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 8^th, 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.

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, http://wdfw.wa.gov/conservation/habitat/planning/lha/whatcom.html

C. Dean Martin

"That's just crazy!"

These are the words I'd often hear from C. Dean Martin when talking about Whatcom County Planning these past two years.  Dean passed away in his sleep last night.  The cause of death is unknown, but Dean was hit by a car the day before Thanksgiving while crossing Northwest and Illinois.  He suffered four fractures from that accident.

I was fortunate enough to have had the pleasure of working with Dean at Whatcom County.  Dean was hired on in early 2008 as the Senior Planner responsible for the county's agricultural program.  Dean had a great career already, having been a lead conservationist in the State of Missouri (if memory serves me well) and was an elected official.  Dean was passionate about agriculture and passionate about conservation.

And he was passionate about local conservation and good planning.  Since being laid off by the County in June 2010, Dean had volunteered his time through his church (Unitarian), neighborhood (Columbia) and with several local election campaigns.  Dean could be seen answering the door in Christina Maginnis' campaign video, and was a regular volunteer knocking on doors for candidates that supported conservation efforts. 

Dean also challenged Whatcom County on several growth management cases -- and I believe won every one of them.  Last Monday, if Dean was there at the latest Growth Management Hearings Board case, he would have just shook his head when the County said that "rural lands ARE the buffer to agriculture."  That's just crazy. 

Dean's lovely wife, Carol, resides here in Bellingham.  Dean is also survived by two accomplished daughters.  He was a great man, committed conservationist, and friend.  In signing out of any email, this is what Dean had to say:

"The land ethic simply enlarges the boundaries of the community to include soils, waters, plants, and animals, or collectively: the land"

"A thing is right when it tends to preserve the integrity, stability, and the beauty of the biotic community. It is wrong when it tends otherwise." Aldo Leopold, A Sand County Almanac. 1949.

Thanks for all you did, Dean.  We'll keep up the good fight for conservation, because "its just crazy" not to.

How is the Gateway Pacific Coal Terminal Like a Cherry Point Herring?

Oh, all right. Really, it’s not.

Cherry Point herring are near the bottom of the marine food chain. They sacrifice their little selves to provide food for charismatic species like salmon and orca whales.

The Gateway Pacific coal terminal, in contrast, is at the top of the food chain. Its major investor is Goldman Sachs and it has a huge coal export contract with Peabody Energy, the largest private-sector coal company in the world.

Some might find these large corporations to be charismatic, but only, I suspect, those who are on the payroll. The rest of us are expected to sacrifice our little selves to engorge their profits even further.

But the coal terminal and the herring do have one thing in common: they’re both slippery and elusive.[1]

Students at Western Washington University held a forum last Wednesday called “Cherry Point: Bellingham and Beyond.” Five people were on the panel, including Craig Cole, the spokesperson for the Gateway Pacific Terminal, Chris Johnson, representing Labor, Jack Delay from Communitywise Bellingham, Bob Ferris from RE Sources, and me, from, well, Get Whatcom Planning.

On behalf of SSA Marine, the coal terminal proponents, Craig Cole kept emphasizing that the terminal might ship all sorts of products – “in past years, potash was the big thing” – and that who knows, really, what that terminal might be used for.

But then, in response to a question from Mayor Pike, he insisted that he knew for a certain fact that we’d have just as many coal trains through Bellingham even if the Cherry Point terminal were not built. Those trains absolutely definitely positively would carry the same amount of coal to Canadian ports.

How can he be so certain about coal trains to Canada, I asked, when he claims not to know what product the Gateway Pacific terminal will ship? And when there aren’t any contracts of that size with Canadian ports, and when there doesn’t appear to be that much port capacity available, especially for American coal. (Read about that here.)

Craig responded that shipment out of Canada is absolutely certain because that’s what “everybody who actually works in the business” (ZING! OWIE! I do not work in the coal export business, it’s true!) says is what will happen.

