construction activities associated with the proposed activity would not be 

23 expected to cause a measurable effect on water clarity, water quality, or biological 

24 indicators or affect designated uses" (SEPA FEIS at 4.5-19); 

25 as to the impacts on water quality from in- and over-water work, "no long-term 

26 changes in the baseline conditions in the study area would be expected to occur" 

COMPLAINT - 9 

98377714.2 0021523-00007 

STOEL RIVES U .. P 

ATTORNEYS 600 U11iversity Street, Suite 3600, Seattle, WA 98101 Telephone 106 62-1.0900 
727 


31623.697

(SEPA FEIS at 4.5-23); and 

2 • effects associated with coal dust and contamination from coal runoff "would not 

be measurable," and any change in water quality resulting from those activities 

4 are "not anticipated to increase turbidity or water temperature or affect marine 

5 organism functions" (SEPA FE IS at 4.5-25). 

6 The FEIS therefore concluded that "coal dust from operation of the Proposed Action is not 

7 expected to have a demonstrable effect on water quality." (!d) 

8 36. With respect to storm water runoff, the FEIS concluded that ''continued discharges 

9 at existing levels would not cause a measurable increase in chemical indicators in the Columbia 

10 River and would not cause a measurable impact on water quality or biological indicators or 

II affect designated beneficial uses." (Id ). 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

37. 

were 

The conclusions ultimately reached by the SEPA FE IS on water quality issues 

Compliance with laws and implementation of the mitigation and 

design features would reduce impacts on surface waters and 

floodplains. There would be no unavoidable and significant 

adverse environmental impacts on surface waters and floodplains. 

(SEPA FEIS at 4.2-21.) 

38. Although the EIS made other favorable findings outside the water quality context, 

some of those findings, including those related to greenhouse gas ("GHG") emissions, were 

struck from and not included in the Final EIS Summary. Ecology's third party consultants 

concluded that the Project would actually reduce the overall amount of GHGs produced, due in 

large part to fewer GHG emissions from domestic mines as compared to foreign mines, but 

Ecology eliminated that discussion from the executive summary of the Final EIS, the condensed 

60-page version of the 13,600-page final document used by Ecology for public relations, media, 

and political purposes. 

39. The Final EIS also included scientifically flawed findings concerning diesel 

26 emissions from trains transiting through Longview. The findings used risk factors designed for 

COMPLAINT - I 0 

98377714.2 0021523~00007 

STOEL RIVES LLP ATTORNEYS 

600 Universirv Sn-eer, Suite 3600, Seattle. \VA 98!01 'Telephone 206.62-1 0900 
728 


31623.698

stationary-not mobile-sources. Those findings led Ecology to improperly draw cancer risk 

2 conclusions for the Highlands community in Longview that were wildly skewed, and allowed 

3 Ecology to incorrectly determine that these train induced effects could not be mitigated. 

4 Ecology's Protracted Certification Process 

5 40. While the EIS was being prepared, the Company withdrew its JARPA and 

6 corresponding certification request. These withdrawals were made at the Corps' request to allow 

7 the federal agency more time to complete its regulatory process. The Company waited until the 

8 EISs prepared by both Ecology and the Corps under the National Environmental Policy Act 

9 ("NEPA"), 42 U.S.C. § 4321 et seq., and SEPA were sufficiently complete to refile its 

10 applications. It also did this to trigger the one-year statutory clock required for states to 

II complete their certification process under section 40l(a)(l). Accordingly, Millennium submitted 

12 a new penn it application and water quality certification request to both the Corps and Ecology 

13 on July 18,2016. 

14 41. Knowing full well that its certification decision had to be completed before July 

15 18, 2017 (one year after receipt of the certification request), and except for a brief 

16 communication and information exchange with Millennium in November-December 2016, 

17 Ecology had little to no contact with Millennium on its certification request until mid-May 2017. 

18 Ecology remained uncommunicative during this period. At no time between July 18, 2016-the 

19 date Millennium filed its certification application-and May 2017 did Ecology communicate to 

20 the Company that its application was inadequate. 

21 42. After convening several conference calls and meetings in May and June, Ecology 

22 requested the Company in June 2017 to once again withdraw its certification request to provide 

23 the agency with "more time to complete its review." Although the Corps has asserted that the 

24 one-year statute of limitations period for completing a CW A section 40 I certification process 

25 was triggered on September 30, 2016-the date the Corps issued its public notice and request for 

26 comments on its Draft NEPA EIS-Ecology was concerned that the limitations period under 

COMPLAINT - II 

98377714.2 0021523~00007 

STOEL RIVES LLP ATTORN£'r'S 

600 University Street, Suite 3600. Seattle, WA 98101 7elephone 10662./.0900 
729 


31623.699

section 401(a)(l) could be construed to end one year from the date Ecology received the request 

2 for certification, which was July 18,2016. 

3 43. Millennium was promised a certification decision by September 30, 2017. 

4 Accordingly, at Ecology's specific request, and to facilitate a decision by September 30,2017 (as 

5 promised), the Company withdrew and resubmitted its request for CW A section 40 I certification 

6 on June 22, 2017. The Company was led to believe that Ecology was busy processing its 

7 application and seriously reviewing its water quality information to meet its September 30, 2017 

8 deadline. 

9 44. In support of its section 40 I certification application and in response to oral 

10 requests from Ecology, Millennium provided Ecology a Reasonable Assurance Plan ("RAP") on 

II August 7, 2017. That RAP included complete information on discharges associated with 

12 construction and operation of the future CET. First, it contained an evaluation of the existing on13 site treatment facility's capabilities to meet water quality standards. Second, the RAP included 

14 information and data on the pollutants likely to be discharged from on-site coal management 

15 activities, as well as stormwater and wastewater management activities that Millennium 

16 proposed to implement to meet water quality standards. 

17 45. The RAP demonstrated in detail that the information submitted by the Company 

18 was sufficient to provide Ecology with the "reasonable assurance" it needed to certify the Project 

19 under section 40 I. It further explained that the agency did not need the functional equivalent of 

20 an engineering report otherwise required for an NPDES permit because state law allows Ecology 

21 to rely on its future ability to use its separate NPDES permitting process for that purpose. The 

22 information submitted by the Company was exactly the type of information and level of detail 

23 that Ecology customarily requires for certification purposes. 

24 46. On August 31,2017, Ecology's section 401 certification lead visited the site and 

25 acknowledged that she had not reviewed the RAP. She nonetheless orally suggested that 

26 additional information would likely be necessary for Ecology to certify the Project. Ecology's 

COMPLAINT- 12 

98377714,2 0021523-00007 

STOEL RIVES I.LP 

ATTORNEYS 

600 Univers1ty ~treet. Suite 3600. Seattle, WA 98101 1clephonr:20662./f)9()() 
730 


31623.700

certification lead also stated that if she received the additional information by September 20, 

2 2017, that would allow her to evaluate the information and issue the certification by September 

3 30, 2017. 

