HomeMy WebLinkAboutord2021-046Whatcom County COUNTY COURTHOUSE
311 Grand Avenue, Ste #105
Bellingham, WA 98225-4038
(360) 778-5010
Agenda Bill Master Report
File Number: AB2021-403
File ID: AB2021-403 Version: 1 Status: Adopted
File Created: 07/06/2021 Entered by: DBrown@co.whatcom.wa.us
Department: Council Office File Type: Ordinance Requiring a Public Hearing
Assigned to: Council Final Action: 07/27/2021
Agenda Date: 07/27/2021 Enactment #: ORD 2021-046
Primary Contact Email: DBrown@co.whatcom.wa.us
TITLE FOR AGENDA ITEM:
Ordinance adopting amendments to the Whatcom County Comprehensive Plan and Whatcom County
Code relating to the Cherry Point UGA fossil fuel facilities, renewable fuel facilities, piers, SEPA,
greenhouse gas emissions, and other matters
SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE:
This ordinance will amend Whatcom County's development regulations, State Environmental Policy Act
(SEPA) provisions, permit review procedures, and Comprehensive Plan relating to fossil fuel
facilities, renewable fuel facilities, transshipment fuel facilities and other similar land use activities. The
proposal is intended to address the risks to public health, safety, and the environment associated with
fossil fuel facilities. The proposal is also intended to address the negative impacts on public safety,
transportation, the economy, and environment from crude oil, coal, liquefied petroleum gases, and
natural gas transshipments from the Cherry Point Industrial District.
HISTORY OF LEGISLATIVE FILE
Date: Acting Body: Action: Sent To:
07/13/2021 Council SUBSTITUTE INTRODUCED Council
FOR PUBLIC HEARING
Aye: 7 Browne, Buchanan, Byrd, Donovan, Elenbaas, Frazey, and Kershner
Nay: 0
Absent: 0
Whatcom County Page 1 Printed on 712912021
Agenda Bill Master Report Continued (AB2021-403)
07/27/2021 Council
HEARD PUBLIC Council
TESTIMONY AND HELD IN
COUNCIL
07/27/2021 Council
FORWARDED FOR Council
CONCURRENT REVIEW
Aye:
7
Browne, Buchanan, Byrd, Donovan, Elenbaas, Frazey, and Kershner
Nay:
0
Absent:
0
07/27/2021 Council
ADOPTED
Aye:
7
Browne, Buchanan, Byrd, Donovan, Elenbaas, Frazey, and Kershner
Nay:
0
Absent:
0
Attachments: Substitute (07/09) Proposed Ordinance for July 13 Introduction, Code and RCW Language Related
to Concurrent Review
Whafcom County
Page 2 Printed on 712912021
7-9-2021
PROPOSED BY: Council
INTRODUCTION DATE: July 13, 2021
ORDINANCE NO. 2021-046
ADOPTING AMENDMENTS TO THE WHATCOM COUNTY
COMPREHENSIVE PLAN AND WHATCOM COUNTY CODE RELATING TO
THE CHERRY POINT UGA, FOSSIL FUEL FACILITIES, RENEWABLE
FUEL FACILITIES, PIERS, SEPA, GREENHOUSE GAS EMISSIONS,
AND OTHER MATTERS
WHEREAS, The Whatcom County Planning Commission held a public hearing
and issued recommendations on the proposed amendments; and
WHEREAS, The County Council considered Planning Commission
recommendations;
WHEREAS, The County Council considered the Joint Stakeholder Group
recommendations, which were the result of a collaborative effort between industry,
environmental, and labor representatives;
WHEREAS, The County Council held a public hearing; and
WHEREAS, The County Council has considered multiple alternatives and has
reviewed and considered the State Environmental Policy Act (SEPA) review of
the alternatives and the SEPA Determination of Nonsignificance (and
Addendum) prepared by the County's SEPA Responsible Official; and
WHEREAS, The County Council hereby adopts the following findings of fact:
FINDINGS OF FACT
1. The Whatcom County Council approved Resolution 2019-037 on August 7,
2019, forwarding proposed Comprehensive Plan and code amendments to
the Planning Commission for review, The subject amendments primarily
relate to fossil fuel and renewable fuel facilities in the Cherry Point Area,
although some of the amendments apply to various land uses on a
countywide basis.
Page 1 of 22
2. The subject amendments include the following:
a. Amending Whatcom County Comprehensive Plan Chapter 2 (Land
Use).
b. Amending the State Environmental Policy Act (SEPA) code (WCC
16.08).
c. Amending the Light Impact Industrial District, Heavy Impact Industrial
District, Cherry Point Industrial District, Major Project Permits, and
Definitions chapters of the Whatcom County Zoning Code (Title 20).
d. Amending the Project Permit Procedures (WCC 22.05).
3. Notice was submitted to the Washington State Department of Commerce
on August 15, 2019.
4. The Whatcom County Planning Commission held a town hall meeting on
September 12, 2019.
5. The Whatcom County Planning Commission held work sessions on
September 26, 2019, October 10, 2019, October 24, 2019, November 14,
2019, December 12, 2019, January 16, 2020, January 30, 2020, February
27, 2020, June 25, 2020, and July 9, 2020.
6. A Determination of Nonsignificance (DNS) was issued under the State
Environmental Policy Act (SEPA) on July 28, 2020. A SEPA Determination
of Nonsignificance (DNS) Addendum was issued on July 1, 2021.
7. Notice of the Planning Commission hearing was sent to citizens, media,
cities, and others on the County's e-mail list on July 30, 2020.
8. Notice of the Planning Commission hearing was posted on the County
website on August 3, 2020.
9. Notice of the Planning Commission hearing for the subject amendments
was published in the Bellingham Herald on August 3, 2020.
10, The Planning Commission held a public hearing on the subject
amendments on August 13, 2020.
11. The County Council and the Planning Commission have studied and
considered multiple alternatives and various drafts for the amendments
which are contained in the record.
12. The County Council held a public hearing on the subject amendments.
Page 2 of 22
Comprehensive Plan Amendments
13. The Cherry Point UGA is approximately 7,030 acres. Whatcom County
Comprehensive Plan Chapter 2 contains a specific section with text, goals,
and policies relating to the Cherry Point UGA (other goals and policies in
the Comprehensive Plan also apply).
14. The subject amendments modify text and Policies 2CC-11, 2CC-16, 2CC-
17, and 2WW-4 in Whatcom County Comprehensive Plan Chapter 2. The
subject amendments also add new Policy 2CC-18 to the Comprehensive
Plan.
15. Whatcom County Comprehensive Plan Policy 2CC-11 already states that
"It is the policy of Whatcom County to limit the number of industrial piers
at Cherry Point to the existing three piers..." The subject amendments
modify Policy 2CC-11. These amendments include:
a. Recognizing that the vested rights/enforceable agreement for an
additional dock/pier no longer exist.
b. Recognizing the importance of preventing harm to habitat of the
Cherry Point Herring stock and Southern Resident Killer Whales.
c. Recognizing that implementation of the Shoreline Program is an
important way to preserve the natural character, result in long-term
benefits, and protect the resources and ecology of the shoreline.
d. Deleting language that is unnecessary or no longer needed.
16. The Washington State Department of Natural Resources has prepared the
Cherry Point Environmental Aquatic Reserve Management Plan which
identifies management objectives and habitat concerns regarding the state
waters adjacent to the Cherry Point UGA. And, by Commissioner's Order
dated January 3, 2017, has limited additional in -water development
including restricting lease areas to preclude the addition of new piers in the
Cherry Point Aquatic Reserve.
17. The Federal Government has enacted the "Magnuson Amendment" which
limits the transport of crude oils out of Puget Sound waters.
18. The United States Army Corps of Engineers (The Corps) has recognized the
regulatory importance of reserved tribal treaty fishing rights in federal
permitting decisions related to Puget Sound and in the areas adjacent to
Cherry Point. Reserved treaty fishing rights have been addressed both in
recent regulatory decisions by The Corps (Gateway Pacific Terminal) where
federal permits have been denied where there is more than a de minimis
Page 3 of 22
impact on tribal fishing rights and in federal court decisions regarding
Corps permitting such as Northwest Sea Farms v. US Army Corps of
Engineers, 931 F. Supp 1515 (W.D. Wash. 1996).
19. The subject amendments modify Whatcom County Comprehensive Plan
Policy 2CC-16. These amendments include:
Recognizing that the study and recommendations to address negative
impacts from fossil fuel facilities have been completed (see Reducing
Impacts from Fossil fuel Projects Report to the Whatcom County
Council, Cascadia Law Group, Feb. 12, 2018 and Whatcom County
Council Resolution 2019-037, August 7, 2019) and that alternatives
have been considered by the County and that extensive public
testimony and input has been received and considered.
b. Stating that the County will, through SEPA and permitting, seek to
limit negative impacts from fossil fuel facilities within the Cherry Point
UGA.
c. Refining the language relating to notice to the County Council of fossil
fuel projects.
d. Deleting language that is unnecessary or no longer needed.
20. The subject amendments modify Whatcom County Comprehensive Plan
Policy 2CC-17. These amendments include:
a. Recognizing that limited fossil fuel facility expansions are subject to
environmental review, greenhouse gas analysis, and Cherry Point
policies in the Comprehensive Plan.
b. Deleting language that is unnecessary.
21. The subject amendments modify Whatcom County Comprehensive Plan
Policy 2WW-4 by recognizing that existing marine port facilities and limited
expansions are allowed consistent with the State of Washington
Department of Natural Resources Cherry Point Aquatic Reserve
Management Plan.
22. The subject amendments add new Whatcom County Comprehensive Plan
Policy 2CC-18. This new policy recognizes that the following are allowed:
The on -going operation, maintenance, and repair of existing facilities,
modifications designed to comply with adoption and implementation of
new product standards and fuel standards, operational and site safety
improvements, environmental improvements, and regulatory compliance
projects.
Page 4 of 22
23. Pursuant to WCC 22.10.060(1), in order to approve comprehensive plan
amendments the County must find all of the following:
a. The amendment conforms to the requirements of the Growth
Management Act, is internally consistent with the county -wide
planning policies and is consistent with any interlocal planning
agreements.
b. Further studies made or accepted by the Department of Planning and
Development Services indicate changed conditions that show need for
the amendment.
c. The public interest will be served by approving the amendment. In
determining whether the public interest will be served, factors
including but not limited to the following shall be considered:
i. The anticipated effect upon the rate or distribution of population
growth, employment growth, development, and conversion of
land as envisioned in the comprehensive plan.
ii. The anticipated effect on the ability of the county and/or other
service providers, such as cities, schools, water and/or sewer
purveyors, fire districts, and others as applicable, to provide
adequate services and public facilities including transportation
facilities.
iii. Anticipated impact upon designated agricultural, forest and
mineral resource lands.
d. The amendment does not include or facilitate spot zoning.
Growth Management Act
24, The Growth Management Act (GMA) establishes planning goals in Revised
Code of Washington (RCW) 36.70A.020 to guide adoption of
comprehensive plan amendments.
25. GMA planning goal # 1 is to: "Encourage development in urban areas
where adequate public facilities and services exist or can be provided in an
efficient manner."
Page 5 of 22
26. GMA planning goal # 5 is to:
Encourage economic development throughout the state that is
consistent with adopted comprehensive plans, promote economic
opportunity for all citizens of this state, especially for unemployed and
for disadvantaged persons, promote the retention and expansion of
existing businesses and recruitment of new businesses, recognize
regional differences impacting economic development opportunities,
and encourage growth in areas experiencing insufficient economic
growth, all within the capacities of the state's natural resources, public
services, and public facilities.
27. The subject Comprehensive Plan amendments, when viewed in the context
of the other Comprehensive Plan goals and policies, continue to encourage
development in the Cherry Point industrial area while also addressing
public safety and environmental protection. The amendments recognize
that the existing industries provide significant employment and have
shipped refined fossil fuel products for decades. The amendments also
recognize that existing operations of fossil fuel facilities, along with limited
expansions, are allowed as outright permitted uses with appropriate
environmental review and analysis. In addition, beyond certain thresholds,
the amendments provide for allowing expansions of existing fossil fuel
refineries with conditional use permit review and appropriate
environmental review and analysis.
28. GMA planning goal # 9 is to: "Retain open space, enhance recreational
opportunities, conserve fish and wildlife habitat, increase access to natural
resource lands and water, and develop parks and recreation facilities."
29. GMA planning goal # 10 is to: "Protect the environment and enhance the
state's high quality of life, including air and water quality, and the
availability of water."
30. The State Shoreline Management Act policies, which are incorporated as a
GMA goal pursuant to RCW 36.70A.480, indicate that:
... It is the policy of the state to provide for the management of the
shorelines of the state by planning for and fostering all reasonable and
appropriate uses. This policy is designed to insure the development of
these shorelines in a manner which, while allowing for limited
reduction of rights of the public in the navigable waters, will promote
and enhance the public interest. This policy contemplates protecting
against adverse effects to the public health, the land and its vegetation
and wildlife, and the waters of the state and their aquatic life, while
protecting generally public rights of navigation and corollary rights
incidental thereto... (RCW 90.58.020)
Page 6 of 22
31. Fossil fuel refineries and transshipment facilities have potential for
accidents, which can release pollutants into the environment and impact
fish habitat, wildlife habitat, water quality, and air quality. The subject
amendments seek to limit negative impacts on public health, safety, and
the environment.
Countywide Planning Policies
32. Countywide Planning Policy E-3 states:
Cherry Point shall be designated as an unincorporated industrial urban
growth area in recognition of existing large scale industrial land uses.
Additional large scale development shall be encouraged consistent with
the ability to provide needed services and consistent with protecting
critical areas along with other environmental protection considerations.
The Cherry Point industrial area is an important and appropriate area
for industry due to its access to deep water shipping, rail, all-weather
roads, its location near the Canadian border, and its contribution to
the County's goal of providing family wage jobs.
33. Countywide Planning Policy I-2 indicates "New business development and
expansion of existing businesses are key factors in providing family wage'
jobs and a strong tax base. Economic development that pays family wage
rates should be encouraged..."
34. Countywide Planning Policy I-8 states:
Economic development should be encouraged that:
a. Does not adversely impact the environment;
b. Is consistent with community values stated in local
comprehensive plans;
c. Encourages development that provides jobs to county residents;
d. Addresses unemployment problems in the county and seeks
innovative techniques to attract different industries for a more
diversified economic base;
e. Promotes reinvestment in the local economy;
f. Supports retention and expansion of existing businesses.
35. Countywide Planning Policy N-2 states that "The Cities and the County in
cooperation with other municipal corporations and tribal governments shall
adopt zoning regulations and development standards to protect water
resources..."
36. Countywide Planning Policy N-3 states that "Jurisdictions shall cooperate to
protect and restore water resources and fish habitat within UGA's and
across jurisdictional boundaries to maintain quality of life and economic
health in Whatcom County."
Page 7 of 22
37. The Countywide Planning Policies recognize the significance of the Cherry
Point UGA for industry, transportation, and good jobs. The Countywide
Planning Policies also recognize the importance of environmental
protection.
38. The Comprehensive Plan, including the subject amendments, allows a
variety of industrial uses in the Cherry Point UGA, while encouraging
review processes that will facilitate a full evaluation of fossil fuel
development proposals and mitigation of negative impacts.
Interlocal Agreements
39. There are no interlocal agreements relating to the Cherry Point UGA.
Further Studies/Changed Conditions
40. The GMA, originally adopted in 1990, included a requirement to designate
Urban Growth Areas (UGAs).
41. The Cherry Point UGA was adopted in 1997 when the Whatcom County
Comprehensive Plan was adopted.
42. The Washington State Department of Natural Resources (DNR) originally
issued the Cherry Point Environmental Aquatic Reserve Management Plan
in November 2010, and amended the Plan in January 2017.
43. The primary focus of the Cherry Point Environmental Aquatic Reserve
Management Plan is to:
... protect, enhance and restore habitats used by Cherry Point herring
stock, salmon, migratory and resident birds, Dungeness crab,
groundfish rearing areas and marine mammals, as well as the protection
of submerged aquatic vegetation and water quality... (p. 4).
