HomeMy WebLinkAboutres2018-015WHA TCOM CO UNTY CO UNCIL A GENDA BILL NO. 2018 76 B
CLEARANCES
Initial
Date
Date Received in Council Office
Agenda Date
Assigned to:
Originator:
Donovan
4/17/2018
4/24/2018
SCOTW /Council
Division Head:
Dept. Head:
Prosecutor:
Purchasing /Budget:
�T-
411
Executive:
TITLE OF DOCUMENT.
Res. requesting Executive draft legislation re Cherry Point UGA permits
ATTACHMENTS:
SEPA review required? ( ) Yes ( ) NO
Should Clerk schedule a hearing ? ( ) Yes ( ) NO
SEPA review completed? ( ) Yes ( ) NO
Requested Date:
SUMMAR Y STA TEMENT OR LEGAL NOTICE LANGUAGE: (If this item is an ordinance or requires a public
hearing, you must provide the language for use in the required public notice. Be specific and cite RCW or WCC as appropriate.
Be clear in explaining the intent of the action.)
Resolution requesting the County Executive direct staff to draft legislation relating to processing and approval of major project permits in the Cherry
Point Urban Growth Area
COMMITTEE ACTION:
COUNCIL ACTION.
4/24/2018: Amended and forwarded to Council for approval
4/24/2018: Substitute Approved 5 -1, Brenner opposed,
Byrd absent, Resolution 2018 -015
Related County Contract #:
Related File Numbers:
Ordinance or Resolution
Number:
Res.2018 -015
Please Note: Once adopted and signed, ordinances and resolutions are available for viewing and printing
on the County's website at: www.co.whatconi.wa.us /council.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
RESOLUTION NO.
PROPOSED BY: DONOVAN
INTRODUCTION DATE:
2018 -015
REQUESTING THE COUNTY EXECUTIVE DIRECT STAFF TO DRAFT
LEGISLATION RELATING TO PROCESSING AND APPROVAL OF MAJOR PROJECT
PERMITS IN THE CHERRY POINT URBAN GROWTH AREA
WHEREAS, on August 9, 2016, the Whatcom County Council adopted Ordinance
2016 -031, an emergency ordinance imposing a sixty day moratorium on the filing,
acceptance, and processing of new applications for conversion of land or water, new
building or structure permits, or other County permits or authorizations in the Cherry Point
Urban Growth Area for new or expanded facilities whose purpose is to facilitate the
increased shipment of unrefined fossil fuels not to be processed or consumed at Cherry
Point; and
WHEREAS, on September 27, 2016, March 21, 2017, and September 26, 2017, the
Whatcom County Council adopted interim measures (Ordinance 2016 -039, Ordinance
2017 -011, and Ordinance 2017 -049) prohibiting the filing, acceptance, and processing of
new applications for conversion of land or water, new building or structure permits, or other
County permits or authorizations in the Cherry Point Urban Growth Area for new or
expanded facilities whose purpose is to facilitate the increased shipment of unrefined fossil
fuels not to be processed or consumed at Cherry Point; and
WHEREAS, on February 27, 2018, Whatcom County Council extended the interim
moratorium on the acceptance and processing of applications and permits for new or
expanded facilities in the Cherry Point Urban Growth area the primary purpose of which
would be the shipment of unrefined fossil fuels not to be processed at Cherry Point; and
WHEREAS, the interim moratoria are intended to provide time for the County to
assess how to improve the acceptance and processing of applications and permits for new
or expanded facilities in the Cherry Point Urban Growth to better protect public health,
safety, transportation, and the environment; and
WHEREAS, the County Council previously adopted Title 20- Zoning of Whatcom
County Code which regulates land use within unincorporated areas of Whatcom County; and
WHEREAS, the County Council adopted the Whatcom County Comprehensive Plan
on May 20, 1997, which contains goals, objectives, and policies regarding land use
compatibility and environmental considerations; and
WHEREAS, the Whatcom County Council recently updated the Whatcom County
Comprehensive Plan as required by Revised Code of Washington (RCW) 36.70A; and
WHEREAS, during the Comprehensive Plan review process the Whatcom County
Council received many individual public comments on fossil fuel transshipment, transport,
and transfer from Cherry Point related to the protection of the safety and health of
Whatcom County's environment, economy, and residents; and
1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
54
WHEREAS, the County recognizes that the existing refineries have for decades been
significant shippers of refined fossil fuels such as jet fuel and calcined coke used in
manufacture of aluminum while providing substantial local employment; and
WHEREAS, multiple trains carrying crude oil from the Bakken formation moving
through the United States and Canada have derailed and exploded causing damage to
property and the environment; and
WHEREAS, on July 6, 2013, a single derailment in Quebec caused 47 fatalities and
destroyed half of the downtown of Lac- Megantic, leaving a town heavily contaminated with
benzene, which are major reasons that local zoning regulations must be improved; and
WHEREAS, a unit train carrying Bakken crude traveling through Mosier, Oregon, on
June 3, 2016, derailed and exploded causing damage to property and to the Columbia River,