4 47. Accordingly, on or about September 8, 2017, Ecology convened a call with 

5 Millennium representatives to orally request additional information about the quantity and 

6 quality of its future wastewater discharges. Ecology staff promised to provide that request in 

7 writing, but that writing never materialized. At that time, Ecology's section 401 lead demanded 

8 the type of information otherwise necessary to obtain an NPDES permit, including a complete 

9 NPDES permit application and engineering report. Had the Company been aware that Ecology 

10 would demand this unprecedented level of information to complete the certification process, it 

II would have begun that process a year prior. 

12 48. Public records requests later revealed that Ecology had, as early as January 2017, 

13 internally discussed whether Millennium should submit an NPDES permit application prior to 

14 Ecology's consideration of Millennium's section 401 certification application, but the first time 

15 Ecology mentioned this request to Millennium was 22 days before Ecology was scheduled to 

16 make its decision. 

17 49. Attempting to hit Ecology's constantly moving target, Millennium submitted a 

18 subsequent information package that Ecology orally requested be received on September 20, 

19 2017, which included an updated RAP. That package also included an expanded discussion of 

20 the pollutants that would be discharged, additional details on the known and available treatment 

21 systems that would be employed on-site, best management practices associated with construction 

22 and ongoing operations, and a discussion of the Tier II anti-degradation evaluation otherwise 

23 necessary for issuance of an NPDES permit. 

24 50. The Company also included robust information on the constituents of the coal that 

25 would be handled at the facility. It provided Ecology an evaluation of other analogous NPDES 

26 permits around the country and in Washington State involving coal handling/export terminalsCOMPLAINT- 13 

98377714.2 0021523-00007 

STOEL RlVES LLP ATTORNEYS 600 University Street, Suite 3600, Seattle, WA 9SI 01 Telephone 206.61-/.0900 
731 


31623.701

including specific information on the technology and water quality-based treatment those 

2 facilities have been required to employ-and the quality and quantity of coal-related wastewater 

3 and storm water discharged at those similarly-constituted facilities. 

4 51. In fact, the Company provided Ecology with information that Ecology already 

had on coal-related surface water discharges from the operation of the Centralia, Washington 

6 Trans Alta coal-fired power plant. Less than one year before the Denial was issued (in October 

7 20 16), Ecology reissued an NPDES permit to that coal-fired power plant. That permit addressed 

8 runoff from a coal stockpile that is comparable in size and composition to what is proposed by 

9 Millennium. That facility was implementing a treatment system approved by Ecology, which 

10 was the same treatment system that Millennium was proposing to install at the CET. 

II 52. Ecology therefore knew exactly what it takes to ensure that runoff from a coal 

12 stockpile of the magnitude Millennium proposed would meet water quality standards. Indeed, 

13 there was nothing materially different, complicated, or mysterious about the Company's 

14 proposal. 

15 53. Nonetheless, on September 26,2017, Ecology denied Millennium's CWA section 

16 401 certification with prejudice. The Denial was issued just four business days after receiving 

17 the mountain of enhanced and expanded water quality data, engineering submittals and related 

18 information that Ecology had orally requested and that Millennium had previously submitted on 

19 September 20,2017. 

20 

21 

22 

23 

24 

25 

54. Despite previously promising Millennium a letter identifying all outstanding 

information missing from its application, at no time prior to the Denial did Ecology ever provide 

the Company with a written communication articulating what information Millennium needed to 

supply for Ecology to complete the section 40 I certification review process. 

Ecology Engaged in a Duplicitous Decision-Making Process to Deny the Certification 

55. Unbeknownst to Millennium, while Ecology certification staffers were working 

26 with Millennium to obtain and review the necessary information to support a CW A section 40 I 

COMPLAINT- 14 

98377714.2 0021523-00007 

STOEL RlVES U.P ATTORNEYS 600 University -?treet, Suite 3600, Seattle, WA 98101 7eh:phom: 206 6}-.1.0900 
732 


31623.702

certification, Ecology officials at the highest levels, including Director Bellon herself, were 

2 meeting with Governor Inslee to discuss the Millennium Project and a means to bring the entire 

3 certification process to an abrupt and final stop. 

4 56. Although Ecology certification staff had requested that Millennium submit a host 

5 of additional technical information for agency review by September 20, 2017, senior Ecology 

6 officials had predetermined to deny the certification "withour prejudice" by September 6th or 

7 7th, in order to give agency staff sufficient time to review the voluminous information it had 

8 requested and was in the process of receiving from Millennium. On or about September 7th, 

9 Ecology senior officials sent Governor Ins lee a copy of a decision denying the certification 

10 "without prejudice" under CWA section 401, requesting an "OK" for the decision to be sent to 

II Millennium by certified mail later that day. For reasons that continue to elude Millennium, that 

12 all-but-final letter (which included a certified mail number) was never sent. 

13 57. Instead, sometime between a briefing with the Governor on September 7th and a 

14 follow-up meeting between Director Bellon, senior agency officials, and the Governor on 

15 September 14, 2017, it was decided that Ecology would-for the very first time in agency 

16 history-use SEPA to deny a section 40 I water quality certification, and to deny it "with 

17 prejudice." 

18 58. Public records requests and discovery in the Board proceedings below revealed 

19 that Director Bellon made her SEPA decision in the absence of any known written evaluation of 

20 the propriety of her decision, or any sort of decision-making record, other than the Denial Order 

21 itself. Director Bellon made her SEPA decision while her water quality staff were otherwise 

22 engaged with Millennium in collecting, developing and evaluating water quality information. 

23 Director Bellon made her SEPA decision while her staff were going through the motions in 

24 requesting more and more information from Millennium under the pretense of making a 

25 "reasonable assurance" determination under 40 C.F.R. § 121.2(a) and the CWA. 

26 

COMPLAINT- 15 

98377714 2 0021523-00007 

STOEL RIVES LLP 

ATTORNEYS 

600 University Street, Su1te 3600, Seattle, WA 98\01 Telephone 206.fi:N.09()() 
733 


31623.703

59. The outcome of Ecology's decision was predetermined and not based on reason or 

2 evidence; indeed, Ecology made its determination before it received the massive amount of 

scientifically technical information it requested. 

4 60. Defendants never informed Millennium that they intended to use SEPA 

substantive authority to deny the section 40 I certification. 

6 61. Defendants did not consider the possibility that Millennium could have mitigated 

7 the adverse effects discussed in the Denial Order, and did not provide Millennium with the 

8 opportunity to discuss appropriate mitigation. 

