The county administration has not denied and closed out the GPT permit application file, as have the state and federal government, nor does it intend too. Incredulously, they believe they are precluded from doing so because SSA has “due process rights” to move forward with the EIS. When I pressed for more details [from Whatcom County Planning staff] to explain this, I was told the following:
” ….I cannot comment on legal questions and interpretations regarding current pending permit applications. Suffice to say, the current County GPT project permit applications and associated SEPA environmental review are temporarily suspended—pending a decision from the applicant as to whether they wish to move forward with the local County permitting path (and finish the SEPA review) or not.
“To put it as simply as I can, we cannot move forward with a recommendation on the local (County) GPT permit applications until the SEPA review process has either been sufficiently completed (i.e., issuance of DEIS, comment period, issuance of FEIS)or the County determines the SEPA review to be permanently incomplete, insufficient or no longer necessary for the purposes of continuing processing the local permit applications (i.e., a decision to permanently terminate the consultants work on finishing the EIS preparation, withdrawal of the local permit applications, etc.). The applicant requested that the SEPA Co-lead agencies (Whatcom County and the Department of Ecology) temporarily suspend the consultant(s) EIS preparation, but has not yet made the decision whether to keep moving forward with EIS preparation (re-engage the consultants to finish the DEIS) or close-out the consultants current deliverables (and end the SEPA review process short of the EIS). We anticipate that decision to be made by August 31, 2016. Once that decision is made, we will know more about the status of the GPT local project permit proposals and will make that information publicly available as soon as practicable on the project website.”
How is it even possible that at this point, the county has not determined that the SEPA EIS is “no longer necessary for the purposes of continuing processing the local permit applications?” Without the DNR and USACE permits, the project can not move forward and be completed. And why do they believe that all of this is a matter within the discretion of SSA? And what reason would SSA have for wanting to complete the EIS at this point? It was on hold presumably to avoid additional costs after USACE agreed to analyze impacts to Lummi treaty rights. Exactly what does the administration mean by their reference to “local project permit proposals?”
As best as I could tell from an earlier email response, which I will post below, they are treating the 1993 applications, upon which the 1999 settlement was based, as viable, so perhaps they are looking at ways to process the old applications?. I do not know what other reason the county would have to still be discussing these old applications, and they were clear that they considered the 1999 settlement valid.
All of this has troubling implications, particularly with regard to vested rights. Perhaps this is the reason that the Weimer amendments to the Cherry Point UGA were removed from the comp. plan without any reference or acknowledgement? It would buy SSA time to decide how to handle their response and ensure that if they are now subject to updated laws, this will not include the restrictions that were being proposed. All of this is conjecture because the county refuses to be open and transparent about this situation. But one thing is clear. This matter is not over as far as the administration is concerned.
Here is the Wendy’s comment for this post on Whatcom Hawk that she referred to above where she provides the earlier email response from Whatcom County Planning staff :
I am posting my prior questions and staff’s answers below. I have used the symbol “*” to designate when the staff is answering my question. 1)Why has the county not yet denied this permit and closed its file? *Due process. Applicant has to decide whether to resume completion of the EIS work or close-out the EIS contract with the County and the consultant(s) first and then decide whether they wish to move forward with the EIS and Whatcom County permit path only or not.
2)Is there a notice list that I can be added too with regard to this case? *Yes. Go to http://www.whatcomcounty.us/…/Gateway-Pacific-Terminal… and click on the “official mailing list” link to add your email address to the listserv.
3)What potential options does the county believe remain after denial by these agencies? *See answer to Question #1 above.
4) I am also hearing mixed rumours about the EIS, both that it is being closed down, but that SSA is taking several months to do so, which seems unjustified given that the EIS is currently on hold, or that the EIS is moving forward. Can you confirm the status of the permit and the status of the EIS? *The SEPA review process (EIS preparation) has been suspended, at the request of the applicant. My understanding is the applicant has requested an EIS contract amendment time extension, not to exceed 180 days, to allow time to decide whether they wish to move forward.
5) What position does the county take with regard to rights under the 1998 settlement? We are closing in on 20 years without SSA having undertaken many of the studies that were required in the settlement, in violation of settlement terms. *The Settlement Agreement is a legal binding agreement among multiple parties and is still valid.
6) DNR withdrew the aquatic lease with its permit denial. How does SSA and /or the county believe that this company still has the ability to build and use a pier and terminal? *SEPA and associated (local Whatcom County) permit application review(s) would identify requirements for consistency with associated state and federal permitting requirements.
7) Given the status of the Cherry Point UGA being withdrawn and referred back to the planning commission, does the county believe that SSA retains some sort of vested property right, and if so, what is the nature and extent of the assert right? *In 1993 the County approved MDP No.92-0003 for development of the upland area of the site and SHS 92-0020 for development of the shoreline area—subject to the supplemental conditions of the Settlement Agreement. Specific rights, conditions and land and shoreline use authorizations are contained within those documents.