Thursday, August 4, 2011

Road to Nowhere

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?

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.




  1. '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.'

    Why would anyone stop doing a criminal act that works perfectly every time? SSA Marine should just pay WC $4,400 every time they want to break the law. Hey, it's a win-win.

  2. At the risk of appearing repetitious:

    I really don't see many trees lying around. Were they removed? Were they marketed? Where are they?

    Isn't harvesting trees without a forest practice permit another violation? I believe they could be subject to a five year moratorium on conversion of the property if they harvested merchantable timber without a permit.

    Any thoughts?

  3. Tip,

    As I mentioned in comments on the previous post, I don't know enough about the site to say one way or another. DNR has been contacted and I understand that Ecology and the Army Corps of Engineers have been or will be out on the site.

  4. "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."

    This is illegal piecemealing and segmentation of the proposal. Because the road building is part of and depends for its justification on the larger project which is not exempt and because the road buidling must be implemented simultaneously with the larger project, the roads are not exempt under any circumstances.

    SEPA WAC 197-11-060(3) Proposals.

    (a) Agencies shall make certain that the proposal that is the subject of environmental review is properly defined.

    (i) Proposals include public projects or proposals by agencies, proposals by applicants, if any, and proposed actions and regulatory decisions of agencies in response to proposals by applicants.

    (ii) A proposal by a lead agency or applicant may be put forward as an objective, as several alternative means of accomplishing a goal, or as a particular or preferred course of action.

    (iii) Proposals should be described in ways that encourage considering and comparing alternatives. Agencies are encouraged to describe public or nonproject proposals in terms of objectives rather than preferred solutions. A proposal could be described, for example, as "reducing flood damage and achieving better flood control by one or a combination of the following means: Building a new dam; maintenance dredging; use of shoreline and land use controls; purchase of floodprone areas; or relocation assistance."

    (b) Proposals or parts of proposals that are related to each other closely enough to be, in effect, a single course of action shall be evaluated in the same environmental document. (Phased review is allowed under subsection (5).) Proposals or parts of proposals are closely related, and they shall be discussed in the same environmental document, if they:

    (i) Cannot or will not proceed unless the other proposals (or parts of proposals) are implemented simultaneously with them; or

    (ii) Are interdependent parts of a larger proposal and depend on the larger proposal as their justification or for their implementation.