9 62. While Millennium had no idea that Ecology would use its so-called SEPA 

I 0 substantive authority to deny the certification outright, Millennium fully expected to have just 

II that sort of frank mitigation discussion for future permitting decisions. Millennium based that 

12 expectation on the plain language of the EIS itself, which explicitly stated that the EIS was not a 

13 decision to approve or deny a proposal (EIS at S-2). Millennium also based its expectation on 

14 the fact that the EIS did not conclude that reasonable mitigation measures were insufficient to 

15 mitigate the identified impacts. In the absence of that regulatory finding, Millennium understood 

16 that potential mitigation measures were ripe for discussion. Instead of making the finding 

17 required under RCW 43.21C.060 to deny the proposal, the EIS found that Millennium's 

18 proposed mitigation measures would reduce (but not "completely eliminate") significant adverse 

19 impacts, and that "unavoidable and significant adverse environmental impacts could [not would] 

20 remain." (EIS at S-41.) 

21 63. The EIS itself expressly disavowed being a permitting "decision" document. 

22 Given the speculative and inconclusive nature of the penultimate EIS conclusion, together with 

23 the document's explicit disavowal of being a permitting "decision-document," Millennium had 

24 no idea and received no prior notice that Ecology would subsequently use those same 

25 inconclusive findings as the sole basis to deny its CW A section 40 I certification "with 

26 prejudice," especially since those findings were based on "indirect effects" from trains and 

COMPLAINT- 16 

98377714.2 0021523~00007 

STOEL RlVES l.LP AITORNF.YS 

600 Umversiry Street, Su1te 3600, Seattle, WA 98101 7d.:phone 206.624 0')0() 
734 


31623.704

vessels that are associated with all port projects of this nature on the lower Columbia. 

2 64. To the contrary, Millennium's conversations with staff at the Governor's office 

3 and with Ecology management at the highest levels led Millennium to believe subsequent 

4 mitigation conversations would be forthcoming in accordance with normal permit and 

5 environmental review processes. 

6 65. Moreover, based on Ecology's past practice, Millennium was led to believe that 

7 Ecology would certainly afford it an opportunity to sit down and discuss appropriate mitigation 

8 after EIS publication but before Ecology finalized its permitting decisions, because that was both 

9 Ecology and standard agency practice. 

10 66. Although Millennium's conversations with Ecology officials and staff in the 

II Governor's office led Millennium to decide not to challenge the EIS-which Millennium knew 

12 to be biased and fundamentally flawed in respects outside the water quality context-it made this 

13 decision believing that it would be better served by meeting with Ecology to begin a series of 

14 mitigation discussions prior to final Ecology permit decisions. The alternative was years of 

15 litigation that, if successful, would only lead to another remand and years of additional process. 

16 That alternative was no alternative at all. 

17 67. Millennium had serious concerns with Ecology's EIS decision to evaluate human 

18 health effects from diesel train emissions using a stationary source standard and a host of 

19 unrealistic assumptions. Rather than engage in protracted litigation on the basis of that finding, 

20 Millennium planned to persuade the agency to use more appropriate risk factors associated with 

21 mobile source emissions in subsequent mitigation discussions. 

22 68. But Millennium never got that opportunity. Instead, Ecology used that 

23 scientifically flawed diesel emission and human health impact finding, among others, to 

24 summarily veto Millennium's Project. Ecology used that flawed metric despite acknowledging 

25 in the EIS itself that such use overestimated the actual risk to the surrounding area. 

26 69. Similarly, Millennium had planned to work with Ecology to discuss ways in 

COMPLAINT - 17 

98377714.2 0021523-00007 

STOEL RIVES LLP 

ATTORNEYS 

600 University SI.Teet, Su1te 3600, Seattle, WA 98101 Telephone 206 62-1.()900 
735 


31623.705

which it could mitigate the alleged impact of train emissions, for example by providing 

2 mitigation for homeowners. Mitigation measures of that type (e.g., in-home filtration systems), 

3 or others more directly involving the trains themselves, could have addressed Ecology's diesel 

4 train emissions concerns, which were used instead as a pretext to deny the certification. 

70. At the time Millennium made a decision not to challenge the EIS, it had 

6 absolutely no notice whatsoever that Ecology was planning to invoke SEPA substantive 

7 authority to deny the water quality certification with prejudice on the basis of non-water-quality 

8 factors, because Ecology had never before used SEPA in that manner. 

9 71. Millennium's decision not to appeal the EIS was also based on its numerous and 

I 0 unequivocally favorable water quality findings. 

11 72. In short, the SEPA and CW A "process" used by Defendants to deny Millennium a 

12 CWA section 401 certification was fraudulent, denying Millennium the fundamental 

13 administrative due process that the Company was due as a measure of"ordered liberty." 

14 Ecology Misused Its Authority Due to Its Anti-Coal Animus 

15 73. This was the first time in Ecology's history that it decided to deny a C W A section 

16 40 I certification with prejudice based on SEPA findings it made concerning interstate rail 

17 capacity, train traffic (and its attendant effect on vehicular traffic), train emissions, vibrations and 

18 noise, and train safety. All of these putative effects are an inevitable result of every cargo 

19 transportation infrastructure project on the lower Columbia or anywhere else. Yet Ecology 

20 singled out Millennium for special and punitive treatment. 

21 74. Due to its animus towards the particular commodity that Millennium proposes to 

22 handle on-site, and trans-ship to Asia, Defendants invented special rules and a unique and 

23 unprecedented process for the evaluation of Millennium's section 401 certification application. 

24 The U.S. and Washington State Constitutions prohibit this "class of one" approach. 

25 75. Defendants' anti-coal and anti-Millennium animus is long-standing and derives 

26 from Governor Inslee himself, who in a speech to the City Club in February of2013, declared 

COMPLAINT - 18 

98377714.2 0021523·00007 

STOEL RIVES LLP 

ATTORNEYS 

600 Umversity Street, Suite 3600, Seattle. WA 98101 Tdeplume 206.6U.OYOO 
736 


31623.706

that if Millennium's Project were approved, Washington State would be unrecognizable within 

2 the lives of our children and our children's children due to climate change. During his first press 

3 conference as Governor, lnslee discussed his concerns about the "ramifications" of"burn[ing] 

4 the enormous amounts of Powder River Basin coal that are exported through our ports." He 

called permitting those exports "the largest decision we will be making as a state ... certainly 

6 during my lifetime and nothing comes close to it." 1 Because of the Governor's interest in the 

7 Project, Director Bellon briefed the Governor on a regular and frequent basis about Millennium's 

8 application and Ecology's administrative process. 

9 76. In June 2016, following publication of the State's Draft EIS, Bellon reiterated the 

10 State of Washington's goal of being a national and global leader in opposing the use of carbonII based fuels, and argued that if Washington, Oregon, and California show leadership, then "others 

12 will fall in line." 

