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HomeMy WebLinkAboutPacket Special Council Apr 15 2021Whatcom County Council (Special) COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360) 778-5010 Meeting Agenda Thursday, April 15, 2021 2PM Virtual Meeting VIRTUAL MEETING - CHERRY POINT (TO PARTICIPATE, SEE INSTRUCTIONS AT www.whatcomcounty.us/joinvirtualcouncil OR CALL 360.778.5010) COUNCILMEMBERS Rud Browne Barry Buchanan Tyler Byrd Todd Donovan Ben Elenbaas Carol Frazey Kathy Kershner CLERK OF THE COUNCIL Dana Brown -Davis, C.M.C. Council (Special) Meeting Agenda April 15, 2021 Call To Order Roll Call Committee Discussion AB2020-345 Discussion of proposed Cherry Point amendments Items Added by Revision Other Business Adjournment Whatcom County Page 2 Printed on 21712024 File ID: AB2020-345 File Created: 08/19/2020 Department: Planning and Development Services Department Whatcom County Agenda Bill Report File Number: AB2020-345 COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360)778-5010 Version: 1 Status: Agenda Ready Entered by: MAamot@co.whatcom.wa.us File Type: Discussion Assigned to: Council Committee of the Whole Agenda Date: Primary Contact Email: maamot@co.whatcom.wa.us TITLE FOR AGENDA ITEM: Discussion of proposed Cherry Point amendments SUMMARY STATEMENT OR LEGAL NOTICE LANGUAGE: Final Action: 05/25/2021 Enactment M The County Council worked with the Cascadia Law Group to develop proposed Comprehensive Plan and Whatcom County Code (WCC) amendments primarily relating to fossil fuel and renewable fuel facilities in the Cherry Point Area (some of the amendments apply to various land uses on a countywide basis). The Council approved Resolution 2019-037 on August 7, 2019 forwarding the proposed amendments to the Planning Commission for review. The Planning Commission issued their Findings of Fact and Reasons for Action, Conclusions, and Recommendations on August 13, 2020. Council Special Committee of the Whole will discuss the proposed amendments. HISTORY OF LEGISLATIVE FILE Date: Acting Body: Action: Sent To: 09/15/2020 Council Committee of the Whole DISCUSSED AND MOTION(S) APPROVED 09/29/2020 Council Committee of the Whole DISCUSSED AND MOTION(S) APPROVED 10/13/2020 Council Committee of the Whole DISCUSSED 10/20/2020 Council (Special) DISCUSSED AND MOTION(S) APPROVED Whatcom County Page 1 Printed on 2/7/2024 Agenda Bill Report Continued (AB2020-345) 10/27/2020 Council Committee of the Whole DISCUSSED 10/28/2020 Council (Special) DISCUSSED AND MOTION(S) APPROVED 11/17/2020 Council (Special) DISCUSSED 11/24/2020 Council Committee of the Whole DISCUSSED 12/08/2020 Council Committee of the Whole WITHDRAWN 12/10/2020 Council (Special) WITHDRAWN 01/12/2021 Council Committee of the Whole DISCUSSED 02/16/2021 Council (Special) DISCUSSED 04/15/2021 Council (Special) DISCUSSED AND MOTION(S) APPROVED 04/20/2021 Council Committee of the Whole DISCUSSED AND MOTION(S) APPROVED Attachments: CHERRY POINT DISCUSSION 10.13.2020, Staff Memo, Planning Commission Recommendations, Exhibit A (Comp Plan Amendments), Exhibits B - D (Code Amendments), Planning Commissioner Minority Opinion, SEPA Packet, Councilmember Clarifications and Other Items, Browne Comments 9.29.2020, Browne Comments 10.13.2020, PDS Issues for Industry/Environmental Work Group, Link to Cherry Point Public Comments, Joint Stakeholder Proposed Revisions 10.20.2020, Joint Stakeholder Proposed Revisions 10.21.2020, Frazey Comments 10.20.2020, Stakeholder Jointly Proposed Revisions (1) 10.28.2020, Stakeholder Jointly Proposed Revisions (2) 10.28.2020, Browne Comments (1) 10.28.2020, Browne Comments (2) 10.28.2020, Browne Comments (3) 10.28.2020, PDS Comments Received 11.19.2020, Joint -Stakeholders Proposed Revisions 11.23.2020, Joint -Stakeholders Proposed Revisions 11.24.2020, PDS Comments Received 11.25.2020, Meeting Cancelation Notice 12.10.2020, Most Recent Revisions (dated October 28, 2020), Working Document - GHG Language (updated 2-12-21), Cherry Point Stakeholder Group Proposal 4.12.2021.pdf, Cherry Point Stakeholder Group - Inter -Refinery Shipment Language Whatcom County Page 2 Printed on 2/7/2024 CHERRY POINT - ITEMS FOR DISCUSSION: NEXT STEPS TIMELINE WILL ANOTHER MORATORIUM BE NECESSARY? CLERK'S NOTE: DATE FOR INTRODUCTION OF A NEW MORATORIUM (IF NECESSARY) IS NOVEMBER 10, 2020. WHATCOM COUNTY Planning & Development Services 5280 Northwest Drive Bellingham, WA 98226-9097 360-778-5900, TTY 800-833-6384 360-778-5901 Fax Memorandum August 20, 2020 Mark Personius Director TO: The Honorable Satpal Sidhu, Whatcom County Executive The Honorable Whatcom County Council FROM: Matt Aamot, Senior Planner THROUGH: Mark Personius, Director RE: Cherry Point Amendments (PLN2018-00009) The County Council worked with the Cascadia Law Group to develop proposed Comprehensive Plan and Whatcom County Code (WCC) amendments primarily relating to fossil fuel and renewable fuel facilities in the Cherry Point Area (some of the amendments apply to various land uses on a countywide basis). The Council approved Resolution 2019-037 on August 7, 2019 forwarding the proposed amendments to the Planning Commission for review. The Planning Commission held a series of meetings on the proposed amendments between September 2019 and August 2020 (there were no meetings in March, April, or May because of the COVID-19 meeting restrictions). Public comments through the end of the Planning Commission review process are posted on the County's website: https://www.whatcomcounty.us/2849/Cherry-Point-Amendments The Planning Commission issued their Findings of Fact and Reasons for Action, Conclusions, and Recommendations on August 13, 2020 relating to: o Exhibit A - Amending Whatcom County Comprehensive Plan Chapter 2 (Land Use). o Exhibit B - Amending the State Environmental Policy Act (SEPA) code (WCC 16.08). o Exhibit 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). o Exhibit D - Amending the Project Permit Procedures (WCC 22.05). Selected differences between the original Council proposal and the Planning Commission proposal are summarized below (not all differences are shown below - please see the Exhibits in which all Planning Commission changes to the Council proposal are shown with yellow highlighting). Exhibit Document Council Planning Comments Commission A Comp Plan Added Policy 2CC- New Policy would provide certainty to industry 18 to allow on- relating to particular types of activities that going operation, they can continue to conduct as allowed uses at maintenance, existing facilities. repair, modifications, etc. of existing facilities A Comp Plan Added Policy 2CC- Deleted this The Planning Commission recommended that 18 to treat proposed Policy new renewable fuel refineries and renewable fuel transshipment facilities should be allowed as a facilities similar to permitted use but new fossil fuel refineries and fossil fuel facilities transshipment facilities should be prohibited. Additionally, the Planning Commission recommended that expansion of existing renewable fuel refineries and transshipment facilities should be allowed as a permitted use but expansion of fossil fuel facilities should require a conditional use permit. Therefore, the Planning Commission proposal would not treat renewable fuel facilities in a manner similar to fossil fuel facilities. B SEPA Code Added worksheet Allows use of the The worksheet will take time to develop and for fossil fuel and worksheet or an likely will not be available when Council adopts renewable fuel expert evaluation the ordinance. Additionally, larger or more facilities and makes other complex projects may benefit from expert changes to this evaluation of the issues. WCC 16.08.090.E proposed code WCC 16.08.090.E B SEPA Code Greenhouse gas GHG mitigation The Council proposal provides for GHG (GHG) mitigation through SEPA only mitigation through either the Zoning Code or through SEPA or the the SEPA Code. The Planning Commission Zoning Code WCC 16.08.160.F.1 version would provide the SEPA Responsible Official with the discretion to impose mitigation WCC 16.08.160.F.1 for GHG impacts, but there would not be an automatic requirement for GHG mitigation under the Zoning Code. B SEPA Code Definition of Definition of The Council proposal provided a definition of "Facility Emissions" "Facility Emissions" "Facility Emissions" in the Zoning Code. The Planning Commission proposal moves the WCC 20.97.124.1 WCC 16.08.175.0 definition to the SEPA Code. The Planning C Zoning Commission version deleted the following Code elements from the original Council definition of facility emissions: • The transportation within the borders of Whatcom County of refined and unrefined fossil fuels to and from a facility located within the Cherry Point Heavy Industrial area, and • The upstream emissions generated by the production and transport of raw products to the facility such as crude oil feedstocks or other fuels used in production or energy generation at facilities. Exhibit Document Council Planning Comments Commission C Zoning Permitted outright Permitted outright Planning Commission moved improvements to Code improvements to improvements to existing fossil fuel and renewable fuel facilities existing fossil fuel existing fossil fuel that are permitted outright (i.e. do not and renewable fuel and renewable fuel constitute an "expansion" that requires a facilities facilities conditional use permit) to the permitted use section of the Heavy Impact Industrial Zone. WCC 20.68.802 20.68.068 The Planning Commission also expanded the list of permitted uses to address industry and public comments. C Zoning Renewable Fuel Renewable Fuel Council proposal requires a conditional use Code Facilities Facilities permit for new or expanded renewable fuel facilities. Planning Commission proposal would WCC 20.68.153 and WCC 20.68.070 and allow these as permitted outright uses. .159 .071 C Zoning Conditional use Conditional use Planning Commission proposal: Code permit for permit for expansion of fossil expansion of fossil . Sets specific thresholds defining what fuel and renewable fuel facilities (does constitutes an "expansion" that requires fuel facilities not include a conditional use permit. renewable fuel 0 Inserts a clause that "If a conditional facilities because use permit is obtained, the baseline for they are permitted determining the cumulative increase is WCC 20.68.153 outright) reset." • Modifies the conditional use permit WCC 20.68.153 approval criteria. C Zoning Prohibited Uses: Prohibited Uses: The Council proposal prohibits new fossil fuel Code New fossil fuel New fossil fuel transshipment facilities. The Planning transshipment transshipment Commission proposal maintains this prohibition, facilities facilities but inserts language clarifying that certain movements of petroleum products are not WCC 20.68.205 WCC 20.68.205 prohibited by this clause. C Zoning GHG Mitigation Deletes GHG The Council proposal included language in the Code Mitigation Zoning Code requiring GHG mitigation for fossil WCC 20.68.801 requirement in the fuel and renewable fuel facilities if certain Zoning Code criteria are met. The Planning Commission proposal deleted this language from the Zoning Code, but includes GHG mitigation language in the SEPA Code that is more discretionary in nature. There are a number of state laws, regulations, and proposals that address GHG emissions: • RCW 70.94 (Washington Clean Air Act) • RCW 70.235 (Limiting Greenhouse Gas Emissions) • WAC 173-441 (Reporting of Emissions of Greenhouse Gases) • WAC 173-442 (Clean Air Rule) • WAC 173-485 (Petroleum Refinery Greenhouse Gas Emission Requirements) • Directive of the Governor 19-18 • Proposed New WAC 173-445 WAC (Greenhouse Gas Assessment for Projects) — to be adopted by September 1, 2021 Exhibit Document Council Planning Comments Commission C Zoning Change of Use Deletes this Change The Council proposal includes a provision that Code of Use provision requires a change of use permit for certain WCC 20.74.110 activities. The Planning Commission deleted this proposed change of use provision (WCC 20.74.110). Concerns had been expressed relating to the potential conversion of an existing refinery/transshipment facility into a crude oil transshipment facility (e.g. see Resolution 2019-037). The Planning Commission language for proposed WCC 20.68.153 addressed this potential situation by requiring a conditional use permit if shipping capacity of unrefined fossil fuels were to increase over a certain level. C Zoning Definition of "Fossil Definition of "Fossil The Council proposal provided a combined Code or Renewable Fuel Fuel Transshipment definition of "Fossil or Renewable Fuel Transshipment Facilities" Transshipment Facilities." The Planning Facilities" Commission proposal provides separate WCC 20.97.160.3 definitions of "Fossil Fuel Transshipment WCC 20.97.160.3 Facilities" and "Renewable Fuel Transshipment Definition of Facilities" as the Commission's proposal treats "Renewable Fuel these land uses differently. The Planning Transshipment Commission also made modifications to these Facilities" definitions. WCC 20.97.350.4 C Zoning Definition of The Planning Commission proposal adds a Code "Maximum definition of this term because it is used in the Atmospheric Crude conditional use section of the code (WCC Distillation 20.68.153). Capacity" WCC 20.97.230 D Project Proof of Insurance Proof of Insurance The Council proposal includes new provisions Permit relating to "Proof of insurance for hazards Procedures WCC 22.05.125 WCC 22.05.125 created in the County." The Planning Commission proposal includes abbreviated proof of insurance language with less detail than the Council proposal. There are several state laws and regulations that address insurance and/or financial responsibility: • RCW 88.40 (Transport of Petroleum Products - Financial Responsibility) • WAC 480-62-300(2) (Railroad Companies - Operations) In September, the Planning and Development Services Department would like to review the Planning Commission's recommendations with the County Council's Special Committee of the Whole. When this review is complete, and the County Council has developed a final proposal, an ordinance can be introduced and public hearing scheduled before the Council. Please note that the "Determination of Non - significance" issued pursuant to the State Environmental Policy Act for the proposed amendments has been appealed. 4 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 1 WHATCOM COUNTY PLANNING COMMISSION Cherry Point Amendments FINDINGS OF FACT AND REASONS FOR ACTION 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. 2. The subject amendments include the following: • Amending Whatcom County Comprehensive Plan Chapter 2 (Land Use). • Amending the State Environmental Policy Act (SEPA) code (WCC 16.08). • 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). • 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. 1 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 2 6. A Determination of Nonsignificance (DNS) was issued under the State Environmental Policy Act (SEPA) on July 28, 2020. 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. Comprehensive Plan Amendments 11. 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). 12. 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. 13. 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: • Recognizing that the vested rights/enforceable agreement for an additional dock/pier no longer exist. • Recognizing the importance of preventing harm to habitat of the Cherry Point Herring stock and Southern Resident Killer Whales. • 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. • Deleting language that is unnecessary or no longer needed. 2 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 3 14. 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). • Stating that the County will, through SEPA and permitting, seek to limit negative impacts from fossil fuel facilities within the Cherry Point UGA. • Refining the language relating to notice to the County Council of fossil fuel projects. • Deleting language that is unnecessary or no longer needed. 15. The subject amendments modify Whatcom County Comprehensive Plan Policy 2CC-17. These amendments include: • Recognizing that limited fossil fuel facility expansions are subject to environmental review, greenhouse gas analysis, and Cherry Point policies in the Comprehensive Plan. • Deleting language that is unnecessary. 16. 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 Resource Cherry Point Aquatic Reserve Management Plan. 17. 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. 18. Pursuant to WCC 22.10.060(1), in order to approve comprehensive plan amendments the County must find all of the following: 3 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 4 • 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. • Further studies made or accepted by the Department of Planning and Development Services indicate changed conditions that show need for the amendment. • 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. • The amendment does not include or facilitate spot zoning. Growth Management Act 19. The Growth Management Act (GMA) establishes planning goals in Revised Code of Washington (RCW) 36.70A.020 to guide adoption of comprehensive plan amendments. 20. 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." 21. 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 4 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 5 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. 22. 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 with appropriate environmental review and analysis. 23. 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." 24. 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." 25. 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) 26. 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. 5 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 6 Countywide Planning Policies 27. 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. 28. 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..." 29. 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. 30. 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..." 31. 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." 32. 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. 6 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 7 33. 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 34. There are no interlocal agreements relating to the Cherry Point UGA. Further Studies/Changed Conditions 35. The GMA, originally adopted in 1990, included a requirement to designate Urban Growth Areas (UGAs). 36. The Cherry Point UGA was adopted in 1997 when the Whatcom County Comprehensive Plan was adopted. 37. 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. 38. 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). 39. 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). 40. The Cherry Point Environmental Aquatic Reserve Management Plan recognizes that: ... A number of species and habitats addressed in this plan have 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 7 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 8 certain species of rockfish, surf scoter, and Southern Resident orca whales ... (pp. 1 and 2). 41. 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). 42. The Cherry Point Environmental Aquatic Reserve Management Plan constitutes a further study that indicates a need for the subject amendments. 43. 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. Public Interest 44. The Cherry Point area contains valuable fish and wildlife habitat (Cherry Point Environmental Aquatic Reserve Management Plan, DNR, amended 2017). 45. 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). 46. 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, and air quality. 47. 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, will be 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. File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 9 48. 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. 49. 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 the record that the subject comprehensive plan amendments would adversely impact designated agricultural, forestry, or mineral resource lands. 50. The Cherry Point UGA goals and policies, including subject amendments, continue to 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, while addressing impacts to public safety and the environment. Such planning is in the public interest. Spot Zoning 51. "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). 52. The subject proposal does not involve nor facilitate illegal spot zoning. Development Regulation Amendments 53. 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) 54. 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. 0 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 10 SEPA Code Amendments 55. 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." 56. 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." 57. 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." 58. Whatcom County Comprehensive Plan Goal 10L is to "Protect and enhance ecosystems that support native fish and wildlife populations and habitat." 59. 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). 60. 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. 10 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page I I 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 .. . 61. 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 "Preproposal Statement of Inquiry" on Ecology's website stated: The Department of Ecology (Ecology) is beginning rulemaking as per 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. This rule will address analysis and mitigation of greenhouse gas emissions for environmental assessments of industrial and fossil fuel projects. 62. 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. 63. The subject amendments include provisions on SEPA's relationship to federal, state, and regional regulations (see WAC 197-11-158(4)). 64. The subject amendments modify the County's SEPA rules by adding provisions relating to air quality & climate and plants & animals. These topics are specifically listed as "elements of the environment" under the State SEPA Rules (WAC 197-11-444). 65. 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). 66. 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. 11 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 12 Zoning Code Amendments 67. 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. 68. 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). 69. 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." 70. 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." 71. 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." 72. Whatcom County Comprehensive Plan Policy 73-1 is to "Support creation of job opportunities for local residents, especially family wage jobs to decrease unemployment and underemployment. 73. 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. 74. Additionally, the HII zone amendments allow continued operation, maintenance, and certain improvements to existing refineries and transshipment facilities (WCC 20.68.068). 75. 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." 12 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 13 76. 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 requires a conditional use permit in the HII zone (WCC 20.68.153). 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. 77. 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... 78. The subject amendments prohibit 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. 79. 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. 13 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 14 80. 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. 81. The subject amendments prohibit new coal fired power plants in the HII zone (WCC 20.68.207). 82. According to the National Institute of Health's National Library of Medicine website (https://toxtown.nlm.nih.gov/sources-of-exposure/power-plants): ... 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. ... 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.. . 83. 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. 84. 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." 85. The subject amendments allow renewable fuel refineries as a permitted use in the HII zone (WCC 20.68.070 and .071). 14 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 15 86. 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.. . 87. 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..." 88. 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). Project Permit Procedure Amendments 89. 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." 90. 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." 91. Whatcom County Comprehensive Plan Policy 1OA-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. 92. 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 15 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 16 that store, handle, or transfer oil or hazardous substances in bulk on or near the navigable waters. 93. 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). 94. 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 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. 95. 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. 96. 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 16 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 17 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). 97. 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. 98. 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. 99. 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. 100. 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 101. 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." 102. 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)). 17 File # PLN2018-00009 August 13, 2020 Cherry Point Amendments Planning Commission Findings, Page 18 103. 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). RECOMMENDATIONS Based upon the above findings and conclusions, the Planning Commission recommends: 1. Approval of Exhibit A, amendments to the Whatcom County Comprehensive Plan. 2. Approval of Exhibit B, amendments to Whatcom County Code 16.08 (State Environmental Policy Act). 3. Approval of Exhibit C, amendments to the Whatcom County Code Title 20 (Zoning). 4. Approval of Exhibit D, amendments to Whatcom County Code 22.05 (Project Permit Procedures). WHATCOM COUNTY PLANNING COMMISSION Kelvin Barton, Chair Ashley bil, Secretary % 2 J �L 0 Date biG u.S� 13 , Zo 20 Daf Commissioners voted to recommend approval 8-1 of the Findings of Fact & Reasons for Action and amendments on August 13, 2020. Members present at the meeting when the vote was taken: Robert Bartel, Kelvin Barton, Atul Deshmane, Jim Hansen, Stephen Jackson, Kimberly Lund, Jon Maberry, Natalie McClendon, and Dominic Moceri. 18 Planning Commission Recommended Version — August 13, 2020 Exhibit A 2 NOTE: Changes from existing Comprehensive Plan text are shown within underlines and strikethroughs 3 (Planning Commission changes that differ from the County Council Resolution 20 7 9-037 are also 4 highlighted in yellow). 5 Comprehensive Plan (Chapter 2) 6 Major Industrial Urban Growth Area / Port Industrial 7 Cherry Point — Text 8 Change Second Paragraph of Cherry Point Text 9 Because of the special characteristics of Cherry Point, including deep water port access, rail access, and 10 proximity to Canada, this area has regional significance for the siting of large industrial or related 11 facilities. General Petroleum constructed the Ferndale Refinery in 1954, Alumax/Pechiney/Howmet 12 constructed the Aluminum Smelter in 1966, and the Atlantic Richfield Company constructed the Cherry 13 Point Refinery in 1971. The existing industries in the Cherry Point UGA, which provide significant 14 employment, have produced and shipped refined fossil fuels and other products for decades. 15 16 Amend Policy 2CC-1 1 17 Policy 2CC-1 1: It is the policy of Whatcom County to limit the number of industrial piers at Cherry Point 18 to the existing three piers, taking into account the need to: 19 , 20 Act conservatively in land use matters at Cherry Point to prevent further harm to habitat important to the 21 Cherry Point Herring stock and Southern Resident Killer Whales; 22 • Update the Optimally implement the Whatcom County Shoreline Master Program to ee19feFffl with this 23 policy fulfill the Shoreline Management Act's shorelines of statewide significance policy to preserve 24 natural character, result in long-term over short-term benefit, and protect the resources and ecology of 25 the shoreline; 26 • Encourage the continued agency use of best available science; 27 • Support and remain consistent with the state Department of Natural Resources' withdrawal of Cherry 28 Point tidelands and bedlands from 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 • Protect traditional commercial and tribal fishing; and 32 • Prevent conflicts with vessel shipment operations of existing refineries that could lead to catastrophic oil 33 or fuel spills. 34 Amend Policy 2CC-16 35 2CC-1 6: The County will, through its adopted SEPA policies and applicable permitting processes, 4mU 36 1 37 , 38 , 1 fiFe cedes, eind deyelep Feeengn9endeitiens feF legeil ways the Ceunty Fney eheese te seek to 39 limit the negative impacts on public safety, transportation, the economy, and environment from new fossil 40 fuel facilities, including new or expanded crude oil, coal, liquefied petroleum gases, and natural gases 41 e*peos f Fem facilities within the Cherry Point UGA. eibe e'eye's istenee a of aFe 1, 2017- XXX 7 n 7ivzviv-i-9T 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Rationale for Changes (shown with highlighting): Refinery operations may fluctuate over time, depending on product demand, maintenance turnarounds, etc. Therefore, it may be difficult to implement this policy if it relates to exceeding impacts that existed on a particular day (the day of adoption of the policy). Rather, the County would review the impacts of the new or expanded development, when proposed. Nip 56 57 58Until The o..,...,.cuting A..,... ey and /eF the County 59 Administration should provide the County Council written notice of all known preapplication 60 correspondence or permit application submittals and notices, federal, state, or local that involve activity 61 with the potential to expand "Fossil Fuel Refinery, Renewable 62 Fuel Refinery, e-r-Fossil Fuel Transshipment Facilities, or Renewable Fuel Transshipment Facilities," as 63 defined in the Whatcom County Code (Chapter 20.97).1 64 65 66 67 68 69 70 71 72 73 74 Rationale for Changes (shown with highlighting): On February 27, 2020, the Planning Commission approved a motion deleting "Prosecuting Attorney" from the notice provisions above. The County Planning & Development Services Department reviews land use permits for fossil and renewable fuel facilities. The Prosecuting Attorney's Office typically only becomes aware of a permit application if consulted by Planning & Development Services. On August 13, 2020, the Planning Commission approved separate definitions for Fossil Fuel Transshipment Facilities and Renewable Fuel Transshipment Facilities in the Zoning Code (they were previously combined in one definition). ' The reference to a definition in the Whatcom County Code could be removed to avoid a policy with a code reference. A definition could be added to the Comprehensive Plan if thought necessary. Typically, the code is more detailed. 75 Amend Policy 2CC-17 76 Pelicy 2CC 16 shell met li Allow existing operations or maintenance of existing fossil -fuel 77 related facilities operating aT;elsas of mere'�z20�7 FXXX, 20202�1 with limited 78 expansions subiect to environmental review, areenhouse aas emission analysis mifleiatien, and 79 conformance with Policies 2CC-3 and -1 1. 80 81 82 83 84 85 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The proposed SEPA rules will require GHG analysis and authorize GHG mitigation. Pursuant to the proposed SEPA rules, GHG mitigation may be imposed by the Responsible Official, but will not be automatically imposed for any project that creates any increase in GHG emissions. 86 Add a new policy as follows: 87 Policy 2CC-18: This chapter is intended to allow the on -going operation, maintenance, and 88 repair of existing facilities, modifications designed to comply with 89 adoption and implementation of new product standards and fuel 90 standards, operational and site safety improvements, environmental 91 improvements, and regulatory compliance projects. 92 93 94 95 Rationale for Changes (shown with highlighting): On February 27, 2020, the Planning Commission approved a motion inserting new Policy 2CC-18 into the Cherry Point UGA section of the Comprehensive Plan. 96 Add a new policy on renewable fuels., 97 2,C�. Treat reneweWe fuels facilities sirnfler te fossil fue' facilities. 98 99 100 101 102 103 Rationale for Changes (shown with highlighting): On October 10, 2019, the Planning Commission provided direction that renewable fuel facilities should not be required to mitigate greenhouse gas emissions if they reduce lifecycle greenhouse gas emissions. On December 12, 2019, the Planning Commission recommended that new renewable fuel refineries and transshipment facilities should be allowed as a permitted use but new fossil fuel refineries should be prohibited. Additionally, on January 16, 2020, the Planning Commission recommended that expansion of existing renewable fuel refineries and transshipment facilities should be allowed as a permitted use (expansion of fossil fuel facilities would require a conditional use permit). Therefore, in some respects, renewable fuel facilities would not be treated in a manner "similar" to fossil fuel facilities. 9 104 105 Essential Public Facilities 106 Amend Policy 2WW-4 107 Policy 2WW-4 State and regional highways in unincorporated Whatcom County that have been 108 designated as essential state or regional transportation facilities are 1-5, State Route 539 (the Guide 109 Meridian), State Route 546/9 (Badger from the Guide to Sumas), and State Route 20 to eastern 110 Washington. Other transportation facilities in unincorporated Whatcom County that have been III designated as essential public facilities are Amtrak Cascades passenger rail service, the Burlington 112 Northern Santa Fe railroad tracks, and the Cherry Point marine port facilities. Such facilities in the City of 113 Bellingham include Fairhaven Station (intercity passenger rail terminal), Bellingham Cruise Terminal 114 (Alaska Ferry), and the Port of Bellingham (marine port). Additionally, State Route 543 (the truck route at 115 the Blaine border) is an essential public facility located within the city limits of Blaine. 116 Widening of existing state highways or railroad tracks (including construction of sidings) and siting new 117 state highways or railroad tracks should be planned in the Washington Highway System Plan, Amtrak 118 Cascades Plan and the Freight Rail Plan. The state will invite the Regional Transportation Planning 119 Organization and the County to participate in planning studies, review design plans, and provide 120 comments when siting new or expanded state highways or railroad tracks. 121 Highways and railroad tracks that qualify as essential public facilities should be sited in accordance with 122 all of the following principles. These facilities should be located: 123 • In a manner that minimizes or mitigates noise impacts to surrounding residential areas. 124 • Outside of the Lake Whatcom Watershed, unless there are no viable alternatives. 125 • In a manner that allows continued fish passage beyond the road or railroad tracks or restores blocked 126 passage. 127 • In a manner that avoids or mitigates wetland impacts. 128 • In a manner that minimizes impacts of additional impervious surfaces by treating stormwater runoff. 129 • In a manner that encourages a vibrant economy by facilitating the efficient movement of people and 130 freight. 131 • In a manner that accommodates pedestrians, bicycles, and transit. 132 Major passenger intermodal terminals should be located in General Commercial, Airport Operations, 133 Urban Residential -Medium Density or industrial zones. 134 Freight railroad switching yards and terminals should be located in industrial zones. 135 Marine port facilities should be located within the Heavy Impact Industrial zone of the Cherry Point 136 Major/Port Industrial Urban Growth Area. Allow existing facilities and limited expansions consistent with 137 the State of Washington Department of Natural Resource Cherry Point Aquatic Reserve Management 138 Plan. 4 Planning Commission Recommended Version — August 13, 2020 Exhibit B 2 3 NOTE: Changes from existing text are shown within underlines and strikethroughs (Planning Commission 4 changes that differ from the County Council Resolution 20 7 9-037 are also highlighted in yellow). 