demonstrating that recently adopted state and federal policies and corporate investment
intended to reduce the risks associated with oil by rail have proven insufficient to protect
communities along the rail corridor; and
WHEREAS, the Washington State Department of Natural Resources has designated
waters adjacent to the Cherry Point Urban Growth Area as an aquatic reserve to ensure
long -term protection of this unique aquatic environment; and
WHEREAS, the United States recently lifted a ban on the export of crude oil from
the country, increasing pressure on deep water ports such as Cherry Point to develop to
increase the amount of fuels transported through Whatcom County that arrive at Cherry
Point; and
WHEREAS, existing refineries at Cherry Point have recently increased their ability to
accept crude oil by rail by constructing new rail offloading facilities to serve the refineries;
and
WHEREAS, existing and proposed pipeline facilities have increased, or proposed to
increase, their capacity to move crude oil, diluted bitumen, and natural gas to Cherry Point;
and
WHEREAS, expansion of existing facilities for purposes receiving and shipping fossil
fuels into and out of Cherry Point will increase the transport of dangerous fuels through our
community and increase the risk of possible harmful emissions, train derailment, spills,
explosions, and the fallout of these will pose serious threats to the community's public
health and safety, and to the local environment; and
WHEREAS, pursuant to the Washington State Constitution, the general police
powers granted to counties empower and authorize Whatcom County to adopt land use
controls to provide for the regulation of land uses within the County and to provide that
such uses shall be consistent with applicable law; and
WHEREAS, in 2017, the Whatcom County Council entered into a contract with
Cascadia Law Group for assistance in examining existing County laws and developing
recommendations for recommendations about how the County may further limit the
negative impacts on public safety, transportation, the economy, and environment from
crude oil, coal, liquefied petroleum gases, natural gas, and other fuels transported through
Whatcom County to Cherry Point and shipped from the Cherry Point UGA above levels in
existence as of March 1, 2017; and
2
1 WHEREAS, in 2018, a Cascadia Law Group study provided guidance on the County's
2 legal rights, responsibilities, and limitations regarding interpretation and application of
3 project evaluation under Section 20.88.130 (Major Projects Permits) of the Whatcom County
4 Code; and
5
6 WHEREAS, the above study will assist in developing proposed Comprehensive Plan
7 amendments and associated code and rule amendments for Council consideration, and
8
9 WHEREAS, Whatcom County Council finds the public interest is best protected by a
10 permitting process for major projects at Cherry Point that provides the County clear
11 authority for requiring mitigation of project impacts on the community and the environment,
12 and that provides clear requirements that project proponents assume financial responsibility
13 for potentially hazardous activities that present risks to the community; and
14
15 WHEREAS, the Cascadia study determined that zoning codes of other local
16 jurisdictions provide examples of discretionary decision - making criteria; and
17
18 WHERAS, in RCW 90.58.020 the legislature found that the shorelines of the state
19 are among the most valuable and fragile of its natural resources and that there is great
20 concern relating to their utilization, protection, restoration, and preservation. In addition it
21 found that increasing pressures of additional uses are being placed on the shorelines, and
22 that that unrestricted construction on the privately owned or publicly owned shorelines of
23 the state is not in the best public interest, and that local governments play a role in
24 preventing harm to the state's shorelines; and
25
26 WHEREAS, WAC 173 -27 -160 states that conditional use permits provide local
27 governments flexibility in the application of use regulations in a manner consistent with the
28 policies of RCW 90.58.020, and that special conditions may be attached to the permit by
29 local government to prevent undesirable effects of the proposed use; and
30
31 WHEREAS, WAC 197 -11 -660 states that proposals may be conditioned or denied
32 under the State Environmental Protection Act to mitigate the environmental impact, subject
33 to limitations, and that proposal can be denied if they are likely to result in significant
34 adverse environmental impacts that cannot be mitigated.
35
36 NOW, THEREFORE, BE IT RESOLVED by the Whatcom County Council that the
37 Council requests the County Executive have Planning staff draft code amendments to the
38 County's Major Project Permit Review Process, and other related zoning code, that
39 strengthen the discretionary authority of County staff, and the County Council, with respect
40 to processing and approving major project permits, and with respect to mitigating the
41 impacts of proposed major projects, and with respect to mitigating changes in existing uses,
42 in the Cherry Point UGA.
