Monday, August 1, 2011

New Roads for Whatcom County: Gateway Pacific Bulldozes Ahead

“Out of Sight, Out of Mind"?

While he was out walking his dogs, County Council member Carl Weimer saw, and took pictures, of land clearing and road-building at Cherry Point. He was in an area that WOULD be part of the current proposal for the Gateway Pacific coal terminal but was NOT part of the project approved in 1997. Click here to read his report. Take as long as you need to look at the pictures, because the pictures are key.

Carl has since asked whether these clearing activities – which have taken place in wet areas, and which have resulted in considerable tree removal – violated a whole range of county and state laws. Those questions are here.

SSA issued a statement indicating that this land-clearing and road-building was authorized by the County. Or at least SSA THOUGHT that the work was authorized. Click here to read that statement.

What can we find out about the lawfulness of this activity, based on the record?

On the Record: Where WAS the 1997 Project?

In 1997, Whatcom County approved permits for a much smaller terminal on Cherry Point. There was a lawsuit, and the County, SSA, and a bunch of other parties negotiated a settlement agreement.

Both the Final EIS for the project and the Settlement Agreement show that the entire 1997 project was located west of the area where Carl was walking his dogs. Carl was east of Gulf-Powder Plant Road (both names have been applied to the road), north of Henry Road, and south of Lonseth Road. The 1997 project avoided this area.

It was no accident that the entire project avoided this area.

In fact, the Final EIS documents the fact that the project's rail loop was moved out of the area where Carl observed land clearing, precisely in order to avoid impacts on wetlands.

  • In 1992, a site plan was proposed that would have affected 50 acres of wetlands.
  • To reduce impacts, in 1993 a new route for the railroad loop was identified that reduced wetland impacts to around 20 acres.
  • Finally, to reduce those impacts to under 6 acres, the railroad loop was moved entirely out of the areas.

In short, it's hard to see how this “exploration” related to the 1997 project permit, when it took place entirely outside of the 1997 project footprint.

Don't take my word for it. Here’s the Final EIS. The “approved” site plan is on PDF page 37, document page II-3. The earlier site plans, which were revised in order to avoid wetlands, are at PDF pages 48-51, document pages II-14 – II-17.

Here’s the part of the Settlement Agreement that includes a site plan. See PDF page 41, Appendix B, 37.

On the Record: What Did the County Authorize in 2008?

SSA seems to be trying to argue that its actions were County-authorized geotechnical investigations. Let’s look at what, exactly, the County authorized.

SSA is relying on a "Notification Review and Decision" made on Nov. 20, 2008.

The Notification Decision authorized geotechnical investigations. Those geotechnical investigations had to comply with a Field Study Plan dated Sept. 2008.

The Field Study Plan includes a map showing where borings were authorized. The authorized borings are nowhere near where Carl and his dog were walking, except maybe two that appear to be right on or just off of roads. All of the rest of the authorized sites are west of the area where the road building and land clearing took place.

The Notification Decision references a County code provision (WCC 16.16.235, accessible from this page) that states:

The following activities as specified are authorized within critical areas and buffers; provided, that the applicant provides a written notification to the technical administrator . . . The notification will provide specific information describing the activity and the mitigation to be implemented to document that the activity will not result in increased risk to public health, safety and welfare, that adverse impacts to critical areas are minimized, and that disturbed areas are restored as soon as possible following the activity. . . . Unless otherwise specified, notification shall be valid for one year per activity; provided, that there is no change in the scope of the project including, but not limited to, the location and/or extent of the activity allowed under the notification process.

The County’s “Notification Decision” is about two and a half years old. It looks like the road building and land clearing activities were nowhere near the “location” of the authorized well borings, and that the “extent” of land clearing was far more significant than that authorized by the Notification Decision.

I’m not making this up. Look on pages PDF 60 (the Notification Decision) and pages 13, 15 and 16 (the relevant pages of the Field Study Plan) (click here).

For those who don’t like pictures, you can watch the story unfold on TV. King 5 went out to look at the site today (click here). In front of the TV cameras, Whatcom County is talking tough.

Talk is cheap, but follow-through can be expensive.

Making sure that the County has enough staff to provide oversight for projects is expensive.

Enforcement is expensive.

Civilization is expensive, but let’s see whether we prefer it to the alternative.

When I was campaigning last year, a gentleman who attended every forum asked me the same question every time. The question went something like this: “You think that we should comply with state laws on growth management. But if it’s too tough for our local community, shouldn’t Whatcom County get a break?”

This was not a well-received question at some forums. At the League of Women Voters’ forum, for example, there was a collective sharp intake of breath – nothing more impolite, but a clear disturbance in the force at the thought that we should consider ourselves above the law.

Even when I knew it was coming, I can’t deny that the question created a disturbance in my force. I tried to explain that governments – in particular – can’t decide to be above the law, but whatever I said must have been fuel for my opponents’ fury, because the question just came coming back.

And now I’m wondering whether there wasn’t more to that question than I thought at the time. I thought it was a campaign ploy, not an ideology or a reflection of our official policy. But now, I’m starting to wonder. Is that the impression that we’ve given to the outside world, including those who want to profit from development in our community?

In Whatcom County, when the law is too tough, the tough . . . get a break?


  1. Not to mention 7/22 communication from DNR to SSA's engineers, a full 8 days before Watters' e-mail. See "The boring and access plan (dated March 2011) that you attached does not
    match the plan approved in 2008 and shows many more boring's in areas that were not approved. I have also attached photos of
    areas that have exposed soils, trees and roots that have been pulled. The 2008 plan authorized states that clearing efforts will be
    limited to removal of above ground stems and/or branches and that cut vegetation will be crushed in place to create a soil
    protection layer. For all wetland areas, soil disturbance will be limited to shallow surface disturbance due to tracking. No grading or
    excavation will be performed."

  2. Gateway Pacific's Information document states that they will be seeking a lease from the Washington Department of Natural Resources for state-owned tidelands and will also petition Whatcom County for vacation of specific County owned rights-fo-way within the project area. Have these things been done already? If not, if we stop the lease, would it be an effective way of stoping this project?

  3. If they removed merchantable timber from forested land for a conversion project commenced without a forest practice permit, might they be vulnerable to a five year penalty moratorium on conversion?

  4. A penalty moratorium will depend on the volume of timber removed and the size of the area cleared.

  5. Good questions about state agencies and what role they'll play. I hope that we'll hear something soon from the state Department of Ecology and Department of Natural Resources (which has authority over forest practices), as well as the federal Army Corps of Engineers, which is charged with making sure that wetlands under its jurisdiction aren't harmed without a permit.

    The first "Anonymous" comment is referring to an e-mail from Whatcom County Planning and Development Services (not state DNR -- those pesky acronyms!).

    Speaking of Whatcom County, the County Code provides for a six-year moratorium when some forest practices requirements have been violated -- see Whatcom County Code section 20.80.738. I don't know enough about the site to know whether the moratorium provision would apply, but presumably somebody is figuring that out.

  6. 1st Anon here: wasn't an acronym that got me, it was "Natural Resources," which I mistook for DNR, and then misspoke. Apologies to all. Now I know there is a Natural Resources div. of WC Planning.