Friday, August 26, 2011


The whole is more than the sum of its parts.

Aristotle, Metaphysica

Well, we can all stop worrying about a coal terminal. All that is proposed for Cherry Point is a “terrestrial geotechnical evaluation.” Whew.

How do I know? Because Whatcom County has posted the State Environmental Policy Act (SEPA) Checklist,” showing the scope of the impacts proposed for review by the County and State before they issue (retroactive) permits for the illegal work that has already been done on the site.

The Checklist is limited to the geotechnical analysis, which means that the applicant only wants the agencies to evaluate the impacts of that small part of the project. And, if the project proponent were planning to continue with the rest of the project, this would be called “piecemealing.”

Piecemeal environmental review is the oldest trick in the book. One small permit won’t have major impacts – let’s just look at those impacts! Then the next small permit won’t have much impact either – let’s just look at the impacts of that permit!

Over time, though, OOPS. You wind up with, say, a coal terminal, and the public and the agencies have never looked at the impacts of the project as a whole.

With the wisdom of Aristototle, the State Department of Ecology has correctly observed:

The applicant is attempting to separate the 9.1 acres of the geotechnical investigation portion of the greater “Gateway Pacific Terminal” project from the actual 1,090-acre terminal project itself.

Both phases of this project are combined under a common plan of development and must be included in full in their NOI [Notice of Intent] as well as in their public notices.. .

In short, because the SEPA has not yet started (apparently they will be doing an EIS [Environmental Impact Statement] for the terminal), ECY [Ecology] will not be able to consider an NOI complete nor issue CSWGP [Construction Stormwater General Permit] coverage for the project at this time. We will not separate the two projects (common plan).

That’s right. The applicant has lawyers who must know that’s right. The geotechnical investigation is the first stage of a single big project, and SEPA requires environmental review of the “common plan.”

Therefore, there must not be any plans to build a coal terminal any more, because surely the project proponent wouldn’t be rewarded for illegal activity on the site by being allowed to cheat on the environmental review.

Simple logic.

Tuesday, August 23, 2011

Thinkin’ Bout a Moratorium

Thoughts and developments --


I had a good talk with Royce Buckingham today, from the County Prosecuting Attorney’s office, about the letter that I wrote about the County moratorium requirement. (The County has been very responsive overall, I should add, with a quick e-mail from Planning Director Sam Ryan and a quick call from Royce.)

The PA’s office apparently is basing its decision not to impose a moratorium on the view that only the State Department of Natural Resources has the authority to impose any kind of regulations that relate to any timber harvesting or forest practices that don’t amount to “conversion.” So the County’s position is that its law imposing a moratorium on applications following illegal “timber harvesting” (that DNR hasn’t found to be “conversion”) is preempted by state law.

We spent quite a bit of time talking about the state statute that says that local governments can adopt “additional or more stringent regulations” that are not “inconsistent with the forest practices regulations” in state law. I’m wondering whether any regulation that is “different” from state law is viewed as “inconsistent.” And, if so, why is there even a statement in the law that local governments have the authority to adopt “additional or more stringent regulations”? Royce said he’d look into it further, for which I’m appreciative.

Joe Show

Joe Teehan invited me to talk about the moratorium on “The Joe Show” today (the podcast is available from a link from this page). This is the third time that I’ve been on the show, and I really enjoy it.

Joe and I had one discussion that got me thinking. What if the County said “This is our moratorium law, we’re standing by it, and we’re going to apply it”?

The project proponent would have two choices. It could do what it’s required to do in order to lift the moratorium (see this blog), which would be the simplest and quickest response. Or it could sue the County, which would be more expensive and would take longer.

This would certainly give Whatcom County residents a better idea about the project proponent’s feeling of responsibility toward the community.

The applicant has every right, of course, to fight the County tooth and nail. We all have the right to go to court; it’s what makes America great. (A little lawyer humor there).

Or it could choose to abide by the laws that were in effect when it decided to pursue this project and work diligently to meet the requirements in our County Code.

