Thursday, June 16, 2011

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.)


  1. Unfortunately I believe this is another example of politics and posturing hiding a financial agenda administered by those who look to gain the most.

  2. Thanks for this analysis Jean. I would also think that it would be important for the lead agency--even if it lacked the resources to conduct the analyses--to have in-house expertise to interpret and evaluate the quality and rigor of the contractor's work. This is particularly true when the contractor is hired by the project applicant and the analyses are complex and technical.

  3. The public has every right to be leery of the County process.

    In 1999, Whatcom County entered into an agreement, approved by Randy Watts in the Prosecuting Attorney Office and approved by the County Council, to stipulate to another shoreline development from the same stevedoring family. This project is known as Governor's Point. The agreement is online at

    When I came on board with Whatcom County, I found that the previous SEPA official had allowed the developers to hire their own consultants to do the EIS for Governor's Point. In other words, the people that are writing the EIS are directly employed by the proponent. I was shocked and outraged that such an arrangement was allowed.

    The proper EIS process is to have an independent body do the work through a 3-party arrangement. The developer foots the bill; the County controls the process; and an independent group prepares the EIS. Under State law, the County has to provide three consultant options to the applicant, but they don't have veto authority over any of them, and don't have control over the preparation of the EIS. The applicant just pays the bill and provides whatever data they have to the consultant.

    Footnote: I would never throw Jean into a volcano! It is important for the public to have this debate, and that citizens feel that they can speak their mind -- even if they just happen to be a candidate for office.

  4. "Something else is going on."
    Could it be related to the fact that light is being shed on Whatcom County, who said nothing when the JARPA application was filed, about SSA's assertion the '97 Shoreline Substantial Development Permit applies to the terminal currently proposed? And who accepted SSA's application for a "revised" SSDP? WC Planning is now in the position of having to kick that application back, after they and all state and federal agencies tacitly allowed SSA to define the permitting process.

    I don't understand the politics here well enough to understand what else is going on. But isn't this looming over everything?

  5. Politics always looms over everything, especially when there's this much money involved. After all, politics is defined as "who gets what, where, when, and how."

    David's voice of experience about the need for lead agencies to supervise the EIS certainly mirrors my experience. From an applicant's perspective, it's much nicer when the lead agency isn't involved. There are a lot of ways to finesse an EIS, including issues that the public doesn't really know about. Like the project's "purpose and need" statement, which identifies the project objectives under the federal EIS law, for example. If the "purpose and need" is defined to fit the project closely, it's harder to support the selection of any alternative to the project, because the alternative won't meet the project objectives. That sort of thing. The public really needs an active -- and sophisticated -- lead agency to make sure that the EIS is a square deal.

    In addition to the Herald coverage, Crosscut also covered this issue:

    I e-mailed Floyd McKay, the author, to point out a typo in the article. We have a 5-2 pro-development Council, not a 3-2 Council. And the Council hasn't been evenly divided on development issues for the past couple of years. It's been a pro-development blowout. This year's election really matters.