44, The Cherry Point Environmental Aquatic Reserve Management Plan states:
... the aquatic environment of Cherry Point: provides essential
habitat and irreplaceable biological and ecological functions; is a
portion of Treaty -protected usual and accustomed (U&A) grounds and
stations of local Native American Indians; and provides significant
economic benefits, recreational opportunities and other social values. .
. (pp. 4 and 5).
45. The Cherry Point Environmental Aquatic Reserve Management Plan
recognizes that:
A number of species and habitats addressed in this plan have
Page 8 of 22
experienced declines over the past 40 years, such as the Cherry Point
herring stock, which has shrunk from approximately 15,000 tons to
between 800 and 2,100 tons over the last ten years. Other key
species in decline include Puget Sound Chinook salmon, bull trout, and
certain species of rockfish, surf scoter, and Southern Resident orca
whales ... (pp. 1 and 2).
46. The Cherry Point Environmental Aquatic Reserve Management Plan
specifically excludes certain areas, including the three existing industrial
piers, from the Reserve (pp. 10 and 11).
47. The Cherry Point Environmental Aquatic Reserve Management Plan
constitutes a further study that indicates a need for the subject
amendments and the Washington Department of Natural Resources has
taken action to further restrict leasing and development of additional piers
in the Aquatic Reserve through a Commissioner's Order dated January 3,
2017,
48. According to the Washington State Department of Ecology website:
... on December 22, 2020 a BNSF train derailed at mile post 111.7
near Custer, WA. Ten rail cars derailed with several overturning,
spilling Bakken crude oil. Three of those cars leaked oil and caught
fire... An estimated 28,962 gallons of oil were lost in the incident.
Much of that amount burned up, evaporated or was recovered
afterward, leaving 5,400 to 8,000 gallons unrecovered.. .
49. Other areas of the U.S. and Canada have experienced community impacts
and environmental degradation associated with fossil fuel industry
accidents since the adoption of the Cherry Point UGA in 1997. Protecting
public safety is a core element of the police power and the County
recognizes that it is a fundamental responsibility of local government to
establish and enforce laws protecting the welfare, safety and health of the
public as allowed under the Tenth Amendment of the US Constitution.
50. Since the 1997 establishment of the Cherry Point UGA, one of the changed
conditions considered by the County is the increased knowledge of the
impacts of climate change, including reduced snowpack, the potential
impacts of sea level rise, the potential for increased and more intense
storm activity and resultant flooding and potential impacts on public
infrastructure and the impacts of increased temperatures on public health
and safety and flooding. These climate impacts have been summarized in
a variety of reports prepared by the University of Washington's Climate
Impacts Group which are part of the record for this decision. The
ordinance requires evaluation and consideration of the greenhouse gas
impacts of new industrial development on climate change and addresses
the need for mitigation of those impacts at the federal, state and/or local
level.
Page 9 of 22
Public Interest
51. The Cherry Point area contains valuable fish and wildlife habitat (Cherry
Point Environmental Aquatic Reserve Management Plan, DNR, amended
2017).
52. The Cherry Point UGA is a unique location, with important attributes, for
industry (Whatcom County Comprehensive Plan, pp. 2-54 to 2-56).
Existing industries provide high wage jobs and a substantial tax base
(Employment at Cherry Point, Hodges, Rucker, and McCafferty, 2019).
53. The Cherry Point UGA text, goals and policies in the Whatcom County
Comprehensive Plan, including the subject amendments, recognize the
value of existing industrial uses and the importance of marine waters, fish
and wildlife habitat, air quality and a healthy climate.
54. The subject comprehensive plan amendments should not adversely affect
the overall rate or distribution of population growth, employment growth,
development, and conversion of land as envisioned in the comprehensive
plan. The Whatcom County Comprehensive Plan allocated an additional
890 jobs for the Cherry Point UGA for the 2013-2036 planning period. The
Employment at Cherry Point report from 2014 estimated that there were
2,100 — 2,200 jobs in the Cherry Point industrial area at that time (p. 3).
The Employment at Cherry Point report from 2019 estimates 3,318 jobs
and indicates that, between 2014-2019, "... roughly 1,100 jobs have
been added ..." (pp. 6 and 14). However, most of the 700 jobs at Alcoa
Intalco Works, along with related jobs, were lost with the shutdown of the
aluminum smelter. Growth projections will be updated in the next periodic
update of the Comprehensive Plan (due by June 2025). These updated
projections will take into account conditions at that time and expectations
for the future.
55. The subject comprehensive plan amendments should not adversely affect
ability of the county and/or other service providers, such as cities, schools,
water and/or sewer purveyors, fire districts, and others as applicable, to
provide adequate services and public facilities including transportation
facilities. The subject amendments do not expand the allowed uses that
would be served by Fire District 7, which encompasses the Cherry Point
UGA. Additionally, new residential uses are not allowed in the Cherry
Point industrial area and, therefore, new students will not be generated by
development in this area.
56. The closest designated Agricultural lands are over .80 of a mile to the
southeast, the closest Mineral Resource designation is approximately .06
of a mile to the east, and the closest designated Forestry lands are over 4
miles to the southeast of the Cherry Point UGA. There is no evidence in
Page 10 of 22
the record that the subject comprehensive plan amendments would
adversely impact designated agricultural, forestry, or mineral resource
lands.
57. The Cherry Point UGA goals and policies, including subject amendments,
allow industrial uses in the Cherry Point UGA that provide family wage jobs
and contribute to the tax base of the County and special purpose districts.
The subject amendments allow existing fossil fuel facilities, along with
certain improvements, as outright permitted uses subject to certain
thresholds. Fossil fuel facility expansions are allowed by conditional use
permit where newly established thresholds are exceeded while requiring
appropriate environmental analysis and addressing impacts to public
safety and the environment. Such planning is in the public interest.
Spot Zoning
58. 'Illegal spot zoning" means a zoning action by which a smaller area is
singled out of a larger area or district and specially zoned for a use
classification totally different from, and inconsistent with, the classification
of surrounding land and not in accordance with the Comprehensive Plan.
Spot zoning is zoning for private gain designed to favor or benefit a
particular individual or group and not the welfare of the community as a
whole (WCC 20.97.186).
59. The subject proposal does not involve nor facilitate illegal spot zoning.
Development Regulation Amendments
60. The subject amendments modify text of the Whatcom County SEPA rules
(WCC 16.08), the Zoning Code (WCC 20), and Project Permit Procedures
(WCC 22.05)
61. Pursuant to WCC 22.10.060(2), in order to approve development
regulation amendments the County must find that the amendments are
consistent with the Whatcom County Comprehensive Plan.
SEPA Code Amendments
62. Whatcom County Comprehensive Plan Policy 1OA-6 states "Aim to meet or
exceed national, state, and regional air quality standards. Work with the
Northwest Clean Air Agency to ensure compliance with applicable air
quality standards."
63. Whatcom County Comprehensive Plan Policy 1OA-9 is to "Cooperate with
state and federal agencies and neighboring jurisdictions to identify and
protect threatened and endangered fish and wildlife species and their
habitats."
Page 11 of 22
64. Whatcom County Comprehensive Plan Goal 10D is to "Strengthen the
sustainability of Whatcom County's economy, natural environment, and
built communities by responding and adapting to the impacts of climate
change."
65. Whatcom County Comprehensive Plan Goal 10L is to "Protect and enhance
ecosystems that support native fish and wildlife populations and habitat."
66. The Washington State Department of Ecology adopted a "Clean Air Rule,"
which included greenhouse gas emission limits, in 2016 (Washington
Administrative Code or WAC 173-442). The Clean Air Rule was developed
under the authority granted in RCW 70.94 (Washington Clean Air Act) and
RCW 70.235 (Limiting Greenhouse Gas Emissions). The Clean Air Rule was
challenged and the Thurston County Superior Court issued a ruling in
March 2018 that prevented Ecology from implementing the Clean Air Rule
regulations. However, the Washington Supreme Court reversed the
Superior Court in part on January 16, 2020, upholding the Clean Air rule
as it relates to regulating stationary sources (Case No. 95885-8).
67. A Directive of the Governor (# 19-18), dated December 19, 2019, states:
I hereby direct the Department of Ecology to adopt rules by
September 1, 2021, to strengthen and standardize the consideration of
climate change risks, vulnerability, and impacts in environmental
assessments for major projects with significant environmental impacts.
The rules should be uniform and apply to all branches of government,
including state agencies, political subdivisions, public and municipal
corporations and counties. The rules should cover major industrial
projects and major fossil fuel projects; and establish uniform methods,
processes, procedures, protocols or criteria that ensure a
comprehensive assessment and quantification of direct and indirect
greenhouse gas emissions resulting from the project.
Rules for cumulative environmental assessments and reporting should
include ... Methods, procedures, protocols, criteria or standards for
mitigation of greenhouse gas emissions, as necessary to achieve a
goal of no net increase in greenhouse gas emissions ...
68. The Washington State Department of Ecology sent an e-mail "Notice of
Rulemaking for Proposed New Chapter 173-445 WAC — Greenhouse Gas
Assessment for Projects Rulemaking" on May 1, 2020. An associated
document entitled "Prenro osal Statement of Inquiry_" on Ecology's website
stated:
The Department of Ecology (Ecology) is beginning rulemaking as per
Page 12 of 22
the Directive of the Governor #19-18. The purpose of this rulemaking
is to create a new rule under Chapter 173-445 WAC Greenhouse Gas
Assessment for Projects (GAP Rule). This rule will address analysis and
mitigation of greenhouse gas emissions for environmental
assessments of industrial and fossil fuel projects.
It is anticipated that the GAP Rule will be adopted by the Department of
Ecology and will prescribe the methodologies for analyzing the lifecycle
greenhouse gas impacts of large facilities under the State Environmental
Policy Act. It is also anticipated that the GAP Rule will take into account
the provisions of SB 5126 and possibly, the impacts of HB 1091 pertaining
to reducing carbon intensity of transportation fuels. The provisions of SB
5126 and HB 1091 are described in paragraph 68 below. The GAP Rule
provisions will be incorporated into a new rule, WAC 173-445, contained in
the Washington Administrative Code and will apply statewide to all
jurisdictions, including Whatcom County. According to the Governor's
directive, the new rule is to "strengthen and standardize the consideration
of climate change risks, vulnerability, and impacts in environmental
assessments for major projects...". The Governor has modified the original
directive to extend the expected completion date for the rule to December
31, 2021.
69. On April 25, 2021, the Washington State Legislature adopted SB 5126, the
Climate Commitment Act. This legislation, at Sections 8 and 9, establishes
a cap and invest system to regulate greenhouse gas emissions from
industrial sources producing over 25,000 metric tons per year of emissions
and will apply to several of the existing industrial sources in the Cherry
Point UGA as "covered entities". The legislation provides for rulemaking by
the Department of Ecology to implement the provisions of the bill. The
legislation is to take effect on January 1, 2023. The legislation requires
that a cap and invest system be designed to reduce greenhouse gas
emissions from covered entities in a manner that will meet the greenhouse
gas emission limits established by the Legislature, which are: a 95%
reduction below 1990 levels by 2050, with interim economy -wide
emissions limits of 45% below 1990 levels by 2030 and 70% below 1990
levels by 2040 with the state achieving net zero emissions by 2050. The
legislation, in Section 10, contains amendments to the State
Environmental Policy Act, RCW 43.21C. The amendments preempt cities
and counties from implementing a charge or tax based exclusively on the
quantity of greenhouse gas emissions for a stationary source, preclude
denial of a permit for new or expanded facilities with emissions covered by
the legislation and also preempt the Department of Ecology's Clean Air
Rule. The legislation, at Section 10 (9)(e), contains the following language
regarding mitigation of greenhouse gas emissions from facilities covered
by the legislation: "A lead agency under chapter 43.21C RCW or a
permitting agency shall allow a new or expanded facility that is a covered
entity or opt -in entity to satisfy a mitigation requirement for its covered
emissions under this act and under any greenhouse gas mitigation
Page 13 of 22
requirements for covered emissions under chapter 43.21C RCW by
submitting to the department the number of compliance instruments
equivalent to its covered emissions during a compliance period." The
legislation also provides that entities responsible for greenhouse gas
emissions below the thresholds for "covered entities" may register as an
ANopt-in entity" or may register as a "general market participant" and
reduce the entity's greenhouse gas emissions through the cap and invest
program.
70. In the 2021 session, the Legislature also adopted HB 1091, the Clean Fuel
Standard. This legislation prescribes reductions in the carbon intensity of
transportation fuels beginning January 1, 2023. The legislation addresses
the downstream emissions of transportation fuels and would ultimately
result in a 20 percent reduction in the carbon intensity of transportation
fuels supplied for certain transportation uses by 2037 and could be
extended beyond that date to provide further reductions. The GAP Rule
may incorporate discussion of how this downstream emission reduction
should be considered in analyzing and mitigating the greenhouse gas
impacts of fuels produced by refineries.
71. The Washington State Legislature passed the Clean Energy Transformation
Act (CETA) in the 2019 legislative session. CETA commits the State of
Washington to an electricity supply free of greenhouse gas emissions by
2045. CETA will address indirect emissions for electricity supplied to
facilities by utilities. The GAP Rule may address how these indirect
emissions should be treated in environmental reviews for major facilities
where lifecycle greenhouse gas analysis will be required and the County
will be required to follow the provisions of the GAP Rule when it is
finalized.
72. The subject amendments modify the County's SEPA rules to require
applicants for certain fossil fuel and renewable fuel projects to submit
additional information on a number of topics including greenhouse gas and
other emissions, tanker and barge traffic, stormwater, wastewater, and
risk of spills and explosions. These provisions are intended to provide the
SEPA Responsible Official with more information in order to make reasoned
decisions on threshold determinations and possible mitigation of impacts.
These provisions are consistent with the SEPA Rules established in Chapter
197-11 of the Washington Administrative Code.
73. The subject amendments include provisions on SEPA's relationship to
federal, state, and regional regulations (see WAC 197-11-158(4)). It is
anticipated that these provisions will harmonize with the GAP Rule and the
provisions of state legislation such as SB 5126 and HB 1091, if and when
they become effective.
74. The subject amendments modify the County's SEPA rules by adding
provisions relating to air quality & climate and plants & animals. These
Page 14 of 22
topics are specifically listed as "elements of the environment" under the
State SEPA Rules (WAC 197-11-444).
75. The subject amendments include provisions that the decision maker may
condition or deny projects (conditioning includes mitigating measures).
This authority is already granted under RCW 43.21C.060, which states ".
. Any governmental action may be conditioned or denied pursuant to this
chapter..." (the State Environmental Policy Act). These provisions may
need to be further harmonized with the GAP Rule and/or the provisions of
SB 5126 if and when the GAP Rule and the legislation become effective.
76. While State government is taking action to address air quality and
greenhouse gas emissions, the County finds that the subject amendments
will also provide assistance at the local government level in fulfilling
responsibilities under SEPA. The provisions also allow reliance on SEPA
analysis and mitigation by state, regional of federal entities under certain
circumstances.
Zoning Code Amendments
77. The Cherry Point UGA is zoned Light Impact Industrial (LII) and Heavy
Impact Industrial (HII). There are approximately 470 acres in the LII zone
and 6,560 acres in the HII zone.
78. The subject amendments modify the LII zone, HII zone, Cherry Point
Industrial District, Major Project Permits, and Definitions sections of the
Whatcom County Zoning Code (Title 20).
79. Whatcom County Comprehensive Plan Goal 2H is to "Preserve private
property rights while recognizing the importance of the rights of the
community, including protecting the natural environment and conserving
resources."
80. Whatcom County Comprehensive Plan Goal 7A is to "Promote a healthy
economy providing ample opportunity for family -wage jobs for diverse
segments of the community, which is essential to the quality of life in the
area."
81. Whatcom County Comprehensive Plan Policy 7A-2 is to "Foster a diverse,
private -sector job base, which will provide family -wage jobs at the state
median income level or greater, and facilitate the retention and expansion
of existing businesses."
82. Whatcom County Comprehensive Plan Policy 7J-1 is to "Support creation
of job opportunities for local residents, especially family wage jobs to
decrease unemployment and underemployment.
