Whatcom Watch Online
December 1998
Volume 7, Issue 12

Cover Story

Deliberations Continue on Proposed Fifth Deep Water Pier at Cherry Point

by David M Schmalz
David M. Schmalz is president of the North Cascades Audubon Society.

Graph showing Cherry Point herring stock decline.

The Cherry Point reach is one of the richest, most productive and sensitive marine resource sites in Washington state. The following information is intended to provide an update on ongoing efforts to develop an additional deep water pier and shipping terminal at Cherry Point in Whatcom County.

The issue of whether or not to allow the construction and operation of an additional pier in the Cherry Point reach is at once, complex, controversial, and involves great stakes both in terms of economic development and natural resource protection for Whatcom County.

In 1997, the Pacific International Terminal proposal received shoreline development permits from Whatcom County to construct a deep water pier and operate a bulk cargo shipping facility at the Cherry Point site on Georgia Strait west of Ferndale.

The pier would add approximately 140 ocean-going ship and barge trips per year to an eight mile reach of shoreline which currently receives 850 annual trips to the ARCO and Tosco refinery piers and the Intalco Aluminum pier. These ships enter the Strait of Juan de Fuca and ply through the waters of the San Juan Islands to reach Cherry Point.

Pacific International Terminal is the second deep water pier proposal to be issued county shoreline development permits for the Cherry Point reach. Cherry Point Industrial Park, whose original proponent was Joseph Scheckter, of Edmonton, B.C., received its permits in 1993. Cherry Point Industrial Park´s permits were appealed by a coalition of state resource agencies and environmental organizations for failure to adequately address and mitigate for potential environmental impacts from the project. A protracted negotiation process led to a settlement which established statewide precedent-setting mitigation standards for the project. The centerpiece of the mitigation involved upfront demonstration of successful replacement of herring habitat before the project could begin. For a variety of reasons which will become apparent, Cherry Point Industrial Park has not initiated or begun to implement any of the mitigation requirements and their proposal is basically on hold.

Shoreline Appeals Filed

Shortly after their issuance, the Pacific International Terminal (PIT) shoreline permits were appealed to the State Shorelines Hearings Board by the Washington State Department of Ecology, the Washington State Department of Fish and Wildlife, and a coalition of five environmental groups including the North Cascades Audubon Society, Washington Environmental Council, People for Puget Sound and the Whatcom County Chapter of the League of Women Voters. The basis of the appeals was failure by the county to adequately address and mitigate for likely environmental impacts from the project.

The shoreline permit review is one of many separate regulatory review hurdles which the PIT must clear before receiving ultimate approval to move ahead with their project. Most significant among upcoming review processes are the Section 404 permit review and multi-state needs assessment for an additional pier from the U.S. Army Corps of Engineers, and an Aquatic Lands Lease Permit review by the Washington State Department of Natural Resources. Natural Resources has maintained a position that if an additional pier is ultimately allowed at Cherry Point, it will be the last pier permitted in the reach. This, however, is a stipulation which to insure, would require significant policy and legislative action on the part of numerous levels of government.

A Year of Negotiations

For over a year, Washington State Departments of Fish and Wildlife, Ecology, the Pacific International Terminal (PIT) project proponents, and the environmental appellants have been working diligently in a settlement negotiation process intended to identify, address and mitigate environmental concerns addressed in the shoreline permit process in a fashion which would preclude going to hearing. The process has been cooperative and has made substantial gains toward insuring adequate protection of the marine resources at Cherry Point on a number of specific issues. Pacific International Terminal (PIT) is to be commended for, in some instances, agreeing to conditions above and beyond what are required by existing state regulations.

Notwithstanding our joint efforts to develop a project-specific mitigation plan, fundamental questions remain about whether the PIT project constitutes the best use of this ecologically critical shoreline. Moreover, project proponents and environmental interests are continuing to negotiate over whether, and to what extent, all relevant information has been generated and subsequent mitigation has been required in order for the project to move forward. The environmental appellants´ continued efforts to develop successful mitigation and any possible settlement of the pending shoreline appeals should not be considered an endorsement of the PIT project or any other existing or proposed pier projects.

Ecological Significance of the Site

Both the Cherry Point Industrial Park and Pacific International Terminal (PIT) proposals embrace extensive areas seaward of the tideline, which has been designated as a shoreline of statewide significance. The diversity, abundance and importance of the marine ecology at Cherry Point has been extensively documented by virtually every state and federal natural resource agency. The nearshore area has been identified as especially significant in northern Puget Sound by the Marine Ecosystems Analysis Studies.

Factors contributing to this designation include: algal/eelgrass biomass; benthic faunal biomass; occurrence of detritus; the use of habitat for foraging, reproduction, rearing, migration and nesting by fish, birds and mammals; and human use for resource harvesting (both commercial and recreational) and recreation. Additionally, the Washington State Department of Fish and Wildlife has identified the shoreline as state designated critical wildlife habitat and identified it as a significant site to marine mammals.

Critical Herring Stocks

The biological centerpiece of the Cherry Point marine ecology are the herring stocks. Herring stocks in the Cherry Point area historically have comprised the single largest populations in the state of Washington and have in the past constituted as much as 50 percent of the adult herring stock in Washington state waters.

Herring are the cornerstone of the marine food chain and are extremely important to the lives of salmon, seabirds, waterfowl, marine fish and marine mammals during their entire life history. The Cherry Point reach provides habitat for all five species of Pacific salmon and has been identified as one of the most important areas in the inland waters for the commercial production of Dungeness crab.

Birds are an excellent indicator species that provide invaluable information about the ecological health and value of an area. The Cherry Point reach is utilized by substantial numbers of avian species dependent on this area as an integral part of their annual feeding cycle. The highest concentration of birds observed anywhere in northern Puget Sound occurred at Cherry Point with 13,000 birds per square kilometer and over 25,000 surf scoters have been observed in a single area of the reach. These numbers correspond to the herring spawn in spring and dramatically illustrate the unique and critical nature of the marine ecology at Cherry Point.

Potential Impacts to Marine Environment

A primary, unresolved concern with industrial development at Cherry Point, and in particular with the construction and operation of additional large-scale shipping terminals, is the potential for contamination and degradation of water quality and the effects that will have on the marine ecology. Concerns range from impacts resulting from chronic, low-grade degradation from day to day operations of shipping facilities over a long period of time to the catastrophic impacts likely to occur in the event of a major incident, e.g., a ship collision or major oil spill.

Although neither pier proposal intends to handle fuel as cargo, the average size ship to utilize the piers carries as much as 1,250,000 gallons of fuel for its own power. Two of the three existing piers at Cherry Point do currently handle tankers and the increased ship traffic heightens the possibility of mishap.

Problems With the Regulatory Review Process

The principal resource concern arising from the addition of another major pier to the reach involves the Cherry Point herring stock and potential impacts to that stock from a variety of factors. Since the 1970s the Cherry Point herring stock has declined precipitously. According to Washington State Department of Fish and Wildlife data, the total spawning biomass of the Cherry Point stock declined from over 12,000 tons in the late ´70s to less than 2,000 tons last year.

At the same time the area of herring spawning habitat utilized by the stock has contracted dramatically. In the 1980s herring spawned along approximately 25 miles of shoreline from just south of Blaine to Lummi Island. By 1997, however, spawning was limited to the approximately two to three miles of shoreline in the immediate vicinity of Cherry Point.

Given the role of herring in the marine ecosystem, the decline of this stock has significant implications, especially with increasing efforts to protect and restore wild salmon runs. There are currently three piers in the immediate vicinity of the proposed Pacific International Terminal (PIT) project. Two of the three piers are associated with oil refineries which are projected to substantially increase their operations over the next few years. Expansion of the existing ARCO and Intalco piers is also proposed.

There are serious unresolved concerns regarding the cumulative impacts of the existing and projected piers on the Cherry Point herring resource, not only as a result of the potential physical alteration of herring spawning habitat, but also due to the inevitable increases in large vessel traffic and the associated risk of minor and major oil spills.

Progress in Mitigating Impacts

The aforementioned settlement process between the Washington State Department of Fish and Wildlife, Washington State Department of Ecology, project proponents and environmental appellants has had some success developing mitigation that would reduce the risk of significant impacts from the Pacific International Terminal (PIT) project as much as is feasible within the context of a single permit application.

Issues where significant progress has been made include potential impacts from the pier location; wave dampening; alteration of littoral drift; facility construction and operation; and ballast water discharge protocol and monitoring. There has also been marked progress addressing vessel traffic safety issues; spill prevention, preparedness and response; efforts to protect and preserve public access; and conservancy of important upland ecological sites.

Despite these gains, however, a mitigation program focused on a single permit application is not necessarily sufficient to even address, let alone mitigate for, the risk of cumulative impacts to marine resources (particularly to herring) when combined with already existing industrial and pier-related activities in the reach. The single permit review process in many instances requires only an analysis and mitigation for likely impacts at the specific site where development is proposed and is not adequately designed to address these broader issues. With respect to many resource issues, the settlement agreement process reflects, at best, a pragmatic effort to settle pending appeals on a piecemeal basis.

