RE Sources files notice to sue SSA Marine for water violations

Published on Wed, Oct 5, 2011 by Jeremy Schwartz

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The Bellingham-based environmental group that has been one of the strongest opponents of the Gateway Pacific Terminal has filed a 60-day notice of intent to sue the Seattle-based shipping terminal company proposing the project.

Representatives from RE Sources for Sustainable Communities announced earlier this week that they intend to sue SSA Marine in federal court for alleged Clean Water Act violations at the site of the proposed $600 million Gateway Pacific Terminal. The notice is based on unpermitted work SSA Marine did that cleared approximately 9 acres of trees and wetlands at the Cherry Point site just south of Birch Bay.

Bob Ferris, the executive director of RE Sources, said the group has been gathering the appropriate information to file suit against SSA Marine for some time, but decided to announce the notice of intent on Monday because of SSA Marine’s recent application for retroactive permits with the U.S. Army Corps of Engineers. Ferris said he hopes the lawsuit will encourage the Corps to enforce the law and deny SSA Marine’s permit applications.

“It’s ridiculous on its face,” Ferris said of SSA Marine’s attempts to seek permits for the surveying work after the fact.

The notice means SSA Marine has roughly two months to settle the grievances RE Sources has with the company, but Ferris said that is not likely to happen based on the current situation.

This move comes after two Washington state agencies criticized Whatcom County Planning and Development Services (PDS) for not requiring more of SSA Marine after they did the unpermitted survey work at the Cherry Point site. Whatcom County issued about $4,400 in fines and administrative costs against SSA Marine.

County PDS officials are requiring SSA Marine reforest the acreage the company cleared. The work, which stopped after about two weeks in July once the county ordered it halted, felled trees and destroyed wetlands on the property. The reforestation must be finished by March 31, 2014, and the trees planted must be allowed to grow for at least one year.

Ferris said Whatcom County was mistaken in not seeking a six-year development moratorium against SSA Marine after the work was revealed. SSA Marine should not be allowed to proceed with the terminal project with only minor fines from Whatcom County, he added.

Ferris could not predict what SSA Marine’s reaction to RE Sources intent to sue might be. He said SSA Marine’s early assurance that they were in their rights to do the surveying work then later admitting that they were in error shows they are not concerned much with their public persona.

“I don’t think modesty is in their game plan,” Ferris said.

In September, county planning issued a determination of nonsignificance for the wetlands repair SSA Marine must complete at the Cherry Point site. The determination means SSA Marine could be permitted after the fact for the site exploration work and no environmental assessment of the company’s proposed repair work would be completed.

Soon after the determination was released, representatives from the Washington state departments of ecology (DOE) and archeology and historic preservation (DAHP) sent comment letters to county planning supervisor Tyler Schroeder saying the determination of non-significance should be withdrawn because the repair worked described within does not go far enough.

Gretchen Kachler, assistant state archeologist with the DAHP, wrote that the determination the county presented contains no mention of the possible archeological resources that exist on the site. The area affected by the unpermitted work contains a state-recognized archeological site significant to multiple local native tribes, including the Lummi and the Nooksack. Kachler suggested the county and SSA Marine develop a new site repair plan that takes archeological mitigation measures into account.

The DOE, which is already extensively involved in the permitting process for the Gateway Pacific Terminal, said SSA Marine should need to repair an additional 2.9 acres of wetlands because of the time it will take for the habitat of the area to fully recover. In addition to second growth trees and undergrowth, the DOE said several older cottonwood trees and one large cedar tree were also destroyed.

“In this case, it will take decades for the habitat functions of the cleared wetlands to be replaced,” DOE wetlands specialist Susan Meyer wrote.

The DOE’s main concerns were with the wetlands mitigation plan SSA Marine submitted to county before PDS staff released the determination of nonsignificance. In a separate letter to SSA Marine, the DOE recommended an entirely new mitigation plan be submitted that contains the DOE’s additions, including the 2.9 more acres of wetlands repair and a monitoring program that tracks the health of the site for 10 years.

In a response to the state agencies’ comments, SSA Marine project management vice president Skip Sahlin wrote that Whatcom County’s critical areas regulations do not address how long an affected habitat will take to recover, called “temporal loss,” and that he does not see a way the DOE’s suggestions could be incorporated into the mitigation plan. SSA Marine is continuing to work with the DOE on how wetlands impacted can be repaired, Sahlin said.

In reference to the archeological concerns, Sahlin said SSA Marine informed the DAHP, the Army Corps of Engineers and the Lummi and Nooksack tribes of the damage to cultural resources the Cherry Point work could have caused. Sahlin said SSA Marine has completed a draft report detailing the cultural resources that may have been affected and has sent it to the other parties involved for review and comment.

“Based on these considerations, we do not believe it is necessary to include additional measures in, nor to withdraw, the [determination of non-significance] the county has issued,” Sahlin wrote.