| Legal
eagles spar over real eagles and other birds
By
Jack Kintner
“It’s
like a Perry Mason movie in there,” said
Donna Lee Elke as she left last week’s Blaine planning
commission hearing, the second in a series devoted to weighing
issues connected to the proposed Seagrass Cottages on Semiahmoo
spit.
They
were reacting to Olympia attorney Sandy Mackie, representing
the project’s builder, Gepetto Properties,
who was cross-examining Western Washington biologist
Dr. John Bower, an expert witness called by the Pointe
at Semiahmoo Homeowner’s
Association, one of the parties that is questioning the
development.
This
was after Mackie finished his four-hours-plus presentation
of Gepetto’s case. Gepetto is being
represented in the proceedings by Trillium Corporation
of Bellingham, and Mackie’s presentation had
taken all of the first meeting two weeks earlier and
over an hour of last Thursday’s
to present.
When
Mackie finished, Seattle attorney David Mann took the
floor representing the Pointe at Semiahmoo Homeowner’s
Association. He immediately introduced Bower as an
expert witness on the impact that the project would
have on bird populations.
Trillium’s
material includes a Waterbird Impact Assessment (WIA)
that says the only adverse impacts the project would
produce are “relatively minor.”
Specifically,
the report concludes on page 25 that, “The
anticipated increase in the level of activity
as a result of the project is relatively minor in comparison
to the level of human activity already occurring around
Drayton Harbor and to the potential increase in public
use of the spit and Drayton Harbor tidelands as the
population in the area grows and demand for recreation
space increases.”
Bower’s
response was unequivocal: “I
believe the WIA is flawed in a number of important
ways,” he
said, reading from a prepared 10-page manuscript.
He said the WIA underestimates the impact that the
development will have on marine birds, shorebirds
and raptors in the immediate area. “It is my
opinion that the proposed development will significantly
impact marine birds and shorebirds and thus will
constitute a significant impact on the environment.”
Bower
began by criticizing the WIA’s classification
system of grouping seabirds, wading birds
and waterfowl into an over-all classification of “waterbirds,” preferring
the standard scientific classifications of
marine birds (those that forage and rest on the
water) and shorebirds (those that forage and rest
along the shoreline or on dry land), plus the raptors
that feed on them, “specifically
bald eagles and falcons,” Bower said.
“I
believe that the WIA conclusion that the
project is not expected to significantly
affect the usage of the analysis area by
waterbirds is incorrect,” Bower
continued, pointing out that the analysis
area defined on page four of the WIA is
inaccurate (labeling Semiahmoo Bay as Boundary
Bay) and so large that it avoids looking
at critical habitat loss in the immediate
vicinity of the project.
Bower
also said that the report underestimates human activity
and especially that of dogs, and that
the area proposed for development is right
now one of the least-used parts of the
spit. He faulted the report for saying
that birds could use other intertidal
feeding zones in Drayton Harbor during construction
because there’s no evidence that
Drayton Harbor is the same everywhere
in providing feed.
Bower
continued by saying that Drayton Harbor’s unique
importance to shorebirds and seabirds
is demonstrated by a two-year study he
conducted himself, corroborated by others,
that shows either less decline in species
than that suffered region wide or actual
increases in some species that are in
decline in other areas. In the last 25
years Brant have decreased 84 percent
regionally (roughly the northern half
of the Puget Sound area) but are up by
12 percent in Drayton Harbor and Semiahmoo
Bay. Surf Scoters have declined 45 percent
region-wide but only 17 percent in Drayton
Harbor and Semiahmoo Bay.
Bower concluded by saying that the
WIA should address impacts on the Peregrine
Falcons that feed on area shorebirds. Peregrines
are listed as an endangered species by
the state of Washington. Lastly, Bower
blasted the WIA’s author,
Biota Pacific Environmental Sciences
of Bothell, for having done no field work to support their conclusions. “…on
February 23 [they] clearly admitted
that a study based on field work is clearly superior to a study based on literature
reviews and interviews with people
familiar with the area,” Bower
said. Biota had said earlier that they
didn’t do
field work because they weren’t
paid to do it, leaving Bower with the
conclusion that such work should be
done in an expanded environmental impact
statement (EIS).
Mackie
tried to poke holes in Bower’s conclusions
during his cross-examination but
seemed to make little progress. At one point,
when Mackie had said that “the
eagle that roosts 30 feet away from
my backyard barbecue apparently hasn’t
read the material about how human
activity disturbs their habitat,” Bower
responded by saying that a statement
like that in itself reflected a lack
of information about how birds behave.
“If
you’d make a comment like
that you don’t
know what you’re talking
about,” Bower
said, in answer to one of Mackie’s
questions about how widespread
the disturbance was likely to be
as a result of constructing the
cottages.
Scientist
Linda Krippner of Adolfson Associates was introduced
as a rebuttal witness, but said
simply, in response to Bower’s
request for a new EIS, that a habitat
study such as this would adequately
serve since “this is
what the habitat study in an EIS
on that area would be.”
Mackie said after the meeting
adjourned that he felt the “hearing
went very well for us. We’re about 99 percent there
in terms of satisfying the city’s concerns.” He
added that cross examination is allowed in such hearings,
and that, “I’ll question the speakers at the
next meeting as well, though I won’t cross examine
them. But if they make extravagant claims, if someone says
they’re an expert on birds, for example, I may question
that, ask them how they qualify.”
Mann said he was quite pleased
with Bower’s testimony. “He’s
a true professional,” Mann
said.
Bower
said that he felt that “we made our case.
I’m
really surprised that no field
work was asked for or done,
and that no assessment of the
impact of residents between
their cottages and the water
was done.”
Semiahmoo
resident Trevor Hoskins said after the
meeting that “it seems
like Trillium is considering
just a small piece of something
where we ought to look at
all these impacts as a whole.
Also, we hear a great deal
about how their current plan
is not as impacting as the
original master plan, but
that’s
not the point!” Hoskins
said that the impact the
project will have is just
as damaging no matter how
it compares to plans submitted
over 20 years ago.
The
next meeting of the Blaine planning
commission is set for March
24, in the Blaine performing
arts center on H Street at 7 p.m. |
