Sunday, July 31, 2011

Cherry Point Clearing Questions Asked

Hi all,

Thought you might be interested in this letter (below) I sent to Whatcom County Planning and Development Services this morning trying to get answers for the many questions that have arisen from the clearing at Cherry Point. I'll let you know what I hear.


To: Sam Ryan, Director

Whatcom County Planning and Development Services


RE: Questions Regarding Clearing at Cherry Point

Hi Sam,

Ever since I alerted Tyler to the clearing at Cherry Point, and then made that information available to the public to ensure everyone was on the same page I have been barraged by valid questions from the public. I would like to get written answers to the following questions as soon as possible, and if PDS would like I would be glad to make time available in the Natural Resource Committee next week for an update on this situation.

From my brief walk through the area (you should have received the map and pictures which can be found at: it appears that SSA/PIT has pushed through somewhere in the area of 2.5 miles of roads clearing 4-5 acres. Any clarity you can provide about this clearing would be greatly appreciated.

When I spoke with Wayne Fitch he said that SSA/PIT had been given written approval for some work to install monitoring wells in 2008. Please provide a copy of that approval. It has been reported in the media that SSA believed they had approval for this recent clearing because of their previous 1997 Permit. Was the 2008 approval for monitoring wells part of the previous permit, and if so did the approval for monitoring wells include the area east of Gulf Road and between Lonseth and Henry Roads? My remembrance of the previous permit and settlement agreement was that there was only a small amount of wetlands that would be impacted – in the 5-6 acre range – so how could this larger clearing be part of that permit?

Wayne told me that this recent clearing did not meet the requirements of the 2008 approval. Is that still the opinion of the County?

Did SSA/PIT notify the County before the start of this recent clearing? When did the County first become aware of these recent land-clearing activities?

It seems to me that this level of disturbance would have required review under SEPA. Was there a threshold determination? If so, I would appreciate it if you would provide the relevant documentation. If you believe that no new SEPA review was required, please provide the SEPA documentation that addresses these impacts.

Have the County’s Development Standards (WCC 20.80.630) been met? If not, what compliance or enforcement actions will be taken? If you believe that these standards do not apply, please explain why not.

What are the limits on clearing for such monitoring well activities or "geoexploration?" For example, can SSA, legally clear cut all 1,100 acres they own out there under this term, or is there a limiting number? Where in our regulations is this clear, or where is that number recorded? Please show documentation if it is not part of the 2008 monitoring well approval I already requested.

The County's wetlands delineation files and SSA Marine's project documentation both clearly show the presence of wetlands in the areas where these swaths were cleared. Do you agree that monitoring well activities or other geoexploration is not an exempt activity under either the County’s Critical Area Ordinance (see WCC 16.16.225 – 235) or Land Clearing Requirements (WCC 20.80.737)? If relevant critical area and land clearing requirements have been violated, as appears to be the case, what steps will the County take to enforce its ordinances as required by the Whatcom County Code?

I am unclear as to whether SSA can still be doing work based on their previous 1997 permit, or whether since they have declared new intentions and the County has ruled that the previous permit no longer covers their new intentions work on that previous permit should no longer be taking place. What is the County’s opinion on this question?

If SSA’s recent activities are justified by the 1997 permit, will PDS ensure that all of the terms, obligations, and limitations of the 1997 permit are met, including (1) compliance with the contractual obligations set forth in the Settlement Agreement, and (2) limitations on the size and commodities that will be handled at the proposed terminal?

-For example, Paragraph 2.1 of the Settlement Agreement states that “PIT {Pacific International Terminals] will implement and comply with all of the provisions of the PIT Wetlands and Habitat Mitigation Plan set forth in Appendix A [of the Settlement Agreement].” Has this contractual obligation been met?

- Paragraph 2.8.a states that “PIT has committed to using best management practices and has submitted draft plans to avoid and/or minimize the environmental impacts of construction and build-out.” Did this geoexploration and accompanying road construction comply with “best management practices”?

If SSA/PIT has breached the Settlement Agreement by failing to meet its contractual obligations, what recourse does the County plan to seek for this breach?

From my limited understanding of DNR forest practices it appears that SSA should have filed a forest practice application with DNR. Is this correct? Was such an application filed? Has DNR been notified regarding this clearing? Under the County’s forest clearing regulations, isn’t a development moratorium now required, in light of the unauthorized clearing?

Are there other activities that SSA is still taking under the 1997 permit? If so, please provide a list of those activities and copies of any approvals, permits, disciplinary actions, or other written agreements that pertain to ongoing activities.

Has the Department of Ecology been made aware of this clearing activity, and if so has the County been informed of any concern they may have regarding water quality impacts to public waterways?

Since the following statement is in the Project Information Document on Page 5-68 (

"A Jurisdictional Determination by the US Army Corps of Engineers (USACE) issued on March 5, 2009, confirmed the extent and location of delineated wetlands on the Pacific International Terminals property. The USACE also determined that all aquatic features, including wetlands, streams, and ditches, on the Pacific International Terminals property are jurisdictional because they either abut or are adjacent to unnamed tributaries of the Strait of Georgia, a traditional navigable water. More details on existing wetland conditions can be found in the Wetland Determination and Delineation Report (AMEC 2008). . . .

Wetlands comprise approximately 530.6 acres, or approximately 49 percent, of the Pacific
International Terminals property."

Has the U.S. Army Corps of Engineers been made aware of this clearing activity, and if so has the County been informed whether the Corps has issued permits allowing the destruction of these wetlands for these purposes, and if no permits have been issued is the Corps investigating these issues? Who at the Corps would be responsible for such investigation?

I am sure you are well aware that a significant number of people in Washington State have concerns with the public process set up by the Governor to review SSA’s new proposal. There are also many people here in Whatcom County that question whether the County has the resources or will to use the County’s enforcement provisions to adequately deal with environmental violations. Clearly, the degree to which state agencies and the County handle this current clearing situation in a transparent, expedient, and adequate manner will either help rebuild trust in government or further erode it. I believe clear answers to the above questions will help this process rebuild trust.

Thanks for your help with this mess. I will be in DC Monday through Wednesday this week and hard to reach. Answers to these questions can be emailed to me. For documents that cannot be emailed, I will pick them up in the Council office on Thursday. If it would be easier to just post these questions, and the answers and documentation on the SSA website that PDS has set up that would also work just fine.

Thanks again,

Carl Weimer, Member

Whatcom County Council

District 3

cc: Pete Kremen , David McEachran , Roxanne Michael ,, "Ted Sturdevant", Grout, Richard (ECY) , "Jeannie Summerhays", Wenger, Barry (ECY) ,,,,, Barbara Brenner , Sam Crawford , Ken Mann , Kathy Kershner , Tony Larson , Bill Knutzen , Carl Weimer , Dana Brown-Davis


  1. Thanks for your diligence as our county councilor, Carl. Looking forward to hearing how PDS responds to your concerns.

  2. Hi all,

    I just touched down in DC and was alerted to the fact that information from the the County and SSA that relate to all of this is now posted on the County's website at:

    Top documents on the left hand side of the chart.Thanks to the County for posting these!

    Too hot back here, and I have to go do pipeline stuff now


  3. If SSA did not have a Forest Practices Application they are also in clear violation of DNR Law. Please contact the DNR so they may enforce their regulations.