SSA already started construction at Cherry Point

What the heck?!?!?

I honestly don’t know yet where I will land on the issue of the coal port at Cherry Point.  At this point, there is just too much that is not known.  I know there are strong opinions on both sides, and these strong opinions are driving people to say and do things that occasionally arch the eyebrows and cause the head to wag.  I also know that, having read Carl’s bolg posting, if what he is saying is accurate, I find it very disturbing.  Even if I were a staunch advocate in favor of the coal port, procedures must be followed, and it is horribly presumptuous to simply begin clearing without proper permitting and authorizations secured. Particularly given the intense public scrutiny surrounding this issue, regardless of one’s position, this move by SSC, if it is indeed what Carl has represented it as being, was just foolish.

John and readers,

SSA’s subcontractor needs to start immediately today to mitigate the damage to the wetlands with the required Best Management Practices before the rains return.  Failure to art promptly and responsively will result in silting of wetlands. 

Has anyone contacted Department of Ecology and Department of Natural Resources?

This was more that foolish or irresponsible.  It was breaking the law.

Bob Aegerter

I’m sure it will turn out that these are just access roads needed to install the monitoring wells and, gee, why was Carl trespassing on SSA’s private property anyway?  ;-)

John, you’ve got the aim all wrong. Carl’s article clearly states that the Planning department and the county didn’t know this was happening and had not authorized it. Is Pete Kremen responsible for dogs peeing on bushes, and lamplights flickering?

They are looking into and will get to the bottom of it. It is clear to me that SSA Marine is acting without the proper paperwork or approval, and they should be the subject of your ire.

The truth is that SSA has no time to waste. According to leading experts on the coal trade, energy and international trade, there is only a ten year window for selling coal to China.

China has plenty of coal and does not want to import or transport the stuff.  The problem is one of regulatory disconnects referred to as the coal-power conflict.  Regulators of power generation have been unwilling to raise rates enough to cover the costs of mining coal.  This has tanked output from archaic and undercapitalized Village-based enterprises, and caused State-owned, provincial enterprises to also struggle with price while suffering under a dysfunctional, reformed coal regulatory framework.

The Chinese government, recognizing the problem, has plans to build several coal-based industrial centers.  They expect it to take about ten years to create industrial parks where the coal is mined, power generated and factories located.  This will obviate the need to import or transport, leaving them shipping materials in and product out, instead. 

You can read all about it here:
+ Link

The bottom line is that there is no margin for delay.  Peeling even three years off the window through challenges and appeals significantly reduces the likelihood of the venture being profitable.  Working hard to delay it five years, almost certainly kills it dead.  Since there is nothing anyone can do to stop trains from taking anything they want anywhere they can, delaying this terminal and the pier are our best hopes of stopping the project.  And it looks like the first opportunity has emerged.

Seriously, this is beyond wrong.  Great sleuthing, Carl.  Paul Drake would be proud of you!  Thanks for getting the word out, John.  I guess these people are above the law, and it shouldn’t apply to them.  Because they are important and special, or something.

You wrote, “SSA is destroying wetlands,...”

I think that is an unsupportable assertion. You have no knowledge that the site includes wetlands.

The wetlands delineation for the site is publicly
available at the MAP team site; I will happily link you
to my copy of it if you wish.
The map as drawn by Carl clearly shows road construction through wetlands.

It is an easily supportable and accurate assertion.

So please send me the link, please.

As I’m certain you are aware, wetlands science has evolved. The previous delineation was not developed using the present guidance. My statement stands.

So really, John.  I agree with Riley.  Why would you ever expect Kremen to be responsible for anything in Whatcom county?

You, of all, know what a do nothing he’s always been.  I’d be shocked to find his people in any way engaged in a compliance effort.

How’s the campaign going otherwise, Riley?  Better luck against Larson this time round.

The campaign is going well. You should join us Tuesday, August 2nd for Pete’s campaign kickoff. You should hear about his ideas for moving our county forward.

Hey, ain’t that great. 

After all these years, Pete’s got an idea how to move the county forward.

Well, better late than never!

I will save you a seat, Greg. Wouldn’t want to cast a . . . shadow on our working relationship.

SSA’s attorney claims this is all covered under previous permit for geotechnical work.  County still silent.  See this article in Crosscut

+ Link

Of course, if the work was being conducted under the 1997 permits, SSA would have been careful to comply with the settlement agreement.  It would have ensured that the affected wetlands were within the 5.86-acre footprint authorized by the permits and settlement agreement, and it would have implemented the required mitigation, including creating wetlands on another site and conducting a study.  All set forth in the settlement agreement.

