HomeMy WebLinkAboutord2021-029•
Whatcom County
COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2021-227
File ID:
AB2021-227
Version: 1
Status: Adopted
File Created:
04/05/2021
Entered by: Dana Brown -Davis
Department:
Council Office
File Type: Ordinance Requiring a Public Hearing
Assigned to:
Council
Final Action: 05/18/2021
Agenda Date:
05/18/2021
Enactment #: ORD 2021-029
Primary Contact Email: DBrown@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance imposing an 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
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
This interim moratorium prohibits 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 at Cherry Point, unless
the applications: 1. Were filed and complete prior to the effective date of this ordinance and vested
pursuant to Washington statutes; 2. Were for building permits for remodels, maintenance, or repairs of
existing structures where no increased capacity for shipping unrefined fossil fuels not to be processed at
Cherry Point will result; or 3. Were necessary to protect health and safety of the community. This
interim ordinance shall be effective for not longer than six months following its effective date, but may be
renewed for one or more six-month periods if subsequent public hearings are held and findings of fact
are made prior to each renewal.
HISTORY OF LEGISLATIVE FILE
Date: Acting Body:
Action:
Sent To:
04/20/2021 Council INTRODUCED FOR PUBLIC Council
HEARING
Aye: 5 Browne, Buchanan, Byrd, Donovan, and Frazey
Whatcom County Page 1 Printed on 512012021
Agenda Bill Master Report Continued (AB2021-227)
Nay: 2 Elenbaas, and Kershner
Absent: 0
05/18/2021 Council ADOPTED
Aye: 5 Browne, Buchanan, Byrd, Donovan, and Frazey
Nay: 2 Elenbaas, and Kershner
Absent: 0
Attachments: Proposed Ordinance
Whatcom County Page 2 Printed on 512012021
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PROPOSED BY:
INTRODUCTION DATE: APRIL 20, 2021
ORDINANCE NO. 2021-029
IMPOSING AN 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
WHEREAS, on July 12, 2016, the County received a letter from Chairman Ballew of
the Lummi Business Council which included the statement that they "hope that the
amendments to the Comprehensive Plan not unfairly impact the current employers within
Cherry Point."; and
WHEREAS, the Whatcom County Council previously adopted Title 20 zoning code
which regulates land use within unincorporated areas of Whatcom County; and
WHEREAS, the 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 Council recently updated the Whatcom County Comprehensive Plan
as required by Revised Code of Washington 36.70A; and
WHEREAS, during the Comprehensive Plan review process the Council received
many individual public comments on fossil fuel transshipment, transport, and transfer from
Cherry Point related to the protection of the health of Whatcom County's environment,
economy, and residents; and
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, the refining of fossil fuels at Cherry Point provides high wage jobs which
could be lost if the existing refineries were converted to crude oil export facilities; and
WHEREAS, the Whatcom County Council supports the development of Renewable
Fuels Facilities and Transshipment Facilities within the CP District; 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, one derailment caused significant fatalities, which is the
reason 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 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
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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 into
crude export terminals; 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, Title 20 currently does not explicitly prohibit transshipment, transport,
and transfer of unrefined fossil fuels and construction of infrastructure to facilitate
expanded shipment of unrefined fossil fuels not to be processed at Cherry Point; and
WHEREAS, according to the June 27, 2016, Land Capacity Analysis report produced
by Planning and Development Services, Cherry Point contains only 1,072.6 acres of
developable land that is zoned Heavy Impact Industrial (HII) for the purposes of "supplying
a reasonable amount of land, commensurate with demand, for the location and grouping of
heavy impact industrial uses" and to "minimize the scope of impacts generated within the
HII District and to provide protection for nonindustrial districts situated outside thereof..."
