No confidence. That’s right. NO CONFIDENCE! I have no confidence in the Fairhaven Highlands EIS… and neither should you.
And it’s not for the obvious reasons. Sure, all draft environmental impact statements are bound to have errors and omissions. Certainly, the long-awaited Fairhaven Highlands DEIS has its share.
But for the authors to violate an essential and fundamental principle of the State Environmental Policy Act (SEPA) is not a simple error or omission. Did the authors fail to grasp the purpose of SEPA? Or did they intentionally violate SEPA and knowingly understate the actual environmental impacts of this project? Either way, how can anyone have confidence in this process now?
A primary purpose of SEPA is “to promote efforts which will prevent or eliminate damage to the environment and biosphere.” A key element of SEPA is the environmental impact statement, or EIS, which must disclose significant environmental impacts of the proposed project.
SEPA is potent law. “The policies and goals of SEPA supplement the existing authority of all government agencies and give officials the discretion to deny projects based on negative environmental impacts disclosed by an EIS… Our courts have repeatedly stated that SEPA is not a substitute for local zoning ordinances, but overlays local ordinances and must be enforced even where a particular use is allowed by local law or policy.” [Victoria Tower Partnership v. City of Seattle (59Wn. App.592)] (Emphasis added)
SEPA is not limited by the State’s vested rights doctrine. When disclosing the environmental impacts of a particular project, the EIS must disclose adverse impacts using current scientific information, regardless of whether a project may be “vested” under obsolete laws that reflect outdated science.
The Fairhaven Highlands draft EIS fails to comply with SEPA in this regard. The EIS confuses legal impacts with environmental impacts, and, by doing so, fails to adequately disclose the true adverse impacts to the 16 wetlands that cover the 82-acre Chuckanut Ridge site.
The importance of wetlands has long been established. According to the Environmental Law Institute’s Guide to Wetland Buffers, “wetlands help control flooding and reduce damage from storm surges. They trap sediments and pollutants that otherwise might enter waterways. They help to recharge groundwater in some areas, and in tidal zones they provide nurseries for shellfish and fish. They also serve as habitat for birds, amphibians, and other wildlife and provide scarce natural areas in urban and suburban environments…
“Attention to these functions is essential to governance of the community’s land uses, public health, safety, and welfare. But these functions cannot be sustained without care for the uplands adjacent to wetlands - wetland buffers.” (Emphasis added)
Yes… wetland buffers!
The significance of wetland buffers is highlighted in Table 1-1 of the draft EIS, which presents a “Summary of Development Alternatives” for Fairhaven Highlands. This executive summary indicates the extent to which wetlands are filled and buffers are developed upon. For example, the DEIS claims that Alternative 1C will fill 3/4 acre (34,000 square feet) of wetlands and directly impact 6 acres (263,000 square feet) of wetland buffers.
We can all agree that permanently destroying 6 acres of wetland buffers will be devastating to the long-term health of these wetlands; however, what if the real impact is the destruction of 10 acres or more?
In other words, the 6-acre calculation is bogus and violates SEPA’s requirement to adequately disclose the true environmental impact of the proposal. This calculation is based on the obsolete wetland rating system and obsolete wetland buffer requirements under a law that was deleted from the Bellingham Municipal Code four years ago when the city adopted its Critical Areas Ordinance (CAO).
The draft EIS violates SEPA because it confuses legal impacts with environmental impacts. While the EIS discloses the legal impact based on the law in effect when the application was submitted in 2005, it fails to disclose the actual environmental impacts - based on best available science - of building adjacent to wetlands.
So, what are the actual environmental impacts? I admit that I don’t know. In order to determine the actual area of wetland buffers that will be destroyed, you need a GIS system that can draw the true, scientifically-based buffers and calculate the acreage impacted.
The problem with the DEIS is that nobody knows the true impacts because the DEIS fails to disclose them, and by failing to disclose them, violates a key tenet of SEPA. The true environmental impacts have not been disclosed to any of the 17 public agencies currently reviewing the DEIS, including the Dept of Ecology. Nor have the true environmental impacts been disclosed to the hundreds of local residents who are in the process of preparing comments on the DEIS.
That’s why I have no confidence in the DEIS. If the authors have failed to disclose the true impacts on wetlands and wetland buffers, what else have they failed to disclose