Page 15 of 22
83. The Zoning Code, as modified by the subject amendments, preserves
private property rights and fosters economic development by continuing to
allow a wide array of industrial land uses in the Cherry Point UGA. In the
LII zone, allowed uses include manufacturing (except new fossil fuel
refineries), fabrication, printing, storage, boat building and repair,
communications, and other similar uses. In the HII zone, allowed uses
include manufacturing (except new fossil fuel refineries), fabrication,
printing, storage, boat building and repair, power plants (except coal-fired
plants), and solid waste handling facilities.
84. Additionally, the HII zone amendments allow continued operation,
maintenance, and certain improvements to existing refineries and
transshipment facilities (WCC 20.68.068).
85. Whatcom County Comprehensive Plan Goal 2G is to "Encourage citizen
participation in the decision making process." Policy 2G-1 is to "Examine
and improve methods to notify affected property owners of proposed land
use changes."
86. The subject Zoning Code amendments provide greater public review of
certain land uses that could impact public safety, transportation, and the
environment. Specifically, the expansion of existing fossil fuel refineries
and existing fossil fuel transshipment facilities beyond specified thresholds
requires a conditional use permit in the HII zone (WCC 20.68.153 and
WCC 20.68.154). The conditional use permit process requires notice, a
public hearing, evaluation of the proposal for compliance with the approval
criteria, and a decision by the hearing examiner. Existing operations,
certain specified accessory uses (WCC 20.68.068) and expansions below
the specified thresholds remain outright permitted uses under the
amendments. New renewable fuel refineries which reduce lifecycle
greenhouse gas emissions are permitted uses under the amendments.
87. Whatcom County Comprehensive Plan Policy 2CC-16 was adopted in 2017
(Ordinance 2017-027). This Policy, which is being modified by the subject
amendments, stated:
The County shall undertake a study to be completed if possible by
December of 2017 to examine existing County laws, including those
related to public health, safety, development, building, zoning,
permitting, electrical, nuisance, and fire codes, and develop
recommendations for legal ways the County may choose to limit the
negative impacts on public safety, transportation, the economy, and
environment from crude oil, coal, liquefied petroleum gases, and
natural gas exports from the Cherry Point UGA ... Based on the
above study, develop proposed Comprehensive Plan amendments and
associated code and rule amendments...
Page 16 of 22
88. The subject amendments prohibit entirely new fossil fuel refineries and
new fossil fuel transshipment facilities (WCC 20.66.204, 20.68.204 and
.205). Potential impacts from new refineries and associated
transshipment facilities may include: Increased pollutant emissions to the
air, increased chance of crude oil or refined product spills, increased
chance of fire or explosion, increased rail traffic that can impact other
modes of transportation (e.g. hold up motor vehicle, school bus, or
emergency vehicle traffic at railroad crossings), increased chance of
derailment, and increased vessel traffic.
89. The Whatcom County Comprehensive Plan states "Whatcom County lies
within the influence of the convergent plate margin between the Pacific
and North American Plate termed the Cascadia Subduction Zone.
Regionally -extensive and damaging earthquakes, termed mega -thrusts,
are possible when stress generated between the subducting Pacific Plate
and over-riding North American Plate is released..." (Chapter 10, p. 10-
12). Because new refineries and transshipment facilities would transport
and process flammable and toxic materials there is heighted concern,
based upon the geology of the region, that these facilities could increase
risk to both public safety and the environment.
90. There are currently five oil refineries in Washington State. Two are in
Whatcom County, two are in Skagit County, and one in Pierce County.
Whatcom County has approximately 3% of the State's population, but
40% of the State's refineries. The County has accepted its fair share of
such facilities in the state and region and wants to limit the local impacts
on the community and environment of further concentration of such
facilities.
91. The subject amendments prohibit new coal fired power plants in the HII
zone (WCC 20.68,207).
92. According to the National Institute of Health's National Library of Medicine
website in 2020:
... Air pollution from coal-fired power plants cause serious risk to
human health. Coal-fired power plants emit 84 of the 187 hazardous
air pollutants identified by the U.S. Environmental Protection Agency.
These pollutants may cause cancer, according to the National
Toxicology Program.
Hazardous air pollution released by coal-fired power plants can cause a
wide range of health effects, including heart and lung diseases.
Exposure to coal power plant pollution can damage the brain, eyes,
skin, and breathing passages. It can affect the kidneys, lungs, and
nervous and respiratory systems. Exposure can also affect learning,
memory, and behavior.
Page 17 of 22
... Coal-fired power plants are the biggest industrial sources of
mercury and arsenic in the air. Mercury pollutes lakes, streams, and
rivers, and builds up in fish. People who eat large amounts of fish from
contaminated lakes and rivers are at the greatest risk of exposure to
mercury.
... People who work at or live near coal-fired power plants have the
greatest health risks from coal pollution.. .
93. The subject amendments continue to allow other types of power plants in
the HII zone, but would prohibit coal-fired power plants because of the
risks to the local community, public health, and environment.
94. Whatcom County Comprehensive Plan Policy 1OD-10 is to "Create updates
to Whatcom County land use policies and development regulations to
support renewable energy development goals."
95. The subject amendments allow renewable fuel refineries as a permitted
use in the HII zone (WCC 20.68.070 and .071).
96. The Whatcom County Comprehensive Plan states that "... Cherry Point is
also important historically and culturally to the Coast Salish people, and
part of the usual and accustomed fishing area for five treaty tribes,
reserved under the Treaty of Point Elliot of 1855..." (Chapter 2, p. 2-54).
Comprehensive Plan Policy 2CC-11 states:
It is the policy of Whatcom County to limit the number of industrial
piers at Cherry Point to the existing three piers, taking into account
the need to ... Recognize federal actions upholding treaty rights. .
97. The United States Department of the Army, Corps of Engineers denied a
permit for a new pier under Section 10 of the Rivers and Harbors Act on
May 9, 2016 because "... the proposed project would violate the Lummi
Indian Nation's tribal Treaty Rights to access and utilize usual and
accustomed fishing areas..."
98. The subject Zoning Code amendments implement the Comprehensive Plan
by prohibiting new piers, docks, and wharves in the HII zone (WCC
20.68.206 and WCC 20,74.055). The Zoning Code amendments will also
provide consistency with the Cherry Point Aquatic Reserve Management
Plan and the order of the Commissioner regarding further aquatic leasing
for piers, docks and wharves.
Project Permit Procedure Amendments
99. Whatcom County Comprehensive Plan Goal 2D is to "Refine the regulatory
system to ensure accomplishment of desired land use goals in a fair and
equitable manner."
Page 18 of 22
100. Whatcom County Comprehensive Plan Policy 7G-1 is to "Recognize the
natural environment as a major asset and manage environmental
resources accordingly. We need both economic prosperity and
environmental sustainability."
101. Whatcom County Comprehensive Plan Policy 10A-2 is to:
Protect the environment through a comprehensive program that
includes voluntary activity, education, incentives, regulation,
enforcement, restoration, monitoring, acquisition, mitigation, and
intergovernmental coordination.
102. RCW 88.40 is entitled "Transport of Petroleum Products — Financial
Responsibility." This State law, at RCW 88.40.005, indicates:
The legislature recognizes that oil and hazardous substance spills and
other forms of incremental pollution present serious danger to the
fragile marine environment of Washington state. It is the intent and
purpose of this chapter to define and prescribe financial responsibility
requirements for vessels that transport petroleum products as cargo or
as fuel across the waters of the state of Washington and for facilities
that store, handle, or transfer oil or hazardous substances in bulk on
or near the navigable waters.
103. This State law requires a tank vessel that carries oil as cargo in bulk to
demonstrate financial responsibility to "... meet state and federal
financial liability requirements for the actual costs for removal of oil spills,
for natural resource damages, and for necessary expenses" (RCW
88.40,020).
104. WAC 480-62 is entitled "Railroad Companies — Operations." This State
code, at WAC 480-62-300(2), requires any railroad company that
transports crude oil in Washington to submit to the Washington Utilities
and Transportation Commission a statement that contains:
(a) All insurance carried by the railroad company that covers any
losses resulting from a reasonable worst case spill.
(b) Coverage amounts, limitations, and other conditions of the
insurance.
(c) Average and largest crude oil train, as measured in barrels,
operated in Washington by the railroad company in the previous
calendar year.
(d) Information sufficient to demonstrate the railroad company's
ability to pay the costs to clean up a reasonable worst case spill
Page 19 of 22
of oil including, but not necessarily limited to, insurance, reserve
accounts, letters of credit, or other financial instruments or
resources on which the company can rely to pay all such costs.
105. The State Legislature adopted Engrossed Substitute House Bill (ESHB)
1578 in 2019. This bill amended the "Vessel Oil Spill Prevention and
Response" law (RCW 88.46), the "Oil and Hazardous Substance Spill
Prevention and Response" law (RCW 90.56), and other provisions of state
law.
106. ESHB 1578 states:
The legislature finds that a variety of existing policies designed to
reduce the risk of oil spills have helped contribute to a relatively strong
safety record for oil moved by water, pipeline, and train in recent
years in Washington state. Nevertheless, gaps exist in our safety
regimen, especially deriving from shifts in the modes of overwater
transportation of oil and the increased transport of oils that may
submerge or sink, contributing to an unacceptable threat to
Washington waters, where a catastrophic spill would inflict potentially
irreversible damage on the endangered southern resident killer
whales. ..Therefore, it is the intent of the legislature to enact certain
new safety requirements designed to reduce the current, acute risk
from existing infrastructure and activities of an oil spill that could
eradicate our whales, violate the treaty interests and fishing rights of
potentially affected federally recognized Indian tribes, damage
commercial fishing prospects, undercut many aspects of the economy
that depend on the Salish Sea, and otherwise harm the health and
well-being of Washington residents... (Section 1).
107. Tug escorts have been required for larger loaded oil tankers for years.
ESHB 1578 amended state law to require certain smaller oil tankers to be
under the escort of tugs, require the Department of Ecology to develop
and maintain a model to assess current and potential future risks of oil
spills from vessels in Washington waters, and modify reporting
requirements for railroad cars and pipelines that transport crude oil within
the state.
108. While the Washington State legislature has enacted laws relating to the
transportation and handling of fossil fuels, there have been a number of
accidents involving fossil fuel refineries and transportation of fossil fuels in
North America over the years. These accidents, involving flammable
and/or toxic materials, have impacted local communities and the
environment. On July 5, 2013, an oil train derailment, explosion and fire in
Lac Magentic, Quebec resulted in the deaths of 47 people. On December
22, 2020, a train derailment and fire occurred at Custer in Whatcom
County. The Custer derailment and fire resulted in the loss of 29,000
gallons of crude oil and required an evacuation and extensive emergency
Page 20 of 22
response. On June 10, 1999 an Olympic Pipe Line Company pipeline
ruptured and spilled over 236,000 gallons of gasoline into Hanna and
Whatcom Creeks resulting in the deaths of 3 young people.
109. Overall, the subject amendments seek to minimize or avoid additional risk
to the local community and environment from fossil fuel facilities. The
amendments are intended to heighten the level of review or, in certain
cases, prohibit uses in order to protect public health, safety & welfare,
fisheries industries, fish & wildlife habitat, and the environment.
110. However, in case of accidents, the subject amendments include proof of
insurance requirements (WCC 22.05.125), as it is a matter of fairness that
responsible parties mitigate the consequences of any accidents.
County Charter and GMA Takings Provisions
111. Whatcom County Charter Section 1.11 states, 'The rights of the individual
citizen shall be guaranteed under the Constitutions of the United States
and the State of Washington. No regulation or ordinance shall be drafted
and adopted without consideration of and provisions for compensation to
those unduly burdened."
112. GMA Planning Goal 6, relating to property rights, states "Private property
shall not be taken for public use without just compensation having been
made. The property rights of landowners shall be protected from arbitrary
and discriminatory actions" (RCW 36.70A.020(6)).
113. The Whatcom County Prosecuting Attorney's Office has rendered an
opinion that the subject Comprehensive Plan and code amendments do not
unduly burden property owners and do not take private property for public
use.
CONCLUSIONS
1. The subject Whatcom County Comprehensive Plan amendments are
consistent with the approval criteria in WCC 22.10.060(1).
2. The subject development regulation amendments are consistent with the
approval criteria in WCC 22.10.060(2).
Page 21 of 22
NOW, THEREFORE, BE IT ORDAINED by the Whatcom County Council that:
Section 1. Amendments to the Whatcom County Comprehensive Plan are
hereby adopted as shown on Exhibit A.
Section 2. Amendments to Whatcom County Code 16.08 (State Environmental
Policy Act) are hereby adopted as shown on Exhibit B.
Section 3. Amendments to Whatcom County Code Title 20 (Zoning) are hereby
adopted as shown on Exhibit C.
Section 4. Amendments to Whatcom County Code 22.05 (Project Permit
Procedures) are hereby adopted as shown on Exhibit D.
Section 5. Adjudication of invalidity of any of the sections, clauses, or
provisions of this ordinance shall not affect or impair the validity of the
ordinance as a whole or any part thereof other than the part so declared to be
invalid.
ADOPTED this 27th day of July
WHATCOM COUNTY COUNCIL
WHATCOM COUNTY, WASHINGTON
®®��y4�tatttsat�Ba®
ATTES�w�`
6;
Dana BNw�F`I vi ., _ 'uhcil Clerk
APPROVED as't 1ft rm:
/s/ Karen Frakes
Civil Deputy Prosecutor
2021.
Vychanan,
Chairperson
( ) Approved ( ) Denied
S� �;d�
Satpal Sidhu, Executive
Date
Page 22 of 22
I d1d, / I
-
w€- ATCOM COUNTY COUNCIL
F D0111ED COMIPREFIENS€VE PLAN AMENDMENTS (JULY 27, 2021) - CLEAN VERSION
1 Exhibit A
Comprehensive - (Chapter
3 Major Industrial Urban Growth Area / Port Industrial
4 Cherry Point — Text
5 Change Second Paragraph of Cherry Point Text
6 Because of the special characteristics of Cherry Point, including deep water port access,
7 rail access, and proximity to Canada, this area has regional significance for the siting of
8 large industrial or related facilities. General Petroleum constructed the Ferndale Refinery
9 in 1954, Alumax/Pechiney/Howmet constructed the Aluminum Smelter in 1966, and the
10 Atlantic Richfield Company constructed the Cherry Point Refinery in 1971. The existing
11 industries in the Cherry Point UGA, which provide significant employment, have produced
12 and shipped refined fossil fuels and other products for decades.
13 Amend Policy 2CC-11
14 Policy 2CC-11: It is the policy of Whatcom County to limit the number of industrial
15
piers at Cherry Point to the existing three piers, taking into account the
16
need to:
17
• Act conservatively in land use matters at Cherry Point to prevent
18
further harm to habitat important to the Cherry Point Herring stock
19
and Southern Resident Killer Whales;
20
• Optimally implement the Whatcom County Shoreline Master
21
Program to fulfill the Shoreline Management Act's shorelines of
22
statewide significance policy to preserve natural character, result in
23
long-term over short-term benefit, and protect the resources and
24
ecology of the shoreline;
25
• Encourage the continued agency use of best available science;
26
• Support and remain consistent with the state Department of Natural
27
Resources' withdrawal of Cherry Point tidelands and bedlands from
28
the general leasing program and the species recovery goals of the
29
Cherry Point Aquatic Reserve designation and Management Plan;
30
• Recognize federal actions upholding treaty rights;
31
0 Protect traditional commercial and tribal fishing; and
32 Prevent conflicts with vessel shipment operations of existing
33 refineries that could lead to catastrophic oil or fuel spills.
34 Amend Policy 2CC-16
35 Policy 2CC-16: The County will, through its adopted SEPA policies and applicable
36 permitting processes, seek to limit the negative impacts on public
37 safety, transportation, the economy, and environment from new fossil
38 fuel facilities, including new or expanded crude oil, coal, liquefied
39 petroleum gases, and natural gas facilities within the Cherry Point UGA.
40 The County Administration should provide the County Council written
41 notice of all known preapplication correspondence or permit application
42 submittals and notices, federal, state, or local that involve activity with
43 the potential to expand "Fossil Fuel Refinery, Renewable Fuel Refinery,
44 Fossil Fuel Transshipment Facility, or Renewable Fuel Transshipment
45 Facility," as defined in the Whatcom County Code (Chapter 20.97).
46 Amend Policy 2CC-17
47 Policy 2CC-17 Allow existing operations or maintenance of existing fossil -fuel related
48 facilities operating as of August 8, 2021, with limited expansions
49 subject to environmental review, greenhouse gas emission analysis,
50 and conformance with Policies 2CC-3 and -11.
