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Dunn Carney Water Summit, February 27, 2015 in Pendleton, Oregon

February 10, 2015

Dunn Carney expands the reach of our annual Ag Summit by hosting our first ever Water Summit on Friday, February 27, 2015 at Hamley Steakhouse in Pendleton, Oregon from 7:30 a.m. to 12:00 p.m. The conference is free to attend and addresses issues vital to Oregon agriculture. Register online at dunncarney.com, or by contacting Kathy at seminars@dunncarney.com or 503.306.5319.

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Washington Federal Judge Holds Cow Palace Dairy Liable Under Resource Conservation and Recovery Act For Improper Handling of Manure and Contamination of Groundwater

January 15, 2015

Federal Judge Tom Rice of the Eastern District of Washington issued a ruling yesterday (January 14, 2015) against a Washington dairy that will likely have nation-wide implications for dairy industry.  In his ruling, the court found that one of the largest Yakima Valley dairies, Cow Palace, polluted groundwater through its application, storage and management of manure, causing an “imminent and substantial endangerment” to the environment and human health. This is the first time a federal court has ruled that improperly handled manure constitutes a solid waste to be managed pursuant to the Resource Conservation and Recovery Act (RCRA). The author assumes this decision will likely be appealed.

To see the complete New York Times article, click here: http://www.nytimes.com/aponline/2015/01/15/us/ap-us-dairy-lawsuit.html

Court of Appeals Requires More Evidence that Clackamas River Withdrawals Will Not Threaten the Persistence of Listed Fish

January 9, 2015

On December 31, 2014, the Oregon Court of Appeals issued a decision addressing the “fish persistence standard” designed to protect listed fish species when extensions of permits to divert water for municipal use are granted. This ruling was the result of WaterWatch of Oregon’s challenge of several orders by the Water Resources Department granting the City of Lake Oswego and other municipalities additional time to build structures and divert water from the Clackamas River for municipal use. The court held that the Department’s permit extension orders were not properly conditioned to maintain the persistence of ESA-listed fish species.

The municipal withdrawals and the obligation to meet the fish persistence standard. The City of Lake Oswego, the South Fork Water Board, and the North Clackamas County Water Commission hold water right permits to divert water from the lower section of the Clackamas River for municipal use. State law provides municipalities 20 years from obtaining a water right permit to complete construction of the project. Like many municipalities, only a portion of the water rights granted have been put to use. As a result, the municipalities sought extensions of time to “perfect” the water rights by building structures to divert and use the water. In granting such extensions, the Department is required to condition the “undeveloped portion” of the municipal permits to maintain the persistence of fish species listed as sensitive, threatened or endangered under state or federal law.

The Court’s interpretation of the fish persistence standard focuses on long-term preservation. The court spent some time interpreting the fish persistence standard, concluding that the legislature “focused on the long-term preservation or endurance of fish population health in the affected waterway.” The standard is not intended to “express a policy that no habitat may be impaired or that no individual fish may be allowed to perish or leave.”

The court finds that the Department’s determination that conditions for the extensions will maintain the persistence of listed fish species in affected waterways lacked “substantial evidence and substantial reason.” Although the court found that the Department correctly interpreted the standard, it remanded the final orders to the Department to revisit its fish-persistence findings and conclusions. The court found that the Department “failed to connect the dots between its findings of what is necessary to maintain fish persistence—long-term meeting of persistence flows—with how the conditions ensure that the diversion of the undeveloped portions of the municipal parties’ permits do not contribute to the long-term failure to meet persistence flows.” Ultimately, it is possible that the court would agree to similar conditions, but not without better evidence and explanation from the Department as to why these conditions do not threaten persistence. Although the ultimate resolution of the extension orders is still uncertain, this decision will be helpful to understanding the fish persistence standard in the future.

Implications of the decision. Any time the Department grants a municipal permit extension, the permit holders should expect the Department’s decision to be challenged for failure to explain and support the decision with evidence. As it grants future extensions, the Department is likely to more carefully explain how conditions will protect the long-term persistence of fish. With the standard clarified, this may facilitate the Department’s ability to demonstrate compliance.

If you have any questions, please contact the author of this article, Kate Moore, at KMoore@dunncarney.com. Kate Moore specializes in natural resource, water, and environmental law.

Gunnison Sage Grouse Listed as Threatened

November 17, 2014

The United States Fish and Wildlife Service decided to list the Gunnison sage-grouse as threatened yesterday, November 12, 2014. This listing under the Endangered Species Act is intended to protect the estimated 5,000 Gunnison sage-grouse that remain in southwestern Colorado and southeastern Utah, with approximately 2,200 square miles of critical habitat anticipate to be designated.