5 CHAPTER 16.08 STATE ENVIRONMENTAL POLICY ACT (SEPA) 6 16.08.090. Environmental checklist 7 E. Evaluation/Worksheet for Fossil and Renewable Fuel Facilities: Air and environmental health are elements of the 8 environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in 9 WAC 197-11-9060)(c), Whatcom County hereby adds a procedure and criteria to help identify the affected environment, 10 impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For any proposed 11 change of use or expansion of facilities that manufacture, process, store or transport any fossil fuel, renewable fuel, or 12 hydrocarbon feedstock, the proponent will provide an expert evaluation or fill out the County's SEPA "Worksheet for Fossil 13 and Renewable Fuel Facilities." This expert evaluation or Worksheet provides detailed information required to evaluate 14 impacts to air, land and water during review of a SEPA environmental checklist. The form of the worksheet shall be prepared 15 and updated as neededL) y the SEPA Responsible Official in consultation with the Planning Commissionand 16 . The expert evaluation or 17 Worksheet shall analyze the "significance" of direct, indirect, and cumulative impacts including btA not limited to those 18 arising from: 19 1. Windborne transport of fossil or renewable fuel emissions across Whatcom Count 20 2. Lifecycle greenhouse gas emissions for renewable facilities and facility emissions above existing levels for fossil 21 fuel facilities; 22 3. Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or 23 interfere with commercial and treaty tribe fishing areas; and 24 4. Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the 25 shorelines, and to their headwaters; and 26 5. Potential for loss of life and/or property related to risks from spills or explosions associated with refining and 27 transport of renewable or fossil fuels or related feedstocks within Whatcom County. 28 In determining whether possible impacts are "significant" and "probable," the Responsible Official shall determine whether 29 the information in the expert evaluation or the Worksheet for Fossil Fuel Fa6li ies accurately analyze the severity 30 of potential harm, independently from analysis of probability of occurrence, in compliance with WAC 197-11-330. Also, as 31 provided in WAC 197-11-794, "the severity of an impact should be weighed along with the likelihood of its occurrence" and 32 "an impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe 33 if it occurred." 34 The w jEsheet and 2upp'op2p± .,' information provided in the expert evaluation or Worksheet required for fossil and 35 renewable fuel facilities shall be considered procedures and criteria added to Whatcom County's SEPA policies and 36 procedures pursuant to WAC 197-11-906(1)(c) and are deemed necessary to be consistent with the provisions of SEPA 37 contained in RCW 43.21C.020, RCW 43.21C.030 and RCW 43.21C.031. However, the expert evaluation or Worksheet may 38 not be required if an environmental impact statement is prepared. 39 DiscussionlNotes: Suggest reference to WAC 7 97-1 1-906 (1) (c) as basis to require worksheet 40 since it allows for additional procedures and criteria. WAC 197-1 1-375 refers to Ecology and 30- 41 day review for planned actions, which is not proposed. 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 Rationale for Changes (shown within highlighting): The worksheet will take time to develop and likely will not be available when Council adopts the ordinance. Additionally, larger or more complex projects would benefit from expert evaluation of the issues listed above. It may not be necessary to update the worksheet every year. Therefore, the proposed change is to update the worksheet "as needed." On January 30, 2020, the Planning Commission passed a motion to remove the reference to the Climate Impact Advisory Committee, as the SEPA Official may consult with any committee (including but not limited to the Climate Impact Advisory Committee) when preparing/updating the worksheet. On February 27, 2020, the Planning Commission inserted a clause that requires the SEPA Official to consult with the Planning Commission when preparing/updating the worksheet. The proposed SEPA rules authorize GHG mitigation for "facility emissions" for fossil fuel facilities (proposed WCC 16.08.160.F.1.b.i(a) — Exhibit B, page 4). The proposed SEPA rules require "lifecycle" GHG emission analysis for renewable facilities (proposed WCC 16.08.160.F.1.b.ii — Exhibit B, page 5). The information required in the evaluation worksheet should correspond to these SEPA requirements. The evaluation worksheet addresses impacts "including but not limited to" the five listed issues. The phrase "including but not limited to" has been deleted because it is open-ended and undefined. Applicants will not know what they are required to address if this phrase is retained. Finally, if an environmental impact statement (EIS) is required, then the evaluation worksheet will not be needed since significant adverse impacts will be addressed in the EIS. 16.08.160 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. Rationale for Changes (shown with highlighting): Subsections E and F below include provisions relating to placing conditions on projects. 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 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 FEIS 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. Rationale for Changes (shown with highlighting): Subsection F below includes a provision relating to denying projects. 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. 95 2. The county recognizes that each person has a fundamental and inalienable right to a healthful environment and that 96 each person has a responsibility to contribute to the preservation and enhancement of the environment. 97 3. The county adopts by reference the policies in the following county documents: 98 Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components) 99 Whatcom County Shoreline Management Program 100 Whatcom County Subdivision Ordinance 101 Whatcom County Solid Waste Management Plan 102 Whatcom County Critical Areas Ordinance 103 All official land use controls adopted by Whatcom County. 104 E. Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed b. these 105 SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific 106 adverse environmental impact has been adequately addressed by an existing rule or law of another agency 107 jurisdiction, the County shall consult orally or in writing with that agency and may expressly defer to that agency. In 108 making this deferral, the County shall base or condition its project approval on compliance with these other existing 109 rules or laws. in deeidinf� lief o..hese r-eeolatians , ide suffie;off. ; et fnit ,... is the r, wty, shall , „lt ,,...,ii., 110 with the fespeasible federal, sta4e or- ether af�eney with iufisdietiea and envir-enmental exi3ei4ise and ma- 1 1 1 defer to that ageagy. The !''eufi♦ , shall base . , Bite. its eet ,7eeisie , eemplianee . 4th those ethe.- 1 12 _ . The County needshall not so defer if such regulations did 113 not anticipate or are otherwise inadequate to address a particular impact of a project. 114 115 116 117 Rationale for Changes (shown with highlighting): The replacement language above (the 2nd and 3rd sentences) is taken from the State SEPA rules (WAC 197- 1 1-158(4)) to better reflect these State rules. 118 119 F. Specific Environmental Policies 120 1. Air Quality and Climate: 121 a. Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality 122 of life. Mitigation of ^r�air pollutant impacts will normally be the subject of air permits required by the 123 Northwest Clean Air Agency (NWCAA) and/or State Department of Ecology (DOE) and no further mitigation bX 124 the County shall be required. However, where a project being reviewed by the County enerates public nuisance 125 impacts, odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, 126 the County may require mitigation under SEPA. 127 128 129 130 131 132 133 Rationale for Changes (shown with highlighting): Criteria pollutants are specific types of pollutants identified in the Federal Clean Air Act. The NWCAA addresses a wider variety of pollutants. Additionally, the State Department of Ecology may require a "Prevention of Significant Deterioration" permit for certain industrial sources of air pollution (e.g. refineries). Using the term "public" nuisance in the text above will maintain consistency with WCC 20.66.704 and WCC 20.68.704, the Light Impact Industrial and Heavy Impact Industrial provisions relating to odors. 134 b. Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows 135 and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads, 136 dikes and critical infrastructure such as water and waste treatment facilities. While climate chan eg is a global 137 phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that 138 projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be 139 authorized by the County address greenhouse gas emissions impacts. 114;-4gsatiebe emeved�� 140 iens eantaifted in !'', offt , !a -ad , v and devele ent ,lati as ♦h fei, 1, the Sta4e r1nvi-,..,,v ent l Policy 142 143 144 145 146 147 148 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. GHG mitigation through SEPA is addressed below. 149 i. Greenhouse Gas Emissions — Fossil Fuel Facilities and Fossil Fuel Transshipment Facilities: The following 150 policies shall apply to fossil fuel facilities and fossil fuel transshipment facilities. 151 (a) Emissions Calculated: The SEPA Responsible Official may require mitigation for greenhouse gas 152 emissions of fossil fuel facilities and fossil fuel transshipment facilities, as calculated consistent with the 153 definition of facility emissions in WCC 16.08.175'4.°�T. 154 (b) Assessment: Greenhouse gas emissions impacts shall be assessed using *current scientifically 155 valid modeling techniquesvefsi^^ of the rDEET "Bodo' developed by n, e Nmienal T ..b,...,..efies 158 159 160 161 162 Rationale for Changes (shown with highlighting): Industry representatives have indicated concern about the models referenced above. The proposed changes would allow appropriate methods to be used in calculating greenhouse gas emissions. 163 164 (c) Mitigation: Greenhouse gas emissions that create specific adverse environmental impacts may be offset 165 far- or-epasals subieet to WGC_ 20.68.801 thfetteh either- eade r-eEittifemen4s or-, ifnet addressed thr-etleh-ee& 166 r-eqttir-efnerAs. through mitigation projects that provide realveddi4efia4 and quantifiable greenhouse gas 167 mitigation. 168 169 for- pefmits sweet teWCC L969.901. 170 171 172 173 174 175 176 177 178 179 180 181 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. The double counting language above is somewhat confusing. It seems to indicate that, if mitigation is required by a different agency, then County -required mitigation must be different and additional. But a general concept is that, if another agency requires adequate mitigation, County mitigation is not required. Therefore, this language has been deleted. Additionally, SEPA allows for mitigation of "specific adverse environmental impacts" (RCW 43.21 C.060). This language has been inserted above. 182 ii. Greenhouse Gas Emissions — Renewable Fuels Facilities and Renewable Fuel Transshipment Facilities: The 183 SEPA Responsible Official shall require documentation of lifecycle greenhouse gas emissions associated with 184 renewable fuel facilities. The SEPA Responsible Official will consider the lifecycle greenhouse gas emissions 185 analysis when making the threshold determination. The SEPA Resigansible Offigial shall 186 documentation of emissions consistent with b4a) and b4b) above. The ai)plican4 shall demonstrate that the 187 lifecycle ereepAiottse eas reductions associated with the renewable fitels Mvide a net reduction even when 188 eonsiderine transpor-tation an' �sions. if there is a net inerease in emissions locally, the SEPA 190 191 192 193 194 195 196 197 On October 10, 2019, the Planning Commission provided direction that renewable fuel facilities should not be required to mitigate greenhouse gas emissions if they reduce lifecycle greenhouse gas emissions. Therefore, the greenhouse gas language above has been modified, including deletion of the mitigation language. 198 iii. Greenhouse Gas Emissions — Other Uses Within the Heavv Impact Industrial District: 199 (a) Method of analysis: Determined by SEPA Responsible Official following consultation with federal and 200 state agencies with jurisdiction or expertise. 201 ( Mitigation: Determined by SEPA Responsible Official. See I.c. 202 c. It is the Count policy to minimize or prevent adverse air qualitypacts. Federal, state, regional, and county 203 regulations and programs cannot always anticipate or adequately mitigate adverse air qualitypacts. If the 204 decision -maker makes a written finding that the applicable federal, state, regional, and/or County regulations did 205 not anticipate or are inadequate to address the particular impact(s) of the project, the decision -maker may 206 condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deRyproject under 207 the provisions of the State Environmental Policy Act. 208 2. Plants and Animals: 209 a. Many species of birds, mammals, fish, and other classes of animals and plants living in both rural and urban 210 environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened 211 by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of 212 ecological, educational, and economic value include priority habitats and species as listed in the Washington 213 Department of Fish and Wildlife's Priority Habitats and Species, as amended, consistent with WCC 16.16.710, 214 and High Biodiversity Value Areas per the Whatcom County 2017 Ecosystem Report, as amended. 215 b. It is the County's policy to minimize or prevent the loss of fish and wildlife habitat that have substantial 216 ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and 217 federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be 218 given to anadromous fisheries and marine mammals. 219 c. it is the Coupo's i3ehey to ensure ai3i3heant r-avide ver-ifiabie deeufnei4a4ian of eensistenev with federal an-' 220 +Feat ,r-ieh4s..-ea 221 . The decision -maker maX 222 condition or deny the project to mitigate its specific adverse environmental impacts if the decision -maker finds 223 that a proposed project would reduce or damage rare, uncommon, unique or exceptional plant or wildlife habitat, 224 designated wildlife corridors, or habitat diversity for plants or animals species of substantial educational, 225 ecological. or economic value. or interfere with treatv rights. clean water rights. or endangered species protection. 226 Discussion/Notes: If amendments are made to the Comprehensive Plan policies then the County 227 will in effect update policies under the County's SEPA substantive authority. 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 Rationale for Changes (shown with highlighting): Federal and state agencies would typically determine compliance with federal and state laws when they issue or deny a permit or other authorization for a project. The language above implies that certain federal and state permits/authorizations must be issued before the County can do SEPA review on a project. The State SEPA rules (WAC 197-1 1- 158(4)) indicate: In deciding whether a project specific adverse environmental impact has been adequately addressed by an existing rule or law of another agency with jurisdiction, the GMA county/city shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the GMA county/city shall base or condition its project approval on compliance with these other existing rules or laws. This concept of consultation is already embodied in the proposed amendments in WCC 16.08.160.E above. Therefore, the language highlighted above should be deleted. 243 16.08.175 Purpose of this article and adoption by reference. 244 This article contains uniform usage and definitions of terms under SEPA. The county adopts the following sections 245 by reference, as supplemented by WAC 173-806-040: 246 247 WAC 248 197-11-700 Definitions. 249 197-11-702 Act. 250 197-11-704 Action. 251 197-11-706 Addendum. 252 197-11-708 Adoption. 253 197-11-710 Affected tribe. 254 197-11-712 Affecting. 255 197-11-714 Agency. 256 197-11-716 Applicant. 257 197-11-718 Built environment. 258 197-11-720 Categorical exemption. 259 197-11-721 Closed record appeal. 260 197-11-722 Consolidated appeal. 261 197-11-724 Consulted agency. 262 197-11-726 Cost -benefit analysis. 263 197-11-728 County/city. 264 197-11-730 Decision maker. 265 197-11-732 Department. 266 197-11-734 Determination of nonsignificance (DNS). 267 197-11-736 Determination of significance (DS). 268 197-11-738 EIS. 269 197-11-740 Environment. 270 197-11-742 Environmental checklist. 271 197-11-744 Environmental document. 272 197-11-746 Environmental review. 273 197-11-750 Expanded scoping. 274 197-11-752 Impacts. 275 197-11-754 Incorporation by reference. 276 197-11-756 Lands covered by water. 277 197-11-758 Lead agency. 278 197-11-760 License. 279 197-11-762 Localagency. 280 197-11-764 Major action. 281 197-11-766 Mitigated DNS. 282 197-11-768 Mitigation. 283 197-11-770 Natural environment. 284 197-11-772 NEPA. 285 197-11-774 Nonproject. 286 197-11-775 Open record hearing. 287 197-11-776 Phased review. 288 197-11-778 Preparation. 289 197-11-780 Private project. 290 197-11-782 Probable. 291 197-11-784 Proposal. 292 197-11-786 Reasonable alternative. 293 197-11-788 Responsible official. 294 197-11-790 SEPA. 295 197-11-792 Scope. 296 197-11-793 Scoping. 297 197-11-794 Significant. 298 197-11-796 State agency. 299 197-11-797 Threshold determination. 300 197-11-799 Underlying governmental action. 301 In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this article, 302 the following terms shall have the following meanings, unless the context indicates otherwise: 303 A. "Early notice" means the county's response to an applicant stating whether it considers issuance of a 304 determination of significance (DS) likely for the applicant's proposal (mitigated determination of 305 nonsignificance (MDNS) procedures). 306 B. "ERC" means environmental review committee established in WCC 16.08.045. 307 C. "Facility Emissions" means greenhouse gas emissions associated with fossil fuel refineries or fossil fuel 308 transshipment facilities based upon the refining and processing of fossil fuels located within the Cherry 309 Heavy Industrial area. 310 311 312 313 314 315 316 317 318 319 320 321 322 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definition of "facility emissions" was in the proposed Zoning Code language. However, this term no longer is used in the Zoning Code. Therefore, the definition was moved from the Zoning Code to the County's SEPA rules. On June 25, 2020, the Planning Commission approved a motion to remove the following elements from the original Council definition of facility emissions: • The transportation within the borders of Whatcom County of refined and unrefined fossil fuels to and from a facility located within the Cherry Point Heavy Industrial area, and • The upstream emissions generated by the production and transport of raw products to the facility such as crude oil feedstocks or other fuels used in production or energy generation at facilities. 323 D. "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse 324 gases," "GHG," and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, 325 perfluorocarbons, and sulfur hexafluoride, and any other gas or gases designated by the federal clean air act 326 (United States Code Title 42, Chapter 85), state clean air act (Chapter 70.94 RCW) or state limiting_ greenhouse 327 aas emissions law (Chanter 70.235 RCW). 328 329 E. "Lifecycle greenhouse ,gas emissions" means the aggregate quantity of greenhouse gas emissions (including 330 direct emissions and significant indirect emissions), related to the full fuel lifecycle, includingall of fuel 331 and feedstock production and distribution, from feedstock ,generation or extraction through the distribution and 332 delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are 333 adjusted to account for their relative global warming potential. 334 335 336 337 338 339 340 341 342 343 344 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definitions of "greenhouse gas emissions" and "lifecycle greenhouse gas emissions" are in the proposed Zoning Code language. However, these terms are only used in the definition of "renewable fuels" in the Zoning Code. They are most often used in the proposed SEPA rules. Therefore, these terms were inserted into the County's SEPA rules. 345 FE. "Ordinance" means the procedure used by the county to adopt regulatory requirements. 346 347 GD. "Responsible official" shall mean the director of the department which bears responsibilities for the SEPA 348 process or his/her designee. 349 350 HE. "SEPA rules" means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 98-048 Exh. A; 351 Ord. 84-122 Part 8). 352 353 354 355 356 357 358 359 360 361 362 363 Exhibit C 364 CHAPTER 20.66 LIGHT IMPACT INDUSTRIAL (LII) DISTRICT 365 20.66.200 Prohibited uses. 366 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not 367 limited to the following, which are listed here for purposes of clarity: 368 .201 Reserved. 369 .202 Adult businesses except those allowed as an administrative approval use under WCC 20.66.131. 370 .203 In the Bellingham Urban Growth Area the following uses are prohibited: „et -Oleum r-e fi er-y and the pr-'—,,..., 371 anuf eturing of pr-oduets theFe^f primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and 372 products derived thereof, and primary metal industries. 373 .204 New fossil -fuel refinery; or new fossil fuel transshipment or -facility „rips ermitted as a i3aft of n existing-e fi 374 modification other -wise permitted tmder this code. 375 376 377 378 Rationale for Changes (shown with highlighting): The existing refineries are south of Grandview Rd., in the Heavy Impact Industrial zone. There are no refineries north of Grandview in the Light Impact Industrial zone. 379 DiscussionlNotes: Prohibit fossil fuel related industries in the LII District; already 380 prohibited in the Bellingham UGA. It does not appear that such uses exist in the LII zone; 381 thus, we have only addressed the prohibition of fossil -fuel refinery and fossil fuel 382 transshipment facility unless part of an existing refinery (e.g. transshipment). 383 384 385 386 387 388 389 390 391 392 11 10 393 CHAPTER 20.68 HEAVY IMPACT INDUSTRIAL (HII) DISTRICT 394 20.68.050 Permitted uses. 395 Unless otherwise provided herein, permitted and accessory uses shall be administered pursuant to the applicable provisions of 396 Chapter 20.80 WCC, Supplementary Requirements, and Chapter 20.84 WCC, Variances, Conditional Uses, Administrative 397 Uses and Appeals, the Whatcom County SEPA Ordinance, the Whatcom County Subdivision Ordinance and the Whatcom 398 County Shoreline Management Program -.-and implementing regulations. The purpose of the SIC numbers listed within this 399 ehapter- is to adept by reference other- activities similar- in nature to the use identified herein. (Policies of the subare-a 400 Gompr-ehensive Plan may preolude oer-tain permitted uses to occtw in par-tiottlaf s4ar-eas. Please refer- to the policies of 401 appheable stibar-ea plan to deter -mine the appFepFiateness of a land use aetivitY listed below4 402 .051 The manufacture and processing of food including meat (including packinghouses and slaughterhouses), dairy, fruits, 403 vegetables, seafood, grain mill, large scale bakery, sugar and beverage products, provided the following criteria are met: 404 (1) Holding pens associated with packinghouses and slaughterhouses shall be limited to that necessary to accommodate 405 animals intended for processing within 24 hours. 406 (2) The facility shall comply with the solid waste handling standards as set forth in Chapter 173-350 WAC, as administered 407 by the Whatcom County health department as adopted by reference in Chapter 24.06 WAC. 408 (3) If required by the Washington State Department of Ecology, the following permits shall be obtained: 409 (a) State waste discharge permit (Chapter 173-216 WAC); 410 (b) Industrial stormwater permit - general permit (Chapter 173-226 WAC); 411 (c) An NPDES permit (Chapter 90.48 RCW and Chapter 173-220 WAC). 412 .052 Manufacturing and processing of textiles including weaving cotton, synthetic, silk or wool fabrics; knitting yarn and 413 thread mills; textile bleaching, dyeing and printing; and carpet manufacture. 414 .053 The manufacture and processing of lumber and wood including sawmills; planing mills; millwork; veneer, plywood and 415 prefabricated wood products; wooden containers and cooperage. 416 .054 The following are permitted uses except as otherwise prohibited: 417 (1) The manufacture and process of paper including pulp, paper and paperboard mills; and building paper and board mill 418 products. 419 (2) The manufacture and processing of chemicals and allied products including industrial inorganic and organic chemicals; 420 synthetic resins, rubber, fibers and plastic materials; soap, detergents and cleaning preparations; paint, linseed oil, shellac, 421 lacquer and allied products; chemicals from gum and wood; and agricultural chemicals. 422 423 (a) fossil ♦ tel refineries, istin lee ll..., of FXXX effective .late! 424 (W fossil fuel tra-, sshi ea4 f e l;tieS v iStifie lo,...11.... Of FXXX eff 6ti Ve .la4ej 425 426 427 428 429 430 Rationale for Changes (shown with highlighting): Existing fossil fuel facilities have been moved to proposed WCC 20.68.068 below. (34) The manufacture and processing of rubber and plastic products. (4-5) Leather tanning and finishing. 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 (56) The manufacture and processing of cement and glass; and concrete, gypsum, plaster, abrasive, asbestos and nonmetallic mineral products. (69) Primary metal industries including blast furnaces and steel works; mills for primary smelting, secondary smelting, refining, reducing, finishing, rolling, drawing, extruding, and casting of ferrous and nonferrous metals; and the manufacture of miscellaneous metal products. (7) Storage of asphalt in the Heavypact Industrial Zone. DiscussionlNotes: Retained from (3) above in case of construction related businesses. Rationale for Changes (shown with highlighting): Existing renewable facilities are addressed in proposed WCC 20.68.068 and 20.68.071 below. .055 The fabrication of metal products including metal cans, hardware, hand tools, cutlery, heating apparatus, plumbing fixtures, structural metal and stamping. .056 The manufacture of machinery including engines; turbines; farm machinery and equipment; construction, mining and materials handling equipment; machine tools and dies; and special and general industrial equipment. .057 The manufacture of electrical machinery including transmission and distribution equipment, and industrial apparatus. .058 The manufacture of transportation equipment including automobiles, trucks, buses, airplanes, boat building and repair, railroad equipment, bicycles and motorcycles. .059 Bulk commodity storage facilities, and truck, rail, vessel and pipeline transshipment terminals and facilities except for fossil fuel facilities or fossil fuel transshipment facilities s4jeet t the pr-e isiens of 2Q6 , c3 New fossil a,o, o a Rationale for Changes (shown with highlighting): Proposed WCC 20.68.068, WCC 20.68.153, and WCC 20.68.205 address permitted, conditionally permitted, and prohibited fossil fuel facilities. The above change would simplify the proposed language by indicating that fossil fuel facilities are not addressed by WCC 20.68.059. 456 .060 Stationary thermal power plants with generating capacity of less than 250,000 kilowatts, floating thermal power plants 457 with generating capacity of less than 50,000 kilowatts, and other power plants utilizing renewable resources from solar, wind 458 (Chapter 20.14 WCC) or water sources, except that coal-fired power plants are prohibited. 459 460 461 462 463 464 465 466 467 468 469 Rationale for Changes (shown with highlighting): The Council's proposed amendments would prohibit coal fired power plants (proposed WCC 20.68.207). However, power plants are already permitted in the HII zone (WCC 20.68.060). Therefore, WCC 20.68.060 should be modified to clarify that permitted power plants do not include coal fired power plants. .061 Heavy construction contractors. .062 Public uses and community facilities including police and fire stations, libraries, activity centers, community centers, park and recreation facilities identified in an adopted city or county Comprehensive Plan or Park Plan, and other similar noncommercial uses, excluding state education facilities and correction facilities. .063 One one-story detached accessory storage building per lot; provided, that the floor area shall not exceed 200 square feet and shall only be used for personal storage and not for habitation or business; and provided further, that the storage building shall contain no indoor plumbing but may be served with electrical power for lighting. 11 12 470 .064 Uses allowed in the Light Impact Industrial Zone as permitted uses, WCC 20.66.100, shall be permitted outright within 471 the Heavy Impact Industrial District in the Bellingham UGA. 472 .065 Trails, trailheads, restroom facilities and associated parking areas for no more than 30 vehicles. 473 .066 Marijuana production or processing facility. 474 .068 Existing fossil -fuel refineries, fossil -fuel transshipment facilities, renewable fuel refineries, renewable fuel 475 transshipment facilities, piers and docks legally established as of [XXX effective date of ordinance], uses including repairs, 476 improvements, maintenance, modifications, remodeling or other changes including but not limited to the following, provided 477 that a conditional use permit is not required by WCC 20.68.153: 478 (1) Accessory and appurtenant buildings, structures, and processing equipment. 479 (2) Office space. 480 (3) Parking lots. 481 (4) Radio communications facilities. 482 (5) Security buildings, fire stations, and operation centers. 483 (6) Storage buildings. 484 (7) Routine maintenance and repair. 485 (8) Environmental improvements and other projects that are required on the subject site by federal, state, regional, or local 486 regulations, including modifications of fossil fuel facilities for purposes of co -processing biomass with petroleum. 487 (9) Road projects and bridges. 488 (10) Temporary trailers. 489 (11) Heating and cooling systems. 490 (12) Cable installation. 491 (13) Information technology improvements. 492 (14) Continuous emissions monitoring systems or analyzer shelters. 493 05) Wastewater and stormwater treatment facilities. 494 (16) Replacement and upgrading of existing equipment. 495 (17) Safetyppgrades. 496 (18) Storage tanks. 497 (19) Pinelines carrvina petroleum or petroleum products solelv within the Heavv Impact Industrial zoning district 498 (20 Pipelines carrying natural gas solely within the Heavy Impact Industrial zoning district. 499 (21) Renewable fuel production and shipment. 500 (22) Other similar structures or activities. 501 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and 502 transshipment facilities from former proposed WCC 20.68.802 to the permitted use section of the Heavy Impact 503 Industrial Zoning District for consistency with other sections of the Code. Additional items have been inserted as permitted uses to address public comments, including pipelines (# 19 and 20) added on July 9, 2020. On August 13, 2020, the Planning Commission added the co -processing language to # 8 and inserted # 21 above. 13 504 505 .070 New renewable fuel refineries or renewable fuel transshipment facilities, except that new piers, docks, or wharves in the 506 Cherry Point Industrial District are prohibited. 507 508 509 510 511 512 513 514 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by Council). The Council's original proposed amendments would prohibit new piers, docks, or wharves in the Cherry Point Industrial District (proposed WCC 20.68.206 and 20.74.055). This is recognized in proposed WCC 20.68.070 by indicating that this provision does not apply to piers, docks, or wharves. 515 0.71 Expansion of existing legal renewable fuel refineries or renewable fuel transshipment facilities, provided that the 516 expansion is for renewable fuels only. 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 Rationale for Changes (shown with highlighting): On January 16, 2020, the Planning Commission passed a motion that expansion of renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by the County Council). .081 Freight railroad switching yards and terminals, excluding uses addressed in .059. .082 Marine port facilities, excluding uses addressed in .059, and excluding new piers, docks, or wharves. .085 Type I solid waste handling facilities. .086 Type I1 solid waste handling facilities. 20.68.100 Accessory uses. .101 Employee recreation facilities and play areas. .102 Restaurants, cafes and cafeterias operated primarily for the convenience of employees, clients and customers of the district. .103 Temporary buildings for construction purposes for a period not to exceed the duration of such construction. .104 When auxiliary to a principally permitted use: electric utility facilities; substations; generating plants, if less than 50 megawatt (MW) net plant capability; gas works; sewage disposal facilities; solid waste landfills and incinerators. .105 Other accessory uses and buildings, including security services, customarily appurtenant to a principally permitted use. .106 On -site treatment and storage facilities for hazardous wastes associated with outright permitted uses or approved conditional uses subject to the most current siting criteria under Chapter 173-303 WAC. .107 Mini -day care centers, and day care centers operated by, maintained by or funded by business in the district for the purpose of serving the child care needs of employees whose place of employment lies within this zone district. .108 Electric vehicle rapid charging stations and battery exchange facilities. 11 14 538 20.68.130 Administrative approval uses. 539 .131 Commercial mushroom substrate production limited to the Cherry Point Industrial Area and pursuant to the 540 requirements as contained in WCC 20.15.020(2) (commercial mushroom substrate production facilities). (Ord. 2006-031 § 1 541 (Exh. A), 2006). 542 20.68.150 Conditional uses. 543 The following uses require a conditional use permit in the HII Zoning District. 544 .152 Uses allowed in the Light Impact Industrial zone as permitted uses, WCC 20.66.100, subject to the following: 545 (1) Outside of the Bellingham Urban Growth Area, approval shall be supported by a finding by the hearing examiner that 546 allowing the use will not limit the supply of land available to meet the demand for future heavy industrial uses. 547 (2) Filing of a deed restriction acknowledging that heavy industrial uses are the preferred uses in the zone and agreeing not to 548 protest proposed heavy industrial uses allowed in the zone in accordance with Chapter 20.68 WCC, and to refrain from legal 549 action against any heavy industrial use in compliance with the regulations of WCC Title 20 and any conditions of approval 550 which might have been proposed. 551 .153 Expansion of existing legal fFossil (Fuel rRefineries�s and the pr-ifflar-y Manufa 552 or-oduets the -eoF or expansion of existing legal (Fossil Fuel tTransshipment €Facilities. For purposes of this 553 section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including 554 otherwise permitted or accessory), vested after the effective date of this ordinance, that meets any one of the following 555 thresholds: 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the maximum transshipment capacity of the facility y more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases the maximum transshipment capacity of unrefined fossil fuels from the facility y more than 10,000 barrels (or 420,000 gallons)per da. If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Rationale for Changes (shown with highlighting): On January 16 and 30, 2020, the Planning Commission approved motions defining what activities constitute an "expansion" and when a conditional use permit is required. On January 16, 2020, the Planning Commission also approved a motion to move expansion of renewable fuel facilities from conditional use to permitted use, as long as the expansion is for the increased production of renewable fuels. On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to remove certain fossil fuel storage tank capacity increases from the above list of improvements that require a conditional use permit (storage tanks are a permitted use under proposed WCC 20.68.068). Such expansions shall be subject to the conditional use criteria below: (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; (3) The applicant has documented to the satisfaction of the County decision maker all of the anticipated 2211 types; and volumes of substances transferred in bulk at the facility. The permit shall be limited exclusively to those types and volumes of materials or products as documented and approved. 11 15 WAN 578 579 580 581 582 583 584 585 586 587 588 589 Rationale for Changes (shown with highlighting): Sources of raw materials may change over time and new sources may come on-line. It may be very difficult, if not impossible, to predict sources of materials over the life of a project. (4) Insurance requirements meet the provisions of WCC Section 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction. (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. 