51 Add a new policy as follows:
52 Policy 2CC-18: This chapter is intended to allow the on -going operation,
53 maintenance, and repair of existing facilities, modifications
54 designed to comply with adoption and implementation of new
55 product standards and fuel standards, operational and site
56 safety improvements, environmental improvements, and
57 regulatory compliance projects.
58 Essential Public Facilities
59 Amend Policy 2WW-4
60 Policy 2WW-4: State and regional highways in unincorporated Whatcom
61 County that have been designated as essential state or regional
62 transportation facilities are I-5, State Route 539 (the Guide
63 Meridian), State Route 546/9 (Badger from the Guide to
64 Sumas), and State Route 20 to eastern Washington. Other
65 transportation facilities in unincorporated Whatcom County that
66 have been designated as essential public facilities are Amtrak
67 Cascades passenger rail service, the Burlington Northern Santa
68 Fe railroad tracks, and the Cherry Point marine port facilities.
69 Such facilities in the City of Bellingham include Fairhaven
70 Station (intercity passenger rail terminal), Bellingham Cruise
71 Terminal (Alaska Ferry), and the Port of Bellingham (marine
72 port). Additionally, State Route 543 (the truck route at the
2
73
Blaine border) is an essential public facility located within the
74
city limits of Blaine.
75
Widening of existing state highways or railroad tracks (including
76
construction of sidings) and siting new state highways or
77
railroad tracks should be planned in the Washington Highway
78
System Plan, Amtrak Cascades Plan and the Freight Rail Plan.
79
The state will invite the Regional Transportation Planning
80
Organization and the County to participate in planning studies,
81
review design plans, and provide comments when siting new or
82
expanded state highways or railroad tracks.
83
Highways and railroad tracks that qualify as essential public
84
facilities should be sited in accordance with all of the following
85
principles. These facilities should be located:
86
. In a manner that minimizes or mitigates noise impacts to
87
surrounding residential areas.
88
• • Outside of the Lake Whatcom Watershed, unless there are
89
no viable alternatives.
90
. • In a manner that allows continued fish passage beyond the
91
road or railroad tracks or restores blocked passage.
92
• • In a manner that avoids or mitigates wetland impacts.
93
• • In a manner that minimizes impacts of additional
94
impervious surfaces by treating stormwater runoff.
95
• • In a manner that encourages a vibrant economy by
96
facilitating the efficient movement of people and freight.
97
• • In a manner that accommodates pedestrians, bicycles, and
98
transit.
99
Major passenger intermodal terminals should be located in
100
General Commercial, Airport Operations, Urban Residential-
101
Medium Density or industrial zones.
102
Freight railroad switching yards and terminals should be located
103
in industrial zones.
104 Marine port facilities should be located within the Heavy Impact
105 Industrial zone of the Cherry Point Major/Port Industrial Urban
106 Growth Area. Allow existing facilities and limited expansions
107 consistent with the State of Washington Department of Natural
108 Resource Cherry Point Aquatic Reserve Management Plan.
3
WHATCOnri COUNTY COUNCIL
ADOPTED CODE AMENDMENTS (JULY 27, 2021) — CLEAN VERSION
1
2
M
4 CHAPTER 16.08 STATE ENVIRONMENTAL POLICY ACT (SEPA)
5 16.08.090. Environmental checklist
6 E. Evaluation/Worksheet for Fossil and Renewable Fuel Facilities: Air and environmental health are elements of the
7 environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in
8 WAC 197-11-906(1)(c), Whatcom County hereby adds a procedure and criteria to help identify the affected environment,
9 impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For any proposed
10 expansion of facilities pursuant to and in accordance with WCC 20.68.153, WCC 20.68.154 or any new or expansions of a
1 1 Renewable Fuel Refinery or Renewable Fuel Transshipment Facility, the proponent will provide an expert evaluation or fill
12 out the County's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." This expert evaluation or Worksheet provides
13 detailed information required to evaluate impacts to air, land and water during review of a SEPA environmental checklist.
14 The form of the worksheet shall be prepared and updated as needed by the SEPA Responsible Official in consultation with
15 the Planning Commission and the County Council. The expert evaluation or Worksheet shall analyze the -"significance" of
16 direct, indirect, and cumulative impacts arising from:
17 1. Windborne transport of fossil or renewable fuel emissions across Whatcom County;
18 2. Lifecycle greenhouse gas emissions for the projecCs incremental change for renewable facilities and fossil fuel
19 facilities;
20 3. Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or
21 interfere with commercial and treaty tribe fishing areas;
22 4. Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the
23 shorelines, and to their headwaters; and
24 5. Potential for loss of life and/or property related to risks from spills or explosions associated with refining and
25 transport of renewable or fossil fuels or related feedstocks within Whatcom County.
26 In determining whether possible impacts are "significant" and "probable," the Responsible Official shall determine whether
27 the information in the expert evaluation or the Worksheet accurately analyze the severity of potential harm, independently
28 from analysis of probability of occurrence, in compliance with WAC 197-11-330. Also, as provided in WAC 197-11-794,
29 "the severity of an impact should be weighed along with the likelihood of its occurrence" and "a❑ impact may be significant
30 if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred."
31 The information provided in the expert evaluation or Worksheet required for fossil and renewable fuel facilities shall be
32 considered procedures and criteria added to Whatcom County's SEPA policies and procedures pursuant to WAC 197-11-
33 906(l)(c) and are deemed necessary to be consistent with the provisions of SEPA contained in RCW 43.21C.020, RCW
34 43.21 C.030 and RCW 43.21C.031. However, the expert evaluation or Worksheet may not he required if an environmental
35 impact statement is prepared.
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1 6.08.160 Substantive authority.
A. The policies and goals set forth in this chapter are supplementary to those in the existing authorization of Whatcom
County.
B. The county may attach conditions to a permit or approval for a proposal so long as:
1. Such conditions are necessary to mitigate specific probable adverse environmental impacts identified in
environmental documents prepared pursuant to this chapter; and
2. Such conditions are in writing; and
3. The mitigation measures included in such conditions are reasonable and capable of being accomplished; and
4. The county has considered whether other local, state, or federal mitigation measures applied to the proposal are
sufficient to mitigate the identified impacts; and
5. Such conditions are based on one or more policies or provisions in subsection D, E, or F of this section and cited in
the license or other decision document.
C. The county may deny a permit or approval for a proposal on the basis of SEPA so long as:
1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that
are identified in a HIS or final SEIS prepared pursuant to this chapter; and
2. A finding is made that there are no reasonable mitigation measures capable of being accomplished that are sufficient
to mitigate the identified impact; and
3. The denial is based on one or more policies or provisions identified in subsection D or F of this section and identified
in writing in the decision document.
D. The county designates and adopts by reference the following policies as the basis for the county's exercise of SEPA
authority pursuant to this section:
1. The county shall use all practicable means, consistent with other essential considerations of state policy, to improve
and coordinate plans, functions, programs, and resources to the end that the state and its citizens may:
a. Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
b. Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing
surroundings;
c. Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or
other undesirable and unintended consequences;
d. Preserve important historic, cultural, and natural aspects of our national heritage;
e. Maintain, wherever possible, an environment which supports diversity and variety of individual choice;
f. Achieve a balance between population and resource use which will permit high standards of living and a wide
sharing of life's amenities; and
g. Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable
resources.
2. The county recognizes that each person has a fundamental and inalienable right to a healthful environment and that
each person has a responsibility to contribute to the preservation and enhancement of the environment.
2
75 3. The county adopts by reference the policies in the following county documents:
76 Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components)
77 Whatcom County Shoreline Management Program
78 Whatcom County Subdivision Ordinance
79 Whatcom County Solid Waste Management Plan
80 Whatcom County Critical Areas Ordinance
81 All official land use controls adopted by Whatcom County.
82 E. Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed by these
83 SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific
84 adverse environmental impact has been adequately addressed by an existing rule or law of another agency with
85 jurisdiction, the County shall consult orally or in writing with that agency and may expressly defer to that agency. In
86 making this deferral, the County shall base or condition its project approval on compliance with these other existing
87 rules or laws. The County shall not so defer if such regulations did not anticipate or are otherwise inadequate to address
88 a particular impact of a project or would be less restrictive than County Code.
89 F. Specific Environmental Policies
90 1. Air Quality and Climate:
91 a. Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality
92 of life. Mitigation of air pollutant impacts will normally be the subject of air permits required by the Northwest
93 Clean Air Agency (NWCAA) and/or State Department of Ecology (DOE) and no further mitigation by the County
94 shall be required. However, where a project being reviewed by the County generates public nuisance impacts,
95 odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, the County
96 may require mitigation under SEPA.
97 b. Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows
98 and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads,
99 dikes and critical infrastructure such as water and waste treatment facilities. While climate change is a global
100 phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that
101 projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be
102 authorized by the County address greenhouse gas emissions impacts.
103 i. Greenhouse Gas Emissions: The following shall apply to projects that: (1) are expansions of Fossil Fuel
104 Refineries and Fossil Fuel Transshipment Facilities, as defined in WCC 20.68.153 and WCC 20.68.154, or new,
105 or expansion of Renewable Fuel Refineries and Renewable Fuel Transshipment Facilities; and (2) will have
106 reasonably foreseeable, probable, direct greenhouse gas emissions resulting from new or modified equipment of
107 greater than 10,000 MT/year (CO,e) as determined by the Northwest Clean Air Agency using methodology
108 consistent with 40 CFR § 98.253, Calculating GHG Emissions (for Petroleum Refineries) and 40 CFR § 98.33,
109 Calculating GHG Emissions (for Stationary Fuel Combustion Sources), as applicable.
110 (a) Emissions Assessed: The SEPA Responsible Official shall require assessment of the lifecycle
1 11 greenhouse gas emissions of the project, with a focus on the reasonably foreseeable, probable, direct and
112 indirect, gross greenhouse gas emissions caused by the project, consistent with WAC 197-11-060(4)(d).
113 The assessment shall estimate the incremental gross direct emissions change from a baseline established in
114 current Prevention of Significant Deterioration and/or Minor New Source Review Permit Technical
115 Support Documents.
116 (b) Impact Assessment: Greenhouse gas emissions impacts shall be assessed using current scientifically
117 valid modeling techniques, accounting for project emissions and gross increases of existing direct
118 emissions resulting from the proposed expansion project. The range of greenhouse gas emissions impacts
119 assessed may be greater than the range of greenhouse gas emissions impacts for which mitigation is
120 required.
121 (c) Mitigation: The County decision -maker shall require the applicant to identify options for mitigation of
122 greenhouse gas emissions that are caused by the project pursuant to WAC 197-11-660 and WCC
123 16.08.160.13, and in accordance with the following considerations:
124 (1) Mitigation measures must be imposed on the permittee as provided in WAC 197-11-660(1)(d).
125 The County decision maker must require mitigation to address the project's direct greenhouse gas
126 emissions and may require mitigation to address the project's indirect emissions. Voluntary
127 additional mitigation may occur, per WAC 197-11-660(1)(d). Mitigation shall not be required for
128 projects shown in SEPA assessment to reduce greenhouse gas emissions of existing facilities on a
129 lifecycle basis.
130 (2) The SEPA Responsible Official shall not require duplicative mitigation of greenhouse gas
131 emissions (MT CO2e) that are reasonably foreseeable, probable, and caused by the project to the
132 extent these emissions or a portion of these emissions are otherwise mitigated under other local,
133 state, or federal laws, rules, or permits.
134 (3) Mitigation may be achieved through on -site mitigation measures, such as efficiency
135 improvements and reduced generation, and through local and regional projects, so long as such
136 measures or projects are reasonable, capable of being accomplished, are likely to protect or
137 enhance environmental quality, and meet current state rules and standards. Alternatively,
138 mitigation may be achieved through 1) projects located outside of the local area/region, or 2)
139 through purchase of carbon offsets from any carbon registry approved by the Planning
140 Department, NWCAA, or any Washington state agency, subject to the provisions of item (6),
141 below. Mitigations for the project being permitted may concurrently satisfy any other
142 requirements imposed by County, State or Federal governments for the same project.
143 (4) When considering the total mitigation required, a multiplier of 1.5 shall be applied to the
144 tonnage of all mitigations performed locally (including those selected from the current Whatcom
145 County Climate Action Plan) after August 8, 2021 as a means to encourage local investment. This
146 multiplier shall not apply to emission reduction units generated by and purchased from local third-
147 party projects or activities that were implemented prior to August 8, 2021.
148 (5) Applicants are encouraged, but not required, to select mitigation proposals from the Whatcom
149 County Climate Action Plan and to select projects that yield energy efficiency gains, local
150 economic benefits such as creation of jobs with living wage or use of prevailing wages, and/or
151 local economic development.
152 (6) Mitigations based on emissions reductions from activities or programs must be: (a) real,
153 specific, identifiable, and quantifiable; (b) permanent; (c) enforceable; (d) verifiable; and (e)
154 except as allowed by (3) above, additional to reductions required under other laws, rules, or
155 permits for unrelated projects or expansions.
156 (7) The County decision maker may not deny a permit based upon lack of availability of local or
157 regional mitigation.
158 (d) Should a Washington state greenhouse gas assessment and mitigation permitting or project requirement
159 be adopted, such as a rule adopted pursuant to the Washington Governor's Directive 19- 18, Environmental
160 Assessment of Greenhouse Gas Emissions, Title 16.08.160.F.I.b.i shall no longer apply as of the effective
161 date of the requirement or rule. Should a new Federal greenhouse gas assessment and mitigation permitting
162 or project requirement with the same force and effect of Title 16.08.160.F.l.b.i be adopted Title
163 16.08.160.F.l.b.i shall no longer apply as of the effective date of the requirement or rule.
164 ii. Greenhouse Gas Emissions — Other Uses Within the Heavy Impact Industrial District:
165 (a) Method of analysis: Determined by SEPA Responsible Official following consultation with federal and
166 state agencies with jurisdiction or expertise.
167 (b) Mitigation: Determined by SEPA Responsible Official. See Le.
168 c. It is the County's policy to minimize or prevent adverse air quality impacts. Federal, state, regional, and county
169 regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts. If the
170 decision -maker makes a written finding that the applicable federal, state, regional, and/or County regulations did
171 not anticipate or are inadequate to address the particular impact(s) of the project, the decision -maker may
172 condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deny a project under
173 the provisions of the State Environmental Policy Act.
174
175
176 2. Plants and Animals:
177 a. Many species of birds, mammals, fish, and other classes of animals and plants living in both rural and urban
178 environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened
179 by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of
180 ecological, educational, and economic value include priority habitats and species as listed in the Washington
181 Department of Fish and Wildlife's Priority Habitats and Species, as amended, consistent with WCC 16.16.710,
182 and High Biodiversity Value Areas per the Whatcom County 2017 Ecosystem Report, as amended.
183 b. it is the County's policy to minimize or prevent the loss of fish and wildlife habitat that have substantial
184 ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and
185 federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be
186 given to anadromous fisheries and marine mammals.
187 c. The decision -maker may condition or deny the project to mitigate its specific adverse environmental impacts if
188 the decision -maker finds that a proposed project would reduce or damage rare, uncommon, unique or exceptional
189 plant or wildlife habitat, designated wildlife corridors, or habitat diversity for plants or animals species of
190 substantial educational, ecological, or economic value, or interfere with treaty rights, clean water rights, or
191 endangered species protection.
192
193 16.08.175 Purpose of this article and adoption by reference.
194 This article contains uniform usage and definitions of terms under SEPA. The county adopts the following sections
195 by reference, as supplemented by WAC 173-806-040:
196
197
WAC
198
197-11-700
Definitions.
199
197-11-702
Act.
200
197-11-704
Action.
201
197-11-706
Addendum.
202
197-11-708
Adoption.
203
197-11-710
Affected tribe.
204
197-11-712
Affecting.
205
197-11-714
Agency.
206
197-11-716
Applicant.
207
197-11-718
Built environment.