This decision precedes the much-anticipated decision regarding listing of the related greater sage-grouse, which has habitat across 11 Western states. The Fish and Wildlife Service has until September 2015 to decide whether to list the greater sage grouse. In its press release, the Service stated, “[t]he decision on the Gunnison sage-grouse in no way predetermines a decision on the greater sage-grouse, which the Service is independently evaluating.”

Additional information, including the final listing and critical habitat rules can be found on the Services web site, here.

Dunn Carney Ag Summit 2015

November 6, 2014

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DSL Says No to Permit for Coal Export Terminal

August 21, 2014

Earlier this week, Oregon’s Department of State Lands (DSL) issued its decision on a controversial coal export terminal proposed to be built along the Columbia River. After two and a half years of analysis, DSL denied Ambre Energy North America’s application for the Coyote Island Terminal at the Port of Morrow in Boardman on August 18.

Ambre Energy’s application proposed permanently filling 572 cubic yards in the Columbia River with pilings on submerged land owned by the Port of Morrow. These pilings would help support a structure that would be used for loading Columbia River barges with coal for expert to Asia. The application was initially submitted in February 2012. Due to the controversy surrounding coal, DSL received an estimated 20,000 comments during three public comment periods. DSL also allowed eight decision deadline extensions before its decision, to allow Ambre Energy to respond to public comments and to the State’s questions and requests for additional information.

In reaching its decision, DSL considered the public need for the project, and the social, economic or other public benefits likely to result from the proposed fill, and economic costs to the public if the fill is not accomplished. It concluded that there is little, if any public need for the private commercial project. DSL recognized some economic benefit to the local communities, but found those potential benefits inconclusive in light of conflicting evidence regarding social, economic and other benefits. It also noted potential adverse impacts such as impacts to fisheries, public health and drinking water sources from the proposed fill. DSL also considered the fact that no information was submitted indicating an economic cost to the public if the fill is not accomplished.

DSL also considered existing alternatives that would not involve filling waters of the state. DSL found that Ambre Energy failed to provide adequate rationale for choosing this alternative, which has an impact to the waters, as opposed to other alternatives with no or less impact.

Additional considerations included: whether the proposed fill conforms to sound policies of conservation and would not interfere with public health and safety; whether it is in conformance with existing public uses of the waters and uses designated for adjacent land; and whether the applicant provided all practicable mitigation to reduce the adverse effects of the proposed fill or removal (on the waterway and the fisheries). On these factors, like the earlier considerations, DSL’s overall concern was with impacts to the fishery resulting from the project, combined with a lack of any concrete mitigation of those impacts.

Ambre Energy has until September 8 to request a hearing before an administrative law judge to appeal the permit denial.

If you have any questions, please contact the author of this article, Kate Moore at KMoore@dunncarney.com.

New Landscape for Columbia River Dam Discharge

August 5, 2014

A settlement announced this Monday, August 4, 2014, requires the U.S. Army Corps of Engineers to apply for Clean Water Act permits to discharge pollutants associated with operation of eight dams along the Columbia and Snake Rivers in Oregon and Washington. Additionally, the Army Corps must notify Columbia Riverkeeper when pollutants pass through these government-operated dams. In connection with its discharge permits, the Army Corps will be required to monitor the amount of pollution being discharged and the Army Corps will be required to identify and use best management practices to control oil and other pollutants discharged by the dams. To reduce potential pollution from its dams, the Army Corps must also switch from petroleum lubricants to “Environmentally Acceptable Lubricants,” if found technically feasible.

 

This settlement is the result of a citizen suit filed by Columbia Riverkeeper in 2013 in federal district court in Oregon, Western Washington, and Eastern Washington, before the cases were consolidated in the Eastern District of Washington. Riverkeeper’s complaints alleged that the Army Corps violated the Clean Water Act with unmonitored, unpermitted oil discharges from eight hydroelectric dams. The dams addressed include the Bonneville, the John Day, The Dalles and McNary in Oregon and the Ice Harbor, Lower Monumental, Little Goose and Lower Granite in Washington. A highly-publicized 2012 spill of transformer oil containing PCBs at the Ice Harbor Dam on the Snake River has been at the center of this controversy.

 

Although the settlement only applies to the eight dams at issue in the litigation, it could have nationwide implications for the hundreds of dams managed by the federal government as this issue is now, more than ever, on the radar of environmental groups throughout the country.

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