I am writing regarding the information presented on your 2016 Docket, Cherry Point Amendments (PLN2016-00012) webpage at this link:  http://wa-whatcomcounty.civicplus.com/1612/2016-Docket.  I notice that one of the alternatives that is identified, Alternative # 1 – Council Member Alternative (proposed by an individual Council Member), does not meet the criteria listed in the SEPA handbook under 3.3.2 Identifying Alternatives, which is, as follows:

“As potential alternatives are identified, they should be measured against certain criteria:

• Do they feasibly attain or approximate the proposal’s objectives?
• Do they provide a lower environmental cost or decreased level of environmental degradation than the proposal?

It may not be evident at the beginning of the process whether an alternative meets all of these criteria. The lead agency should continue to analyze each alternative until information becomes available that indicates an alternative fails to meet the criteria.”

I can see from reviewing the Proposal – Council Resolution (initiated by Council under Resolution 2016-027), and Alternative # 1 separately, and also from looking at the comparison provided at this link, Comparison of Proposal and Alternatives, that Alternative #1 does not provide a lower environmental cost or decreased level of environmental degradation than the proposal.

Alternative #1 does not provide these protections included in the Proposal under Policy 2CC-2:

“Future Development & Expansions

•   Clean-energy and low-carbon emitting industries are favored.
•   Strict avoidance of estuaries and near-shore wetlands.
•   Additional hardening of the shoreline through bulkheads or other
  methods is prohibited.
•   Archeological study, designed in cooperation with the Lummi
  Nation, required.

  New water-intensive development shall utilize state-of-the-art water

recycling manufacturing technology to minimize water use.”

The protections below, offered in under Policy 2CC-2 for Alternative #1, are non-specific and would only be potentially pursued if and when existing facilities expand or upgrade.

“Existing Development

Work cooperatively with all businesses to increase environmental protection as they expand and/or upgrade refining operations at Cherry Point.”

Also, if facilities expand or upgrade, depending on the nature of the expansion or upgrade (for example if crude-by-rail operations were expanded),  there could be a greater environmental cost and increased environmental degradation.  “Increasing environmental protection” on an operation with greatly increased hazards to the environment attached may not be effective in reducing environmental cost and degradation as a whole.

For Policy 2CC-10, Alternative #1 does not indicate that no additional industrial piers can now be allowed at Cherry Point (since the GPT project cannot proceed without the required permit from the Army Corps of Engineers) and does not note that the prohibition of industrial piers is in force in order to:

“Support and remain consistent with the state Department of Natural Resources’ withdrawal of Cherry Point tidelands and bedlands from the general leasing program and species recovery goals of the Cherry Point Aquatic Reserve designation and Cherry Point Environmental Aquatic Reserve Management Plan; “

Here again Alternative #1 would offer a potentially greater, not lower, environmental cost and a potentially increased, not decreased, environmental degradation.

For Policy 2CC-14, Alternative #1 does not offer any comparable policy (and thus does not offer lower environmental cost or decreased level of environmental degradation) to the protections offered by the Proposal, that proposes new policy to,

“Adopt County regulations that prohibit the County from issuing permits or other approvals that could be in conflict with 33 USC Sec. 476 (the Magnuson Amendment). Amend County codes to implement this policy.

Note: The Magnuson Amendment states ‘. . . no officer, employee, or other official of the Federal Government shall, or shall have authority to, issue, renew, grant, or otherwise approve any permit, license, or other authority for constructing, renovating, modifying, or otherwise altering a terminal, dock, or other facility in, on, or immediately adjacent to, or affecting the navigable waters of Puget Sound, or any other navigable waters in the State of Washington east of Port Angeles, which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington.’

The U.S. Court of Appeals for the Ninth Circuit interpreted the Magnuson Amendment as follows:

‘. . . When analyzing capacity, courts should therefore not look to the capacity of the refinery, but rather to the capacity of the terminal. Such an understanding is supported by the legislative history of the amendment; just before passage of the amendment, Senator Magnuson remarked: “In fact, the amendment only applies to construction or alteration of dock facilities in the Puget Sound region, not to refineries as such” . . .’ (Ocean Advocates v. U.S. Army Corps of Engineers, 402 F.3d 846 (9th Cir. 2005)). “

For Policy 2CC-15 Alternative #1 does not offer the protection included in the Proposal to

“Notify the County Council of proposals to expand fossil fuel exports from Cherry Point.”

Excluding this protection from Policy 2CC-15 would, once again, not offer a lower environmental cost or decreased level of environmental degradation.

I remind you that the SEPA Handbook states:

“It may not be evident at the beginning of the process whether an alternative meets all of these criteria. The lead agency should continue to analyze each alternative until information becomes available that indicates an alternative fails to meet the criteria.”

Since for each and every policy included in the Proposal and Alternative #1 comparison, Alternative #1 fails to offer a lower environmental cost or decreased level of environmental degradation, Alternative #1 does not meet the criteria to be considered an alternative according to the SEPA Handbook. Therefore, I ask that Alternative #1 be removed as an alternative for the Cherry Point Amendments to the Whatcom County Comprehensive Plan.

Sincerely,

Dena Jensen

Birch Bay