208
197-11-720
Categorical exemption.
209
197-11-721
Closed record appeal.
210
197-11-722
Consolidated appeal.
211
197-11-724
Consulted agency.
212
197-11-726
Cost -benefit analysis.
213
197-11-728
County/city.
214
197-11-730
Decision maker.
215
197-11-732
Department.
216
197-11-734
Determination of non significance (DNS).
217
197-11-736
Determination of significance (DS).
218
197-11-738
EIS.
5
219
197-11-740
Environment.
220
197-11-742
Environmental checklist.
221
197-11-744
Environmental document.
222
197-11-746
Environmental review.
223
197-11-750
Expanded scoping.
224
197-11-752
Impacts.
225
197-11-754
Incorporation by reference.
226
197-11-756
Lands covered by water.
227
197-11-758
Lead agency.
228
197-11-760
License.
229
197-11-762
Localagency.
230
197-11-764
Major action.
231
197-11-766
Mitigated DNS.
232
197-11-768
Mitigation.
233
197-11-770
Natural environment.
234
197-11-772
NEPA.
235
197-11-774
Nonproject.
236
197-11-775
Open record hearing.
237
197-11-776
Phased review.
238
197-11-778
Preparation.
239
197-11-780
Private project.
240
197-11-782
Probable.
241
197-11-784
Proposal,
242
197-11-786
Reasonable alternative.
243
197-11-788
Responsible official.
244
197-11-790
SEPA.
245
197-11-792
Scope.
246
197-11-793
Scoping.
247
197-11-794
Significant.
248
197-11-796
State agency.
249
197-11-797
Threshold determination.
250
197-11-799
Underlying governmental action.
251
In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this article,
252
the following
terms shall have the following meanings, unless the context indicates otherwise:
253
A."Direct Emissions"
means greenhouse gas emissions associated with Fossil Fuel Refineries, Fossil Fuel
254
Transshipment Facilities, Renewable Fuel Refineries, or Renewable Fuel Transshipment Facilities based upon
255
the refining
and processing of Fossil Fuels located within the Cherry Point Heavy Industrial area."
256
B. "Early notice"
means the county's response to an applicant stating whether it considers issuance of a
257
determination
of significance (DS) likely for the applicant's proposal (mitigated determination of
258
nonsignificance
(MDNS) procedures).
259
C. `I;RC" means
environmental review committee established in WCC 16.08.045.
P
260 D. "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse
261 gases," "GHG," and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons,
262 perfluorocarbons, and sulfur hexafluoride, and any other gas or gases designated by the federal clean air act
263 (United States Code Title 42, Chapter 85), state clean air act (Chapter 70A.15 RCW) or state limiting greenhouse
264 gas emissions law (Chapter 70A.45 RCW) or any directly superseding provisions of state or federal law.
265 E. Gross emissions mean the actual incremental emissions increases or decreases resulting from the project. Gross
266 emissions do not include reductions or additions from offsite mitigation or lifeeyele impacts.
267 F. Indirect emissions mean emissions resulting fi-om offsite generation of power purchased for consumption at the
268 facility and emissions fi-om other contiguous or adjacent utilities directly supplying the facility (examples include
269 cogeneration of steam, offsite hydrogen production).
270 G. "Lifecycle greenhouse gas emissions" means the aggregate quantity of greenhouse gas emissions (including
271 direct emissions and significant indirect emissions), related to the full fuel lifecycle, including all stages of fuel
272 and feedstock production and distribution, from feedstock generation or extraction through the distribution and
273 delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are
274 adjusted to account for their relative global warming potential.
275 H. "Ordinance" means the procedure used by the county to adopt regulatory requirements.
276 I. "Responsible official" shall mean the director ofthe department which bears responsibilities for the SEPA
277 process or his/her designee.
278 J. "SEPA rules" means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 98-048 Exh. A; Ord.
279 84-122 Part 8).
280
281
282
283
284
285
286
287
288
289
290
291
292
293
294
295
296
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297
298
299 CHAPTER 20.66 LIGHT IMPACT INDUSTRIAL (1-11) DISTRICT
300 20.66.200 Prohibited uses.
301 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not
302 limited to the following, which are listed here for purposes of clarity:
303 .201 Reserved.
304 .202 Adult businesses except those allowed as an administrative approval use under WCC 20.66.131.
305 .203 In the Bellingham Urban Growth Area the following uses are prohibited: primary manufacturing and processing of
306 rubber, plastics, chemicals, paper, asbestos and products derived thereof, and primary metal industries.
307 .204 New Fossil -Fuel Refinery or new Fossil Fuel Transshipment Facilities.
308
309
310
311
312
313
314
315
316
317
318
319
320
321
322
323
324
E3
325 CHAPTER 20.68 HEAVY IMPACT INDUSTRIAL (HII) DISTRICT
326 20.68.050 Permitted uses.
327 Unless otherwise provided herein, permitted and accessory uses shall be administered pursuant to the applicable provisions of
328 Chapter 20.80 WCC, Supplementary Requirements, and Chapter 22.05 WCC, Project Permit Procedures, the Whatcom
329 County SEPA Ordinance, the Whatcom County Subdivision Ordinance and the Whatcom County Shoreline Management
330 Program and implementing regulations.
331 .051 The manufacture and processing of food including meat (including packinghouses and slaughterhouses), dairy, fruits,
332 vegetables, seafood, grain mill, large scale bakery, sugar and beverage products, provided the following criteria are met:
333 (1) Holding pens associated with packinghouses and slaughterhouses shall be limited to that necessary to accommodate
334 animals intended for processing within 24 hours.
335 (2) The facility shall comply with the solid waste handling standards as set forth in Chapter 173-350 WAC, as administered
336 by the Whatcom County health department as adopted by reference in Chapter 24.06 WAC.
337 (3) if required by the Washington State Department of Ecology, the following permits shall be obtained:
338 (a) State waste discharge permit (Chapter 173-216 WAC);
339 (b) Industrial stonnwater permit — general permit (Chapter 173-226 WAC);
340 (c) An NPDES permit (Chapter 90.48 RCW and Chapter 173-220 WAC).
341 .052 Manufacturing and processing of textiles including weaving cotton, synthetic, si Ik or wool fabrics; knitting yarn and
342 thread mills; textile bleaching, dyeing and printing; and carpet manufacture.
343 .053 The manufacture and processing of lumber and wood including sawmills; planing mills; millwork; veneer, plywood and
344 prefabricated wood products; wooden containers and cooperage.
345 .054 The following are permitted uses except as otherwise prohibited:
346 (1) The manufacture and process of paper including pulp, paper and paperboard mills; and building paper and board mill
347 products.
348 (2) The manufacture and processing of chemicals and allied products including industrial inorganic and organic chemicals;
349 synthetic resins, rubber, fibers and plastic materials; soap, detergents and cleaning preparations; paint, linseed oil, shellac,
350 lacquer and allied products; chemicals from gun and wood; and agricultural chemicals.
351 (3) The manufacture and processing of rubber and plastic products.
352 (4) Leather tanning and finishing.
353 (5) The manufacture and processing of cement and glass; and concrete, gypsum, plaster, abrasive, asbestos and nonmetallic
354 mineral products.
355 (6) Primary metal industries including blast furnaces and steel works; mills for primary smelting, secondary smelting,
356 refining, reducing, finishing, rolling, drawing, extruding, and casting of ferrous and nonferrous metals; and the manufacture
357 of miscellaneous metal products.
358 (7) Storage of asphalt in the Heavy Impact Industrial Zone.
359 .055 The fabrication of metal products including metal cans, hardware, hand tools, cutlery, heating apparatus, plumbing
360 fixtures, structural metal and stamping.
361 .056 The manufacture of machinery including engines; turbines; farm machinery and equipment; construction, mining and
362 materials handling equipment; machine tools and dies; and special and general industrial equipment.
363 .057 The manufacture of electrical machinery including transmission and distribution equipment, and industrial apparatus.
364 .058 The manufacture of transportation equipment including automobiles, trucks, buses, airplanes, boat building and repair,
365 railroad equipment, bicycles and motorcycles.
366 .059 Bulk commodity storage facilities, and truck, rail, vessel and transshipment terminals and facilities except as
367 conditionally permitted under WCC 20.68.153 and .154 or prohibited under WCC 20.68.200.
368 .060 Stationary thermal power plants with generating capacity of less than 250,000 kilowatts, floating thermal power plants
369 with generating capacity of less than 50,000 kilowatts, and other power plants utilizing renewable resources from solar, wind
370 (Chapter 20.14 WCC) or water sources, except that coal-fired power plants are prohibited.
371 .061 Heavy construction contractors.
372 .062 Public uses and community facilities including police and fire stations, libraries, activity centers, community centers,
373 park and recreation facilities identified in an adopted city or county Comprehensive Plan or Park Plan, and other similar
374 noncommercial uses, excluding state education facilities and correction facilities.
375 .063 One one-story detached accessory storage building per lot; provided, that the floor area shall not exceed 200 square feet
376 and shall only be used for personal storage and not for habitation or business; and provided further, that the storage building
377 shall contain no indoor plumbing but may be served with electrical power for lighting.
378 .064 Uses allowed in the Light Impact Industrial Zone as permitted uses, WCC 20.66.100, shall be permitted outright within
379 the Heavy Impact Industrial District in the Bellingham UGA.
380 .065 Trails, trailheads, restroom facilities and associated parking areas for no more than 30 vehicles.
381 .066 Marijuana production or processing facility.
382 .068 Existing Fossil Fuel Refineries, existing Fossil Fuel Transshipment Facilities, Renewable Fuel Refineries, Renewable
383 Fuel Transshipment Facilities, piers and docks legally established as of August 8, 2021, provided that when a permit is
384 sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any capacity
385 changes defined under WCC 20.68.153 and WCC 20.68.154 to the county permitting authorities. Provided that a conditional
386 use permit is not required by WCC 20.68.153 or WCC 20.68.154, permitted uses include repairs, improvements,
387 maintenance, modifications, remodeling or other changes including but not limited to the following,:
388 (1) Accessory and appurtenant buildings, structures, and processing equipment.
389 (2) Office space.
390 (3) Parking lots.
391 (4) Radio communications facilities.
392 (5) Security buildings, fire stations, and operation centers.
393 (6) Storage buildings.
394 (7) Routine maintenance and repair.
395 (8) Environmental improvements and other projects on the subject site that are required or provided to allow compliance with
396 federal, state, regional, or local regulations, including modifications of fossil fuel facilities for purposes of co -processing
397 biomass with petroleum.
398 (9) Road projects and bridges.
399 (10) Temporarytrailers.
400 (11) Heating and cooling systems.
401 (12) Cable installation.
402 (13) Information technology improvements.
In
403 (14) Continuous emissions monitoring systems or analyzer shelters.
404 (15) Wastewater and stormwater treatment facilities.
405 (16) Replacement and upgrading of existing equipment.
406 (17) Safety upgrades.
407 (18) Pipelines carrying petroleum or petroleum products solely within the Heavy Impact Industrial zoning district.
408 (19) Pipelines carrying natural gas solely within the Heavy Impact Industrial zoning district.
409 (20) Renewable fuel production and shipment.
410 (21) Transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved;
411 (22) Necessary Fossil Fuels transfers during turn-arounds or maintenance periods.
41 2 (23) Storage tanks, provided that the County decision maker shall include in any approval of an application for storage tanks
413 at an existing Fossil Fuel Refinery, Fossil Fuel Transshipment Facility, Renewable Fuel Refinery, or Renewable Fuel
414 Transshipment Facility a condition that the storage tank shall only be used in the manner described in the application and
415 approved in the permit. The application and permit shall describe the intended use of the storage tank, including the type of
416 fuel to be stored and, if located within a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the storage tank will or
417 will not be used for transshipment.
418 (24) Other similar structures or activities.
419 .070 New Renewable Fuel Refineries or Renewable Fuel Transshipment Facilities, except that new piers, docks, or wharves
420 in the Cherry Point Industrial District are prohibited.
421 0.71 Expansion of existing legal Renewable Fuel Refineries or Renewable Fuel Transshipment Facilities, provided that the
422 expansion is for Renewable Fuels only.
423 .081 Freight railroad switching yards and terminals, except as prohibited render WCC 20.68.200.
424 .082 Marine port facilities, except as prohibited under WCC 20.68.200.
425 .085 Type I solid waste handling facilities.
426 .086 Type 1I solid waste handling facilities.
427 20.68.1 00 Accessory uses.
428 .101 Employee recreation facilities and play areas.
429 .102 Restaurants, cafes and cafeterias operated primarily for the convenience of employees, clients and Customers of the
430 district.
431 .103 Temporary buildings for construction purposes for a period not to exceed the duration of such construction.
432 .104 When auxiliary to a principally permitted use: electric utility facilities; substations; generating plants, if less than 50
433 megawatt (MW) net plant capability; gas works; sewage disposal facilities; solid waste landfills and incinerators.
434 .105 Other accessory uses and buildings, including security services, customarily appurtenant to a principally permitted use.
435 .106 On -site treatment and storage facilities for hazardous wastes associated with outright permitted uses or approved
436 conditional uses subject to the most current siting criteria under Chapter 173-303 WAC.
437 .107 Mini -day care centers, and day care centers operated by, maintained by or funded by business in the district for the
438 purpose of serving the child care needs of employees whose place of employment lies within this zone district.
439 .108 Electric vehicle rapid charging stations and battery exchange facilities.
440 .109 Inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks.
441 20.68.1 30 Administrative approval uses.
442 .131 Commercial mushroom substrate production limited to the Cherry Point Industrial Area and pursuant to the
443 requirements as contained in WCC 20.15.020(2) (commercial mushroom substrate production facilities). (Ord. 2006-031 § 1
444 (Exh. A), 2006).
445 20.68.150 Conditional uses.
446 The following uses require a conditional use permit in the HIT Zoning District.
447 .152 Uses allowed in the Light Impact Industrial zone as permitted uses, WCC 20.66.100, subject to the following:
448 (1) Outside of the Bellingham Urban Growth Area, approval shall be supported by a finding by the hearing examiner that
449 allowing the use will not limit the supply of land available to meet the demand for fixture heavy industrial uses.
450 (2) Filing of a deed restriction acknowledging that heavy industrial uses are the preferred uses in the zone and agreeing not to
451 protest proposed heavy industrial uses allowed in the zone in accordance with Chapter 20.68 WCC, and to refrain from legal
452 action against any heavy industrial use in compliance with the regulations of WCC Title 20 and any conditions of approval
453 which might have been proposed.
454 .153 Expansion of existing Fossil Fuel Refineries. For purposes of this section, an expansion is any development (including
455 otherwise permitted or accessory uses), vested after August 8, 2021, that meets any one of the following applicable
456 thresholds:
457 A. Cumulatively increases the facility's total Maximum Atmospheric Crude Distillation Capacity for Fossil Fuels by
458 more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations
459 conducted by a licensed professional engineer; or
460 B. Cumulatively increases the facility's total Maximum Transshipment Capacity for Fossil Fuels by more than 10,000
461 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a
462 licensed professional engineer in accordance with 20.97.230.1; or
463 C. hlcreases the frequency of Fossil Fuel unit train shipments by rail unloaded or loaded at an existing facility in excess
464 of limits, if any, established by County, State or Federal authorities (where applicable) as of August 8, 2021 or the
465 effective date of a previously approved conditional use permit, whichever is more recent.
466 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset.
467 .154 Expansion of existing Fossil Fuel Transshipment Facilities. For purposes of this section, an expansion is any
468 development (including otherwise permitted or accessory uses), vested after August 8, 2021, that cumulatively increases the
469 facility's total Maximum Transshipment Capacity for Fossil Fuels by more than 10,000 barrels (or 420,000 gallons) per day,
470 based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.1.
471 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset.
472 .155 Treatment and storage facilities for hazardous wastes subject to the following:
473 (1) The criteria for a conditional use listed under WCC 22.05.026.
474 (2) The most current state siting criteria under Chapter 173-303 WAC.
475 (3) It shall be the responsibility of the applicant to document to the satisfaction of the approving body the anticipated sources,
476 types, volumes and final disposition of hazardous wastes to be collected and the type of treatments associated with those
477 wastes. The permit shall be limited exclusively to those types of wastes and treatments as documented and approved.
