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):