Addressing the Overall Public Interest

A superior forum for considering and addressing these concerns is the submerged lands leasing process under the authority of the State Department of Natural Resources. As the proprietary owner of the bedlands underlying both the existing and proposed piers, and the guardian of the state´s public trust interest in these lands, the Commissioner of Public Lands (department head of Natural Resources) has both the power and the duty to ensure that private use of the state´s submerged lands serve the overall public interest. The Commissioner of Public Lands, Jennifer Belcher, has been acting as a wise steward of public trust resources by raising fundamental questions concerning the appropriate use of the Cherry Point shoreline.

The Department of Natural Resources has a trust responsibility to take a broader and more comprehensive view of aquatic resource issues than the Washington State Departments of Fish and Wildlife or Ecology might otherwise take in the context of a single permit decision. The Commissioner of Public Lands must retain the discretion to comprehensively review the entire situation at Cherry Point and make an independent judgement about whether and under what conditions a lease of additional public trust lands would serve the overall public interest.

Department of Natural Resources´ Concerns and Recommendations

Natural Resources has maintained since at least 1997 that decisions that have to be made about the management of its Cherry Point lands necessarily involve considerations beyond the PIT project alone. In opting not to participate in the shoreline permit settlement process directly, Natural Resources took the position that it is not appropriate to make its leasing and other management decisions in the context of a single permit application. Natural Resources has a number of overall goals it seeks to achieve for all state-owned aquatic lands. They include the encouragement of direct public use and access, the promotion of water dependent activities, encouraging multiple uses of existing piers and wharfs, long term environmental protection and stewardship and the utilization of available resources.

Spawning Severely Depressed

The department stated in 1997 that the declines in herring stock, and the associated impacts on salmon populations which are scheduled to soon be listed as threatened under the federal Endangered Species Act require close attention and careful management at Cherry Point. Severely depressed spawning escapement in 1997 and 1998, and the expectations for continuing poor survival for the Cherry Point herring stock, added to the long-term decline, have heightened the department´s concern for the stock´s status.

The department has established a goal for this area that calls for net improvement in the stock. Natural Resources´ goals also identify the need to improve information about the herring stock, and the need to evaluate uncertainty and risk associated with potential impacts to the resource. These efforts are necessary in order to make fully informed decisions regarding long term protection of marine habitat.

The Department of Natural Resouces continues to maintain that many of the significant concerns raised and submitted by their office during the State Environmental Policy Act and shoreline permit review processes have not yet been adequately or fully addressed. The department considers the Cherry Point stock to be a key component in salmonid conservation initiatives including those driven by Endangered Species Act listings. Natural Resources is working to comply with strong federal suggestions that the state will have to achieve a net gain in salmonid habitat and function as we move forward on conservation initiatives.

Natural Resources has taken the position that it is not in the state´s best interest to proceed with any aquatic lands use authorization that could adversely impact the Cherry Point herring stock and its spawning and larval rearing habitats prior to implementation of a conservation initiative that sets measurable and enforceable objectives and actions to achieve a net gain in the productivity and/or production level of herring stock.

Comprehensive Analysis Needed

In October of 1997 the Department of Natural Resources identified the need for a detailed and comprehensive analysis of the sum total impacts the proposed pier and all current and future operational activities may have on the Cherry Point herring stock over the long term. The analysis must address potential impacts to all life history aspects of herring in order to make some assessment as to the level of risk a new pier would pose to the herring population.

Department studies in 1998 indicate serious problems with herring reproductive success at Cherry Point. Recent trends in annual population show a precipitous decline in herring stock at the site (see chart on page 6). Natural Resources has determined that the Cherry Point herring stock does not currently meet the biological thresholds which define a healthy stock. The agency maintains that an examination of the Cherry Point herring issues must be made on a regional basis in collaboration with federal agencies, existing Cherry Point industries and Pacific International Terminal (PIT) in anticipation of the proposed listing of Chinook salmon throughout Puget Sound under the Endangered Species Act.

Natural Resources is recommending further analysis of specific causes of stock decline at Cherry Point and a regional risk assessment analysis which examines factors on a larger geographical scale which may be influencing Cherry Point stocks. Additionally, the department is calling for the preparation of an Aquatic Landscape Plan to address proprietary decisions that need to be made by the agency to ensure adequate protection/mitigation measures are taken for herring.

It is Natural Resources´ position, and the environmental appellants concur, that these additional studies are an essential component of a complete assessment of the potential impacts to critical resources from an additional pier at Cherry Point. PIT proponents, in contrast, maintain that through the shoreline permit review process, all relevant environmental concerns have been addressed.

How Many More Piers Will Be Allowed?

Given a scenario in which an additional pier is able to satisfy all environmental concerns and is ultimately approved for the Cherry Point reach, a major goal of the environmental community has been to insure that it would be the last pier allowed at Cherry Point. To accomplish this will involve negotiating and invoking restrictions on the remaining development rights at Cherry Point and adopting significant changes to both the Whatcom County Master Shoreline Program and Comprehensive Plan.

The current stated policy of the Department of Natural Resources to allow only one more aquatic lease for the reach in no way guarantees limiting the number of piers at Cherry Point in the future. Commissioners come and go, and political will can often overcome natural resource agency mandates, no matter how sound.

Cherry Point Special Management Unit

In 1987, following the failure of two major shoreline dependent development proposals at Cherry Point (Chicago Bridge and Iron and Peter Kiewet and Sons), Whatcom County revised and adopted significant changes to its Shoreline Master Program in order to provide more opportunity for success in the development of the Cherry Point shoreline. Thus was born the Cherry Point Special Management Unit.

There remain today, significant questions regarding whether or not the Cherry Point Special Management Unit is consistent with and/or compliant with the Washington State Shorelines Management Act. The National Marine Fisheries Service, U.S. Fish and Wildlife Service, Washington State Department of Fish and Wildlife and Washington State Department of Ecology all opposed the adoption of the shoreline amendments related to this management unit. Additionally, the federal Office of Coastal Resource Management has never approved of these changes via routine program implementation. Furthermore, the Washington State Ecological Commission, in their review of Whatcom County´s Management Program in 1993, did not approve of these changes.

The creation of the special management unit, according to federal officials, allowed for the substantial risk of destruction of a shoreline of statewide significance which had previously possessed conservancy and aquatic designations intended to afford protection from such development activities. The Cherry Point Special Management Unit made no attempt to limit the number of additional piers which might be allowed to locate in the Cherry Point reach. Nor does the current Whatcom County Comprehensive Plan in any way preclude the development of multiple additional piers in the reach. Insuring that if an additional major pier is located at Cherry Point, it will be the last such pier, remains a significant, unresolved issue.

Where Do We Go From Here?

The issue of whether or not to allow the construction and operation of an additional pier in the Cherry Point reach is both complex and controversial. Concomitantly, the regulatory review process for such an endeavor is as long and tortuous for proponents as it is for those citizens and organizations who work to protect our natural resources and heritage.

Pacific International Terminal has done an exemplary job of identifying and attempting to mitigate potential impacts from their project proposal. There is no argument that state regulators should provide as much clarity and predictability to the review and approval process as possible. However, it is a long process and there is new and disturbing information regarding the health and status of the herring stocks at Cherry Point. Moreover, we have recently upped our commitment as a region to protecting our wild salmon populations and habitat.

The inescapable conclusion is that when natural resources of as critical a nature as exist at Cherry Point are at stake, development activities need to be examined comprehensively, exhaustively and with a great deal more priority given to their long-term protection than we have allowed for in the past.

Cherry Point Companion Story

Key Events Relating to Cherry Point

1954 Mobil Oil (Tosco) constructs the first pier at Cherry Point.
1966 Intalco Aluminum constructs the second pier.
1971 Atlantic Richfield (Arco) constructs the third pier.
1972 Washington state voters pass the Shoreline Management Act.
1976 The Whatcom County Shoreline Citizen´s Committee designate the Cherry Point shoreline as Convervancy. Earlier, the uplands were zoned Industrial.
1977 Chicago Bridge and Iron proposes building offshore oil drilling rigs. The project would fill 22 acres of water with one million cubic yards of rock and dirt.
1981 The Washington State Department of Ecology rejects 11 of the 15 amendments to the Shoreline Management Program, needed to build the landfill.
1982 Chicago Bridge and Iron has a bill introduced in the state legislature exempting their property at Cherry Point from the Shoreline Managment Act. It is passed by the legislature but vetoed by Governor John Spellman.
1983 The Kiewit Construction Company proposes the upland fabrication of offshore oil and gas drilling platforms.
1984 The Washington State Departments of Ecology and Fisheries deny permits to Kiewit.
1987 The Whatcom County Council passes the Cherry Point Management Unit. The shoreline is rezoned from Conservancy to Industrial.
1992 The Cherry Point Industrial Park/Joseph Sheckter propose a pier stretching 2,000 feet into Georgia Strait.
1993 Five citizen groups appeal county approved development permits for the Sheckter proposal to the Washington State Shorelines Hearings Board. Washington State Departments of Ecology, Fish and Wildlife and Natural Resources join appeal.
1995 State Departments of Ecology and Fish and Wildlife reach an agreement with Sheckter.
1996 Citizen´s groups reach an agreement with Sheckter.
1997 Pacific International Terminal receives shoreline development permits from Whatcom County to construct a deep water pier at Cherry Point.
1997 Five citizen groups appeal development permits to the Washington State Shorelines Hearings Board. Washington State Departments of Ecology, and Fish and Wildlife join appeal.
1998 Washington State Departments of Fish and Wildlife, Ecology, Pacific International Terminal, and five citizen appellants negotiate settlement.