7) PFioF to issuance of an site .,lionor- ,,,st fuetio per-mits, npFior-to oeeupaney ..,1 oper-ation of the o ,.,, e facility, the apnlieant shall pr-ovide ver-iflable doetifliefitation to the eetifity that the fileility-has been e0fist-Fucted e0fisiste-PA with any. applicable federal o state requirements, neluilin but not limited to water f L.ts .,n , Rationale for Changes (shown with highlighting): Criterion 7 above, addressing federal and state requirements appears to be unnecessary because criterion 9 already addresses federal and state permitting. 590 (78) Plans for stormwater and wastewater releases have been approved 591 (89) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for 592 any piers or aquatic lands improvements, and it shall be demonstrated to the satisfaction of the zoning administrator that the 593 project applicant has met any federal or state permit or -consultation requirements, including tribal treaty 594 rights or the provisions of the Maffnuson Amendment throueh state and federal permittine decisions: and 595 (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete 596 any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site 597 preparation or construction activities until it has fulfilled that condition. 599 600 601 602 604 605 606 607 608 609 610 611 612 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). -- lam � ' - �.= -a Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission approved a motion to delete the living wage job language from the conditional use permit approval criteria. .154 Treatment and storage facilities for hazardous wastes subject to the following: (1) The--ikt criteria for a conditional use listed under WCC 20.84.200. (2) The most current state siting criteria under Chapter 173-303 WAC. (3) It shall be the responsibility of the applicant to document to the satisfaction of the approving body the anticipated sources, types, volumes and final disposition of hazardous wastes to be collected and the type of treatments associated with those wastes. The permit shall be limited exclusively to those types of wastes and treatments as documented and approved. 11 16 613 (4) Total off -site facility capacity shall be limited to that needed to treat and store wastes generated within Whatcom County 614 by generators requiring off -site management of hazardous wastes; provided, however, waste streams may be sourced from 615 other jurisdictions through interagency zone designation agreements as approved by the county council, not to exceed 10 616 percent of the total local hazardous waste stream. 617 (5) Prior to occupancy of the facility, the State Department of Ecology shall certify to the county that the facility has been 618 constructed consistent with state requirements. 619 (6) As a condition of approval, the applicant shall be required to keep and maintain accurate and current records of the types, 620 amounts, sources, and final disposition of hazardous wastes collected. The applicant shall provide such records annually to 621 the county, or sooner upon county request. If the facility is found to be exceeding the waste stream limitations or permit 622 restrictions, the county staff shall so report to the approving body who shall have the authority to revoke the permit, 623 following a public hearing, if the limitation has been exceeded absent an emergency situation. Any emergency must be 624 documented by county staff. 625 (7) Annual inspections of the facility shall be a minimum requirement. The applicant shall be required to forward copies of 626 all facility inspection reports to the county. If deficiencies are found, the operator shall, within 15 days, submit to the county 627 for approval an implementation schedule of corrective measures. Such schedule shall include specific completion dates and 628 inspection reporting procedures. 629 If the state does not inspect the facility within the year, the applicant shall be required to arrange and bear all costs for an 630 inspection by a qualified and independent inspection agency satisfactory to the county. 631 (8) Should the facility be found to consistently operate in a manner unsatisfactory to the county in regard to the public health 632 and safety, the permit may be revoked by the approving body following a public hearing. 633 .156 Public and private parks facilities not included in an adopted city or county Comprehensive Plan or Park Plan. 634 .157 Trailheads with parking areas for more than 30 vehicles. 635 .158 Athletic fields. 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new renewable fuel facilities should be allowed as a permitted use (instead of a conditional use, as proposed by Council). Therefore, a new code section, WCC 20.68.070, has been inserted indicating that new renewable fuel facilities would be permitted outright uses. .180 Major passenger intermodal terminals. .187 Type III solid waste handling facilities; provided, that: (1) The facility or site will not be located within the 100-year floodplain or the Lake Whatcom watershed. The facility or site will not be located within any area identified in an adopted critical areas ordinance unless outside of the floodplain and at least three feet in elevation higher than the floodway elevation; (2) Solid waste handling facilities shall be located at least 1,500 feet from the following: (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; (b) Public parks, public recreation areas, or publicly -owned wildlife areas; (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 11 17 653 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 654 (f) This 1,500-foot buffer does not apply to: 655 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 656 the property line 100 feet or the standard zoning district setback, whichever is greater; 657 (ii) Inert landfills; 658 (3) Inert landfills shall be located at least 500 feet from the following: 659 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; 660 (b) Public parks, public recreation areas, or publicly -owned wildlife areas; 661 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; 662 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 663 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 664 (f) This 500-foot buffer does not apply to: 665 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 666 the property line 100 feet or the standard zoning district setback, whichever is greater; 667 (4) The facility or site will not result in filling or excavation, location of structures or buildings, driveways or machinery use 668 except for vegetation maintenance within 100 feet of any property line and except for driveways within 150 feet of any 669 county or state road right-of-way; 670 (5) The facility or site will have vehicular approaches designed to minimize conflict between automobile and truck traffic, 671 will maintain the carrying capacity of county roads, and will be located on a road classified as all weather, except where use 672 is shown to be intermittent and easily delayed until emergency conditions have passed; 673 (6) The facility or site has complied with the provisions of WCC 20.84.200 and all other ordinances and laws regulating solid 674 waste facilities and sites, such as but not limited to WCC Title 24, the Whatcom County SEPA Ordinance, as well as state 675 and federal regulations concerning solid waste facilities and sites; 676 (7) All landfills have a final closure plan meeting the requirements of WCC Title 24 and of Chapter 173-350 WAC, and the 677 closure plan includes: 678 (a) Reclamation in two to 10 acre increments, as appropriately responsive to the size and intensity of the particular 679 activity, with seeding to be accomplished annually but no later than September 30th; and 680 (b) Permanent vegetative cover that will maintain in healthy growing condition with the level of maintenance that is 681 covered through the financial assurance for post -closure activities; 682 (8) The buffer areas and visual screening shall include a minimum of 50 feet wide of landscaping meeting the requirements 683 of WCC 20.80.300 (Landscaping); 684 (9) Solid waste facilities or sites shall be located outside the 10-year time of travel boundary of a public water system's 685 delineated wellhead protection area; 686 (10) Solid waste facilities or sites that handle putrescible waste will be located at least 10,000 feet from airports serving 687 turbine -powered aircraft and at least 5,000 feet from airports serving piston -powered aircraft. These buffers shall be 688 measured from the boundary of the Airport Operations Zone or, if the airport is not within an Airport Operations Zone, from 689 the boundary of the airport property; 690 (11) In addition, the Whatcom County hearing examiner may impose conditions of approval which may be necessary to 691 protect the value and enjoyment of existing adjacent uses. 11 18 692 .188 Mitigation banks as a form of compensatory mitigation for wetland and habitat conservation area impacts when 693 permitted in accordance with the provisions of Chapter 16.16 WCC; provided, applications for mitigation banks shall be 694 processed as a major development project pursuant to Chapter 20.88 WCC. 695 20.68.200 Prohibited uses. 696 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not 697 limited to the following, which are listed here for purposes of clarity: 698 .201 Reserved. 699 .202 Adult businesses. 700 .203 In the Bellingham Urban Growth Area the following uses are prohibited: petroleum refinery and the primary 701 manufacturing of products thereof, primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and 702 products derived thereof; and primary metal industries. 703 .204 New Fossil fuel refineries and theii�r-imafv ma-au€aetar f i3r-o&ecs thereof FXXY g ee#yt4afej. 704 705 706 707 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new fossil fuel refineries should be prohibited, as proposed by Council. "Fossil fuel refinery" is defined by proposed WCC 20.97.160.4. The "primary manufacturing" text is unnecessary. It is also unnecessary to insert the effective date into the code. 708 .205. New Fossil fFuel tTransshipment fFacilities: provided that, the following uses of facilities are not prohibited: (i) inter- 709 refinery shipments, (ii) transferring petroleum products during emergency scenarios where contingencies require petroleum 710 products to be moved, and (iii) necessga petroleum product transfers during turn-arounds or maintenance periods., 711 v'cmk acvz-a-gcvr-crccnsrcrzac-iiicicsfor- zvSrrizcicr cricccrvg496. 712 713 714 715 Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.205 as shown above. 716 .206. New piers, docks, or wharves in Cherry Point Industrial District. 717 718 719 720 721 722 723 724 725 726 Rationale for Changes (shown with highlighting): Cite the full name of the zoning district. DiscussionlNotes: Prohibit New Fossil Fuel Refineries. Prohibit Crude Oil and Coal Export Facilities — made broader to Fossil Fuel transshipment. .207 Coal-fired power plants. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 2016-011 § 1 (Exh. L), 2016; Ord. 99-078, 1999; Ord. 99-070 § 2, 1999; Ord. 91- 075, 1991). 20.68.250 Minimum lot size. The minimum lot size shall be consistent with the area required to meet the building setback, lot coverage, buffer and development standards of the district. (Ord. 97-057 § 1, 1997; Ord. 96-046 § 1, 1996). 11 19 727 20.68.255 Minimum lot frontage. 728 For the purpose of dividing property, minimum lot frontage shall be sufficient to provide adequate access and utility 729 development, and meet applicable building setback, buffer, and development standards of the district. In no case shall the 730 frontage be less than 30 feet. (Ord. 99-045 § 1, 1999). 731 20.68.350 Building setbacks. 732 Building setbacks shall be administered pursuant to WCC 20.80.200, 20.80.254 and 20.68.550. (Ord. 99-078, 1999). 733 20.68.400 Height limitations. 734 No maximum height is established; however, when a building exceeds 50 feet, the setback requirements of WCC 20.80.200 735 shall be increased by one foot for each foot of building height in excess of 50 feet, as applicable to all setbacks. 736 20.68.450 Lot coverage. 737 The maximum building or structural coverage shall not exceed 60 percent of the lot size. 738 20.68.500 Open space. 739 Repealed by Ord. 97-057. (Ord. 96-046, 1996). 740 20.68.550 Buffer area. 741 .551 The industrial user shall establish a buffer for building sites adjoining the boundary of the Heavy Impact Industrial 742 District (HII), which shall be located adjacent to the district boundary. The purpose of the buffer is to optimize the visual 743 appearance of the site by obscuring industrial activity from view by passing motorists, to contribute to on -site and off -site 744 impact abatement, and to move towards attaining compatibility with surrounding nonindustrial land uses and character. 745 .552 To implement the buffer requirements of this district, minimum setbacks for heavy industrial buildings and accessory 746 structures shall be established consistent with the following options: 747 (1) If a planting screen is not provided by the industrial user and no natural vegetative screening exists, the minimum 748 setback(s) shall be 660 feet, as measured from the edge of the district boundary. The setback area may be used for security 749 roads, parking, or open space. 750 (2) If natural sight -obscuring and dense vegetation exists, the minimum setback(s) shall be 250 feet, as measured from the 751 district boundary; provided, that a minimum width of 50 feet of natural vegetation is retained. The remainder of the 752 setback(s) may be used for security roads, parking, or open space. 753 (3) If a 50-foot buffer planting screen is established, pursuant to WCC 20.80.345, the minimum setback(s) shall conform to 754 the setback requirements of WCC 20.80.200, as measured from the district boundary. In addition, security roads may be 755 situated within the minimum buffer setback; provided, that the 50-foot-wide buffer planting is established. 756 (4) When a parcel situated within this district is located within the Bellingham Urban Growth Area and adjoins an Urban 757 Residential District or residential district within the city limits, setbacks for heavy industrial buildings and/or uses shall be 758 increased to 100 feet and landscaped in accordance with the requirements of WCC 20.80.345. 759 (5) In no case shall the setback from the northern and western boundaries of the Cherry Point heavy industrial area not 760 contiguous to another industrial zone be less than 660 feet, nor the natural vegetation removed except for parking and 761 security or protective uses. 762 .553 Uses other than heavy industrial will conform to the normal setback requirements as set forth in WCC 20.80.200 and 763 20.80.254(3) and the buffering requirements for light impact industrial uses WCC 20.66.551. 764 .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 765 separated or sold shall be used only as a buffer area in accordance with the above requirements. (Ord. 2019-013 § 1 (Exh. A), 766 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, 767 1989; Ord. 87-12, 1987; Ord. 87-11, 1987). 11 20 768 20.68.600 Sign regulations. 769 Sign regulations shall be administered pursuant to WCC 20.80.400. 770 20.68.650 Development criteria. 771 (Ord. 96-056 Att. A § Al, 1996). 772 20.68.651 Landscaping. 773 Refer to WCC 20.80.300 for landscaping requirements. (Ord. 89-117, 1989). 774 20.68.652 Off-street parking and loading. 775 Off-street parking and loading provisions shall be administered pursuant to WCC 20.80.500. In addition, loading areas must 776 be located in such a manner that no loading, unloading and/or maneuvering of trucks associated therewith takes place on 777 public rights -of -way. 778 20.68.653 Drainage. 779 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No 780 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019; Ord. 96-056 Att. A § 781 A2, 1996; Ord. 94-022, 1994). 782 20.68.654 Driveways. 783 Consistent with WCC 20.80.640, driveway plans shall be reviewed by the county engineer or State Department of 784 Transportation, as applicable. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 84-38, 1984). 785 20.68.655 Access. 786 Access shall conform to the provisions of WCC 20.80.565 and 20.80.660. (Ord. 89-117, 1989). 787 20.68.656 Maintenance. 788 The owner, lessee or user shall be responsible for maintaining an orderly appearance of all properties, and shall be 789 responsible for assuring the care and maintenance of any natural growth, where appropriate. 790 20.68.657 Enclosure. 791 All manufacturing or fabrication processes which have the potential to produce off -site impacts of a detrimental nature, 792 including light, glare, odors and noise impacts, shall be sufficiently enclosed to mitigate the impacts. (Ord. 99-078, 1999). 793 20.68.700 Performance standards. 794 20.68.701 Pollution control and nuisance abatement. 795 Each industry is required to continuously employ the best pollution control and nuisance abatement technology when 796 reasonably and practicably available for each particular industry; provided, that where federal, state, or regional laws or 797 regulations provide for the level of technology to be employed, the appropriate standards shall apply. 798 20.68.702 Heat, light and glare. 799 All operations and facilities producing heat, light or glare, including exterior lights, shall be so constructed, screened or used 800 as to not unreasonably infringe upon the use and enjoyment of property beyond the boundaries of the district. 11 21 801 20.68.703 Ground vibration. 802 No ground vibration other than that caused by highway vehicles, trains or construction activity shall be permitted, which is 803 discernible without instruments, at or beyond the property line for the use concerned. 804 20.68.704 Odors. 805 No odors, dust, dirt, or smoke shall be emitted that are detectable, at or beyond the property line for the use concerned, in 806 such a concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe 807 upon the use and enjoyment of property beyond the boundaries of the district. (Ord. 91-075, 1991). 808 20.68.705 Noise. 809 No use in this district shall exceed the maximum environmental noise level established by Chapter 173-60 WAC. (Ord. 91- 810 075, 1991). 811 20.68.706 Toxic gases and fumes. 812 Any release of toxic gases or fumes must be in compliance with Washington State and Northwest Air Pollution Control 813 Authority standards. (Ord. 91-075, 1991). 814 20.68.707 Liquid pollutants. 815 There shall be no off -site release to soil or surface drainage ways of water borne or liquid pollutants. (Ord. 91-075, 1991). 816 20.68.708 Appearance. 817 New facilities developed in the Bellingham Urban Growth Area shall be designed, constructed, operated, and maintained so 818 as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and such 819 uses shall not change the essential character of the same area. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 99-078, 1999). 820 20.68.709 Marijuana odor. 821 For indoor facilities no odor or smoke shall be emitted that is detectable at or beyond the walls of the facility, in such a 822 concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe upon 823 the use and enjoyment of neighboring use. The applicant shall install an exhaust system that is designed and constructed to 824 capture sources of contaminants to prevent spreading of contaminants or odors to other occupied parts of the building or 825 surrounding area. The system must be designed by a licensed Washington State professional engineer. (Ord. 2015-006 Exh. 826 A, 2015). 7�7_• ••• •___ •_ J• _ 131 (1) Stme Eavir-efffnental Paliey Aet (SEPA) feview shall be eendueted eansistefft with WGG Chai3teF 16.08. Fossil fuel 0�r 133 jii G9 �F a�the applieq-PA - ' _y.� 11 22 - ■ - :�_y - � • "'�:.i. �.,:,, ��:..,v � ■ .sue•:..,:.:, � � ..� • I � • L.ISiS+ ■ yi. i :..:i_ � Local mitieation of ereenh4 ons shall be required, whenever- calculated ereenhouse ea emissions above -the • •average Ilter:. 4vi i • (:)amThe .,;J.. A�ear+llr—Rj _ s■: i • i SEPA ■ • • pyy.. .. j: 70 other- reettlatop� mechanism. 171 (bjTjj�:Qounty may, upon request by the Applicant, approve a fee in lieu of imoviding a local mitigation imoje 172 The County shall use collected fees in liett of mitieation for loeal ereenhouse eas fnitieation imojec4s that aree Order- 12866(May 2013, . vis lr76 August RQ4A)=,jhe fee shall be golleeted anntfgRy=f2Lthe life of the fossil ftfel fogility or- &Ssil ftlel tr-anssbiP122� 177 *178 eja national or state greenhouse gas mitigation requirementsbe adopted that pre empts or-wou4d cause lSJ I IC 18 2 (CO2) emiss' — . n year. This deflot- figure alse Fepresents the value of dameige-s *184 htfos.-11!9io.uat=y2Ol7sflctoshot.epe.ciovlciimatechancie,lsociaI cost carbon Atmi. if the 11 23 887 888 889 890 891 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the proposed GHG provisions from the Zoning Code. 893 :s.;. ie a fossil f,ei refineries, fossil fuel ....,..sshi of. f,^:i:.:o. able f,oi .o� ,o 894 renewable fuel .-ansshor. f ^;i:.;es ff non ^:. o o ,,...W.. o .hied uses. Examples of no ^ ^;t., 895 iww-oveme-nts include, but are- not limited to: 896 () aeeessorx beildinRs. 897 ) ^ff^^ 898 (^) ,.afk 900 0 sec„~;..ems 901 0 st v w,.;ia;n 903 ) nv ,ala. v „;,.mefft,.,^;...o..^..^o laee or. safe. ,,, rades a -a efwir-, ftmenta in ,..,oments are ,.,4r ht eFfn:..^a 905 906 907 908 909 910 911 912 913 914 915 916 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and transshipment facilities from proposed WCC 20.68.802 above to the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code, where additional items have been inserted as permitted uses to address public comments. Additionally, the reference to GHG mitigation provisions in the Zoning Code has been deleted. 11 24 9,7 CHAPTER 20.74 CHERRY POINT INDUSTRIAL (CP) DISTRICT 918 20.74.010 Purpose. 919 The purpose of the Cherry Point Industrial District is to implement the policies of the Cherry Point Major Industrial Urban 920 Growth Area section of the Whatcom County Comprehensive Plan by establishing a range of land uses and types of 921 development appropriate for the Cherry Point UGA and to encourage large scale master planning of industrial sites to 922 preserve sites of sufficient size to accommodate major port and industrial development. (Ord. 98-083 Exh. A § 57, 1998). 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 20.74.020 Applicability. This chapter is applicable to the entire Cherry Point Major Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 20.74.030 Permitted uses. (1) Primary permitted uses: (a) Area south of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Heavy Impact Industrial District, Chapter 20.68 WCC, as well as large scale high technology businesses. (b) Area north of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Light Impact Industrial District, Chapter 20.66 WCC. (2) Secondary permitted uses shall include smaller scale industrial uses, nonretail commercial uses, and industry -related professional services, provided the secondary use supports or is supported by primary permitted uses in the Cherry Point Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 20.74.040 Accessory uses. Accessory uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.050 Conditional uses. Conditional uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.055 Prohibited uses. Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66), the Heavy pact Industrial District as applicable; (Chapter 20.68 WCC), and the following: Rationale for Changes (shown with highlighting): The Cherry Point Industrial District includes both the Heavy Impact Industrial and Light Impact Industrial zone. Therefore, both should be referenced. (1) New piers, docks, or wharves. (2) Conversion of Renewable Fuel Refinery or Renewable Fuel Transshipment Facilities to fossil fuel facilities is prohibited, except as allowed under WCC 20.74.115 and WCC 20.68.153. 949 20.74.060 Master site plan requirements. 950 (1) Development in the Cherry Point Industrial District requires the review and approval of a master site plan, including 951 SEPA review. Acceptable master site plans include site plans and supporting information submitted and approved for 952 applications for a building permit, a short subdivision, a preliminary plat, a binding site plan, a major project permit or a 953 planned unit development. 11 25 954 (2) The minimum area for a master site plan (planning block) shall be 160 acres, or the entire property under common 955 ownership if the common ownership is less than 160 acres. 956 (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 957 industrial activity; provided, that if the planning block is 40 acres or smaller, the requirement for the major industrial site 958 shall be waived. 959 (4) Within a planning block, one or more parcels smaller than 40 acres may be created for secondary uses 960 (5) Review and approved of a master site plan for a planning block shall be included in the approval of any building permit, 961 short subdivision, preliminary plat, binding site plan, major project permit or a planned unit development and shall be subject 962 to the same review and approval standards, including SEPA review, as the plat, binding site plan or permit. Each master site 963 plan shall identify, as appropriate, the proposed phasing of the development including the construction of public and private 964 facilities and utilities. The master site plan or supporting documentation as appropriate shall also include any mitigation 965 required under SEPA and the county critical areas ordinance. (Ord. 98-083 Exh. A § 57, 1998). 966 20.74.070 Minimum lot size and parcelization. 967 The minimum lot size in the Cherry Point Industrial District shall be 40 acres; provided, that lots less than 40 acres may be 968 permitted as follows: 969 (1) When the lots are to be located within a development approved as a major project under Chapter 20.88 WCC consistent 970 with the master site plan requirements in this chapter. 971 (2) When the lots are to be located within a development approved as a planned unit development under Chapter 20.85 WCC 972 consistent with the master site plan requirements of this chapter. 973 (3) When the lots are part of a short subdivision, long subdivision or binding site plan approved as consistent with the master 974 site plan requirements of this chapter. 975 (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 976 and will not interfere with the development of the primary large uses intended by the Comprehensive Plan. 977 (5) When an existing lot of record is less than 40 acres, provided further division is consistent with this section. (Ord. 98-083 978 Exh. A § 57, 1998). 979 20.74.080 Design standards. 980 Unless otherwise modified by this chapter, building height, setbacks, landscaping, open space and other building and site 981 design standards for areas south of Grandview Road shall be the same as those of the Heavy Impact Industrial District, 982 Chapter 20.68 WCC; and for the area north of Grandview Road, the same as those of the Light Impact Industrial District, 983 Chapter 20.66 WCC. (Ord. 98-083 Exh. A § 57, 1998). 984 20.74.090 Traffic demand management. 985 RCW 36.70A.365 requires the implementation of traffic demand management (TDM) programs for designating a Major 986 Industrial Urban Growth Area. Any employer in the Cherry Point Urban Growth Area that employs 100 or more full-time 987 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 12 988 continuous months during the year are required to meet the TDM requirements of Chapter 16.24 WCC. 989 (1) Employers located in Cherry Point who have not implemented a TDM program shall implement a TDM program by 990 December 1, 2011. 991 (2) Employers in Cherry Point meeting the criteria for having to complete a plan after December 1, 2011, shall meet the 992 requirements of this section within one year of having met the criteria. (Ord. 2009-071 § 2 (Exh. B), 2009). 993 20.74.100 Drainage. 994 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No 995 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019). 11 26 997 A ehanj4e of use oeeuFs when -the oeeuvaney of a buildine oF a site use ehanees from one e to anotheF in whole of in i3aft. A 999 This shall be proeessed as a —. e 1 permit 1001 (2)Lq`industrialith CP 1004 - - - - s. 1005 1006 1007 1008 1009 1010 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions above. Concerns have been expressed relating to the potential conversion of an existing refinery/transshipment facility into a crude oil transshipment facility (e.g. see Resolution 2019-037). The Planning Commission language for proposed WCC 20.68.153 addresses this potential situation by requiring a conditional use permit if shipping capacity of unrefined fossil fuels were to increase over a certain level. 1011 20.74.1 15 Change of Use of Renewable Fuels Facilities. 1012 A change of use of a Renewable Fuel Refinery or Renewable Fuel Transshipment Facilities to a fossil fuel facility inside the 1013 boundary of an existing legal fossil fuel refinery requires a conditional use permit subject to WCC 20.68.153. Other changes 1014 of use from Renewable Fuel Refinery or Renewable Fuel Transshipment Facilities to fossil fuel facilities are prohibited. 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 11 27 1028 CHAPTER 20.88 MAJOR PROJECT PERMITS 1029 20.88.100 Major project permits. 1030 .110 All major developments shall, prior to any construction, obtain a major project permit. 1031 .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 1032 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 motel/hotel 200 units Number of Employees 250 SEPA Review An EIS is required 1033 1034 In addition, the zoning administrator may make an administrative determination after receiving a recommendation from the 1035 technical review committee that any project be considered a major development, if in the opinion of the administration it is of 1036 a nature that council review would be appropriate. 1037 .130 Pursuant to WCC 22.05.120 the hearing examiner shall recommend to the county council project approval, approval 1038 with conditions, or denial, based upon written findings and conclusions supported by the evidence of record. The hearing 1039 examiner's recommendation and county council's decision shall determine the adequacy of a major project permit application 1040 based on the following criteria: 1041 (1) Will comply with the development standards and performance standards of the zone in which the proposed major 1042 development will be located; provided where a proposed major development has obtained a variance from the development 1043 and performance standards, standards as varied shall be applied to that project for the purposes of this act. 1044 (2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for 1045 the issuance of a conditional use permit for the zone in which the project is located. I[ X 1047 (3) Prior to commencement of any site preparation or construction activities, Wwill obtain, if required, a state aquatic lands 1048 lease, and all other necessary permits consultations and authorizations, including federal determinations that the project will 11 28 1049 not interfere with treaty fishing rights of tribal nations, the limits set forth in the "Magnuson Amendment" under 33 U.S.C. § 1050 476(b) (2004), Section 10 of the Rivers and Harbors Act (for structures in or over navigable waters of the U.S.), the Coastal 1051 Zone Management Act (including any state Department of Ecology shoreline conditional use or variance approval), the Clean 1052 Air Act, and/or under the Clean Water Act, including but not limited to a federal Section 404 authorization (for fill into 1053 waters of the U.S.) and a state Section 401 water quality certification, miof to issuanee of any site pFev aaticensaactio-fl- 1055 (4) Will not substantially interfere with the operation of existing uses. 1056 (5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as 1057 roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for 1058 such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the 1059 appropriate agency or division thereof. 1060 (6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and 1061 will not impose uncompensated costs on other property owned. 1062 (7) Will be appropriately responsive to any EIS prepared for the project. 1063 .140 In addition, the hearing examiner may recommend or county council may impose any reasonable conditions precedent 1064 to the establishment of the major development as may be required to mitigate impacts of the proposal on the natural 1065 environment of the county, and to protect the health, safety and general welfare of the people of the county consistent with 1066 the policies for environmental protection set forth in the Comprehensive Plan. The County decision maker may approve a 1067 major project permit with a condition to obtain relevant leases and complete any necessary federal and state permitting 1068 requirements, and may restrict the major project permittee from undertaking site preparation or construction activities until it 1069 has fulfilled that condition. 1070 .150 The hearing examiner may recommend or county council may also approve alternative mitigation plans for major 1071 project permits in accordance with WCC 16.16.260(E) which may be used to satisfy the requirements of Chapter 16.16 WCC 1072 and provide relief from the specific standards and requirements thereof. 1073 20.88.200 Procedure. 1074 .205 If a major project permit is determined to be required, an application shall be completed and filed along with the 1075 appropriate fees, and the application shall be processed in accordance with Chapter 22.05 WCC. A master plan is required as 1076 part of the application for a major project permit. The master plan document shall include all elements required per the 1077 department's administrative manual. 1078 .210 Development Standards. The mmajor project permit may propose standards that will control development of 1079 the possible future uses that are in addition to, or substitute for, requirements of this chapter. These may be such things as 1080 height limits, setbacks, frontage, landscaping requirements, parking requirements, signage, view corridors or facade 1081 treatments. Proposed standards that do not meet the minimum county standards must obtain the appropriate variance prior to 1082 county approval of the proposed standards. If the proposed design standards will apply to property located partially or totally 1083 within an urban growth area, concurrence of the affected city will be required. 1084 .215 Procedures. Master project permit review shall be conducted under current review procedures. Other land 1085 use reviews may be conducted concurrently with the master plan- project permit review. 1086 (a) Any modifications, additions or changes to an approved master plan are subject to the following: 1087 (i) Minor changes shall be reviewed for compliance and compatibility with the approved master- project 1088 permit. 1089 (aA determination is made by the director. The director is authorized to consult a technical committee at 1090 his/her discretion. 1091 (2) Minor changes are those amendments which may affect the dimensions, location and type of 1092 improvements of facilities; provided, the amendment maintains the basic character of the major project 1093 permit application approved by the county council including_ general type and location of dwellings and 1094 other land use activities, arrangement of buildings, density of the development, and provisions of the 11 29 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 project to meet density bonus and open space requirements, or capacity limits, and maintains required conditions or mitigation. (ii) Major changes shall be subject to the original procedural application type, subject to the fees as contained in the unified fee schedule. (iii) "���Major project permits may include, as a condition of their approval, a requirement for periodic progress reports and mandatory updates on a predetermined interval. Rationale for Changes (shown with highlighting): A master plan is one component of the major project permit. The procedures above should relate to the entire permit (not just one component of the permit). .220 through .265 Reserved. .270 Where a project requires a major project permit, that project shall be exempt from the requirement of obtaining a conditional use permit. .275 Major project permits: Where an applicant has applied for a planned unit development or a development agreement, that project shall be exempt from the requirement to obtain a major project permit except in the Cherry Point Industrial District. 1 1 10 .280 Major project permits in the Cherry Point Industrial District: where a project in the Cherry Point Industrial District 1 1 1 1 requires a major project permit, the major project permit shall be concurrently processed with other required land use permits 1 1 12 including but not limited to: , planned unit development; or development 1113 a>reement. 1114 1115 1116 1117 1118 1119 1120 1121 1122 1123 1124 1125 1126 1127 1128 Rationale for Changes (shown with highlighting): The master plan is part of a permit application (not a permit in itself). Additionally, when a major project permit is required, it is exempt from the conditional use permit (WCC 20.88.270 above). 