Birch Bay berm construction project facing more delays

By Stefanie Donahue

Construction on the Birch Bay Drive and Pedestrian Facility, also known as the Birch Bay berm, will likely be postponed until next year.

While the protect was originally supposed to start in September, Whatcom County doesn’t have the permits and property easements it needs to begin work on the 1.58 mile-long beach revitalization project. The project aims to protect the beach from floods and storm surges by adding about 130,000 cubic yards of material to create a more natural beach and safer paths for pedestrians and bicyclists.

It’s the second year in a row the project didn’t start as scheduled. The same thing happened for the same reasons in 2016.

The $11.5 million project was first proposed in 1975 as a way to restore the beach after the U.S. Army Corps of Engineers removed between 200,000 and 300,000 cubic feet of material from the beach for the Blaine Air Force Station and other facilities in the early 1950s.

In the last year, the county has obtained 22 easements but still needs easements from six owners of 10 properties. Owners of six of those parcels have agreed to a price but are waiting for their lawyers to approve, said Cody Swan, project engineer for Whatcom County Public Works. The project will pass over 40 separate properties.

“Negotiations for any kind of property rights can be lengthy and obtaining easements over waterfront property that is valuable and that in many cases involves multiple vested property owners, lengthens the negotiation time,” Swan said in an email. “Public works is committed to providing all owners with the time needed to evaluate the offers and to negotiate in good faith.”

At least some of the obtained temporary construction easements have expiration dates, Swan said. If construction isn’t finished before they expire, Whatcom County will need to go back and have those easements re-signed, Swan said.

But will property owners want to renegotiate after two years with no progress? Whatcom County doesn’t expect so, Swan said.

The county also requires several permits, but those mostly hinge on the National Environmental Policy Act (NEPA) permit. As part of that, agencies involved must assess the project’s impacts to local tribes and consult with tribes about artifacts at the project location.

The county originally scheduled a hearing on the NEPA permit for December 2016, but postponed it after deciding they hadn’t properly consulted with the Lummi Nation and other tribes about artifacts.

The county is negotiating with the Lummi Nation and several other tribes and agencies about how to handle cultural artifacts. The agencies involved are drafting a memorandum of agreement but there are some tough areas to reach consensus on, Swan said.

“However, all parties are negotiating in good faith,” he said. “We can see where this could be a lengthy process with a high potential to move into 2018 due to the issues involved and the number of signatories required.”

The way that excavated material will be handled is the main issue, he said.

Tourism and spawning fish limit when construction can happen in Birch Bay. The county has agreed not to work on the project during Birch Bay’s summer tourist season between Memorial Day and Labor Day, and they can’t work in the bay after February 15 because of spawning herring.

Although Swan said the delay will affect the project financially, he didn’t expand on the specifics in his email. In May 2016, the county council approved an extra $48,660 for the project due to unforeseen costs related to easement negotiations and cultural artifacts. Swan said the county hopes to start construction as soon as it has all the necessary permits and property rights.

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