Cherry Point Companion Story

Politics, Misinformation and the Perils of Silence

by David M. Schmalz

Just prior to the recent election, Governor Gary Locke weighed in on the Cherry Point pier issue with the surprising news that the settlement of shoreline permit issues was imminent. Careless local media coverage of these remarks resulted in the grievously incorrect reporting that, thus, ultimate pier approval was also imminent. Local civic leaders caught the wave of premature support for the project, claiming that the environmental community had “signed off´ on the project and had agreed, or were about to agree that all environmental concerns would be covered in the shoreline permit settlement.

This left the appearance that Jennifer Belcher and the Department of Natural Resources were standing alone as the only entity with any remaining concerns about the project. KGMI, in particular, did a particularly shrill morning show attempting to portray Belcher and Natural Resources as out-of-touch extremists who, with no justification, were attempting to further delay the otherwise universally accepted Pacific International Terminal pier proposal.

Environmental interests quickly went to work to dispel this notion, working to clarify their position of complete support for the Department of Natural Resources´ position and to generate support from the public to that effect. A significant downside of the past year´s quiet settlement negotiations has been the tremendous void of information to the public concerning where the pier proposal stands and what the issues even are concerning the addition of another major pier at the Cherry Point reach.

The environmental appellants, in the interests of negotiating in good faith, erred on the side of caution and were negligent in doing what they do best: educating the public about the issues and, where appropriate, encouraging participation in this important matter. Naturally, during this time, project proponents were working diligently with local civic and legislative leaders, and resource agencies to present the project in its best light. The result has been a rather one-sided characterization to decision-makers about what relevant issues remain to be addressed in order to make a fully-informed decision regarding this crucial issue.

Cherry Point Companion Story

What Can You Do?

The Washington State Department of Natural Resources is under tremendous pressure from local civic, development and legislative leaders to modify or drop their position. Commissioner of Public Lands, Jennifer Belcher has been repeatedly characterized as the lone force who continues to have serious concerns about the project. Momentum has been building to permit the pier to go forward without the key studies and analysis which Natural Resources recommends be done.

The environmental community must send a strong message of support to local and state officials for the department´s position and recommendations. It is the position of the environmental appellants that the pier should only move forward if a regional risk analysis shows that construction and operation activities will not pose an unacceptable risk to the Cherry Point herring stock. This risk must be reviewed in a regional context and the conclusions of this analysis must ensure that it does not constitute a takings under the proposed listing for Chinook Salmon under the Endangered Species Act, as determined by the National Marine Fisheries Service.

Additionally, it is anticipated that legislation will be introduced (and possibly supported by local legislators) which will strip the Department of Natural Resources of their jurisdictional authority of state owned aquatic lands. Please consider writing a letter of support for the department’s position regarding Pacific International Terminal and advocating their retention of discretionary authority over these and other critical public aquatic lands. Please send copies of your comments to the following:

Cover Story

Home Developers Have Flagrantly Violated Bellingham Laws

by David Henry
David Henry is a high school educator who works with citizen volunteers performing water quality testing. He has a masters in science/environmental education from Western Washington University.

Map showing project location.

Just above Lake Padden, developers Ted Gacek, Greg Eiford and the Barbo ownership have flagrantly violated city agreements and ordinances in grading their 102-home Parkhurst development. Gacek and Associates ignored all the boundaries of required natural vegetation buffers, cut all the trees, and scraped the vegetation clean off the land, leaving behind a dangerously unprotected moonscape right before the rainy season.

The facts are ugly. Sediment-laced runoff from their one detention pond has been funneled directly into a protected Class II wetland; then the wetland was channelized. Illegally-removed vegetation has not been replaced. A road was added 10 feet away from a neighbor´s house causing a hill to give way. Rocks, gravel and sediment filled 48th Street, ditches, and a neighbor´s front yard. At least one basement was flooded. Public concerns and laws have aggressively been bulldozed over. The developers have continued to ignore city staff concerns and simply take their violations like the painless slaps on the wrist that they are.

A Dangerous Precedent

The city´s lack of inspections or courage to stop this while it was happening (after all the promises that were given to us at three public meetings), and the developers´ continuous flagrant disregard of the city´s most basic legal requirements, are volatile precedents for future development in Bellingham.

These developers wrote in their environmental impact statement: “No clear cutting will take place. Open space areas will retain native vegetation.” Then they spent this past summer removing All native vegetation. City Council members and staff who toured the site expressed disbelief at what they had done, but a clear penalty has yet to be established, which begs the question: Why would the next developer need to obey any of the city´s requirements? If the punishment does not exceed the benefits, what is stopping them from committing the crime?

Beware — these are the same developers who wrote the Chuckanut Ridge Environmental Impact Statement. These developers used these documents to make every promise of environmental sensitivity and then reneged on them once their development was approved.

Little Public Response

How has this all occurred with little public outcry? First of all you can´t see the development just by looking at the north side of the Lake Padden. You have to drive up Harrison through the Padden Hills neighborhood or up 48th street across from the Lake Padden beach. Their large sign advertising “View lots” has recently been taken down, perhaps due to embarrassment.

Secondly, the public was given wrong information about the planning commission hearing. The notice went out with the wrong date printed in capital letters, bold, and underlined. Despite this obvious error in the public process, and with this fact brought to the city´s attention, they stumbled forward.

Citizens also may have been distracted from this issue after the exposure of discussions to develop and cut in the last forested buffer in Lake Padden´s north watershed for a new elementary school. (See Rob Galbraith´s article, Whatcom Watch, Oct/Nov 1998, page 1)

Violations to Date

As of November, Gacek and Associates had been slapped with two citations each for violations of Bellingham´s land clearing code (B.M.C.16.60). One more violation and they face criminal charges. Workers were stopped at the last minute by neighbors, from cutting large Douglas fir trees off-site in the city right of way. Thus far city staff have only recommended a whimpy fine of $3,000 for the developer and owners, but included a hefty requirement that they replant native areas that they illegally removed. They also will be required to dedicate two lots to public open space.

Violations Unpunished

On October 7th, and on subsequent rainy days since, sediment-laced effluent spewed all day from the unvegetated Parkhurst site into a regulated, critical wetland. They pipe their water runoff at high velocity directly into a wetland without the mandatory 50-100 foot buffer, quite a change from their Environmental Impact Statement which promised us “biofiltration” in a “natural channel.” Recently Parkhurst workers actually went directly into the “protected” wetland and dug a 100-yard trench through it. City officials have yet to acknowledge that these are multiple violations of the Wetland and Stream Regulatory Chapter (Ordinance 10267).

This is a Bellingham City law accepted by the state of Washington which prohibits the discharging of any materials to a wetland, water pollution, or alteration of the water supply or flow. By law turbidity shall not exceed five National Turbidity Units.Their pipe has regularly discharged 125 National Turbidity Units, and the heavy rains have yet to come. This violation alone gives the authority for a $1500 fine for each offense and the issuance of a stop work order. If the city will not enforce, perhaps the state will.

Under State law (WAC 173-204 (6) (c)) sediment pollution is not allowed in areas determined “ecologically unique” such as a regulated wetland.

Conceivably developers can discharge pollutants into our protected wetlands if they apply for a Sediment Discharge Permit. But in order to be eligible they must “fully use(s) all known and available, and reasonable methods of prevention, control, treatment, and (BMP´s) best management practices. “ (WAC 173.204.410) Gacek, Eiford and the Barbo owners instead invented new standards in Bellingham development, or “Worst Management Practices” (WMP´s) that have resulted in gross erosion violations of waters owned by the citizens of Bellingham.

The main law they didn´t think twice about breaking is Bellingham law (B.M.C. 16.60).
The top objectives of this law are:

All three parts of this law were clearly snapped and broken by the Parkhurst developers. This Land Clearing Chapter calls for a maximum fine of $1,500 for each illegal land clearing offense. If we counted all the trees and native vegetation they illegally removed as the offense that they are, the fines would reach the level of the national debt. Yet the city proposes to fine the developers a mere $3,000 above the cost of plants they have to replace. Miraculously, the only trees left on site are in front of the Barbo homes.

City Promises Broken

Perhaps the ugliest violation is the rape of the public trust after both city government and the developer gave promises and assurances, then failed to uphold any of them. At the February public hearing, council member Arne Hanna promised us that the Barbo family and Gacek were “stewards of the land,” as the city council unanimously approved the Parkhurst plat. This over neighbors´ overwhelming concerns about drainage and erosion to critical wetlands and the lake. What instread resulted from the entire public process is the antithesis of the words “stewardship” or “trust.”

