Whatcom County Council - Issue of the Week

Thursday, July 28, 2011

Cherry Point - Full Disclosure

Hi all,


Once, or sometimes twice a week I walk my dogs at Cherry Point. It’s the best off leash dog park around and they love it.

As many of you probably know Cherry Point is a real conundrum for County Council members these days. While many are allowed to read about and attend meetings regarding the proposed SSA coal port, Councilm
embers have been advised by our attorneys to stay as blissfully ignorant of the entire proposal as possible. Since we may ultimate make the decision on whether that coal port goes in or not we are supposed to maintain our "appearance of fairness" by doing our best not to form an opinion about the proposal until the process plays itself out and all the information from all the different parties is given to us to make our decision. If we are seen attending anti-coal forums or having private lunches with Craig Cole from SSA, someone could challenge our impartiality and ultimately our right to be part of the decision.


Well now my dog walking adventures have put me between a rock and a hard place regarding this appearance of fairness. While wandering around Cherry Point a couple week ago we noticed that someone had started clearing parts of the wetlands on the SSA property at Cherry Point. I thought that was odd since the Council had just recently been told by our planning staff that to date SSA had not even submitted a complete application for their project, let alone been given permits to start clearing anything. So my dogs and I investigated a little and what we found was somewhere in the area of 2.5 to 3 miles of new roads have been cleared through the wetlands at Cherry Point in the exact location where the new rail loop would be placed to dump the coal. Here is a very basic map of where the clearing has occurred.



It would appear that based on the length and width of the new roads that about 4.5 acres of wetlands have been cleared to push these new roads into the wetlands (2.5 miles of road x 5280 feet x 15 foot wide roads / 43,560 square feet per acre). Here are some pictures of these new roads.




Last week I checked with the County's Planning and Development Services (PDS) since they are the ones that are permitting this project and should know about such activities on the site. They did not know about this clearing and road building, but said they would be in the area the following day and would stop by and take a look. When I checked back with PDS a couple days later they said that yes the clearing and road building had been done without proper permits, and that the company had been told to apply for a clearing permit after the fact and had been told to restore the site. PDS also said they had contacted the Department of Natural Resources in case some form of forest practice application should have been obtained. They were very surprised that SSA would have done this without the proper authorization. They said the roads had been put in to drill some monitoring wells. Here is a photo of one of those drilling sites at the end of one of these new roads.


They also said that SSA had asked for and was given written permission in 2008 to drill some monitoring wells, but that permission did not include permission to clear vegetation or do anything near this level of ground disturbance. That made sense to me because over the course of the last couple years my dogs and I had seen a number of monitoring wells go into the fields and along the edges of the forests at Cherry Point. Those monitoring wells disturbed very little, and are within this time frame, so I assume those were the wells that PDS gave SSA permission to drill. Here are some pictures of those earlier wells.

















So what happens now because of the unpermitted clearing and road building? How much damage has this done to the wetlands that a good deal of the pending environmental review would be concerned with?


Those questions, and I suspect more, are for someone else to figure out. I don't really even know what part SSA played in this clearing. My purpose pointing this out to PDS was to make sure all the County rules were being followed. My purpose posting this information here, and submitting it to PDS and all my fellow councilmembers is to make sure we all have this information for whatever it is worth as part of our future decision making, and that I am not the only one that has this information. Full disclosure accomplished?


The coal port proposal will go through tons of analysis on a whole range of important issues, and the wetlands disturbed by this unpermitted clearing is only one issue. I do find it more than a little disturbing that a company that has been claiming they will build this huge project in an environmentally friendly manner that far exceeds how such facilities have been built anywhere else on earth made such a substantial permitting blunder when they know they are under a public microscope. Hopefully they can do better from here on out!


Here are a few more pictures from the clearing.






















































































































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Update 7/31/11


Buddy (the County's chief compliance officer) was up way too early this morning wanting to get back to Cherry Point to continue his nosing around.


