Whatcom County Blows Its Top

Well. Well well.

I’ve been in the land use biz for a long time, dealing with local governments of all shapes, sizes, and political proclivities, and I thought that I’d pretty much seen everything. But I’ve never seen anything like the letter that Whatcom County, under the signature of Deputy Prosecuting Attorney Randy Watts, sent to the Governor (link here to the letter, which was posted on the Bellingham Herald web site.)

It was a response to a letter that Bellingham Mayor Dan Pike sent – that link is here.

The topic is – you guessed it – the Gateway Pacific Terminal and the coal trains. Looks like that’s going to be THE topic around here for a while.

Let’s do a little side-by-side comparison of the two letters.

First, let’s compare the descriptors.

Mayor, describing the County:

• “quite appreciative”
• "concerned”
• “does not have the resources” (to conduct a full review of impacts along the entire rail corridor – mentioned 4x)
• “better positioned” (as in, the State might be better positioned than the County to work with Tribes outside Whatcom County’s borders)
• “better equipped” (as in, the State is better equipped to assess alternatives outside the County’s borders, such as coal exports from other ports)
• “mere” (as in, the County is “inclined” to process the shoreline permit as a “mere” revision)

County, describing the Mayor:

• “erroneous” x2
• “malicious”
• “ignorant”
• “blatant” (preceding “disregard”)
• “without any veracity”
• “lack of understanding"
• “political grandstanding"
• “blatant” (preceding “disrespect”).

As a mudslinging contest, the County wins hands down. Something got under the County’s skin, but it wasn’t the language of the City’s letter.

Now let’s go through the County’s letter, issue by issue, and compare it to the Mayor’s letter and to the law. We’ll then rate the County’s response following the “Volcanic Explosivity Index,” which that reliable source Wikipedia explains very nicely. The scale ranges from 1 to 8, starting with “nonexplosive” and then moving up to “gentle explosive, “severe,” “cataclysmic,” “paroxysmal” (my favorite), “colossal,” “super-colossal” and finally, “mega-colossal.”

To merit the kind of language that appeared in the County’s letter, you’d think that the City’s letter would at least have to edge past “paroxysmal” into the “colossal” range. Let’s see.

(1) The City of Bellingham Proposed a State "Lead Agency" – How Explosive Is That?

What did the City say?

“I am requesting that you direct State agency directors to assert lead agency status for review of the proposal under the State Environmental Policy Act, RCW ch. 43.21C (SEPA).”

County says:

“First, State agencies do not have authority as claimed by Mayor Pike to assert lead agency status. Mr. Pike is ignorant. . .“

Volcanic Explosivity Index: 2 (gentle explosive)

The Explosivity Index can’t go very high on this one when the County’s own letter ends with this statement: “We are hoping the Department of Ecology will agree with Whatcom County to be co-lead or lead for the EIS soon. . .” In other words, the County wants a state agency to be the lead agency. It’s just mad that the City said so, too.

But to be fair, the County does have a technical legal point. The City, technically, doesn’t have clear legal authority to ask state agencies to “assert” lead agency status. That’s because of the City’s legal position in this process: it faces the prospect of a hearty serving of impacts without the leverage that comes from permit authority.

That is, of course, why the City wrote this letter.

But for the benefit of the nerds among us (others can skip to the bottom of this section), let’s look at the underlying legal point.

More about lead agencies under the State Environmental Policy Act than you may ever want to know:

It is true that state agencies do not have the “authority” to assert lead agency status, although state regulations almost get there:

• Counties with small populations may transfer lead agency status to state agencies, when projects require multiple state permits (WAC 197-11-940). Whatcom County isn’t quite that small (although this project is quite that big).
• For many kinds of big, controversial projects, state law says that specific state agencies will be the lead agencies, presumably recognizing the difficulty of handling such projects at the local level (WAC 197-11-938). “Permit process for North America’s largest coal port and accompanying railroad transportation of almost 50 million tons of coal through the state’s most populated area” isn’t included on that list, possibly because the idea is new to the state.
• When agencies don’t agree over which agency should be the lead agency, an agency may petition the Department of Ecology for a lead agency determination. Ecology decides based on factors including magnitude of the agency’s involvement and expertise over impacts. (WAC 197-11-946). Bellingham isn’t an agency with jurisdiction, so it doesn’t fall in that category. And that’s what I meant when I said that the City may get a big hit of the impacts, but that lack of permit authority is a legal barrier.

There’s also this: “Any agency may assume lead agency status if all agencies with jurisdiction agree.” WAC 197-11-942.

And this: “Two or more agencies may by agreement share or divide the responsibilities of lead agency through any arrangement agreed upon..” WAC 197-11-944.