More Bad Lake Development

The pattern is all too familiar to stalwart Bellingham citizens trying to protect our drinking water reservoir, Lake Whatcom. Unenforced, reckless development threatens a lake used for recreation and an important future water source. Unfortunately this time the natural resource jewel on the block is Bellingham´s Lake Padden (or what some city staff refer to as a “regional detention facility”).

Along with the land, these developers have also dug up some weighty questions. Will Bellingham citizens stand silently while developers get away with stealing our “commons,” or endangering our property and the waters around us, in both Lake Whatcom and Lake Padden? Is this the standard for development in the projected future growth areas around Lake Padden and throughout the cty?

At a time when salmon will be listed as endangered, is this the shining example of local control and enforcement Washington state will show off to prevent the federal government from coming in to enforce the Clean Water and Endangered Species Acts?

And the ultimate question for us, the citizens of Bellingham: Do our elected officials have enough political support from us to stand up to the ultra-powerful development lobby (Building Industry Association) and enforce the laws designed to keep Bellingham livable, and our resources natural?

As far as I am concerned the word and reputation of all people involved is mud, as will be our precious water resources when they are done with them. This will only happen again and again until we clearly tell developers that crime doesn´t pay, i.e., they don´t easily cover the cost of fines with the price of one view lot or tree that they get from the illegal clearing. The city must make an example of developers for their flagrant violations of agreements and laws in grading their 102-home Parkhurst development above Lake Padden.

Please urge Mayor Asmundson and your City Council to withold final Parkhurst plat approval until the vegetation has grown back to the level at which they were supposed to have left it. A two to three year wait could provide the economic deterrence to prevent this from happening to the next large development in Bellingham.

Home Developers Companion Story

Cataloging Parkhurst's Sordid Past

July 16 First public neighborhood meeting.
Sept. 29 City approves developers’ Environmental Impact Statement which states “No clearcutting will take place. Open space areas will retain native vegetation....”
Oct. 16 Planning Commission approves plat noting neighborhood drainage and traffic concerns.
Dec. 8 City Council considers Parkhurst plat even though the public notice for the previous meeting clearly states the wrong date (a date six months earlier). Developer says no future variances will be requested.
Feb. 2 City Council gives preliminary plat approval with specific clearing provisions. Arne Hanna assures everyone that the developers and owners are “stewards of the land.”
July Illegal clearing begins with the removal of agreed-upon native plant protection areas.
August City Council and staff tour moonscape.
Sept. 28 Oops. Grading violations discussed at City Council meeting. City staff advise the planting of 1140 trees and 4560 shrubs. To date, the third variance is requested by the developer.
October First rains send sediment-laden runoff to ineffective detention pond and on to city wetland. Runoff samples range from 90-125 National Turbidity Units, over twenty times higher than allowed into State Class A wetlands (WAC 173-201A).
Early Nov. City continues to develop a penalty for violations. As yet, not one tree or piece of vegetation has been replanted. Site remains unvegetated with little growth from seeding efforts.
Nov. 15 Surprise. First heavy rain causes a hill (about which neighbors had publicly expressed concern) to give way, sending large rocks and gravel across the roadway and three blocks down the street. A Parkhurst worker physically threatens a neighbor for complaining. The detention pond pipe spews thousands of gallons of sediment pollution into regulated wetland as erosion scours the unprotected site.

State Regulations Inadequate to Control Damage From Timber Harvests

by Andy Ross
Andy Ross is a resident of Whatcom County.

Crown Pacific took out a full page advertisement in The Bellingham Herald (page C9, Sunday, October 4, 1998) and Whatcom Watch (page 6, October/November 1998) to congratulate Whatcom county on securing the purchase (contributing $700,000 to the purchase) of the Canyon Lake Community Forest. The advertisement goes on to proclaim the virtues of Crown Pacific (Crown hereafter). Crown is the timber company which purchased most of the forest lands from Trillium, Inc. in Whatcom, Skagit, and Snohomish counties. While the sale of the Canyon Lake Community Forest was very good, it does not excuse their forest practices. This is the same company that has been practicing liquidation forestry because the price of timber fell through the floor. A drive on the Mount Baker highway will amply illustrate how much has been harvested recently.

Crown held a public meeting last May in response to community concern about the rate and amount of harvest in the Kenny and Canyon Lake watersheds. Crown stated that they were using high standards in the layout of their harvests and abiding by the regulations. Crown also clearly stated that they needed to make $1,000,000 a month for debt service (on the purchase of land from Trillium) and profit for their shareholders. Unfortunately the price of timber had fallen dramatically, so they have to cut a tremendous amount of forest to make the million dollar monthly payment. The cutting was so rapid in the Kenny and Canyon Lake watersheds (they are adjacent to each other) that one has to wonder if anyone, including Crown, had time to carefully inspect each of the planned harvests.

Stop Work Order Issued

In one instance, well after Crown had been alerted to the problem, the Washington Department of Natural Resources placed a stop work order on a portion of one of Crown´s units. This was due to the presence of an obviously unstable landform adjacent to Canyon Lake Creek on which Crown had intended to harvest. Crown´s consultant agreed that if the land failed, it could cause much damage to Canyon Lake Creek. That damage could include lower Kenny Creek becoming lower Canyon Lake Creek. Kenny Creek is known for the bald eagles which congregate near its mouth in the North Fork of the Nooksack river. Canyon Lake Creek is known for its abundant sediment and floods. That Crown was apparently unaware of the unstable landform, in a watershed known for its unstable landforms (another story), illustrates that the proposed harvest was not held to acceptable standards. To add injury to insult, Crown did not cancel the harvest on the unstable land once it was made aware of the problem.

State Regulations Inadequate

At the bottom of this issue is the fact that the current forest practice regulations are inadequate. If appropriate regulations were in place, Crown may not have purchased the timberlands because liquidation forestry would not have been as easy to accomplish. The price of timber is not known for its stability. It is not a matter of “if” the price is going to rise or drop; it is a matter of “when.”

In the advertisement, Crown states that by discounting the price of the land, “Crown has been able to leverage additional public and private contributions to greatly increase land transferred for public use and conservation purposes.” The advertisement itself is leveraging the Canyon Lake Community Forest in favor of Crown´s image. However, it seems that Crown is also discounting its impacts to local residents. Impacts of Crown´s presence could range from obliterated homes and roads to shortages of local private timber for local loggers.

Encouraging Responsible Forest Management

How do we encourage efforts such as the Canyon Lake Community Forest while holding Crown accountable for responsible forest management on their remaining lands? The sale of the Community Forest was good and does deserve credit. Crown employees are also pleasant to speak with and will make substantial efforts to address a citizen´s concerns. However, the bottom line is the bottom line, and the wood volume must be produced. The cost to local residents of Crown Pacific´s presence in the foothills has not ended.


Crown Pacific Practices Forestry That Endangers Downslope Neighbors

by John DiGregoria

Crown Pacific (Crown) is attempting to portray itself as a good land manager in the Pacific Northwest. We do thank them for selling a small piece of ancient forest surrounded by clearcuts and tree farms in the Canyon Lake Creek Watershed. In particular, it was generous of them to donate the riparian corridor along the steep inner gorge below Canyon Lake.

Crown has also protected a small tract of old growth forest at Arleco Creek, another small piece in the midst of huge clearcuts and tree farms. Crown´s willingness to consider conservation in their management plans is impressive, yet it is not an excuse to continue to operate in a fashion that increases risk to the health and safety of down slope neighbors, their property, and our natural resources.

Todd Creek

Recent Crown road building activities in the headwaters of Todd Creek resulted in three type-four [non-fish-bearing and wider than two feet] stream-crossing culvert projects blowing out during the same precipitation. These three failures, named Ugly 1, Ugly 2, and Ugly 3 by state officials, delivered sediment to the South Fork Nooksack River. Prescriptions were written to alleviate the problem: armoring the steep catch basins all the way up to the top of the failure. Prescriptions are conditions or parameters by which forest practices must abide.

When Department of Natural Resources´ field personnel visited Ugly 1, 2, and 3 and talked with the equipment operator placing the rock, the equipment operator stated he was only going to place rock up as far as the excavator could reach. The Department of Natural Resources´ forester informed the operator that this did not satisfy the prescriptions and that the entire failure required rock. Here we have a classic example of a breakdown in communication between the property owner and the contractor.

Whatever happened to property owners being responsible for contract activities occurring on said property? Oh, I forgot that we were talking about a deforestation corporation that is unconcerned with down-slope neighbors. If the understaffed, overworked forester had not checked in on the repairs to a failed cutslope, Ugly 1, 2, and 3 would have continued to feed sediment into Todd Creek and eventually into the South Fork Nooksack River.(See the article in this issue titled "Timber Harvest: Crown Pacific's Work is Protecting Todd Creek" for Crown Pacific´s response to a previous article on Todd Creek.)