We got out there early enough to run into a couple of deer and a coyote, and saw some large flocks of goldfinches in the fields. We walked west on Henry Road from the closed gate at Gulf Road (this is still a public road even past the locked gate).


We found some additional clearing on the parcel just west of where the clearing above occurred. This clearing runs parallel to Henry Road from nearly Gulf Road to the top of the bank of the creek that divides this parcel. Below is a map.



This probably represents about another quarter acre of clearing. Here are some pictures of it.



47 comments:

  1. SSA is not a good partner for our cities, county, or state. It has no other goal than to maximize profits without regard for laws or the environment. I would not be surprised if they have an entire department dedicated to evaluating the cost/benefits of breaking laws with the intent to pay penalties (the 'do what you want now and ask forgiveness later' policy). When the penalty is not severe enough to make the individual/company fear the ramifications of their actions, this is what happens. If the penalty was that they were done, out of the game, no future consideration to their permit because they did not play by the rules, I'm sure this would not have happened. SSA has been around a lot longer than most of us with regards to these matters and they know exactly what laws to break and which one to not. Shame on us for tolerating it. The residents of this county must make it clear by their votes and their voice that tax payer dollars will not be used to improve rail so that SSA Marine can increase its profits and leave us with polluted air and water. This is our communities and our homes, NOT THEIRS!

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  2. I'm sorry Carl, but you really have it all wrong. SSA did the test wells in a proper manner. These 'roads' as you call them are a mystery. Actually the grid that you map out is nothing but a variation on crop circles. Crop circles are notoriously ideographic and may be viewed from space. They are messages. In this case the etching is in a forest and would more aptly be identified as a "Forest Ideogram". Ideograms are picture stories. Anyone familiar with ancient heroglyphics or even Chinese can easily decipher this universal language.
    Universal ideography uses simple pluses and minuses as the basis of language. It was Gottfried Leibniz, a philospher who after reading the Chinese I Ching, introduced the binary system of plus and minus to the western world. Shortly thereafter IBM, Bill Gates and Stephen Jobs figured out how to make a fortune off of this. But I digress.
    Communicating in a straight strong line or a broken, dashed line is a statement. Herein with this ideograph we have four bold straight lines, clearly a message that we are here settled in with a great deal of strength, The little diagonals at the base are a sign of strength on feet. Our signalers are mobile. This picture tells the story of those who are there with great power and the ability to move about. But alas at the bottom is a line that penetrates downward as if to the root of the earth itself. But as you can see the message allows that the powerful entity has twice as much energy to counter the pull, but relates that there counter weight is rootless, disconnected and not yet at the top level.
    The central rod gives the measure of give and take that takes place on this planet. The top rung unweighted reveals the tenuousness and ambiguity of their position. Seemingly inscrutiable this is a quite simply a signal that they are confronted by dynamic tension and unforseen difficulties.
    Think of it all as a bit of space age graffiti. You know, the Sheriff makes a point of checking out grafitti in order to keep track of gangs that would disrupt our society. Yes yes, but don't forget the Whatcom County motto, "It is easier to ask for forgiveness than it is to ask for permission." Where is the PA when we need him? Too bad we can't all be rich!
    I love it, the council guy gets dragged by his dog and the cat jumps out of the bag. Life is a mystery.

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  3. This is the logical cumlmination of the attitude towards compliance with environmental laws that has developed in this county over the past several years. We have a candidate for County Executive -- Doug Ericksen -- who's running on a "fight state and federal environmental laws" platform, and a culture that insists that land use and environmental laws shouldn't apply when property owners don't want them to apply.

    That said, the buck stops with SSA, whether it directly authorized the destruction of wetlands or not. It's the responsible party.

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  4. I'm not seeing SSA Marine acting in good faith here. If this is representative of how they are going to treat Whatcom County, then I now officially have trust issues with them.

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  5. I think PDS should review ALL permits issued to SSA since 1997 with a mandate to preemptively determine how each permit could be interpreted then implemented with or without permission, thus avoiding more 'surprises' like the ones in photos shown above.

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  6. Carl,

    I disagree with the concept that this is an issue County Council members cannot attend meetings on, communicate with people about, and so on.