Bottom line: State law contemplates situations where the straightforward rule – Counties are lead agencies when private projects require a County permit – would not apply. From a logistical and resource point of view, the development of North America’s largest coal terminal and the transportation across the state of almost 50 million tons of coal would appear to be a circumstance where the rule doesn’t make sense. The County and the City may actually agree on this, but strictly speaking, the regulations only specify that the County gets to say so.

(2) City of Bellingham Wants to be Included on the “Multiagency Permitting Team” for the Gateway Pacific Terminal – How Explosive is That?

For more information on the Multiagency Permitting Team, see this blog entry.

The City’s letter said: “I am also requesting that you make the City of Bellingham a member and participant on your ongoing “iMAP” team reviewing the proposal under the leadership of your Office of Regulatory Assistance (ORA).”

The County’s letter said: “[I]t is our understanding that the Multi Agency Permitting (MAP) team is comprised of agencies with jurisdiction on the proposal. Mayor Pike’s opposition to the project prior to any environmental evaluation and his blatant disregard for the process makes the inclusion of the City of Bellingham on the MAP team problematic and even inappropriate. To add any advocate, either for or against, would be an affront to the MAP team’s carefully thought out unbiased process.

Volcanic Explosivity Index: 1.

Now, really.

First and foremost, residents of Bellingham are also residents of Whatcom County. Why would Whatcom County want its residents to have less, rather than more, representation?

Second, the County’s “understanding” is wrong. The MAP Team includes representatives of the applicant (an advocate, or course), and also of the railroad, BNSF Railway Company. BNSF is not an agency with jurisdiction. It is not even the applicant – in fact, spokespeople for the applicant, SSA Marine, have emphasized that the applicant doesn’t have any control over anything that BNSF does.

BNSF does, of course, have an enormous economic interest in the project.

Surely the County doesn’t mean that BNSF’s economic interest is valid and legitimate, but the City’s concerns over project impacts are “problematic and even inappropriate.”

(3) City of Bellingham Said That the County “Does Not Have Substantive SEPA Authority to Regulate the Impacts of the Proposal Beyond the County’s Boundaries.” How Explosive is That?

So, this heading pretty much sums up what the City said. The County said it’s “inaccurate” because the County does, in fact, have the ability to “deny or require reasonable mitigation outside the County’s boundary.”

Volcanic Explosivity Index: Oh, I don’t know. 1.5. Or 2. Or O.

Here’s the thing. Whether or not it's the lead agency, the County can, hypothetically, “deny or require reasonable mitigation outside the County’s boundary.” I hope that it uses this power wisely. But its authority is not unlimited. Here’s what SEPA says:

Any governmental action may be conditioned or denied pursuant to this chapter: PROVIDED, That such conditions or denials shall be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans, or codes which are formally designated by the agency (or appropriate legislative body, in the case of local government) as possible bases for the exercise of authority pursuant to this chapter. RCW 43.21C.060.

So does Whatcom County really have “identified policies” that would allow it to deny the Gateway Pacific project if it would have, say, unacceptable greenhouse gas impacts? Does it really have policies that would allow it to require mitigation measures for impacts in, say, Marysville? Or even Bellingham? I sort of doubt it.

(4) The City Says that the County Lacks Resources to Conduct an EIS of this Size and Scale. How Explosive is That?

The City said: “It appears the County does not have the resources, nor understandably, the expertise to conduct the comprehensive and cumulative impacts analysis necessary under SEPA along the entire rail line corridor within the State, including impacts related to greenhouse gas emissions, health impacts from particulate emissions, effects on road maintenance, or traffic delays.”

The County said: This statement “show [the Mayor’s] lack of understanding of the SEPA process. Agencies with expertise as well as consultant experts will analyze and disclose the impacts. This, as you know, is a fundamental tool of NEPA. In addition, the Mayor is conveniently ignoring the fact that this is a joint SEPA/NEPA document. I wonder if the Mayor shares his disrespect for the US Army Corps of Engineers as he does for Whatcom County.”

Volcanic Explosivity Index: Well, heck, we’re back to 1 (nonexplosive).

The County’s point is that it will be a perfectly fine lead agency because, really, all the other agencies will be doing all the work. Well, OK – so why not make those agencies the lead agencies? Which is pretty much the City’s point. And the County's, when it says that it would like the Department of Ecology to be the lead or co-lead agency.

The statement about “disrespect” for the Corps comes out of the blue. The Corps is the federal lead agency, and the City’s letter is all about the lead agency for the state process. Nor did the City ignore the fact that the Corps would be involved. The letter states “I understand the U.S. Army Corps of Engineers (Corps) and Whatcom County have already exchanged draft documents for the Request for Proposals from EIS consultants.” So the County loses outrage points for taking a cheap shot.