River Farm

The River Farm, a land trust located at the base of Stewart Mountain between Hardscrabble and Standard Creeks, has been developing a working relationship with Crown Pacific since Crown purchased the Trillium holdings above River Farm. Trillium has an option to buy a large portion of Stewart Mountain back from Crown fifteen years after the land deal. The River Farm has been working with Crown to develop an ecoforestry plan for the few thousand acres above the farm. Part of this acreage is proposed to be leased to River Farm; part is to be clearcut and the third part is to be harvested in small clearcuts (approximately seven acres) with thinning throughout the remaining acreage.

This third area of small clearcuts lies above the south side of Hardscrabble Creek. After approval of the applications for thinning with small clearcuts, a Department of Natural Resources forester checked on the boundaries along the inner gorge of Hardscrable Creek and found that some areas dipped too far down into the gorge. A Notice to Comply was issued to Crown resulting in boundary markers being moved above a bedrock hollow and above steep slopes. The remaining concerns will be rectified when a local geologist visits the site with the prescription team.

Here we have a classic example of a deforestation corporation acting in bad faith with down-slope neighbors. While negotiating with River Farm, they push the boundaries of their forest practices increasing the risk to the housing of their trusting neighbors. When it´s time to sell this land back to Trillium, will Crown work in good faith with River Farm or will they liquidate their assets like they have done in Todd Creek, Glacier Creek, Jones Creek, Canyon Lake Creek, etc, etc, etc.?

Acme Watershed Analysis

Since acquiring Trillium´s holdings in the Acme watershed, Crown has been attempting to finish writing the prescriptions for the Acme Watershed Analysis. Crown initially weakened the conditions for harvesting on steep slopes. This resulted in the Timber, Fish and Wildlife team (a cooperative effort by industry, tribes, and environmental groups) sending the draft Watershed Analysis back to Crown for revisions. The main reasoning behind the rejections was the vagueness of language in the prescriptions.

Since then, Crown has submitted a few applications to cut in the Acme Watershed. These applications were classified as class IV special (potential for negative or adverse environmental impact) by the Department of Natural Resources. Rather than comply with State Environmental Policy Act requirements, Crown pulled the applications until further notice.

Why won´t Crown work in good faith with Timber, Fish and Wildlife and their neighbors? It is clear that they will continue to cut corners and operate with total disregard for the people living down-slope from their tree farms. The only thing that matters is paying that tax-free dividend to each of their stockholders.

Native Americans

Tribes Reclaim Stolen Lands

by Greg Hanscom
This report was made possible by a grant from the Northwest Area Foundation. The article was excerpted and reprinted with permission from High County News. The complete text may be found in the August 3, 1998 issue of High Country News, Vol. 30, No. 14, or on the World Wide Web at hppt://www.hen. Thank you to Cindy Wehling for e-mailing the article to Whatcom Watch.

In the 1960s, revolutions in Indian country were political, and the media swarmed in to cover sit-ins, demonstrations and fiery speeches. When the sit-ins and occasional violence ended, the media left and people on the reservations found little had changed.Today, Indian country is in the midst of a 1990s-style revolution, one that is likely to have a lasting impact.

Across the West, Indian people are in the early stages of a long-term revolution. When this revolution ends some time in the next century, Indian lands will no longer be controlled by the Bureau of Indian Affairs or the non-Indian farmers, ranchers, loggers and miners who lease land on reservations. Reservations will be economically sovereign, as self-sufficient and independent as any community can be in a global economy.

This story of the transformation of Indian country was written by High Country News staff writer Greg Hanscom after visits to reservations and interviews with people across the West and in Washington, D.C.

This is not a revolution that attracts headlines, like the sit-ins and confrontations of the 1960s. Rather than armed takeovers and battle cries, this revolution is made up of soil surveys, changes in the laws governing land inheritance, the control of capital and negotiations over leases. The revolution is both political and economic, and it promises to change the face of Indian country.

The Dawes Act: Dismantling Indian Country

Control of the land has been beyond the reach of many Indians for over a century, thanks in large part to a grand plan by the federal government in the late 1800s to turn Indians into “civilized” landowners.

Under the original treaties and agreements signed with the federal government in the 1800s, reservations were owned communally. But Christian reformers, led by U.S. Sen. Henry Dawes of Massachusetts, saw the reservation system as racial segregation that reduced Indians to paupers. Their answer was to dissolve the reservations and distribute land to individual Indians. Private ownership, they reasoned, would also ensure Indians a place of their own, safe from encroachment by homesteaders and miners, who continuously tried to move in on Indian lands.

“If you will prepare the Indian to take care of himself upon this land that is allotted, you will find the solution to the whole question,” Dawes told a gathering of the liberal Christian group, Friends of the Indians, in 1886. “He shall have a home and be a citizen of the United States, shall be one of us.”

Dividing the Land

His centerpiece was the 1887 General Allotment Act, or the “Dawes Act,” that authorized the president to survey Indian lands and assign farm plots to individual Indians. Married couples received a quarter-section, or 160 acres; single adults got 80 acres, and children 40 acres. But instead of bringing Native Americans into contact with the land, the law drove them away from it. When reservations were divided, government agents gave some Indians land that could never be irrigated, much less farmed. Family members might be allotted tracts on opposite ends of reservations.

Once each Indian was given an allotment, the Interior secretary bought “surplus” reservation land—sometimes the most desirable land on the reservation—and opened it to non-Indian homesteaders or railroad companies. The practice led to “land runs,” where white settlers lined up at reservation boundaries to wait for the official gunshot signifying the opening of new territory for settlement.

Islands of Private “Fee” Land

Accompanying the settlers´ hunger for land was the fact that not all Indians wanted to be farmers. Within four years of the Dawes Act, the Department of the Interior, which held Indian land in trust, was leasing allotted lands to non-Indians. Over the years, many Indians sold their allotments to nonIndians. Others were cheated out of their land, creating islands of private “fee” land within reservation boundaries.

John Collier, commissioner of Indian affairs under President Franklin Roosevelt, ended the allotment system by convincing Congress to pass the Indian Reorganization Act of 1934. But much damage had already been done. When Congress passed the Dawes Act in 1887, there had been 138 million acres of Indian land in the United States. By 1934, that number had plummeted 65 percent, to 48 million acres.

A Promise Dissolves

The erosion of Indian land ownership didn´t stop with the end of the allotment system. Because Native Americans had no written wills, the Dawes Act set up inheritance codes. When the owner of a piece of land died, the Bureau of Indian Affairs kept the land physically intact, but divided it on paper by giving each heir an “undivided” interest in it.

The inheritance rules were the undoing of Dawes´ promise of private land and a home Indians could call their own. As Indians died and their property was passed on, the number of owners increased exponentially. Today, many parcels of land have hundreds of owners spread around the country.

Intermarriage between tribes means Indians often inherit interest in land on several reservations. With each passing generation, Indian ownership in land washes out like an arroyo in a spring flood. And as the gully between Indians and their land widens, Indian people depend more on the Bureau of Indian Affairs, which today acts as the trustee of the current 55 million acres of Indian land.

Fractionated Ownership

In order to grow potatoes, build a home or sell an interest in fractionated land, an individual needs permission from a majority of the others who own interest in the land. Consensus is tough when there are only a few owners, and nearly impossible when there are a hundred owners, whose addresses and phone numbers are kept secret from each other by the bureau under the Privacy Act.

“You basically can´t do anything with Indian land without getting through a maze of federal regulations,” says Theresa Carmody, a member of the Seneca tribe and an expert on Indian land tenure from Wagon Mound, N.M.

Critics say the system is designed to be abused. As fractionated ownership pushes Indians farther from their land, the bureau hears little from landowners, but plenty from the non-Indian farmers who lease the land. Naturally, the bureau tries to keep farmers and other lessees happy, says Carmody.

Non Indians Reap Profits

“The system is not in place to empower” Native American landowners, says Carmody, who has worked for the National Congress of American Indians in Washington, D.C. and the Boulder, Colo.based Native American Rights Fund. “The system is in place to lease.”

The numbers support her charge: non-Indians lease 70 percent of all Indian agricultural land, according to a 1990 bureau report. Because Indians are cut off from their land, most reservations remain economic colonies, where the Bureau of Indian Affairs manages land and resources, and non-Indians reap the profits.

One of the major problems is a lack of access to capital. Banks are reluctant to lend money to Indians on reservations, where clear title to land is rare, and where repossessing property may be impossible under tribal laws.

As a result, says John Halliday, director of economic development for the Muckleshoot Tribe in Washington, banks have given only 93 conventional home loans in all of Indian country in the last 15 years. Halliday calls the situation “organized poverty, the most violent kind of racism there is.”

A Groundswell of Change

The federal government has tried several times to remedy fractionated ownership, but its solutions have strengthened tribal governments at the expense of individual landowners. One 1983 bill even declared interests of less than 2 percent of an allotment worthless, and turned them over to the tribes. The Supreme Court later found the “2 percent rule” unconstitutional.

