On prohibiting the shipment of coal, or crude oil, from any new shipping terminal or pier/ Comment to Whatcom County Council, Sandy Robson

sandy 01242016 comp plan comment

February 1, 2016  Sandy Robson

Sent: Sunday, January 24, 2016 11:23 p.m.

To: Council

CC: Jack Louws, PDS

Subject: Public comment on the 2016 Whatcom County Comprehensive Plan Update

Dear Whatcom County Council members,
Please consider this a public comment on the 2016 Whatcom County Comprehensive (“Comp”) Plan Update.

First, I would like make an acknowledgement of our Coast Salish neighbors:
I acknowledge that this land is the traditional territory of the Lummi and Nooksack Peoples. Their presence is imbued in these mountains, valleys, waterways, and shorelines. May we nurture our relationship with our Coast Salish neighbors, and the shared responsibilities to their homelands where we all reside today.

Cherry Point is home to a significant environmental resource and unique aquatic ecosystem in the Strait of Georgia, in the northern Puget Sound. The Washington State Department of Natural Resources (DNR), in 2000, realized the need to protect the significant environmental resource of aquatic lands at Cherry Point and designated those state-owned lands that were not already under a lease agreement, as the “Cherry Point Aquatic Reserve.” In order to ensure long-term environmental protection, DNR put into put into place a 90-year management plan called the “Cherry Point Aquatic Reserve Management Plan.” The plan is aimed at protecting the health and aquatic environment of Cherry Point.

In the plan it states the Cherry Point Aquatic Reserve’s “marine waters and aquatic lands are a portion of Treaty-protected Usual and Accustomed grounds and stations oflocal Native American Indians, and are used by the Indians for commercial, ceremonial, and subsistence purposes.”

In the waterways in and around Cherry Point, Lummi fishers harvest salmon, halibut, herring, crab and shellfish. The increased vessel traffic accompanying the proposed coal export terminal, Gateway Pacific Terminal (GPT), would harm the tribe’s ability to exercise its treaty-guaranteed rights to harvest those fish and shellfish.

There are already oil tankers in the Salish Sea due to the BP and the Phillips 66 refineries, and if GPT were built and operating, 487 Panamax and Capesize vessels are expected to call on the terminal, going in and out of Cherry Point every year. All these large vessels will be competing for space in the sensitive waters. All it would take is just one vessel accident inside the Salish Sea and the Lummi Nation’s way of life (Schelangen) would be gone.

The Vessel Traffic Risk Assessment Study (VTRAS) released in November 2014, provides substantial evidence of some of, but not including all of, the impacts to the Lummi Nation’s treaty fishing rights from the increased vessel traffic that the proposed GPT would bring to the Northern part of the Puget Sound. The VTRAS was conducted for GPT applicant SSA Marine/Pacific International Terminals (PIT), by Glosten and Associates, with oversight by the state Department of Ecology. Gateway Pacific Terminal [SSA Marine/PIT] and the Lummi Nation also participated in the VTRAS.

The VTRAS states: “The siting of the wharf and trestle at the proposed GPT and the potential anchorage use by bunkers will interfere with Lummi access to fishing sites…The analysis predicts that GPT would increase the Lummi fishing disruption by 76% in the Cherry Point area. Link to VTRAS:

http://www .eisgatewaypacificwa.gov/sites/default/files/content/files/20141104_Vessel_ Traffic_and_Risk_Assessment_Study-Glosten_small_0.pdf

And, now that the ban on exporting crude oil has been lifted by Congressional legislation that became law in December 2015, if the BP and Phillips 66 refineries were to begin exporting crude oil, the potential for accidents is increased even more. Exporting crude oil from Cherry Point refineries was not part of the VTRAS when the analysis showed that there would be a 76% increase in the disruption of Lummi fishing. Considering the information in the VTRAS, it is clear to see that the Lummi Nation’s December 10, 2015 comment on the Whatcom County Camp Plan Update recommending a new policy that “the shipment of coal, or crude oil, from any new shipping terminal or pier, or any existing terminal or pier, is prohibited,” is very reasonable, and should be included in our County Comp Plan.

Whatcom County Planning and Development, and the County Council which makes final decisions about our Whatcom County Comp Plan, cannot deny, and cannot ignore, the significance of Cherry Point to the Lummi Nation. County decision makers can no longer continue to permit new projects and development at Cherry Point which would include heavy industry businesses and the pollution they bring, such as a 48 million metric ton per year coal export terminal, or the business of exporting crude oil, both of which, are not currently in existence at Cherry Point. Not only are these types of polluting businesses/industries harmful to the Lummi Nation, but they also are harmful to the rest of the residents in Whatcom County.

Trading our environment’s future, and our future health, for any number of what have been dubbed as “family wage jobs” or “high wage jobs” is not acceptable. Yet, we are being told by advocates for projects such as GPT that it is not only acceptable, but that it’s our duty to embrace these jobs, as they are supposedly our future salvation-when anyone looking at the reasonably foreseeable adverse impacts of the GPT project or the exporting of crude oil from Cherry Point refineries, knows the perils of these industries.