11 30 1129 CHAPTER 20.97 DEFINITIONS 1130 Discussion/Notes: Definitions added are based on a review of federal (US Energy 1131 Information Administration, US Census, Code of the Federal Register, Revised Code of 1132 Washington), County Ordinance NO. 20 7 8-007, Resolution 20 7 9-004 and examples 1133 addressed in the White Paper. 1134 20.97.052.1 Change of Use 1135 "Change of use" means when a building or occupancy is altered or replaced, for example from manufacturing to office. 1136 Renumber Section 20.97.052.1 Child care facilities to 20.97.052.2 Child care facilities. 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The term "facility emissions" is no longer is used in the Zoning Code. Therefore, this definition has been moved to the County's SEPA rules, where it would be used. 20.97.160.2 Fossil Fuels. "Fossil fuels" include coal, petroleum, crude oil, natural gas, oil shales, bitumens, tar sands, propane, butane, and heavy oils. All contain carbon and were formed as a result of geologic processes acting on the remains of organic matter. Renewable fuels are not fossil fuels. Rationale for Changes (shown with highlighting): The U.S. Energy Information Administration defines "Petroleum" as: A broadly defined class of liquid hydrocarbon mixtures. Included are crude oil, lease condensate, unfinished oils, refined products obtained from the processing of crude oil, and natural gas plant liquids. Note: Volumes of finished petroleum products include non hydrocarbon compounds, such as additives and detergents, after they have been blended into the products. While crude oil is a type of petroleum, it might be useful to insert it in the definition so the reader can know that without going to another source. This would be consistent with the definition of "Fossil -Fuel Refinery" below, which specifically refers to crude oil. 11 31 1162 20.97.160.3 Fossil er Rene,..ebL Fuel Transshipment Facilities. 1 163 "Fossil Fuel Transshipment Facilitv" is a facilitv engaging nrimarilv in the process of off-loading e-f-fossil fuels 1 164 fine' mate -ials f efined or tinfefined, refiner,, f edstoek ,.a,,, is or by r,., auets from one transportation method (such as a 1 165 ship, truck, or railcar) faeirkiytand loading it onto another transportation method€aejl for the purposes of transporting the 1 166 fossil fuels„ ed� into ander out of Whatcom County. Examples of transp.rtatio F eili es inelude ship, tfuev 1 167 freieht . Fossil fiael t.anssh ent rn ilitiesfna�valso ; elude i3tmio and eamor-essef staff- ns and asseeiated f ,elides. This 1 168 definition shall include bulk storage or transfer facilities for the shipment of crude oil without refining or consuming within 1 169 the Cherry Point Industrial District and shall excludes Small Fossil or Renewable Storage and Distribution Facilities. 1170 1171 1172 1173 1174 Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.160.3 as shown above. Planning Commission also approved a motion to insert a separate definition of Renewable Fuel Transshipment Facilities (proposed WCC 20.97.350.4 below). 1175 20.97.160.4 Fossil -Fuel Refinery. 1 176 A "Fossil -Fuel Refinery" means a facility that converts crude oil and other liquids into petroleum products including but not 1 177 limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, lubricating oils, 1 178 and asphalt. Activities that support refineries include but are not limited to: bulk storage, manufacturing, or processing of 1 179 fossil fuels or byproducts. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. 1180 rss+:asss�sysxe sass er.:eers essms . rs��r . 1182 CavaeiW' is defined as total volume of all tanks at a f4eilivy and "Refininf4 Pr-odeefien C dRfinRde_s_�� :.y:. applieation- 1184 -�: 1186 1187 1188 1189 Rationale for Changes (shown with highlighting): "Fossil -Fuel Refinery Capacity" does not occur in the proposal. "Refinery Capacity" appeared one time (proposed WCC 20.68.801(2)(a)(ii)), but the Planning Commission recommends deleting this section of the proposal. Therefore, a definition is not needed. 1190 20.97.163 Greenhouse Gas Emissions 1191 "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," ",greenhouse gases," "GHG," 1192 and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, 1193 and an.. o� gas or gases designated by the federal clean air act (United States Code Title 42, Chapter 85),-Of state clean air 1 194 act (Chapter 70.94 RCW) or state limiting greenhouse gas emissions law (Chapter 70.235 RCW). 1195 Discussion/Notes: See RCW 70.235.0 7 0 and RCW 70.94.030 regarding State laws. 1 196 See also htti2s: //www.ega.ciovIghciemissions/overview-cireenhouse-ceases. 1197 20.97.201 Lifecycle Greenhouse Gas Emissions 1 198 "Lifecycle greenhouse gas emissions" means the aggregate quantity of greenhouse gas emissions (including direct emissions 1 199 and significant indirect emissions), related to the full fuel lifecycle, including all 1 stages of fuel and feedstock production and 1200 distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the 11 32 1201 ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming 1202 potential. 1203 Discussion/Notes: Considers a definition under the Clean Air Act. See: 1204 https: //www.el2a.gov/renewable-fuel-standard-program//ifecyc/e-analysis-greenhouse- 1205 _gas -emissions -under -renewable -fuel and 1206 httgs://www.govinfo.gov/content/i2kg/USCODE-20 7 0-title42/html/USCODE-2010- 1207 tit1e42-chap85.htm. 20.97.202_ ___ 1208 • "Liyinf4 waf4e" means the hour-ly rate that an ifidividual must earn to suppoi4stheir- family, if they m7e the sole pr-ovider- and aFe 1210 wor-king full time 090 hotif s per- year-). FoF the pttfposes of this defittition family inelUdes four- individu4s, 1214 weige t:eites, einel they effen set the heur-ly weige ei full time, yeeir- r-eund weFker- must eer-m 1216 tools living wage 1217 1218 1219 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the "living wage" job language from the conditional use permit approval criteria (proposed WCC 20.68.153). This term does not appear elsewhere in the proposal. 1220 20.97.230 Maximum Atmospheric Crude Distillation Capacity 1221 "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the 1222 atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is 1223 defined as the physical constraints of the atmospheric distillation process equipment as determined by a professional en ig neer 1224 licensed in the State of Washington and shall be measured in barrels per daL. 1225 NOTE: Renumber existing WCC 20.97.230 (definition of "May") to WCC 20.97.231. 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission approved a motion adding the above definition to the Zoning Code (the definition was proposed by industry). This term is used in proposed WCC 20.68.153. 20.97. 350.1 Renewable Biomass "Renewable biomass" includes but is not limited to the following: (1) Planted crops and crop residue harvested from agricultural land. (2) Planted trees and tree residue from a tree plantation. (3) Animal waste material and animal byproducts. (4) Slash and pre -commercial thinnings. 11 33 1236 (5) Organic matter that is available on a renewable or recurringbasis. asis. 1237 6 Alizae. 1238 (7) Separated yard waste or food waste, including recycled cookingaL grease. 1239 (8) Items 1 through 7 including any incidental, de minimis contaminants that are impractical to remove and are related to 1240 customary feedstock production and transport. 1241 Discussion/Notes: Adapted from based on federal renewable fuel definition, 1242 httgs://www.law.cornell.edu/cfr./text/40./80.740 7. 1243 20.97.350.2 Renewable Fuel 1244 "Renewable Fuel" means liquid fuels produced from renewable biomass and limited in terms of blending with fossil fuels. 1245 Common renewable fuels include ethanol and biodiesel: 1246 (1) "E85 motor fuel" means an alternative fuel that is a blend of ethanol and hvdrocarbon of which the ethanol portion is 1247 nominally seventy-five to eighty-five percent denatured fuel ethanol by volume that complies with the most recent version of 1248 American society of testing and materials specification D 5798. 1249 (2) "Renewable diesel' means a diesel fuel substitute produced from nonpetroleum renewable sources, including vegetable 1250 oils and animal fats, that meets the registration requirements for fuels and fuel additives established by the federal 1251 environmental Drotection aeencv in 40 Code of Federal Reeulations (C.F.R.) Part 79 (2009) and meets the reauirements of 1252 American society of testing and materials specification D 975. 1253 Rationale for Changes (shown with highlighting): Federal regulations may be amended over time. 1254 1255 (3) Renewable fuels shall include those designed to result in a lifecycle greenhouse gas emission reduction of at least 50% or 1256 more under the Federal Clean Air Act. Renewable fuels shall not include products produced from palm oil or other 1257 feedstocks that cannot be proven to reduce greenhouse gas emissions utilizing accepted methods of the Washington State 1258 Department of Ecology or US EPA. 1259 Discussion/Notes: A basic renewable fuel energy source is biomass. From biomass, 1260 common liquid fuel forms include ethanol and biodiesel. See: 1261 https://www.eia.ciov/energyexi2lained/?page=renewable home. 1262 Washington State defines renewable diesel and E85 motor fuel in the motor fuel 1263 quality act (Chapter 19.112 RCW), which are integrated in the definition. 1264 Limiting fossil fuel percentages to 5% is workable for buses and power cars. See 1265 http://www.cleanairtrust.org,/Differences-Between-E85-and-E95.htm1. E85 includes 15- 1266 25% fossil fuels and is used by flexibly fueled vehicles. See 1267 httl2s://www.fueleconomyaov/feg/flextech.shtml. 1268 Under the EPA renewable fuel standard, three of four renewable fuel categories must 1269 meet a 50% or 60% lifecycle greenhouse gas (GHG) reduction. A fourth conventional 1270 renewable ethanol must meet a 20% lifecycle GHG reduction. See: 1271 https://www.epa.gov/renewable-fuel-standard-program/overview-renewable-fuel- 1272 standard. 11 34 1273 20.97.350.3 Renewable Fuel Refinery 1274 A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small 1275 Fossil or Renewable Storage and Distribution Facilities. 1276 1277 20.97.350.4 Renewable Fuel Transshipment Facilities. 1278 1279 "Renewable Fuel Transshipment Facilitv" is a facility eneaeine primarily in the process of off-loadine renewable fuel from 1280 one transportation method (,such as a ship, truck, or railcar) and loading it onto another transportation method for the 1281 purposes of transporting the renewable fuel into and out of Whatcom County. This definition shall include bulk storage or 1282 transfer facilities for the shipment of renewable fuels without refining or consuming within the Cherry Point Industrial 1283 District and shall exclude Small Renewable Storage and Distribution Facilities. 1284 1285 1286 1287 1288 1289 1290 1291 1292 1293 Rationale for Changes (shown with highlighting): On August 13, 2020, the Planning Commission approved a motion to insert a new definition of Renewable Fuel Transshipment Facilities (it was previously combined with the definition of Fossil Fuel Transshipment Facilities). 20.97.425.1 Small Fossil or Renewable Fuel Storage and Distribution Facilities "Small Fossil or Renewable Fuel Storage and Distribution Facilities" means: (1) Equipment and buildings used for purposes of direct sale or distribution to consumers of fossil fuels or renewable fuels, or 1294 (2) Accessory equipment that supplies fossil fuels or renewable fuels to an onsite allowed commercial or industrial operation, 1 295 and that does not meet the definitions of fossil -fuel refinery, renewable fuel refinery, or fossil or renewable fuel 1 296 transshipment facilities. 1297 1298 1299 Rationale for Changes (shown with highlighting): Buildings may also be needed at small scale facilities. 1300 20.97.434.1 Technical committee. 1301 "Technical committee" or "technical review committee" means the designated representatives of the Whatcom County 1302 Planning and Development Services Director, who shall act as chairperson, the Whatcom County Public Works Director, and 1 303 the Whatcom County Health Department Director. 1304 1305 1306 1307 1308 11 35 1309 1310 Exhibit D 1311 CHAPTER 22.05 PROJECT PERMIT PROCEDURES 1312 22.05.020 Project permit processing table. 1 313 (1) Marked boxes in the table below indicate the required general steps for processing all project permit applications or 1 314 administrative actions. The requirements for each step listed in the top row of the table are provided in WCC 22.05.040 1 315 through 22.05.160, as indicated. Specific requirements for each project permit can be found through the references given in 1316 the table. Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see 2 Application Specific Required na Required Required Required Hearing Held By: Maker (see 22.05.1,160 Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Type 1 Applications (Administrative Decision with No Public Notice or Hearing) Boundary Line 21.03 Administrator Hearing Adjustment Examiner Building Permit 15.04 (fl Administrator Hearing Examiner (i) Natural Resource Title 16 Administrator Hearing Assessment Examiner ram' lad Bx-atttixer Commercial Site Administrator Hearing Plan Review Examiner Exempt Land 21.03 Administrator Hearing Division Examiner Floodplain Title 17 Administrator Hearing Development Examiner Permit Land Disturbance 15.04 and Administrator Hearing Permit 20.80 Examiner Lot of Record/Lot 20.83 and Administrator Hearing Consolidation 20.97.220 Examiner Nonconforming 20.83 Administrator Hearing Use Examiner Removal of 20.80.738(3) Development Moratorium Shoreline 23.60 (a) Administrator Hearing Exemption Examiner Zoning 22.20 Administrator Hearing 11 36 Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see Application Specific Required Hea Required Required Required Hearing Held By: Maker (see 22.051.160, Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) InterpretationI i i i i Examiner I Type II Applications (Administrative Decision with Public Notice; No Public Hearing) Administrative 20.84.235 Administrator Hearing Use Examiner Lot Consolidation 20.83.070 Administrator Hearing Relief Examiner Reasonable Use 16.16 Administrator Hearing (b) Examiner Shoreline 23.60 (a) Administrator Shorelines Substantial (c) (d) Hearings Board (h) Shoreline 23.60 (a) Administrator Hearing Conditional Use (d) Examiner (c) Short Subdivision 21.04 Administrator Hearing Examiner Type III Applications (Hearing Examiner Decision with Public Notice and Public Hearing) Conditional Use 20.84.200 Hearing Hearing Superior Court Examiner Examiner Floodplain Title 17 Hearing Hearing Superior Court Development Examiner Examiner Variance Long Subdivision 21.05 Hearing Hearing Superior Court Examiner Examiner (g) Binding Site Plan 21.07 Hearing Hearing Superior Court Examiner Examiner (g) Reasonable Use 16.16 Hearing Hearing Superior Court (e) Examiner Examiner Removal of 20.80.738(2) Hearing Hearing Superior Court Development Examiner Examiner Moratorium Shoreline 23.60 (a) Hearing Hearing Shorelines Conditional Use Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Substantial Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Variance Examiner Examiner (d) Hearings Board (h) Zoning or Critical 20.84.100 or Hearing Hearing Superior Court 11 37 Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see Application Specific Required Hea Required Required Required Hearing Held By: Maker (see 22.051.160, Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Areas Ordinance 16.16.270 Examiner Examiner Variance Type IV Applications (County Council Decision with Public Notice and Public Hearing) Development 2.11.205 Hearing County Superior Court Agreement Examiner Council Major Project 20.88 Hearing County Superior Court Permit Examiner Council Planned Unit 20.85 Hearing County Superior Court Development Examiner Council 1317 1318 Check marks indicate a step is required; reference letters refer to the notes in subsection (2) of this section. 1 319 Discussion/Notes: Scrubbing the Existing Code for consistency with new provisions and 1320 desired review process. 1321 1322 1323 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions of WCC 20.74.110. Therefore, the "Change of Use" permit type is no longer needed. 1324 22.05.1 10 Final decisions — Type I, II, and III auulications. 1325 (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 1326 permit. The determination or permit may be granted subject to conditions, modifications, or restrictions that are necessary to 1327 comply with all applicable codes. 1328 (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) 1329 shall either grant or deny the application or appeal. 1330 (a) The hearing examiner may grant Type III applications subject to conditions, modifications or restrictions that the 1331 hearing examiner finds are necessary to make the application compatible with its environment, carry out the objectives 1332 and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and objectives 1333 of Whatcom County. 1334 (b) Requirements: 1335 (i) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to ensure 1336 compliance with the conditions, modifications and restrictions. 1337 60 Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 1338 provide insurance or other financial assurance acceptable to the prosecutingattorney torney consistent with Section 1339 22.05.125. 1340 (c) The hearing examiner shall render a final decision within 14 calendar days following the conclusion of all testimony 1341 and hearings. Each final decision of the hearing examiner shall be in writing and shall include findings and conclusions 1342 based on the record to support the decision. 11 38 1 343 (d) No final decision of the hearing examiner shall be subject to administrative or quasi-judicial review, except as 1 344 provided herein. 1 345 (e) The applicant, any person with standing, or any county department may appeal any final decision of the hearing 1 346 examiner to superior court, except as otherwise specified in WCC 22.05.020. (Ord. 2019-013 § 1 (Exh. A); Ord. 2018- 1 347 032 § 1 (Exh. A)). 1348 22.05.120 Recernmended Recommendations and final decisions , Type 1349 IV applications 1350 (1) For Type IV applications per WCC 22.05.020 the hearing examiner's recommendations to the county council may be to 1351 grant, grant with conditions or deny an application. The hearing examiner's recommendation may include conditions, 1352 modifications or restrictions as may be necessary to make the application compatible with its environment, carry out the 1353 objectives and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and 1354 objectives of Whatcom County. 1355 (2) Each recommended decision of the hearing examiner for an application identified as a Type IV application per WCC 1356 22.05.020 shall be in writing to the clerk of the county council and shall include findings and conclusions based upon the 1357 record to support the decision. Such findings and conclusions shall also set forth the manner in which the decision carries out 1358 and conforms to the county's comprehensive plan and complies with the applicable statutes, ordinances or regulations. 1359 (3) The deliberation of the county council on quasi-judicial actions shall be in accordance with WCC 22.05.090(4) and 1360 Chapter 42.36 RCW. 1361 (4) For planned unit developments and major project permits the following shall apply: 1362 (a) The recommendation of the hearing examiner regarding planned unit developments and major project permits shall 1363 be based upon the criteria set forth in WCC 20.85.335 and 20.88.130, respectively. 1364 (b) The hearing examiner shall file the recommendation with the clerk of the county council within 21 calendar days 1365 following the conclusion of the open record hearing. 1366 (c) The county council shall conduct the following within the specified time frames, except as provided in subsection 1367 (4)(c)(iii) of this section: 1368 (i) Hold a public meeting, not an open record public hearing, to deliberate on the project application within 28 1369 calendar days after receiving the hearing examiner's recommendation. 1370 (ii) Issue a final written decision within 21 calendar days of the public meeting. 1371 (iii) The county council may exceed the time limits in subsection (4)(c)(i) or (ii) of this section if the county council 1372 meeting schedule does not accommodate a meeting within the above time frames, or if the county council makes 1373 written findings that a specified amount of additional time is needed to process a specific application or project 1374 type, per RCW 36.70B.080(1). 1375 (5) The county council's final written decision may include conditions when the project is approved and shall state the 1376 findings of fact upon which the decision is based. 1377 (a) Performance bonds or other securityy, acceptable to the prosecutingattorney, torney, may be required to ensure compliance 1378 with the conditions, modifications and restrictions. 1 379 (b) Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 1380 provide insurance or other financial assurance acceptable to the prosecutingattorney consistent with Section 22.05.125. 1 381 (6) Any deliberation or decision of the county council shall be based solely upon consideration of the record established by 1382 the hearing examiner, the recommendations of the hearing examiner and the criteria set forth in ^^ue applicable state 1 383 county code, the county comprehensive plan if applicable, and the county shoreline management 1 384 program, including but not limited *^ compliance with SEPA. WAC 197-11 (SEPA Rules) as adonted and modified in the 1 385 county code, and the county's adopted SEPA policies. (Ord. 2018-032 § 1 (Exh. A)). 1386 11 39 1387 1388 011-TIN 1390 1391 1392 1393 1394 1395 1396 1397 1398 1399 1400 1401 1402 1403 1404 1405 1406 1407 1408 1409 1410 1411 1412 1413 1414 1415 1416 1417 Rationale for Changes (shown with highlighting): Other parts of the proposal require that state permits be obtained. However, that is different than the County Council or hearing examiner evaluating criteria in state laws and regulations. It's the applicable state agency's job to evaluate state criteria, determine if those criteria are met, and then issue the permit. A copy of that permit can then be submitted to the County. 22.05.125 Proof of insurance for hazards created in the County Permit applicant to provide proof of insurance naming Whatcom County as additional insured for any of the following that require a conditional use permit or major project permit: (1) Expansion of existing fossil fuel refinery or existing fossil fuel transshipment facility; (2) Expansion of or new renewable fuel refinery or renewable fuel transshipment facility. Rationale for Changes (shown with highlighting): On November 14, 2019 and June 25, 2020, the Planning Commission approved motions inserting the insurance language above. The Planning Commission recommended deleting the insurance language below from the original Council proposal. 1418 ' 1419market. We suggest telking 1420 1421 1422 1423 company cei-pei=afe gueti-einfee or etheF financial assui-eince acceptable to the County 1424 11 40 1425 1427 izetheF then specifying en efneunt here. ._ Policy Policy1429 dedtietible or- self instifed retention amount applieable to the i3ohey, with a r-ieht of r-eimbuFsement by the insured . 1430 such payment made by the insuFeF. if the 1433 R 1435 (b) Caneellation of the -insufance, whether by the insufer, the lastwed, or- other entity havin,;4 an in able interest in . . will - ti n�ai7' 1437 written notice and only after- the expiration of 60 days after a copy of stich wFitten notice is received by the 1439 (6) Bankfuptev: BankRmtev ar- insolvency of -the insufed shall not r-elieve the insurer- of its abliea4ions un Poliev shall -not spegiftibat the laws of a state other- than the State of Washington h, 1441 in the event of any dispute r-eear-dine the validity or- formatiOn of the Poliev or- the meanine, intefor-etation or- opefation-af 1442 tmn, condition, definition orpr-ovision of the Policy. Policies may remain si4ent on choice of law and fo 1443 aTJ-insufance Commay FinancialRating:-exeeed a Financial- -R1444 ftom A.M. Best of "A" (Exceilent) with a minimum Financial Size Gate�-,of-,- Yof - Definitions:I and "Stable" or- stfonger-�� Or 1446 (9)r�-For- pumoses of this section, tefms are defined as follo.- 1447 - -,.yi.....-and- 1449 (t,) Less shall ; ,.t,,,to. 1 450 (i) monetary -awards -^orsettle ents-erc^�^mix�icnaix�^vi'�-Rimiu . 1451 ;i) w-he fe all ,... le by law, :.;, v exemi3lafy,E)F ffFaltiple ,t.,r,., 1 452 (Hireiyil fines, penalties, or assessm:cros 1453 e) Pollution , r,t;.:, ns shall ; ,.Wde ,t;..,.ha o ,t; o ..t release or o o ,.todif b. , Are , o t s:,.. fa ra 1454 licittid, easeous - thermal irritantor- contaminant, .n,,.t,,,t:. but not limited t o.-olea n hydrocarbons, ons smoke, 1456 a) c,,,ade tt,,.:on , .,,bons may be defined by reaso able time limits c this,,. a r ,.._t: .o the : 1457 e) T- -ans ,.i4atio fneans movement b any ehieto , ode of transit ; ,.t„a:r bot r . limited *,..,,,.,.m, bile ....,,.v 1458 watereraft, as well as and is inelusive of loadine, temporary i3laeement dtirinR transit pfior to final dell---.. 1459 1460 �'rrin nccrnzcuzvracriycry co-aa-i.-iirirrccaziccnicy 1462 11 41 August 14, 2020 Whatcom County Council 311 Grand Avenue, Suite 105 Bellingham, WA 98225 Cherry Point Amendments — Planning Commission Minority Opinion County Council Members I want to first thank the community, staff and commission members for the work that has been put into improving the Comprehensive Plan Amendments. I believe we came a long way in compromise from what was originally proposed and what effected industry sees as workable regulations. That said, I still cannot support the amendments. Changes in our county regulations and land use policy should show obvious benefit to our community. And while the intentions of environmental improvement and job security at Cherry Point are good, these amendments by their nature will have the opposite effect. The proposed amendments to the Comprehensive Plan are a substantial shift from historical priorities on land use and will undoubtedly have impacts on the current and future health of our county. These impacts deserve thorough review. Environmental: Global greenhouse gas emissions are not reduced by limiting local production of fossil fuels. Unchanged demand will likely shift production to facilities with lower efficiency and environmental standards, increasing global emissions. GHG reduction can only be accomplished through a reduction in consumption of fossil fuels. If the goal of these amendments is to reduce GHG emissions, a full environmental review to quantify these benefits should be expected. Economic: Planning goals stated by the Growth Management Act require both environmental protection as well as economic development — specifically to promote the retention and expansion of existing businesses. Regulatory burden and uncertainty of permit approval increases risk when evaluating investment prospects and threatens the long-term sustainability of existing industry. Projects offering economic opportunity to our county will likely pass without us ever knowing, including renewable fuel developments. Legality: The current amendments guarantee legal challenge, costing taxpayers while taking time and resources away from staff. Areas of concern include: Violation of the Takings Clause — 5th Amendment US Constitution — WA State Constitution Equal Protections Clause — US Constitution — WA State Constitution Due Process — Pertaining to property rights — US Constitution — WA State Constitution Commerce Clause US Constitution Gives inappropriate authority to the county, attempting to enforce State and Federal Laws Conflicts with our own Planning Goals as required by the GMA I strongly recommend the County Council postpone the passage of the Cherry Point Comprehensive Plan and Code Amendments until a sufficient Environmental Impact Study, Economic Impact Study, and Legal Liability Review have been evaluated. These actions will come at a cost to our community while the benefit is unknown. Encouraging these industries to thrive locally, under their already strict environmental standards, is best not only for our county's economy but for the global environment. Jon Maberry WHATCOM COUNTY Mark Personius, AICP Planning & Development Services Director 5280 Northwest Drive Bellingham, WA 98226-9097 360-778-5900, TTY 800-833-6384 360-778-5901 Fax SEPA Distribution List SEP2019-00083 Date of Re -Issuance: July 28, 2020 Please review this determination. If you have further comments, questions or would like a copy of the SEPA checklist, phone the responsible official at (360) 778-5900. Please submit your response by the comment date noted on the attached notice of determination. WA State Department of Archaeology and Historic Preservation via email - Gretchen Kaehler, gretchen.kaehler@dahp.wa.gov SEPA Unit, WA State Department of Ecology, Olympia via email - sepaunit@ecy.wa.gov WA State Department of Fish and Wildlife via email - Joel Ingram, joel.ingram@dfw.wa.gov WA State Department of Natural Resources via email - Rochelle Goss, sepacenter@dnr.wa.gov Brenda Werden, Brenda.werden@dnr.wa.gov SEPA Unit, WA State Department of Transportation, Burlington via email - Roland Storme, stormer@wsdot.wa.gov Ray McEwan, mcewanr@wsdot.wa.gov Randel Perry, US Army Corps of Engineers via email - Randel.J.Perry@usace.army.mil City of Blaine Michael Jones, AICP via email - mjones@cityofblaine.com City of Bellingham Kurt Nabbefeld via email - knabbefeld@cob.org Brent Baldwin via email - bbaldwin@cob.org Clare Fogelsong via email - cfogelsong@cob.org City of Ferndale Jori Burnett via email - joriburnett@cityofferndale.org Lummi Nation Natural Resources Merle Jefferson, Sr. via email - merlej@lummi-nsn.gov Tamela Smart via email - tamelas@lummi-nsn.gov SEPA Distribution List Page 1 of 1 PL4-83-005D Rev July 2013 Nooksack Indian Tribe George Swanaset, JR via email - george.swanasetjr@nooksack-nsn.gov Trevor Delgado via email - tdelgado@nooksack-nsn.gov Suquamish Indian Tribe via email - aleigh@suquamish.nsn.us Swinomish Indian Tribal Community via email - bcladoosby@swinomish.nsn.us Tulalip Tribe via email - tbrewer@tulaliptribes-nsn.gov Whatcom County PUD No. 1 via email - stevej@pudwhatcom.org Birch Bay Water & Sewer District via email - dan@bbwsd.com Point Roberts via email - All Points Bulletin editor@allpointbulletin.com Whatcom County Council via email - council()whatcomcounty.us Foster Pepper Richard Settle via email - Richard.settle@foster.com Stoel Rives LLP Patrick Mullaney via email- patrick.mullaney@stoel.com Arnold & Porter Peggy Otum via email - Pegay.Otum(aOarnoldporter.com Petrogas West, LLC Amanda Lund via email - LundA@LanePowell.com Phillips 66 Tim Johnson via email - Tim.d.johnson@p66.com WSPA Holli Johnson via email - hjohnson@wspa.org BP Cherry Point Pam Brady via email - Pamela.Brady@bp.com WHATCOM COUNTY Mark Personius, AICP Planning & Development Services Director 5280 Northwest Drive Bellingham, WA 98226-9097 360-778-5900, T Y 800-833-6384 360-778-5901 Fax SEPA Determination of Nonsignificance (DNS) File: SEP2019-00083 Project Description: A proposed non -project action to amend the 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. The scope of environmental review includes two proposals: Whatcom County Resolution #: 2019-037 which incorporates recommendations from the Cascadia Law Group's February 23, 2018 report to the Whatcom County Council and the Planning Commission's draft amendments. A copy of Whatcom County Resolution #: 2019-037 and the Planning Commission's draft recommendations can be found on the Whatcom County website at www.whatcomcounty.us/2914/Public-Notice. Proponent: Whatcom County Council - Contact: Cathy B. Halka, AICP Address and Parcel #: Cherry Point Urban Growth Area Lead Agency: Whatcom County Planning & Development Services Zoning: HII/LII Comp Plan: Major/Port Industrial UGA Shoreline Jurisdiction: Cherry Point Management Area The lead agency for this proposal has determined that with proper mitigation, no significant adverse environmental impacts are likely. Pursuant to RCW 43.21C.030(2)(c), an environmental impact statement (EIS) is not required. This decision was made following review of a completed SEPA environmental checklist and other information on file with the lead agency. This information is available to the public on request. There is no comment period for this DNS. X Pursuant to WAC 197-11-340(2), the lead agency will not act on this proposal for 14 days from the date of issuance indicated below. Comments must be received by 4:00 p.m. on August 11, 2020 and should be sent to: Matt Aamot, m a a mot@whatcomcou nty. us. Responsible Official: Mark Personius, mpersoni@whatcomcounty.us Title: Director Telephone: 360-778-5900 Address: 5280 Northwest Drive Bellingham, WA 98226 Date of Issuance: July 28, 2020 Signature: An aggrieved agency or person may appeal this determination to the Whatcom County Hearing Examiner. Application for appeal must be filed on a form provided by and submitted SEPA Determination of Nonsignificance (DNS) Page 1 of 2 PL4-83-005E REV October 2012 to the Whatcom County Current Planning Division located at 5280 Northwest Drive, Bellingham, WA 98226, during the ten days following the comment period, concluding Au ust 21, 2019. You should be prepared to make a specific factual objection. Contact Whatcom County Current Planning Division for information about the procedures for SEPA appeals. SEPA Deterrninaliun of Nonsignificance (DNS) Page 2 of 2 PL4-83-005E REV October 2012 WHATCOM COUNTY Mark Personius, AICP Planning & Development Servicestloll-% Director 5280 Northwest Drive Bellingham, WA 98226-9097 360-778-5900, TTY 800-833-6384 360-778-5901 Fax SEPA Determination of Nonsignificance (DNS) Legal Notice To be published one time only on: July 28, 2020 CHARGE TO: Whatcom County Planning & Development Services 5280 Northwest Drive Bellingham, Washington 98226 Acct #451232 WHATCOM COUNTY GIVES PUBLIC NOTICE THAT THE FOLLOWING SEPA THRESHOLD DETERMINATION OF NON -SIGNIFICANCE (DNS) HAS BEEN ISSUED TODAY SUBJECT TO THE 14 DAY COMMENT PERIOD CONCLUDING ON, AUGUST 11, 2020. File: SEP2019-00083 Project Description: A proposed non -project action to amend the 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. The scope of environmental review includes two proposals: Whatcom County Resolution #: 2019-037 which incorporates recommendations from the Cascadia Law Group's February 23, 2018 report to the Whatcom County Council and the Planning Commission's draft amendments. A copy of Whatcom County Resolution #: 2019-037 and the Planning Commission's draft recommendations can be found on the Whatcom County website at www.whatcomcounty.us/2914/Public-Notice. Proponent: Whatcom County Council- Contact: Cathy B. Halka, AICP Address and Parcel #: Cherry Point Urban Growth Area Lead Agency: Whatcom County Planning & Development Services Zoning: HII/LII Comp Plan: Major/Port Industrial UGA Shoreline Jurisdiction: Cherry Point Management Area ANY PERSON OR AGENCY MAY APPEAL THE COUNTY'S COMPLIANCE WITH WAC 197-11 BY FILING AN APPEAL WITH THE WHATCOM COUNTY PLANNING AND DEVELOPMENT SERVICES LOCATED AT 5280 NORTHWEST DRIVE, BELLINGHAM, WA 98226. APPEALS MUST BE MADE WITHIN 10 DAYS AFTER THE END OF THE COMMENT PERIOD. SEPA Legal Notice - Determination of Nonsignificance (DNS) Page 1 of 1 PL4-83-005F REV October 2012 WHATCOM COUNTY Planning & Development Services 5280 Northwest Drive Bellingham, WA 98226-9097 360-778-5900,TTY 800-833-6384 360-778-5901 Fax REVISED 07/17/2020 Purpose of Checklist: Mark Personius, AICP Director Y SEP 2019 - 00083 SEPA Environmental Checklist Governmental agencies use this checklist to help determine whether the environmental impacts of your proposal are significant. This information is also helpful to determine if available avoidance, minimization or compensatory mitigation measures will address the probable significant impacts or if an environmental impact statement will be prepared to further analyze the proposal. Instructions for Applicants: This environmental checklist asks you to describe some basic information about your proposal. Please answer each question accurately and carefully, to the best of your knowledge. You may need to consult with an agency specialist or private consultant for some questions. You may use "not applicable" or "does not apply" only when you can explain why it does not apply and not when the answer is unknown. You may also attach or incorporate by reference additional studies reports. Complete and accurate answers to these questions often avoid delays with the SEPA process as well as later in the decision -making process. The checklist questions apply to all parts of your proposal, even if you plan to do them over a period of time or on different parcels of land. Attach any additional information that will help describe your proposal or its environmental effects. The agency to which you submit this checklist may ask you to explain your answers or provide additional information reasonably related to determining if there may be significant adverse impact. Use of Checklist for Non -Project Proposals: For non -project proposals (such as ordinances, regulations, plans and programs), complete the applicable parts of sections A and B plus the Supplemental Sheet for Non -project Actions (Part Q. Please completely answer all questions that apply and note that the words "project", "applicant", and "property or site" should be read as "proposal", "proponent" and "affected geographic area", respectively. The lead agency may exclude (for non -projects) questions in Part B - Environmental Elements that do not contribute meaningfully to the analysis of the proposal. Reviewed by initials 07/21/2020 SEPA Environmental Checklist Page 1 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant A Background 1 Name of proposed project, if applicable: Cherry Point UGA Comprehensive Plan and Zoning Code Amendments 2 Name of applicant: Whatcom County Council Applicant phone number: 360-778-5010 Applicant address: 311 Grand Avenue, Suite 105 City, State, Zip or Postal Code: Bellingham, WA 98225 Applicant Email address: council@comhatcomma.us 3 Contact name: Cathy B. Halka, AICP Contact phone number: 360-778-5010 Contact address: 311 Grand Avenue, Suite 150 City, State, Zip or Postal Code: Bellingham, WA 98225 Contact Email address: chalka@co.whatcom.wa.us Evaluation For Agency Use Only 4 Date checklist prepared: August 20, 2019 Updated July 17, 2020 5 Agency requesting checklist: Whatcom County 6 Proposed timing or schedule (including phasing, if applicable): Recommendations by the Planning Commission to the County Council are expected in Summer 2020 and final County Council action is expected in Fall 2020. 