But a growing community of Native Americans is not waiting for the federal government to solve its problems. Some, like Ernestine Werelus in Fort Hall, Idaho, are tackling the bureau head on, fighting for a voice in the way land is managed and leased. Others are helping Indian people reduce the number of landowners by writing wills and by buying and trading fractionated interests. Some tribes have adopted codes that only allow tribal members to inherit land on their reservations, while others are pushing banks to start lending money in Indian country.

Scattered efforts like these have flared up in the past, but they never caught on at the national level. Now, the movement is spreading. Tribes are organizing, exchanging ideas and building viable economies on Indian reservations while trying to maintain their cultures and autonomy.

Quinault Pioneers in Battle for Land

One of the pioneers is Helen Sanders, a member of the Quinault Tribe in Washington state. Sanders got involved in the fight over Indian land in the late 1950s, when her daughter inherited forest land. At the time, two non-Indian timber companies controlled logging on the reservation. Indians knew they were getting the short end of the deal, but few had the funds or the patience to do anything about it.

“It was common gossip among loggers that the Indians were getting beat out of their timber,” says Sanders.
Rather than have the bureau sell the timber on her daughter´s land, Sanders decided to go into the logging business. It took her years to navigate the bureaucratic obstacles, but she succeeded. With the help of a new bureau superintendent, she convinced the federal Small Business Administration to guarantee a start-up loan. Her daughter´s land and that first loan were enough to get her business up and running, and from there she moved to other Quinault land. For 12 years, Sanders worked one allotment at a time, borrowing money to pay the lease and pull the timber off the land, and then repaying her loan with the proceeds.

In the process, Sanders discovered that the bureau had been selling off not just timber but Indian land as well. She took what she had learned from her business and put it to work for her people. With the help of the bureau superintendent, she stopped the sales to non-Indian timber companies, and in 1971, she sued the bureau for mismanaging the timber resources. Twenty years later, she settled out of court for $26 million, which went to her fellow landowners.

“It takes a lot of footwork and a lot of determination,” says Sanders, now a leading voice for Indian lands on the national level. “Many of our people just don´t know how to fight the battle. They get two doors closed on them and they give up.”

Turning the Omelet Back into Whole Eggs

Sanders had what most people lack: the fortitude to force her way past a dozen closed doors. Now, on the Umatilla Reservation in northeast Oregon, the tribal government is trying to open some of those doors for the people.

It´s a huge job, akin to turning an omelet back into whole eggs. Twenty thousand people own interest in the 1,400 allotments on the Umatilla Reservation, and most owners belong to other tribes. Predictably, the bureau controls most of the land and it leases 95 percent of it to non-Indian wheat farmers. Most Indian landowners didn´t even know where their property was or who their fellow owners were.

They would have been hard pressed to find out. Records showing who owned the land, who was leasing it, and what the land was capable of producing were scattered everywhere: in filing cabinets and computers of the Bureau of Indian Affairs, in tribal offices and in the Umatilla County courthouse. Landowners could do nothing, because they knew nothing.

“We needed to get people information,” says retired Indian rancher Bill Northover. “A lot of these people don´t want to live in the projects (federally funded housing developments). They want to build themselves a home out there in the country (on land they own). They know that their land is worth something, and they want to get more information about what they own so they can get the most out of it.”

Land Records Into Database

In 1990, a foundation helped the tribes begin to pull together scattered land records and to put them in a computer database. Armed with additional money from a new casino, a golf course and a hotel, the tribes bought a geographic information system computer program. Northover and the tribes´ Land Acquisition Program are putting the tribes back in the driver´s seat.

Indians who want to sell or trade interests for a piece of land all their own can now get up-todate information quickly. The new computer system has also allowed the tribes to start buying back lands that were lost to homesteading and sales. Last year, they bought more than 7,000 acres.

“It´s a very powerful tool,” says Northover. “With a geographic information system, we can go out and get our own data. We don´t have to wait for the bureau.”

Other tribes have caught on. In the Northwest, the Yakima, Warm Springs, Coeur d´Alene and other tribes are all working on geographic information system programs, and in the Dakotas, reservations such as Pine Ridge are jumping on board. The key to success, says Northover, is to develop a good working relationship with the Bureau of Indian Affairs.

Building Nations Independent of the Federal Government

The bureau doesn´t need to have any part in it, says CloAnn Villegas, computer systems manager for the Salish and Kootenai Tribes on the Flathead Reservation in Montana. The Salish and Kootenai are miles ahead of most tribes in building a nation independent of the Bureau of Indian Affairs. They have developed a sophisticated legal system, and fought to protect water quality in Flathead Lake, as well as managing fishing and bird hunting cooperatively with the state of Montana.

For years, the tribes felt that the bureau and non-Indian farmers were managing the land without their consent. The agency had no data on what the soil could produce or how many cattle a piece of land could support. Officials didn´t review leases regularly, and some farmers and businesses had been paying the same rates for 25 years.

Tribe Takes Over Management

In the 1980s, with coffers full from timber sales and a federal contract on a dam on Flathead Lake, the tribes decided they´d had enough of the bureau. They used the 1975 Indian Self Determination and Educational Assistance Act to take over management of the irrigation canal system on the reservation. In 1990, they contracted the bureau´s real estate services, which include agricultural, weed and mineral management, as well as leasing and billing.

Last year, the tribes gathered up the title records to all their land. “We backed a U-Haul up to the Portland area office and took all of our title plans,” says Villegas, an accountant by training and “a techie by default.” Today, there are only two bureau officials left on Flathead.

After eight years, three computer programmers and $80,000, she has a remarkable new billing program and the groundwork laid for a geographic information system. Despite the achievement, the Salish and Kootenai now realize they may have bitten off more than they can chew. They ousted one bureaucracy but had to create another.

Their beefed-up staff is putting the paperwork in order, an expensive task. At the same time, they have less money to work with because lease rates have dropped since the tribe took over. Says Villegas, Indians now get top priority on leases on the reservation, even if they can´t pay as much as non-Indians.

The tribe instead of the bureau now compiles the environmental studies required under the National Environmental Policy Act, a time-consuming process that has reduced the amount of timber the tribes can sell.
“The (bureau) was always understaffed,” says Villegas. “We´ve put the bodies in place. We just need to make sure we have the money to get the job done.”

Points of Intersection

No one solution will work for every tribe, but a meeting held in Pendleton, Oregon, in 1991 started a collective push to address Indian land ownership on a national level. Helen Sanders, Theresa Carmody and Bill Northover were among 150 people from 36 tribes who showed up for the first annual Indian Land Consolidation Conference.

The ad hoc committee that grew out of the conference, now called the Indian Land Working Group and chaired by Howard Valandra, launched a national crusade to give Indian people the information and resources they need to regain control of their land. Made up of roughly 30 representatives of tribal governments and landowners´ alliances, and individual activists, the group is making waves around Indian country.
Its annual conferences are attended by hundreds of people, and it has a Web page, informational videos and a several thousand-member mailing list.

“We´ve developed a pretty strong network,” says Theresa Carmody, the New Mexico Indian activist who is now the working group´s secretary/ treasurer. “If something happens at Fort Hall, Rosebud, Quinault, we know about it.”

Bridging the Chasm Between Indians and Their Land

In addition to its work on reservations, the group has put a bill before Congress to address fractionated ownership on the national level. The bill, introduced in the House in July, would provide funds to teach people about estate planning and assure their access to land records. It would also tear down bureaucratic barriers by allowing landowners to sell or exchange interest with other Indians without going through the bureau.

“The only restriction we want is if you´re going to sell, sell to another Indian,” says Carmody. “Other than that, let people buy, sell, anything they want to do.” The bill also includes a strict inheritance code for tribes that haven´t developed their own, preventing non-Indians from inheriting Indian land.

Like a similar bill put forth by the Interior department, the Working Group´s bill would set up an acquisition fund to buy up interest in land and consolidate ownership. But where the government´s bill would give the Interior secretary control over the fund, the working group´s bill would provide loans to tribes and individuals and leave the decisions to them.

It is only by putting power back in the hands of individual Indians that Interior can bridge the chasm that has opened between Indians and their land, says Theresa Carmody. “As Indian landowners become more knowledgeable, they´re going to demand that they can get involved.

“We see it happening gradually. The road is long and there are still some real barriers out there, but that´s life,” says Carmody. “It took 100 years to get this way and it´s not going to change overnight.”

“A sense within people of self-sufficiency and strength is coming back,” she says. “We´ve hit bottom and now we´re on the upswing.”

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Companion Story

Lummi Nation/Bellingham/Whatcom County Reach Watershed Agreement

A significant step toward management of the watershed in Whatcom County was taken on October 29, 1998, when a Memorandum of Agreement was reached between the Lummi Nation, Whatcom County, the City of Bellingham and Public Utility District No. 1 to establish the local decision-making group. The Nooksack Tribe elected to participate in the planning process without signing the agreement. This group will develop and implement a watershed plan that fulfills multiple requirements.

