You may have heard that Whatcom County has started enforcement actions against Pacific International Terminals, the property owner at Cherry Point. Thanks to the Bellingham Herald for posting these documents: Notice of Violation, Title 20-Clearing Regulations, Notice of Violation, Title 16.16-- Critical Areas Ordinance, and Memo from Planning Supervisor to County Executive providing additional information on the Notice of Violation and Penalty Assessment.
I was talking to a friend of mine this morning -- a normal person, with a life -- and her first question was: "Now that they've done this, do they get to keep the roads anyway?"
An interesting question.
If the "access roads" are "temporary," the answer is clearly no. The County will require a "retroactive Land Disturbance Permit," which will require the restoration of "any diminished ecological and/or habitat functions and values of the critical areas and their buffers."
(Clearly, SSA can't just stick the trees back in the ground. So I really hope that the County -- or somebody -- is going to require habitat improvement and creation elsewhere, to make up for lost functions and values, in addition to "restoration," which will require some time to take root. So to speak.)
But the County appears to offer another option, at least in theory: making those "access roads" permanent. "If the establishment of these access roads is intended to be permanent, the company shall abide by the [critical areas] mitigation sequence, which will likely result in the relocation of portions of the road and/or compensatory mitigation for unavoidable impacts." (This quote is from the County's memo. Similar language is in the Critical Areas violation notice.)
Access roads presumably provide "access" to something. The County doesn't have a permit application for the project. There's no authorized geotechnical investigation on that part of the site.
I've written to the County, asking what requirements would apply to permanent "access" roads. Permanent roads certainly would be a way for the project applicant to get a jump start on the project, before submitting its application or starting the full environmental review process.
And that leads to another question. When the County prepares the mandatory environmental review under the State Environmental Policy Act, will it just look at the roads? Or will it acknowledge that the roads are necessary in order to do something else -- like, say, constructing North American's largest coal terminal?
Illegal land clearing shouldn't be a back door way for the project proponent to "piecemeal" the project. A little road here, a little road there, and pretty soon it adds up to one big part of the project.
Tyler Schroeder, Whatcom County's Current Planning Supervisor, wrote back to provide some additional information. Thanks, Tyler.
Good question, when PDS issued the notice of violation we did not know
the company's intent for the access roads, except for the ability to
access for site exploration (geo-testing). To cover all bases we wanted
to spell out the corrective measures that the company may be required to
achieve. Your understanding is correct that the company has not
submitted a complete application. If the access roads are intended to be
permanent they would be required to meet the adopted clearing and land
disturbance regulations, pursuant to WCC 20.80.737, Title 15 Appendix J,
and any applicable County Development Standards.
Also, if the land disturbance application, that they are required to
submit, shows that the SEPA exempt thresholds are not met, a SEPA
checklist will be required to be submitted and reviewed. I don't
completely understand your question, "Would the SEPA review
of any such access roads also incorporate the indirect and
growth-inducing effects of constructing permanent access roads?"
However, it may be appropriate to review the segmenting of the proposal
through the construction of permanent access roads, once and if SEPA
review is initiated.
Please let me know if you have any other questions.