DNR faults SSA Marine for Cherry Point work

Published on Wed, Aug 17, 2011 by Jeremy Schwartz

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This Whatcom County Planning and Development Services photo shows a portion of the clearing and grading done by SSA Marine contractor AMEC Earth & Environmental.

Seattle-base shipping terminal company SSA Marine has received more criticism from a state environmental agency after doing unpermitted work at the proposed site for a multi-million dollar shipping terminal.

The Washington State Department of Natural Resources (DNR) issued a notice to SSA Marine earlier this week saying the shipping terminal company violated state law when it authorized tree clearing and road grading at the proposed site of the Gateway Pacific Terminal, a $600 million shipping terminal slated to handle 54 millions of dry-bulk commodities, such as grain and coal, annually. The site sits south of Birch Bay near the BP Cherry Point refinery.

According to the DNR, SSA Marine cleared approximately 9 acres of trees and forested wetlands at the site without acquiring the necessary forests practice permit. The shipping terminal company, through subcontractor AMEC Earth & Environmental, cleared about 4 miles of dirt roads that were each roughly 15 feet wide.

“Ground disturbance with heavy equipment appears to have occurred within forested wetlands,” DNR officials wrote in the notice to SSA Marine. “Trees have been pushed over and stumps removed.”

SSA Marine vice president Bob Watters has admitted SSA Marine was mistaken in doing the work without obtaining the
proper permits. The roads were cleared so machinery used to take drilled earth samples could access the site. The earth samples were to be analyzed as part of SSA Marine’s environmental assessment of the area.

DNR communications director Bryan Flint said they could seek civil penalties against SSA Marine for the unpermitted work, but most likely will not because the violation is the terminal company’s first forest practices offense. He said DNR officials will work with Whatcom County staff to develop a mitigation plan for the wetlands that were damaged at the site.

In addition to barring SSA Marine from clearing any more trees until the proper permit is obtained, DNR officials will require the terminal company to reforest the area. According to state law, reforesting means the presence of an average of 190 healthy tree seedlings per acre that have survived for at least one growing season.

SSA Marine has until March 31, 2014, to return the land to reforested status as defined by the state. Flynt said he could not estimate how much reforesting the area would cost the terminal company.

On the heals of the DNR’s announcement, Jan Hasselman, a lawyer with the Seattle office of environmental law firm Earthjustice, sent a letter to Whatcom County Planning and Development Services requesting county planning officials impose a six-year development moratorium on the land in question. Hasselman argued the moratorium is not only the appropriate course of action, but required by county code.

“‘Timber harvesting on a parcel or parcels without a forest practices application or notification’ automatically triggers a six-year moratorium on any additional development on the site,” Hasselman wrote. “Imposition of the moratorium is nondiscretionary: The code directs that the director of planning and development services ‘shall’ be imposed where one of the conditions has been triggered.”

The establishment of such a moratorium prevents Whatcom County from accepting applications for development on the land on which the moratorium has been placed, Hasselman said. Since SSA Marine has not submitted a development application to the county, this means the company cannot submit one until the moratorium is lifted.

If the county planning director imposes the moratorium, county code allows the county hearing examiner to lift the development band after a public hearing, if certain criteria are met, Hasselman explained. One of the requirements for lifting the moratorium is the determination that the land developer, in this case SSA Marine, did not intentionally violate state forest practices laws.

“In our view, the county code reflects sound public policy: When a landowner violates the law,” Hasselman wrote, “it is fair and appropriate for there to be a ‘time out’ on additional development activities until all environmental harms have been mitigated and until the project proponent can prove that it did not deliberately circumvent the law.”

On August 3, Whatcom County announced fines against SSA Marine totaling $2,000 for the roads that were graded at the site without the necessary county permits and for the wetlands that were damaged.  County council member Carl Weimer first made the unpermitted work public after he posted a description of it on his personal blog on July 28.