Tuesday, July 19, 2016

Cherry Point, The Whatcom County Comprehensive Plan, and Existing Jobs

As you probably know for the last six months the County Council has spent the majority of our time reviewing and amending the County’s Comprehensive Plan. Before that the Planning Commission spent a few months doing the same. During all that time the one part of the Comprehensive Plan that has by far received the most public comments has been the section on Cherry Point that helps provide goals and policies for the industrial develop there. While the Council spent inordinate hours going line by line tweaking the language in all the other sections of the Plan, because of the pending bulk commodity pier permit at Cherry Point we were advised by our legal counsel to not get into issues around Cherry Point that could in any way impact our ability to make an unbiased decision toward that application.

In early May the U.S. Army Corps of Engineers denied the permit for the bulk commodity pier because they found the impacts of the proposed pier footprint would violate the Lummi’s usual and accustomed treaty fishing rights. Then in early June the Washington State Department of Natural Resources denied the application for an aquatic lease for the bulk commodity pier proposal “because the project cannot meet minimum requirements set forth in statute and rule.”

While the County still has a pending application for a permit for the bulk commodity pier, these decisions by the federal and state governments were interpreted by some members of the County Council as enough reason to start addressing the thousands of comments we had received about needed changes to the Cherry Point section of the Comprehensive Plan.

About a month ago I introduced a comprehensive rewrite of the Cherry Point section of the Plan to address requests from the general public as well as specific requests from the Lummi Nation. To date, those proposed amendments have not been considered by the Council in the same manner as all the other amendments have been, and to date I have not been allowed to explain why I believe they are important. Since it appears now that the Council will not take up these proposed amendments as part of the current comprehensive plan review, but punt those decisions into the future for several months, I want to publicly explain these proposed amendments now because of all the false claims made regarding them from people on both sides of the issue. One of the main claims made has been that my amendments would harm or eliminate the “current 9000 jobs” that Cherry Point supports. While that claim by Cherry Point industry is a great rallying point and scare tactic, I don’t believe my proposal does anything of the kind.

My amendments tried to accomplish five main things. Those were:

•  Editing the descriptive section of the Cherry Point chapter to more accurately reflect current knowledge of the importance of the area. My edits leave in place strong language regarding the importance of the existing Cherry Point industries to the health of the Whatcom County economy, but try to also provide some acknowledgement that since the last version of the plan was drafted a good deal has been learned about the importance of the area to the ecology of the Salish Sea, the treaty protected fishing rights of local tribes, and the historical, cultural, and spiritual importance of the area to the Lummi Nation. I also acknowledged, due to ongoing proposals to use Cherry Point for the export of various fossil fuels, the growing scientific evidence of the need to reduce the use of fossil fuels to protect the global climate as well as the health of the ocean. Nothing in the descriptive section of the Cherry Point chapter can affect jobs – it is just descriptive. Whether people and ultimately the Council agree with my description or want to describe it differently is certainly up for discussion, but it certainly does nothing to harm existing jobs at Cherry Point.

The real meat of the changes to the Cherry Point section of the Comprehensive Plan is in the four redrafted or added policies. These policies together are meant to strengthen the ecological protection of the Cherry Point reach from potentially harmful new development, to acknowledge existing laws, and to help the County better understand what options it has when it comes to controlling the types of hazardous products that can be handled at Cherry Point that must first be somehow transported through our community. Here is a brief description of each policy.

•  One policy (2CC-14) basically says that the County will undertake a study to examine what legal authority we have to “limit unrefined fossil fuel exports from the Cherry Point UGA above levels in existence as of July 5, 2016.” This is meant as a way for policy makers to get some clear legal advise on what we can and can not do regarding the transportation of unrefined products, such as crude oil, liquefied petroleum gas, or coal through our community for export to other countries. Our citizens are often demanding we do something to help combat climate change or make transportation safer, and many local governments are struggling with these complicated jurisdictional questions trying to determine what they can legally do without wasting taxpayers money in court defending laws that are most likely preempted by state or federal laws. Personally I think the County’s authority is fairly limited, but without some analysis the County Council has no idea what can and can not be done, and this policy is meant to help force answers to those questions. Portland, Oregon is doing a similar analysis right now. A study to help government understand its authority to control huge amounts of new, often dangerous, products moving into the community in no way undermines existing jobs.