Otherwise, it seems like there isn’t just a problem with County requirements, but with Section 404 of the Clean Water Act, which requires a permit from the Army Corps of Engineeers.

I’m glad, though, that SSA has decided to go back to its 1997 proposal.  That will eliminate a lot of controversy in the County.

@ Dave Onkels: happy to send you SSA’s own wetland determinations as filed under their 2011 application as of February 28, 2011. Please get me your email—I’ll give you permissions to access it on my Google docs folder, since it’s >20 megabytes of delineation files. (Wait! now that I glance at it, they’re all available here: + Link While they do indicate “2008,” I would suggest that if the project proponent felt they were current as of 2/28/2011, who are we to argue?) Thanks for posting that, Whatcom County.

That written, I’m not convinced wetlands science has changed much in the last five months, but perhaps you’re much farther ahead on that than SSA and their contractors. If you are right, they should certainly consider resurveying their property to ensure they aren’t overly cautious in protecting the environment.

Whatcom County (which, I believe, you have some connection to) has thoughtfully posted the SSA JARPA application. While not in full color like the larger versions (megabyte-wise), the documentation does include several pages of wetland delineations:

+ Link

Mr. Krogh,
You wrote, “That written, I’m not convinced wetlands science has changed much in the last five months,...”

You’d be incorrect, and perhaps the following notice from DOE will lead you to reexamine your opinion:

“Amendment to state rules changes the wetland delineation manual

State laws require that wetlands protected under the Growth Management Act and the Shoreline Management Act be delineated using a manual that is developed by Ecology and adopted into rules (RCW 36.70A.175; RCW 90.58.380). The Department of Ecology adopted a wetland delineation manual in 1997 (WAC 173-22-080) that was based on the original 1987 Corps of Engineers manual and subsequent Regulatory Guidance Letters.

During the last few years the Army Corps of Engineers has updated and expanded their delineation manual with regional supplements. To maintain consistency between the state and federal delineations of wetlands, Ecology has repealed WAC 173-22-080 (the state delineation manual) and replaced it with a revision of WAC 173-22-035 that states delineations should be done according to the currently approved federal manual and supplements. The changes are effective, today, March 14, 2011.

The latest federal delineation manual and its supplements should now be used to delineate wetlands in the state.

You can find the federal delineation manual and its supplements on Ecology’s Wetland Delineation web page: + Link

March 14, I’m sure you’ll, agree was less than five months ago.

Please note that the Washington State Code Reviser’s Office web pages have not yet been updated to reflect the rule changes. To see the updated rule language go to: + Link

If you have any questions about wetland delineation, contact:

Tom Hruby, PhD
Senior Ecologist
Washington State Department of Ecology
P.O. Box 47600
Olympia WA 98504
(360) 407-7274

tom.hruby@ecy.wa.gov

Please excuse the insertion of my parenthetical comment into the body of the announcement. For some reason, I have problems with the margins of my comments on NWCitizen disappearing in the task pane. This has occurred with different computers and different browsers for several years.

Here’s the header from the DOE email:
From: ECY RE Wetlands Information [mailto:wetlandsinformation@ECY.WA.GOV]
Sent: Monday, March 14, 2011 5:18 PM
To: WETLANDS-INFORMATION@LISTSERV.WA.GOV
Subject: Amendment to state rules changes the wetland delineation manual

@Dave Onkels:

I’ve got the same line-wrap margin problem too. Wonder if it’s the choice of browser?

Re. your statement that I am incorrect: please note that I wrote about wetlands science not changing in the last five months, not wetlands regulations. Thank you for the updated regulations links.

Can you please explain why you believe harmonizing the State’s delineation manual with the USACE manual makes it LESS likely for the corridors Carl mapped to cut through wetlands?

After all, the point of contention is whether or not those corridors cut through our destroyed wetlands, wetlands which exist both on SSA’s consultants’ maps (did they use USACE or State manual? I have no idea) and the County’s, and are also wetlands over which USACE has claimed jurisdiction for this project.

Until a new delineation is made—IF a new delineation is made—our best available options are the determinations made by SSA themselves. And they clearly show wetlands throughout the newly cleared areas.

Dave Onkel’s whole line of attack is confusing me.  If, as SSA’s attorney indicated, the company is taking action to its 1997 permit, the wetlands that it is permitted to alter are identified by the settlement agreement.  New delineation requirements wouldn’t really matter.