The herring population at Cherry Point is dwindling, declining more than 92% between the 1970s and 2012. Cherry Point herring, is considered a “Distinct Population Segment” under the Endangered Species Act, and it is a keystone species, supporting a variety of other species that share their habitat. It is my understanding that the herring make up two thirds of the diet of the federally protected Chinook salmon, and the Chinook in tum provide two-thirds of the food supply for Puget Sound Orcas. Puget Sound Orca are also a federally protected species by the Endangered Species Act.

In an April 3, 2014 letter to Governor Jay Inslee, the Lummi Indian Business Council (LIBC) stated, “…the Lummi Nation has a treaty right to harvest salmon and shellfish in a manner sufficient to support our Schelangen (‘way of life’).” Schelangen is a right guaranteed and protected by the Treaty of Point Elliott with the U.S. government.

Link to LIBC April 3, 2014 letter: http://www.ecy.wa.gov/programs/wq/swqs/LurnmiltrtoGovFCR040414.pdf

The LIBC wrote in its June 6, 2011 letter to the U.S. Department of lnterior that, “The Lummi people have fished in the Nooksack River and the waters of northern Puget Sound since time immemorial. Article V of the Treaty of Point Elliott provides that the ‘right of taking fish from usual and accustomed grounds and stations is further secured to said Indians in common with all citizens of the territory.”‘

The June 6, 2011 LIBC letter went on to say, “The Lummi Nation retains a federal reserved Indian water right to instream flows sufficient to support their treaty fishing rights…Lummi also retains a federal reserved water right for consumptive uses necessary to fulfill other purposes of its reservation.”

The LIBC letter also stated, “At this time, state-permitted water diversions have reduced flows in the Nooksack River and threaten the fish species that make up the Nation’s treaty fishery. In addition, state sanctioned water withdrawals within the Lummi Reservation threaten the Nation’s reserved water rights on the Reservation.”

Link to June 6, 2011 LIBC letter to
DOl: http://nwcitizen.com/pdfs/2014pdfs/90LummiNationLitigationRequest6711.pdf

It was reported in a June 2013 Bellingham Herald article, that “Farmers admit that more than half the water they withdraw is not authorized by state law.”

Link to June 2013 Bellingham Herald article: http://citizenreviewonline.org/water-dis pute-clouds-future-for-whatcom-county-farms-factories

Add to that unauthorized use of water by some farmers in Whatcom, the millions of gallons of water per day that are used by Cherry Point industries currently operating, and the millions of gallons of water to be used daily for proposed GPT project, and it is easy to understand that encouraging more development at Cherry Point, and even throughout Whatcom County, is clearly not in the best interest of all Whatcom residents-especially the tribes such as Lummi Nation and the Nooksack Indian Tribe whose water rights are senior to industrial and agricultural water users, and all other water users in Whatcom.

The Lummi Nation and the Nooksack Indian Tribe have a federally recognized treaty right to catch salmon from the Nooksack River. About 4 years ago, both tribes requested federal agencies file a lawsuit on their tribes’ behalf to legally compel the state of Washington to take measures to define the amount of water they should be guaranteed, in order to uphold the flow of water (instream flow) in the Nooksack River and its tributaries, thus upholding the tribes’ treaty rights. It is probable that would would mean curtailing the amount of water that users such as agricultural and industrial users, are allowed to withdraw.

Currently, SSA Marine/PIT is contracted (through 2042) with the Whatcom County PUD 1 for a capacity of up to 5.33 million gallons of Nooksack River water daily. There was no amount listed in that contract for operating demand, so until that amount would ever be defined, one could then assume 5.33 million gallons daily is the amount to be used. That contract was signed in March, 2013. The water at GPT will be used to spray the 2 1/2 miles of 60 ft. tall coal piles to prevent the coal from spontaneously combusting, as well as to try to minimize coal dust.

It is not known if there will even be enough water to honor that contract that was hastily agreed to by the Whatcom County PUD. The June 2013 Bellingham Herald article referenced above reported: “While the PUD has a legal right to Nooksack water to cover its industrial customers, that right (and every other Nooksack River water right) is considered ‘junior’ to the tribes’ water rights, since they were here first. Attorney Jay Manning, former chief of staff to Gov. Chris Gregoire and former director of the Washington Department of Ecology, said the PUD’s right to its water supply is not ironclad in that situation. Other water users also may be ahead of the PUD in the water line, if the available supply of water is cut back by a court order that allocates a larger share of water to the tribes for salmon populations.”

According to the LIBC, in their January 15, 2013 scoping comment submitted to the U.S. Army Corps of Engineers regarding the Environmental Impact Statement for GPT, “Considering the depressed nature of Nooksack River salmon stocks including the listing of early-run Chinook salmon pursuant to the Endangered Species Act, tribal treaty rights to a sustainable, harvestable surplus of salmon, and the need for instream flows, additional withdrawals from the Nooksack River for this proposed project should not be allowed.”

