Treaty Rights and Public Rights Ignored In Overwater Walkway

I found Council Member Lehman's questions regarding the overwater walkway, during yesterday's COB city council waterfront work session, particularly interesting. The adminstrative staff’s responses reflect a continuing pattern of ignoring treaty rights, public process and habitat and wildlife impacts from waterfront redevelopment.

Council Member Lehman questioned whether the overwater walkway had ever been officially approved by the council. The answer is no. It has been funded in the TIP (Transporation Improvement Plan), but that allows the staff to plan and develop the project. It does not represent official approval of the project developed by the staff.

In fact, this project has been on hold for the last 2 years due to the city's failure to obtain approval from the Lummi Nation for impacts to its treaty rights, something that should have been obtained through co-management at the very beginning of development. Under the last two administrations, the city has been unable to obtain Lummi approval, largely due to its refusal to protect treaty rights by mitigating project impacts on fish and wildlife. How unfortunate that these concerns, also raised by myself and other residents 2 years ago, were ignored by the city and the Hearing Examiner.

Most recently, the Lummi filed with DOE an objection to the MTCA cleanup plan proposed for the Cornwall site, again based on failure to consider and value treaty rights. This complicates matters and makes it even less likely that there will be a speedy resolution to the continuing conflict over development of the overwater walkway. This will also have implications for development of other waterfront areas that rely upon federal funding and grants.

Thus, I found it troubling that the Parks Director advised the city council that the administration essentially considers the overwater walkway a done deal that will be moving forward. I would like to hear a more detailed explanation of the city's position.

Without Lummi concurrency, which is necessary before the Washington State Department of Transportation can process the city's application and release federal FHA funding, this project can not move forward. It is also my understanding that there are time constraints attached to the federal funding that could be jeopardized by on-going delays with this project.

The overwater walkway is a matter of concern to many residents commenting on the waterfront planning process. The administration should not be determining outcomes for projects that have not been through final public process and approval. Here, the NEPA process for the overwater walkway has not even begun. (And the WSDOT refuses to reveal how public notice for the NEPA process will be provided, leaving the public unable to track the status of the environmental review.)

I would like to thank Council Member Lehman and the city council for considering these issues. I hope that in light of the concerns that are raised, council will pursue this issue further. The 4 million dollars in Greenway Levy III funds allocated to the overwater walkway could be spent developing the waterfront in ways that protect treaty rights, habitat and local wildlife.

About Wendy Harris

Citizen Journalist • Member since Mar 31, 2008

Comments by Readers

Barbara Perry

Oct 14, 2013

Thank you Wendy.  Does your article mean you are for Bob Burr and the other CC member running against Vargas ( Sorry for got his name)?  Both seem to support your ideas.


Dick Conoboy

Oct 14, 2013

Clayton Petree is running against Vargas.


Clayton Petree

Oct 15, 2013


You may be referencing my Whatcom Watch statement:

“My family enjoys the existing overwater walkway tremendously on our frequent walks from Downtown to Fairhaven.  However, I question the need to spend $8 million tax dollars on a second overwater walkway while many growing neighborhoods remain underserved.  Also, the city is now spending $400,000 to improve the rail crossing in Boulevard Park to the existing walkway.  I propose we plan habitat restoration along the water’s edge, remove the extensive invasive blackberries impeding the view from our current walkway along the bluff, and create interspersed parklets to provide the near water experience and views of Bellingham Bay we all value.”

This may not be the most popular viewpoint, but that is how I feel about the issue.  You can reach me at



Alex McLean

Oct 16, 2013

I categorically disagree with (almost) every point and opinion Wendy Harris has thus far, and voluminously, raised in objection to the Overwater Walkway.

While I think Harris wildly distorts the environmental impacts presented by this project, it is Mr. Petree’s comment that serves as the best touchstone for me to expand on my support for the overwater walkway from a transportation and ‘dollars-and-sense’ perspective.

Yes, we just spent nearly $400,000 to do the railroad’s bidding and improve the rail crossing as they desire and demand. Critically important, however, is the remaining fact that the City of Bellingham has no at-grade crossing rights for this location within Boulevard Park; at any future date, if BNSF so chooses, that trail could be closed.

A similar situation also occurs where Wharf Street crosses at the only viable location to provide pedestrian access to a future Cornwall Beach Park. That at-grade rail crossing, also, could disappear. This is because, as part of the negotiation for moving the railroad tracks and therefore allowing for future waterfront redevelopment, the railroad is telling the City that Wharf Street will either need to be elevated or outright removed as a through-street arterial. 

The $4 million in Greenways funds, in this context, starts to look like a really good deal for both securing continuous, dedicated North-South trail access to downtown and for ensuring that the wildly popular South Bay Trail—which includes those ever hateful overwater walkways we installed—will provide access directly into the new park. The fact that grants have been awarded to help us build this project, thus multiplying every one of our local levy dollars, only enhances the bargain.

