Update on Cherry Point Buffer Mitigation Proposal

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The County Planning Department just issued a memorandum to the County Planning Commission recommending removal of the Cherry Point Industrial area that is outside of the Birch Bay watershed from participation in the proposed Birch Bay watershed offsite mitigation program.

The Planning Staff’s recommendation resulted from concerns that the proposal would permit buffer impacts for Cherry Point development, which I discussed in an earlier posting. Staff believes this recommended change will address community concerns, although it believes these concerns are unfounded because industrial uses do not qualify as low impact development, which is a prerequisite to use of the offsite mitigation program.

This revision, if approved by the Planning Commission after a public hearing on December 8, 2011, will not address community concerns. That portion of the Cherry Point Industrial area located within the Birch Bay watershed still remains in the proposal. And that portion happens to include the SSA project site and rail line.

Despite Planning Staff assurances that industrial development does not qualify for low impact development, and therefore, the offsite mitigation program, attorney Tom Ehrlichman of Salish Law, PLLC, remains concerned. He cites a loophole in the offsite mitigation proposal that might allow SSA to reduce stream and wetland buffers along rail lines within the Birch Bay watershed.

According to his analysis, SSA Project Information Documents reflect new rail line improvements for SSA’s east and west loops, which traverse wetland and stream systems located within the Birch Bay watershed. This rail work will likely involve extensive disturbance of a major wetland system characterized under the Birch Bay Watershed Pilot Study as having “good restoration potential.”

Mr. Ehrlichman notes that a reduction in buffers could be allowed even without engaging in low impact development. The offsite mitigation proposal provides that:

The Technical Administrator may waive this requirement [requiring LID before any buffer reductions would be allowed] on a case by case basis if s/he has reason to believe that the proposed development project has minimal effects on water quality and quantity.

The only criterion for judging whether this provision has been applied properly by staff is whether the project as a whole has “minimal effects,” not whether the reduced buffer would have a minimal effect on the stream or wetland in question. Under such a loosely defined standard, it would be almost impossible to overturn the staff’s discretion.

Mr. Ehrlichman calls upon the Planning Commission to revise the offsite mitigation program to specifically prohibit its use for industrial development, thus eliminating any potential loophole for SSA. I wholeheartedly agree. Since the offsite mitigation program states it is intended for residential and commercial development, this revision would add clarity to the proposal.

I do want to mention that, beyond problems surrounding SSA and Cherry Point, I remain deeply concerned about this proposal. I believe it will undermine our existing County Critical Area Ordinance and harm fish and wildlife by allowing development before replacing habitat, failing to require adequate mitigation fees, and failing to identify and protect habitat of greater conservation value. For a link to the proposed offsite mitigation proposal, and information on the public hearing, please see my earlier post.

About Wendy Harris

Citizen Journalist • Member since Mar 31, 2008