478 (4) Total off -site facility capacity shall be limited to that needed to treat and store wastes generated within Whatcom County
479 by generators requiring off -site management of hazardous wastes; provided, however, waste streams may be sourced from
480 other jurisdictions through interagency zone designation agreements as approved by the county council, not to exceed 10
481 percent of the total local hazardous waste steam.
12
482 (5) Prior to occupancy of the facility, the State Department of Ecology shall certify to the county that the facility has been
483 constructed consistent with state requirements.
484 (6) As a condition of approval, the applicant shall be required to keep and maintain accurate and current records of the types,
485 amounts, sources, and final disposition of hazardous wastes collected. The applicant shall provide such records annually to
486 the county, or sooner upon county request. If the facility is found to be exceeding the waste stream limitations or permit
487 restrictions, the county staff shall so report to the approving body who shall have the authority to revoke the permit,
488 following a public hearing, if the limitation has been exceeded absent an emergency situation. Any emergency must be
489 docuunented by county staff.
490 (7) Annual inspections of the facility shall be a minimum requirement. The applicant shall be required to forward copies of
491 all facility inspection reports to the county. If deficiencies are found, the operator shall, within 15 days, submit to the county
492 for approval an implementation schedule of corrective measures. Such schedule shall include specific completion dates and
493 inspection reporting procedures.
494 If the state does not inspect the facility within the year, the applicant shall be required to arrange and bear all costs for an
495 inspection by a qualified and independent inspection agency satisfactory to the county.
496 (8) Should the facility be found to consistently operate in a manner unsatisfactory to the county in regard to the public health
497 and safety, the permit may be revoked by the approving body following a public hearing.
498 .156 Public and private parks facilities not included in an adopted city or county Comprehensive Plan or Park Plan.
499 .157 Trailheads with parking areas for more than 30 vehicles.
500 .158 Athletic fields.
501 .180 Major passenger intermodal terminals.
502 .187 Type Ili solid waste handling facilities; provided, that:
503 (1) The facility or site will not be located within the 100-year floodplain or the Lake Whatcom watershed. The facility or site
504 will not be located within any area identified in an adopted critical areas ordinance unless outside of the floodplain and at
505 least three feet in elevation higher than the floodway elevation;
506 (2) Solid waste handling facilities shall be located at least 1,500 feet from the following:
507 (a) All zoning district boundaries, except Commercial Forestry and hndustrial Zones;
508 (b) Public parks, public recreation areas, or publicly -owned wildlife areas;
509 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation;
510 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program;
511 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species;
512 (f) This 1,500-foot buffer does not apply to:
513 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from
514 the property line 100 feet or the standard zoning district setback, whichever is greater;
515 (ii) Inert landfills;
516 (3) Inert landfills shall be located at least 500 feet from the following:
517 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones;
518 (b) Public parks, public recreation areas, or publicly -owned wildlife areas;
519 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation;
13
520 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program;
521 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species
522 (f) This 500-foot buffer does not apply to:
523 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from
524 the property line 100 feet or the standard zoning district setback, whichever is greater;
525 (4) The facility or site will not result in filling or excavation, location of structures or buildings, driveways or machinery use
526 except for vegetation maintenance within 100 feet of any property line and except for driveways within 150 feet of any
527 county or state road right-of-way;
528 (5) The facility or site will have vehicular approaches designed to minimize conflict between automobile and truck traffic,
529 will maintain the carrying capacity of county roads, and will be located on a road classified as all weather, except where use
530 is shown to be intermittent and easily delayed until emergency conditions have passed;
531 (6) The facility or site has complied with the provisions of WCC 22.05.026 and all other ordinances and laws regulating solid
532 waste facilities and sites, such as but not limited to WCC Title 24, the Whatcom County SEPA Ordinance, as well as state
533 and federal regulations concerning solid waste facilities and sites;
534 (7) All landfills have a final closure plan meeting the requirements of WCC Title 24 and of Chapter 173-350 WAC, and the
535 closure plan includes:
536 (a) Reclamation in two to 10 acre increments, as appropriately responsive to the size and intensity of the particular
537 activity, with seeding to be accomplished annually but no later than September 30th; and
538 (b) Permanent vegetative cover that will maintain in healthy growing condition with the level of maintenance that is
539 covered through the financial assurance for post-closuu•e activities;
540 (8) The buffer areas and visual screening shall include a minimum of 50 feet wide of landscaping meeting the requirements
541 of WCC 20.80.300 (Landscaping);
542 (9) Solid waste facilities or sites shall be located outside the 10-year time of travel boundary of a public -water system's
543 delineated wellhead protection area;
544 (10) Solid waste facilities or sites that handle putrescible waste will be located at least 10,000 feet from airports serving
545 turbine -powered aircraft and at least 5,000 feet from airports serving piston -powered aircraft. These buffers shall be
546 measured from the boundary of the Airport Operations Zone or, if the airport is not within an Airport Operations Zone, from
547 the boundary of the airport property;
548 (11) In addition, the Whatcom County hearing examiner may impose conditions of approval which may be necessary to
549 protect the value and enjoyment of existing adjacent uses.
550 .188 Mitigation banks as a form of compensatory mitigation for wetland and habitat conservation area impacts when
551 permitted in accordance with the provisions of Chapter 16.16 WCC; provided, applications for mitigation banks shall be
552 processed as a major development project pursuant to Chapter 20.88 WCC.
553 20.68.200 Prohibited uses.
554 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not
555 limited to the following, which are listed here for purposes of clarity:
556 .201 Reserved.
557 .202 Adult businesses.
558 .203 In the Bellingham Urban Growth Area the following uses are prohibited: petrolearn refinery and the primary
559 manufachn-ing of products thereof, primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and
560 products derived thereof, and primary metal industries.
14
561 .204 New Fossil Fuel Refineries.
562 .205. New Fossil Fuel Transshipment Facilities.
563 .206. New piers, docks, or wharves in Cherry Point Industrial District.
564 .207 Coal-fired power plants.
565 (Ord. 2018-006 § 3 (1 xh. C), 2018; Ord. 2016-011 § I (1xh. L), 2016; Ord. 99-078, 1999; Ord. 99-070 § 2, 1999; Ord. 91-
566 075, 1991).
567 20.68.250 Minimum lot size.
568 The minimum lot size shall be consistent with the area required to meet the building setback, lot coverage, buffer and
569 development standards of the district. (Ord. 97-057 § 1, 1997; Ord. 96-046 § 1, 1996).
570 20.68.255 Minimum lot frontage.
571 For the purpose of dividing property, minimum lot frontage shall be sufficient to provide adequate access and utility
572 development, and meet applicable building setback, buffer, and development standards of the district. In no case shall the
573 frontage be less than 30 feet. (Ord. 99-045 § 1, 1999).
574 20.68.350 Building setbacks.
575 Building setbacks shall be administered pursuant to WCC 20.80.200, 20.80.254 and 20.68.550. (Ord. 99-078, 1999).
576 20.68.400 Height limitations.
577 No maximum height is established; however, when a building exceeds 50 feet, the setback requirements of WCC 20.80.200
578 shall be increased by one foot for each foot of building height in excess of 50 feet, as applicable to all setbacks.
579 20.68.450 Lot coverage.
580 The maximum building or structural coverage shall not exceed 60 percent of the lot size.
581 20.68.500 Open space.
582 Repealed by Ord. 97-057. (Ord. 96-046, 1996).
583 20.68.550 Buffer area.
584 .551 The industrial user shall establish a buffer for building sites adjoining the boundary of the Heavy Impact Industrial
585 District (HII), which shall be located adjacent to the district boundary. The purpose of the buffer- is to optimize the visual
586 appearance of the site by obscuring industrial activity from view by passing motorists, to contribute to on -site and off -site
587 impact abatement, and to move towards attaining compatibility with surrounding nonindustrial land uses and character.
588 .552 To implement the buffer requirements of this district, minimum setbacks for heavy industrial buildings and accessory
589 structures shall be established consistent with the following options:
590 (1) If a planting screen is not provided by the industrial user and no natural vegetative screening exists, the minimum
591 setback(s) shall be 660 feet, as measured from the edge of the district boundary. The setback area may be used for security
592 roads, parking, or open space.
593 (2) If natural sight -obscuring and dense vegetation exists, the minimum setback(s) shall be 250 feet, as measured from the
594 district boundary; provided, that a minimum width of 50 feet of natural vegetation is retained. The remainder of the
595 setback(s) may be used for security roads, parking, or open space.
596 (3) if a 50-foot buffer planting screen is established, pursuant to WCC 20.80.345, the minimum setback(s) shall conform to
597 the setback requirements of WCC 20.80.200, as measured from the district boundary. In addition, security roads may be
598 situated within the minimum buffer setback; provided, that the 50-foot-wide buffer planting is established.
15
599 (4) When a parcel situated within this district is located within the Bellingham Urban Growth Area and adjoins an Urban
600 Residential District or residential district within the city limits, setbacks for heavy industrial buildings and/or- uses shall be
601 increased to 100 feet and landscaped in accordance with the requirements of WCC 20.80.345.
602 (5) In no case shall the setback from the northern and western boundaries of the Cherry Point heavy industrial area not
603 contiguous to another industrial zone be less than 660 feet, nor the natural vegetation removed except for parking and
604 security or protective uses.
605 .553 Uses other than heavy industrial will conform to the normal setback requirements as set forth in WCC 20.80.200 and
606 20.80.254(3) and the buffering requirements for light impact industrial uses WCC 20.66.551.
607 .554 If any part of said buffer area is separated from, or sold to any contiguous or adjacent owner, lessee or user, the parcel so
608 separated or sold shall be used only as a buffer area in accordance with the above requirements. (Ord. 2019-013 § I (Exh. A),
609 2019; Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 99-078, 1999; Ord. 97-057 § 1, 1997; Ord. 96-046 § 1, 1996; Ord. 89-117,
610 1989; Ord. 87-12, 1987; Ord. 87-11, 1987).
611 20.68.600 Sign regulations.
612 Sign regulations shall be administered pursuant to WCC 20.80.400.
613 20.68.650 Development criteria.
614 (Ord. 96-056 Att. A § Al, 1996).
615 20.68.651 Landscaping.
616 Refer to WCC 20.80.300 for landscaping requirements. (Ord. 89-117, 1989).
617 20.68.652 Off-street parking and loading.
618 Off-street parking and loading provisions shall be administered pursuant to WCC 20.80.500. In addition, loading areas must
619 be located in such a manner that no loading, unloading and/or maneuvering of trucks associated therewith takes place on
620 public rights -of -way.
621 20.68.653 Drainage.
622 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No
623 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019; Ord. 96-056 Att. A §
624 A2, 1996; Ord. 94-022, 1994).
625 20.68.654 Driveways.
626 Consistent with WCC 20.80.640, driveway plans shall be reviewed by the county engineer or State Department of
627 Transportation, as applicable. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 84-38, 1984).
628 20.68.655 Access.
629 Access shall conform to the provisions of WCC 20.80.565 and 20.80.660. (Ord. 89-117, 1989).
630 20.68.656 Maintenance.
631 The owner, lessee or user shall be responsible for maintaining an orderly appearance of all properties, and shall be
632 responsible for assuring the care and maintenance of any natural growth, where appropriate.
633 20.68.657 Enclosure.
634 All manufacturing or fabrication processes which have the potential to produce off -site impacts of a detrimental nature,
635 including light, glare, odors and noise impacts, shall be sufficiently enclosed to mitigate the impacts. (Ord. 99-078, 1999).
Z
636 20.68.700 Performance standards.
637 20.68.707 Pollution control and nuisance abatement.
638 Each industry is required to continuously employ the best pollution control and nuisance abatement technology when
639 reasonably and practicably available for each particular industry; provided, that where federal, state, or regional laws or
640 regulations provide for the level of technology to be employed, the appropriate standards shall apply.
641 20.68.702 Heat, light and glare.
642 All operations and facilities producing heat, light or glare, including exterior lights, shall be so constructed, screened or used
643 as to not unreasonably infringe upon the use and enjoyment of property beyond the boundaries of the district.
644 20.68.703 Ground vibration.
645 No ground vibration other than that caused by highway vehicles, trains or construction activity shall be permitted, which is
646 discernible without instruments, at or beyond the property line for the use concerned.
647 20.68.704 Odors.
648 No odors, dust, dirt, or smoke shall be emitted that are detectable, at or beyond the property line for the use concerned, in
649 such a concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe
650 upon the use and enjoyment of property beyond the boundaries of the district. (Ord. 91-075, 1991).
651 20.68.705 Noise.
652 No use in this district shall exceed the maximum environmental noise level established by Chapter 173-60 WAC. (Ord. 91-
653 075, 1991).
654 20.68.706 Toxic gases and fumes.
655 Any release of toxic gases or fumes must be in compliance with Washington State and Northwest Air Pollution Control
656 Authority standards. (Ord. 91-075, 1991).
657 20.68.707 Liquid pollutants.
658 There shall be no off -site release to soil or surface drainage ways of water borne or liquid pollutants. (Ord. 91-075, 1991).
659 20.68.708 Appearance.
660 New facilities developed in the Bellingham Urban Growth Area shall be designed, constructed, operated, and maintained so
661 as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and such
662 uses shall not change the essential character of the same area. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 99-078, 1999).
663 20.68.709 Marijuana odor.
664 For indoor facilities no odor or smoke shall be emitted that is detectable at or beyond the walls of the facility, in such a
665 concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe upon
666 the use and enjoyment of neighboring use. The applicant shall install an exhaust system that is designed and constructed to
667 capture sources of contaminants to prevent spreading of contaminants or odors to other occupied parts of the building or
668 surrounding area. The system must be designed by a licensed Washington State professional engineer. (Ord. 2015-006 Exh.
669 A, 2015).
671
17
672 CHAPTER 20.74 CHERRY POINT INDUSTRIAL (CP) DISTRICT
673 20.74.010 Purpose.
674 The purpose of the Cherry Point Industrial District is to implement the policies of the Cherry Point Major Industrial Urban
675 Growth Area section of the Whatcom County Comprehensive Plan by establishing arange of land uses and types of
676 development appropriate for the Cherry Point UGA and to encourage large scale master planning of industrial sites to
677 preserve sites of sufficient size to accommodate major port and industrial development. (Ord. 98-083 Exh. A § 57, 1998).
678 20.74.020 Applicability.
679 This chapter is applicable to the entire Cherry Point Major hndustrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998).
680 20.74.030 Permitted uses.
681 (1) Primary permitted uses:
682 (a) Area south of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Heavy
683 Impact hndustrial District, Chapter 20.68 WCC, as well as large scale high technology businesses.
684 (b) Area north of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Light
685 Impact Industrial District, Chapter 20.66 WCC.
686 (2) Secondary permitted uses shall include smaller scale industrial uses, nonretail commercial uses, and industry -related
687 professional services, provided the secondary use supports or is supported by primary permitted uses in the Cherry Point
688 Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998).
689 20.74.040 Accessory uses.
690 Accessory uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98-
691 083 Exh. A § 57, 1998).
692 20.74.050 Conditional uses.
693 Conditional uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98-
694 083 Exh. A § 57, 1998).
695 20.74.055 Prohibited uses.
696 Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District (Chapter 20.66) and the Heavy
697 Impact Industrial District (Chapter 20.68 WCC), as applicable, and the following:
698 (1) New piers, docks, or wharves.
699 (2) Conversion of a Renewable Fuel Refinery or Renewable Fuel Transshipment Facility to a Fossil Fuel Refinery or Fossil
700 Fuel Transshipment Facility.
701 20.74.060 Master site plan requirements.
702 (1) Development in the Cherry Point Industrial District requires the review and approval of a master site plan, including
703 SEPA review. Acceptable master site plans include site plans and supporting information submitted and approved for
704 applications for a building permit, a short subdivision, a preliminary plat, a binding site plan, a major project permit or a
705 planned unit development.
706 (2) The minimum area for a master site plan (planning block) shall be 160 acres, or the entire property under common
707 ownership if the common ownership is less than 160 acres.
708 (3) Each planning block shall include one lot of not less than 40 acres in size to be designated as the site for a port or major
709 industrial activity; provided, that if the planning block is 40 acres or smaller, the requirement for the major industrial site
710 shall be waived.
