Terminal would impede fishing, impact fish

Daniel Kearns, a Portland land use attorney, speaks during an Oregon LNG permit public hearing at the Warrenton Community Center in September.

WARRENTON — Oregon LNG has so far failed to prove that a liquefied natural gas terminal would not irreversibly damage the ecology of the Lower Columbia River Estuary, or that the company’s proposed mitigation measures would soften the impact of the development project.

What’s more, the terminal would likely disrupt recreational fishing and unreasonably interfere in people’s right to use the area by harming fish habitat, a state-recognized public resource.

These are the conclusions reached by Portland-based land use attorney Daniel Kearns, who denied the company’s applications for the bidirectional terminal on behalf of the city of Warrenton last week.

Though he approved the company’s separate applications for a 2-mile stretch of LNG pipeline, Kearns’ decision details why Oregon LNG’s plans to build a terminal appear to run afoul of the city’s development code.

The attorney found that Oregon LNG “has not adequately characterized and quantified the impact of its operations on commercial and recreational fishing, nor has it demonstrated that these impacts will not be unreasonable.”

Oregon LNG has acknowledged a “500-yard exclusion zone for LNG vessels while in transit, a 200-yard exclusion zone for LNG vessels moored at dock, and a 50-yard exclusion zone from the dock facilities with no vessels present,” Kearns’ decision states.

“The applicant also discusses possible impacts to popular Buoy 10 fishing and offers vaguely to minimize impacts by ‘restrict(ing) LNG marine carrier arrivals and departures to nighttime periods or when the number of fishermen has decreased during the Buoy 10 fishing season,’” he continues, quoting Oregon LNG’s hearing submissions.

Pointing out that the Youngs Bay Control Zone already restricts recreational fishing access, the company has argued that its own exclusion zones won’t further impact recreational fishing in the area.

However, the Youngs Bay Control Zone “only restricts angling for a portion of the year, while the proposed security zones are effective the entire year,” the Oregon Department of Fish and Wildlife said in a statement.

“The existing restricted fishing areas and periods are intended to help endangered and diminished fish populations recover to the point that fishing can again expand,” Kearns wrote.

He added, based on comments from the state Department of Fish and Wildlife, that “the agency either believes that the LNG terminal operation will work against those recovery efforts by causing unacceptable habitat impacts, or that the applicant has not provided enough detailed information for ODFW to determine that it won’t have that adverse effect.”

In addition, “recreational vessels will be periodically prohibited (about 250 times each year) from movement in and out of the Skipanon River during the times that the LNG marine carriers travel between the berth and the federal navigation channel,” the department wrote. “These safety closures will permanently prohibit recreational fishing and crabbing from a 100 acre area at the marine terminal, and will prohibit transit through the turning basin area over a period of about 125 hours each year.”

Kearns concluded that Oregon LNG’s mitigating measures are “not sufficient to prevent unacceptable losses, irreversible damage, unacceptable degradation or reduction in estuary resources from this project, all of which affects public trust rights.”

As designed, the terminal would create a 109-acre dredge footprint in the estuary and require filling in roughly 35 acres of wetland.

The state Department of Fish and Wildlife has written that the terminal could, among other concerns, “potentially impact salmonid rearing and migration habitat, lamprey migration habitat, eulachon rearing, spawning and migration habitat, and green sturgeon feeding habitat” within the estuary.

Meanwhile, the 35-acre wetland habitat is “critical for rearing habitat for several (Environmental Species Act-listed) salmonids and is also used by a variety of other estuarine-dependent species,” the department wrote.

For the wetland area, the Fish and Wildlife Department recommended that the project result in zero net loss of wetland habitat quantity or quality, that Oregon LNG avoid impacting the area altogether by finding another development action or that the company find some way to mitigate the impact.

However, Oregon LNG’s wetland mitigation plan is “unproven and unverified from a biological or ecological perspective.”

Oregon LNG has also claimed that “the mere presence of ESA-listed fish in the vicinity of the proposed project does not necessarily imply negative impact” — a statement that Kearns wrote “defies logic.”

He said that a permanent wetland impact of 35 acres is a “significant loss of habitat in the context of the Lower Columbia River Estuary, which has seen big wetland losses since pre-settlement times.”

Kearns said he cannot credit the applicant’s attempts to minimize the impacts of the dredge footprint or the impact on the wetland, “which state and federal environmental agencies regarded as significant.”

Although it is theoretically possible the company could meet the criteria for Warrenton’s development code by submitting more or different evidence, “that seems unlikely based on the fundamental nature of the project and the estuary and shorelands that will be impacted,” Kearns wrote.