    Cherry Point is a UGA and significant changes are taking place there that will require all sorts of actions impacting other areas of the point.

    As just one example, if you happened to read Clayton's proposal that the EIS include analysis of a container port at Cherry Point you will see the county's own studies pointed out a single use bulk port provides almost no business action surrounding the port while a container port provides for nearby growth in the form of warehousing, intermodal (ship to train to truck and various combinations) meaning many more jobs, etc...

    It is easy for someone to be to glib regarding the difference between a project mostly impacting only one parcel of land and one impacting many so council people have to be careful but, in the context of Cherry Point, the Comp. Plan goes out of its way to speak to the regional nature of any major proposal there and, more specifically, speaks to reuirements that facilities designed to support a development cannot be permitted or approved until the major development is masterplanned.

    I think the argument does not work in the other UGAs but, in Cherry Point, any major development has an intimate impact on the rest of the UGA by its nature so I think the Council should reject the notion they have to remain at arm's length on this issue.

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  7. I am with Jeff.., except I believe that these roads are the result of space alien hooligans....probably the very same ones that have been tagging Trillium's properties.

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  8. Thank you for posting. It is not fair and will not lead to the best outcome for all involved for attorneys to advise you to wait for all the relevant information to be presented by the parties.

    NO - you ARE a party - you live there. In addition, the better educated you can be, the better decision you will make. People elected you and they count on you to dig into stuff to make good decisions because they usually don't have the time or the ability to dig in.

    If you read information that is wrong or biased, you can solve that problem by reading MORE information. You can check your sources. If you do read all the information from only one side and form a bias, then that would be a problem, but it seems logical to expect that you would take care not to do that.

    We need to stop cities from allowing lawyers to give this kind of advice. It works against us all.

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  9. Classic layout for a coal terminal - stacker/reclaimers running parallel to the roads with about 5+ miles of conveyor belts, BNSF RR tracks running on the outside. Visualize 80-100 foot piles of coal in between the roads.

    for more images of a nearby terminal see www.paulkanderson.com

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  10. If permits are required to perform this sort of investigatory work, I can't imagine why SSA wouldn't have obtained them.

    I am a little troubled by your repeated use of the term "wetland", a term that has specific definitions (more than one in WCC, by the way) to refer to the property. It is entirely possible, even probable, that no wetland hydrology exists on that site.

    If no wetland study has been performed, I think you should edit your post to eliminate the term.

    Dave Onkels

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  11. Dave,

    Personally I don't care if we use the term wetland, swamp, forest, habitat or whatever. The point is that last time I talked with PDS no one had permission to be mucking around in there.

    The reasons I used "wetland" were because:

    1. I was up to my ankles in places out there even in July

    2. I knew from previous dealings with Cherry Point that wetlands are extensive on the uplands out there.

    3. The County's wetland map shows wetlands all over in that section

    I would think being on the Planning Commission that you would know where to find critical area maps such as wetlands, but for those who don't they can be found at: http://www.co.whatcom.wa.us/pds/planning/gis/gismaps/cao.jsp

    Those maps may not be totally accurate, but I suppose with all the work done at Cherry Point there is a good delineation map somewhere in all the Cherry Point files posted on the PDS website. I am not going looking for it, because well, I'm not supposed to.

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  12. You're the guy making the assertion, and you want me to look for maps?
    I assert that there is new guidance governing wetland delineations, and, in very likely, the site includes no wetlands.

    As I wrote, the term "wetland" has specific legal definitions, and you can't demonstrate that wetlands have been disturbed on the site.

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  13. So there you have it, Weimer. You're just wrong.

    And thanks Dave. Good to see you aren't going into this thing with prejudices like that creep, Weimer!

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  14. "Creep" is your term, Kirsch, not mine, and I'm surprised that Carl would have permitted you to use it.

    My question remains.

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  15. Dave,

    Like I said I am not supposed to be looking through the Cherry Point information, so perhaps someone else will help you answer your missing-the-point question.