(WCC 20,68.010); and
WHEREAS, expansion of existing facilities for purposes of shipping unrefined fossil
fuels not to be processed or consumed at Cherry Point will increase the transport of
dangerous fuels through our community and increase the risk of possible derailment, spills,
explosions, and the fallout will pose a serious threat to the community; 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, on August 9, 2016, the 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, the Council adopted interim measures on September 27, 2016
(Ordinance 2016-039), March 21, 2017 (Ordinance 2017-011), September 26, 2017
(Ordinance 2017-049), February 27, 2018 (Ordinance 2018-007), August 8, 2018
(Ordinance 2018-044), January 29, 2019 (Ordinance 2019-010), July 9, 2019 (Ordinance
2019-049), December 3, 2019 (Ordinance 2019-083), June 2, 2020, (Ordinance 2020-030),
and November 24, 2020 (Ordinance 2020-069), 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, unless the
applications:
1. Were filed and complete prior to the effective date of the ordinance and vested
pursuant to Washington statutes;
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2. Were for building permits for remodels, maintenance, or repairs of existing
structures where no increased capacity for shipping unrefined fossil fuels not to be
processed or consumed at Cherry Point would result; or
3. Were necessary to protect health and safety of the community; and
WHEREAS, these interim measures were necessary to allow time for the Council to
work with staff and Cascadia Law Group to develop proposed amendments to the
Comprehensive Plan and zoning code to address risks to public health, safety, and the
environment associated with under -regulated expansion of fossil fuel facilities at Cherry
Point; and
WHEREAS, on August 8, 2019, the Council approved Resolution 2019-037,
forwarding proposed Cherry Point Urban Growth Area Comprehensive Plan and zoning code
amendments to the Whatcom County Planning Commission for review and recommendation;
and
WHEREAS, on September 12, 2019, the Planning Commission hosted a town hall
meeting to provide the public an opportunity to speak on the Council's proposed
amendments; and
WHEREAS, on September 26, October 10, October 24, November 14, and December
12, 2019, and January 16, January 30, February 27, June 25, and July 9, 2020, the
Planning Commission held work sessions to discuss the Council's proposed amendments and
formulate recommendations; and
WHEREAS, on August 13, 2020, the Planning Commission held a public hearing and
issued final recommendations on the proposed amendments.
WHEREAS, the Planning Commission considered public comments and input from a
joint industry/environmental stakeholder group in the review process; and
WHEREAS, the County Council is diligently reviewing the proposed amendments
(including holding numerous special meetings to facilitate review) and considering
recommendations from a joint industry/environmental stakeholder group;
WHEREAS, the Council further finds that extending the moratorium imposed by
Ordinance 2020-069 is necessary for the protection of public health and safety; and
WHEREAS, the Whatcom County Council is scheduled to hold a public hearing on
this issue on May 4, 2021, or a later date; and
WHEREAS, the County Council fully recognizes the limits to its authority over
transportation of certain goods imposed by federal statutes and the US Constitution, and
finds that this action is within its authority;
NOW, THEREFORE, BE IT ORDAINED that the Whatcom County Council adopts
the above "WHEREAS" recitals as findings of fact in support of its action as required by RCW
36.70A.390
BE IT FURTHER ORDAINED by the Whatcom County Council that an interim
moratorium is hereby imposed 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, unless the applications:
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1. Were filed and complete prior to the effective date of this ordinance and vested
pursuant to Washington statutes;
2. Are for building permits for remodels, maintenance, or repairs of existing
structures where no increased capacity for shipping unrefined fossil fuels not to be
processed or consumed at Cherry Point will result; or
3. Are necessary to protect health and safety of the community.
BE IT FURTHER ORDAINED by the Whatcom County Council that this interim
ordinance shall be effective for not longer than six months following its effective date, but
may be renewed for one or more six-month periods if subsequent public hearings are held
and findings of fact are made prior to each renewal.
BE IT FURTHER ORDAINED that if a section, subsection, paragraph, sentence,
clause, or phrase of this ordinance is declared unconstitutional or invalid for any reason by
any court of competent jurisdiction; such decision shall not affect the validity of the
remaining portions of this ordinance, and if the provisions of this ordinance are found to be
inconsistent with other provisions of the Whatcom County Code, this ordinance shall control.
BE IT FURTHER ORDAINED that for the purpose of this ordinance the definition of
"unrefined fossil fuel" includes but is not limited to all forms of crude oil whether stabilized
or not; raw bitumen, diluted bitumen, or syncrude; coal; methane propane, butane, and
other "natural gas" in liquid or gaseous formats excluding those that are the byproduct of
refinery processes in the Cherry Point UGA; and condensate.
BE IT FURTHER ORDAINED to prevent any misunderstanding the Whatcom
County Council affirms that consistent with previous Interim Moratoriums, the refining,
storage, blending, and manufacture of renewable fuels shall remain an outright permitted
use, unaffected by this Interim Moratorium, subject to the existing provisions of the current
County Code.
BE IT FINALLY ORDAINED that for the purpose of this ordinance, the definition of
"facility" includes but is not limited to piers, wharfs, buildings, tank farms, pipelines, rail
loading and offloading facilities, road spurs, or any other such physical infrastructure
intended to receive, transfer, or store unrefined fossil fuels;
�a�E���t
1�1%FCP. Z�� jS 18th day of May , 2021.
"i4 1C'� ° �'`,�°L®� WHATCOM COUNTY COUNCIL
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Dark Browrj� isy e � rk 6. the Council Barry u anan, Council Chair
f i£511
APPROVED AS TO'`FORM: WHATCOM COUNTY EXECUTIVE
WHATCOM COUNTY, WASHINGTON
Approved by Karen Frakes via email / LB
Civil Deputy Prosecutor
S57�j M�� St
Satpal Sidhu, Punty Executive
X) Approved
Date Signed
) Denied
W/AWM