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.