Two Pacific Northwest Coal Terminal Proposals Denied

In a decision issued on May 9, the U.S. Army Corps of Engineers (“Corps”) denied permit applications for a coal export terminal on Puget Sound in Washington state, determining that the proposal would have more than a de minimis impact on treaty fishing rights and, therefore, could not be approved without Congressional authorization.

The decision by the Corps to deny permit applications under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act for the Gateway Pacific Terminal (GPT) mirrors in some important respects a decision by the Oregon Department of State Lands (ODSL) in 2014. In that decision, ODSL denied a permit for removal/fill in waters of the state for a Columbia River coal terminal, part of the Morrow Pacific Project. ODSL’s decision was based in part on a determination that “the project would unreasonably interfere with a small but important and long-standing fishery in the state’s waters at the project site.” The ODSL determination, however, was not based expressly on the existence of treaty rights, but was based on testimony regarding fishing by tribal members.

Both projects would provide facilities for exporting coal from the Powder River Basin to Asian nations and both have been highly controversial due in large measure to concerns about the impacts of transporting coal by train and the potential for expanded coal exports to contribute to climate change. Those concerns, however, played no explicit role in either decision.  (More at Marten Law)