The requirements include water quantity assessment and options such as water quality, instream flow, and habitat assessments authorized by ESHB 2514. The goal of the watershed plan is to ensure that the water resources in Water Resources Inventory Area 1 are managed to balance the competing resource demands in a manner that combines and coordinates data collection efforts, is consistent with Endangered Species Act recovery actions, ensures that the water quality standards for the designated uses of each water body are achieved, and does not conflict with existing state statutes, federal laws, tribal laws, and tribal treaty rights.

Whatcom County will be the Lead Agency in the planning effort. The first task of the initiating governments will be to fully define the Planning Unit. The Planning Unit will include, but is not limited to: Whatcom County, City of Bellingham, Whatcom County Public Utility District No. 1, Lummi Nation, and the Nooksack Tribe. The following governmental entities will be invited to participate: Washington State departments of Ecology, Fish and Wildlife, Natural Resources, Health, and Transportation; United States Bureau of Indian Affairs, Geological Survey, Bureau of Reclamation, Environmental Protection Agency, Fish and Wildlife Service, Natural Resources Conservation Service, Forest Service, and the National Marine Fisheries Service; and the other local governments within Whatcom County.

Objectives of the Plan

The objectives of the watershed plan include using the best available science to make reliable estimates of the following:

Tasks Ahead

Numerous tasks are involved in achieving these goals. For example, participants will identify funding sources and contract with the U.S. Geological Survey to collect streamflow data throughout the Water Resources Inventory Area for a 10-year period. Climate data will be collected at representative locations within the Inventory Area to allow the precipitation and evapotranspiration components of the water budget to be accurately estimated for each month.

The accuracy of existing land use/land cover data will be evaluated and additional land use/land cover data collected if necessary. A depletion analysis will be conducted to accurately estimate the spatial and temporal uses of water in the Inventory Area throughout the year. Undepleted streamflow will be estimated, based on collected streamflow data and the depletion analysis results.

An analysis will be conducted to estimate optimal instream flows for the fisheries resources in the Inventory Area throughout the year. Estimates will be made of the most senior instream and out-of-stream water rights. Estimates will be made of the next most senior water rights in turn based on the priority date of existing water right holders.

Finally, estimates will be made of the amount of water remaining and thus available for allocation to new appropriators.

Data will be collected and analyzed to estimate the Total Maximum Daily Loads for fecal coliform (in progress), temperature, biochemical oxygen demand, sediment, and other water quality attributes.

Implementing the Plan

Decisions will be based on the best available science. Decisions will be made by unanimous vote with each member of the initiating governments having one vote.


Medical Waste, Revisited: Setting the Record Straight

by Frank Moscone
Frank Moscone is an environmental engineer by trade. He is the current president of Recomp and, along with two other private partners, has owned Recomp since 1993.

Recently, County Council member Barbara Brenner presented a letter to the Washington State Senate Agriculture and Environment Committee, outlining her views on medical waste disposal in Whatcom County. Her letter was substantially reprinted in the September issue of Whatcom Watch.

Unfortunately, her concern for the well-being of Whatcom County citizens detours into misunderstandings and outright mistakes. My goal is not just to set the record straight, but to do so in a way that will help everyone work together better.

Who Really Runs Recomp?

As Brenner stated in her letter, “it is important... to know who is really running the operation of Recomp.” Especially since it´s not Browning Ferris Industries, as she implies.

Recomp is 100 percent owned by three business people. John Hoksbergen is a lifelong county resident; he lives in Lynden and also operates a trucking company. Frank Moscone is an engineer by training and is president of Recomp. He and his family live in North Vancouver, B.C. Jerry Magnin owns a company that manufactures emission controls; he lives in Montreal.

Contrary to Brenner´s claims, Browning Ferris Industries is only a customer of Recomp. Browning Ferris is one of the largest waste management companies in North America, collecting segregated medical waste from hospitals and other medical facilities. In this area, it contracts with Recomp for medical waste processing. The chairman of Browning Ferris Industries is William Ruckleshaus, a prominent and respected Seattle attorney who served as the first head of the Environmental Protection Agency and as the director of the FBI.

Infectious Waste and Math 101

In Brenner´s letter, she managed to multiply the amount of medical waste Recomp processes many-fold. Perhaps she´s unclear about the distinction between standard medical waste and “infectious” medical waste. That´s a common mistake. But here are the facts.

Recomp processes about 1/10 of 1 percent of the total medical waste currently generated in the U.S. According to the International Healthcare Waste Network, the country produces about 3.4 million tons of medical waste annually. Last year Recomp processed less than 4000 tons.

Infectious waste is one category of medical waste and requires special care because it may include waste from patients with communicable diseases. The International Healthcare Waste Network says 15% of medical waste is “infectious waste.” Most processors report that specially segregated infectious waste constitutes about 3% of their total medical waste. Applying these percentages to Recomp means that Recomp processed 11 to 56 tons of “infectious waste” per month during 1997. Certainly not 250 to 300 tons per month, as Brenner conjectured.

How´s It Being Handled?

But the argument about how many tons misses the point. Whether it´s one ton or a thousand, the point is, Is it safe? What about the plant in Morton, asked Brenner, where workers were exposed to tuberculosis?

First, the experience at the Stericycle facility in Morton is unique. Despite millions of tons of medical waste annually processed and disposed of at facilities around the country, that was the first and only case where anyone appears to have become sick from handling that waste.

Second, the Stericycle facility (unlike Recomp´s) grinds up medical waste before it is sterilized in a separate device. It appears workers loading medical waste came in contact with air from inside that machine. That can´t happen at Recomp, where packaged medical waste is loaded directly into the machine used to sterilize waste.

And by the way, Recomp is regulated by the Whatcom County Department of Health and Human Services, which monitors our compliance with our plan of operation. The detailed plan helps assure safe and effective processing of all medical waste. I encourage anyone seriously concerned about this issue to review our plan of operation.

At Recomp, we have to care about safety. From the president of the company on down, we´re in frequent and close contact with each other. Our own families face the first risk of exposure if procedures are inadequate or ignored. Not once during the ten years Recomp has been processing and disposing medical waste has anyone been infected.

Incineration: The Moot Point

The major portion of Brenner´s letter deals with her concern over incineration — from dioxins in the atmosphere to potential contamination of local agriculture.

However, medical waste incineration is no longer an issue, since Recomp is changing to a high-efficiency autoclave (steam sterilization) system. As Brenner knows, medical waste sterilization at Recomp will soon produce zero emissions.

Frankly, we still believe the pros of garbage incineration outweigh the cons. And both methods, incinerating and autoclaving, provide a safe and effective way to destroy pathogens in medical waste. So why the change, now?

First, we recognize some in the community would rather we stop incinerating. And since autoclaving is a well-accepted method of processing medical waste, we expect wide public support for this change.

Secondly, it´s a matter of economics. Incineration simply costs more.

Recomp now incinerates municipal garbage only because it must keep operating its incinerator to meet contractual obligations and process medical waste from Browning Ferris Industries. If Recomp didn´t have to use its incinerator to meet those obligations, it could stop using its incinerator altogether.

By the Way, What Is an Autoclave?

Medical facilities worldwide depend on autoclaves to sterilize utensils, equipment and supplies. Your dentist office has one. So does your hospital. Autoclaves have been used for years to sterilize medical waste so that it may be landfilled.

Recomp´s autoclave is about the size of a small truck trailer. Bins containing packaged medical waste are rolled inside. After the autoclave is sealed, steam is forced into the chamber. The combination of high heat and time kills any living organisms.

For absolute safety, Recomp´s Plan of Operation (monitored by the County Health Department) calls for a “spore test” every other week. That´s where highly heat-resistant bacteria spore is placed into the medical waste. The material is autoclaved and the spore removed and sent to an independent lab for culture. Test records are always available for review. The County Health Department may also conduct its own random spore tests. Once we´re certain our autoclave process is working we plan to permanently halt our incineration operation. Of course, we´ll maintain a valid incineration permit, at least for the time being, until the autoclave proves out. If prevented from using the autoclave, we would need to fall back on incineration.

Once our incinerator is no longer operating, we´ll ship any medical waste which still needs incineration out-of-state for processing and disposal.

Not in My Back Yard

Some suggest we should ship all medical waste out of the county, right from the start. And that sounds like a simple solution. But it´s pretty clear such an effort would be unconstitutional.

In the early 1990s a community initiative was passed that placed limits on the importation of medical waste from outside the county. This law was thrown by out by the Ninth Circuit Court of Appeals as unconstitutional.

Then in 1997 Whatcom County´s Flow Control Ordinance, which also attempted to control the flow of waste, was declared unconstitutional. The County was hit for $75,000 in damages plus considerable attorney´s fees. New legislation to control or limit the flow of medical waste is not legally tenable.

The Legal Approach

You may have read that Washington is one of only six states without state regulations on medical waste. But it wasn´t for lack of trying.

In 1990 proposed state regulations were defeated by intensive lobbying-not by the waste disposal industry (and certainly not by Recomp), but by hospitals and the health care industry. Regulations would have required much more careful segregation and handling of medical waste where it is generated — at doctor´s offices, vet clinics and hospitals.