13 77. With these views in mind, and well before the EIS was finalized, Director Bellon 

14 instructed her public relations ("PR") staff to develop talking points singling out Millennium's 

15 Project as "the biggest coal project in North America," and as "not a simple project" because the 

16 commodity at issue was coal. Ecology's PR department (i) branded the Project as a wetlands 

17 destroyer, even though the wetlands were degraded and the agency had previously permitted 

18 other projects impacting the same or greater number of wetlands acres, and (ii) expressed undue 

19 concerns about contamination from a cleanup that Ecology itself was overseeing. 

20 78. Both her PR department and Director Bellon herself took to Twitter to tweet 

21 negatively about the Project. Defendants did not even pretend to be even-handed, discussing 

22 only what they considered to be the negative findings in the EIS, and neglecting to discuss the 

23 many EIS findings of "no significant impact," much less opportunities for mitigation. Ecology's 

24 

25 

26 

1 Jessica Goad, Governor !nslee Calls Coal Exports "The Largest Decision We Will Be Making as a State from a 

Carbon Pollution Standpoint," THINKPROGRESS (Jan. 22, 20!3, 7:56PM), https://thinkprogress.org/governorinslee·calls-coal-exports-the-largest-decision-we-will-be-rnaking-as-a-state-frorn-a-carbon-9c73e7bal079/. 

COMPLAINT - 19 

98377714.2 0021523-00007 

$TOEL RIVES LLP 

ATTORNEYS 

600 University Street, Suite 3600, Seattle, WA 98101 Tdt'ph01w 206.fiU0900 
737 


31623.707

tweets were part of a carefully calculated and purposeful PR strategy to malign the Project and 

2 foment public opposition. 

3 79. In fact. after reviewing press repmts following issuance of the EIS. Ecology staff 

4 sent a congratulatory email to themselves. exclaiming that ·'their social media strategy worked 

5 brilliantly." 

6 80. Although she tweeted extensively about Millennium's Project and its cettification 

7 request, Director Bellon did not tweet about any other certification decisions. 

8 

9 

10 

ll 

12 

13 

14 

15 

16 

17 

18 

19 

81. Director Bellon and Ecology also used Twitter to speculate about the new Gl!Gs 

the ElS predicted would be emitted as a result oftrain and vessel transportation of the coal that 

Millennium proposes to trans-ship: 

82. 

WA Dept of Ecology 

Key finding: The project WOLJid increase 

carbon pollution globally by 2 million metric 

tons. 

In tweeting about the Project Director Bellon made no mention of the fact that 

20 the independent third party consultants hired to prepare the ElS concluded that Millennium's 

21 Project would actually reduce GHG emissions. Ecology went so far as to make sure that those 

22 findings did not get included in the Final EIS text. 

23 83. Although Defendants have not discussed other water quality certification 

24 applications on Twitter, they have tweeted frequently about the Millennium Project: 

25 

26 

COMPLAlNT - 20 

98377714 2 002 I 523·00007 
738 


31623.708

2 

4 

5 

6 

7 

8 

9 

10 

II 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 84. 

Director Maia BeJ1on :.f:\J 

longvH:>w. Harrn to 

WA Dept of Ecology i£~· 

Next steps: The project would need approval of 20·plus permits from various 

agencies to move forward. 

WA Dept of Ecology !l! 

The project would increase carbon pollution globally by 2 million 

tons. 

Director Maia Bellon"~ 

The project would fill 24 acres of wetlands, removl? 9 acres of trees, & dredge 

48 acres of riverbed. 

l:nvironmental review now complete for largest proposed coal export terminal 

North America. 

In addition, Director Bellon has ''liked" responses to her tweet regarding the 

v 

22 Denial. even those which profess to oppose the commodity that Millennium seeks to export: 

23 

24 

25 

26 

COMPLAINT 21 

98377714.2 0021523-00007 

STOEL RIVES LLI> ATTORNEYS 

600 Unive.rsity.~treet, Suite 3600, Seattle, WA 98\01 1dephrme 206.61-10900 
739 


31623.709

2 

Director Maia Belton~) 

3 i have dt?nied flv1Hiennium's te1 nrinal longvlPvY. tht• 

environment vvould grt•ilt 

ccy,\V3.90V/n€\NS/2017/07L. 4 

5 

6 

7 

8 Washington PSR 

9 

Director Maia Bellon *i\' 

10 hav<: denied Millennium's proposed cn~l tenninal Hct!m 

ll environment would too great. 

ecy.wa.gcv/news/2017 /07L 

12 

13 

14 

15 

16 85. In contrast, Director Bellon did not "like" any tweets opposing or questioning the 

17 Denial. 

18 86. During the six years it took Ecology to complete the EJS, Defendants got into the 

19 op-ed business to stir public opposition. Ecology subscribed to numerous newsletters and news 

20 alert services which identified each and every time Director Bellon. Millennium, the Project, and 

21 Ecology were mentioned in a news article. Whenever there was a positive story about the 

22 Project, Ecology responded with letters to the editor and its own op-eds maligning the Project. 

23 However, when Project opponents wrote op-eds denigrating the Project. Ecology stall circulated 

24 them internally and issued no external response. 

25 87. During the comment period on the section401 certification, Ecology offered to 

26 assist private interest groups opposing the Project in uploading their comments to Ecology's 

COMPLAINT - 22 

9'8.377714 2 0021523-00007 WA 91!10! 
740 


31623.710

website. Ecology staff did not reach out to groups supporting the Project to do the same. 

2 88. Defendants imposed rigorous and unprecedented controls totally preventing 

3 Millennium from engaging with the third party consultants hired to prepare the EJS. At the same 

4 time, Ecology worked behind the scenes to alter and omit favorable findings and conclusions 

contained in the consultants' original work product associated with diesel emissions, GHG 

6 emissions, and cancer risk from train traffic. 

7 89. At or about the time that Ecology issued its Denial, Millennium and its outside 

8 consultants contacted Ecology staff on several occasions to inquire about air quality modeling 

9 and to request assistance in the Company's pursuit of other State issued permits. Individual 

I 0 Ecology staff communicated to Millennium that they were not sure whether Ecology could 

II provide such regulatory assistance in light of the section 401 Denial. 

12 90. Those telephone conversations and emails were promptly followed by a letter 

13 personally authored by Director Bellon, declaring that Ecology would no longer consider issuing 

14 any permits for the CET, and would no longer provide any regulatory assistance in connection 

15 with the vetoed CET Project. On October 23,2017, Director Bellon personally sent a letter to 

16 Kristin Gaines, Millennium's Vice President for Environmental Affairs, concluding that in light 

17 ofthe section 401 certification Denial and the agency's SEPA findings, Ecology would likely be 

18 precluded from approving other applications. See Exhibit C, attached hereto. Director Bellon 

19 therefore decided that while "Ecology cannot prevent Millennium from future filings[,] Ecology 

20 staff will not be spending time on permit preparation related to Millennium's additional 

21 applications for the coal export terminal." Director Bellon concluded her extraordinary letter by 

22 demanding that all future questions regarding permit applications (or regulatory assistance of any 

23 kind associated with the CET) be directed to her attorney. 