What do you think?

Sunday, August 21, 2011

The Six-Year Moratorium Again: What Is "The Law"?

Now and again, this blog has been known to tweak the County about its reluctance to follow state law. For example, here (Fire District 21 and impact fees) and here (growth management issues).

Fortunately for those who like variety, today's blog focuses on a new twist to that old plot line. Now the County is declaring that it has to follow state law, to the point where it has to forego enforcing the County Code.

The issue is the six-year moratorium that the Whatcom County Code appears to make mandatory when timber harvesting takes place without a forest practices application or notice. The location is, of course, Cherry Point. (For more information, see this blog, and this one, and this one. And this one and this one.) (That's in reverse chronological order.)

According to a letter dated August 19 from the County Prosecutor’s Office, “local ordinances cannot regulate where state ordinances have prohibited regulation, and such is the case here. The above state statutes are quite clear that the County may not regulate unless a full conversion has occurred.”

Based on this letter, the County's Planning and Development Services Department has stated that it will not impose the moratorium required by the County Code.

So I should be happy about the County's sudden conversion to the necessity of following state law. Right?

Well --

It's a pretty big deal when the executive branch decides not to enforce a law on the books. I'm sure that we all want to make sure that the relevant County Code provision really is void, or invalid, or preempted, before the Planning and Development Services Department nullifies a law passed by our legislative branch.

I’m probably dense, but the problem that I’m having is that I can’t find a state law or regulation that prohibits the County’s regulation.

And so, I’ve written the County to ask for more information. For the truly dedicated, here’s the letter.

And what follows is a condensed version:

State law requires the County to impose a six-year moratorium, and to deny permits and applications, when the state Department of Natural Resources issues a “notice of conversion.” DNR hasn’t issued such a notice (more on conversion in a moment).

But state law doesn’t say that that County can’t impose a moratorium on new applications when unauthorized timber harvest has taken place. In fact, state law authorizes the County to adopt “additional or more stringent regulations,” as long as they are not inconsistent “with the forest practices regulations enacted under this chapter.”

It's entirely possible that I missed something, but I didn’t find any forest practice regulations that are inconsistent with the County Code moratorium provisions. What I did find was a requirement stating that, “if the forest practice takes place without a required application or notification, then the provisions of RCW 76.09.060 (3)(b)(i) regarding the six-year moratorium apply.” WAC 222-20-050(3).

That actually sounds pretty consistent with the County’s code. The forest practices on Cherry Point took place without a required application or notification, so the County imposes a moratorium. And my question is: where does state law "prohibit" the County from implementing the County Code?

One reason for the confusion might be the difference between the actual state law governing the County's authority to adopt “additional or more stringent regulations” (RCW 27.09.240(6)), and the version that the Prosecuting Attorney’s Office apparently is contemplating. Here’s how the Prosecuting Attorney’s memo described the law:

RCW 76.09.240(6)(a) indicates that “no county…shall adopt or enforce any law…pertaining to forest practice, except…That exercise of such authority may regulate forest practices only…Where…the lands have been or will be converted…”

The memo then states that “reading this section requires some navigation. . .” Actually, creating that text out of the actual state law language required some navigation. Here’s what the law actually says, with the bits and pieces included in the Prosecuting Attorney’s quote in bold and the parts that I think are important underlined:

For those forest practices over which the board and the department maintain regulatory authority no county, city, municipality, or other local or regional governmental entity shall adopt or enforce any law, ordinance, or regulation pertaining to forest practices, except that to the extent otherwise permitted by law, such entities may exercise any:

(a) Land use planning or zoning authority: PROVIDED, That exercise of such authority may regulate forest practices only where the application submitted under RCW 76.09.060 as now or hereafter amended indicates that the lands are being converted* to a use other than commercial forest product production: PROVIDED, That no permit system solely for forest practices shall be allowed; that any additional or more stringent regulations shall not be inconsistent with the forest practices regulations enacted under this chapter; and such local regulations shall not unreasonably prevent timber harvesting;

[*The Prosecuting Attorney’s memo says “lands have been or will be converted.” The language in this quote is correct – the provision was amended this year.]

