The company that would build a coal terminal at Cherry Point has until May 10 to respond to Lummi Nation’s request to reject the terminal.
SSA Marine received a letter April 10 from the U.S. Army Corps of Engineers asking for the company’s response, along with copies of information the tribe originally sent to the Corps to support its Jan. 5 request that the agency refuse to grant a permit for the terminal.
The Lummi Indian Business Council has argued that Gateway Pacific Terminal, which would export up to 48 million metric tons of coal a year to overseas markets, would disrupt Lummi fishing practices protected by an 1855 treaty and subsequent U.S. court decisions.
“If you believe a permit should be issued over the tribe’s objections, please provide your rationale” within 30 days, says the letter signed by Michelle Walker of the Corps and addressed to Skip Sahlin, vice president of project development for Pacific International Terminals, an arm of SSA Marine created to develop Gateway Pacific Terminal.
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The tribe “may or may not provide a response” to whatever rationale SSA Marine offers, the letter says. Lummi Chairman Tim Ballew could not be reached for comment Monday, May 4.
Once the back-and-forth between the tribe and SSA Marine is concluded, the Corps must determine whether the terminal’s impact on tribal fishing would be more than “ de minimis,” a legal standard that means too small to warrant a legal review.
“If the impacts are found to be more than ‘de minimis,’ you have the options of withdrawing your request for review of your proposal ... modifying your proposal so the ‘de minimis’ determination is no longer applicable or applying for a permit and (requesting) a permit decision from the Corps,” says the letter to SSA Marine.
“The Corps has final authority to determine if the proposed project exceeds the ‘de minimis’ threshold, whether a permit will be issued or denied, and if special conditions will be added to an issued permit,” the letter says.
SSA Marine has said the terminal’s footprint on state tidelands would affect 0.002 percent of the Lummis’ traditional fishing grounds. Lummi officials have responded by saying the figure ignores vessel traffic.
The Lummi request to the Corps came two weeks after the state Department of Ecology published a study in December predicting that 487 additional vessels per year coming to the Cherry Point area as part of terminal operations would increase the disruption to Lummi fishing near Cherry Point by 76 percent.
In a statement Monday, May 4, Craig Cole, senior consultant to the Gateway Pacific Terminal project, said SSA Marine is preparing its response.
“We strongly believe that this and other important project decisions must be made at the conclusion of the environmental review process,” Cole wrote. “Only at that point will the scientific record be fully established and all appropriate mitigation measures identified.”
Draft environmental impact reports at the county, state and federal levels aren’t expected until spring 2016. Lummi officials say they hope for and expect a decision sooner than that.
“We have done our analysis and the adverse impacts to this important site cannot be mitigated,” Ballew said February in a prepared statement. “We wait for the Corps to uphold its constitutional responsibility and deny the permit.”
In an email interview on Friday, May 1, Corps spokeswoman Patricia Graesser repeated the Corps’ position on its review, which is that the agency will take as much time as it needs.
“We don’t have a deadline for reaching a determination of the extent of potential impacts to the Lummi Nation’s usual and accustomed fishing,” Graesser said. “The Corps takes treaty rights seriously and will undertake due diligence to ensure we honor our trust responsibility to the Lummi.”