All in All -

The County’s letter is Krakatoa (Index Level 6, colossal) to the City’s Nyiragongo-merging-into-Mt. Hood (Index Levels 1-2).

Something else is going on.

(TO BE PERFECTLY CLEAR: Jean wrote this. Consistent with our practice all along on this blog, County Executive Candidate David Stalheim didn't see it before posting. For all I know, David will want to throw me into a volcano for writing about this. We'll see.)

Access to Gateway Pacific/Cherry Point Documents

Spoiler alert: This blog entry does, eventually, live up to its billing – it will indeed provide access to some of the Gateway Pacific documents that are more-or-less publicly available. But first, a little question and answer session.

1. Why is there a picture of an ostrich with its head in the sand?

Because that’s how the public agencies are acting. They seem to believe that the public will leave them alone if they pretend that agencies aren’t already working on the Gateway Pacific project.

2. What do you mean, agencies are already working on the Gateway Pacific project? I thought that the permit process hadn’t started yet.

There’s a quasi-public record of meetings that started in November 2010. On November 16, 2010, a “Multiagency Permitting” Team (“MAP Team”) started meeting. Here’s a link to the sign-in sheet, and here are notes of the first meeting. Here's a list of MAP Team members.

3. What’s a “quasi-public” record?

Agency documents (at least some of them, but more on that later) have been posted to a state-run web site. Here’s the link: http://iprmt.ora.wa.gov/NewUser.htm

You’ll see something unusual on that portal. It says “For public access to the Gateway Pacific Terminal MAP Team Web site please contact Scott Boettcher by email at ScottB@sbgh-partners.com.”

When I signed in, I didn’t feel like contacting Scott Boettcher by e-mail. I felt like looking at public documents. So I tried to log in, couldn’t get access to anything, and said to heck with it.

Several days later, Scott Boettcher contacted me!

Hi Jean. You now have access to the GPT Project Web site. You can log in more directly through https://secureaccess.wa.gov/ofm/iprmt24/site/alias__1357/22844/default.aspx. This should put you on the Welcome page right after you log in. Look forward to hearing from you about this website. Thank you for your effort to register and seek access to the site.

Scott

Scott sounds like a pleasant fellow, but I didn’t write back to let him know how I felt about the web site. This would be because I not feeling positive about having to make an “effort” to register, and to “seek” access to the site.

4. So now you have access, right? Why are you complaining?

I don’t think that a firewall between public documents and the public is a good idea. Some of the reasons are in this letter, submitted by Salish Land Policy Solutions.

Another reason came out of a conversation with someone who has approached the state to ask why they put up this firewall. “We like to see who’s looking at the documents” was the response.

It’s none of Big Brother’s business.

5. Hey, where would the Gateway Pacific project be built, anyway?

Right here in Whatcom County.

6. So why doesn’t Whatcom County post these public documents on its web site, so the people of Whatcom County don’t have to meet Scott Boettcher in order to look at them?

Excellent question! And one that I asked, too! The County’s response was that it would not start a web site until it obtained a project application.

7. What’s wrong with that?

Technically, nothing, I suppose. The County isn’t required to provide public access to documents unless the public requests those documents. HINT! HINT!

But really, Ostrich County. Has nobody in County government seen the full page ads promoting the project? Heard the radio ads? Noticed that a City forum attracted hundreds of people, with hundreds more turned away? Is this not a current issue?

Furthermore, Whatcom County has been participating in the MAP Team from the beginning.

Furthermore, Whatcom County submitted ONE—count ‘em, ONE – e-mail from a County resident to the MAP Team for posting. I hear that the county has received well in excess of 300 e-mails on this topic, but it forwarded this ONE e-mail. Here it is.

The County would not want the agencies involved in the MAP Team to believe that this ONE e-mail encapsulated the views of all Whatcom County residents. Would it? That’s why I suggested that the County might want to start its own web site: to provide broader access AND to ensure that all comments are treated equally.

8. So who would I contact at the County to comment on the project, or request a project web site?

Another excellent question!

Comments or questions about the project:

Roland Middleton (project manager): rmiddlet@co.whatcom.wa.us

County Executive Pete Kremen: pkremen@co.whatcom.wa.us

Comments on “scoping” or environmental impacts:

Tyler Schroeder (SEPA official): tschroed@co.whatcom.wa.us

9. Some people say that the project will only provide 89 jobs. Where does that come from?

Confusion over the jobs number demonstrates that the public needs access to these documents. The 89 job figure comes from this document (large file), available on the MAP Team web site. The document was prepared by the project applicant, Pacific International Terminals, Inc. and is called Project Information Document, dated Feb. 28, 2011.