If SSA isn’t going back to its 1997 project, how much do the “new” delineation requirements matter?  Here’s what the Department of Ecology has to say- link is + Link

“Hasn?t the federal government been requiring the use of this manual and regional supplements for the last two years?

Yes. Ecology amended its rules to be consistent with Army Corps of Engineers requirements. Starting in 2008, the Corps required the use of its delineation manual and its interim regional supplements. The final regional supplements were released in 2010. During the interim period, Ecology accepted data forms from both the federal and state delineation manuals.

If applicants have to use two different manuals, will this result in two different delineated boundaries?

Based on our experience, it is very rare that wetland boundaries differ when applying the state manual and the new federal manual with applicable supplements. When applied correctly, the two manuals should result in the same boundary. When this is not the case, the applicant should consult with Corps or Ecology wetlands specialists to help determine whether the difference is appropriate.”

Sorry, Dave. In any event, for the Corps to exercise its jusrisdiction over wetlands, it seems most likely that the wetlands were delineated under the Corps manual in the first place.

“When applied correctly, (italics mine) the two manuals should result in the same boundary. When this is not the case, the applicant should consult with Corps or Ecology wetlands specialists to help determine whether the difference is appropriate.?

That’s my point. I’ve read the studies and the original reports submitted in support of them.

I believe that the “wetland consultants” who prepared the original reports were not competent to do the job, and that the reports they submitted are false, and that the wetlands delineated by them are far more extensive than the geohydrology on the site would suggest.

I further note that the report, if there is one in fact, is not submitted over the signature of a person licensed by the State of Washington to conduct hydrogeological studies.

I think that my observations have implications for SSA’s actions going forward.

I believe in science and law, and I think that neither SSA nor Whatcom County has been well served to date.

I wrote, ” I believe that the ?wetland consultants? who prepared the original reports were not competent to do the job, and that the reports they submitted are false, and that the wetlands delineated by them are far more extensive than the geohydrology on the site would suggest.”

I should have written, “It is my opinion that the “wetland consultants”...”

I usually take care to separate belief from opinion and not to substitute “I believe” for “I think”.

I do not claim, of course, competence in the fields of Hydrogeology and “Wetlands Science”. My opinion is my own, and I crave data, especially when it is used to support public policy positions. That is especially true with this project, where I have serious questions about the data and conclusions of consultants that I’ve seen to date.

It would be handy, given the established wrap problem, to at least have a “preview” function here.

On my browser. the “submit” button is a “mit” button.

A word used by me, in an earlier post:  “geohydrology.”

It’s “Hydrogeology”, of course.

Did I read Tip Johnson correctly?  After 10 years China will not want any more of our coal?  Then why the investment and social disaster?  Poor communities cut in half by the tracks!

Thanks for the link Tip.

Seriously did Carl have permission to be there? Is this land open to the public?

@Rob Stratton

Seriously… you think we are going to change the subject

just because you don’t want to talk about this?

Nice try.

Check out the King5 report about this issue. Tough words from our county executive.
+ Link
Pete Kremen said “For them to disregard our regulations on something this important just amazes me.” He is pushing for something much stronger than a “slap on the wrist.”

Nice dodge Shane. I noticed you didn’t answer my question? I wasn’t trying to change the subject and I have no problem talking about it. Why are you assuming so much? You know what they say about those that assume. Because my viewpoint may be different than yours you are going to resort to demagoguery instead of answering a sincere question?

It makes a big difference to me whether he had the right to be there or not. If he did the report has more weight about what he discovered if he trespassed and broke the law to be there than that’s is a worse violation than someone using their private property as they wish.

@Rob Stratton

As I have said before elsewhere, I’ll repeat here.

The SSA Marine property is open to hunting.

Carl didn’t need permission from SSA Marine to go on that

property with a rifle to shoot a deer.

Therefore, he does not need permission to go on that

same property and shoot a picture.

If Carl can exercise his second amendment rights on that

land, then he is able to exercise his first amendment

rights on that land also.

A mall is also private property, but no one needs

permission from the mall owners to enter the mall and take

pictures.

Once you invite the public onto your private property,

your expectation of privacy is severely and

VOLUNTARILY limited.

Dodge that.

Really Shane?  When a property owner allows hunters on their land, they are also saying that non-hunters are welcome to take pictures, measure, map you property and publish on the internet? hmmm??

So when I give the cable guy permission to come in and replace a box, I am also giving him permission to take pictures, measure my railing, check for drippy faucets, document light bulb types, see which way the TP unrolls, then publish his findings on the internet and call his friends downtown and tell them what he feels might be in violation of codes?