•  Another policy (2CC-13) basically just acknowledges a long existing federal law, and seeks to make sure the County is not wasting taxpayer’s money processing and approving permits for things that will clearly not be allowed under that federal law. Nearly 40 years ago Washington Senator Warren Magnuson got passed an amendment to the Marine Mammals Protection Act to protect Puget Sound from the risks posed by increased oil tanker traffic. That existing law basically limits new oil terminals or expansion of existing terminals if those facilities would increase the amount of oil transported on Puget Sound and the Straits of Juan de Fuca. The entire Magnuson Amendment (217 words) is below so you can read it for yourself. The existing Cherry Point industries have survived and developed under this law for 40 years, so a new policy to ensure that the County is not wasting time or taxpayer’s money processing permits that conflict with this law will in no way change what existing industries at Cherry Point can and can not do, or harm any existing jobs. Below is the Magnuson Amendment, which is an EXISTING federal law that the industries throughout Washington already have to abide by:
33 U.S. Code § 476 - Restrictions on tanker traffic in Puget Sound and adjacent waters

 (a) The Congress finds that—
(1)  the navigable waters of Puget Sound in the State of Washington, and the natural resources therein, are a fragile and important national asset;

(2)  Puget Sound and the shore area immediately adjacent thereto is threatened by increased domestic and international traffic of tankers carrying crude oil in bulk which increases the possibility of vessel collisions and oil spills; and

(3)  it is necessary to restrict such tanker traffic in Puget Sound in order to protect the navigable waters thereof, the natural resources therein, and the shore area immediately adjacent thereto, from environmental harm.
(b) Notwithstanding any other provision of law, on and after October 18, 1977, no officer, employee, or other official of the Federal Government shall, or shall have authority to, issue, renew, grant, or otherwise approve any permit, license, or other authority for constructing, renovating, modifying, or otherwise altering a terminal, dock, or other facility in, on, or immediately adjacent to, or affecting the navigable waters of Puget Sound, or any other navigable waters in the State of Washington east of Port Angeles, which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington.
•  The third proposed policy (2CC-2) is just an amendment of an existing policy meant to ensure that developments at Cherry Point operate in harmony with the existing Cherry Point Aquatic Reserve’s Management Plan. The language I added expands on this some by adding specific additional requirements that would apply to new development to protect the shoreline, near shore wetlands, estuaries, and cultural resources of Cherry Point. These additional requirements would not affect existing operations or jobs in the area, and we would have to implement these with changes to the County Code that would also need to go through a public process.

•  The final proposed policy (2CC-10) is more significant because it changes the County’s current policy from allowing one additional pier at Cherry Point to holding the line at the current three piers. This was based on concerns for the health of the Cherry Point ecosystem, risks from additional ship traffic, and the recent Army Corps decision that made clear that the footprint of an additional pier would interfere with treaty guaranteed fishing rights. While this change in policy could reduce potential new jobs at Cherry Point, it certainly does nothing to harm existing jobs. The prime Cherry Point uplands would still be available for other types of industrial development, and many types of such development produce more jobs than bulk shipping terminals.

I hope this helps explain my intent, compared to all the baseless arguments made against these amendments. I have no doubt that if the County Council takes up these amendments some will be changed and some may be dropped altogether. That’s the way the legislative process works and I am fine with that. What I am not fine with is completely ignoring issues that many in our community have raised as critical to the review of Comprehensive Plan, a plan which is supposed to set the vision for Whatcom County for the years to come. My vision is a Cherry Point where industry thrives in harmony with the important Cherry Point environment, treaty fishing rights, and cultural resources. And a Cherry Point where job expansion is not based on impacting surrounding communities with excess transport of hazardous materials or by transporting those materials in less than state-of-the-art safe modes. And a Cherry Point economy based on a long-term sustainable vision that does not encourage increased climate change, ocean acidification, and other forms of global pollution by exporting unrefined fossil fuels.


  1. Thanks, carl. This is very helpful. Facts are useful, despite what way too many people seem to believe especially when those facts contradict some story a True Believer (any true believer) is trying hard to convince others to adopt.

  2. Carl,
    Thanks so much for offering your much-needed and very sensible amendments. Thanks also for your thorough explanation of what you propose and the effects these proposals might (or might not) have on existing and possible new jobs in the Cherry Point UGA.

    Eric Hirst

  3. I add my support. This is thoughtful and necessary and one of the reasons you received my vote.