    My dog does know a wetland when she sees one though, so I have posted her answer to your question at the bottom of my original blog post.

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  16. I do notice that you've added a "puddle" photo.
    My original post was limited to your use of the term "wetland" in a context in which I thought it might be inappropriate.

    I know there are puddles this year, but I assume you know the difference between puddles and wetlands.

    I just think your language was injudicious.

    We'll see where this goes.

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  17. Dave O says: "I assert that there is new guidance governing wetland delineations, and, in very likely, the site includes no wetlands."

    Dave apparently made that "assertion" without looking at any of the copious documentation that's available on the PDS website. Dave, here's the Gateway Pacific page link: http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/index.jsp

    Here's the link to the Project Information Document: http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/pdf/2011-02-28-project-info-doc.pdf

    Page 5-68 states:

    "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."

    And so forth. Wetland studies are also online.

    Perhaps Dave's point is that, if a wetland delineation were done NOW, after wetlands have been destroyed, it would be different from that done two years ago. I suppose that's a "change in science."

    Jean Melious

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  18. Dave,

    Now this from the County.

    "The Natural Resources director for Whatcom County, Wayne Fitch, told Crosscut Friday that the roads — including some grading of wetlands — were built without a current permit."

    http://crosscut.com/2011/07/29/coal-ports/21159/Work-on-proposed-coal-port-site-near-Bellingham-surprises-official-/

    Guess my dog was right

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  19. Thanks, Carl, for the visual on-the-ground metaphor of what SSA interests have been and are doing behind our backs, politically, economically, environmentally, illegally.

    In other news.... I wholeheartedly agree that having our Council Members unable to listen, discuss, and attend to these matters publicly is appalling. We need you to be able to state your own viewpoints, approaches and concerns.

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  20. Ms Melious,
    My original comment was limited to Mr. Weimer's use of the term "Wetlands."

    Nothing more.

    Since you want to go there, I wouldn't be surprised if wetland studies using best available science result in substantially reduced delineated wetlands using that best science and the currently mandated guidance with the latest Army Corps of Engineers and NRCS (NCTHS) manuals.

    Wetlands cannot be destroyed if they never existed.

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  21. I see hot (or at least warm) air from Mr. Fitch, who, I think, should have used more judicious language. I don't see that he claimed that a permit were required for this work, although I'd be surprised if it weren't.

    Just my opinion, of course.

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  22. Dave,

    You area, as always, trying to be a good and loyal footsoldier. That said, you need to coordinate your message with SSA's attorney. According to the Crosscut article that Carl referred to, his claim is that SSA, or the consultant, or someone, thought that the 1997 permit covered the wetland destruction.

    That is a fascinating position, in light of the fact that the County rejected the application to "revise" that permit and SSA didn't appeal. Perhaps SSA has decided to proceed with the 1997 project, which would be quite newsworthy.

    But in any event, his version of the facts is not the same as yours. He doesn't seem to be trying to claim that "new" science will miraculously change wetlands into something else.

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  23. Thanks for posting this, Carl. These guys are shady. Just imagine what they would do out there if they were exporting 50 million metric tons of coal every year. Or what they will do to the harbor, and the Salish Sea. These guys play by their own rules. Either fight them, everyone, or get used to getting reamed.

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  24. Am I the only one who gets the strong sense that David Onkels is unfit to serve as a planning commissioner for Whatcom County?

    What is wrong with this guy?

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  25. I read the comment posted by Dave Onkels in direct response to Carl Weimer's using the term wetlands. I think Dave is off the mark completely in trying to wrap Carl's knuckles about using the term wetlands and then giving us the definition of wetlands. It's unimportant as we all know that there are wetlands in that area. I think what is injudicious (to use Dave's big words) is the fact that somehow Dave Onkels was elected/appointed Planning Commissioner.