24 91. Director Bellon's bias is perhaps best laid bare in her most recent letter to 

25 Congress about the Project, where she claims that the Project will "devastate" the Columbia 

26 River and cause it "irreparable harm." Nothing in either the 13,600-page EIS or the CW A 

COMPLAINT- 23 

98377714.2 0021523-00007 

STOEL RIVES LLP 

ATTOR.I>IEYS 

600 UniversicyStreet, SuiteJ600, Seattle, WA 98101 Telephone lfM.62-I 0900 
741 


31623.711

section 40 I Denial supports such hyperbolic and scientifically baseless statements, even if 

2 Ecology's Denial contained equally false statements, See letter from Maia Bellon to Senator 

3 Barrasso dated August 15,2018 (attached as Exhibit D). 

4 92. Although Ecology assured the Board in the administrative appeal that it did not 

deny the certification with prejudice on the basis of water quality or CW A concerns, Director 

6 Bellon's recent letter to Senator Barrasso falsely and misleadingly declared that the denial was 

7 due to the fact that "Millennium failed to meet existing water quality standards." Ecology's 

8 Denial Order made no such finding, and its EIS made many findings to the contrary. 

9 

10 

II 

12 

13 

14 

15 

16 

93. Millennium has been harmed by Ecology's actions and bias. It has suffered years 

of permitting delay and has spent tens of millions of dollars participating in the protracted 

administrative and appeals processes. 

94. 

95. 

VII. CLAIMS FOR RELIEF 

CLAIM I 

Defendants' Denial Order Is Arbitrary, 

Capricious And Contrary To Law Under The APA 

Millennium re-alleges and incorporates all prior allegations. 

Under the Washington APA, RCW 34.05.570(3)(b), Washington courts are 

17 obligated to grant relief when an agency has acted in an unconstitutional manner or outside of its 

18 statutory authority or jurisdiction, engaged in an unlawful procedure, erroneously interpreted or 

19 applied the law, or otherwise been arbitrary and capricious. The Denial Order, as affirmed by 

20 the Board, should be invalidated on all of these grounds. 

21 96. Within the CWA's comprehensive statutory scheme, Congress delineated a 

22 specific role for states. Section 401 of the CWA, 33 U.S.C. § 1341(a), provides that states have 

23 authority to grant or deny a water quality certification based solely on factors enumerated by the 

24 statute. The sole question for a state to consider in deciding whether to certify a project under 

25 CW A section 40 l is whether the state has reasonable assurances that the potential discharge 

26 

COMPLAINT- 24 

98377714 2 0021523~00007 

STOEL RIVES LlP 

ATTORNEYS 

600 University Srreet, Suite 3600, Seattle, WA 98101 Telephone 20662-J()'J()IJ 
742 


31623.712

"will comply with the applicable provisions of 1311, 1312, 1313, 1316, and 1317." 33 U .S.C. § 

2 1341. The enumerated CWA sections listed in section 40l(a)(1) are exclusive and do not endow 

3 states with plenary power to deny water quality certifications on other grounds. 

4 97. Defendants' Denial, on its face, applies criteria to the CWA certification that go 

5 beyond the criteria that CWA section 40l(a)(l) allows Defendants to consider. Defendants 

6 based their Denial on SEPA, including "air quality," "impacts to vehicle traffic," "noise and 

7 vibration" that might expose "residences" to noise impacts, impacts to "social and community 

8 resources," "adverse effects on rail transportation," "rail safety," increased vessel traffic on the 

9 Columbia River, "cultural resources," "tribal resources," and "water rights." Defendants 

I 0 arbitrarily applied these impermissible criteria while ignoring the favorable findings in the EIS 

II that the proposed Project would not result in any unavoidable, significant and adverse impacts to 

12 water quality, aquatic biota, fish, and wetlands. 

13 98. Defendants' Denial is barred by 33 U.S.C. § 1341, because it is based on SEPA, 

14 not on the criteria set forth in CWA section 401, and is premised on impacts unrelated to water 

15 quality. 

16 99. Defendants also violated the APA because their conduct constitutes an arbitrary 

17 departure from well-established past administrative practice. RCW 34.050.570(3)(c). Ecology 

18 applied a certification standard and process that it singularly developed for Millennium's CET. 

19 It demanded a level of information that no other project has been required to submit, moved the 

20 "goal posts" that Millennium was required to reach, and ultimately based its Denial on factors 

21 other than water quality considerations. 

22 I 00. Ecology's customary practice, shared by every other state, has been to deny water 

23 quality certifications without prejudice in situations where the agency has not first issued the 

24 applicant a written letter indicating what was required, and what was missing, for the agency to 

25 make a certification decision. Because certification denials function in effect as project vetoes, 

26 state environmental agencies-including Ecology-typically afford applicants for this necessary 

COMPLAINT- 25 

98377714.2 0021523~00007 

STOEL RIVES LLP 

ATTORNEYS 

600 UniversitySrreet, Suite 3600, Seattle. WA 98101 Tefeplu.me 206.62-1.0900 
743 


31623.713

state authorization a reasonable opportunity to provide additional information or make necessary 

2 changes before denying a water quality certification "with prejudice." 

3 101. Ecology-as an administrative state agency-must review a certification request 

4 using its established practice, procedure and standards, and thus must be free from political 

5 considerations. It is required by law to provide Millennium the process it is due under the 

6 federal and state constitutions, and to treat Millennium as it would any other project certification 

7 applicant under CW A section 40 I. 

8 I 02. Ecology has not, in the past 45 years, issued a denial with prejudice for a water 

9 quality certification application. 

10 103. Ecology has not, in the past 45 years, used SEPA to deny a water quality 

II certification. 

12 I 04. Ecology has not issued any regulatory guidance, policy, or rule explaining the 

13 standards for denying a water quality certification application with prejudice. 

14 105. Ecology has not developed any guidance or regulations on the use ofSEPA to 

15 deny a water quality certification. 

16 106. Unexplained agency action inconsistent with well-established practice is arbitrary. 

17 FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012). 

18 107. Defendants used an unlawful procedure and unlawful decision-making process, 

19 failing to follow the prescriptions in CWA section 40l(a)(l) and RCW 43.2!C.!IO(l)(a). 

20 108. Defendants impermissibly used SEPA to deny a SEPA-exempt action. Water 

21 quality certifications are exempt from SEPA under a regulation issued by Ecology. WAC 197-

22 11-SOO(a). Actions that are categorically exempt under rules adopted by Ecology may not be 

23 conditioned or denied under SEPA. RCW 43.2!C.I!O(I)(a). 

24 I 09. Defendants improperly used the EIS as a decision-making document, even though 

25 the EJS explicitly stated that it could not be used as such. 