Now medical waste which should be segregated and disinfected is instead thrown into the trash and mixed with old sandwiches and worn sneakers. This includes needles, used supplies and the like.

So if Recomp workers face a risk of infection from medical waste, it´s not from the segregated medical waste we receive in sealed puncture-proof containers. It´s from medical waste that´s mixed with general garbage. We fully support regulation to ensure all health care facilities deal with medical waste properly.

What´s more, everyone has a right to be informed about what happens with medical waste in this community. Recomp supports regulations that are scientifically based, reasonable and legal. And we believe the state has the best expert resources to address technical and scientific aspects of medical waste handling and disposal.

However, we also support the idea of assuming responsibility for ourselves if the state fails to legislate. But any local regulations must be based on facts supported by evidence, and must be fairly and reasonably applied. And, of course, they must be legal.

Not So Simple

Brenner´s solutions sound simple. Make all of the medical facilities that generate medical waste process it on their own. You make the mess, you clean it up. Right?

Here´s a case where we have similar goals but very different opinions on how to get there. In fact, there are two good reasons why Brenner´s suggestions would take us in the wrong direction — actually away from our goal!

First there´s the cost issue. It would be extremely expensive for every medical facility to process and treat infectious waste on site. We´d all pay the tab through higher medical bills.

But the critical issue is safety. When Recomp handles waste, it´s easy for regulators to keep a close eye on the operation. And they do. But imagine this. If every medical facility had to treat their own waste, as Brenner suggests, it would be impossible to effectively monitor compliance. The risk to the public would increase considerably. No one wants that.

So Is There a Solution?

We hope Brenner now understands incineration is not the issue. Neither are Recomp ownership or medical waste volume. What´s left? From here on we encourage an open, honest and very public debate, free from personal attacks.

The bottom line is this. Recomp will continue to actively support the state´s effort to develop regulations incorporating the entire medical waste stream from generator to disposal. We also support the Community Task Force being established by the Community Health Department, and look forward to participating in it. If anyone has any suggestions how we can better deal with this important issue, we´re all ears.

Timber Harvest

Crown Pacific’s Work is Protecting Todd Creek

by Dave Chamberlain
Dave Chamberlain is a forest practices engineer with Crown Pacific Partners. He obtained a degree in forest engineering from Oregon State University and has more than 21 years experience in forestry practices.

The September 1998 issue of Whatcom Watch (page 3) featured a story on Crown Pacific´s road building activities in the Todd Creek area. We appreciate the interest that John DiGregoria and others show in protecting sensitive areas such as this and recognize the important contributions to environmental protection made by concerned, committed forest practices critics such as Mr. DiGregoria.

Environmental activists have created positive change when they have adhered to the facts. When the facts get lost, so does their credibility and their ability to influence both the public and the forestry companies such as Crown Pacific.
Certainly, Mr. DiGregoria and Crown Pacific agree on the hydrologic sensitivity of this area. So the issue is road building. Mr. DiGregoria says that Crown Pacific has built more than a mile of new roads in the area. Actually, the 7200-foot road Mr. DiGregoria refers to was rebuilt and the purpose for doing this was precisely because of our concern for the instability in this area. The 5400 feet referred to in the article was actually that portion of the road which was endhauled—an expensive process where the material is removed to a stable site rather than sidecast as in previous construction. Roads in this forest area were built a long time ago, before current environmental practices and road construction techniques were developed. Current methods are designed to prevent the kinds of sedimentation and road failure problems that Mr. DiGregoria is concerned about. That´s why these roads were rebuilt and that is why grants from the Federal Emergency Management Agency and Centennial Clean Water Fund helped pay for this reconstruction.

The article reported that three stream crossings in the Todd Creek headwaters failed, failures “perhaps due to multiple culvert projects.” Actually, Mr. DiGregoria is wrong about stream crossing failures. No stream crossings failed. And the culvert work we completed was designed specifically to prevent such failure. The fact that the stream crossings didn´t fail is an indication that we were successful.

We carefully engineered these crossings so they would not fail even if the culverts became plugged. When we found that material above the crossings had settled as a result of spring storms, we removed this loose material and installed heavy reinforcement above the catch basins. Some sedimentation did occur when this loose material was removed but no culverts were plugged.

Mr. DiGregoria very correctly points out that slope disturbance in this area is demonstrated in 1950 aerial photographs. This is one of many reasons why Crown Pacific, the Federal Emergency Management Agency and others concerned about the hydrologic stability in this area are involved in the expensive road reconstruction process.

Contrary to the writer´s suggestion, our activity in this area demonstrates our concern for the safety and welfare of the community as well as our concern for the environment. We are in the forest management business which means that we harvest trees and we recognize that in some people´s eyes everything we do is wrong. However, those of us who work at Crown Pacific are proud of our stewardship of renewable resources and our commitment to environmental protection in Whatcom County. This is evident in how we are dealing with sensitive areas such as Todd Creek and it is evident in the active role we played in preserving the Arlecho Creek and Noisy Creek areas as well as the Canyon Lake Community Forest. Crown Pacific has made these transactions possible and thousands of other acres around the Pacific Northwest, through substantial discounts on land purchases to organizations such as the Trust for Public Lands and The Nature Conservancy.

While we do not honestly expect that everyone concerned about the environment will hail us as heroes for these actions, we do expect that those who criticize us and disseminate information about us will be fair, accurate and most of all, factual, in their representations of our activities.


Do We Really Need to Expand Roadways?

by Jeannie Achuff
Jeannie Achuff is a Bellingham resident.

After thoroughly reading the last issue of Whatcom Watch this morning I ambled out to the mailbox in hopes that a letter from a friend might provide me with some lighter reading material. Instead I discovered the Bellingham City Newsletter, (vol. 2 No. 5). The front-page article cited local traffic congestion problems and offered information on the city´s planned panaceas. According to the newsletter the only feasible solutions to traffic congestion are to either expand a roadway and/ or develop alternate routes. The city of Bellingham has spent $1.2 million to alleviate problems on Lakeway Drive and $11 million on improving Bakerview Road. Puget Street and Sunset Drive are included in the plans for redesign, not to mention Samish Way and the $6 million overpass improvements.

In light of the conference I attended this past weekend in Seattle, The Livable Communities Fair, I am feeling especially aware of the “Band-Aid” solutions our society tends to use on social problems. When we encounter a problem with the modern lifestyle we´ve constructed, such as traffic congestion, we look at ways to cover up the issue instead of examining its cause in order to prevent further problems. Why have we not attempted to decrease the overall flow of traffic instead of continuing to lazily plop into our cars and complain about the traffic jams? Bellingham has public transit which works efficiently (though, admittedly, could use adjustments), as well as bike lanes and the interurban trail. We DO still have alternatives.

Rerouting Traffic

The Bellingham City Newsletter quoted Tom Rosenberg in saying, “We have distinctly different quality of life expectations here. Long waits in traffic impact people´s quality of life.” He is right. Busy streets also divide neighborhoods and discourage interaction between neighbors. By rerouting traffic all we are doing is forcing these mechanical parasites to establish a new path of destruction and upheaval which will end up in our own backyards. As a native of the Washington D.C. area, I can attest to the fact that superhighways and strip malls skirted by newly widened and repaved country roads only breed isolation and dissonant interactions between irritated motorists. The desire to distance ourselves from an urban existence is inherently problematic. Instead of working towards a comfortable and rewarding urban existence we turn our backs on the town centers and head for the warehouse markets and homes of suburbia. We are simply weaving our web of consumption and pollution further into the countryside.

East Moves West?

The west coast is characterized as a more pleasant place to be, in comparison to the east. Why? Because there are still communities linked by smaller roads. Bicyclists and pedestrians enliven city centers and the air is not so polluted. Due to the intricate lacework of roadways near my childhood home I have to drive two hours to even approach the serenity of the outdoors to which I can bike from my home in Bellingham. Has the negative impact of the automobile not been sufficiently demonstrated? Need we follow the example of the east coast and further pollute our environment? According to ALT-TRANS of Seattle, 60 percent of Washington´s air pollution can be attributed to our cars. They also discovered that the typical American family spends $6,400 per year to keep up with car maintenance, which is more than most spend on food!!

Creating Our Own Lifestyle

The people who make up this town of Bellingham have the ability to create any type of community and lifestyle we desire. Do we want a cohesive group of people whom we recognize walking down the street or riding their bikes? Or would we rather continue to isolate ourselves and become like the grumpy east coast dwellers, further distancing ourselves from community? As we continue to discover the sour flavors of a modern lifestyle it is important to examine what makes an area a more desirable place to live. Should we allow all these road-expanding projects to persist, inviting more vehicles, or can we take advantage of the time we still have to reevaluate our daily habits that feed the need for expansion? Now feels like a good time to internalize the fact that we live in a finite world with finite resources and it is our duty to protect them. Our energies could be utilized in enriching our already existent town, revitalizing the community spirit of cooperation, and taking care of each other and our earth.

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