I think that SSA Marine and the Gateway Pacific supporters need to ask “everybody who actually works in the business” what product will be shipped out of their own terminal.

Since they appear to be uncertain about it.

In fact, a good start might be to contact Peabody Energy. They could probably find the name and address of somebody to talk to on that contract they signed.

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[1] Now it’s time for some marine scientist to get all biological on me and to say that herring are not really “slippery.” For all I know, they’re rough and gritty when taken out of the water.

If you want to read more about Cherry Point herring, Bob Simmons recently posted a good article in Crosscut. But in the meantime, let's get on with the metaphor.

Of Wetlands and Sausages

If you want to sit back and be happy, secure in the belief that “the process” will take care of any little matters that might affect your future – like North America’s largest coal terminal out on Cherry Point – and that we don't need to raise our voices because Whatcom County, the State of Washington, and the federal government are taking care of our interests –

-- then please, don’t read the e-mails about the Gateway Pacific coal terminal that Whatcom County posts on the Planning and Development Services web site.

There’s an old saying that “laws are like sausages: if you like them, you should never watch them being made.” “The process” is a bit like that. If you want to like it, don’t watch it being made. And certainly don’t look at the ingredients. Snouts, eyeballs, entrails – if you're going to have to eat them, maybe it's better not to know that they're there.

I made the mistake of running my eye over the latest batch of posted e-mails last night, and I sorta wish I hadn’t. The link to the e-mails is here, and the page numbers indicated below refer to the document that you'll reach through the link.

There was SSA’s “Stormwater Pollution Prevention Plan” (starting on p. 23), which SSA’s consultant prepared in order to “prevent” pollution after SSA plowed roads through the site, cut down timber, and filled wetlands. Whatcom County Engineering approved the plan after a “grand total” of two hours of review (p. 108).

Here’s how SSA described its activities: "Clearing of paths was accomplished by pushing over vegetation in a 17-foot-wide corridor between marked borehole locations." (p. 30)

That vegetation, it’s just a pushover. The gentlest nudge and you’ve got a road! The problem that we have in Whatcom County is not that companies feel that they can operate here without following the law. Our problem is wimpy trees.

SSA’s plan also says that “Once agency approvals are received the geotechnical investigation will resume.” (p. 29) Only this time, I hear, SSA has posted No Trespassing signs. No pesky dog enforcers allowed!

Speaking of “not following the law,” there was also a letter from the Army Corps of Engineers (starts on page 100), saying that SSA’s actions not only pushed a bunch of vegetation around but were “in violation of federal law.” Despite that detail, the Corps is chill (“I have decided not to pursue prosecution at this time”) as long as SSA gets an “after the fact” permit. An option that ought to be available to all of us in all walks of life.

The correspondence that really caught my eye, though, was an e-mail from the state Office of Regulatory Assistance, offering to help Whatcom County learn how to comply with SSA’s wish to “mitigate” wetland impacts through an in-lieu fee. (p. 196.)

Hmm, I thought, that’s interesting. If it can just pay an “in-lieu fee,” SSA wouldn’t actually be required to create, enhance, or restore wetland functions in the affected area.

Instead, SSA could just write a check. And then wetlands would be created/enhanced/restored. Somewhere. At some point in time. But not necessarily in the same watershed, and not necessarily at the same time that SSA is destroying 142 acres of wetlands adjacent to an aquatic reserve.

Why would the state be expediting this “mitigation,” which does not seem like the best choice for our community? I looked at the Department of Ecology’s website to see what it had to say about in-lieu fees. And what it had to say confirmed that this form of mitigation is not a first choice:

In this approach to mitigation, a permittee pays a fee to a third party in lieu of conducting project-specific mitigation or buying credits from a mitigation bank. ILF mitigation is used mainly to compensate for minor impacts to wetlands when better approaches to compensation are not available, practicable, or when the use of an ILF is in the best interest of the environment. Compensation for larger impacts is usually provided by project-specific mitigation or a mitigation bank.

