Saturday, December 3, 2011

The Birch Bay- Cherry Point Kerfuffle

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. 

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.

Point 1.

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. 

Point 2. 

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,


  1. Thanks for this post. I will admit I get a bit confused trying to understand all of this. Are you saying that even if the language that refers specifically to GPT is removed, the project could still be covered by these proposed changes? I feel like often things are not straightforward in these types of proceedings, which makes it difficult for an ordinary person who does not have specialized knowledge to become adequately informed and involved. Do you have advice for someone like me who plans on attending the meeting on Thursday but isn't exactly sure what to ask/do? Thanks!

  2. I don't blame you, CM. It is getting complicated.

    It appears that the County has planned, since early this year, to shoehorn the Gateway Pacific project into the Birch Bay program. It did so by inserting a statement that the Birch Bay program would apply to "the Cherry Point Industrial Area."

    The reason that quite a few people are upset about this, I think, is that the County didn't make it clear that it was including Gateway Pacific in the program. You had to be watching the Birch Bay program in order to figure it out. And we can't all watch everything.

    After an outcry, a PROPOSAL has been submitted to the County Planning Director to remove the specific language about Cherry Point. The PROPOSAL hasn't been adopted yet. Who knows what the Planning Commission will do.

    So yes, if you think that allowing the Gateway Pacific project to pay an in-lieu fee to eliminate stream and wetland buffers is a bad idea, do go to the meeting and tell the Planning Commission to take out the Cherry Point language.

    At least.

    Here's where it gets complicated.

    The problem is that, even if the Cherry Point language IS removed, the Gateway Pacific project may still be covered by the Birch Bay program. Because:

    (1) Although it seems that the Birch Bay program was intended to apply to residential and commercial development, in fact it can apply to industrial development as well. And,

    (2) Part of the Gateway Pacific project is in the Birch Bay watershed. I can't tell from the language how much, or how, the project would still be covered by the Birch Bay program.

    And I think that it's a bad idea to adopt a law when you can't tell what it will do.

    The County at least needs to clarify how the program will apply to projects that are partly inside and partly outside the Birch Bay watershed. Like the Gateway Pacific project. And it needs to do that in writing, by amending its proposed code to make it clear, not just by saying what it thinks will happen.

  3. Thank you so much. I think I am starting to get it, (although in some ways I can't believe it! It's hard not to feel completely mind-blown at times!) Thank goodness for people like you who are helping people like me try to understand what is happening so that we can become (and stay) involved, as we should be. Again, I really appreciate your efforts to bring clarity to this confusion.

  4. Jean,
    As always, thank you for the work you do on this blog to bring important planning issues to the community's attention.

    I think another very clear message people can deliver to the planning commission would be:

    1. Since staff are saying the coal export facility project and other industrial uses would not be able to use the proposed Birch Bay watershed section of the code, the ordinance should incorporate the staff's stated intent.

    [Note: we have reviewed the proposed staff amendment and agree it does not say "no industrial"].

    2. To do this, ask the commission at the hearing to add a sentence in the applicability section stating plainly that "This Article 9 does not apply to lands zoned light or heavy industrial or rail line improvements, whether located within or outside the Birch Bay watershed."

    3. It is important to add the bit about rail line improvements because it is our understanding from SSA's project documents that Burlington Northern will need to improve bridges and rail lines from the Custer Spur over Terrell Creek to the Gateway site, and some if not all of these areas are in the Birch Bay watershed.

    Note: These Birch Bay amendments to the critical areas ordinance are to be called "Article 9" of the critical areas ordinance.

    Based on our review of SSA's Project Information Document maps for the east and west loops, the Gateway project will install new and modified rail lines on the northern edge of the property and this property lies within the Birch Bay watershed, according to the watershed maps posted by the County on the webpage for this ordinance. These lands are zoned heavy or light industrial.

    So, asking for amendments to the proposed Article 9 making clear it does not apply to industrial zoned lands and new rail lines or rail line improvements would go to the heart of the question.

    How can staff oppose these amendments if their intent truly is not to use the Birch Bay amendments to affect the SSA coal export facility site?

    Thanks again for posting this and the opportunity to comment. I look forward to seeing you all at the hearing.

    Tom Ehrlichman
    Salish Land Policy Solutions

  5. Assuming myself to be a normal person, but still following the GPT issue, the question that seems begging to be asked: are the regulations pertaining to wetlands outside of the Birch Bay watershed/Habitat Mitigation Plan, namely the Critical Areas Ordinance(?) much different? Don't both sets of regulations allow the totally ridiculous concept (IMHO) of destroying a natural wetland created over millenia with an artificially constructed "pond" somewhere else?

  6. Hi Lyle,

    It is true that the Gateway Pacific applicant wants to set up an "in lieu fee" program for its direct impacts to wetlands and to use mitigation banking. That's what its "Preliminary Conceptual Compensatory Mitigation Plan" says.

    The link is here:

    The County has stated that it will "Consider establishing a certified in-lieu-fee mitigation program for remaining impacts that cannot be mitigated onsite or in the Birch Bay Watershed."

    That link is here:

    So apparently the County is proposing to allow impacts to be mitigated, not only outside the "Gateway Pacific Terminal watershed" (as the mitigation plan refers to the area in which the project will be located), but also outside the Birch Bay watershed.

    The Birch Bay program doesn't apply to outright wetland destruction. It provides an alternative to providing (otherwise mandatory) stream and wetland buffers.

    In addition to the possibility that the overt destruction of wetlands will be mitigated. . .elsewhere, the Birch Bay program would additionally allows stream and wetland buffers to be destroyed if an in-lieu fee is paid. So it's on top of the project applicants' plan to mitigate off site for the destruction of wetlands.