In
711 (4) Within a planning block, one or more parcels smaller than 40 acres may be created for secondary uses
712 (5) Review and approved of a master site plan for a planning block shall be included in the approval of any building permit,
713 short subdivision, preliminary plat, binding site plan, major project permit or a planned unit development and shall be subject
714 to the same review and approval standards, including SEPA review, as the plat, binding site plan or permit. Each master site
715 plan shall identify, as appropriate, the proposed phasing of the development including the construction of public and private
716 facilities and utilities. The master site plan or supporting documentation as appropriate shall also include any mitigation
717 required under SEPA and the county critical areas ordinance. (Ord. 98-083 Exh. A § 57, 1998).
718 20.74.070 Minimum lot size and parcelization.
719 The minimum lot size in the Cherry Point Industrial District shall be 40 acres; provided, that lots less than 40 acres may be
720 permitted as follows:
721 (1) When the lots are to be located within a development approved as a major project under Chapter 20.88 WCC consistent
722 with the master site plan requirements in this chapter.
723 (2) When the lots are to be located within a development approved as a planned unit development under Chapter 20.85 WCC
724 consistent with the master site plan requirements of this chapter.
725 (3) When the lots are part of a short subdivision, long subdivision or binding site plan approved as consistent with the master
726 site plan requirements of this chapter.
727 (4) When the administrator finds that the lot(s) will be developed with a use(s) that is consistent with the intent of the district
728 and will not interfere with the development of the primary large uses intended by the Comprehensive Plan.
729 (5) When an existing lot of record is less than 40 acres, provided further division is consistent with this section. (Ord. 98-083
730 Exh. A § 57, 1998).
731 20.7A.080 Design standards.
732 Unless otherwise modified by this chapter, building height, setbacks, landscaping, open space and other building and site
733 design standards for areas south of Grandview Road shall be the same as those of the Heavy Impact hldustrial District,
734 Chapter 20.68 WCC; and for the area north of Grandview Road, the same as those of the Light Impact Industrial District,
735 Chapter 20.66 WCC. (Ord. 98-083 Exh. A § 57, 1998).
736 20.74.090 Traffic demand management.
737 RCW 36.70A.365 requires the implementation of traffic demand management (TDM) programs for designating a Major
738 Industrial Urban Growth Area. Any employer in the Cherry Point Urban Growth Area that employs 100 or more full-time
739 employees at a single worksite who begin their regular work day between 6:00 a.m. and 9:00 a.m. on weekdays for at least 12
740 continuous months during the year are required to meet the TDM requirements of Chapter 16.24 WCC.
741 (1) Employers located in Cherry Point who have not implemented a TDM program shall implement a TDM program by
742 December 1, 2011.
743 (2) Employers in Cherry Point meeting the criteria for having to complete a plan after December 1, 2011, shall meet the
744 requirements of this section within one year of having met the criteria. (Ord. 2009-071 § 2 (Exh. B), 2009).
745 20.74.100 Drainage.
746 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635, No
747 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019).
748
749
Z
750 CHAPTER 20.88 MAJOR PROJECT PERMITS
751 20.88.100 Major project permits.
752 .110 All major developments shall, prior to any construction, obtain a major project permit.
753 .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter
754 16.16 WCC and for any proposed development that meets any two of the following conditions:
Cost
(estimated construction cost exclusive $5,000,000
of land value)
Size
Retail 75,000 square feet
office or industrial (gross leasable 200,000 square feet
floor space)
Residential 300 dwelling units
1110tel/hotel 200 units
Number of Employees 250
SEPA Review An EIS is required
755
756 In addition, the zoning administrator may make an administrative determination after receiving a recommendation from the
757 technical review committee that any project be considered a major development, if in the opinion of the administration it is of
758 a nature that council review would be appropriate.
759 .130 PUr-SUant to WCC 22.05.120 the hearing examiner shall recommend to the county council project approval, approval
760 with conditions, or denial, based upon written findings and conclusions supported by the evidence of record. The hearing
761 examiner's recommendation and county council's decision shall determine the adequacy of a major project permit application
762 based on the following criteria:
763 (1) Will comply with the development standards and performance standards of the zone in which the proposed major
764 development will be located,- provided where a proposed major development has obtained a variance from the development
765 and performance standards, standards as varied shall be applied to that project for the purposes of this act.
766 (2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for
767 the issuance of a conditional use permit for the zone in which the project is located.
768 (3) Prior to commencement of any site preparation or construction activities, will obtain, ifrequired, a state aquatic lands
769 lease, and all other necessary permit consultations and authorizations, including federal determinations that the project will
770 not interfere with treaty fishing rights of tribal nations, the limits set forth in the `Magnuson Amendment" under 33 U.S.C. §
771 476(b) (2004), Section 10 of the Rivers and Harbors Act (for structures in or over navigable waters of the U.S.), the Coastal
20
772 Zone Management Act (including any state Department of Ecology shoreline conditional use or variance approval), the Clean
773 Air Act, and/or under the Clean Water Act, including but not limited to a federal Section 404 authorization (for fill into
774 waters of the U.S.) and a state Section 401 water quality certification.
775 (4) Will not substantially interfere with the operation of existing uses
776 (5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as
777 roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for
778 such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the
779 appropriate agency or division thereof.
780 (6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and
781 will not impose uncompensated costs on other property owned.
782 (7) Will be appropriately responsive to any EIS prepared for the project.
783 .140 In addition, the hearing examiner may recommend or county council may impose any reasonable conditions precedent
784 to the establishment of the major development as may be required to mitigate impacts of the proposal on the natural
785 environment of the county, and to protect the health, safety and general welfare of the people of the county consistent with
786 the policies for environmental protection set forth in the Comprehensive Plan. The County decision maker may approve a
787 major project permit with a condition to obtain relevant leases and complete any necessary federal and state permitting
788 requirements, and may restrict the major project permtttee from undertaking site preparation or construction activities until it
789 has fulfilled that condition.
790 .150 The hearing examiner may recommend or county council may also approve alternative mitigation plans for major
791 project permits in accordance with WCC 16.16.260(E) which may be used to satisfy the requirements of Chapter 16.16 WCC
792 and provide relief from the specific standards and requirements thereof.
793 20.88.200 Procedure.
794 .205 If a major project permit is determined to be required, an application shall be completed and filed along with the
795 appropriate fees, and the application shall be processed in accordance with Chapter 22.05 WCC. A master plan is required as
796 part of the application for a major project permit. The master plan docrnnent shall include all elements required per the
797 department's administrative manual.
798 .210 Development Standards. The major project permit may propose standards that will control development of the possible
799 future uses that are in addition to, or substitute for, requirements of this chapter. These may be such things as height limits,
800 setbacks, frontage, landscaping requirements, parking requirements, signage, view corridors or facade treatments. Proposed
801 standards that do not meet the minimum county standards must obtain the appropriate variance prior to county approval of
802 the proposed standards. If the proposed design standards will apply to property located partially or totally within an urban
803 growth area, concurrence of the affected city will be required.
804 .215 Procedures. Major project permit review shall be conducted under current review procedures. Other land use reviews
805 may be conducted concurrently with the major project permit review.
806 (a) Any modifications, additions or changes to an approved master plan are subject to the following:
807 (i) Minor changes shall be reviewed for compliance and compatibility with the approved major project permit.
808 (1) A determination is made by the director. The director is authorized to consult a technical committee at
809 his/her discretion.
810 (2) Minor changes are those amendments which may affect the dimensions, location and type of
811 improvements of facilities; provided, the amendment maintains the basic character of the major project
812 permit application approved by the county council including general type and location of dwellings and
813 other land use activities, arrangement of buildings, density of the development, and provisions of the
814 project to meet density bonus and open space requirements, or capacity limits, and maintains required
815 conditions or mitigation.
21
816 (ii) Major changes shall be subject to the original procedural application type, subject to the fees as contained in
817 the unified fee schedule.
818 (iii) Major project permits may include, as a condition of their approval, a requirement for periodic progress reports
819 and mandatory updates on a predetermined interval.
820 .220 through .265 Reserved.
821 .270 Where a project requires a major project permit, that project shall be exempt from the requirement of obtaining a
822 conditional use permit.
823 .275 Major project permits: Where an applicant has applied for a planned unit development or a development agreement, that
824 project shall be exempt from the requirement to obtain a major project permit except in the Cherry Point Industrial District.
825 .280 Major project permits in the Cherry Point hldustrial District: where a project in the Cherry Point Industrial District
826 requires a major project permit, the major project permit shall be concurrently processed with other required land use permits
827 including but not limited to: planned unit development or development agreement.
828
829
830
831
832
833
834
835
836
837
838
839
840
841
842
843
844
845
846
847
848
22
849 CHAPTER 20.97 DEFINITIONS
850 20.97.160.2 Fossil Fuels.
851 `9=ossil fuels" refers to hydrocarbon compounds and composites formed as a result of geologic processes acting on the
852 remains of organic matter, including but not limited to coal, petroleum products and byproducts, crude oil, Intermediate
853 Materials (such as unfinished oils and blendstocks), natural gas, oil shales, bitumens, tar sands, liquefied petroleum gases,
854 propane, butane, and heavy oils. Renewable fuels are not Fossil Fuels.
855 20.97.160.3 Fossil Fuel Refinery.
856 A "Fossil Fuel Refinery" is an entire complex, consisting of its individual units, equipment, or components, which in
857 aggregate engages primarily in receiving and converting Fossil Fuels into products including but not limited to gasoline,
858 distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, lubricating oils, Intermediate
859 Materials, and asphalt. Fossil Fuel Refinery uses include, but are not limited to: receiving feedstocks, bulk storage,
860 manufacturing, or processing of Fossil Fuels, Intermediate Materials or byproducts, and shipment of those processed
861 materials to downstream customers. The following activities do not render a Fossil Fuel Refinery a Fossil Fuel
862 Transshipment Facility: (i) inter -refinery shipments of refined products and hltermediate Materials such as unfinished oils
863 and blendstocks, (ii) transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be
864 moved, and (iii) necessary Fossil Fuels transfers during turn-arounds or maintenance periods. This definition shall exclude
865 Small Fossil or Renewable Fuel Storage and Distribution Facilities.
866 20.97.160.4 Fossil Fuel Transshipment Facility.
867 "Fossil Fuel "Transshipment Facility" is an entire complex, consisting of its individual units, equipment, or components,
868 which in aggregate, engages primarily in the process of off-loading Fossil Fuels from one or more modes of shipment (i.e.,
869 rail, truck, pipeline, etc.), then storing and/or loading such Fossil Fuels without processing through a Fossil Fuel Refinery,
870 onto another mode of shipment to be transported outside of the designated zoning district boundaries, such as the Cherry
871 Point Industrial District. This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities.
872 20.97.163 Greenhouse Gas Emissions.
873 "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse gases," "GHG,"
874 and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbous, and sulfur hexafluoride,
875 and any other gas or gases designated by the federal clean air act (United States Code Title 42, Chapter 85), state clean air act
876 (Chapter 70A.15 RCW) or state limiting greenhouse gas emissions law (Chapter 70A.45 RCW) or any directly superseding
877 provisions of state or federal law.
878 20.97.190.2 Intermediate Materials
879 "Intermediate Materials" refers to refined or partially refined Fossil Fuel products that are produced at a refinery by
880 processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other
881 blending components. Under this definition, feedstocks such as "topped crude" are not Intermediate Materials.
882 20.97.201 Lifecycle Greenhouse Gas Emissions
883 "Lifecycle greenhouse gas emissions" means the aggregate quantity of greenhouse gas emissions (including direct emissions
884 and significant indirect emissions), related to the full fuel Lifecycle, including all stages of fuel and feedstock production and
885 distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the
886 ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming
887 potential.
23
888 20.97.230 Maximum Atmospheric Crude Distillation Capacity.
889 "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the
890 atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is
891 defined as the physical constraints of the atmospheric distillation process equipment as determined by a professional engineer
892 licensed in the State of Washington and shall be measured in barrels per day.
893 20.97.230.1 Maximum Transshipment Capacity
894 The calculation of Maximum Transshipment Capacity shall be conducted by a professional engineer licensed in the State of
895 Washington and shall consist of one or a combination of the following limitations:
896 (a) The maximum physical limit of a facility's capacity for off-loading Fossil Fuels from one or more modes of
897 shipment (i.e., rail, truck, pipeline, etc.), then storing and/or loading such Fossil Fuels, without processing through a
898 Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district
899 boundaries such as the Cherry Point Industrial District, based on the facility's maximum physical limits to move Fossil
900 Fuels from the receipt points of all its inbound shipment methods to the delivery points of all its outbound shipment
901 methods, including the capacities or other physical attributes of the facility's equipment, including but not limited to
902 capacities of.
903 (i) loading equipment;
904 (ii) offloading equipment;
905 (iii) pumps and/or compressors;
906 (iv) bulk storage;
907 (v) piping hydraulics; or
908 (vi) any combination of the above.
909 The capacity calculation shall exclude any equipment installed with a permit condition that prohibits that equipment
910 from being used for transshipment purposes.
911 (b) Shipment limitations imposed by County, State or Federal authorities that can be demonstrated by the applicant to
912 restrict the frequency and/or annual amount of Fossil Fuel shipments at its facility. If any such limitations form the
913 basis of a Maximum Transshipment Capacity calculation, then any future increases in Fossil Fuel shipments above
914 those previously imposed limits would constitute an increase in Maximum Transshipment Capacity.
915 20.97.340.3 Renewable Biomass.
916 "Renewable biomass" includes but is not limited to the following:
917 (1) Planted crops and crop residue harvested from agricultural land.
918 (2) Planted trees and tree residue from a tree plantation.
919 (3) Animal waste material and animal byproducts.
920 (4) Slash and pre -commercial thinnings.
921 (5) Organic matter that is available on a renewable or recurring basis.
922 (6) Algae.
923 (7) Separated yard waste or food waste, including recycled cooking and trap grease.
924 (8) Items 1 through 7 including any incidental, de minimis contaminants that are impractical to remove and are related to
925 customary feedstock production and transport.
24
926 20.97.340.4 Renewable Fuel.
927 "Renewable Fuel" means liquid or gaseous fuels produced from renewable biomass, woody biomass or landfill wastes and
928 limited in terms of blending with fossil fuels. Renewable fuels shall also include fuels produced from renewable electricity
929 including hydrogen and synthetic fuels. Common renewable fuels include ethanol, renewable diesel and biodiesel:
930 (1) "E85 motor fuel" means an alternative fuel that is a blend of ethanol and hydrocarbon of which the ethanol portion is
931 nominally seventy-five to eighty-five percent denatured fuel ethanol by volume that complies with the most recent version of
932 American society of testing and materials specification D 5798.
933 (2) "Renewable diesel" means a diesel fuel substitute produced from nonpetroleum renewable sources, including vegetable
934 oils and animal fats, that meets the registration requirements for fuels and fuel additives established by the federal
935 environmental protection agency in 40 Code of Federal Regulations (C.F.R.) Part 79 and meets the requirements of American
936 society of testing and materials specification D 975.
937 (3) Renewable fuels shall include those designed to result in a lifecycle greenhouse gas emission reduction of at least 50% or
938 more under the Federal Clean Air Act. Renewable fuels shall not include products produced from palm oil or other
939 feedstocks that cannot be proven to reduce greenhouse gas emissions utilizing accepted methods of the Washington State
940 Department of Ecology or US EPA.
941 20.97.340.5 Renewable Fuel Refinery.
942 A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small
943 Fossil or Renewable Storage and Distribution Facilities.
944 20.97.340.6 Renewable Fuel Transshipment Facility.
945 "Renewable Fuel Transshipment Facility' is an entire complex, consisting of its individual units, equipment, or components
946 which in aggregate engages primarily in the process of off-loading Renewable Fuels and/or Renewable Biomass from one
947 mode of shipment (i.e., rail, truck, pipeline, etc.) then storing and/or loading such fuels without processing through a
948 Renewable Fuel Refinery or Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated
949 zoning district boundaries, such as the Cherry Point Industrial District. This definition shall exclude Small Fossil or
950 Renewable Fuel Storage and Distribution Facilities.
951 20.97.425.1 Small Fossil or Renewable Fuel Storage and Distribution Facilities.
