An Amazon contractor has seemingly begun work on the site where the online retailer wants to place its Eugene distribution center despite a pending appeal of the company’s wetland permit.

Work trucks were visible from Oregon Route 99 on July 24; operators were seen raking and watering the property.

The Oregon Department of State Lands received a complaint of work being performed on the site two days prior, spokesperson Katrina Scotto di Carlo confirmed.

“We’re currently looking into the legal interpretation of the regulations to determine next steps,” she said.

Three Eugene women, including an environmental consultant, in May appealed the permit that would give Amazon permission to pave over wetlands. They argue the state government erred when it tentatively granted approval.

On May 1, the Department of State Lands, which has jurisdiction over wetlands in Oregon, gave Amazon contractor TC Pursuit Services — a subsidiary of Trammell Crow, which began work on the site — a notice that it intended to award a “Removal-Fill Permit” for the site where the warehouse is planned.

That notice was one of the factors the city of Eugene considered when it last month gave Amazon permits to build.

Trammell Crow has declined to comment on the Amazon project, citing a nondisclosure agreement.

Liz Porter, a Eugene resident, environmental consultant and former stormwater regulator, is the lead complainant in the formal appeal of DSL’s decision. She alleged the agency did not properly vet Trammell Crow’s findings, and that Trammell Crow and Amazon didn’t meet their obligations under the permit requirements.

DSL has jurisdiction over “waters of the state,” including rivers, lakes, wetlands and more. To award a permit that allows Amazon to reduce those waters — including paving over the wetland — state officials consider nine factors, including whether there’s a public need for the development, whether the companies considered alternatives to the project, and whether they “provided all practicable mitigation” from construction and development.

State officials determined the project met the “public need” test as part of Eugene’s vision for light-industrial jobs in the Clear Lake area; that Amazon met its obligations to consider alternatives by looking at seven alternate sites and four alternate layouts and determining those options were either impractical or disturbed more wetlands; and that Amazon met its obligation to mitigate by buying wetland credits.

Porter, in her appeal, wrote Amazon fails the “public need” test because the company has not provided a concrete number of jobs it will provide, their pay, or U.S. Postal Service job losses. She also contended that the company hasn’t sufficiently studied the alternate sites and that Amazon hasn’t considered the impact it will have outside the property.

“It’s not in the public interest of the people of Oregon to cut out a third-party contractor from Amazon and make Amazon more profitable so they can run their own fleet,” Porter told the Register-Guard.

Porter described herself as more pro-wetland than “anti-Bezos,” and said she would have similar concerns if another business wanted to put this much pavement on the lot where Amazon plans to locate.

“The whole premise of the law is: Don’t touch what you don’t have to,” she said. “If a client came to me and said, ‘I want to build an 80-acre complex’ and mapped on that land was a huge amount of wetlands, I’d say, ‘You need to seam it together with some other parcels before you start building there or go back to square one and find a new piece of land.’”

Porter speculated that the distribution center’s estimated average of 2,600 daily trips will have a negative environmental impact on the Willamette River and harm the “public health and safety” of Eugene residents, by clogging the Beltline Highway route to PeaceHealth Sacred Heart Medical Center in Springfield.

While Porter lodged her formal complaint with the state, she also was frustrated with the city of Eugene for designating the Clear Lake area for industrial development in the first place. In her view, the wetland-heavy area isn’t suited for such development.

In 2017, Eugene expanded its urban growth boundary around the airport by 969 acres. City officials concluded Eugene did not have enough economic opportunity and the solution was to add 11 large industrial parcels. Nine years later, Amazon was the first company to latch onto one of those parcels.

Amazon’s permits, as well as the city’s justification for choosing the area in the first place, have labeled the wetlands around the airport “low quality” because of the lack of wildlife both on the wetlands and in Amazon Creek.

But Porter said the value of a wetland is more than that.

The land where Amazon plans to build plays an important role in catching stormwater from upstream industrial businesses that could otherwise reach the Long Tom River, which does have fish. The wetland mitigation credits Amazon bought don’t change that, she said.

The appeals went to the Oregon Office of Administrative Hearings, which provides judges who hear appeals of administrative decisions made by state agencies. The OAH hosted an “administrative pre-hearing” over the issue on July 20.

Erika Hamilton, the attorney representing the state, argued for a smaller scope, saying many of the issues complainants raised aren’t legal requirements. For example, complainants took issue with DSL not responding to the comments given against the permit in the public comment period and Hamilton said DSL isn’t required to respond to those comments.

Porter argued for a broader scope even beyond the issues raised in the current complaints. She said those complaints are incomplete because DSL has not provided her with a complete administrative record of its decision. She filed a public records request for that information in May, but DSL told her it would cost $2,335.

“The whole process was scattered and covert and didn’t give the opportunity of the public to know really what was going on,” Porter told the judge. “The way that the application went through was so piecemeal and scattered that we weren’t able to really get an idea, in an all-encompassing way, of what exactly is going on, where it’s going, and how it’s going to affect long term, this community.”

