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The Gristle

Tone Deaf

Wednesday, March 12, 2014

TONE DEAF: County Council this week was treated to a brief presentation on streamlining the regulations and permits required for wetlands… delivered by an architect of the worst, most costly wetlands permit disaster in Whatcom County history, now an advisor to county policymakers as a senior planner.

Cliff Strong was hired in September as a long-range natural resources planner by County Planning and Development Services (PDS) from eight months in purgatory as a planner for the City of Mukilteo. Prior to that, Strong was the lead planner for AMEC Earth and Environmental, a contractor for the geotechnical survey for the proposed Gateway Pacific Terminal at Cherry Point.

In June of 2011, mere weeks after inking an agreement with Lummi Nation, Pacific International Termals, Inc. (PIT), a subsidiary of SSA Marine, the project applicant for the GPT coal pier, tore through roughly four miles (nearly 12 acres) of forested wetlands in advance of receiving a permit for that geotechnical work. In that swath of destruction was the ancient fishing village and ancestral burial grounds considered sacred to the Lummi people. The unpermitted destruction—and the betrayal it represented “before the ink was even dry” on their tribal agreements—angered Lummi Nation and touched off tribal enmity to the project that endures to this day.

Project lead for AMEC in this period was Cliff Strong.

“The ‘clearing’ someone reported is part of on-going geotech investigations,” Strong wrote in as responsible party to PDS queries about wetlands destruction in July 2011. “From what I understand, for this phase of the investigation the geotechs have been working onsite since June 27 and will continue to work through mid-August. Most of the access paths have been completed, as has some of the borings. However, additional borings still need to be made.”

Environmental groups, including the Bellingham-based advocacy group RE Sources for Sustainable Communities, petitioned PDS for full enforcement of the law, which can include a penalty of a six-year moratorium on development on wetlands cleared without a permit. County PDS declined to apply that law, and instead fined PIT $2,000 in connection with the unauthorized land clearing and an additional $2,400 to cover county staff costs in dealing with the issue. The company was also ordered to repair the damaged areas.

Environmental groups considered the county response inadequate and in December of 2011 filed a lawsuit in U.S. District Court charging SSA Marine and PIT with violations of the federal Clean Water Act in connection with the destruction of wetlands in the GPT geotechnical survey. As part of their lawsuit, RE Sources sought the analysis opinion of Philip Lanterman, a construction industry consultant with experience in more than 200 major construction projects in the Northwest.

“PIT’s efforts to ensure legal compliance of the geotechnical investigation were so far below the standard of care that, in my opinion, they evidence extreme recklessness as to legal compliance or, more likely, an intentional violation of the law,” Lanterman noted in his report. “Based upon my experience and the construction practices standard for this type of project, PIT’s claim that the legal violations resulted from accident or oversight is not credible.

“Based upon my experience in the industry, it is highly improbable that a sophisticated port development company could accidentally begin significant in-wetland work based upon the vague belief that necessary permits were in place,” Lanterman continued. “In this sector of the construction industry, it is standard practice to make certain that all necessary permits are obtained before beginning major construction work such as the geotechnical investigation, which included clearing over four miles of roads and paths, impacting acres of wetlands know to be subject to regulation by multiple agencies.

“In my opinion, it is probable that PIT intentionally chose to proceed with the geotechnical investigation without necessary permits to obtain the expected economic benefit of securing the geotechnical information early in the project timeline, and PIT has actually received such benefit,” he said.

The Gristle is aware of the axiom that the employee is not the employer—(and for this reason this column rarely calls out staff)—but in Strong’s case it appears clear he held a very senior advisory position in the planning for the geotechnical work. Using Lanterman’s opinion as a guide, Strong’s role was grossly negligent or abetted a crime. In either case, the reward of his hire as a senior planner by PDS—after the department had already declined to fully enforce the law for the destruction of a heritage site—is a terrible insult to the Lummi people and sends an awful message about the seriousness PDS attaches to violations of permits and land-use regulation, going so far as to reward those who violate county laws and employ them to the task of weakening them further.

In February, County Council considered a proposal by council Chair Carl Weimer to periodically review contract amendments for the scoping work being performed for the Gateway Pacific Terminal project. Planning and legal staff leaped to warn of the appearance of fairness of that review, given council will issue the final decision on whether to permit the coal pier. Apparently, the concern of county administration with the appearance of fairness ends there.

The one hope anyone might have of the GPT proposal—in support or opposition—is that the permitting would happen fairly, in plain sight, with little subterfuge and hinky-stinky. Through this one caution the public might have confidence that the outcome was deliberative and clean, without favoritism, even if disagreeable. County PDS wrecked that trust with a really stupid hire. Poor planning indeed.

Tip of the pen to David Stalheim, and to Riley Sweeney, who beat me to it.

SVCR Don McLean
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