7 Do you have any plans for future additions, expansion, or further activity related to or connected with this proposal? Yes ❑ No 0 If yes, explain: 8 List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal: The environmental documents listed in the attached 'Cherry Point Amendments SEPA Checklist - Supporting Documents Incorporated by Reference' are relevant to this proposal and are hereby incorporated by reference. 9 Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? Yes ❑ No �✓ If yes, explain. Reviewed by initials tA`6-- 07/21/2020 SEPA Environmental Checklist Page 2 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only 10 List any government approvals or permits that will be needed for your proposal, if known. The Whatcom County Council and Whatcom County Planning Commission, following an extensive public review process, are considering a range of alternative amendments to the Comprehensive Plan and County development regulations related to the Cherry Point Industrial area and other areas of the County. Recommendations by the Planning Commission to the County Council are expected in Summer 2020 and final County Council action is expected in Fall 2020. A summary of the range of proposed amendments is described in Section 11 below. Adoption of an ordinance by the Whatcom County Council is required for approval of the amendments. 11 Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. (Lead agencies may modify this form to include additional specific information on project description.) See additional information attached. 12 Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range, if known. If a proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit applications related to this checklist. The proposed amendments cover all areas in Whatcom County, including the Heavy Impact Industrial and Light Impact Industrial Districts, with primary effect on the Cherry Point Industrial District. New SEPA provisions apply county -wide. Responses pertaining to questions pertaining the nature of the site will focus on the Cherry Point Industrial District. Reviewed by initials 07/21/2020 SEPA Environmental Checklist Page 3 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant B Environmental Elements 1 Earth a. General description of the site: ❑✓ Flat ❑✓ Rolling ❑✓ Hilly ❑✓ steep slopes ❑ Mountainous ❑ Other Evaluation For Agency Use Only b. What is the steepest slope on the site (approximate percent slope)? Vertical bluffs along the coastline, 3-8% slopes in other areas c. What general types of soils are found on the site (for example, clay, sand, gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any agricultural land of long-term commercial significance and whether the proposal results in removing any of these soils. There are various soil types throughout the Cherry Point UGA including silt loam, silt clay loam, loess and volcanic ash, and glaciomarine drift. d. Are there surface indications or history of unstable soils in the immediate vicinity? Yes ❑✓ No ❑ If so, describe. There are naturally eroding bluffs along the coastal shore. e. Describe the purpose, type, total area, approximate quantities and total affected area of any filling excavation or grading proposed. N/A: non -project Indicate source of fill. N/A: non -project Indicate were excavation material is going. N/A: non -project Reviewed by initials �JA`,5— 07/21/2020 SEPA Environmental Checklist Page 4 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only f. Could erosion occur as a result of clearing, construction, or use? Yes[] ❑X No If so, generally describe. N/A: non -project g. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? N/A: non -project h. Proposed measures to reduce or control erosion, or other impacts to the earth, if any: N/A: non -project 2. Air a. What types of emissions to the air would result from the proposal during construction, operation and maintenance when the project is completed (i.e., dust, automobile, odors, or industrial wood smoke)? N/A: non -project If any, generally describe and give approximate quantities if known. N/A: non -project b. Are there any off -site sources of emissions or odor that may affect your proposal? Yes ❑ No ❑x If so, generally describe. N/A: non -project c. Proposed measures to reduce or control emissions or other impacts to air, if any: See additional information attached. Reviewed by initials �,]W— 07/21/2020 SEPA Environmental Checklist Page 5 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant 3. Water a. Surface: Evaluation For Agency Use Only (1) Is there any surface water body on or in the immediate vicinity of the site (including year-round and seasonal streams, saltwater, lakes, ponds, Wetlands)? Yes ❑✓ No ❑ If yes, describe type and provide names. If appropriate, state what stream or river it flows into. The Cherry Point UGA abuts the Strait of Georgia to the west and to the east is Lake Terrell. Wetlands are scattered throughout the Cherry Point area. (2) Will the project require any work over in, or adjacent to (within 200 feet) the described waters? Yes M No ❑✓ If yes, please describe and attach available plans. (3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. N/A: non -project Indicate the source of fill material. N/A: non -project (4) Will the proposal re uire surface water withdrawals or diversions? Yes ❑ No M✓ N/A: non -project Give general description, purpose, and approximate quantities if known. N/A: non -project Does the proposal lie within a 100-year floodplain? Yes ❑ No 0 If so, note location on the site plan. Reviewed by initials 14A`6- 07/21/2020 SEPA Environmental Checklist Page 6 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only (5) Does the proposal involve any discharges of waste materials to surface waters? Yes ❑ No ❑✓ If so, describe the type of waste and anticipated volume of discharge N/A: non -project b. Ground Water: (1) Will ground water be withdrawn from a well for drinking water or other purposes? Yes ❑ No ❑✓ If so, give a general description of the well, proposed uses and approximate quantities withdrawn from the well. Will water be discharged to groundwater? Give general description, purpose, and approximate quantities if known. N/A: non -project (2) Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: Domestic sewage; industrial, containing the following chemicals.....; agricultural; etc.). Describe the general size of the system, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. N/A: non -project c. Water runoff (including stormwater): (1) Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if known). N/A: non -project Reviewed by initials �Jk,6— 07/21/2020 SEPA Environmental Checklist Page 7 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only Where will this water flow? N/A: non -project Will this water flow into other waters? Yes ❑ No ❑ If so, describe. (2) Could waste materials enter ground or surface waters? Yes ❑ No ❑✓ If so, generally describe. N/A: non -project (3) Does the proposal alter or otherwise affect drainage patterns in the vicinity of the site: Yes ❑ No 0 If so, describe. N/A: non -project d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: N/A: non -project 4 Plants a. Check types of vegetation found on the site: ❑✓ Deciduous tree: alder, maple, aspen, other ❑✓ Evergreen tree: fir, cedar, pine, other ❑✓ Shrubs ❑✓ Grass ❑✓ Pasture ❑ Crop or grain ❑ Orchards, vineyards or other permanent crops 0 Wet soil plants: cattail, buttercup, bullrush, skunk cabbage, other ❑✓ Water plants: water lily, eelgrass, milfoil, other ❑✓ Other types of vegetation Reviewed by initials �,JA`c5-- 07/21/2020 SEPA Environmental Checklist Page 8 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only b. What kind and amount of vegetation will be removed or altered? N/A: non -project c. List threatened or endangered species known to be on or near the site. Southern Resident Killer Whale and bocaccio rockfish, canary and yelloweye rockfish, Chinook salmon,marbled murrelet, and steelhead trout d. Proposed landscaping, use of native plants, or other measures to preserve or enhance vegetation on the site, if any: N/A: non -project e. List all noxious weeds and invasive species known to be on or near the site. N/A: non -project 5. Animals a. Check any birds and animals, which have been observed on or near the site or are known to be on or near the site: Birds: ✓ Hawk, ✓ Eagle, ❑✓ Other: see below Mammals: ❑✓ Deer, Elk, ✓ Other: Fish: ❑ Bass, ✓ Trout, ✓ Shellfish; ❑✓ Heron, ❑ Songbirds; H Bear, Beaver; ❑✓ Salmon, ✓ Herring, ✓ Other: see below b. List any threatened or endangered species known to be on or near the site. The Cherry Point Environmental Aquatic Reserve Management Plans (2010, 2017) identify endangered species including the Southern Resident Killer Whale and bocaccio rockfish. Canary and yelloweye rockfish are listed as threatened, as well as Chinook salmon, marbled murrelet, and steelhead trout. SEPA Environmental Checklist Form PL4-83-005A Reviewed by initials �,In6-_ 07/21/2020 Page 9 of 20 January 2019 To Be Completed Evaluation For By Applicant Agency Use Only c. Is the site part of a migration route? Yes ® NoEl If so, explain. The Cherry Point UGA is a migration point for the marbled murrelet, surf scoter, and other birds. It is also a migration route for killer whales. d. Proposed measures to preserve or enhance wildlife, if any: See additional information attached. e. List any invasive species known to be on or near site. The Cherry Point Environmental Aquatic Reserve Management Plans (2010, 2017) identify nonnative species such as the European Green Crab (Carcinus maenas) and brown algae (Sargassum) 6. Energy and Natural Resources a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufacturing, etc. See additional information attached. b. Would your project affect the potential use of solar energy by adjacent properties? Yes F-] No FX If so, generally describe. N/A: non -project c. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: See additional information attached. 7. Environmental Health a. Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste that could occur as a result of this proposal? Yes ® No If so, describe. See additional information attached. (1) Describe any known or possible contamination at the site from present or past uses. Legacy sources of contamination from historic, unregulated industrial waste exist on uplands adjacent to the Cherry Point Aquatic Reserve (CPAR). Birch Bay Sewage treatment Plant discharges into the Reserve. Reviewed by initials �,JA°t5-_ 07/21/2020 SEPA Environmental Checklist Page 10 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only (2) Describe existing hazardous chemicals/conditions that might affect project development and design. This includes underground hazardous liquid and gas transmission pipelines located within the project area and in the vicinity. N/A: non -project (3) Describe any toxic or hazardous chemicals that might be stored, used, or produced during the projects development or construction, or at any time during the operating life of the project. N/A: non -project (4) Describe special emergency services that might be required. N/A: non -project (5) Proposed measure to reduce or control environmental health hazards, if any: N/A: non -project b. Noise (1) What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? N/A: non -project (2) What types and levels of noise would be created by or associated with the project on a short-term or a long-term basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come from the site. N/A: non -project (3) Proposed measures to reduce or control noise impacts, if any: N/A: non -project Reviewed by initials 14,,,5-- 07/21/2020 SEPA Environmental Checklist Page 11 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant 8 Land and Shoreline Use Evaluation For Agency Use Only a. What is the current use of the site and adjacent properties? Heavy impact industrial and light impact industrial uses in the Major/Port Industrial UGA Will the proposal affect current land uses on nearby or adjacent properties? Yes �✓ No ❑ If so, describe. One intention of the new code is to be consistent with the CPAR Management Plan and to protect marine resources that are currently threatened or endangered. b. Has the project site been used as working farmlands or working forest lands? Yes �✓ No ❑ If so, describe. Current users maintain small areas of forests and farmlands. How much agriculture or forest land of long-term commercial significance will be converted to other uses as a result of the proposal, if any? N/A: non -project If resource lands have not been designated, how many acres in farmland or forest land tax status will be converted to non -farm or non -forest use? N/A: non -project (1) Will the proposal affect or be affected by surrounding working farm or forest land normal business operations, such as oversize equipment access, the application of pesticides, tilling and harvesting? Yes ❑ No �✓ If so, how: c. Describe any structures on the site. Major developments with many structures related to power generation, fuel refining, tank storage, and aluminum smelting, all with rail and port access (3 piers). In additional there are structures that serve as storage and distribution facilities for bulk shipments of LPG by railcar, tank truck, pipeline, and ship. DNR's CPAR restricts additional leases for piers and the new code is consistent with this. Reviewed by initials t-JA� 07/21/2020 SEPA Environmental Checklist Page 12 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant d. Will any structures be demolished? If so, what? Yes ❑ No ❑✓ e. What is the current zoning classification of the site? Heavy Impact Industrial, Light Impact Industrial Evaluation For Agency Use Only f. What is the current comprehensive plan designation of the site? Major Port, Industrial UGA g. If applicable, what is the current shoreline master program designation of the site? Cherry Point Management Area h. Has any part of the site been classified as a critical area by the city or county? Yes ❑X No ❑ i. If so, specify. The area includes geological hazards, low/moderate aquifer susceptibility, deciduous forest, wetlands, and wildlife habitat conservation areas. j. Approximately how many people would reside or work in the completed project? N/A: non -project k. Approximately how many people would the completed project displace?N/ A: non -project I. Proposed measures to avoid or reduce displacement impacts, if any: N/A: non -project m. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: See additional information attached. n. Proposed measures to ensure the proposal is compatible with nearby agricultural and forest lands of long-term commercial significance, if any? Conditional Use Permit and Major Project Permit processes require compatibility with nearby existing uses. Reviewed by initials i4` — 07/21/2020 SEPA Environmental Checklist Page 13 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant 9 Housing Evaluation For Agency Use Only a. Approximately how many units would be provided, if any? Indicate whether high, middle, or low-income housing. ❑ High Number of Units 0 ❑ Middle ❑ Low-income b. Approximately how many units, if any, would be eliminated? Indicate whether high, middle, or low-income housing. ❑ High Number of Units 0 ❑ Middle ❑ Low-income c. Proposed measures to reduce or control housing impacts, if any: N/A: non -project 10 Aesthetics a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed? There is no maximum height established in the heavy or light industrial zone, and current height regulations will not change with the new proposal. b. What views in the immediate vicinity would be altered or obstructed? N/A: non -project c. Proposed measures to reduce or control aesthetic impacts, if any: N/A: non -project 11 Light and Glare a. What type of light or glare will the proposal produce? What time of day would it mainly occur? N/A: non -project b. Could light or glare from the finished project be a safety hazard or interfere with views? N/A: non -project Reviewed by initials 07/21/2020 SEPA Environmental Checklist Page 14 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only c. What existing off -site sources of light or glare may affect your proposal? N/A: non -project d. Proposed measures to reduce or control light and glare impacts, if any: N/A: non -project 12 Recreation a. What designated and informal recreational opportunities are in the immediate vicinity? To the north is Birch Pay State Park, Pt. Whitehorn Marine Reserve, Terrell Creek Heron Rookery. To the east is Lake Terrell State Game Refuge and Hovander Park. To the west is the Strait of Georgia b. Would the proposed project displace any existing recreational uses? If so, describe. N/A: non -project c. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: N/A: non -project 13 Historic and Cultural Preservation a. Are there any buildings, structures, or sites, located on or near the site that are over 45 years old listed in or eligible for listing in national, state or local preservation registers located on or near the site? Yes ❑ No ❑✓ If so, specifically describe. b. Are there any landmarks, features, or other evidence of Indian, historic use or occupation, this may include human burials or old cemeteries? Yes ❑✓ No ❑ Are there any material evidence, artifacts, or areas of cultural importance on or near the site? Yes ❑✓ No ❑ Please list any professional studies conducted at the site to identify such resources. The Cherry Point UGA is near Lummi Reservation and tribal lands. There are treaty fishing rights in the waters off Cherry Point, and the Corps of Eng. reported on the impacts of more piers, vessels- see Docs Incorporated by Ref, #4. This proposal is a non -project action and future archaeological review and study will occur for future project actions at the time of application. Reviewed by initials 07/21/2020 SEPA Environmental Checklist Page 15 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only c. Describe the methods used to assess the potential impacts to cultural and historic resources on or near the project site. Examples: Include consultation with tribes and the Department of Archeology and Historic Preservation, archaeological surveys, historic maps, GIS data, etc. N/A: non -project d. Proposed measures to avoid, minimize, or compensate for loss, changes to, and disturbance to resources. Please include plans for the above and any permits that may be required. The new regulations would prohibit new piers in the district to minimize impacts and establish consistency with DNR CPAR regulations. 14 Transportation a. Identify public streets and highways serving the site or affected geographic area and describe proposed access to the existing street system. Show on site plan, if any. The Cherry Point UGA is on the coast, accessed from the east via Mountain View Road, Slater Road, and Grandview Road. Additional access is from Blaine Road, Kickerville Road, and Lake Terrell Road. b. Is site or geogra hic area currently served by public transit? Yes ❑ No ✓ If not, what is the approximate distance to the nearest transit stop? Approximately 4 miles to the Whatcom Transit Authority bus stop on Mountain View Road for Route 27. c. How many parking spaces would the completed project have? How many would the project eliminate? N/A: non -project d. Will the proposal require any new or improvements to existing roads, streets, pedestrian, bicycle or state transportation facilities, not including driveways? Yes ❑ No ❑✓ If so, generally describe (indicate whether public or private). Reviewed by initials �,Jn6-- 07/21/2020 SEPA Environmental Checklist Page 16 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant e. Will the project use (or occur in the immediate vicinity of) ❑✓ Water, ❑✓ Rail, or ❑ Air transportation? If so, generally describe. The Cherry Point UGA has rail and water access. Evaluation For Agency Use Only f. How many vehicular trips per day would be generated by the completed project or proposal? If known, indicate when peak volumes would occur and what percentage of the volume would be trucks (such as commercial and non -passenger vehicles). What data or transportation models were used to make these estimates? N/A: non -project g. Proposed measures to reduce or control transportation impacts, if any: See additional information attached. 15 Public Services a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other)? Yes ❑ No ❑✓ If so, generally describe. b. Proposed measures to reduce or control direct impacts on public services, if any. The conditional use permit provisions and additional SEPA policies are intended to provide for project proposals and mitigation to address public facilities adequacy. 16 Utilities a. Check utilities currently available at the site: ❑✓ Electricity, ❑✓ Natural gas, ❑✓ Water, ❑✓ Refuse service, ❑✓ Telephone, ❑✓ Sanitary sewer, ❑✓ Septic system, Other Reviewed by initials i,1A`6-- 07/21/2020 SEPA Environmental Checklist Page 17 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only b. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or in the immediate vicinity which might be needed. N/A: non -project Signature The above answers are true and complete to the best of my knowledge. I understand that the lead agency is relying on them to make its decision. Signature. (' l 1 Cathy B. Halka, AICP Date Submitted: August 29, 2019 Resubmitted July 17, 2020 FOR OFFICE USE ONLY Reviewed by Whatcom County Planning & Development Services Staff S aff Signature 07/21/2020 Date SEPA Environmental Checklist Form PL4-83-005A Reviewed by initials �P� 07/21/2020 Page 18 of 20 January 2019 To Be Completed Evaluation For By Applicant Agency Use Only C Supplemental Sheet for Non -project Actions (It is not necessary to use this sheet for project actions) Because these questions are very general, it may be helpful to read them in conjunction with the list of the elements of the environment. When answering these questions, be aware of the extent the proposal or the types of activities likely to result from the proposal, would affect the item at a greater intensity or at a faster rate than if the proposal were not implemented. Respond briefly and in general terms. 1 How would the proposal be likely to increase discharge to water; emissions to air; production, storage, or release of toxic or hazardous substances; or production of noise? See additional information attached. Proposed measures to avoid or reduce such increases are: Reporting of emissions and mitigation above the baseline established at the time of permit is required. Local carbon offsets would be required or a fee in lieu of mitigation would be required which the County would use to provide local greenhouse gas mitigation projects. 2. How would the proposal be likely to affect plants, animals, fish, or marine life? See additional information attached. Proposed measures to protect or conserve plants, animals, fish, or marine life are: In SEPA rules, analysis and mitigation of impacts to priority habitats and species and high biodiversity areas is required. Critical area and shoreline regulations would also apply. 3. How would the proposal be likely to deplete energy or natural resources? See additional information attached. Proposed measures to protect or conserve energy and natural resources are: Reviewed by initials tJk,5- 07/21/2020 SEPA Environmental Checklist Page 19 of 20 Form PL4-83-005A January 2019 To Be Completed By Applicant Evaluation For Agency Use Only 4. How would the proposal be likely to use or affect environmentally sensitive areas or areas designated (or eligible or under study) for governmental protection; such as parks, wilderness, wild and scenic rivers, threatened or endangered species habitat, historic or cultural sites, wetlands, floodplains, or prime farmlands? Both proposals would prohibit new "fossil fuel" refineries and transshipment facilities, and new docks/piers and require conditional use/major project permits for expansions of existing "fossil fuel" facilities, thereby limiting impacts on environmentally sensitive areas and creating consistency with DNR's CPAR Management Plan. Proposed measures to protect such resources or to avoid or reduce impacts are: In addition to the measures stated above, applicants would be required to demonstrate consistency with federal and state laws and permit requirements, such as consistency with the CPAR Management Plan, federal review of consistency with treaty rights, etc. before any site modifications or construction could occur. 5. How would the proposal be likely to affect land and shoreline use, including whether it would allow or encourage land or shoreline uses incompatible with existing plans? Both proposals would affect land and shoreline use by prohibiting new "fossil fuel" refineries and transshipment facilities, requiring conditional use/major project permits for expansions of existing "fossil fuel" facilities, and prohibiting new docks/piers. It would not allow or encourage uses incompatible with existing plans. Proposed measures to avoid or reduce shoreline and land use impacts are: See above. 6. How would the proposal be likely to increase demands on transportation or public services and utilities? The proposal would not increase such demands. Proposed measures to reduce or respond to such demand(s) are: The intent of the new regulations is to more completely assess projects to ensure they meet the compatibility criteria of the conditional use and major projects permit provisions including providing mitigation for transportation/public service impacts. In addition, insurance/financial assurance provisions offer protection from any disruption to public services as a result of a hazard created by facility operation or transport of materials. 7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or requirements for the protection of the environment. Applicants would be required to demonstrate consistency with federal and state laws and permit requirements aimed at protection of the environment. Reviewed by initials _�n� 07 21/2020 SEPA Environmental Checklist Page 20 of 20 Form PL4-83-005A January 2019 ADDITIONAL INFORMATION, INCORPORATED BY REFERENCE (See Page 3 of 20 - SEPA Environmental Checklist) A. Background 11. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. There are several questions later in this checklist that ask you to describe certain aspects of your proposal. You do not need to repeat those answers on this page. (Lead agencies may modify this form to include additional specific information on project description.) The Planning Commission and County Council have been considering a range of possible options to protect county residents and the environment from the impacts of refineries and other fossil fuel facilities in the Cherry Point Heavy Industrial District and other areas of the County. The alternatives have included options from a report to the Council prepared by Cascadia Law Group dated February 23, 2018 (attached by reference to this checklist), draft amendments considered by the County Council between June and August, 2019 forwarded to the Planning Commission by the County Council under Resolution 2019-037, comments received from the public, amendments to the County Council draft considered by the Planning Commission, and recommendations from Whatcom County Planning and Development Services. 1. Major elements of the proposals forwarded by the County Council to the Planning Commission under Resolution 2019-037 included the following: • Comprehensive Plan amendments that add language acknowledging that existing refineries provide significant employment and have produced and shipped fossil fuels for decades; adds language "to act conservatively on land use matters at Cherry Point to prevent further harm to habitat important to Cherry Point Herring stocks and Southern Resident Killer Whales"; adds new language directing the use of adopted SEPA policies to limit the negative impacts on public safety, transportation, the economy and environment from new fossil fuel facilities; amends policy 2CC-17 to provide that existing facilities may have limited expansions consistent with policies 2CC-3 and 2CC-11; adds a new policy 2CC-18 to treat renewable fuel facilities in a similar fashion to fossil fuel facilities; and amends policy 2WW-4 to add language regarding marine terminals at Cherry Point to provide consistency with the State Department of Natural Resource's Cherry Point Aquatic Reserve Management Plan. • Land use code amendments contained in draft under Resolution 2019-037 include the following major provisions: explicitly retains outright permitted use status for existing refineries at WCC Section 20.68.050; explicitly retains permitted use status for non -capacity increasing maintenance and safety purposes and limited accessory uses such as but not limited to office expansions and environmental improvements at WCC 20.68.802; requires a conditional use permit for capacity expansions of 1 existing refineries and fossil fuel transshipment facilities at WCC Sections 20.68.150 and 20.68.800; establishes criteria for conditional use permits for expansions of existing refineries and fossil fuel transshipment facilities including those at WCC 20.84.220; requires documentation of the anticipate sources, types and volumes of substances to be transferred in bulk at the facility, requires mitigation of transportation impacts consistent with WCC Chapters 20.78 and 16.24; requires mitigation of impacts to services including fire and emergency response capabilities and water supply and fire flow; demonstrated consistency with applicable state and federal requirements prior to site preparation or construction; greenhouse gas mitigation for permitted expansions if required by WCC 20.68.801 (only if there is a gap in mitigation under state, federal or regional regulations and processes); a demonstration that the proposal will retain living wage jobs or contribute to the Whatcom County economy; prohibits new fossil fuel refineries and transshipment facilities and associated piers, docks and wharves and coal-fired power plants in the Cherry Point Heavy Industrial District at WCC 20.68.204 through 206; at WCC 20.68.801, requires analysis of greenhouse gas emissions above baseline emissions for refinery or fuel transshipment facilities using state of the art models; local mitigation of greenhouse gas emissions is required only where mitigation has not been required under other regulatory mechanisms at the state, federal or regional level WCC 20.68.801(3)(C); provide that non -capacity maintenance, safety and environmental improvements to existing refineries and transshipment facilities are specifically identified as outright permitted uses at WCC 20.68.802 with examples not limited to accessory buildings, office space, parking lots, communications facilities, security buildings, storage buildings and other similar structures or activities; requires greenhouse gas mitigation for accessory improvements if required under the provisions of WCC 20.68.801; establishes a new "change of use" provision at WCC 20.74.110 to ensure that zoning and building code and transportation concurrency requirements are met; establishes a new provision at WCC 20.74.115 requiring a conditional use permit be obtained for conversion of renewable fuels facilities within the boundaries of an existing legal fossil fuel refinery and prohibits other changes of use of renewable fuel refineries and transshipment facilities to fossil fuel facilities; establishes new Major Project Permit provisions at WCC 20.88.100 requiring facilities to obtain all necessary federal and state authorizations for projects prior to issuance of site preparation or construction permits authorized under Major Project Permit procedures; establishes definitions for certain terms at WCC Chapter 20.97; at WCC 22.05.120, establishes new provisions specifying that performance bonds and other security to ensure compliance with the conditions, modifications and restrictions may be required in forms acceptable to the County Prosecuting Attorney; establishes at WCC 22.05.120 that decisions of the County Council on Type IV applications be based on the record established by the hearing examiner and be consistent with the County Code and other applicable regulations; and establishes an insurance requirement for all refinery and fuel transshipment facility expansions at WCC 22.05.125. 2 • New State Environmental Policy Act provisions and procedures are established in WCC Chapter 16.08 which include the following: at WCC 16.08.090, establishes a new "Worksheet for Fossil and Renewable Fuel Facilities" be provided to evaluate air and climate impacts of fossil and renewable fuel facility applications to supplement the required SEPA Checklist pursuant to WAC 197-11-906(1)(c); at WCC 16.08.160E, adds provisions allowing the county to defer to other state, federal and regional agencies for SEPA mitigation unless there is an unanticipated gap making such mitigation inadequate; at WCC 16.08.160F1, establishes new air quality and climate SEPA policies recognizing the impacts of climate change and air pollution and requiring analysis of greenhouse gas emissions and providing authority for mitigation of projects pursuant to the provisions contained in SEPA; at WCC 16.08.160F2, establishes new SEPA policies related to plants and animals and stating the County's policy to minimize or prevent loss of fish and wildlife habitat that have substantial ecological, educational and economic value and recognizing the importance of consistency with federal and state laws regarding water quality, endangered species act requirements and tribal treaty rights. 