Specifically from this part:

4.5.1 Employment

Operating hours for the Terminal are anticipated to be 24 hours a day, 365 days a year. When fully developed the Terminal is expected to employ 213 people. Table 4–3 shows the anticipated numbers of Terminal employees for each operational phase.

Table 4–3 Estimated Number of Terminal Employees by Shift for Each Operational Phase

Phase	Approximate Year (estimated)	Operational Capacity (Mtpa)8	7 AM–4 PM	3 PM–12 AM	11 PM-8 AM	Total
1	2015	25	39	26	24	89
2	2017	31	67	48	45	160
3	2021	45	83	61	57	201
4	2026	54	88	65	60	213

*Mtpa = Million metric tons per annum

10. What about access to documents?

I’m not employed by either Whatcom County or the project applicant, so clearly it’s my obligation to sit inside on a beautiful sunny day in order to create links! Well, OK, I didn’t feel like I could enjoy the sunshine until there was some sunlight. So here are some links:

Regulatory Diagram

Tentative Schedule

Pending Studies and Reports

MAP Meeting with Whatcom County Warning: this is a very strange document.

Whatcom County comments on the applicant's Project Information Document

Action Items

There are lots more document on the MAP Team web site. Do you want them to be made public, not just quasi-public? The County is the level of government closest to the public. Speak to the County.

UPDATE on cost reimbursement, June 7:

Anonymous and David raise some interesting points about the cost of the MAP Team. According to the notes of the "MAP Meeting" (see the link above), the County's position is:

"The County can collect an application fee and, above a certain amount, charge hourly for SEPA review. However, they need an application to get the process started. They are hoping to start a pre-application process, which also lets them recover costs. The pre-application information can be fairly simple and abbreviated. The County asked ORA to help convey the importance of starting the pre-application process to the applicant.

The County prefers to use their existing permit fee and hourly charge system for cost reimbursement rather than some other arrangement, such as cost-reimbursement contract through ORA."

So it looks like the answer is that the County will be working for free until the applicant decides to start the "pre-application" process.

State agencies, on the other hand, have signed a cost reimbursement agreement with the state Office of Regulatory Assistance, which is running the MAP Team. Here's a link to the agreement.

I wonder if the County is thinking about getting some cost reimbursement for the costs involved in providing public access to comments and agency documents, if the state isn't willing to do so. When comments start coming in from the cities and residents all along the rail lines, not just Whatcom County, this project is going to overwhelm County staff. With planning staff cut to the bone and beyond, we're extraordinarily ill-equipped to deal with a project of this magnitude.

UPDATE on posting public comments, June 7:

As Terry mentioned, the "General Interest" tab has been de-activated. There's a cryptic little discussion of this issue in the "Action Items" document (see link, above). If you get onto the MAP Team web site and click the "General Interest" tab, it now says this:

5-25-2011

UNDER DEVELOPMENT

ORA is in the process of refining its process for posting stakeholder perspective and information related to the GPT Project. Content previously available on this General Interest Tab has been temporarily removed. ORA will communicate the process for posting of stakeholder perspective and information following the next regularly scheduled MAP Team meeting. Thank you for your patience.

------------------------------------------------------

6-06-2011

UPDATE

A proposed approach for addressing and posting external content and stakeholder perspective to the GPT MAP Team Website has been drafted, is undergoing internal OFM review and will be distributed to the full MAP Team for review and input by June 10, 2011.

So maybe we'll know something by. . August 11, the next regularly scheduled MAP Team meeting? BUT WAIT -- the "tentative schedule" (see link above) says that the scoping process is going to start in July. It would be nice if they could figure out how to deal with public input before the scoping process begins.

UPDATE of the UPDATES, June 9:

The "e-mail from Pete" was actually an e-mail from Pete to a constituent. I've seen it before. Pete didn't speak directly to Get Whatcom Planning -- sigh. But he did post the same message to the County's web page -- http://www.co.whatcom.wa.us/executive/news/2011/gptupdate060811.pdf.

Thanks to Anonymous for sending the link to the new Gateway Pacific page on the Planning and Development Services' web site: http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/index.jsp. One suggestion for the County: could you add a direct link under "Hot Topics" on the County's home page? It's not easy to find the dedicated Gateway Pacific page from the County's main web page, and I believe that there might be a few people in the County who don't read our blog. Shocking as that may be.

Once you know that the Gateway Pacific page is on the Planning and Development Services' site, it's easy to find the page -- there's a link from the main page. Thanks, PDS! And my continued empathy about handling the public comments issue. I hear that there are several hundred per week coming in.

For those interested in media coverage of the project, here's a link to a King 5 news report shot in Bellingham. The job figures are always interesting -- this report says "around 300," which I guess is close to 213. If you round up.