At least you’re entertaining if not convincing.

@Wally

What I am saying is this… once you agree to allow the public to gain routine access to your land, your reasonable expectation of privacy is diminished.

You are likening SSA Marine, a ginormous corporation, to you being a private home owner and inviting a cable guy to your property for a specific purpose.

The more accurate analogy is to liken SSA Marine to a shopping mall that invites the public at large to their property.

The mall is owned privately. But the mall has no reasonable expectation of privacy within that part of the mall where the public is INVITED to go.

When you allow a cable guy to your home to fix your cable, you retain the same reasonable expectation of privacy as any home owner. The cable guy is not invited to poke around your property and document your day to day living conditions.

I’m going to guess that you have not signed off on having licensed hunters walk onto your property for the purpose of recreational hunting when you aren’t there. If you did, you have agreed to a different expectation of privacy. Like SSA Marine.

A shopping mall can’t accuse someone of trespassing because that person is taking pictures of something that might embarrass the owners of the mall property. The mall invited the general public onto the property, the only reasonable expectation that the mall legally enjoys from the public after that is orderly conduct.

I submit that Carl Weimer was conducting himself in an orderly fashion.

Shane, simmer down, I can appreciate your “enthusiasm”. But I asked a specific question and didn’t read what you posted “elsewhere”.

Also I might comment that I don’t agree with your reasoning. Because a property owners opens his property to a certain class of people does not mean it is open to everyone. The mall and any private property person can also set rules such as “no photos”, “no recording” etc. Just went to Up Front Theater and although I really wanted a picture of me and Ryan Stiles, I decided to obey the private establishments rules, I noticed others didn’t.

The Mall can remove anybody for any reason and tell you not to come back. And if you do you will be arrested for trespass. Period, they can set a rule that only people wearing blue shirts can shop here, and if you don’t abide by that rule you have no “right” to be there.

If I as a property owner put limitation on who is allowed on my property I expect those limitations to be followed.

Also you seem to be lacking in knowledge of what the Second Amendment is about. It has nothing to do with hunting or even with personal self defense. I would be more than happy to help you learn more about that if you are willing.

Unless you are a public servant or employee acting in your public duties, you do have an expectation of privacy. Unless certain “public” aspects and situations apply.

@Rob Stratton

I am touched by your concern for me and my enthusiasm. I shall endeavor to follow the lead of the folks who have accused Carl Weimer of criminal conduct without the benefit of facts or law… and “simmer down”. I wouldn’t want to look like I was over reacting now, would I?

SSA Marine actually can’t invite a certain class of people onto its property. This was tried in the South to invite only a certain class of people onto private property (white people) and was found to be unlawful.

The Up Front Theater is also a poor example because the only persons invited inside that private property are individual paying customers… which really isn’t the same thing as a “class of people”. A shopping mall generally doesn’t require the public to pay just to enter the building. A person is free to enter a shopping mall without any expectation of having to buy anything.

While it is true that policies can be set regarding photography, I suspect that no such policies are in place for SSA Marine at Cherry Point, and a citizen can’t be in violation of a policy that doesn’t exist. Furthermore, the right to photograph someone else’s private property from public property is well established, and doesn’t yield to a property owner’s “policy” on the matter.

Also, and this is most important… it is SSA Marine who decides if it has been subject to trespassing. The property owner itself has filed no complaint against Mr Weimer. No one who has complained about this has any legal standing to make such a charge.

There is also the matter of accusing someone of a crime without due process. What does the law say about that?

You are right Shane the company admitted wrong and haven’t filed charges. And apparently anyone can go traipsing through their property.

But you are absolutely wrong about private property owners not allowing certain folks onto their property.

And trying to equate a “protected” class based on ethnic background is a different beast, and there is a whole separate set of laws that deal with that. And not relative to my point. It would be like saying only hunters are welcome, unless you are (name ethnic background here). Just like Upfront, can’t refuse to sell tickets to people of different ethnic background. It does not matter whether they are selling tickets or not.

But as I pointed out private property owners do have the right to say who can or can’t be there, as I pointed it out in my blue shirt example.

The 2 amendment is a natural right protected and guaranteed by our Federal and State constitution but if I walked into the mall carrying my rifle, they as private property owners have all the right to say “leave” and I would be arrested if I refused. I doubt you would disagree with that now would you?

Like I said if I set limitations and rules for my private property I would expect them to be followed.

Oh and by the way I detest bigotry but feel “protected” class laws concerning private property are unconstitutional.