2. Major Elements of Planning Commission Draft: • Recommendations from the Planning Commission regarding proposed Comprehensive Plan Amendments include amended language in Policy 2CC-17 that reflect the Planning Commission's desire that greenhouse gas analysis and mitigation requirements reside in the SEPA process rather than in the land use code and to amend the policy to "Allow existing operations or maintenance of existing fossil -fuel related facilities operating as of 2020"; addition of a new Comprehensive Plan Policy 2CC-18 that states that the intent of the County is to allow 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 safety and site safety improvements environmental improvements, and regulatory compliance projects; and replacement of Policy 2CC- 18 from the County Council draft to reflect the intention of the Planning Commission that renewable fuel refineries and transshipment facilities be outright permitted uses rather than conditional uses. • Planning Commission Recommendations for Modifications to land use code provisions proposed by the County Council in Resolution 2019-037 include: recommend removing language at WCC 20.66.204 referring to existing refineries as none exist in the Light Impact Industrial Zone; remove language at WCC 20.66.054(3) and replace with expanded permitted use provisions at WCC 20.68.068 to reflect public comments to make it clearer what types of accessory uses, maintenance, environmental improvements, safety improvements and other uses may be modified without requiring conditional use approval; recommend adding renewable fuel refineries and renewable fuel transshipment facilities to the permitted use list at WCC 20.68.070; recommend adding language at WCC 20.68.071 providing that expansions of existing renewable fuel refineries and renewable fuel transshipment 3 facilities should be treated as permitted uses not requiring conditional use permit approval; recommend modifications at WCC 20.68.153 to conditional use permit requirements for expansion of existing fossil fuel refineries and transshipment facilities to set a threshold for requiring a conditional use permit only for cumulative expansions increasing distillation capacity or transshipment capacity by 10,000 barrels (or 420,000 gallons) per day or increases fossil fuel tank storage capacity by more than 200,000 barrels (or 8,400,000 gallons) for the transshipment of fossil fuels outside of Whatcom County without value added processing; recommendation at WCC 20.68.153 that the baseline for determining the cumulative increases triggering a conditional use permit requirement be reset if a conditional use permit has been obtained; recommend removal of language in the conditional use permit criteria contained at WCC 20.68.153(3) that the "sources" of raw materials be identified; recommend that the conditional use permit criteria at WCC 20.68.153(7) be removed as the Commission considered the criteria at 20.68.153(9) as adequate to address federal and state permitting requirements; recommend removing the criteria at WCC 20.68.153(11) to demonstrate retention or creation of living wage jobs; recommend removing provisions at WCC 20.68.159 requiring a conditional use permit for new renewable fuel refineries or transshipment facilities; recommend at WCC 20.68.204 that language regarding "primary manufacturing of products thereof' be removed as fossil fuel refineries are a defined term at WCC 20.97.160.4 and the language is deemed unnecessary; recommend that the zoning code revisions at WCC 20.68.800 regarding quantification and mitigation of greenhouse gases be removed and that greenhouse gas review and mitigation be conducted as part of the SEPA analysis for projects instead; recommend removing the provisions at WCC 20.68.802 as those provisions have been recommended to be contained in the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code and to reflect public comments; recommend adding language at WCC 20.74.055 to reflect that prohibited uses in the Cherry Point Industrial District should be consistent with both the provisions of the Light Industrial District and the Heavy Industrial District; recommend removal of "change of use" provisions at WCC 20.74.110 from the County Council draft; recommend modifications to language proposed at WCC 20.88.210 and 215 to refer "major project permit" rather than "master plan" to reflect that the provisions of those sections should apply to the entire permit rather than to just the master plan; recommend removal of the definition of "Facility Emissions" from WCC 20.97.124.1 as the Planning Commission has recommended the greenhouse gas provisions be moved to the SEPA requirements and the term would no longer be used in the Zoning Code; recommend expanding the proposed definition of "Fossil Fuels" at WCC 20.97.160.2 to include "crude oil" to be clearer and consistent with other sections of the amendments; recommend adding "or Renewable" to WCC 20.97.160.3 to be consistent with the title of the section; recommends that the definition of "Fossil Fuel Refinery Capacity" at WCC 20.97.160.4 be removed as unnecessary; recommends deleting the definition of "Living Wage" from the definitions at WCC 20.97.202 to be consistent with their recommendation that living 0 wage job retention and creation be removed from conditional use criteria; recommend adding a new definition of "Maximum Atmospheric Crude Distillation Capacity" at WCC 20.97.230 to be consistent with the Commission's recommendation at WCC 20.68.153; recommends that the definition of "Renewable diesel" be modified to exclude the date of the applicable federal regulation in recognition of the fact that federal regulations may be revised over time; at WCC 20.97.425.1, recommend that the definition of "Small Fossil or Renewable Fuel Storage and Distribution Facilities" include "buildings" in addition to equipment; and recommend that WCC 22.05.125 be simplified to merely require permit applicants provide proof of insurance naming Whatcom County as an additional insured • Planning Commission Recommendations for Modifications to State Environmental Policy Act provisions include the following: changes to the language in the SEPA environmental checklist requirements at WCC 16.08.090 to reflect the process for development of the required supplemental SEPA worksheet for evaluating greenhouse gas emissions for fossil and renewable fuel facilities to include a commitment that the SEPA Responsible Official will consult with the Planning Commission when preparing or updating the worksheet; amendments to the language at WCC 16.08.160E to more closely align with language in the state SEPA Rules regarding consultation with and deferral to other agencies' SEPA mitigation decisions; language changes at WCC 16.08.160F to reflect that the Washington Department of Ecology has jurisdiction over PSD permits and to change "criteria pollutants" to just "air pollutants"; changes to the language in WCC 16.08.160F(1)(b) to reflect the Planning Commission's desire to place requirements for greenhouse gas analysis in the SEPA provisions and remove them from land use code requirements; (See Page 5 of 20 - SEPA Environmental Checklist) B. Environmental Elements 2 Air. c. Proposed measures to reduce or control emissions or other impacts to air, if any: One intent of the code revisions is to ensure that greenhouse gas and air emissions have been mitigated through state, federal or regional greenhouse gas mitigation regulations of other agencies such as the Department of Ecology or the Northwest Clean Air Agency or by Whatcom County. These federal, state, and regional agencies currently have jurisdiction to regulate air emissions through permitting programs and other authorities granted under the Washington Clean Air Act at RCW 70.94. The County Council draft of the regulations includes both SEPA policies and Zoning Code provisions to backstop the authorities of state, federal and regional air regulations but provides for deference to those agencies where they have provided comprehensive mitigation. The Planning Commission draft recommendations are to take the greenhouse gas quantification and mitigation provisions from the Council draft out of the Zoning Code and rely on the SEPA review provisions. Both express the intent that the County should defer to other agencies with expertise where emissions have been effectively regulated 5 and mitigated. However, the new provisions both provide mitigation authority for the County should there be a significant gap in the regulation and mitigation at the other levels of government. Some commenters have suggested that the effect of the new regulations on existing refineries would create greenhouse gas emissions through "leakage". That is, they speculate that if the regulations prevent the current refineries and associated transshipment facilities from meeting demand for fuels that the fuels would be produced elsewhere by refineries that are not as modern or efficient as the existing Cherry Point refineries. This is highly speculative and is not the intent of the County with the proposed regulations. The proposed regulations explicitly recognize the existing refineries as outright permitted uses and provide for expansions to occur through a conditional use permit review and approval process. In addition, both the County Council draft and Planning Commission recommendations include provisions allowing outright permitted use status for safety, routine maintenance and other accessory improvements to continue. The Planning Commission recommendation includes a threshold for expansions of both existing refinery and transshipment facilities while the County Council draft merely requires a discretionary approval with mitigation prior to facility expansions beyond safety, routine maintenance and other accessory improvements. The creation of "leakage" emissions is not a probable consequence of the proposed action and is a remote and speculative consequence given that existing refineries continue as outright permitted uses, are allowed to do maintenance and safety and accessory improvements and may expand in the future either under the threshold proposed by the Planning Commission or if they meet proposed conditional use approval criteria. (See Page 10 of 20 - SEPA Environmental Checklist) B. Environmental Elements 5. Animals d. Proposed measures to preserve or enhance wildlife, if any: The revised code and SEPA proposals contain provisions to be consistent with the Washington State Department of Natural Resources' Cherry Point Aquatic Reserve Management Plan. The State Department of Natural Resources has also, by Order of the State Lands Commissioner, prohibited issuance of aquatic land leases for any new docks or piers outside of the footprint of existing structures. The new plan and code provisions therefore provide that new docks and piers in the Cherry Point Heavy Industrial District are prohibited uses. The revisions also require that state and federal regulatory requirements be met prior to issuance of site clearing or construction permit issuance. This is to ensure that project applicants demonstrate that they have received federal and state authorizations for consistency with federal and state permitting requirements. These include evaluations by those agencies regarding Endangered Species Act for listed species in the vicinity of Cherry Point, consistency with enforceable treaty fishing rights, the Magnuson Amendment regarding transport of fossil fuel shipments in Puget Sound and other regulatory requirements. Additional SEPA policies and code provisions regarding 11 protection of habitat and species should ensure environmental protection of animals is addressed for future land use activities authorized once the amendments are adopted. (See Page 10 of 20 - SEPA Environmental Checklist) B. Environmental Elements 6. Energy and Natural Resources a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufacturing, etc. While this is a non -project action, the new provisions are directed, at least in part, at the existing and future of fuel production and transshipment from the Cherry Point Heavy Industrial Area. The revisions are intended to allow the existing fossil fuel refining and transshipment facilities to continue as outright permitted uses and to allow expansions of those facilities to occur through obtaining conditional use permit review and SEPA review. There are also a number of provisions allowing safety, maintenance and accessory uses to continue for existing facilities as outright permitted uses. The County Council and Planning Commission have considered a range of alternative approaches to the new regulations including the alternatives discussed in the attached report from Cascadia Law Group and have considered a range of comments on alternative treatments under the land use code received in public comments. The County Council draft allows existing refinery and transshipment operations to continue as outright permitted uses but require conditional use permit review and approval for expansions beyond pre-existing production levels. The Planning Commission draft recommends an alternative under which the existing facilities would remain outright permitted uses and development would be allowed under a threshold for increases in maximum atmospheric distillation capacity of fossil fuels by more than 10,000 barrels per day (or 420,000 gallons per day). A new provision is also recommended by the Planning Commission to allow increases in tank capacity of by less than 200,000 barrels (8,400,000 gallons) without value added processing to be permitted outright where the County Council draft would require conditional use permit approval for all tank capacity expansions. Coal fired power plants are also now proposed to be a prohibited use as are additional piers and docks to be consistent with recent decisions of the Washington Department of Natural Resources to prohibit additional aquatic land leases in the Cherry Point Aquatic Reserve. The County Council draft proposes that new renewable fuel refineries and transshipment facilities obtain a conditional use permit while the Planning Commission recommends that such facilities be outright permitted uses at Cherry Point. While both would allow new renewable fuel facilities to be established, the County Council draft would require discretionary review of new facilities under the County's conditional use permit processes. Under the existing Zoning Code, a Major Project Permit is required for either a permitted use or conditional use, if the criteria of WCC 20.88.120 are met (neither alternative would change this). Both alternatives 7 would continue to receive reviews under SEPA as specific project proposals come before the county for permit review. Under the most stringent of the alternatives, there are no probable significant adverse effects on energy supplies as the existing refineries are allowed to continue as outright permitted uses and may continue to expand with a discretionary review under the county's conditional use permit process. Renewable fuel facilities would be allowed as outright permitted uses under the Planning Commission recommendation but would also be allowed through the conditional use permit process under the County Council's draft proposal. Quantification and mitigation of greenhouse gas impacts from specific energy production projects may be required under SEPA review under either the Planning Commission or County Council drafts when mitigation is not accomplished under federal, state or regional reviews by entities such as the Washington Department of Ecology or the Northwest Clean Air Agency. The County Council draft would require quantification and mitigation of greenhouse gases under the zoning code provisions as well as SEPA provisions. (See Page 10 of 20 - SEPA Environmental Checklist) B. Environmental Elements 6. Energy and Natural Resources c. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: New zoning code provisions in the Council proposal require mitigation of greenhouse gas impacts from facilities that could be allowed through the conditional use/major project permit processes. The Planning Commission draft recommends removing the greenhouse gas quantification and mitigation provisions from the zoning code and rely on the SEPA review provisions. Both express the intent that the County should defer to other agencies with expertise where emissions have been effectively regulated and mitigated. However, the new provisions both provide mitigation authority for the County should there be a significant gap in the regulation and mitigation at the other levels of government. N. (See Page 10 of 20 - SEPA Environmental Checklist) B. Environmental Elements 7. Environmental Health a. Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste that could occur as a result of this proposal? If so, describe: A principal intention of the County Council's proposed revisions is to protect human and environmental health by quantifying and evaluating the impacts of expansions of existing fossil fuel refining and transshipment facilities and prohibiting the establishment of entirely new fossil fuel refining and transshipment facilities. New fossil fuel refining and transshipment facilities create the potential for air and climate pollution, risks of fire, explosion and hazardous substance releases and the County Council has determined under its police power that the County has taken its fair share of the risks of such facilities. The Council proposal allows the existing facilities to expand with appropriate conditional use review and environmental mitigation. The lifecycle greenhouse gas emissions of these facilities and the products shipped to, processed and shipped out of the facilities are a significant component of the State of Washington and Whatcom County's greenhouse gas emissions. Emissions from transportation produce between 40 and 50 percent of the total greenhouse gas emissions in the state's inventory and the existing facilities are two of the four largest refineries in the state. The land use code and SEPA provisions in the proposal require the quantification and mitigation of the impacts of facility expansions but allow the facilities to continue as outright permitted uses and expand under a discretionary review process under the County Council option. The County Council has expressed its intention in the whereas clauses of Resolution 2019-037 that existing facilities be allowed to continue and prosper but that expansions of those facilities be required to demonstrate that the impacts have been quantified and addressed by state, federal or regional regulations. And if that can't be demonstrated, that the impacts be mitigated through the gap filling provisions of SEPA and the land use code. It is anticipated that for most facility expansions the existing federal state and regional regulations will be adequate. The County Council has also expressed through the Resolution that the county has accepted its fair share of fossil fuel refineries and fossil fuel transshipment facilities and that no completely new facilities be permitted at Cherry Point. In addition, the Council has proposed that no new coal fired power plants be established at Cherry Point. The County Council is exercising its police powers to protect human and environmental health by limiting the impacts on the County to those from existing facilities and to make sure that expansions of the existing facilities and permitting processes for establishment of new renewable fuel facilities demonstrate compatibility and mitigation of impacts through the discretionary processes available under SEPA and the conditional use permit review process. As discussed above, the Planning Commission recommendations would establish thresholds for expansion of existing fossil fuel refining facilities under which no conditional use permit would be required. Oj (See Page 13 of 20 - SEPA Environmental Checklist) B. Environmental Elements 8. Land and Shoreline Use I. Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: New code provisions will require conditional use/major project permits for expansions of refinery capacity and storage. Permit review will address compatibility and impacts, and consistency with plans. In contrast to the Council proposal, the Planning Commission proposal allows for the expansion of existing renewable fuel refineries and renewable fuel transshipment facilities and new renewable fuel refineries and renewable fuel transshipment facilities as permitted uses not requiring conditional use permit approval, except that new piers, docks, or wharves are prohibited in the Cherry Point Industrial District (see proposed WCC 20.68.070). (See Page 17 of 20 - SEPA Environmental Checklist) B. Environmental Elements 14. Transportation g. Proposed measures to reduce or control transportation impacts, if any: The proposed code amendments require consideration of transportation impacts and mitigation when individual projects are proposed. SEPA review and mitigation of specific project transportation impacts may be required and financial assurance (e.g. insurance) would be required under the new land use code provisions. The new provisions will also limit potential impacts from marine transportation on Cherry Point herring stocks, endangered salmon species and the Southern Resident Orca by prohibiting additional docks and piers to be consistent with the State Department of Natural Resources Cherry Point Aquatic Reserve Management Plan and recent decisions to prohibit further aquatic lands leases for such facilities. (See Page 19 of 20 - SEPA Environmental Checklist) C. Supplemental Sheet for Non -Project Actions 1. How would the proposal be likely to increase discharge to water; emissions to air; production, storage, or release of toxic or hazardous substances; or production of noise. The Council's proposed zoning code amendments require reporting of emissions and mitigation above the baseline established at the time of permit. Local carbon offsets would be required or a fee in lieu of mitigation would be required which the County would use to provide local greenhouse gas mitigation projects. The County Council draft of the regulations includes both 10 SEPA policies and zoning code provisions to backstop the authorities of state, federal and regional air regulations but provides for deference to those agencies where they have provided comprehensive mitigation. The Planning Commission draft recommends removing the greenhouse gas quantification and mitigation provisions from the zoning code and rely on the SEPA review provisions. Both express the intent that the County should defer to other agencies with expertise where emissions have been effectively regulated and mitigated. However, the new provisions both provide mitigation authority for the County should there be a significant gap in the regulation and mitigation at the other levels of government. (See Page 19 of 20 - SEPA Environmental Checklist) C. Supplemental Sheet for Non -Project Actions 2. How would the proposal be likely to affect plants, animals, fish, or marine life? The proposed amendments would prohibit new fossil fuel refineries, new docks and piers and coal fired power plants within the Cherry Point Heavy Industrial Zone. This would eliminate the potential impacts on plants, animals, fish and marine life from such facilities. The amendments may also require the quantification and mitigation of air, climate and other impacts under SEPA and establish new substantive policies and procedures for ensuring impacts have been quantified for expansions of existing facilities. The proposal also includes language requiring a review of consistency with federal, state and regional permitting requirements to ensure that environmental impacts have been addressed under those processes. Additional SEPA policies are added to ensure that gaps in mitigation are filled if County officials determine that is necessary during individual project permitting reviews. (See Page 19 of 20 - SEPA Environmental Checklist) C. Supplemental Sheet for Non -Project Actions 3. How would the proposal be likely to deplete energy or natural resources? The proposed amendments would allow existing refineries to continue in operation and therefore there would be some continuing depletion of crude oil resources worldwide. Because the proposed amendments would allow both existing refineries to continue in operation and to expand under conditional use or Major Project Permit discretionary reviews it is not expected there would be any reduction in the ability to meet regional fuel production demands. 11 REFERENCE DOCUMENTS, INCORPORATED BY REFERENCE Cherry Point Amendments SEPA Checklist — Supporting Documents Incorporated by Reference 1. Commissioner's Order Dated 1/3/2017 Regarding Cherry Point Aquatic Reserve - https://www.dnr.wa.gov/publications/agr_resv_cp_cplorder_201701.pdf?cn6va 2. Cherry Point Aquatic Reserve Map - https://www.dnr.wa.gov/sites/default/files/publications/agr_resv_cp_ownership_map_201 61205.pdf?cn6va 3. DNR's Cherry Point Environmental Aquatic Reserve Management Plan - https://www.dnr.wa.gov/publications/aqr_resv_cp_mgmtplan_amend_201702.pdf?cn6va 4. U.S. Army Corps of Engineers Memorandum For Record dated May 9, 2016 finding more than a de minimis impact on treaty fishing rights for Gateway Pacific Terminal - http://www.nws.usace.army.mil/Portals/27/docs/regulatory/NewsUpdates/160509M FRUA DeMinimisDetermination.pdf 5. Northwest Sea Farms v. U.S. Army Corps of Engineers, 931 F. Supp 1515 (W.D. Wash. 1996), holding that more than a de minimis impact on treaty fishing rights precludes issuance of a Corps permit. https://scholar.google.com/scholar_case?case=14211548503198922436&q=Northwest +Seafarms+v.+U.S.+Army+Corps+of+Enginee rs&hI=en&as_sdt=6,48&as_vis=1 6. 2015 Ecology Vessel Traffic Risk Assessment; https://fortress.wa.gov/ecy/publications/documents/1708009.pdf 7. February 12, 2018 Cascadia Law Group Report to the County Council: http://www.co.whatcom.wa.us/DocumentCenter/View/32762/ab20l8-076?bidld= 8. County Council Draft Amendments Referred to the County Planning Commission under Resolution 2019-037: http://documents.whatcomcounty.us/weblink8/0/docl4451795IPagel.aspx?searchid=d 1afOc6d-d 6bf-42fa-be07-fcc87960b08d 9. Planning Commission's Final Recommendations for Amendments to County Council Dated July 10, 2020: Exhibit A: https://www.whatcomcounty.us/DocumentCenter/View/48821/12a-Exhibit- A-Comp-Plan-Amendments---July-10-2020 Exhibits B — D: https://www.whatcomcounty.us/DocumentCenter/View/48822/12b- Exhibits-B---D-Code--Amendments---July-10-2020 12 Proposed Cherry Point Amendments Requested Clarifications and Other Items from Councilmembers Updated 9.22.2020 Frnm 9.1 5_9n9n Definition of inter -refinery Clarification on what triggers CUP requirements From Councilmember Donovan Additional findings of fact Additional discussion regarding change of use Differential treatment of renewal and non -renewal fuels Discussion/revision of greenhouse gas mitigation language Inter -refinery matter related to transshipment exemption Councilmember Browne Cherry point comments September 29 2020 16.08.090 Line 16 Retain consultation with "Climate Impacts Advisory Group and its members". Add "with final approval of county council" Green House Gas & SEPA Retain Green House language but have it sunset once equivalent language is provided for in State law 16.08.160 Line 164 Delete "that create specific adverse environmental" as this could be interpreted as saying that only the portion of GHG emissions produced in Whatcom — that has remains to have a "specific adverse environmental" impact in Whatcom is what has to be mitigated 20.68.150 Line 551 .153 Expansion of existing legal Fossil or renewable Fuel or expansion of existing legal Fossil or renewable Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the maximum transshipment capacity of the facility by more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases the maximum +.--,shop. eRt fossil fuels storage capacity of unrefined f^«4 fuels ; the facility by more than 10,000 barrels (or 420,000 gallons) per day. If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Line 598 Retain (10) Minimization of greenhouse gas emissions and inclusion of local carbon offset mitigation projects; and 20.68.200 Prohibited uses. Line 708 .205. New Fossil Fuel Transshipment Facilities; provided that, the following uses of facilities are not prohibited: (i) inter -refinery shipments of refined petroleum products, (ii) transferring petroleum products during emergency scenarios where contingencies require petroleum products to be moved, and (iii) necessary petroleum product transfers during turn-arounds or maintenance periods., including bulk storage or transfer facilities for fossil fuels [XXX effective date]. .206 ... .207 ... .208. New Unrefined Fossil Fuel Transshipment Facilities 20.68.800 Line 830 .801 Environmental Review and Greenhouse Gas Mitigation Retain Green House language but have it sunset once equivalent language is provided for in State law Retain local mitigation requirement after state law is updated 20.74.110 Change of Use Line 996 Retain A change of use occurs when the occupancy of a building or a site use changes from one use to another in whole or in part. A change of use permit is required to document a change of use,even where no alterations are planned or required by the code. This shall be processed as a Type I permit in Chapter 22.05 WCC. The new use shall ensure: (1) Applicable building and construction codes are met per Title 15; (2) Consistency with the requirements of the CP Industrial District, Chapter 20.74, and base zone; and (3) Transportation concurrency requirements are met per Chapter 20.78. 20.88.100 Major project permits. .110 All major developments shall, prior to any construction, obtain 1030 a major project permit. .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 16.16 WCC and for any proposed development that meets any two of the following conditions: • Cost (estimated construction cost exclusive of land value) $5,000,000 • Size Retail 75,000 square feet office or industrial (gross leasable floor space) 200,000 square feet • Residential 300 dwelling units • motel/hotel 200 units • Number of Employees 250 • SEPA Review An EIS is required • Increases the maximum fossil fuels transshipment capacity by more than 10.000 barrels ep r day • Increases the maximum storage capacity of fossil fuels by more than 10,000 barrels. 20.97.124.1 Facility Emissions. Retain 20.97.160.5 Fossil -Fuel Refinery Capacity. Retain 22.05.125 Proof of insurance for hazards created in the County Retain for further discussion Need to establish who responsible party is for all scenarios. If it's not clear who will pay to clean up and compensate it likely means the community will have to Rail engine failure — likely BNSF Rail employee negligence — likely BNSF Rail track failure — likely BNSF Leased rail car failure — often Third Party rail car leasing companies Inside refinery fence line - likely Refinery BNSF - likely has adequate assets/insurance to compensate Refinery - likely has adequate assets/insurance to compensate Third Parties — multiple companies, assets/insurance to compensate may be zero. If so the Refinery should provide guarantee to cover any uncovered liability because they have control over the choice of provider UPDATED Councilmember Browne's Cherry point comments. Updated October 10 to provide background for each comment, see boxes below. Throughout this process my legislative focus has focused on areas where I believe the County Government has clear legitimate authority and responsibility related to health, public safety, and transportation: Transportation We have a responsibility to advocate for our community not to permit facilities that will result rail traffic beyond the capacity of our rail/road intersections capacity to accommodate other business uses, residents, and emergency response needs. If industry wants to increase rail capacity beyond what our crossings can accommodate, then industry, not local taxpayers, should shoulder the cost. Climate Chanae Climate change is real and is already affecting the health and welfare of our community, including the economic interests of our local fishing and farming businesses. Global warming is caused in large part by increased CO2 emissions, as refineries are emitting large amounts of CO2 as part of their processing, any increase of local emissions should be offset by local mitigation. Insurance The oil -by -rail transportation system has demonstrated an inability to operate accident free and failures have resulted in significant loss of life and economic damage to communities including businesses. Therefore, it is our responsibility to advocate that if an accident occurs within the borders of Whatcom County our taxpayers will not be left to bear the cost. Comments fi[:1117.11 11 Line 16 Retain consultation with "Climate Impacts Advisory Group and its members". Add "with final approval of county council" Explanation: The community is fortunate to have very well qualified members volunteering their time to serve on the Climate Impacts Advisory Group and we would be well served to have their ongoing contribution to the SEPA checklist. Final approval of which should be subject to County Council approval. Green House Gas & SEPA Retain Green House language but have it sunset once equivalent language is provided for in State law Explanation: Until the State law is established the County's greenhouse gas language should apply. If and when the State regulations are enacted the County language should sunset. 16.08.160 Line 164 Delete "that create specific adverse environmental" Explanation: A ton of CO2 produced in Whatcom County will over time be dispersed around the world, the specific adverse environmental impact to Whatcom County of the amount that remains in Whatcom County will be small. However, the cumulative sources of all greenhouse gas from emissions around the world is having a significant impact to Whatcom County as demonstrated by increased sea water acidity, reduced snow pack and longer drier summers. We should avoid any language that could suggest mitigation of greenhouse gas emissions should be limited to only that portion of GHG emissions produced in Whatcom that remains to have a "specific adverse environmental" impact. 20.68.150 Line 551 .153 Expansion of existing legal Fossil or renewable Fuel or expansion of existing legal Fossil or renewable Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the maximum transshipment capacity of the facility by more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases the maximum transshipment -fossil fuel storage capacity of Unrefined fess- fuTthe facility by more than 10,000 barrels (or 420,000 gallons) per y. If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Explanation: The proposed language allows industry the flexibility to increase it's refining and transshipment capacity by up to 9,999 barrels as an outright permitted use. However, as proposed it would allow for unlimited permitted increases in the number of barrels of crude oil storage without a conditional use permit provided it: 1. Does not increase in refining capacity at the time it is permitted. As storage capacity can be increased without the need to increase refining capacity this would not be difficult. 2. Does not increase transshipment capacity at the time it is permitted. As storage capacity can be increased without increasing transshipment facility at the time this would also not be difficult However, once built these storage tanks could later be repurposed to expand either refining or transshipment outside of the conditional use process which is contrary to the intent of the language. As industry has proposed an increase in refining or transshipment capacity of 10,000 barrels as a reasonable threshold for a Conditional Use permit related to refining or transshipment it should logically apply to increases in fossil fuel storage capacity as well. Line 598 Retain (10) Minimization of greenhouse gas emissions and inclusion of local carbon offset mitigation projects; and Explanation: Until the State law is established the County's greenhouse gas language should apply. If and when the State regulations are enacted the County language should sunset. 20.68.200 Prohibited uses. Line 708 .205. New Fossil Fuel Transshipment Facilities; provided that, the following uses of facilities are not prohibited: (i) inter -refinery shipments of refined petroleum products, (ii) transferring petroleum products during emergency scenarios where contingencies require petroleum products to be moved, and (iii) necessary petroleum product transfers during turn-arounds or maintenance periods., including bulk storage or transfer facilities for fossil fuels [XXX effective date]. Explanation: As proposed the amendments to WCC 20.68.205 would allow any previously permitted, currently existing, Fossil Fuel Transshipment Facilities (including storage tanks accessory to existing Fossil Fuel Refineries) to be converted and used for "inter -refinery shipments" of fossil fuels (including crude oil) without further permitting. As the ideal destination for all crude oil located in a "storage tank" is a "refinery" it seems logical the ability to build an unrestricted amount of storage capacity would facilitate increasing shipments of crude oil -by - rail which in turn will lead impacts to the rest of the community. While it is reasonable and normal to permit the refineries to store and transship refined products as a part of their normal operations, the community should retain the right to require a Conditional Use permit prior to allowing any substantive increase in inter -refinery shipments of crude oil -by -rail or oil -by -sea because these could result in significant new risks to the health, safety and public transportation infrastructure within the community. .206 .207 .208. New Unrefined Fossil Fuel Transshipment Facilities Explanation: New Unrefined Fossil Fuel Transshipment Facilities should be prohibited, as the risks associated with increasing the volume of oil -by -rail to support such a facility is greater than the benefit it brings the community. Line 830 801 Environmental Review and Greenhouse Gas Mitigation Retain Green House language but have it sunset once equivalent language is provided for in State law Retain local mitigation requirement after state law is updated Explanation: Until the State law is established the County's greenhouse gas language should apply. If and when the State regulations are enacted the County language should sunset. Any mitigation should be done locally 20.74.110 Change of Use Line 996 Retain A change of use occurs when the occupancy of a building or a site use changes from one use to another in whole or in part. A change of use permit is required to document a change of use, even where no alterations are planned or required by the code. This shall be processed as a Type I permit in Chapter 22.05 WCC. The new use shall ensure: (1) Applicable building and construction codes are met per Title 15; (2) Consistency with the requirements of the CP Industrial District, Chapter 20.74, and base zone; and (3) Transportation concurrency requirements are met per Chapter 20.78. Explanation: The community should retain the right to require a Conditional Use permit prior to allowing any substantive change of use that could increase in crude oil -by -rail or oil -by -sea traffic because these could result in significant new risks to the health, safety and public transportation infrastructure within the community. 20.88.100 Major project permits. .110 All major developments shall, prior to any construction, obtain 1030 a major project permit. .