26 II 0. Defendants used the EJS to deny the certification even though the EJS did not 

COMPLAINT- 26 

98377714.2 0021523·00007 

STOEL RIVES LLl' ATTORNEYS 600 University ~treet Suite 3600, Seattle, WA 9810 I 7 de phone 206. 6U.fWIJO 
744 


31623.714

unequivocally conclude that the identified significant adverse effects could not be mitigated. 

2 Ill. Defendants used the EIS to deny the certification in violation ofRCW 43.21C.060 

3 and WAC 197-ll-660(t)(ii), which require the agency to determine that reasonable mitigation 

4 measures are insufficient to mitigate an identified impact. The E!S "talked around" but 

specifically did not conclude that reasonable mitigation measures would be insufficient to 

6 mitigate the significant adverse effects found in the EIS. 

7 112. Director Bellon used her position of authority as a bully pulpit to foment and 

8 increase public opposition to the Project in a manner that was biased and inimical to what is 

9 expected of a public officer charged with enforcing the rule of law. A decision animated by bias 

I 0 is an arbitrary and capricious decision prohibited by the APA. 

II 113. Defendants also denied the certification under SEPA without providing 

12 Millennium with any notice of their intent to do so, and without providing Millennium any 

13 opportunity to propose and negotiate reasonable mitigation. Ecology's actions deprived 

14 Millennium of its procedural and substantive due process rights guaranteed under both the U.S. 

15 and Washington State Constitutions. 

16 

17 

18 

19 

20 

21 

114. For all these reasons, Defendants' actions should be set aside under RCW 

34.05.570(c). 

CLAIM II 

Liability For Violation Of Constitutional Rights Under 42 U.S. C.§ 1983 

115. Millennium re-alleges and incorporates all prior allegations. 

116. "Every person who, under color of any statute, ordinance, regulation, custom, or 

22 usage, of any State, subjects, or causes to be subjected, any citizen of the United States or other 

23 person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 

24 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit 

25 in equity, or other proper proceeding for redress." 42 U.S.C. § 1983. 

26 

COMPLAINT - 27 

98377714 2 0021523-00007 

STOEL RtVES LLP 

ATTOR!'IEYS 

600 University Street, Suite 3600, Seattle, WA 9810 I ]'~/.;phone 206.62-1.090(} 
745 


31623.715

117. The Denial Order violates rights secured by the Constitution and laws ofthe 

2 United States and State of Washington, and was issued by Director Bellon, who was acting under 

3 color of law. 

4 I I 8. Millennium has a cognizable property interest in its certification application. 

5 Millennium's section 401 certification application constitutes a protected property interest 

6 because there are articulable standards that constrain Ecology's decision-making process. 

7 Ecology's discretion to deny Millennium's section 401 certification is substantially limited by 

8 both CWA section 401(a)(1) and RCW 43.21C.l10(1)(a). 

9 119. Millennium has a cognizable property interest in an impartial review of its CW A 

10 section 401 application and in otherwise receiving the due process guaranteed under the laws of 

11 the United States and the State of Washington. 

12 120. Millennium's Project has garnered both intense political opposition and 

13 significant public support. Some ofthe opposition has resulted from Director Bellon's and 

14 Ecology's public lobbying through social media, public speeches, and Congressional testimony. 

15 The intense political opposition to the Project, and both the Governor's and the Director's 

16 personal animus towards coal and Millennium's Project, directly influenced Director Bellon's 

17 decision to deny the certification with prejudice. As a result, Millennium did not receive an 

18 impartial review of its CW A section 40 I application. 

19 12 I. The right to an impartial decision maker is a right implicit in the concept of 

20 ordered liberty. Maytown Sand & Gravel LLC v. Thurston County (Wash. Sup. Ct. 20 I 8). 

21 Director Bellon was not an impartial decision maker. 

22 122. Director Bellon and her PR staff engaged in a social media strategy that singled 

23 out and maligned the Project. 

24 123. Ecology and Director Bellon prevented Millennium from working with the 

25 agency's third party consultants, while altering and omitting favorable findings and conclusions 

26 contained in the consultants' original work product. 

COMPLAINT- 28 

98377714 2 0021523-00007 

STOEL RIVES LLP 

ATTORNEYS 

600UnivemtyStreet,SuiteJ600,Seatt!e. WA 98101 Tdeplume 206 62-UWOIJ 
746 


31623.716

124. Director Bellon then had her staff pretend to work with Millennium to gather 

2 water quality information to make a "reasonable assurance determination" under 40 C.F.R. 

§ 121.2(a), while she worked behind the scenes with her senior officers and with the Governor's 

4 office, to permanently deny the certification under SEPA. 

5 125. Director Bellon ordered her staff to issue the Denial Order even though Ecology 

6 had never before: (a) denied a water quality certification "with prejudice"; (b) denied a water 

7 quality certification using SEPA; (c) denied a water quality certification using non-water-quality 

8 effects found in an EIS; or (d) vetoed a project using SEPA without providing the applicant 

9 notice of its intent to do so, and an opportunity to be heard on the applicant's willingness and 

10 ability to provide mitigation. 

11 126. After issuing the Denial Order, Director Bellon demonstrated further bias by 

12 writing to demand that the Company not seek any further assistance from her staff in pursuing its 

13 constitutionally protected right to apply for permits from other agencies. Director Bellon 

14 declared that "Ecology staff will not be spending time on permit preparation related to 

15 Millennium's additional applications for the coal export terminal," and directed all future 

16 questions to her attorney. 

17 127. More recently, Director Bellon provided Congress with testimony about 

18 Millennium's Project, grossly distorting the conclusions found in Ecology's EIS. Director 

19 Bellon falsely and misleadingly told Congress that she denied the certification because her 

20 agency found that the Project would not meet applicable water quality standards, while the 

21 Denial Order made no such determination. Indeed, her staff and her attorneys assured the Board 

22 that Ecology's decision to deny the certification with prejudice was unrelated to the water quality 

23 considerations identified in section III of the Denial Order, and was made instead exclusively 

24 under SEPA. 

25 128. Ecology's and Director Bellon's actions "shock[] the conscience and interfere[] 

26 with rights that are implicit in the concept of ordered liberty." Maytown Sand & Gravel. Because 

COMPLAINT- 29 

98377714 2 0021523~00007 

STOEL RIVES LLP AlTORNEYS 600 University Street, Suite 3600, Seattle, WA 98101 Tel~'plwne 206.62./.09(}() 
747 


31623.717

decisions like this one (which was made in a climate of intense political pressure) are more 

2 susceptible to an abuse of authority, they "require[] a higher degree of judicial scrutiny than is 

3 normally appropriate for administrative action." Polygon Corp. v. City of Seattle, 90 Wn.2d 59, 

4 578 P.2d 1309, 1315 (1978). 

129. For all these reasons, Ecology's Denial constitutes a deprivation of rights 

6 actionable under 42 U.S.C. § 1983. 

