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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.

Democrats Pound Labor Department Over Farm Enforcement

July 31, 2014

From CQ.com (Congressional Quarterly) July 30, 2014

Democrats Pound Labor Department Over Farm Enforcement

 

By Philip Brasher, CQ Roll Call

 

House Democrats joined Republicans in accusing the Department of Labor on Wednesday of abusing its authority in trying to stop violations of wage-and-hour regulations by growers of fresh produce.

 

The department has been acting in “complete disregard” of farmers’ constitutional due-process rights by forcing them into settlements under threat of seizing their crops, Rep. Kurt Schrader , D-Ore., told an agency official at a hearing.  Suzan DelBene , D-Wash., said she was “very concerned we could see these actions repeated against farmers in my district who play by the rules.”

 

At issue is a Depression-era law that allows the department to stop the sale of goods when it suspects they were produced under illegal labor conditions. The department settled with three Oregon blueberry growers in 2012, but two of them decided to go to court and got a federal judge to agree that the agency had “unfairly stacked the deck” against the growers  when it threatened crop seizures to get them to agree to the deal.

 

David Weil, administrator of the department’s Wage and Hours Division, told the House Agriculture subcommittee that the “hot goods” authority had been used only sparingly against farmers — 28 times in 7,500 cases since 2001. “This statute does not exclude any sector based on perishability” of the products, Weil said. (Products are considered “hot goods” when produced under illegal working conditions.)

 

But lawmakers told Weil it is unfair for the department to use the authority against producers of highly perishable commodities such as berries, because farmers have little choice but to settle with the department or risk losing their crop.

 

Ann McLane Kuster , D-N.H., called the department’s enforcement actions “heavy handed” and said the agency needs to “make a greater effort” to work with farmers. The subcommittee chairman, Austin Scott , R-Ga., said the department was using “fear and intimidation” to “extort concessions from producers with little if any proof of wrong doing.” The department has threatened hot-goods actions against producers in Georgia several times, he said.

 

A Democrat who runs Oregon’s Bureau of Labor and Industries, Brad Avakian, told the panel that the “hot goods” authority gave Labor “much too much leverage” with farmers. “It is just inherently the wrong method to use,” he said.

 

Rep. Ted Yoho , R-Fla., said the department appeared to be stepping up its investigations of farms that employ migrant labor. Weil essentially confirmed that, saying that the department’s enforcement priorities were “very data driven” and included some agricultural sectors. “The trend you’re describing is part of a larger emphasis on focusing our limited resources … on the industries where we find violations are the highest,” he said.

 

In an April letter to the department, the advocacy group Farmworker Justice said the hot-goods authority should be used more often to reduce “widespread legality, and to protect both farmworkers and law-abiding employers from those employers that seek an unfair advantage by violating the law.”

 

Source: CQ News

© 2014 CQ Roll Call All Rights Reserved.

Judge throws out ‘hot goods’ settlements

April 24, 2014

From  The Capital Press: http://www.capitalpress.com/Oregon/20140424/judge-throws-out-hot-goods-settlements 

Mateusz Perkowski
Published:April 24, 2014 12:10PM
A federal judge has vacated settlements deals between the U.S. Labor Department and Oregon blueberry farmers accused of “hot goods” labor law violations.

A federal judge has upheld a previous ruling that the U.S. Labor Department unlawfully coerced farmers into settling allegations of “hot goods” labor law violations.

Earlier this year, a magistrate judge recommended vacating the deals, under which three Oregon farms paid $240,000 in alleged back wages and penalties.

The Labor Department accused the farmers of paying pickers below the minimum wage in 2012 and declared the blueberries “hot goods” that can’t be shipped to buyers.

To avoid having the fruit spoil, the growers paid the settlements.

However, two of the farms — Pan-American Berry Growers and B&G Ditchen — eventually sought to have the deals overturned.

In January, U.S. Magistrate Judge Coffin agreed with the farmers that they had signed the consent decrees under economic duress and recommended invalidating the deals.

The DOL challenged this finding before U.S. District Judge Michael McShane, but he has now rejected the agency’s arguments and vacated the settlements.

In an April 24 order, McShane said the situation involved a “highly perishable product at peak harvest,” so any shipping delay “threatened to cripple the growers.”

“Under these circumstances, defendants had no choice but to agree to the consent judgments,” said McShane.

The judge also agreed with the finding that DOL had changed the implementation of its hot goods policy.

In the past, the agency allowed farms to pay the disputed amount into an escrow account if they chose to fight the allegations of labor law violations.

In this case, DOL officials did not offer the escrow option and required the growers to waive their right to appeal the findings.

“Although the government’s use of the hot goods authority is authorized by statute to resolve wage and hour violations, applying such authority in this situation, in effect, prevented defendants from having their day in court,” according to the previous ruling from Coffin.