43
44 BE IT FURTHER RESOLVED that Whatcom County Council requests proposals for
45 code and SMP amendments that protect public health, safety, and the environment, and
46 that provide clear discretionary standards for accepting and rejecting permits. These
47 include:
48
49 1) Require Conditional Use Permits. Require conditional land use permits, and
50 conditional shoreline permits (per WAC 173 -27 -160), for certain heavy industry uses, such
51 as new petroleum tank farms, new fossil fuel distribution facilities, additional piers, new on-
52 site rail yards, new facilities that transfer fuel from rail cars, new rail car storage facilities,
53 new coal storage facilities, new coal transfer facilities, and new facilities that transfer fuels
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50
51
52
53
from permitted or proposed facilities across existing or proposed piers. The purpose of such
conditional use permits is:
a) To provide a process that allows flexibility in the application or regulations,
consistent with RCW 90.58.020, and to allow that conditions be attached by the County to
prevent undesirable effects of the propose use and to assure consistency of the project with
the goals in the County Comprehensive Plan, County SMP, and with treaty rights, policies of
Washington State DNR, the Army Corps of Engineers, and the Cherry Point Aquatic Reserve
Plan, and
b) To ensure the project will cause no significant adverse effects to the shoreline, to
the environment, to air emissions, to traffic patterns, and that, broadly, the public suffers
no substantial detrimental effect of the cumulative impact of the proposed project, and
c) To ensure that any use must demonstrate that it is adequately served by essential
public facilities such as highways, roads, police and fire protection, drainage facilities, water,
sewer, bridges required for rail crossings, and waste disposal, and that the agents proposing
the use shall be able to adequately provide such services.
d) To ensure the proposed facility will not create excessive additional requirements,
at public cost, for public facilities and services and that the applicant provide mitigation for
added public costs, including investment into emergency response capacity, and that
commit the applicant to compensate Whatcom County and associated jurisdictions for costs
associated with emergency responses, clean -up, mitigation, and such events that are
associated with transporting materials, by the applicant and by third parties, to and from
the permitted facility.
2) Require Master Site Planning provisions for major project permits. This would
include
a) requirements that applicants submit a fee (up front or in increments) covering the
County's EIS review costs;
b) requiring a Development Agreement that obligates the developer to pay costs
(given a rational nexus) of all traffic, public safety, and environmental impact mitigation
identified in the SEPA review; and identified in the discretionary project review by staff and
County Council, should a Master Site Plan or conditional use be approved;
c) requiring mitigating conditions proportional with the impact of the EIS;
d) amending code to give the Planning Department and County Council the discretion
to require a bond or insurance policy (or combination of) to ensure that all development
commitments for transportation mitigation, public safety mitigation, environmental
mitigation, and other mitigation are followed through to completion and that safety hazards
to the community are insured against.
3) Review and revise SEPA policy. Review, and if needed to accomplish code
changes to advance the goals of conditional use and enhanced discretionary authority of the
county staff and County Council. SEPA provides that a project may be denied after an EIS
is completed where it is decided that adverse impacts cannot be mitigated. Code and/ or
SMP and / or Comp. Plan language must provide a clear basis for accepting proposals with
conditional requirements, and a clear basis for denial.
0
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
4) Review and Revise Provisions for Change of Use and Occupancy. Changes
in use of existing facilities should be consistent with current code, and with code revisions
requested above. Changes in use or occupancy should not result in a substantive functional
change in the initial permitted use of an existing facility without being subject to
discretionary authority and conditional requirements per, points 1, 2 & 3 as listed above.
Code should allow staff approval of changes or occupancy or use where new uses remain
consistent with current and with code adopted per this resolution. Code should also provide
for a clear obligation to review and properly address, and mitigate, impacts of changes in
use or occupancy of existing facilities.
BE IT FURTHER RESOLVED that:
• The Whatcom County Council will work with staff to develop the proposed
Comprehensive Plan and development regulation amendments. The proposed
amendments will be reviewed by the Council's Committee of the Whole, which
will provide for public comment.
• The proposed amendments will undergo SEPA review.
The Whatcom County Planning Commission will hold a town hall meeting and
a public hearing prior to issuing recommendations on the proposed
amendments.
The Whatcom County Council will hold a public hearing prior to adopting an
ordinance relating to the amendments.
���rmE4�i4�SEPP<BBd
Aff CI,/Eb�t l�! 44 day of April 2018.
ATTEST.';" r `!4�p0� >� WHATCO 0
WHATC NCO
- OUNCIL
WASHINGTON
Dana ti own`, K of thCouncil Rud Browne, Council Chair
34
36 APPROVED AS TO FORM:
40 Civil`Deputy Prosecutor
41
42
43
5