County will not stop development at Cherry Point site

Published on Wed, Aug 24, 2011 by Jeremy Schwartz

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The Whatcom County planning department has announced it will not impose a six-year development moratorium against the owners of a site south of Birch Bay for which a multi-million-dollar shipping terminal has been proposed.

Whatcom County Planning and Development Services (PDS) will not seek the moratorium against Seattle-based shipping terminal company SSA Marine on the advice of county civil prosecuting attorney Royce Buckingham. SSA Marine wants to build the $600 million Gateway Pacific Terminal just south of the BP Cherry Point refinery.

Opponents of the terminal, which is slated to transfer materials such as coal and grain from trains to multi-thousand-ton transport ships bound for Asian markets, called for the moratorium after investigations of the site by county and state regulators concluded SSA Marine had cleared trees and graded dirt roads without obtaining the proper permits. The unpermitted work affected approximately 9 acres of the forest and wetlands at the Cherry Point site and was done to obtain drilled earth samples of the site in preparation for the necessary environmental review of the terminal project.

Though Whatcom County issued $2,000 in fines and charged the terminal company an additional $2,400 to recoup processing costs, Buckingham argued the six-year moratorium would not be appropriate because SSA Marine did not intend to “convert” the land to nonforestry use. That is, the company did not intend to remove the trees and build something that would be unfriendly to timber growth without permits. Buckingham referenced a Washington State Department of Natural Resources (DNR) conference note in support of this claim.

“[SSA Marine] stated that [the dirt roads] were temporary in nature and would be reforested while further potential permitting is underway,” DNR officials said. “The timeframe of this permitting process is likely three to five years.”

Buckingham contends conversion to nonforestry use is a key phrase because the DNR, which confirmed SSA Marine had done the work without a forest practices permit, did not issue a notice of conversion to the county. This notice, Buckingham argued, is what is necessary to trigger the county’s imposition of the six-year moratorium. Without the notice, state regulations governing when a moratorium can be imposed trump county code, which Buckingham admits allows a moratorium when less than a full “conversion” has occurred.

“However, local ordinances cannot regulate where state ordinances have prohibited regulation, and such is the case here,” Buckingham wrote in a August 19 letter to county PDS.

But the county’s move has drawn criticism from Bellingham-based land-use attorney Jean Melious and Jan Hasselman, the lawyer with Seattle-based environmental law firm Earthjustice who called for the moratorium in a letter to county PDS last week. The two attorneys argue state and county regulations do not conflict and that conversion to nonforestry use in fact took place.

In an August 18 letter to county planning supervisor Tyler Schroeder, Hasselman argued that though “conversion to nonforestry use” is a requirement of the state Forest Practices Act, DNR was mistaken in not issuing a conversion notice to the county. Moreover, SSA Marine’s long-term plan to build a shipping terminal on the site constitutes a conversion to nonforestry use.

“Indeed, given that [SSA Marine] has express plans to convert this site to a major industrial facility within the next few years, we think finding that no ‘conversion’ occurred is difficult to understand,” Hasselman wrote.

Hasselman contended the work done at the Cherry Point site meets the state’s definition of “conversion activities,” which are defined as “Any of, or any combination of, the following activities in preparation for nonforestry use of the land: Grading, filling, or stump removal.” Based on the evidence presented in the publicly available notices of violation against SSA Marine, Hasselman argued these actions took place at the Cherry Point site and, by the state’s own definition, constitute conversion to nonforestry use.

Hasselman, however, did not suggest that development at the site should be halted indefinitely. He said the Whatcom County Hearings Examiner could choose to lift the six-year moratorium before six years have passed if a public hearing is held on the issue.

“In conclusion, we believe that a review of the governing authorities directs that both DNR and Whatcom County conclude that [SSA Marine’s] activities constitute a forest conversion, triggering the six-year moratorium,” Hasselman wrote. “As we previously sought to emphasize, such a conclusion will not necessarily preclude additional activities on this site for the full moratorium term, but will ensure that the public’s interest is protected and that all the facts are made available before the project can proceed.”

Melious’ August 21 letter to county planning director Sam Ryan echoed Hasselman’s arguments and asked for clarification on why the county has decided not to impose the six-year moratorium. Melious argued the county code describing when a moratorium must be imposed is clear-cut and does not conflict with state law.

County code requires the moratorium be put in place when tree clearing is done without a forest practices permit, and Melious contended these regulations dovetail with state law on the issue. Moreover, she argued Buckingham left out key parts of state law when quoting it in his letter to county PDS arguing against the moratorium.

In other Gateway Pacific Terminal news, SSA Marine has submitted a construction stormwater general permit to the state Department of Ecology (DOE). This permit was required before SSA Marine started work at the Cherry Point site.

DOE spokesman Larry Altose said SSA Marine, by having the site under permit coverage, will be required to develop a stormwater plan designed to analyze any stormwater runoff that might be produced at the site. SSA Marine could face fines of up to $10,000 per day per violation without obtaining the necessary stormwater permit.

The DOE will be accepting public comments on this permit application until September 20. DOE officials will take the comments into consideration as they determine whether SSA Marine has met the necessary criteria for permit acceptance.

Comments can be emailed to Shawn Hopkins at shawn.hopkins@ecy.wa.gov or mailed to the Department of Ecology Attn: Water Quality Program, Construction Stormwater P.O. Box 47696, Olympia, WA 98504.