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The Gristle

Conversion of the mandatory to the discretionary

Wednesday, August 24, 2011

CONVERSION OF THE MANDATORY TO THE DISCRETIONARY: EarthJustice sent Whatcom County Planning and Development Services a letter last week, requesting the county apply the law and to enforce a six-year ban on additional development applications for the proposed Gateway Pacific Terminal (GPT) at Cherry Point. The notice from the influential environmental justice law firm follows determinations by the state Dept. of Ecology and the Dept. of Natural Resources that SSA Marine and its contractors illegally cut and cleared more than nine acres of forest land earlier this summer.

DNR joined DOE in serving notice to SSA Marine that the company had cleared the land without appropriate permits as part of the company’s geotechnical work in anticipation of building an export facility and pier at Cherry Point that could ship as much as 56 million tons of coal per year to Asian markets. The agencies’ notice triggered a statute under Whatcom County Code that imposes a six-year moratorium on additional development on that site, attorneys for EarthJustice said.

“Imposition of the moratorium is nondiscretionary,” the attorneys stressed. “The code directs that the director of planning and development services shall not [accept applications for development] where one of the conditions has been triggered. In light of DNR’s formal notification that GPT conducted forest practices without a notification, imposition of the moratorium is mandatory.”

Signs of land clearing and roadbuilding on wetlands were discovered by accident in July by Whatcom County Council member Carl Weimer. Curious because he understood no permits had been issued for such work, he requested that PDS investigate his discovery.

SSA admitted fault in clearing done as part of their geotechnical study, work they say must be done as part of the environmental review process, and issued a statement last week that pledged additional corrective action in cooperation with county and state agencies. In addition to remedial action agreed to by the company, the county imposed fines of $4,400 for clearing and roadbuilding undertaken without a permit.

“SSA Marine is working diligently with county, state, and federal agencies to correct all mistakes in permitting and onsite work related to our geotechnical investigations for the Gateway Pacific Terminal,” company president Bob Watters said.

“We are working to satisfy all the corrections asked by public agencies as quickly as we can,” he said. SSA Marine offered no direct commentary on the complaint by EarthJustice attorneys.

Whatcom County prosecutors wasted no time in issuing an opinion that the six-year moratorium does not apply in this instance.

County prosecutors argued that while contractors working for SSA Marine had violated the State Forest Practices Act, the violation was not of the type that must trigger the section of county code mandating the development moratorium of up to six years. Prosecutors argued that no land conversion had occurred as a result of the clearing, the operative trigger for the statute.

“Conversion is the trigger that gives a county authority to regulate forest practices,” prosecutors noted. “The state statutes are quite clear that the county may not regulate unless a full conversion has occurred.”

Prosecutors advised that PDS should take no action to enforce county code until or unless DNR finds that the activity constituted a conversion. The opinion of county legal services, reportedly bolstered by an associated opinion by state attorneys for DNR, persuaded PDS not to seek the ban.

It’s a twitchy opinion—one that requires public agencies to know, fully, the minds of private enterprises engaged in land clearing. It requires them to know with certainty that an illegal land clearing is intended to convert land to a use other than commercial forest production. The opinion imagines intent, in advance of enquiry, rather than simply delivering a (stern) method to discourage property owners from damaging forest lands in advance of an application to do so.

Importantly, the state statute cited by prosecutors as authoritatively preempting local regulations instead anticipates and authorizes those local regulations, provided such restrictions are consistent with state forestry practices and do not unduly prevent (permitted) timber harvests.

One wonders under what exotic conditions the local law as written, in the opinion of county prosecutors, might ever be applied. And yet, conversion to another use is exactly what the applicant SSA Marine has in mind as the ultimate outcome of the geotechnical work that led to the land clearing. Conversion is anticipated by the very work being done! That is why they are doing it.

“Imposition of the moratorium does not mean the GPT project cannot go forward for six years,” attorneys for EarthJustice clarified. “Rather, the County Code provides for a process wherein a hearing examiner may lift the moratorium after a public hearing. At the conclusion of a such a public hearing, the hearing examiner has discretion to lift the moratorium as long as various conditions have been satisfied, and upon finding that the applicant or its agents did not ‘intend’ to violate Forest Practices Act policies.”

The quick preemptive action of county prosecutors makes certain such a public review will not happen.It presumes at the outset and without further examination the company did not intend the land clearing to convert the propery to a different use. Perhaps they didn’t; but this is what the hearing examiner process was designed to explore and determine.

“In our view, the County Code reflects sound public policy,” Earth­Justice attorneys argued. “When a landowner violates the law, it is fair and appropriate for there to be a ‘time out’ on additional development activities until… the project proponent can prove that it did not deliberately circumvent the law.”

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