952 "Small Fossil or Renewable Fuel Storage and Distribution Facilities" means:
953 (1) Equipment and buildings used for purposes of direct sale or distribution to consumers of fossil fuels or renewable fuels, or
954 (2) Accessory equipment that supplies fossil fuels or renewable fuels to an onsite allowed commercial or industrial operation,
955 and that does not meet the definitions of fossil -fuel refinery, renewable fuel refinery, or fossil or renewable fuel
956 transshipment facilities.
957 20.97.434.1 Technical committee.
958 "Technical committee" or "technical review committee" means the designated representatives of the Whatcom County
959 Planning and Development Services Director, who shall act as chairperson, the Whatcom County Public Works Director, and
960 the Whatcom County Health Department Director.
961 NOTE: Rentnnber definitions in existing code as necessary.
25
962
963 22.05.026 Conditional use permits.
964 (1) Application. Conditional use permit applications shall be processed per the provisions of this chapter.
965 (2) Conditional use permits shall be nontransferable unless said transfer is approved by the hearing
966 examiner.
967 (3) Approval Criteria. Before approving an application, the director or hearing examiner shall ensure
968 that any specific standards of the zoning district defining the use are fulfilled, and shall find adequate
969 evidence showing that the proposed use at the proposed location:
970
971 (a) Will be harmonious and in accordance with the general and specific objectives of Whatcom
972 County's Comprehensive Plan, zoning regulations, and any other applicable regulations.
973 (b) Will be designed, constructed, operated, and maintained so as to be harmonious and
974 appropriate in appearance with the existing or intended character of the general vicinity, and
975 that such use will not change the essential character of the same area.
976 (c) If located in a rural area (as designated in the Comprehensive Plan), will be consistent with
977 rural land use policies as designated in the rural lands element of the Comprehensive Plan.
978 (d) Will not be hazardous or disturbing to existing or future neighboring uses.
979 (e) Will be serviced adequately by necessary public facilities such as highways, streets, police
980 and fire protection, drainage structures, refuse disposal, water, sewers, and schools; or that the
981 persons or agencies responsible for the establishment of the proposed use shall be able to
982 provide adequately any such services.
983 (f) Will not create excessive additional requirements at public cost for public facilities and
984 services, and will not be detrimental to the economic welfare of the community.
985 (g) Will not involve uses, activities, processes, materials, equipment, and conditions of operation
986 that will be detrimental to any persons, property, or the general welfare by reasons of excessive
987 production of traffic, noise, smoke, fumes, glare or odors.
988 (h) Will have vehicular approaches to the property which shall be so designed as not to create an
989 interference with traffic on surrounding public streets.
990 (i) Will not result in the destruction, loss or damage of any natural, scenic, or historic feature of
991 major importance.
992
993
994
995
996
997
26
998 (4) Approval Criteria for expansion of Fossil Fuel Refineries pursuant to WCC 20.68.153 and expansion
999 of Fossil Fuel Transshipment Facilities pursuant to WCC 20.68.154. Before approving an application, the
1000 hearing examiner shall ensure that any specific standards of the zoning district defining the use are
1001 fulfilled, and shall find adequate evidence showing that:
1002 (a) The conditional use permit approval criteria listed under WCC 22.05.026(3) are met;
1003 (b) Within shorelines, if applicable, County approval shall be contingent upon approval of a
1004 shoreline permit;
1005 (c) The applicant has documented to the County decision maker (as applicable):
1006 (i) All of the anticipated types and volumes of substances to be processed, stored, or
1007 transferred in bulk with the proposed expansion,
1008 (ii) Changes in the Maximum Transshipment Capacity or the Maximum Atmospheric
1009 Crude Distillation Capacity occurring as a result of the proposed expansion, as
1010 applicable; and
1011 (iv) The mode of shipment vessels to be loaded or unloaded with the proposed
1012 equipment and/or as a result of the proposed expansion.
1013 The permit shall be limited exclusively to those types and volumes of materials or products
1014 as documented and approved.
1015 (d) Insurance requirements meet the provisions of WCC 22.05.125.
1016 (e) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation
1017 Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction.
1018 (f) Mitigation of impacts to other services including fire and emergency response capabilities,
1019 water supply and fire flow, to address risks created by expansions.
1020 (g) Plans for stormwater and wastewater releases have been approved.
1021 (h) Prior to commencement of any site preparation or construction activities, all necessary state
1022 leases shall be acquired for any piers or aquatic lands improvements, and it shall be
1023 demonstrated to the zoning administrator that the project applicant has met any federal or state
1024 permit consultation requirements, including tribal treaty rights or the provisions of the Magnuson
1025 Amendment through state and federal permitting decisions.
1026 (i) The County decision maker may approve a conditional use permit with a condition to obtain
1027 relevant leases and complete any necessary federal and state permitting requirements, and may
1028 restrict the conditional use permittee from undertaking site preparation or construction activities
1029 until it has fulfilled that condition.
1030 (j) The permittee must inform the county permitting authorities of a change in the aforementioned
1031 disclosures so that the department can document current capacity levels to ensure that the
1032 cumulative thresholds under WCC 20.68.1 53 or WCC 20.68.154 (as applicable) have not been
1033 exceeded.
1034 (k) The County decision maker shall include, in any approval of an application for an expansion,
1035 as per 20.68.1 53 or 20.68.154, a condition that the permitted equipment shall only be used in
1036 the manner described by the project proponent in the application and approved in the permit.
27
1037 The application shall describe the intended use, including the type of fuel to be stored and, if
1038 located at a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the equipment will or will
1039 not be used for transshipment.
1040 (5) Revisions. The hearing examiner may administratively approve revisions to conditional use permits;
1041 provided, that the proposed changes are within the scope and intent of the original permit. "Within the
1042 scope and intent of the original permit" shall mean the following:
1043 (a) Lot coverage and height may be increased a maximum of 10 percent from the provisions of
1044 the original permit; provided, that:
1045 (i) Revisions involving new structures not shown on the original site plan shall require a new
1046 permit;
1047 (ii) Any revisions shall not exceed height, lot coverage, setback, or any other requirements
1048 of the regulations for the area in which the project is located; and
1049 (iii) Any revisions shall be reviewed for consistency with the Comprehensive Plan;
1050 (b) Landscaping may be added to a project without necessitating an application for a new
1051 permit; provided, that the landscaping is consistent with conditions (if any) attached to the original
1052 permit and is consistent with the regulations for the area in which the project is located;
1053 (c) The use authorized pursuant to the original permit is not changed;
1054 (d) No additional over -water construction will be involved for shoreline conditional use permits;
1055 (e) No substantial increase in adverse environmental impact will be caused by the project revision.
1056 (Ord. 2020-045 § 1 Exh. A).
1057 22.05.1 10 Final decisions - Type I, II, and III applications.
1058 (1) The director or designee's final decision on all Type I or II applications shall be in the form of a written determination or
1059 permit. The determination or permit may be granted subject to conditions, modifications, or restrictions that are necessary to
1060 comply with all applicable codes.
1061 (2) The hearing examiner's final decision on all Type III applications per WCC 22.05.020 or appeals per WCC 22.05.160(1)
1062 shall either grant or deny the application or appeal.
1063 (a) The hearing examiner may grant Type III applications subject to conditions, modifications or restrictions that the
1064 hearing examiner finds are necessary to make the application compatible with its environment, carry out the objectives
1065 and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and objectives
1066 of Whatcom County.
1067 (b) Requirements:
1068 (i) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to ensure
1069 compliance with the conditions, modifications and restrictions.
1070 (ii) Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall
1071 provide insurance or other financial assurance acceptable to the prosecuting attorney consistent with Section
1072 22.05.125.
1073 (c) The hearing examiner shall render a final decision within 14 calendar days following the conclusion of all testimony
1074 and hearings. Each final decision of the hearing examiner shall be in writing and shall include findings and conclusions
1075 based on the record to support the decision.
28
1076 (d) No final decision of the hearing examiner shall be subject to administrative or quasi-judicial review, except as
1077 provided herein.
1078 (e) The applicant, any person with standing, or any county department may appeal any final decision of the hearing
1079 examiner to superior court, except as otherwise specified in WCC 22.05.020. (Ord. 2019-013 § 1 (Exh. A); Ord. 2018-
1080 032 § 1 (Exh. A)).
1081 22.05.1 20 Recommendations and final decisions -- Type IV applications
1082 (1) For Type 1V applications per WCC 22.05.020 the hearing examiner's recommendations to the county council may be to
1083 grant, grant with conditions or deny an application. The hearing examiner's recommendation may include conditions,
1084 modifications or restrictions as may be necessary to make the application compatible with its environment, carry out the
1085 objectives and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and
1086 objectives of Whatcom County.
1087 (2) Each recommended decision of the hearing examiner for an application identified as a Type IV application per WCC
1088 22.05.020 shall be in writing to the clerk of the county council and shall include findings and conclusions based upon the
1089 record to support the decision. Such findings and conclusions shall also set forth the manner in which the decision carries out
1090 and conforms to the county's comprehensive plan and complies with the applicable statutes, ordinances or regulations.
1091 (3) The deliberation of the county council on quasi-judicial actions shall be in accordance with WCC 22.05.090(4) and
1092 Chapter 42.36 RCW.
1093 (4) For planned unit developments and major project permits the following shall apply:
109A (a) The recommendation of the hearing examiner regarding planned unit developments and major project permits shall
1095 be based upon the criteria set forth in WCC 20.85.335 and 20.88.130, respectively.
1096 (b) The hearing examiner shall file the recommendation with the clerk of the county council within 21 calendar days
1097 following the conclusion of the open record hearing.
1098 (c) The county council shall conduct the following within the specified time frames, except as provided in subsection
1099 (4)(c)(iii) of this section:
1 100 (i) Hold a public meeting, not an open record public hearing, to deliberate on the project application within 28
1 101 calendar days after receiving the hearing examiner's recommendation.
1 102 (ii) Issue a final written decision within 21 calendar days of the public meeting.
1 103 (iii) The county council may exceed the time limits in subsection (4)(c)(i) or (ii) of this section if the county council
1 104 meeting schedule does not accommodate a meeting within the above time frames, or if the county council makes
1 105 written findings that a specified amount of additional time is needed to process a specific application or project
1106 type, per RCW 36.70B.080(1).
1 107 (5) The county councWs final written decision may include conditions when the project is approved and shall state the
1108 findings of fact upon which the decision is based.
1 109 (a) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to ensure compliance
1 110 with the conditions, modifications and restrictions.
1 1 1 1 (b) Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall
1 112 provide insurance or other financial assurance acceptable to the prosecuting attorney consistent with Section 22.05.125.
1 113 (6) Any deliberation or decision of the county council shall be based solely upon consideration of the record established by
1 1 14 the hearing examiner, the recommendations of the hearing examiner and the criteria set forth in applicable county code, the
1 1 15 county comprehensive plan if applicable, and the county shoreline management program, including compliance with SEPA,
1 1 16 WAC 197-11 (SEPA Rules) as adopted and modified in the county code, and the county's adopted SEPA policies. (Ord.
1 1 17 2018-032 § 1 (Exh. A)).
29
1118 22.05.1 25 Proof of insurance for hazards created in the County
1 1 19 For expansion projects requiring approval under a Conditional Use Permit or Major Project Permit at new or existing
1 120 facilities per WCC 20.68.153 or WCC 20.68.154, financial assurance for the benefit of Whatcom County shall be required.
1 121 For such expansion projects, a permittee must demonstrate proof of financial assurance (such as trust funds, letters of credit,
1 122 insurance, self-insurance, financial tests, corporate guarantees, payment bonds, or performance bonds) sufficient to comply
1 123 with the financial responsibility requirements set forth in State and Federal law, as applicable, prior to permit approval by a
1 124 Whatcom County Decision Maker. if the financial assurance is in the form of insurance policies, the policies must name
1 125 Whatcom County as an additional insured and provide Whatcom County with a certificate of insurance to that effect.
1 126 The permittee must maintain the approved level of financial assurance coverage for new or expanded uses while operating
1 127 the permitted facility. At the request of the permittee, the Whatcom County Decision Maker may approve new or altered
1 128 forms of financial assurance to meet the requirements of this section, provided that the new or altered form is consistent with
1 129 the scope and intent of the original permit condition.
1130
1131 22.05.1 26 Supplemental Procedures for Fossil Fuel Refinery and Fossil Fuel Transshipment
1132 Facility Permitting
1133
1 134 (1) Upon request of the County, Fossil Fuel Refineries or Fossil Fuel Transshipment Facilities shall fill out a supplemental
1 135 checklist for the purpose of determining whether a project qualifies as a permitted use or requires a conditional use
1 136 permit as specified in WCC 20.68.153 or WCC 20.68.154, The checklist shall contain supplemental information to
1137 include:
1 138 (a) Impact on Maximum Atmospheric Crude Distillation Capacity (MACDC), Maximum Transshipment Capacity, and
1 139 fossil fuel unit train shipment frequency from the proposed activity;
1 140 (b) Confirmation of the acceptance of potential permit conditions as outlined in 20.68.068 subsection (23);
1 141 (c) Applicant name, property owner information, and parcel information as appropriate; and
1 142 (d) An attestation by the applicant regarding the accuracy of the information contained therein, signed by the applicant
1 143 and certified by a Notary Public.
1144 (2) Confidential Business Information
1 145 (a) For the purpose of checklists, permit applications and all other materials submitted by Fossil Fuel Refineries or
1 146 Fossil Fuel Transshipment Facilities for activities in the Cherry Point Heavy hnpact Industrial District, the following
1147 shall apply:
1 148 0) The applicant shall clearly identify information the applicant considers to be Confidential
1 149 Business Information, not subject to disclosure under chapter 42.56 RCW (Public Records
1 150 Act) and/or WCC 1.32.090. If such information is contained in submittal documents, the
1 151 applicant shall submit two copies of materials for County use as follows:
1 152 1. A copy with Confidential Business Information clearly identified, with a watermark
1 153 indicating the document contains such information; and
1 154 2. A copy with Confidential Business Information redacted, and a watermark added
1 155 indicating that the document does not contain such information and is suitable for public
1156 disclosure.
30
1 157
(ii)
Confidential Business Information may include:
1 158
1.
Processing equipment technical specifications on internals, sidestream/pumparounds,
1 159
design specifications, and process controls;
1 160
2.
Process unit design, instrumentation and controls;
1 161
3.
Feedstock, product, or process unit pump capacity and configuration; and
1 162
4.
Contractual agreements and all terms contained therein.
1163
(iii)
The information listed above is not meant to be all-inclusive. Other information related to the
1 164
applicant's processing activities, feedstock and product purchase, and/or sale and
1165
transportation methods and costs may be Confidential Business Information and, if so, shall
1166
be marked as such when submitted.
1 167
(iv)
Calculation and permit material submittals may contain, but are not required to contain any of
1 168
the above information.
1169 (v) Where no increase to MACDC, Maximum Transshipment Capacity, or unit train frequency is
1170 proposed, submittal of Confidential Business Information specifically related to the criteria of
1171 WCC 20.68.153 and WCC, 20.68.154 shall not be required to be submitted with the permit
1 172 application materials.
1 173 (3) Where calculations are to be submitted for Maximum Transshipment Capacity of Maximum Atmospheric Crude
1 174 Distillation Capacity, the applicant shall provide calculations performed and certified by a professional engineer
1 175 licensed in the state of Washington, clearly indicating the impact on MACDC and Transshipment Capacity.
1 176 Confidential Business Information shall be clearly identified as required by WCC 22.05.126(2)(a)(i) above.
1 177 (4) If the County receives a public records request for records containing information the applicant has clearly indicated
1178 to be Confidential Business Information pursuant to WCC 22.05.126(2)(a)(i), the County will notify the applicant of
1 179 the request and provide the applicant with a reasonable period of time of at least 15 days to file for an injunction
1 180 under RCW 42.56.540 to prevent the disclosure of such information. If the applicant does not file for an injunction
1 181 within the period of time set by the County, the County will disclose the records containing the information that the
1 182 applicant has designated as Confidential Business Information pursuant to WCC 22.05.126(2)(a)(i).
1183
1184
1185
1186
31