The Washington state Department of Transportation (DOT) will not make improvements to Marine Drive that were planned as part of a $2.8 million roundabout project after a lawsuit was filed last week.

The lawsuit, filed in Whatcom County Superior Court on behalf of Blaine Subway owner Dale Schrader and Blaine property owner Tom Bridge, claims the project requires an State Environmental Policy Act (SEPA) review because the work falls within 200 feet of a section of Cain Creek. The creek, he argued, constitutes a shoreline area and therefore requires DOT to obtain permits to do work there.

Project engineering manager Jay Drye said the DOT will still install the two roundabouts planned for Peace Portal Drive near the I-5 overpass but will stop short of making improvements to a 90-foot section of Marine Drive between the railroad tracks and that intersection. Those improvements would have included new sidewalks, road widening, gutters, streetlights and directional signage.

They will also forgo improvements to the I-5 southbound off-ramp such as repaving and signage.

“We’re not going to dispute this because we don’t think it’s substantial enough and it's not worth our time so we’re just going to cut that work out without question,” Drye said. “We feel like we’ve made a commitment to the community and the traveling public to get this done in 50 days and we want to follow through with that.”

Drye added that the DOT may obtain necessary permits sometime in the future to complete the remaining work. In the meantime, crews have already begun replacing the asphalt they removed.

“We basically patched it back together and put right back what was there before,” Drye said.

DOT engineers say the project will help ease traffic flow and is fully funded by the federal government and will complement border crossing improvements made by the General Service Administration.

Drye said the cuts won’t have a significant impact on the project’s cost or construction time.

The decision comes after an email sent by Bridge to Blaine planning director Michael Jones. Jones responded in an April 8 email saying Bridge is “quite possibly correct” and that the work on Marine Drive appeared to be within a critical areas buffer. Jones then sent a letter to WSDOT’s project manager requesting that DOT either comply or provide the city with information as to why they have not done so.  Jones gave him until April 20 to do so.

Barry Wenger, however, with the Washington state Department of Ecology, disagreed. In an email to Bridge, Wenger said that because Cain Creek is less than 20 cubic feet per second, it does not qualify as “shoreline jurisdiction” and therefore the 200-foot shoreline rule would not be measured from it.

Wenger said the 200-foot shoreline rule is measured horizontally from the ordinary high water mark of the harbor’s shoreline. He added that although the DOE has jurisdiction in issuing compliance orders, the department’s involvement is not likely warranted.

“In this circumstance, there does not appear to be a substantive compliance issue,” he said.

Blaine city manager Gary Tomsic said he was disappointed with the decision as the improvements to Marine Drive had been a priority project for the city and Port of Bellingham for several years. He added the improvements would have been fully paid by federal funds, which would save money from the city’s road improvement fund and that the section will be completed at some future date, the construction for which will disrupt traffic and access once again, most likely during high traffic summer times.

The same is true of the road leading from the Peace Arch Customs facilities to D Street, he said.

“Our goal was to get the project finished by the end of May so that we would not disrupt the summer traffic,” he said. “If someone can show me how the lawsuit helps the community, I would like to see it.”

A preliminary hearing on the injunction has been scheduled for 1:30 p.m. Friday, April 23 at Whatcom County Superior Court.