The LIBC also said that the proposed GPT, and the inter-related BNSF Custer Spur Rail Expansion projects are both within the Lummi Nation Usual and Accustomed and traditional areas, and will result in significant, unavoidable, and unacceptable interference with their treaty rights and irreversible and irretrievable damage to their spiritual values.

Link to the January 15, 2013 Lummi Nation EIS scoping comment for
GPT: http://www.eisgatewaypacificwa.gov/sites/default/files/content/files/Appendix I Tribes.pdf

The United States government has trust responsibility to uphold those rights. While it is the obligation and duty of our federal government to uphold those treaty rights, our County government and agencies have not been mindful to the degree necessary to ensure those treaty rights are upheld. Our County government should not, and can not, ignore the fact that they also play a part in protecting those treaty rights. In setting guidelines and policies, and enacting legislation regarding land use, our County must ensure tribal treaty rights are protected. To not do so, is not only morally wrong in my opinion, but also could lead to legal ramifications which could seriously and adversely impact our County’s financial future.

While our state’s Growth Management Act requires state and local governments to manage Washington’s growth by identifying and protecting critical areas and natural resource lands, designating urban growth areas, preparing comprehensive plans and implementing them through capital investments and development regulations, our state and local governments often make land use decisions that imperil, and sometimes violate, tribal treaty rights. This is not acceptable and therefore guidelines and policies in the Whatcom County Comp Plan should provide protection for resources and areas of cultural significance, which are protected by tribal treaty rights.

Cherry Point already has two oil refineries (BP and Phillips 66), and an aluminum smelter (Alcoa Intalco) which all involve toxic processes and products. An October 2014 Bellingham Herald article reported that those three businesses had the unfortunate distinction of being listed in the top ten biggest carbon polluters in Washington State for 2013.

The October 2014 Herald article reported that according to the U.S. Environmental Protection Agency, in 2013, BP’s Cherry Point Refinery was the second-highest single source of emissions in Washington state. It was followed by Shell Puget Sound Refinery in Anacortes, and next was Alcoa Intalco Works in Ferndale (at Cherry Point). Following Alcoa Intalco in the rankings, was Tesoro Refinery in Anacortes, and that was followed by Phillips 66 refinery in Ferndale (Cherry Point). So, for the year 2013, BP Refinery was ranked #2, Alcoa Intalco was ranked #4, and Phillips 66 was ranked #6 in terms of our state’s top polluters.

The Herald article reporting on the EPA’s findings showed that BP’s Cherry Point Refinery and the Phillips 66 refinery in Ferndale released more than 2.6 million tons of carbon dioxide and other gases, a 3.3% increase from 2012. Alcoa Intalco released more than 1.2 million metric tons of greenhouse gases in 2013, which is a 7.8 percent jump from the previous year.

Read more here: http://www.bellinghamherald.com/news/article22252749.html

Are you getting the picture yet? Our County already has too many toxic polluting businesses/industries at Cherry Point. There is ample scientific evidence that shows us that kind of pollution continues to injure our health, the environment, the wildlife and marine life; our entire ecosystem. The jobs those industries provide, and the property taxes they pay to the County, do not make up for the degree of harmful pollution they cause.

We need to stop new heavy industrial development at Cherry Point no matter how loud and insistent the paid GPT and Cherry Point industry advocacy organizations such as the Northwest Jobs Alliance and the Whatcom Business Alliance, tell us otherwise in their messaging, much of which is propaganda. Those advocates can not refute the emission statistics coming from the EPA that I referenced above. There is also effluent released into the Puget Sound by Cherry Point industries that harms fish, shellfish, and marine life. People consume fish and shellfish from that body of water.

Those Cherry Point businesses/industries I named above, are all already polluting the beautiful and unique Cherry Point Aquatic Reserve, and Whatcom County as a whole. For the County, through its Comp Plan, to encourage and plan for more of that kind of heavy industry at Cherry Point is harmful to the Lummi Nation, the Nooksack Indian Tribe, and to everyone in Whatcom.

All of the information I have offered above in this comment, is why I strongly support the Lummi Nation’s recommendation in their Nation’s Planning Department’s December 10, 2015 comment submitted to the County, that the following policy be added to the County Comp Plan:

“The shipment of coal, or crude oil, from any new shipping terminal or pier, or any existing terminal or pier, is prohibited.”

Adding that specific language and policy to the County Comp Plan would not only protect the Lummi Nation’s treaty rights secured to them in the Treaty of Point Elliot of 1855, and the Nooksack Indian Tribe’s treaty rights, but it also protects every person in Whatcom County.

I urge the Whatcom County Council to add this policy to the Comp Plan, and to help our County’s Comp Plan include policies and guidelines which will move us in the direction of a more sustainable and better future, rather than policies and guidelines which encourage businesses and industries such as the heavy industrial ones at Cherry Point that I referenced above.

Thank you.

Sandy Robson


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