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  26. Thank you Carl for showing us what has already been done without permission. I agree with one of the comments saying SSA wanted to go ahead and do what they wanted and ask for forgiveness later. The penalty should be that there is no later for them. We already have an oil refinery here we don't need and don't want another industry like coal exporting with the potential harmful effects on our environment. These big companies do their damage and then are forced  to clean up after their mistakes and the operative word is try because the damage is lifelong to nature, wildlife, and us. I don't care if this proposed coal business creates tons of new jobs because it's not going to be good for anyone period in the long run. 

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  27. Thank you, Carl. I wonder how long this activity (and others) would have gone on, unnoticed, if your dog had not discovered it? We need a watchdog group out there on a regular basis. Is this something ReSources would be willing to mobilize?

    Shannon P.

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  28. "I think what is injudicious (to use Dave's big words) is the fact that somehow Dave Onkels was elected/appointed Planning Commissioner."

    Not elected, appointed by the Crawford council primarily for just this even handed, objective, restrained and considered approach to sensitive subjects.

    No agenda with Sam and Dave!

    And on the bright side, if Sam hadn't given us Dave Oinkels, we'd have to listen to Jean Melious go on like she knows something about environmental regulation.

    Thanks Sam.

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  29. Dave Onkels: An absolute disgrace to what it means to be a planning commissioner.

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  30. Thank you for the article. As a citizen of Whatcom County (who believes in development), I would still request that if laws were violated and that my county council recommend enforcement action, that an appropriate fine be assessed. I would also like public documentation produced that delineates how those laws were broken and steps taken to further enforcement of the laws to protect wetlands. It occurs to me that if any legal body cannot enforce laws designed to protect the environment for citizens of any county, lawsuits remain one of the few options available to citizens to access due process.

    Thanks again for your post.

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  31. What is most shameful is Dave Onkels acting like the bully kid on the playground name calling and doing "told you so" to Carl. Shame on you playing the protect big business line. How impartial is that?

    Anyone who studies the wetlands reports knows these are jurisdictional wetlands. And I am a wetland delineator and have often also walked my dogs at Cherry Point. Why are you calling into question the science of wetlands? That is as bad as those who call into question whether the release of carbon in extremely high amounts will affect our climate.

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  32. This is frightening. Loved the alien explanation. I'm putting on my tin hat immediately.

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  33. What is the potential fine amount to be levied against SSA?
    What are the timelines for SSA's restoration of the land?
    Who monitors the restoration?

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  34. Thanks for posting the facts you found, Carl. Any citizen, Councilmember or not, has the right to report facts, and report criminals who are breaking the law on an unbelievable scale. Law-abiding citizens get permits as required by law. There are reasons that permits are required by law. If anyone on the planning commission doesn't understand that, perhaps one of the County attorneys needs to explain it to them.

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  35. Here's a paraphrase of a comment that I posted at Northwest Citizen: http://www.nwcitizen.com/entry/ssa-already-started-construction-at-cherry-point/thanks/

    "“When applied correctly, (italics mine) the two manuals should result in the same boundary. When this is not the case, the applicant should consult with Corps or Ecology wetlands specialists to help determine whether the difference is appropriate.”

    That’s my point. I’ve read the studies and the original reports submitted in support of them.

    It is my opinion that the “wetland consultants” who prepared the original reports were not competent to do the job, and that the reports they submitted are false, and that the wetlands delineated by them are far more extensive than the geohydrology on the site would suggest.

    I further note that the report, if there is one in fact, is not submitted over the signature of a person licensed by the State of Washington to conduct hydrogeological studies.

    I think that my observations have implications for SSA’s actions going forward.

    I believe in science and law, and I think that neither SSA nor Whatcom County has been well served to date.

    For those who have offered the opinion that I resign for offering an opinion that differs from yours, well, give it your best shot. I have no intention to do so.

    I will fairly but critically judge all of the data relating to this project.

    Let's return to my original post: "If permits are required to perform this sort of investigatory work, I can't imagine why SSA wouldn't have obtained them.

    I am a little troubled by your repeated use of the term "wetland", a term that has specific definitions (more than one in WCC, by the way) to refer to the property. It is entirely possible, even probable, that no wetland hydrology exists on that site."

