Developers of the Gateway Pacific Terminal must apply for an entirely new shoreline permit if they want to build a facility capable of handling up to 54 million tons of cargo a year, including coal.
The decision from Whatcom County planners deals a setback to SSA Marine of Seattle, which proposes to build the terminal at Cherry Point, west of Ferndale.
The company says it has a valid 1997 permit for a smaller facility that could handle up to 8.2 million tons of cargo a year, not including coal (the permit mentions moving petroleum coke, iron ore, sulfur, potash and wood chips).
The company argues that the larger facility would simply require processing the application as a "revision" to the existing permit, and that the revisions would undergo the same level of scrutiny as a new application.
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Environmental groups, including Earthjustice, an environmental law firm, dispute that. The group said accepting the application as a revision would mean less public scrutiny, and would mean the project could avoid tough environmental standards because it would be reviewed under 1992 shorelines laws instead of newer ones.
The law firm represents Sierra Club, Climate Solutions, and ReSources for Sustainable Communities, a Bellingham nonprofit that opposes SSA's plans.
"The county made the right decision," said Jan Hasselman, an attorney at Earthjustice. "This is a company that has promised a full and open process, and it has promised the most rigorous environmental protections possible. Both promises rang hollow when they were trying to lock in their '97 permit.
"The bigger the fight this turns into, the more questions people need to ask about what's behind it," he added.
Whatcom County sent the letter announcing the decision after 5 p.m. Thursday, June 23. The letter, from county Planning Supervisor Tyler Schroeder, said a new shorelines permit is required under county law because the new proposal is "beyond the scope and intent of the original approval." County code requires that it meet that standard for a permit revision, he said.
SSA attorney William Lynn said he doesn't believe SSA is on a "fundamentally different page as the county is." They agree that the same section of county code applies, he said.
"I think the disagreement may be over the extent to which our existing permit is relevant to the review that goes forward," he said. The question is whether the new permit covers just the changes, or whether it covers the previously conceived project and the new changes, he said.
Thursday's permit decision is appealable to the county hearing examiner. Lynn said he doubted they'd appeal, but they'd talk with the county about the decision.
In the county's letter, Schroeder also wrote that SSA's application for a "major development permit" wasn't complete. Schroeder said some of the issues involved requiring the company to submit information as answers on the application form, rather than in a separate document. They also have to submit a $100 permit fee, title report, and five copies of the application.
Hasselman described those issues as relatively minor.
The project still faces a lengthy environmental impact statement process, through which the project will be reviewed by state and federal agencies and by Indian tribes.
Whatcom County government is taking the lead in the environmental process for now, but the county has asked the state Department of Ecology to either help the county or to take over the environmental review completely.
READ THE LETTERS
Read the letter from Whatcom County rejecting a revision to the 1997 shorelines permit for the cargo terminal.
Read the Earthjustice letter objecting to a permit revision.
Read the letter from SSA's attorney arguing the revision to the 1997 shorelines permit is within county code.