7 CLAIMIII 

8 Millennium Is Entitled To Relief Under RCW 64.40 

9 

10 

130. Millennium re-alleges and incorporates all prior allegations. 

131. This claim has been brought within the 30-day statute of limitations provided 

II under RCW 64.40.030. 

12 

13 

132. Ecology's actions were arbitrary and capricious, and exceeded lawful authority. 

133. Millennium has a property interest in real property in the State of Washington. 

14 The Company sought a governmental approval required from Ecology before it could improve 

15 and put its real property to use, and that certification was denied "with prejudice." 

16 134. Ecology's decision limits the use of Millennium's property in excess of lawful 

17 authority. Without Ecology's CWA section 401 certification, Millennium is precluded from 

18 obtaining necessary federal permits, and prohibited from constructing or operating its proposed 

19 CET. 

20 135. Ecology knew or should have known that its actions were unlawful and exceeded 

21 the extent of its authority under CWA section 401(a)(l) and RCW 43.21C.l10(l)(a), and were 

22 unconstitutional. 

23 136. Millennium has incurred damages as a result of the improper certification denial, 

24 including costs associated with the ensuing permitting delay. Millennium has also incurred 

25 attorneys' fees and associated litigation costs as a result of Ecology's improper certification 

26 denial and is entitled to reimbursement under RCW 64.40.030. 

COMPLAINT - 30 

98377714.2 0021523-00007 

STOEL RIVES LLP ATTORNEYS 

600 University ~ttect, Suite 3600, Seattle, WA 98101 1elephmw 206.62./..()<}00 
748 


31623.718

2 

4 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

A. 

B. 

VIII. PRAYER FOR RELIEF 

WHEREFORE, Millennium requests that the Court: 

Enter a declaratory judgment reaffirming and declaring that: 

1. 

2. 

3. 

4. 

5. 

Enjoin: 

I. 

2. 

3. 

4. 

Defendants unlawfully applied SEPA to a CW A section 40 I certification decision 

and exceeded their authority under the CW A and SEPA; 

Defendants violated the Washington APA; 

Defendants acted unlawfully and violated Millennium's due process and equal 

protection rights; 

Defendants' Denial is a product of biased and prejudiced decision-making; 

Defendants have waived their certification rights under CW A section 40 I. 

Defendants from denying Millennium's certification request with prejudice; 

Defendants from using SEPA substantive authority to deny Millennium's CWA 

section 40 I certification; 

Defendants from continuing to delay issuance of the certification if the Denial is 

remanded for continued considerations; 

Defendants from refusing to process CET permit applications and from refusing 

to provide the regulatory assistance routinely afforded all permit applicants. 

19 c. Award it damages and attorneys' fees and costs as authorized under RCW 64.40 and 42 

20 

21 

22 

23 

24 

25 

26 

U.S.C. § 1988(b). 

D. And award such other and further relief as this Court deems just and proper. 

COMPLAINT- 31 

98377714.2 0021.523~00007 

STOEL RIVES LLP 

AITORNEYS 

600 University Stteet, Suite 3600, Seattle, WA 98!01 Telephone 206.62--1.0900 
749 


31623.719

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

DATED: September 5. 2018. 

COMPLAINT - 32 

98)777 14.2 0011 513·00007 

STOEL RIVES 111• 

Beth S. Ginsberg, WSBA No. 18523 

beth.ginsberg(!,listo~Lcom 

Jason T. Morgan. WSBA No. 38346 

~on.morganra:stocl.com 

600 University Street. Suite 3600 

Seattle. WA 98101 

(206) 624-0900 

Attorneys for Plaintiff 

Millennium Bulk Terminals Longriew. LLC 

STOEI. R1n:s tt.l' 

Al"IOR"ii:n 

M)(llJntH:r~lfv Slfc~l. Suite :1600, St..':!!lh::, WA 98101 • hkphmw ;:ot> t,]..; f!')/10 
750 


31623.720

9/20/2018 Move in Congress to Weaken Clean Water Act Could Have Big Impact in New Jersey- NJ Spotlight 

MOVE IN CONGRESS TO WEAKEN CLEAN WATER ACT COULD 

HAVE BIG IMPACT IN NEW JERSEY 

TOM JOHNSON I AUGUST 16, 2018 

Opponents of Penn East pipeline soy if law is revamped, it would mal<e it 'extremely 

difllcult' to fight such proJects 

There is a move underway in Congress to revamp key section 

of the federat Clean \Vater Act, a step that could undermine the 

ability ot states to block energy and big infrastructure projects. 

The tegislaUon) to be taken up by the Senate Environment and 

Pubtic Works Committee today. would weaken Section 401 of the 

CWA, a provision that allows states to determlne if such projects 

comply with water-quatity standards. 

The toot has been used by states, including New York, which 

denied a permit to the 120-mHe interstnte Constitutwn pipeline over water-quality concerns. 

Many opponents of the Penn East pipeline Jn New Jersey hopmg the state Department of 

Environmental Protcltion will take sirmlar action here. 

But Senate Republicans and mdustry lobbyists have argued the states are using the 401 process to 

delay or stall projects, lnctudmg natura\~gas pipeUnes. 

Barrasso: Some states abusing law to delay projects 

"The water quality process being abused by a few states in order to detay 

important projects," said Sen, John Barrasso) Republican who drafted the bill to revamp that 

section of the lJI;\'. "T!1is klnd of obstruction is about politics, not water quatity," he said in 

p1 ess retease announcing thf' bill. Ban asso, of Wyoming, 1s the chairman of the Senate 

cmnmittee. 

The tegislatwn woutd clarify scver;;,t aspects of the stJte certification process, including specifying 

that the scope of the rev1ew is limited to water-quality in1pacts onty and affording states only 90 

day's after they receive an initial applicabon to request more information, 

The proposal is already on the radar screen of environmental organlzatwns 1 including those which 

have spent years opposing the PennEast pipeline. 

The $1 biUion project woutd begm in Luzerne County, Pa. and cross under the Detaware River 

before ending in Metter County, The 118-mile pipeline would cro~s more than 200 waterways in 

the as well as through ncre~ of wetlands. 

It's 'probably the most effective tool we have' 

"!f this biH happens, wm make it extremety dlfflcutt to fight these dangerous projects," said 

Jeff T1ttei, director of the New Jersey Sierra Club. ''ll (the Section 401 review) is probably the 

most effective" toot we have to fight these projects. 

PennEast originally flied for the necessary water-quality permit with the DEP in April 2017, but 

the S«ylng it was tacking detailed information about 

http:l/www.njspoUight.com/s1ories/18/08/15/move-ln~congress-to-weaken-clean-water-act-could-have-big-impact-in-nj/ 1/2 
751 


31623.721

9/20/2018 Move in Congress to Weaken Clean Water Act Could Have Big Impact in New Jersey- NJ Spotlight 

environmental impacts. Penn East could not provide the data because property owners a tong the 

route refused to allow the company access to their land. 