Please consider that the costs for building a devoted land-based trail connection into Cornwall Beach Park would be very similar to the amount being spent, through Greenways, for this overwater walkway. We are, after all, expecting the replacement of the bridge that burned over Whatcom Creek last November to cost nearly $500,000 even though it is an extension of a dead-level trail and spans a mere 70-80 feet of creek. To somehow winnow a trail and bridge off of the steep bluff of the existing South Bay trail, while rigorously adhering to the railroad’s design mandates, would be an engineering marvel by comparison. When you add in the expected worthy goals of wanting to make this bridge accommodating for bicycles and perhaps compliant with the ADA, then the costs will only ramp higher. The South Bay trail, including those loathsome and disgusting overwater walkways, currently sees 350,000 users per-year, or roughly 900 people per-day. Pumping that volume of non-motorized users safely into a new park that promises to be more popular even than Boulevard Park will mean that this seemingly quaint ‘lil bridge will actually be slightly less of an endeavor to design and build than a single-lane paved street.

These same cost metrics should be applied to any fantasy claiming an addition of bike lanes and sidewalks to an elevated Wharf Street will be a cheap and simple fix. In this scenario the citizen/trail-user would now be forced to backtrack into and out of the park, up and down Wharf Street, instead of going directly into and through it via the overwater walkway. The costs for simply “tacking on” full-scale non-motorized access to a future Wharf Street bridge would make your jaw wobble in disbelief. These sorts of alternatives, nevermind the fact that they are clearly less desirable for access and public safety, will still be big, environmentally intrusive, and exorbitantly costly. Anyone arguing otherwise is delusional.

The extension of the overwater walkway into a future Cornwall Beach park, when looked at holistically as a transportation route, is not remotely a mere duplicate of the existing South Bay trail that is snuggled high up on the bluff. While it may take decades for us to reach the point when we NEED to move the rail line in the Waterfront District—and therefore forcing us to address what will certainly be a wickedly dangerous route over Wharf Street’s at-grade crossing during the interim—it only takes a careful glance at the existing topography and options to know that this overwater walkway will be an outright necessity rather than the whimsy some are claiming it is today. Furthermore, given the very high policy targets set for inspiring multi-modal use in the Waterfront District, this improved route would clearly help to get commuters out of their cars (and out of the District’s parking spaces) if they lived in Fairhaven, Samish Crest, or in Happy Valley, the most densely-populated neighborhood in Bellingham.

We will build this overwater walkway, I believe, because we will need to. Waiting 20 years will only make it more costly and will keep us, in the meantime, from enjoying its clear benefits.

The last economic argument for this project I would want to stick in opponents craws is this:

The reason we are negotiating with the Lummi right now is not because of some nefarious plot to screw them over. We have done all of the studies, the design work, and the preliminary permit reviews for precisely one reason ... to get to this point. We could not, quite obviously, hand the Lummi a blank sheet of paper and ask them to sign off on it. What was needed was details—bathymetric studies, route specifics, trail size and width, the number of pilings needed, the location of eelgrass beds, etc. and ad nauseum. Nobody at the City of Bellingham, either staff or elected official, has ever once pretended that the Lummi Nation would not need to sign off on this project in order for it to be built. Likewise, nobody has claimed that this construction project would not impact established treaty rights. This is a large and exquisitely complex project, especially from the perspective of land use and the overlapping agencies involved. It has taken time and energy to get this far, to get to this point where we could talk specifics with the Lummi. Rather than being a subversion of the process, I would argue that this IS the process and, furthermore, it is the ONLY process that could claim to be valid. (Harris likes for us to believe that this plot came out of nowhere and somehow skirted public input; the reality is this overwater route was first mentioned as part of the Parks, Recreation and Open Space planning in 2002 and, subsequently, has been included in almost every relevant document and public debate related to the waterfront since that time.)

Actively opposing the construction of this walkway, to protect the rip-rapped shoreline of BNSF’s billion-ton dump of imported rocks or, perhaps, the lifeless sea-mud that may curl up and die as a result of being shaded by this 14-foot-wide elevated trail, is anyone’s prerogative. But a failure of the citizenry to rise up in rebellion against this project, for at least the past decade, means that well over $500,000 has already been spent on it.

That is a sunk cost, on all those designs and studies, which will never be recovered. It is spent.

It was spent, again, precisely so that the City of Bellingham could have something to discuss with the Lummi Nation. From here, one suspects, the Lummi have a strong hand for leveraging mitigation projects that they can select from endless miles of our heavily-developed and oftentimes polluted coastline.

My vote is we let them talk—and I suspect that the Lummi are eager to—so we can see where this negotiation goes from here.

To comment, Log In or Register