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 16.16 WCC and for any proposed development that meets any two of the following conditions: • Cost (estimated construction cost exclusive of land value) $5,000,000 • Size Retail 75,000 square feet office or industrial (gross leasable floor space) 200,000 square feet • Residential 300 dwelling units • motel/hotel 200 units • Number of Employees 250 • SEPA Review An EIS is required • Increases the maximum cumulative fossil fuels transshipment capacity by more than 10,000 barrels per day • Increases the maximum cumulative storage capacity of fossil fuels by more than 10,000 barrels. Explanation: As industry has proposed an increase in refining or transshipment capacity of 10,000 barrels as a reasonable threshold for a Conditional Use permit related to refining or transshipment it should logically apply to the "any two of the following conditions" threshold test for a Major project permit as well. 20.97.124.1 Facility Emissions. Retain Explanation: Until the State law is established the County's greenhouse gas language should apply. If and when the State regulations are enacted the County language should sunset. 20.97.160.5 Fossil -Fuel Refinery Capacity. Retain Explanation: Until the State law is established the County's greenhouse gas language should apply. If and when the State regulations are enacted the County language should sunset. 22.05.125 Proof of insurance for hazards created in the County Retain for further discussion Need to establish who responsible party is for all scenarios. If it's not clear who will pay to clean up and compensate it likely means the community will have to Rail engine failure — likely BNSF Rail employee negligence — likely BNSF Rail track failure — likely BNSF Leased rail car failure — often Third Party rail car leasing companies Inside refinery fence line - likely Refinery BNSF - likely has adequate assets/insurance to compensate Refinery - likely has adequate assets/insurance to compensate Third Parties — multiple companies, assets/insurance to compensate may be zero. If so the Refinery should provide guarantee to cover any uncovered liability because they have control over the choice of provider The County has an obligation to ensure the potentially responsible parties are identified in all possible scenarios that could result in significant loss of life, personal injury, environmental, economic and property damage at a level large enough to require our Emergency Operations Center to respond. County residents have the right to expect all potentially responsible parties related to an oil -by -rail disaster to have the financial capacity to provide adequate compensation in the event of a catastrophe. The County has no say, knowledge or oversight as to whether the third parties used to transport materials by rail have adequate insurance or assets in the event of a catastrophe. The refineries have control over the means of transportation and the carriers they select to use to ship product in and out of their facilities. It is therefore only reasonable to require the refineries to provide corporate guarantees to make up any shortfall in the event there is an accident that is beyond any third party's capacity to pay for. As proposed section 22.05.125 allows for the refineries to provide a "parent company corporate guarantee" in lieu of an additional insurance policy. This option will place no additional financial burden on the refineries unless the third parties they use are negligent and held responsible for an accident they have inadequate insurance to cover the damage. If the transportation of oil -by -rail continues to operate without incident within the county there will be no additional cost to refineries. If however the refineries are unwilling to assume this liability, other businesses, citizens, and taxpayers within Whatcom County will by definition be asked to fund any shortfall on behalf of the refineries. From: Dana Brown -Davis To: 'Barry Buchanan (BBuchana(a)co.whatcom.wa.us)" (BBuchana(cco.whatcom.wa.us); Ben Elenbaas; Carol Frazee; Kathy Kershner; Rud Browne; Todd Donovan; Tyler Byrd Subject: Cherry Point Amendments - PDS Issues for Industry/Environmental Work Group Date: Monday, October 05, 2020 3:44:00 PM I just saw that Matt's email did not go to you all, so forwarding to you I will send a separate email with proposed dates for a work session. Dana From: Matt Aamot Sent: Wednesday, September 30, 2020 2:27 PM To: Dana Brown -Davis <DBrown@co.whatcom.wa.us> Cc: Mark Personius <MPerson i@co.whatcom.wa.us>; Nick Smith <NSmith@co.whatcom.wa.us> Subject: Cherry Point Amendments - PDS Issues for Industry/Environmental Work Group Hi Dana: PDS raised three issues @ Council Committee of the Whole yesterday. Below, we set forth in more detail the issues we would like the Industry/Environmental Work Group to consider: • Clarifv Definition of Fossil Fuel Transshipment Facilities - Are the existing rail and pier facilities associated with the refineries considered "Fossil Fuel Transshipment Facilities" under proposed WCC 20.97.160.3? If a refinery takes in crude oil, refines it on -site, and ships out refined product, are the related shipping facilities "Transshipment Facilities" under the proposed code? Or are transshipment facilities limited to facilities that take in fossil fuels (e.g. crude oil, propane, butane, etc.) and ship them out in essentially the same form? • Definition of Facility Emissions - The Planning Commission moved the originally proposed definition of "Facility Emissions" to SEPA code and modified it (proposed WCC 16.08.175(C)). If Council restores the original definition of "Facility Emissions" in the Zoning Code (WCC 20.97.124.1), as proposed by a councilmember, there will be two different definitions. • Change of Use - A councilmember is proposing to restore the ""Change of Use" provisions (proposed WCC 20.74.110). We would ask the Work Group to consider: To what extent will the County regulate different liquids or substances that are shipped in, stored in tanks, processed on site, and/or shipped out under the change of use provisions? What constitutes a change of use? If 5%, 10%, 25%, 50%, or some other percentage of the liquids or substances is changed? How these provisions fit with the regular zoning scheme of permitted uses, conditional uses, and prohibited uses. For example, proposed WCC 20.74.110 requires a Type I change of use permit application. If a use is listed as a conditional use (Type III application), would the applicant have to obtain both permits? What if a Type I permit application, such as a building permit, is already required? Does the proponent also need to submit a Type I change of use application? Matt Link to Cherry Point Public Comments Cherry Point Amendments Joint -Stakeholder Revisions Requesting consideration by Whatcom County Council on October 20th, 2020, authorized representatives of the following parties have agreed that our respective interests would be served by revising the Planning Commission's Aug 13' draft of Cherry Point Amendments as shown below: RE Sources, Stand, Washington Environmental Council bp, Phillips 66, Petrogas Laborers International Union of North America (LiUNA)- local 292 These revisions aim to address facility use changes that could be identified as conditional uses or prohibited uses. In the Aug 13t" draft code amendments, the definition of the term "Change of Use" in WCC 20.97.052.1 does not meaningfully align with the term's apparent purpose in the two clauses where it appears. We are proposing to remove the term from these code amendments, and address its purpose through an alternative approach. Our collective request for these revisions to the draft amendments should not be construed as support for adopting the amendments into county code, nor does it indicate the full extent of revisions that respective parties would like to see. Key - Council -proposed amendments Planning Commission -proposed revisions Stakeholder -proposed additions and deletions Current unamended Whatcom County Code Commentary or explanation Fire re ff trM 20.68.050 Permitted Uses [Heavy Impact Industrial District] 20.68.068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, renewable fuel refineries, renewable fuel transshipment facilities, piers and docks legally established as of [XXX effective date of ordinance], provided that when a permit is sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any capacity changes defined under WCC 20.68.153 to the county permitting authorities. Pprovided that a conditional use permit is not required by WCC 20.68.153, permitted uses includeing repairs, improvements, maintenance, modifications, remodeling or other changes including but not limited to the following: [numerated 1 - 22] Note: Per proposed WCC 20.68.153, conditional use permits will be required when certain cumulative capacity increases occur at a fossil fuel refinery or a fossil fuel transshipment facility. To measure baselines and track cumulative increases, beginning with the first land use permit sought after the effective date of the amended rule, a permittee shall provide the following information and update the information provided upon every subsequent land use permit application: • Types of fuels or feedstock' • Mode of shipment2 • Maximum transshipment capacity3 • Maximum atmospheric crude distillation capacity4 20.68.150 Conditional Uses The following uses require a conditional use permit in the HII Zoning District .153 Expansion of existing legal Fossil Fuel Refineries or expansion of existing legal Fossil Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance that meets any one of the following applicable thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases it's t-l+e maximum transshipment capacity of the fkili by more than 10,000 barrels (or 420,000 gallons) per day. C. Cumulatively increases it's tl e maximum transshipment capacity of unrefined fossil fuels from the facility by more than 10,000 barrels (or 420,000 gallons) per day. If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Such expansions shall be subject to the conditional use criteria below: (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; 1 Disclosures cannot include trade secrets, i.e. locational origin of feedstock sources. 2 Shipment mode categorized generally i.e. tanker, barge, truck, unit train, etc. 3 This term is defined in the Aug 13th draft code and disclosed calculations may incorporate the throughput and capacity of multiple fuel production units. 4 a definition of "maximum transshipment capacity" has been discussed by stakeholders but have not reached full consensus. 5 Petrogas proposed this definition. Particularly, "be solely based upon" raised concerns for Stand. (3) The applicant has documented to the satisfaction of the County decision maker all of the anticipated types, and volumes of substances to be processed, stored, or transferred in bulk at the facility, the maximum ""els ent cy or the maximum atmospheric crude distillation capacity (as applica lel and to bd&aded or unloade The permit shall be limited exclusively to those types and volumes of materials or products as documented and approved. (4) Insurance requirements meet the provisions of WCC Section 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. (7) Plans for stormwater and wastewater releases have been approved. 8) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for any piers or aquatic lands improvements, and it shall be demonstrated to the satisfaction of the zoning administrator that the project applicant has met any federal or state permit or consultation requirements, including tribal treaty rights or the provisions of the Magnuson Amendment through state and federal permitting decisions; and (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site preparation or construction activities until it has fulfilled that condition must inform the county permitting authorities of a change in the aforementioned disclosures so that the department can document current capacity levels to ensure that the cumulafE ` -` �­ ler 20.68.153 have not been exceeded. 20.68.200 Prohibited Uses .205. New Fossil Fuel Transshipment Facilities; provided that, the following uses of facilities are not prohibited: (i) inter -refinery shipments 6f refined products and intermediate materia such as unfinished oils and blendstocks, (ii) transferring petr^leum pFeduets Fossil Fuels during emergency scenarios where contingencies require petFOIN1= duets Fossil Fuels to be moved, and (iii) necessary et eleu�r� pi:eduet Fossil Fuels transfers during turn-arounds or maintenance periods., including bulk steraTe or - transfer fae lities for fossil fuels [XXX effeetiye .late] Note: We believe this change would satisfy the concerns expressed by Councilmembers about this provision without functionally changing the intended effect of this provision. As we understand it, any project that meets the codified definition of "New Fossil Fuel Transshipment Facilities" would be prohibited outright, regardless of the three identified activities, but this language serves to clarify that facilities which do not meet that definition would not be prohibited from engaging in these activities to the extent that they do not meet the definition specified in draft WCC 20.97.160.3. We suggest this change on the condition that satisfactory definitions of "refined products and intermediate materials" be added, which we will submit accordingly if this suggestion is accepted by Council. "Intermediate Materials" refers to refined or partially refined products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. We are recommending the term "Fossil Fuels" in place of "petroleum products" in 20.68.205 because a specific definition for Fossil Fuels is already in place within the draft amendments proposal, WCC 20.97.160.2. This definition may also warrant revisions to ensure the intended meaning is appropriately captured. Stakeholders discussed possible changes but have not yet reached consensus. Other definitions may also be worth revisiting in addition to the one below. Definitions 20.97.160.4 Fossil -Fuel Refinery A "Fossil -Fuel Refinery" �a facility that -receives and converts into products including but not limited to gasoline, distillates such as diesel fuel and heating oil, 'et fuel, petrochemical feedstocks, waxes, lubricating oils, "inT777IRRIFTMIRM and asphalt. etwities, _ties ____._ _______ Fossil Fuel Refinery facility used include but are not limited to: bulk storage, manufacturing, or processing of fossil fuels, intermediate material or byproducts, and shipment of those processed materials to downstream customers. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. Deletions or substitutions of "Change of Use" terminology: SEPA Chapter: 16.08.090 Environmental checklist E.... "For any proposed change of use of expansion of facilities pursuant to and in accordance with WCC 20.68.153 , OF hydrocarbon F^�e, the proponent will provide an expert evaluation or fill out the County's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." ... Cherry Point Amendments Joint -Stakeholder Revisions Requesting consideration by Whatcom County Council on October 20th, 2020, authorized representatives of the following parties have agreed that our respective interests would be served by revising the Planning Commission's Aug 13' draft of Cherry Point Amendments as shown below: RE Sources, Stand, Washington Environmental Council bp, Phillips 66, Petrogas Laborers International Union of North America (LiUNA)- local 292 These revisions aim to address facility use changes that could be identified as conditional uses or prohibited uses. In the Aug 13t" draft code amendments, the definition of the term "Change of Use" in WCC 20.97.052.1 does not meaningfully align with the term's apparent purpose in the two clauses where it appears. We are proposing to remove the term from these code amendments, and address its purpose through an alternative approach. Our collective request for these revisions to the draft amendments should not be construed as support for adopting the amendments into county code, nor does it indicate the full extent of revisions that respective parties would like to see. Key - Council -proposed amendments Planning Commission -proposed revisions Stakeholder -proposed additions and deletions Current unamended Whatcom County Code Commentary or explanation Fire re ff trM 20.68.050 Permitted Uses [Heavy Impact Industrial District] 20.68.068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, renewable fuel refineries, renewable fuel transshipment facilities, piers and docks legally established as of [XXX effective date of ordinance], provided that when a permit is sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any capacity changes defined under WCC 20.68.153 to the county permitting authorities. Pprovided that a conditional use permit is not required by WCC 20.68.153, permitted uses includeing repairs, improvements, maintenance, modifications, remodeling or other changes including but not limited to the following: [numerated 1 - 22] Note: Per proposed WCC 20.68.153, conditional use permits will be required when certain cumulative capacity increases occur at a fossil fuel refinery or a fossil fuel transshipment facility. To measure baselines and track cumulative increases, beginning with the first land use permit sought after the effective date of the amended rule, a permittee shall provide the following information and update the information provided upon every subsequent land use permit application: • Types of fuels or feedstock' • Mode of shipment2 • Maximum transshipment capacity3 • Maximum atmospheric crude distillation capacity4 20.68.150 Conditional Uses The following uses require a conditional use permit in the HII Zoning District .153 Expansion of existing legal Fossil Fuel Refineries or expansion of existing legal Fossil Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance that meets any one of the following applicable thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases it's t-l+e maximum transshipment capacity of the fkili by more than 10,000 barrels (or 420,000 gallons) per day. C. Cumulatively increases it's tl e maximum transshipment capacity of unrefined fossil fuels from the facility by more than 10,000 barrels (or 420,000 gallons) per day. If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Such expansions shall be subject to the conditional use criteria below: (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; 1 Disclosures cannot include trade secrets, i.e. locational origin of feedstock sources. 2 Shipment mode categorized generally i.e. tanker, barge, truck, unit train, etc. 3 This term is defined in the Aug 13th draft code and disclosed calculations may incorporate the throughput and capacity of multiple fuel production units. 4 a definition of "maximum transshipment capacity" has been discussed by stakeholders but have not reached full consensus. 5 Petrogas proposed this definition. Particularly, "be solely based upon" raised concerns for Stand. (3) The applicant has documented to the satisfaction of the County decision maker all of the anticipated types, and volumes of substances to be processed, stored, or transferred in bulk at the facility, the maximum ""els ent cy or the maximum atmospheric crude distillation capacity (as applica lel and to bd&aded or unloade The permit shall be limited exclusively to those types and volumes of materials or products as documented and approved. (4) Insurance requirements meet the provisions of WCC Section 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. (7) Plans for stormwater and wastewater releases have been approved. 8) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for any piers or aquatic lands improvements, and it shall be demonstrated to the satisfaction of the zoning administrator that the project applicant has met any federal or state permit or consultation requirements, including tribal treaty rights or the provisions of the Magnuson Amendment through state and federal permitting decisions; and (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site preparation or construction activities until it has fulfilled that condition must inform the county permitting authorities of a change in the aforementioned disclosures so that the department can document current capacity levels to ensure that the cumulafE ` -` �­ ler 20.68.153 have not been exceeded.6 20.68.200 Prohibited Uses .205. New Fossil Fuel Transshipment Facilities; provided that, the following uses of facilities are not prohibited: (i) inter -refinery shipments 6f refined products and intermediate mam such as unfinished oils and blendstocks, (ii) transferring petr^leum pFeduets Fossil Fuels during emergency scenarios where contingencies require petFOIN = ducAr Fossil Fuels to be moved, and (iii) necessary et eleu�r� pi:eduet Fossil Fuels transfers during turn-arounds or maintenance periods., including full' steraTe or - transfer fae lilies for fossil fuels [XXX effective .late] Note: We believe this change would satisfy the concerns expressed by Councilmembers about this provision without functionally changing the intended effect of this provision. As we understand it, any project that meets the codified definition of "New Fossil Fuel Transshipment Facilities" would be prohibited outright, regardless of the three identified activities, but this language serves to clarify that facilities which do not meet that definition would not be prohibited from engaging in these activities to the extent that they do not meet the definition specified in draft WCC 20.97.160.3. 6 Criteria (10) could be moved to fit within criteria (3) and/or be duplicated to be clear as to which aforementioned disclosures are the permittee's responsibility to update the county on changes to after approval of a CUP. We suggest this change on the condition that satisfactory definitions of "refined products and intermediate materials" be added, which we will submit accordingly if this suggestion is accepted by Council. "Intermediate Materials" refers to refined or partially refined products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. We are recommending the term "Fossil Fuels" in place of "petroleum products" in 20.68.205 because a specific definition for Fossil Fuels is already in place within the draft amendments proposal, WCC 20.97.160.2. This definition may also warrant revisions to ensure the intended meaning is appropriately captured. Stakeholders discussed possible changes but have not yet reached consensus. Other definitions may also be worth revisiting in addition to the one below. Definitions 20.97.160.4 Fossil -Fuel Refinery A "Fossil -Fuel Refinery" jNlIlllllllllllll�a facility that -receives and converts into products including but not limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, lubricattin oils, ermediate materials and asphalt. 7^* • * ^ ; that,: Fossil Fuel Refinery faci iT yi uses include but are not limited to: bulk storage, manufacturing, or processin of fossil fuels, intermediate materjA or byproducts, and shipment of those processed materials to d� customers. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. Deletions or substitutions of "Change of Use" terminology: SEPA Chapter: 16.08.090 Environmental checklist E.... "For any proposed expansion of facilities rrsuant to and in accordance with WCC OR RfflWCtUFe, 1 UE-55, _U_1 - U. I-----,-- - ffl-, M---sil fuel, renewable fuel, OF hydr-ocaFb F^, the proponent will provide an expert evaluation or fill out the County's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." ... 20.97.052.1 Change of Use [definition] Note: 20.74.115 would be inoperable as written and otherwise redundant to retain. Existing Fossil Fuel Refineries would already be required to obtain CUPs for increasing their capacity to refine crude oil. It should be clear that a standalone Renewable Fuel facility could not change its use to what is barred in 20.68.200 for new facilities. If that meaning is not unequivocal enough with the above additions included, it should be further clarified in the Prohibited Use section that any existing facility cannot alter itself in such a way that it meets the definition of a new prohibited facility. Moreover, there is no generalized definition of "fossil fuel facilities" in the code, and this clause appears to imply that a Renewable Fuel Refinery or a Renewable Fuel Transshipment Facility could exist separately within the boundary of a Fossil Fuel Refinery, which further convolutes the defined construct of a Refinery being defined as a singular facility containing various interrelated structural units within its complex. We've sought to remove ambiguities and equivocations of the term "facility" throughout the code amendments to distinguish a cohesive intended meaning. To that end, we have made a point to capitalize all terms that correspond to codified definitions. Any such instance where a specifically defined term is uncapitalized should be understood as an error to be corrected. From: Carol Frazev To: Dana Brown -Davis Subject: CP Concerns Date: Monday, October 19, 2020 4:48:20 PM Hi Dana, These concerns were already shared by other councilmembers, but I realized that I never sent you my concerns with the Cherry Point amendments. These are the concerns that I have shared with the refineries. Here are my main concerns: 1. Change of Use: Make sure that there are restrictions in place so that a permitted Renewable Energy facility (State definition of Renewable Energy) cannot be repurposed or changed to a Fossil Fuel Energy Facility 2. Do not want unrefined fuels being passed through our county without being refined at the refinery I like Councilmember Browne's Change: "20.68.200 Prohibited uses. Line 708 .205. New Fossil Fuel Transshipment Facilities; provided that, the following uses of facilities are not prohibited: (i) inter - refinery shipments of refined petroleum products, (ii) transferring petroleum products during emergency scenarios where contingencies require petroleum products to be moved, and (iii) necessary petroleum product transfers during turn-arounds or maintenance periods., including bulk storage or transfer facilities for fossil fuels [XXX effective date]. " 3. 1 would like to see very strong language for Consistency with Federal laws and Treaties. 4. Still concerned about who will FULLY pay (insurance) if accident/explosion happens on our rails as fuels pass through our county (Same concern from Councilmember Browne). Thanks, CarolFrazey Councilmember for At Large Position B Whatcom County Council 311 Grand Ave. Suite 105 Bellingham, WA 98225 Phone: 360-778-5024 Email: CFrazey@whatcomcounty.us NOTICE: All emails and attachments sent to and from Whatcom County are public records and may be subject to disclosure pursuant to the Public Records Act (RCW 42.56) October 281", 2020 Cherry Point Stakeholder Jointly Proposed Revisions: 20.74.055 Prohibited uses. [Cherry Point Industrial District] Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66), the Heavy Impact Industrial District as applicable (Chapter 20.68 WCC), and the following: (1) New piers, docks, or wharves. (2) Conversion of Renewable Fuel Refinery or Renewable Fuel Transshipment Facilities to fossil fuel facilities is prohibitea_c2n 74.115 ffind �x�C 10.6 Add Definition: 20.97.160.x Intermediate Materials: "Intermediate Materials" refers to refined or partially refined fossil fuel products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. Under this definition, feedstocks such as "topped crude" are not intermediate materials. October 28', 2020 Cherry Point Stakeholder Jointly Proposed Revisions: 20.74.055 Prohibited uses. [Cherry Point Industrial District] Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66), the Heavy Impact Industrial District as applicable (Chapter 20.68 WCC), and the following: (1) New piers, docks, or wharves. (2) Conversion of Renewable Fuel Refinery or Renewable Fuel Transshi men"Facilities to o is prohibi Add Definition: 20.97.160.x Intermediate Materials: "Intermediate Materials" refers to refined or partially refined fossil fuel products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. Under this definition, feedstocks such as "topped crude" are not intermediate materials. UPDATED Councilmember Browne's Cherry point comments. Updated October 28 20.68.150 Line 551 .153 Expansion of existing legal Fossil or renewable Fuel or expansion of existing legal Fossil or renewable Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the maximum transshipment capacity of the facility by more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases the maximum *Fa^«"i^ment fossil fuel storage capacity of unrefined fee ;4 f, -;Tthe facility by more than 10,000 barrels (or 420,000 gallons) peF y. D. Could result in anv increase of crude oil-bv-rail shipments If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. 20.88.100 Major project permits. .110 All major developments shall, prior to any construction, obtain 1030 a major project permit. .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 16.16 WCC and for any proposed development that meets any two of the following conditions: • Cost (estimated construction cost exclusive of land value) $5,000,000 • Size Retail 75,000 square feet office or industrial (gross leasable floor space) 200,000 square feet • Residential 300 dwelling units • motel/hotel 200 units • Number of Employees 250 • SEPA Review An EIS is required • Could result in anv increase of crude oil-bv-rail shipments UPDATED Councilmember Browne's Cherry point comments. Updated October 28 20.68.150 Line 551 .153 Expansion of existing legal Fossil or renewable Fuel or expansion of existing legal Fossil or renewable Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the maximum transshipment capacity of the facility by more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases the maximum *Fa^«"i^ment fossil fuel storage capacity of unrefined fee ;4 fuels ;Tthe facility by more than 10,000 barrels (or 420,000 gallons) peF y. D. May result in any increase of oil -by -rail shipments If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. 20.88.100 Major project permits. .110 All major developments shall, prior to any construction, obtain 1030 a major project permit. .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 16.16 WCC and for any proposed development that meets any two of the following conditions: • Cost (estimated construction cost exclusive of land value) $5,000,000 • Size Retail 75,000 square feet office or industrial (gross leasable floor space) 200,000 square feet • Residential 300 dwelling units • motel/hotel 200 units • Number of Employees 250 • SEPA Review An EIS is required • Mav result in anv increase of oil-bv-rail shipments UPDATED Councilmember Browne's Cherry point comments. Updated October 28 20.68.150 Line 551 .153 Expansion of existing legal Fossil or renewable Fuel or expansion of existing legal Fossil or renewable Fuel Transshipment Facilities. For purposes of this section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following applicable thresholds: A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases it's maximum transshipment capacity by more than 10,000 barrels (or 420,000 gallons) per day; or C. Cumulatively increases it's maximum transshipment capacity of unrefined fossil fuels from the facility by more than 10,000 barrels (or 420,000 gallons) per day. D. Could result in any increase of crude oil -by -rail shipments beyond which has been previously approved If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. 20.88.100 Major project permits. .110 All major developments shall, prior to any construction, obtain 1030 a major project permit. .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 16.16 WCC and for any proposed development that meets any two of the following conditions: • Cost (estimated construction cost exclusive of land value) $5,000,000 • Size Retail 75,000 square feet office or industrial (gross leasable floor space) 200,000 square feet • Residential 300 dwelling units • motel/hotel 200 units • Number of Employees 250 • SEPA Review An EIS is required • Could result in any increase of crude oil -by -rail shipments beyond which has been previously approved From: Council To: Dana Brown -Davis; Lisa Bruner; Cathy Halka Subject: FW: Cherry Point Amendments - PDS Comments Date: Thursday, November 19, 2020 1:47:55 PM From: Matt Aamot Sent: Thursday, November 19, 2020 1:47:49 PM (UTC-08:00) Pacific Time (US & Canada) To: Eddy Ury; Council; Todd Donovan; Barry Buchanan; Tyler Byrd; Kathy Kershner; Ben Elenbaas; Rud Browne; Carol Frazey Cc: Brady, Pamela; Johnson, Tim; Gavin Carscallen; Andrew Gamble; Verburg, James E; Chalfant, Jeff; Brown, Brad J; Strang, Erin T; Trevor Smith; Alex Ramel; Rebecca Ponzio; Anna Doty; Mark Personius; Nick Smith; Amy Keenan Subject: Cherry Point Amendments - PDS Comments Dear Stakeholder Group and Council: Whatcom County Planning and Development Services (PDS) appreciates the efforts of the Stakeholder Group working on the proposed Cherry Point development regulation amendments. PDS has several thoughts/concerns/issues that we would like the Stakeholder Group, and ultimately the County Council, to address or clarify in the Cherry Point amendments: 1. Plain Language - Whatcom County Comprehensive Plan Goal 1A is to "Ensure that government activities, regulations and policies are transparent, accountable and easy to understand" (Chapter 1, p. 1- 3). The Comprehensive Plan text also states that Regulations should be clear, concise, and predictable with enough flexibility to allow for reasonable and efficient decision making..." (Chapter 2, p. 2-9). We recognize that drafting regulations relating to the Cherry Point industrial area is challenging because there are at least three distinct audiences for the regulations: The industries being regulated, PDS staff, and the public. Industry representatives have specialized knowledge that PDS staff and most members of the public do not possess. Additionally, industry may not want/be able to disclose confidential business information. There are also differing views on how these industries should be regulated. These factors all add to the difficulty of developing the regulations. However, development regulations are evaluated for consistency with the Comprehensive Plan pursuant to WCC 22.10.060(4. Therefore, we would urge the Stakeholder Group and the Council to consider the Comp Plan goal of ensuring regulations are ".. . transparent, accountable and easy to understand ..." This is especially important to allow PDS to administer the regulations in a manner that is consistent and transparent to all. 2. Clarify Definition of Fossil Fuel Transshipment Facilities - It is our understanding that members of the Stakeholder Group have indicated that the existing rail and pier facilities associated with the refineries are not considered "Fossil Fuel Transshipment Facilities" under proposed WCC 20.97.160.3. If this is the recommendation of the Stakeholder Group, PDS requests that it be clearly stated in the definition of Fossil Fuel Transshipment Facilities. For example, a clause could simply be added to the definition stating: "Shipping facilities associated with refineries, such as piers and rail facilities, are not Fossil Fuel Transshipment Facilities." 