Bellingham waterfront cleanup, new walkway still waiting for Lummi Nation approval

THE BELLINGHAM HERALDJune 16, 2014 

Cornwall Beach

A sunny day at Cornwall Beach captured in June of 2011.

MATT MCDONALD — THE BELLINGHAM HERALD Buy Photo

BELLINGHAM - Two key waterfront projects are still waiting for federal permits that have been stalled because of environmental and treaty fishing rights issues raised by Lummi Nation.

Those projects are the Port of Bellingham's $37 million environmental cleanup project in Whatcom Waterway at the mouth of Whatcom Creek, and the city's $6.5 million over-water walkway that would link Boulevard Park to the park planned for the Cornwall Beach landfill site to the north.

Neither project can move ahead without permits from the Seattle office of the U.S Army Corps of Engineers. Because of past federal court rulings upholding tribal treaty fishing rights, the Corps routinely submits permit applications in and around the fishing grounds to area tribes for review. Lummi Nation has raised objections to both projects.

Port of Bellingham Executive Director Rob Fix and Mayor Kelli Linville express optimism that they can find ways to satisfy tribal officials and get the projects built.

Fix said he and his staff are in "constant dialogue" with tribal and Army Corps representatives on the waterway project. He is confident that Lummi officials share the port's interest in dealing with the toxic legacy left behind by the Georgia-Pacific Corp. pulp and paper mill, which phased out operations in the early years of the 21st century.

"Keep in mind, they want a cleaner Bellingham Bay as well," Fix said.

The contaminant of greatest concern is mercury, used in the pulp-bleaching process. The cleanup strategy approved by the Washington Department of Ecology for the waterway calls for removal and disposal of the most contaminated sediments while covering other areas to prevent contact between mercury and marine life.

Some community activists have argued that the cleanup is not protective enough, and the tribe apparently shares that view, but the precise nature of Lummi Nation's objections are not clear. Tribal Chairman Tim Ballew did not respond to requests for comment.

Patricia Graesser, spokeswoman for the Army Corps, outlined the tribe's concerns in an email.

"The Lummi Nation has stated concerns about fishing areas and about the cleanup standard identified," Graesser wrote. "The Corps considers concerns regarding treaty rights as part of our trust responsibility. As long as discussions continue, the process continues. The Corps has not set a deadline for resolution."

So far, the tribal objections have delayed the start of the project by about a year.

In past rulings, federal judges in Seattle have recognized a legal requirement for broad federal protection of fishing grounds guaranteed to Lummi and other Western Washington tribes in 19th century treaties. In those rulings, judges have found that any new structure that blocks tribal fishing operations to any degree is not permissible if tribes object.

As Fix sees it, the waterway cleanup does not raise that kind of issue, because there will be no new structure created to interfere with tribal boats and nets.

"All we're doing is making Whatcom Waterway cleaner, which should be better habitat for the fish," Fix said. "We're not putting structures in the water."

The depth of the waterway will remain the same, Fix added. That is partly because dredging a deeper channel would add millions in cost. But a deeper channel could stimulate additional barge traffic. While the barge traffic might generate revenue for the port and jobs for waterfront workers, Fix said it also would be one more issue to negotiate with Lummi Nation, since barges would potentially disrupt tribal fishing nearby.

In recent years the tribe has objected to at least one other project involving vessel traffic in Bellingham Bay. In 2009, Fairhaven Shipyard was ready to begin operation of its submersible barge, which can be towed out into the bay to lift large vessels for servicing. Lummi Nation temporarily blocked the issuance of a Corps permit for the activity, citing disruption of tribal fishing.

The tribe and the shipyard later reached an agreement that allowed the barge to operate. Terms of that agreement were not disclosed at the time, but a copy of the agreement in port files indicates that the shipyard agreed to pay the tribe a $10,000 annual "gear loss fee" plus $2,000 for each barge operation in the bay.

Since the cleanup involves no new obstructions and no vessel traffic increases, Fix believes there is some hope that the Army Corps could approve the cleanup work even if Lummi Nation would prefer a different cleanup strategy that they believe would be more protective of the environment. Fix hopes the cleanup work could begin as soon as August 2015.

Unlike the port, Bellingham does want to put a structure in the water: a curving 2,350-foot walkway. If it is built, it would enable people to stroll or cycle along the edge of the bay from Cornwall Beach, at the southern edge of the redeveloping central waterfront, all the way to Fairhaven via Boulevard Park.

Mayor Linville acknowledges that this new structure would make it impossible for tribal gillnetters to drift through the area, as they sometimes do. To compensate for this loss, the city has proposed removal of some portion of the old cement plant structures, in place for decades on the north shore of the bay. Doing that would make some additional area at the north end of the bay accessible for tribal fishermen, to make up for what would be lost if the Boulevard-Cornwall walkway is built.

But so far, the tribe has not accepted city proposals, proposing a more extensive and expensive removal of cement plant structures that goes beyond what the city has proposed. Linville said the city hopes to preserve some of the old structures for eventual recreational use.

No such issues arose when the city built an earlier section of bayside walkway that links the south end of Boulevard Park with the rebuilt Taylor Dock near the Chrysalis Hotel. That project was competed in 2004.

Leslie Bryson, design and development manager for the Parks Department said the delays in getting that earlier project built involved negotiations between the Washington Department of Natural Resources, which controls offshore acreage, and the Washington Department of Ecology. There was no delay in getting Army Corps approval.

"As far as I know, we heard nothing at all from the Lummi," Bryson said.

Like Fix, Linville says she is optimistic that the tribe and city will reach an agreement that allows the project to move forward.

"I think that both the tribe and the city have environmental principles, that they would like to make the community better than when we got here," Linville said. "We would much rather partner with the tribe and work together on our shared goals."

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