I’m still shaking my head over that one.

Only in Whatcom County would regulators even think about treating the destruction of 142 acres of wetlands as a “minor impact.”

Or maybe “project-specific mitigation” is just not “practicable” for SSA.

So --

If you’re comfortable with the assurance that the coal terminal will only be approved if it’s “fully mitigated,” bear in mind that one person’s “full mitigation” is another person’s “practicable” mitigation.

The sausage that comes out at the end of the process will only be as palatable as the ingredients that go into it. If we aren't careful, we'll be fed whatever is "practicable" for SSA. Whether or not it's tasty or nutritious.

Will the Gateway Pacific EIS Be Anything More Than A Big Ol’ Pile of Paper?

Well. Things certainly got lively yesterday on Get Whatcom Planning. The Gateway Pacific project seems to have ratcheted up the level of subdued excitement around here.

In comments on my last blog post, I was accused of thinking that the Environmental Impact Statement, or EIS, for the Gateway Pacific coal terminal will be nothing more than a formality.

This made me think. Thinking requires the processing of information. Which brings to mind a quote attributed to economist John Maynard Keynes[1]:

“When my information changes, I alter my conclusions. What do you do, sir?”

In a couple of public forums, I’ve discussed how the environmental impact assessment process works. I’ve said that the process “can” work well. It can provide a detailed, open, scientific assessment of the impacts of a project, and it can result in better projects.

When the Gateway Pacific project was first announced, I was hopeful that the process would work well. I’ve seen it work well for big projects, so I was optimistic.

On the other hand, the process can lead to nothing more than a big ol’ pile of paper. I’ve seen that happen, too.

So, which will it be for the Gateway Pacific project? At this point, my optimism meter is dialed down low. And here’s why:

(1) If the agencies with authority and expertise don’t require a rigorous, complete analysis, the EIS will literally paper over the impacts of the project.

For me, this is the biggest problem looming for the Gateway Pacific EIS. We’ve seen strong, principled, consistent statements and actions from a few agencies that have reviewed the (legal and environmental) mess that SSA has made out on the Cherry Point site so far, but that has not been the primary response.

For whatever reason – whether it is underfunding and understaffing, or political pressure, or the belief that little old Whatcom County is too obscure and remote to matter – we are not seeing evidence that every agency with jurisdiction over this project will work to safeguard our community and hold SSA to a high standard.

In fact, we’re seeing quite the contrary: an absence of enforcement from some quarters, and lenient enforcement that treats SSA differently from other property owners from others. This hardly instills confidence that these same agencies will conduct a rigorous, arms-length analysis of the impacts of this project.

Now we have a County Executive candidate who has made an election pledge to work with SSA to get the project through, as shown in this video and discussed in that last blog. A culture of cronyism will not ensure that Whatcom County will provide a rigorous, arm’s length analysis of the impacts of the project.

This is new information since my earlier discussions of the EIS process, and its effect has been simple and logical. It changed my mind.

(2) There has to be a level of trust and assurance that the project applicant will actually implement all of the great things that the EIS says that it ought to do.

The point of an EIS is not to write a brilliant EIS. The point is to make sure that the environment is protected. All of those words on paper mean diddly-squat if the protective measures that the EIS comes up with are not implemented.

And so, we need to know that SSA will be competent and honest enough to meet its obligations. Something or other in that equation has been missing so far. Building roads, cutting trees, and filling wetlands illegally is hardly a demonstration of the ability or willingness to stick to commitments or to meet the highest environmental standards.

I heard an SSA spokesperson say, on Radio Real Estate, that all of SSA’s operations around the world meet the highest environmental standards. As SSA’s operations around the world are scrutinized, I hope to find that the evidence supports this assertion. Around here, to be frank, that hasn’t been the case. And that does not provide much assurance that the environmental impact assessment will lead to environmental protection on the ground.

