Cherry Point coal port study process remains on hold

THE BELLINGHAM HERALDJanuary 19, 2014 

coal train

A Burlington Northern Santa Fe engine pushes a train load of coal through Bellingham, Wednesday, Jan. 15, 2014.

PHILIP A. DWYER — THE BELLINGHAM HERALD Buy Photo

Almost six months after regulatory agencies made their decision on the scope of environmental study for a proposed Whatcom County coal export terminal at Cherry Point, the study process itself has yet to begin.

Tyler Schroeder, Whatcom County planning manager, said the work on the first draft of the wide-ranging environmental impact statement for the Gateway Pacific Terminal won't start until the companies proposing the coal project sign off on a contract they are now reviewing. That contract spells out what information needs to be gathered for the study, and how the companies will reimburse both Whatcom County and CH2M Hill, the company hired to conduct the environmental impact statement.

Both terminal developer SSA Marine and BNSF Railway Co. are reviewing the study plan and its cost, Schroeder said.

BNSF has proposed building a second track to beef up its existing spur line that already connects its main north-south line to existing Cherry Point industries. The impact of the increased rail traffic to the proposed terminal is one of the issues that will be studied. As many as nine trains per day, loaded with coal and perhaps other cargoes, would reach the site via the rail line through Bellingham and Ferndale, and return on the same route.

"I didn't expect this contract phase to take so long," Schroeder said, but he added that he believes the companies will sign off on the contract within the next few weeks and the environmental impact statement process will begin.

That process is expected to take 13 to 16 months and will cost SSA and BNSF between $6 million and $8 million, Schroeder said. He stressed that the contract is worded to make sure that the companies pay all those costs.

SSA Marine Senior Vice President Bob Watters said he too expects the contract to be approved soon.

Because of the cost, Watters said the contract must be reviewed by SSA's board of directors, which will meet in the next few weeks. The environmental impact statement should be underway in February, Watters said.

In a typical environmental impact statement process, the next opportunity for public comment would be after the first draft of the document is completed, Schroeder said. But given the extraordinary amount of public interest in Gateway Pacific, Schroeder said county planners will be looking for ways to provide the public with regular updates on CH2M Hill's progress.

Once the first draft is done, a wide range of government agencies, environmental groups and citizens will have a chance to offer comments and critiques, and the final version is supposed to address any issues raised during the comment period.

The environmental impact statement is not the only aspect of the Gateway Pacific project facing a delay. Also on hold is a plan to repair a small portion of the site where a contractor working for SSA Marine cleared land for geotechnical work in mid-2011 without the required permits.

In the months that followed, SSA and federal, state and local agencies agreed on a plan to fix up the area, but that work also requires permits. The sticking point is a permit from the U.S. Army Corps of Engineers that is getting additional scrutiny because the affected area has been identified as the site of an ancient Lummi Nation settlement.

To comply with the National Historic Preservation Act, the Corps is consulting with Lummi Nation to develop an agreement on how to avoid any further disturbance of the sensitive area when workers return to repair the earlier damage, said Patricia Graesser, a Corps spokeswoman in Seattle.

Discussions between Lummi Nation and the Corps are ongoing, but so far there is no agreement and no deadline to get one, Graesser said.

SSA's Watters said he expected the issue to be resolved "in the near future."

But late Friday, Lummi Nation issued a three-paragraph statement that made that seem unlikely.

After noting that the site has been identified as culturally significant for many years, the statement says, "The Lummi Nation determined not to enter in an agreement to mitigate the damage, based on the principle that monetary value cannot be placed on our cultural history."

It was not immediately clear whether Lummi Nation's stance would prevent the Corps from issuing a permit for the mitigation work.

When Lummi Nation took a strong and seemingly unshakeable position in opposition to Gateway Pacific Terminal in September 2012, tribal leaders made it clear that concern about the cultural site was a major reason.

The county first granted SSA a land disturbance permit for the repair and reforestation work in the area in October 2011, but the issue with Lummi Nation and the Corps has kept the company from doing the work. As a result, Schroeder has granted four extensions of the county permit.

That action has been challenged by David Stalheim, a former county planning director. In an appeal to the Whatcom County Hearing Examiner, Stalheim contends that county law allows only one such extension.

Stalheim's appeal also contends that the county should have imposed a six-year moratorium on any SSA development activity at the site as the penalty specified in state law for the 2011 violations that included some forest-clearing without a permit from the Washington Department of Natural Resources.

DNR reviewed the case and ruled that SSA's actions were not serious enough to trigger the six-year moratorium. Stalheim's appeal says DNR's determination was wrong, and the county "erroneously relied on that determination" in failing to impose the moratorium.

Schroeder said the county will review Stalheim's appeal and take whatever steps are necessary to resolve the matter.

"It's in the interests of the county to get that reforestation work done," Schroeder said.

Reach John Stark at 360-715-2274 or john.stark@bellinghamherald.com . Read the Politics Blog at bellinghamherald.com/politics-blog or get updates on Twitter at @bhampolitics.

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