The company that would build a coal terminal at Cherry Point told a federal agency it needs more time to respond to a tribe’s request to shut down the project.
Seattle-based SSA Marine said in a May 12 letter to the U.S. Army Corps of Engineers it needs about 90 days to respond in full to Lummi Nation’s claims that the terminal and associated vessel traffic would interfere with the tribe’s traditional fishing practices, as protected in an 1855 treaty.
Skip Sahlin of SSA Marine said in the letter that the Corps needs to provide the standard the agency will use in its decision to reject or continue review of a permit for Gateway Pacific Terminal, which would export up to 48 million metric tons of coal a year. The Corps has said it will apply a “de minimis” standard to determine whether or not Lummi fishing would be adversely affected by the terminal. A de minimis impact would be so small as to not be worthy of a court’s consideration. Anything larger, the Corps has said, would justify shutting down the project.
Sahlin said the Corps committed to providing SSA Marine the specific standard it would use in this case, and he said the 90-day clock shouldn’t start on SSA’s response until it has that information.
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Corps spokeswoman Patricia Graesser said on Tuesday, May 19, the agency couldn’t immediately respond to questions from The Bellingham Herald about the de minimis standard. In earlier statements about Gateway Pacific Terminal, the Corps cited a case from 20 years ago in which it rejected a permit for a salmon farm in Rosario Strait on the grounds that the farm, though no larger on the surface than 1.41 acres, would interfere with Lummi fishing. The decision withstood a challenge in U.S. District Court.
Graesser said the Corps was assessing SSA Marine’s request for an extension.
In a separate letter from May 8, Sahlin, SSA Marine’s vice president of project development, said the Corps shouldn’t “rush to judgment.”
“We are not in any way impacting the Lummi Nation’s fishing rights today,” Sahlin said. “There is no harm to the Lummi Nation in allowing us sufficient opportunity to gather the facts that we want to put before the Corps of Engineers.”
Lummi officials didn’t provide the Corps enough information to assess whether the disruption of tribal fishing would be more than “de minimis,” Sahlin said.
In an interview, Lummi Chairman Tim Ballew on Tuesday, May 19, said the tribe has given the Corps enough information to make a decision.
“Likely (the Corps) may think to provide the proponent, or SSA, a last chance to mitigate, but our position is still the same, where mitigation is not an option,” Ballew said.
SSA Marine could alter the terminal’s design or its operations to reduce its impact on fishing, Sahlin said in his letter. SSA needs more time to figure out how to do that, Sahlin said, because Lummi officials won’t negotiate a solution that would allow for the terminal while maximizing fishing opportunities for the tribe.
The tribe’s own investigation found no way to adequately reduce the harm to fishing the terminal would cause, Ballew said.
“SSA did make the request earlier this year to meet,” Ballew said. “Possibly they wanted to talk about mitigation of some sort. We, the tribe, have looked at the impacts of this project for well more than this last year. ... There’s no way we could mitigate all of the impacts.”
SSA Marine will develop its own proposals for reducing the impact on fishing on Lummi grounds by gathering documents and seeking experts on fishing practices around Cherry Point and throughout the tribe’s fishing area, Sahlin said.
But first the Corps must decide if it will wait for SSA Marine to do its own research.
“At this point we have substantial information on your proposed project and documentation on the tribe’s use of the project area and fishing practices within the area,” Michelle Walker of the Corps wrote to Sahlin on May 7.
“The tribe as well as the whole community is waiting for the Corps to issue its response,” Ballew said.