Now I see that labor is fighting against the preparation of a health risk assessment. I have not seen SSA release a statement saying that, to the contrary, it fully intends to ensure that all of the impacts of its projects – including impacts on the health of the community -- are fully evaluated.

That is what I’d expect of an exemplary environmental citizen, and I hope that SSA will step up. In the meantime, evidence that SSA will be a careful steward of our environment is lacking.

(3) An EIS can’t do a darn thing about impacts that nobody can mitigate.

One of the more startling figures relating to the Gateway Pacific Terminal is the number 487. That’s how many enormous coal tankers will be coming to Cherry Point when the project is built out, according to project proponents. (See “3 Things that Everybody Needs to Know About the Gateway Pacific Project at Cherry Point..”)

Marine vessels -- such as these 487 bulk carriers -- are significant sources of air pollution. While at sea, they burn bunker fuel, which is a dirty fuel that comes from the bottom of the oil refinery barrel. Many bulk carriers are registered in “flag of convenience” countries (such as Panama and Liberia). The country of registry, not the United States, is supposed to make sure that the ships burn low-sulfur fuel within 200 miles of our coast.

While on shore, our regional air pollution agency can slap on some fines if they see a really dirty stream come out of the smokestack. SSA can offer electrical power, in lieu of burning diesel, while the ships are at the pier (except that most ships won’t be equipped to plug in). Other than those palliatives, I simply don’t see how the EIS can have any impact on marine vessel pollution.

(Of course, if we have no health impact assessment, we will never understand the cumulative effects of this source of pollution in conjunction with the diesel fuel burned by coal trains. These concerns about this process are synergistic – each amplifies the others.)

I also wonder about the mitigation of impacts from spills. Here’s why I wonder:

“Sometimes it comes as a surprise to people to hear that pollution from ships' bunkers can be nearly as serious a problem as major cargo spills from tankers. . . .

Although only oil tankers can cause very large spills, many bulk carriers and container ships carry bunker fuel of 10,000 tonnes or more – these are larger quantities than many of the world's tankers carry as cargo.

Most importantly, ships' bunkers normally consist of heavy fuel oils, which in general are highly viscous and persistent. A relatively small quantity of highly persistent bunker fuel can be disproportionately damaging and costly to remove in comparison, for example, with a substantial cargo of light crude oil.

“Bunker Spill Risk,” 2001.

I haven’t heard the project proponents talking about this issue, and I don’t believe that the EIS can ensure that such a spill never harms our coastal waters. The EIS can’t control the makeup of the fleet or ensure that we only get perfectly trained, alert, competent ships’ captains. If this is a risk that the community decides that it does not want, the EIS will not protect it.

And then there’s the issue of mitigating the impacts of burning more coal in China. Tut tut, they will say, there’s no impact to mitigate. China will burn more coal no matter what. But will it? Does the extent of coal that we supply have no impact at all on demand in China – in other words, is China exempt from the laws of the market? Will the EIS even look at this issue?

This brings us to the last, but surely not the least, concern:

(4) Garbage In, Garbage Out applies to EISs. If the “scope” fails to address the entire project, conclusions about impacts will not represent reality.

Because this project involves transporting coal from Wyoming through many communities (including Bellingham), storing the coal, loading it onto 487 enormous ships each year, transporting it to China, and burning it there, the impacts of all of those steps need to be evaluated.

I’ve heard it said that this “can’t” be done. Why not?

The claim that it “can’t” happen is part of an EIS syndrome that is related to the $500 toilet seat problem. Here’s what I mean.

It’s been observed that people get fixated on small parts of enormous defense contracts. We complain about the $500 spent on a toilet seat while not raising a peep about billions and trillions of dollars going to, say, Halliburton. Why is that?

Because we can understand the toilet seat. We can’t understand the billions and trillions. The enormity of the issue puts it beyond our ken.