    Pardon me, but I do not think that my language is too incendiary.

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  36. Terese V,
    You wrote, "Anyone who studies the wetlands reports knows these are jurisdictional wetlands. And I am a wetland delineator and have often also walked my dogs at Cherry Point. Why are you calling into question the science of wetlands?"

    I'm not calling the science into question at all. I support science, properly applied, as a basis for the application for public policy.

    I would be happy to sit down with you and go through these reports, site by site, so that you might see my criticisms of the delineations that were performed for SSA.

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  37. If they did not get a Forest Practices Act Permit and the area is large enough they could be prohibited from doing further forest cutting for 6 years. If it is a matter of failing to follow Best Management Practices the fine will be substantial but monetary. They need to get a crew of 20+ people out there to install silt fences, install water bars, spread straw and other mitigation before it rains. Time is of the essence.

    Bob Aegerter

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  38. Thanks, Carl~

    As a council watcher and journalist, I can honestly swear that council attorneys often give opinions to their bosses that justifies--or at least minimizes the barriers to--what they understand the councilors want to do. Sometimes their opinions are so inscrutably evasive, hidden behind the magical screen of "expertise," that those present can actually hear the soft thud of their collective jaws dropping all at the same time.

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  39. Mr. Weimer,
    I believe that you edited my response to Terese V.
    Did you?

    It is my recollection that I asked her about her professional credentials to delineate wetlands.

    Is my memory correct?

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  40. Mr. Weimer,
    I also asked her about her assertion about the climate effects of carbon emissions, and you've apparently deleted that.

    Have you?
    You deleted my comment about posters here calling me names.

    Why did you do that?

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  41. If my guess about who Terese V is who I have good reason to suspect she is, she has very good credentials on welands, clearing and grupping, Best Management Practices, and proper heavy construction practices.

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  42. I see that answers are in short supply here at Carlvotes.

    It's ok.

    There are lots of opportunities to talk to Mr. Weimer in other venues.

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  43. Hi Dave,

    Yes you are correct I did not post a couple of your responses. You sent 4 or 5 in a group and I posted the ones that seemed most pertinent.

    I also have not posted 3-4 comments from other people who were trying to play "gotcha" with you.

    I think we have adequately beat the "were they wetlands or not" to death, so lets all move on. If people want to continue to try prove who is the smartest I encourage you to take it to Northwest Citizen or the Herald blogs.

    For the record I don't really think Dave was trying to "bully" me, just make a point he believes in. Others have provided their perspective on that same point. Personally I think it has been a distraction from the real issues. Hopefully the agencies with authority will make this all clear shortly.

    Finally, I do have to approve most every comment. I do this to prevent all the silly name calling that the Herald blogs have turned into. Some of the comments toward Mr Onkels have been on the verge, and others did not survive my veto. I even let Kirsch call me a "creep", because I feel quite confident that by the end of this week I will be called worse (but not on this blog). As Sam Taylor used to say - "Play nice"

    I will be in DC for the next 3 days at the request of the Secretary of Transportation, so moderation of comments may be real slow during that time. I do plan to post a new blog about this subject before I get on the plane at 5AM.

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  44. Carl,
    Thank you.
    It's always a pleasure to have a chat.

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  45. If SSA broke the law by proceeding with road building without proper permits they should be held accountable by the county, just like any private individual would be held accountable. We should all be following this issue to what the county's response is?

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  46. I don't see as many trees lying down as I would expect from that amount of clearing. Did they load the trees out?

    If they harvested timber without a forest practice permit, they could be eligible for a five year penalty moratorium on conversion of the site.

    That could slow things down.

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  47. Thank you for the information, Carl. What I am still waiting to learn is who is going to hold SSA Marine to the fire for acting outside the law? Imagine where I, just an ordinary, permit-abiding resident of Whatcom County, would be right now had I decided to clear a few roads through wetlands and forest? I wouldn't be laughing my way just a little bit closer to the bank, that's for sure. Carl, who is holding SSA responsible for their actions??? Anyone? Who is supposed to be???

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