- See more at: http://www.capitalpress.com/Oregon/20140424/judge-throws-out-hot-goods-settlements#sthash.3S576Fux.dpuf

EPA and Army Corps Attempt to Clarify Clean Water Act Jurisdiction

March 26, 2014

Yesterday, March 25, 2014, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers jointly released a proposed rule to clarify what constitutes “waters of the United States” for purposes of Clean Water Act jurisdiction. Due to a series of lawsuits and Supreme Court decisions, determining which upstream waters fell under Clean Water Act protections became so confusing and uncertain that stakeholders and the public requested a rulemaking to clarify the issue.

The EPA’s press release states that the definition in the proposed rule is consistent with the Supreme Court’s narrow reading of the Clean Water Act jurisdiction. Generally, apart from the more obvious protected waterways (e.g. navigable rivers and streams, interstate waters, territorial seas), the protections extend to:

  • Impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
  • Tributaries of traditional navigable water, interstate water, the territorial seas or impoundment (including perennial, intermittent, or ephemeral waterways and waterways that at some point flow through a culvert, pipe, etc.);
  • All waters, including wetlands, adjacent to (i.e. integrally linked to chemical, physical or biological functions of) a traditional navigable water, interstate water, the territorial seas, impoundments or tributary; and
  • Other waters, including wetlands, that when evaluated on a case-specific basis, have a “significant nexus” to a traditional navigable water, interstate water or the territorial seas either alone, or in combination with other similarly situated waters, including wetlands.

“Significant nexus,” as it relates to this last category, means that a water, alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of the traditional navigable water, interstate water, or the territorial seas. The EPA and Army Corps are specifically requesting comments that might help streamline this analysis to avoid or limit case-specific assessments.

Existing exemptions and exclusions for agriculture remain in place in the proposed rule. An interpretive rule, prepared in coordination with U.S. Department of Agriculture, ensures conservation practices that protect or improve water quality will not be subject to Section 404 dredge-and-fill permits.

Early responses to the proposed rule appear to be varied. Some, including the American Farm Bureau Federation, believe it has expanded federal jurisdiction over the nation’s water. Others think it will provide positive economic impact by better protecting headwaters and providing clarity. Given the mixed response, it is likely the proposed rule will undergo additional edits before it is finalized.

For additional details regarding what the proposed rule does and does not do, see the EPA website on “Waters of the United States.” Also available for review on that website is a pre-publication copy of the 371-page proposed rule.

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

Future of the West: Less Snow, More Drought?

March 7, 2014

California’s current drought could possibly be the worst in modern times. In response to this water crisis, California’s Governor, Jerry Brown, signed legislation last weekend to provide $687 million in drought relief. In addition to providing immediate relief, the legislation is also targeted at efforts to make more water available in the future through storm water recapturing, expanding the use of recycled water, better management of groundwater storage, and water conservation measures. It also includes a program to deal with contaminated groundwater, which will increase water availability.

Articles in the LA Times and Reuters provide further details on the California legislation.

Like our neighbor to the south, agriculture plays a large role in Oregon’s and Washington’s economies. While this is by no means the first time California has seen drought, climate change models predict a continuous decrease in winter snow pack throughout the west, which means less water is available to use during the summer, when demands are highest. The Oregon Climate Change Research Institute recently released a report on the impacts of climate change in the Northwest, which can be found here. That report indicates that “as snow accumulation diminishes, spring peak flows shift earlier, winter flow increases, and late-summer flow decreases,” meaning that “dry years are drier everywhere.” Decreased snowpack and increased drought will inevitably impact agriculture and other water resource users.

To address these concerns, Oregon’s legislature passed SB 839 in 2013. This bill, which I spoke about at Dunn Carney’s Ag Summit in January, provides funding for water supply development. If you have questions about this bill and what opportunities it might provide, please do not hesitate to contact me at kmoore@dunncarney.com.

Fish and Wildlife Service Reopens Comment Period for Proposed Gray Wolf Delisting

February 21, 2014

The public will again have the opportunity to comment on the US Fish and Wildlife Service’s proposal to take the Gray Wolf off the Endangered Species list. The Service has revised the proposed rule to incorporate the National Center for Ecological Analysis and Synthesis (NCEAS) peer review of the science supporting the delisting proposal. The NCEAS report concluded the Service did not consider the best available science when proposing to delist the Gray Wolf. Public comment is reopened so the Service may get feedback on the entire proposal, including the NCEAS report. In addition to delisting the Gray Wolf, the proposed rule will list the Mexican wolf as an endangered subspecies under the Endangered Species Act.

Regional populations of Gray Wolves have successfully recovered and been delisted in the western Great Lakes states and northern Rockies. The current rule proposes to delist the Gray Wolf throughout the United States. Prior updates covered this issue.

This comment period is open from February 10 to March 27, 2014. Comments may be submitted online at http://www.regulations.gov/#!submitComment;D=FWS-HQ-ES-2013-0073-43030.

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