Normal people may not have been caught up in an ongoing scuffle about the Gateway Pacific project, but I have, just a little bit. And I’ve been trying so hard to be a normal person over the past few weeks. To “go placidly amid the noise and the haste, and remember what peace there may be in silence,” as the Desiderata posters used to say when I was in college.
Here’s what happened.
This Thursday, December 8th, the Planning Commission is going to review the “Birch Bay Watershed Action Plan.” (Here’s a link to the agenda ). What’s it all about?
- The Plan is intended to allow property owners in the Birch Bay watershed to pay a fee in order to encroach on buffers for streams and wetlands, if development meets specific “low impact development” criteria.
- Here’s a link to the “Habitat Mitigation Fund Plan,” which is proposed to be added to the Whatcom County Critical Areas Ordinance.
- In addition, the Whatcom County zoning code would be amended. Here’s a link to the amendment.
Pretty exciting so far, right?
Well, there was a Facebook posting. . .
It said that there had been controversy over whether this mitigation plan would apply to the Gateway Pacific Terminal project. Controversy? Gateway Pacific? Well, that's news!
Because of this controversy, County staff have proposed to delete language saying that “projects within the Cherry Point Industrial District that impact stream and/or wetland buffers may utilize the HMF [Habitat Mitigation Fund] for off site buffer habitat mitigation with approval of the Director of Planning and Development Services.” Here’s a link to the memo with the proposal to delete the language.
To see what was going on, I looked at the proposed amendment to the Zoning Code, because that’s what I do (and what future project applicants will do).
The proposed Zoning Code said that the Low Impact Development program would apply to “development proposals in the unincorporated areas of the Birch Bay watershed.”
And then it referred to Resolution 2008-049 at section 1, and Exhibit A Section 2. I looked at Resolution 2008-049, expecting to see a map or description of the Birch Bay watershed, but it wasn’t there. In fact, I couldn’t find a Section 2 within Exhibit A, at all. The link is here, if you want to see what you can find.
And so, I asked an innocent question: Is the Gateway Pacific project entirely outside of the Birch Bay watershed?
I asked because, if it isn’t entirely outside the Birch Bay watershed, the Birch Bay program could apply to the Gateway Pacific project whether or not there is specific language about the “Cherry Point Industrial District.”
I never even stated an opinion about whether including the Gateway Pacific property was a good or a bad thing, but I did suggest that everybody ought to be clear about what’s covered before the Planning Commission goes ahead and approves it.
That seems uncontroversial to me, but maybe not. A kerfuffle ensued. So, in an effort to clarify, let me make two points.
The proposed ordinance is contradictory and unclear. There is absolutely nothing wrong with pointing out that a proposed ordinance is contradictory and unclear. Why pass a law that’s going to lead to disputes in the future? Why not make the intent and application of the law clear?
A couple of examples:
- The proposed Zoning Code says that it’s intended “to prevent to prevent measurable harm . . .from commercial or residential development sites.” Proposed WCC 20.50.010.
- But then the guts of the code, where it defines what is covered, says that “The benefits are available to residential and commercial development, as well as short subdivisions and long subdivisions, and binding site plans” Proposed WCC 20.50.030. Binding site plans are specifically available for industrial development.
If the County wants to include industrial projects, it should say so in the intent section. If it doesn’t want to include industrial development, it should say so in the binding site plan section.
It seems reasonable to assume that the County does wants to include the Gateway Pacific site within the Birch Bay plan. Earlier this year, the County’s Planning and Development Services department provided comments to the team of state agencies that is reviewing the Gateway Pacific site. The County stated: “Use the Birch Bay Watershed Habitat Mitigation Fund (pay fee-in-lieu-of mitigation) for buffer mitigation needs when it comes online in 2011.” Here’s a link to the memo.
If that is, indeed, the County’s intent, everybody should know. Planning Commissioners, in particular, should know what’s covered before they pass it.
Is that a controversial statement?
Another potential problem is the statement, also in 20.50.030, that the program “applies to development proposals in the unincorporated areas of the Birch Bay watershed.” What if part of the project is in the Birch Bay watershed and part of it is not? This appears to be the case with the Gateway Pacific project and may also be true of other projects. Do the low impact development standards apply to the “proposal in the unincorporated area” or to the entire project? Does the entire project have to be in the Birch Bay watershed? The proposed law is unclear.
Finally, there’s the definition of “Birch Bay watershed.” Maybe it’s somewhere in the plan or the zoning code and I missed it, but if not, that can lead to confusion, too. For example, the Gateway Pacific “Preliminary Conceptual Compensatory Mitigation Plan” (link is here) says that 68 acres “probably” or “possibly” drain to the Birch Bay watershed (see page 19). If it is not clear what property is included in the Birch Bay watershed, future disputes can occur.
I understand that the Birch Bay plan is not the main focus of wetland mitigation or of environmental concern. The project's “Joint Aquatic Resources” application states that 141 acres of wetlands on the Gateway Pacific site will be destroyed. Those are direct impacts, and the Birch Bay program doesn’t address direct impacts (it says so, specifically). So everybody’s work is really in the future, when we get started on the main show.
But that’s no reason not to pay attention now.
Picture credit: "Birch Bay Watershed Local Habitat Assessment" map, courtesy of Washington Department of Fish and Wildlife, http://wdfw.wa.gov/conservation/habitat/planning/lha/whatcom.html