Similarly, an EIS tends to be very good at looking at familiar, local impacts. We have baseline data and time-tested methodologies for those. But when the scope is as vast as this project, there’s a tendency to throw up our hands and say “It’s too big! We don’t have the time, the data the ability, the understanding to look at all of the impacts!”

What we can’t measure, we discount.

And so, from an EIS standpoint, you wind up with a project that is just “too big to fail.”

The EIS needs to look at all of the activities included in this project, or else it will be nothing more than a big, expensive pile of paper.

Which is another word for “a formality.”

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[1] Although he may not have said it, as I learned from that invaluable research support, Google: http://quoteinvestigator.com/2011/07/22/keynes-change-mind/

The First Rule of Politics

Our friends over at Latte Republic posted a video clip from yesterday’s forum on the SSA coal terminal, sponsored by the Citizens’ Alliance for Property Rights (CAPR). There wasn’t even any pretense that this forum would be a multifaceted exploration of the issue. This was all Go, Go, Go Coal Terminal!

The clip is well worth watching. Doug Ericksen is running for County Executive, and the video shows his closing statement.

Mr, Ericksen took two interesting stands in this short clip. One will have to wait for another day and another blog, and that is his position that Whatcom County needs to buy some new science in order to favor property rights. On the panel with Mr, Ericksen was Steve Neugebauer, a controversial hydrogeologist who’s making quite a name for himself in property rights circles by fighting the Department of Ecology. Are his battles successful? Should Whatcom County pour taxpayer dollars into Mr. Neugebauer’s brand of science (as Doug said, he’s not free – “We probably aren’t going to able to afford this guy, he’s making too much money suing on stuff”)? Is that really in the best interest of all of the people of the County? These are all questions that Mr. Ericksen didn’t explore in his short speech, but that require serious consideration. Another day.

Today’s topic, however, is the “first law of politics,” to quote Mr. Ericksen.

(A little background: the agency team that is working to expedite the SSA coal terminal has put out a new schedule that predicts that "scoping" for the Environmental Impact Statement, or EIS, will occur in January and February, 2012. “Scoping” will determine whether the EIS will consider (1) just the impacts on the Cherry Point site itself, apparently based on the premise that coal will be airdropped to the terminal by aliens, or (2) all of the impacts caused by the project, including the impacts caused by increased coal train traffic through Bellingham.)

Mr. Ericksen said:

“On November 8^th -- I’m not going to talk about the campaign today, because it’s not a campaign event -- but I can guarantee you that the decisions that are made in February are decided on November 8. There’s just no other way to explain it when it comes to what happens in the world of politics. You can show up and, the number one rule of politics, I’ll give it to you quickly, it’s much easier to elect somebody who agrees with you than to change the mind of somebody who doesn’t.”

Bear in mind that SSA hasn’t even submitted a complete permit for its project yet. It submitted a permit that was rejected as incomplete by Whatcom County’s Planning and Development Services department. Not letting the lack of a permit stop it, SSA then engaged in some, er, so-called forestry activities, building roads and filling wetlands on the site without permits. As I’ve mentioned on this blog.

So how does Doug know that he supports the project?

Because he talked to “the people who advocate for it.”

To give Doug credit, he doesn’t mince words. Here’s what he said:

“That’s why I support the project, because I’ve met with the people who advocate for it and we know that it will be a good project for our region. It will be a very good project for our region, and working together we’ll get it accomplished.

I really appreciate your being here, and the key thing about it -- this is my last comment about November 8^th – and the key thing about voting in November and getting the right people in place to protect your rights is that on a beautiful day like this, you can be putting up your duck blinds and not having to go a meeting, because you know that you’ll have people elected who are going to stand up and keep their word on what they said they’re gonna do.”

That’s what the man said. He and SSA, working together, will get this project through no matter what. There is no reason not to expect him to keep his word, if he’s elected in November.

I don't know how many people in Bellingham will be putting up duck blinds when that happens. If Bellingham residents don't pay attention to the County races, though, they'll be the sitting ducks.