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.”

SVCR Innings
Past Columns
Breached and Beached

May 10, 2017

The Calm Before the Storm

April 26, 2017

April Showers 2

April 19, 2017

April Showers

April 12, 2017

The Fix Flops

April 5, 2017

A Perfect Storm

March 29, 2017

Monopoly

March 15, 2017

Layers of Concern

March 8, 2017

The Fix Is In

March 1, 2017

Half Time

February 22, 2017

Washington v. Trump, 2

February 15, 2017

Washington v. Trump

February 8, 2017

Between East and West

February 1, 2017

Beachhead

January 25, 2017

Stormin’ ORMA

January 18, 2017

Stormwater Rising

January 11, 2017

Events
Today
Ski to Sea Book Sale

10:00am|Bellingham Public Library

BC Morgan Horse Show

9:00am| Northwest Washington Fairgrounds

What-A-Sho!

7:00pm|Bellingham High School

Twelfth Night

7:30pm|Philip Tarro Theatre

Julius Caesar

7:30pm|Miller Hall

Wild Things

9:30am|Cornwall Park

Seconds Sale

10:00am|Good Earth Pottery

Seaweed Beach Ramble

10:00am|Living Earth Herbs

Book Trailers

12:30pm|Ferndale Library

Valley writers

1:00pm|South Whatcom Library

Sin & Gin Tours

4:00pm|Whatcom County Tourism

Food Not Bombs

4:00pm|Downtown Bellingham

Ski to Sea Block Party

5:00pm|Boundary Bay Brewery

School of Rock

7:00pm|BAAY Theatre

WWU Orchestra

7:30pm|Performing Arts Center Concert Hall

Genre Legends

8:00pm|Upfront Theatre

Bellingham Farmer’s Market
Tomorrow
Ski to Sea Book Sale

10:00am|Bellingham Public Library

BC Morgan Horse Show

9:00am| Northwest Washington Fairgrounds

Julius Caesar

7:30pm|Miller Hall

Twelfth Night

7:30pm|Philip Tarro Theatre

Sin & Gin Tours

4:00pm|Whatcom County Tourism

School of Rock

7:00pm|BAAY Theatre

Genre Legends

8:00pm|Upfront Theatre

Pancake Breakfast

8:00am|American Legion Hall

Anacortes Farmers Market

9:00am|Depot Arts Center

Mount Vernon Farmers Market

9:00am|Riverfront Plaza

Bellingham Farmers Market

10:00am|Depot Market Square

Sumas Writers Group

10:00am|Sumas Library

Lummi Island Artists Studio Tour

10:00am|Lummi Island

Boating Center Open

10:00am|Community Boating Center

Low Tide Picnic

11:30am|Marine Park

Stones Throw Block Party

12:00pm|Stones Throw Brewery

Blossomtime Parade

12:00pm|Downtown Bellingham

Project Connection

1:00pm|East Whatcom Regional Resource Center

We Are WWU

6:00pm|Boundary Bay Brewery

Salsa Night

9:30pm|Cafe Rumba

Village Books Northwood Steak and Crab
Sunday
BC Morgan Horse Show

9:00am| Northwest Washington Fairgrounds

Twelfth Night

7:30pm|Philip Tarro Theatre

School of Rock

7:00pm|BAAY Theatre

Boating Center Open

10:00am|Community Boating Center

Back to the basics

7:00am

Ski to Sea Race

7:00am|Mt. Baker to Bellingham Bay

Rabbit Ride

8:00am|Fairhaven Bicycle

Images of Resilience Farewell

12:00pm|Whatcom Museum's Lightcatcher Building

Fairhaven Festival

12:00pm|Historic Fairhaven

Who's Afraid of Virginia Woolf?

1:00pm|Lincoln Theatre

Audubon at the Museum

2:00pm|Whatcom Museum's Old City Hall

Art of Jazz

4:00pm|Majestic

see our complete calendar »

Lester and Hyldahl Cascadia Weekly Subscribe Ad 1 Northwood Steak and Crab Bellingham Farmer’s Market Village Books Trove