County Proposal Includes New Cherry Point Buffer Mitigation Requirements

The Whatcom County Planning Department is attempting to revise mitigation requirements for habitat buffers in the Cherry Point Industrial District.  Under a proposed new chapter to the Whatcom County Code, only stream and wetland buffers are affected.  The chapter was developed for residential and commercial development in the Birch Bay watershed, but specifically includes Cherry Point.   

Proposed WCC Sec. 16.16.920.E states that projects within the Cherry Point Industrial District that impact stream and wetland habitat buffers may utilize the new Birch Bay Habitat Mitigation Fund for off-site mitigation.  Although this requires approval from the Planning Director, there is no requirement for public participation. 

The Birch Bay Mitigation Fund is intended to encourage better stormwater management for new development. Developers qualify by incorporating low impact development into their design.  In return, they obtain the right to encroach into Habitat Conservation Area buffers normally regulated under the Critical Area Ordinance.  Once developers pay the offsite mitigation fee, they are not responsible for habitat impacts.

The County made arrangements with the Whatcom County Conservation District to find offsite mitigation habitat through leases and easements negotiated with willing private property owners.  However, there is no requirement for mitigation sites to be identified and established before development occurs.  In fact, the Conservation District can take up to 4 years to find appropriate habitat replacement.

There are a number of problems with this proposal.  The primary goal of habitat buffers is to protect fish and wildlife.  While improved stormwater management benefits wildlife, it does not create a greater benefit than habitat. There is no justification for providing stormwater incentives through encroachment of buffers that serve an unrelated function.  Allowing development prior to mitigation is also contrary to the purpose served by habitat buffers.  Habitat loss is the primary driver of species decline and could result in irreversible loss of local species.  Although development within areas designated for protection or restoration will carry a 20% surcharge, it is of little consolation to wildlife that is unable to survive.  

Nor does the proposal ensure that mitigation will occur on sites with the highest conservation value.  Rather, the primary factor in site determination will be the willingness of the property owner to negotiate a lease or easement with the Conservation District.  And until the Conservation District engages in negotiation with property owners, the actual cost of offsite mitigation, and therefore, the appropriate fee that should be charged to developers, can not be determined.

Finally, there is a problem in meeting no net loss requirements. The County does not have a meaningful baseline standard in which to monitor the success of this program and therefore, lacks the practical ability to determine results. There will be no attempt to determine species abundance before or after the program is instituted.  And what would the remedy be even if the County had the ability to determine that this program was not working?  By that time, stream and wetland habitat buffers will have been lost to development.

With regard to Cherry Point, it is difficult to imagine how this program is even feasible.  This type of offsite mitigation is only appropriate for smaller residential and commercial developments.  Industrial buffer impacts to Cherry Point fish and wildlife would be too substantial to be mitigated offsite through the use of private property.  Essentially, the County would be allowing Cherry Point developers to pay a small fee for the right to destroy Critical Area habitat buffers, and fish and wildlife species. 

This proposal has been drafted to appeal to developers, as reflected in this comparison between current and proposed offsite mitigation procedures. As drafted, this proposal is a betrayal of the fundamental principles of the Birch Bay Watershed Characterization and Watershed Planning Pilot Study, upon which it is allegedly based.

More information regarding the Birch Bay Habitat Mitigation Fund and the related Stormwater Low Impact Development program is available here. A public hearing is scheduled before the County Planning Commission on December 8, 2011.