As you can see, the memo left out parts of the statute that look like they might uphold the County Code. That’s why I’m hoping for clarification.

As for conversion – the Forest Practice Rules define “conversion activities” (in WAC 222-16-010):

"Conversion activities" means activities associated with conversions of forest land to land uses other than commercial timber operation. These activities may be occurring during or after timber harvest on forest land. They may include but are not limited to the following: . . .

Any of, or any combination of, the following activities in preparation for nonforestry use of the land: Grading, filling, or stump removal.

Taking the project proponent’s claim at face value, the construction of around four miles of roads and the clearing of about nine acres of forest was needed for a geotechnical analysis. The geotechnical analysis was “in preparation for” a nonforestry use of the land: the construction of a coal terminal.

How is this not “conversion”?

I hope that the Prosecuting Attorney’s Office will clarify.

Update: Here's a link to the Earthjustice letter discussed in my comment below. The need for a class IV forest permit is described starting on page 5.

Wednesday, August 17, 2011

How Would That "Six-Year Moratorium" Work?

Offline, I’ve gotten quite a few questions about the development moratorium that the County Code appears to require the County to impose on the Gateway Pacific project at Cherry Point. Mostly, people want to know how easy it will be for the project proponent to get out of it.

The County Code says that
“if forest practices occur on a site without the appropriate permit, a six-year development moratorium shall be imposed from the date the unpermitted forest practices were documented by Whatcom County or the DNR.” (WCC 20.80.738(1)(c)(ii).)

The Code also says that “Whatcom County shall not accept applications for any development of land which is subject to a six-year moratorium.” (WCC 20.80.738(1)(b)(ii)).

So everything that the project proponent does to lift the moratorium should have to precede any application.

Here’s what the County Code says.

  • The project proponent can request the removal of the moratorium.
  • The County Hearing Examiner makes the initial – decision or recommendation, the County Code doesn’t say which.
    (It probably doesn’t matter whether it's a "decision" or a "recommendation," because any final “decision” of the Hearing Examiner can be appealed to the County Council, and the County Council also acts on “recommendations.” Council Chair Crawford once commented that the County Council “rubber-stamps” the Hearing Examiner, so whatever kind of decision the Hearing Examiner makes will likely be “rubber-stamped” by the Council before moving on to the next step. Which is court.)
  • The Hearing Examiner has to decide that criteria have been met.
    One of those criteria is that “the forest practices conducted on the site comply with requirements of Chapter 222-24 WAC, Road Construction and Maintenance, Chapter 222-30 WAC, Timber Harvesting, and any applicable county codes or regulations.”
  • Now, this presents an interesting issue. “Compliance” most assuredly ought to include environmental review under the State Environmental Policy Act.
  • Which raised the particularly interesting question: will the County allow “piecemealed” or "segmented" environmental review, where the project proponent can pretend that it only wanted to cut down a few trees – not to prepare a site for North American’s largest coal terminal? The scope of the environmental review will, of course, have quite a significant effect on how quickly the applicant can show that it "complied."
  • Other criteria including completing, or bonding for, mitigation (I’d bet on bonding), reforestation of the site if required (I’d bet on a plan to reforest), compliance with all other permit conditions, and payment of fees, costs, and penalties.
  • The Hearing Examiner also has to be convinced that neither the applicant “nor any person acting in privity with the applicant” (such as, perhaps, contractors) “intended to circumvent any requirement of this section or the Forest Practice Act or regulations by taking the actions for which the moratorium was imposed” or “has engaged in a pattern or practice of violations of any applicable regulations.”

The Hearing Examiner has to hold a public hearing, and if enough people are paying attention, when the time comes, there could be good attendance.

Here's a nice, clear picture of some of the activity on the site, from the County's e-mails posted on line (at page 30):