Hamilton said DSL originally treated Porter’s request as a public records request, but because of the appeal it’s now treating it as a discovery request and will provide Porter with the documents.

Administrative Law Judge Kate Triana said she would present both sides with a draft “issue list” to be discussed at the next pre-hearing on Aug. 7.

During the pre-hearing Hamilton also clarified that because appeals were filed within 15 days of the May 1 notice, DSL has not yet issued a permit. She and the Trammell Crow representative seemed to disagree whether the company currently has permission to remove the wetlands on the property.

“There isn’t a final agency action,” Hamilton said. “DSL intends to proceed to a hearing and hear all the evidence. … And following the development of the administrative record, the agency will make a permitting decision.”

“We do have a proposed order that says the permit application is approved,” said Stoel Rives attorney Reilley Keating, who is representing Trammell Crow. “That has not been challenged by TC Pursuit Services, the applicant itself. And so, there is a permit.”

Editor’s note: This article originally appeared in The Register-Guard and then was distributed on the USA TODAY Network via Reuters Connect.

The post Amazon contractor starts site prep in Eugene despite appeal appeared first on Daily Journal of Commerce.

By Alan Torres
Eugene Register-Guard
USA TODAY Network via Reuters Connect

The federal government still has to remove the fence around the Eugene Federal Building by 7 a.m. July 2, U.S. District Court Judge Mustafa Kasubhai wrote in a new opinion released late June 30. The government appealed that order the morning of July 1.

The General Services Administration appealed the U.S. District Court’s original order to remove the fence by Kasubhai’s deadline, and the U.S. Circuit Court of Appeals issued a one-page remand telling the District Court to “consider and clarify what alternative measures the Appellant is authorized to employ” and “the time line for such measures.”

In the afternoon on June 30, both sides further argued Kasubhai’s order after the remand from the higher court.

For most of the 3-hour hearing, the federal government argued Kasubhai’s July 2 deadline and proposal for what an alternate fence would look like are impractical and told him he should reconsider. In his formal opinion, Kasubhai disagreed.

Government prepares to remove fence

During the hearing, Ryan Anderson, the federal employee who manages the Eugene Federal Building, told Kasubhai the agency had taken steps to prepare to remove the fence: The GSA obtained a permit from the City of Eugene to close traffic again, staged a restroom for the crew who would remove the fence and staged a forklift to move the concrete blocks holding the fence in place.

But challenges remain, Anderson said. He said the fence was designed with the contours of the federal grounds in mind and the GSA may not simply be able move the existing fence up against the windows of the federal building as Kasubhai suggested.

Anderson said the agency may need to order new pieces to move the fence. He also said he wanted to leave space to put the concrete blocks on the inside of the fence, otherwise protestors could climb the blocks.

Anderson also argued the fence is justified because the federal property is about to become a construction zone. He said he now had a timeline for replacing and hardening the windows and doors of the federal building, which is scheduled to start July 15 and end Dec. 22.

Kasubhai orders plaza reopened by deadline

In his new opinion, Kasubhai explained his reasoning for keeping the 7 a.m. July 2 deadline.

Kasubhai reiterated his view a fence like he proposed, one that blocks the windows and doors of the federal building but not the plaza, would be allowed.

He wrote anything short of that, such as moving the fence far enough back to open up the benches but not the rest of the plaza, as the government proposed, would continue to violate the First Amendment and is not authorized under his order.

Kasubhai wrote that at the June 22 hearing, the General Services Administration “failed to provide any meaningful details about timing and process for moving the existing perimeter” nor did the GSA “express any serious interest in undertaking the authorized alternative.”

He also said he believed the fence could be removed on the timeline he ordered, noting among other factors, the GSA has obtained a contract for workers who are staged in the Eugene area to disassemble the fence, and the City of Eugene permit authorizing night work at the federal building from June 29 to July 1.

He also refuted the government’s position that removing the fence would pose a security risk.

Kasubhai noted the federal building “annex” (the smaller building on the Pearl Street side) is vacant, placing blocks on the outside of the fence shouldn’t be a problem because anyone who did use them to scale the fence would be trapped inside and easily arrested, and that for decades the federal building has remained open to protests without major harm to the building or its employees.

He noted that while the GSA plans to harden the glass on the first floor, there are no plans to do so on the higher floors, discrediting the government’s argument that a closer fence would pose a security risk because protesters could throw rocks at the second story.

Kasubhai retained the deadline to remove the fence, meaning work would have to start the evening of July 1 to comply. A check-in hearing to confirm the fence has been removed is scheduled for 9 a.m. July 2.

On the morning of July 1, James Blum, attorney for the GSA filed a new appeal and request to delay Kasubhai’s deadline until the 9th Circuit Court of Appeals hears the case.

Blum wrote that removing the fence would “irreparably injure” the GSA by creating a security risk that could damage the federal building. He requested an order from the higher court by 5 p.m. July 1, and said the GSA would remove the fence if he doesn’t get that order.

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