Tom Gilbert, campaign director for ReThmk Energy NJ, said the leg1Siation is clearly an effort to 

trample states' rights. "We're very concerned it is an attempt to curtail longstanding state 

authority to protect their waters," he said. 

But critics say states hostile to fossil fuels use the certification process to block projects they 

don't like. 

"Some states have chosen to exercise their authority under Section 401 in ways that exceed the 

bounds of the statue," according to a letter submitted by a couple dozen trade organizations to 

the committee. They include the American Petroleum Institute, the Edison Electric Institute, the 

Natural Gas Association, and others. 

0 

ALL RIGHTS R!;'SERVEO ©1018 HJSPOTUGHT 

http://www.njspol!lght.com/stories/18/08/15/move~n-congress-to-weaken-clean-water-act-could-llave-big-impact-in-nj/ 2/2 
752 


31623.722

WASHINGTON 

BUILDING TRADES 

LEE NEWGENT 

EXECUTIVE SECRETARY 

MARK MARTINEZ 

PR(o:SfDENT 

Resolution in Support of the Millennium Bulk Terminals Project 

Resolution 5-17 

Whereas, the Longview/Kelso Building and Construction Trades Council believes that it has a 

duty, both as a representative of its Building Trades members and as a part of the LongviewKelso community, to encourage local opportunities for jobs capable of supporting a family; 

Whereas, the economic boom in construction and other industries found elsewhere in the state 

has not yet reached Cowlitz County; 

Whereas, the loss of area employers such as Reynolds Aluminum and the decreases in the pulp 

and paper industry has caused a lack of suitable living-wage jobs; 

Whereas, these losses have resulted in a decline in the tax revenue required to adequately fund 

our schools, parks, roads, and other essential services; 

Whereas, Millennium will support more than 2,600 jobs during construction and a full-time 

complement of 300 family-wage positions once operations commence; 

Whereas, Millennium approached the Building Trades to sign a Project Labor Agreement 

ensuring that the Millennium Bulk Terminals project is built Union; 

Whereas, during construction Millennium Bulk Terminals will generate $37.2 million in state tax 

revenue and $5.9 million in county tax revenue; 

Whereas, in addition to the need to use the resources that are the local hard-working men and 

women, the Longview/Kelso Building and Construction Trades Council also recognizes the need 

to maximize the resources available, such as deep water shipping capabilities and areas zoned 

for industrial use; 

Whereas, Millennium Bulk Terminals is located on a 530-acre heavy industrial brownfield site 

that's been underutilized for more than a decade and that Millennium has spent over $25 million 

cleaning up; 

Whereas, Millennium chose to use local Union contractors for the demolition and site clean-up 

at the industrial brownfield beyond what is covered by the Project Labor Agreement; 

Whereas, Millennium has demonstrated its intent to be a part of the community since its arrival 

in Longview by being actively engaged in activities that address the social and economic 

challenges in Cowlitz County; 

906 Columbia St SW #107- Olympia, WA 98501- Phone: (360) 357-6778- Fax: (360) 357-6783 
753 


31623.723

Whereas, Millennium Bulk Terminals has been an active supporter and advocate for increased 

Career and Technical Education (CTE) in local schools; 

Whereas, this community involvement and the all the potential benefits this facility will bring to 

the area has gained Millennium majority support in the local community; 

Whereas, Millennium has gone above and beyond the local, state, and federal requirements 

while engaged in the permitting process; and 

Whereas, applicants (such as Millennium Bulk Terminals), communities, and tradesmen and 

tradeswomen should not be subjected to a permitting process that has still not reached 

completion after over five years of evaluations, studies, meetings, hearings, and reviews because 

such a timeline discourages true public involvement, erodes predictability for local contractors 

and their skilled craft workers, and dissuades private infrastructure investments and the 

community benefits they provide; 

Now therefone be it resolved, that the Washington State Building and Construction Trades 

Council reaffirms its strong support for Millennium and pledges to continue to work in all 

possible ways for the successful permitting and construction of the Millennium Bulk Terminals 

project; and 

Be it further resolved, the Washington State Building and Construction Trades Council calls on all 

affiliated Locals and members to participate in all public review processes to push for a reliable 

permitting timeline that will show businesses they can flourish in Washington State, and also to 

advocate for the high environmental standards, the quality jobs, and the local and state 

revenues this project will bring; and 

Be it finally resolved, that the Washington State Building and Construction Trades Council will 

continue to communicate their support to Governor Jay lnslee, the Washington State Legislature 

and Congressional Delegation, statewide elected officials, and relevant federal, state and local 

government agencies. 

Adopted August 11, 2017 

opetu8/of/-cro 

906 Columbia St SW #107- Olympia, WA 98501- Phone: (360) 357-6778- Fax: (360) 357-6783 
754 

Æ 


31623.724

September 20, 2018 

The Honorable John Barrasso 

Chairman 

Committee on Environment and Public Works 

United States Senate 

Washington, DC 20510 

Re: Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, 

the Water Quality Certification Improvement Act of2018 

Dear Chainnan Barrasso: 

On behalf of the Independent Petroleum Association of America (IPAA). thank you for your efforts to 

bring clarity to section 401 of the Clean Water Act through both your legislation and the committee 

hearing process. 

IPAA's mission is to advocate for America's exploration and production segment of the oil and natural 

gas industry. Our goal is to ensure that members can develop and produce energy, which requires a 

robust, safe transportation system to deliver that energy to market. 

The United States is leading the world in natural gas production, producing 78.9 billion cubic feet per 

day in 2017. Even as natural gas production has increased, the United States has reduced its carbon 

footprint more than any other nation in the world. Energy-related carbon emissions in the United States 

hit a 25-year low in 2017, a fact that can be directly linked to increased natural gas use for power 

generation. Electricity generation has turned increasingly to natural gas as a preferred means of 

generating power, with benefits of reduced emissions, efficiency, a critical companion to increased 

reliance on renewable energy. and reduced eosts to electricity consumers. 

Owing to this increased use of clean, affordable natural gas, the United States is expanding its economy, 

creating new American manufacturing jobs, and protecting the environment by using energy more 

cleanly and efficiently than ever before. Today, as the world's leading energy superpower, the United 

States is now in the unique position to export this clean, reliable energy source to our friends and allies 

and improve life for people and developing nations around the world. 

IPAA members have encouraged this demand with technology that has tapped America's abundant 

natural gas reserves, and they continue with efforts to meet this demand in a safe manner. Construction 

of much-needed pipeline capacity will be stifled without a reasonable way to stop the overreach by some 

state regulatory agencies, as outlined in testimony and the letter submitted for the record by the 

Interstate Natural Gas Association of America. S. 3303 provides such an approach.