3. MACDC or Transshipment Capacity / 3 d Party Engineer Review - A conditional use permit would be required when a project increases the "maximum atmospheric crude distillation capacity" (MACDC) or maximum transshipment capacity by more than 10,000 barrels per day (proposed WCC 20.68.153). MACDC is defined in proposed WCC 20.97.230. A determination of whether a project's increase in MACDC triggers a conditional use permit would be based on an evaluation by a licensed professional engineer. It is assumed that maximum transshipment capacity (as currently proposed) would also be determined by a professional engineer. The PDS concern is that we do not have staff with expertise in these issues. It is also our understanding that the current proposed stakeholder approach would require the engineer's MACDC/Transshipment Capacity analysis and County 3rd party review before PDS could even determine whether a proposed use is permitted outright in 20.68.068 or triggers a conditional use permit under 20.68.153 (in many but not all cases). This requires that PDS would first have to develop and issue a RFQ for qualified independent consulting petroleum engineers and that we received sufficient responses to establish a roster upon which to select from to conduct subsequent 3rd party review. That process would likely take 3-4 months to establish the roster before we could fully implement this approach (i.e., begin accepting permit applications). Some additional thoughts and questions relating to these issues include: • Are we correct in understanding that the County would have to hire a 3rd party engineer to review the industry engineer's documentation of MACDC or transshipment capacity? If so, it would seem to have to happen before they can submit a permit application (e.g., at the pre-app meeting stage). The added layer of the 3rd party review will extend the time period for PDS to make a determination on the appropriate permit path and may require an additional meeting with an applicant prior to application submittal. • Is there any potential amongst professional petroleum engineers for significant disagreement or differing interpretation of the effect of certain refinery equipment or operations on MACDC/Transshipment Capacity? (i.e., can you advise us on the likelihood that a 3r6 party engineer's review would differ from an applicant's engineer's report conclusions on MACDC to such a degree that could give PDS cause to reach a permitting path decision that differs from an applicant's perspective?) • PDS's initial determination (after 3rd party review) of whether the proposed use is permitted outright or requires a CUP is appealable under WCC 22.11.210. How might this affect permitting timelines for industry permit applications? • How might this effect the industry's and the public's understanding, perception or expectation of the certainty or uncertainty of the permitting process? • Would the information in the industry engineer's evaluation include confidential business information from an industry perspective? • If so, would it be exempt from public disclosure? This may require review by the County's legal counsel. • Again, being non -engineers, it is our understanding that some new refinery equipment does not operate at full capacity all of the time (e.g. vacuum heaters). What level does the County determine MACDC for a specific project proposal (e.g. "normal operating conditions" or at "assumed maximum capacity conditions")? Staff assumes that the evaluation of proposed new uses or equipment on overall refinery output would be in relation to maximum capacity. Is this correct? Please note, our understanding is that some new refinery operations/equipment may not be able to (or never) reach maximum capacity because of limitations in other downstream equipment (i.e. "bottlenecks"). Does this mean that the refineries never actually reach MACDC? If so, is there any improvement that would trigger an increase in MACDC to the threshold levels requiring a CUP? Please advise. • Related to the question above, what types of equipment and/or new uses would increase MACDC or transshipment capacity? It would be helpful if industry could provide specific examples of improvement projects that likely would/would not trigger the conditional use permit requirement as proposed in 20.68.153. For example, would a new or replacement vacuum heater that is more efficient than existing equipment increase MACDC to a threshold requiring a CUP? Other examples such as a new oxygen plant, new nitrogen plant, heat exchanger, hydrotreater, pier improvements, etc? 4. Storage Tanks - At this point in the process, we have concerns that the proposed storage tank regulations may not be clear, concise, and predictable (or easy to understand) for non -engineers and the public. Storage tanks are permitted under proposed WCC 20.68.068 unless a conditional use permit is required under proposed WCC 20.68.153 (certain increase in MACDC or transshipment capacity - see discussion above). Additionally, new fossil fuel transshipment facilities are prohibited under proposed WCC 20.68.205. We would like to understand: • Under what conditions would a new tank increase MACDC or transshipment capacity? It would be helpful if industry could provide several storage tank examples/scenarios that would trigger the conditional use permit requirement. • Under what conditions would a new tank not increase MACDC or transshipment capacity? It would be helpful if industry could provide several storage tank examples/scenarios that would not trigger the conditional use permit requirement. • Is it the intent of these regulations to prohibit new tanks that would be used solely for transshipment? • Is it the intent of these regulations to prohibit use of existing tanks solely for transshipment? We recognize and appreciate that the Stakeholder Group is currently working through some of these issues. Our request is simply that the Group ask the following question for each proposed regulation and definition: Is it transparent, accountable and easy to understand for industry, PDS, and the public? Thank you for considering our input. Sincerely, PDS Staff Cherry Point Amendments Stakeholder Revisions For consideration by Whatcom County Council on November 24t", 2020 Jointly proposed by designated representatives of environmental advocacy groups, Cherry Point industries and organized labor. Last Updated: November 23rd Color Coding Key: • Red strike+h..,,,...h —text removed • Blue underline — text added • Green ci..°"'Ane-11^"/underline) — language moved from one section to another, but retained • Black — CP Amendments Draft (Council approved as of October 28 2020) and/or existing WCC • Highlightsjoverlaid on any text colors shown above]: stakeholders' proposed changes 20.66.200 Prohibited Uses [Light Impact Industrial (LII) District] .204 New Fossil Fuel efineryie! or new ossil uel ransshipment acilit 20.68.050 Permitted Uses [Heavy Impact Industrial (HII) District] 059 Bulk commodity storage facilities, and truck, rail, vessel and transshipment terminals and facilities, except as prohibit tFanssL.ipment facilities .068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, Renewable'uel Aefineries,&enewable'uel'ransshipment'acilities, piers and docks legally established as of [XXX effective date of ordinance], provided that when a permit is sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any capacity changes defined under WCC 20.68.153 to the county permitting authorities. Provided that a conditional use permit is not required by WCC 20.68.153, permitted uses include repairs, improvements, maintenance, modifications, remodeling or other changes including, but not limited to the following: ['numerated 1— 201 ... (1) - (17) ... (411S ) Pipelines carrying petroleum or petroleum products solely within the Heavy Impact Industrial zoning district. (2-8 ) Pipelines carrying natural gas solely within the Heavy Impact Industrial zoning district. (21 ) Renewable fuel production and shipment. (21) Inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks; (22) Transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved; (23) Necessary Fossil Fuels transfers during turn-arounds or maintenance periods. (24) Storage Tanks, provided that the County decision maker shall include in any approval of an application for storage tanks at an existing Fossil Fuel Refinery, Fossil Fuel Transshipment Facility, Renewable Fuel Refinery, or Renewable Fuel Transshipment Facility a condition that the storage tank shall only be used in the manner described in the application and approved in the permit. The application and permit shall describe the intended use of the storage tank, including the type of fuel to be stored and, if located within a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the storage tank will or will not be used for transshipment. 25 Other similar structures or activities .070 New enewable uel Refineries or enewable Fuel Transshipment acilities, except that new piers, docks, or wharves in the Cherry Pont Industrial District are prohibited. .071 Expansion of existing legal enewable Fuel Refineries or e-F-Renewable Fuel Transshipment acilities, provided that the expansion is for Renewable uels only. .081 Freight railroad switching yards and terminals, exct. -, prohibi. In�CC 20.68.200. .082 Marine port facilities, hxcept as under WCC 20.68. 20.68.150 Conditional Uses [Heavy Impact Industrial (HII) District] .153 Expansion of existing fegaf Fossil Fuel Refineries GF expansien of existing legal Fosse! F.,^' T-FansshffipmeAt F-acilities For purposes of this section, an expansion is any andaSsrielT;i.R_9;9;n;;mt Faei;iR_ development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following applicable thresholds: A. Cumulatively increases +tithe facility's tot; aximum tmospheric rude istillation apacity of ossil uels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases the facility's total IVIdXIfI U111 I Id11JJ111p1IIC11L l.dpdGlly Iur rubsil Fuels maximum +...,«I,;.,.,,^.,+, ., .+., by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.2 ; or C. Increases the frequency of Fossil Fuel unit train shipments by rail unloaded or loaded at an existing facility in excess of limits, if any, established by County, State or Federal authorities (where applicable) as of [XXX effective date of ordinancel or the effective date of a previously approved conditional use permit, whichever is more recent. froM the facility by Ma-rp- +h2n 10,000 baFFels (GF 420,000 gall. ns) p F day .154 Expansion of existing Legaf FeS-si' Fuel Refineries or. P pansien of existing legal Fossil Fuel Transshipment Facilities. For purposes of this section, an expansion is any F^«i' F--^' R.^fi^^F•• ^Q^F F^«i' Fuel Tr-ansshi•'ment Facility development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that cumulatively increases the facilitv's total Maximum Transshiament Caoacity for Fossil Fuels by more than 10.000 barrels (or 420,000 gallons) per day, based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.2 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Such ExpanF' shall be subject to the conditional use criteria below, as applicabl,.. (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; (3) The applicant has documented to the County decision maker as applicable,. • all of the anticipated types and volumes of substances to be processed, stored, or transferred in bulk ._____ _,7e proposed expansiona�Gility; • in maximum transshipment capacity bnd or the maximum atmospheric crude distillation capacity Usult of the proposed expansion, as applicable; and • the mode of shipment vessels to be loaded or unloaded with the proposed equipment 1"r at the far4lity as - ­_. J-` tL ­ proposed expansion. The permit shall be limited exclusively to those types and volumes of materials or products as documented and approved. (4) Insurance requirements meet the provisions of WCC Section 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. (7) Plans for stormwater and wastewater releases have been approved. (8) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for any piers or aquatic lands improvements, and it shall be demonstrated to the a zoning administrator that the project applicant has met any federal or state permit consultation requirements, including tribal treaty rights or the provisions of the Magnuson Amendment through state and federal permitting decisions (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site preparation or construction activities until it has fulfilled that condition. (10) The permittee must inform the county permitting authorities of a change in the aforementioned disclosures so that the department can document current capacity levels to ensure that the cumulative thresholds under WCC 20.68.153 have not been exceeded. (11) The County decision maker shall include, in any approval of an application for an expansion, as per 20.68.153 or 20.68.154, a condition that the permitted equipment shall only be used in the manner described by the project proponent in the application and approved in the permit. The application shall describe the intended use, including the type of fuel to be stored and, if located at a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the equipment will or will not be used for transshipment. 20.68.200 Prohibited Uses [Heavy Impact Industrial District] .204 New Fossil Fuel Refineries. .205 New Fossil Fuel Transshipment Facilities., pFevided that, the felle ing uses e f facilities are d grin tUrn_-,r und,; Ar manteRaRcen .,.JS .206 New piers, docks, or wharves in the Cherry Point Industrial District. .207 Coal-fired power plants. 20.74.055 Prohibited Uses [Cherry Point Industrial District] Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66); and the Heavy Impact Industrial District as-aisaile (Chapter 20.68), as applicable, and the following: 1)New piers, docks, or wharves in the Cherry Point Industrial District (2) Conversion of a Renewable Fuel Refinery or Renewable Fuel Transshipment Facilitiesy to become a Fossil Fuel Refinery or Fossil Fuel Transshipment Facilitiesy 20.97 Definitions Note: in reviewing existing Whatcom County Code, it appears that 20.97.160 (.1-.5) and 20.97.350.1 refer to other defined terms, which could be an error in the draft amendments or otherwise is meant to align with a code scrub that has not yet been published online. We adjusted numbering of definitions simply to avoid the need for additional numeric re- assigning. If this is numbering is unintentional, then other defined terms in the Cherry Point Amendments (not shown here) would also need to be renumbered. We will defer to PDS on preference for numbering, and would accept alternate numbers and ordering of defined terms as long as the definitional text shown below is amended as follows: - 20.97.230.1 Maximum Atmospheric Crude Distillation Capacity "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is defined as the physical constraints of the atmospheric distillation process equipment as determined by a professional engineer licensed in the State of Washington and shall be measured in barrels per day. 20.97.U).0230.2 Fossil Fuels. "Fossil Fuels" refers to hydrocarbon compounds and composites formed as a result of geologic processes acting on the remains of organic matter, including but not limited to coal, petroleum products and byproducts, crude oil, intermediate materials (such as unfinished oils and blendstock), natural gas, oil shales, bitumens, tar sands, liquified petroleum gases, propane, butane, and heavy oils. Renewable fuels are not Fossil Fuels. - 20.97.160.x230.3 Intermediate Materials: "Intermediate Materials" refers to refined or partially refined Fossil Fuel products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. Under this definition, feedstocks such as "topped crude" are not intermediate materials. 20.97.230.4 Maximum Transshipment Capacity The calculation of Maximum Transshipment Capacity shall be conducted by a professional engineer licensed in the State of Washington and shall consist of one or a combination of the following limitations: 1. The maximum physical limit of a facility's capacity for off-loading Fossil Fuels from one or more modes of shipment (i.e., rail, truck, pipeline, etc.), then storing and/or loading such Fossil Fuels, without processing through a Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district boundaries, such as the Cherry Point Industrial District, based on the facility's maximum physical limits to move Fossil Fuels from the receipt points of all its inbound shipment methods to the delivery points of all its outbound shipment methods of the facility, including the capacities or other physical attributes of the facility's equipment, including but not limited to capacities of: i. loading equipment; ii. offloading equipment; iii. pumps and/or compressors; iv. bulk storage; v. piping hydraulics; or vi. anv combination of the above. The capacity calculation shall exclude any equipment installed with a permit condition that prohibits that equipment from being used for transshipment purposes. 2. Shiament limitations imposed by County. State or Federal authorities that can be demonstrated by the applicant to restrict the frequency and/or annual amount of Fossil Fuel shipments at its facility. If any such limitations form the basis of a Maximum Transshipment Capacity calculation, then any future increases in Fossil Fuel shipments above those oreviously imposed limits would constitute an increase in Maximum Transshipment Capacity. 20.97.160 3230.5 Fossil Fuel Transshipment Facilityies. "Fossil Fuel Transshipment Facility" is a farility,-as an entire complex, consisting of its individual units, equipment, or components, which in aggregate, engaggs+wg primarily in the process of off-loading Fossil Fuels from one or more modes of shipment (i.e., rail, truck, pipeline, etc.), UanspeFt^ti„n method (such as shirr truck er. railca44 aad then stnrin= loading such Fossil Fuels+ without processing through a Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district boundaries, such as the Cherry Point Industrial District.transpeftatiGn-nieth4D4 for the puFpGses of tFans ,Ring the s�;p„-reran-inta�_ at A-r.,,,a«o„Teunt . This definition t.2nr,fn. faeffil i ties fee the shipment A f crui a eal without Fe fffi .GRg O .. the !`heFFV D..: r.t District afKI-shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. 20.97.350.4230.6 Renewable Fuel Transshipment Facilityies. "Renewable Fuel Transshipment Facility" a faciliitYl is an entire complex, consisting of its individual units, equipment, or components which in aggregate engagesing primarily in the process of off-loading renewable fuels and/or renewable biomass from one mode of shipment (i.e., rail, truck, pipeline, etc.) tFanspeFtatien method (such as `hip, tFUC;, aiIGaY` then storing and/or loading such fuels it without processing through a Renewable Fuel Refinery or Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. 20.973593b3 Renewable Fuel Refinery A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. Note: we did not discuss a change to the definition of Renewable Fuel Refinery, but it may warrant revisiting to maintain consistency with the definition of fossil fuel refinery. 20.97.1 GO 4230.8 Fossil Fuel Refinery A "Fossil Fuel Refinery" is a#asility, an entire complex, consisting of its individual units, equipment, or components, which in aggregate that engages primarily in receiving ar-. converting Fossil Fuels into g&UWg= products including but not limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, lubricating oils, intermediate Materials, and asphalt. Fossil Fuel Refinery facility uses include but are not limited to: receiving feedstocks, bulk storage, manufacturing, or processing of _ ossil Fuels, Intermediateiblaterials or byproducts, and shipment of those processed materials to downstream customers. The following activities do not render aFossil-Fuel Refineryif Fuel Transshipment Facility: (i) inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks, (ii) transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved, and (iii) necessary Fossil Fuels transfers during turn-arounds or maintenance periods. This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. Cherry Point Amendments Stakeholder Revisions For consideration by Whatcom County Council on November 24th, 2020 Jointly proposed by designated representatives of environmental advocacy groups, Cherry Point industries and organized labor, including: RE Sources, bp, Phillips 66, Petrogas, STAND, LiUNA 292 (WEC engaged supportively, pending final confirmation of yesterday's updated version) Last Updated: November 24th Color Coding Key: • Red strikethrG % —text removed • Blue underline —text added • Green stFikethFo g /underline) — language moved from one section to another, but retained • Black — CP Amendments Draft (Council approved as of October 28 2020) and/or existing WCC • Highlights [overlaid on any text colors shown above]: stakeholders' proposed changes SUCH A RIDICU1.005 REQUIREMENT! DRAW BRIDGE .AHEAD N DARKnoodle f / W/ (D@darknoodlecomic 20.66.200 Prohibited Uses [Light Impact Industrial (LII) District] .204 New Fossil Fuel efineryies or new ossil uel ransshipment acilit 20.68.050 Permitted Uses [Heavy Impact Industrial (HII) District] .059 Bulk commodity storage facilities, and truck, rail, vessel and transshipment terminals and facilities, except as prohibit. for fe- 01 W-el fa-ColeNas or. fassil { . .068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, Renewable Fuel Refineries, Renewable Fuel Transshipment Facilities, piers and docks legally established as of [XXX effective date of ordinance], provided that when a permit is sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any capacity changes defined under WCC 20.68.153 to the county permitting authorities. Provided that a conditional use permit is not required by WCC 20.68.153, permitted uses include repairs, improvements, maintenance, modifications, remodeling or other changes including, but not limited to the following: [enumerated 1— 2251 ... (1)-(17) ... ( ) Pipelines carrying petroleum or petroleum products solely within the Heavy Impact Industrial zoning district. (29 ) Pipelines carrying natural gas solely within the Heavy Impact Industrial zoning district. (.24 ) Renewable fuel production and shipment. Inter-refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks; (22) Transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved; (23) Necessary Fossil Fuels transfers during turn-arounds or maintenance periods. (24) Storage Tanks, provided that the County decision maker shall include in any approval of an application for storage tanks at an existing Fossil Fuel Refinery, Fossil Fuel Transshipment Facility, Renewable Fuel Refinery, or Renewable Fuel Transshipment Facility a condition that the storage tank shall only be used in the manner described in the application and approved in the permit. The application and permit shall describe the intended use of the storage tank, including the type of fuel to be stored and, if located within a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the storage tank will or will not be used for transshipment. 25 Other similar structures or activities .070 New enewable uel 'efineries or enewable Fuel Transshipment acilities, except that new piers, docks, or wharves in the Cherry Pont Industrial District are prohibited. .071 Expansion of existing legal Renewable Fuel Refineries or or -Renewable Fuel Transshipment Facilities, provided that the expansion is for Renewable ruels only. .081 Freight railroad switching yards and terminals, except as prohibited under WCC 20.68.200. .082 Marine port facilities, ihibited under WCC 20.68.200 20.68.150 Conditional Uses [Heavy Impact Industrial (HII) District] .153 Expansion of existing kegal• Fossil Fuel Refineries OF of existing legal F^«i' F.,^' Transshipment Far -Al:+: For purposes of this section, an expansion is any aAdjGF FOSS" FUP' Tr2-"ship""^+ FaSj!j+y development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that meets any one of the following applicable thresholds: A. Cumulatively increases aximum tmospheric irude istillation apacity of ossil uels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a licensed professional engineer; or B. Cumulatively increases ne facility's total rviaximum i ranssnipment Lapaaty wr russil Fuels °+; maximum uansrshipment eapaGa+by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.2 ; or C. Increases the frequency of Fossil Fuel unit train shipments by rail unloaded or loaded at an existing facility in excess of limits, if any, established by County, State or Federal authorities (where applicable) as of [XXX effective date of ordinance] or the effective date of a previously approved conditional use permit, whichever is more recent. fr-a—m- the faGility by mere than I Q 000 baFFels (OF 420,000 gallons) peF day-. .154 Expansion of existing fegal• g^-s-s01 Pup-' o^fiReries ar P of existing legal Fossil Fuel Transshipment Facilities. For purposes of this section, an expansion is any F^«i' Fuel Refine" „d/ F^«:l Fuel Tra-RiSs.:..ment F,,:�:+., development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that cumulatively increases the facilitv's total Maximum Transshipment Caoacity for Fossil Fuels by more than 10.000 barrels (or 420,000 gallons) per day, based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.2 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. Expansions applies-kio. shall be subject to the conditional use criteria below (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; (3) The applicant has documented to the County decision maker as applical, • all of the anticipated types and volumes of substances to be processed, stored, or transferred in bulk ____ ____ __ _,—zd expansion^Far the *ty; • in maximum transshipment capacity and/or the maximum atmospheric crude distillation capacity acurring as a result of the proposed expansion, as applicable; and • the mode of shipment vessels to be loaded or unloaded with the proposed equipment or a*the ty pc - --s� of rhp nrnposed expansion. The permit shall be limited exclusively to those types and volumes of materials or products as documented and approved. (4) Insurance requirements meet the provisions of WCC Sec�+ee 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. (7) Plans for stormwater and wastewater releases have been approved. (8) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for any piers or aquatic lands improvements, and it shall be demonstrated to the ir-if- G-VOR Of the zoning administrator that the project applicant has met any federal or state permit consultation requirements, including tribal treaty rights or the provisions of the Magnuson Amendment through state and federal permitting decisionsl'� (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site preparation or construction activities until it has fulfilled that condition. (10) The permittee must inform the county permitting authorities of a change in the aforementioned disclosures so that the department can document current capacity levels to ensure that the cumulative thresholds under WCC 20.68.153 have not been exceeded. (11) The County decision maker shall include, in any approval of an application for an expansion, as per 20.68.153 or 20.68.154, a condition that the permitted equipment shall only be used in the manner described by the project proponent in the application and approved in the permit. The application shall describe the intended use, including the type of fuel to be stored and, if located at a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the equipment will or will not be used for transshipment. 20.68.200 Prohibited Uses [Heavy Impact Industrial District] 204 New Fossil Fuel Refineries. .205 New Fossil Fuel Transshipment Facilities., PFOVided that, the following uses of facilities ale .206 New piers, docks, or wharves in the Cherry Point Industrial District. .207 Coal-fired power plants. 20.74.055 Prohibited Uses [Cherry Point Industrial District] Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66); and the Heavy Impact Industrial District SIC (Chapter 20.68), as applicable, and the following: 1)New piers, docks, or wharves in the Cherry Point Industrial District (2) Conversion of a Renewable Fuel Refinery or Renewable Fuel Transshipment Facility to become a Fossil Fuel Refinery or Fossil Fuel Transshipment Facilitiesy 20.97 Definitions Note: in reviewing existing Whatcom County Code, it appears that 20.97.160 (.1-.5) and 20.97.350.1 refer to other defined terms, which could be an error in the draft amendments or otherwise is meant to align with a code scrub that has not yet been published online. We adjusted numbering of definitions simply to avoid the need for additional numeric re- assigning. If this is numbering is unintentional, then other defined terms in the Cherry Point Amendments (not shown here) would also need to be renumbered. We will defer to PDS on preference for numbering, and would accept alternate numbers and ordering of defined terms as long as the definitional text shown below is amended as follows: - 20.97.230.1 Maximum Atmospheric Crude Distillation Capacity "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is defined as the physical constraints of the atmospheric distillation process equipment as determined by a professional engineer licensed in the State of Washington and shall be measured in barrels per day. - 20.97.1A230.2 Fossil Fuels. "Fossil Fuels" refers to hvdrocarbon compounds and composites formed as a result of geologic processes acting on the remains of organic matter. including but not limited to coal. petroleum products and byproducts, crude oil, Intermediate Materials (such as unfinished oils and blendstock), natural gas, oil shales, bitumens, tar sands, liquified petroleum gases, propane, butane, and heavy oils. Renewable fuels are not Fossil Fuels. - 20.97.360 x230.3 Intermediate Materials: "Intermediate Materials" refers to refined or partially refined Fossil Fuel products that are produced at a refinery by processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending components. Under this definition, feedstocks such as "topped crude" are not intermediate materials. 20.97.230.4 Maximum Transshipment Capacity The calculation of Maximum Transshipment Capacity shall be conducted by a professional engineer licensed in the State of Washington and shall consist of one or a combination of the followine limitations: 1. The maximum physical limit of a facility's capacity for off-loading Fossil Fuels from one or more modes of shipment (i.e., rail, truck, pipeline, etc.), then storing and/or loading such Fossil Fuels, without processing through a Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district boundaries (such as the Cherry Point Industrial District), based on the facility's maximum physical limits to move Fossil Fuels from the receipt points of all its inbound shipment methods to the delivery points of all its outbound shipment methods ^fR, including the capacities or other physical attributes of the facility's equipment, including but not limited to capacities of: i. loading equipment; ii. offloading equipment; iii. pumps and/or compressors; iv. bulk storage; v. piping hydraulics; or vi. anv combination of the above. The capacity calculation shall exclude any equipment installed with a permit condition that prohibits that equipment from being used for transshipment purposes. 2. Shioment limitations imaosed by County. State or Federal authorities that can be demonstrated by the applicant to restrict the frequency and/or annual amount of Fossil Fuel shipments at its facility. If any such limitations form the basis of a Maximum Transshipment Capacity calculation, then any future increases in Fossil Fuel shipments above those oreviously imaosed limits would constitute an increase in Maximum Transshipment Capacity. 20.97.160 2230.5 Fossil Fuel Transshipment Facilityies. "Fossil Fuel Transshipment Facility" is a fasiiity, as an entire complex, consisting of its individual units, equipment, or components, which in aggregate, engaggsing primarily in the process of off-loading Fossil Fuels from one or more modes of shipment (i.e., rail, truck, pipeline, etc.), tFaRSr,„rtatien Fnethed (such as shop tr wk er. ail.. ,r► a-nd then stnrin= loading such Fossil Fuels+ without processing through a Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district boundaries, such as the Cherry Point Industrial District. fer the puFpesers of tr-.RSPGr ORg the andhM .,t ..f Whatre..... Geunty. This definition trandpr fari Umpr, fer thin chipmpnt of .-rI-de Gil WithOlIt refining OF . „ the Cherr., PGiRt District af;d-shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. 20.97.2r%Q 4230.6 Renewable Fuel Transshipment Facilityies. "Renewable Fuel Transshipment Facility" may, is an entire complex, consisting of its individual units, equipment, or components which in aggregate engagesing primarily in the process of off-loading Renewable Fuels and/or Renewable Biomass from one mode of shipment (i.e., rail, truck, pipeline, etc.) , OF Fa i ;aF) then storing and/or loading such fuels 4 without processing through a Renewable Fuel Refinery or Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zonine district boundaries. such as the Cherry Point Industrial District. aAdjGF out of Whatea-M County. This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. 20.97UO 2230.7 Renewable Fuel Refinery A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. Note: we did not discuss a change to the definition of Renewable Fuel Refinery, but it may warrant revisiting to maintain consistency with the definition of fossil fuel refinery. 20.97.U44KO.8 Fossil Fuel Refinery A "Fossil Fuel Refinery" is may, an entire complex, consisting of its individual units, equipment, or components, which in aggregate that engages primarily in receiving and converting Fossil Fuels into pe#Gleum products including but not limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, lubricating oils, Intermediate Materials, and asphalt. Fossil Fuel Refinery faEiiity uses include but are not limited to: receiving feedstocks, bulk storage, manufacturing, or processing of Fossil Fuels, Intermediate Materials or byproducts, and shipment of those processed materials to downstream customers. The following activities do not render a Fossil -Fuel Refinery a Fossil - Fuel Transshipment Facility: (i) inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks, (ii) transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved, and (iii) necessary Fossil Fuels transfers during turn-arounds or maintenance periods. This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. Whatcom County Council (Special) COUNTY COURTHOUSE 311 Grand Avenue, Ste #105 Bellingham, WA 98225-4038 (360) 778-5010 G - VIEW ONLINE , December 10, 2020 Virtual Meeting COUNCILMEMBERS Rud Browne Barry Buchanan Tyler Byrd Todd Donovan Ben Elenbaas Carol Frazey Kathy Kershner CLERK OF THE COUNCIL Dana Brown -Davis, C.M.C. Council (Special) Meeting Agenda December 10, 2020 Call To Order Roll Call Discussion 1. AB2020-345 Discussion of proposed Cherry Point amendments Continued discussion of County Council and Joint Stakeholder Grou proposed revisions to the Whatcom County Planning Commission's recommendations - Cherry Point Items Added by Revision Other Business Adiournment Whatcom County Pure 2 Printed on 121212020 PRELIMINARY DRAFT County Council Working Draft — With Changes through October 28, 2020 Exhibit B 2 3 NOTE: Changes from existing text are shown within underlines and strikethroughs (Planning Commission 4 changes that differ from the County Council Resolution 20 7 9-037 are highlighted in yellow and County 5 Council changes from fall 2020 are highlighted in gray). 6 CHAPTER 16.08 STATE ENVIRONMENTAL POLICY ACT (SEPA) 7 16.08.090. Environmental checklist 8 E. Evaluation/Worksheet for Fossil and Renewable Fuel Facilities: Air and environmental health are elements of the 9 environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in 10 WAC 197-11-9060)(c), Whatcom CoqpV hereby adds a procedure and criteria to help identify the affected environment, 11 impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For any proposed 12 ehange of use expansion of facilities pursuant to and in accordance with WCC 20.68.153that .,,anuf etufe „-•opess store 13 or *r-anspoi* any fossil fuel, able fuel r hydr-ocarbo^4 edstoek, the proponent will provide an expert evaluation or fill 14 out the County's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." This expert evaluation or Worksheet provides 15 detailed information required to evaluate impacts to air, land and water during review of a SEPA environmental checklist. 16 The form of the worksheet shall be prepared and updated as neededexpet e�by the SEPA Responsible Official in 17 consultation with the Planning Commission 18 and its ember.^. The expert evaluation or Worksheet shall analyze the "significance" of direct, indirect, and cumulative 19 impacts inei ding nA not limited to those arising from: 20 1. Windborne transport of fossil or renewable fuel emissions across Whatcom Count 21 2. Lifecycle greenhouse gas emissions for renewable facilities and facility emissions above existing levels for fossil 22 fuel facilities; 23 3. Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or 24 interfere with commercial and treaty tribe fishing areas; a 25 4. Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the 26 shorelines, and to their headwaters; and 27 5. Potential for loss of life and/or property related to risks from spills or explosions associated with refining and 28 transport of renewable or fossil fuels or related feedstocks within Whatcom County. 29 In determining whether possible impacts are "significant" and "probable," the Responsible Official shall determine whether 30 the aws vefs-eprinformation in the expert evaluation or the Worksheet for Fossil Fuel P^,.44ie^ accurately analyze the severity 31 of potential harm, independently from analysisprobability of occurrence, in compliance with WAC 197-11-330. Also, as 32 provided in WAC 197-11-794, "the severity of an impact should be weighed along with the likelihood of its occurrence" and 33 an impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe 34 if it occurred." 35 The worksheet and ^ g%Aenjent ' information provided in the expert evaluation or Worksheet required for fossil and 36 renewable fuel facilities shall be considered procedures and criteria added to Whatcom County's SEPA policies and 37 procedures pursuant to WAC 197-11-906(1)(c) and are deemed necessary to be consistent with the provisions of SEPA 38 contained in RCW 43.21C.020, RCW 43.21C.030 and RCW 43.21C.031. However, the expert evaluation or Worksheet may 39 not be required if an environmental impact statement is prepared. 40 DiscussionlNotes: Suggest reference to WAC 7 97-1 1-906 (1) (c) as basis to require worksheet 41 since it allows for additional procedures and criteria. WAC 197-1 1-375 refers to Ecology and 30- 42 day review for planned actions, which is not proposed. 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 1AF Rationale for Changes (shown within highlighting): The worksheet will take time to develop and likely will not be available when Council adopts the ordinance. Additionally, larger or more complex projects would benefit from expert evaluation of the issues listed above. It may not be necessary to update the worksheet every year. Therefore, the proposed change is to update the worksheet "as needed." On January 30, 2020, the Planning Commission passed a motion to remove the reference to the Climate Impact Advisory Committee, as the SEPA Official may consult with any committee (including but not limited to the Climate Impact Advisory Committee) when preparing/updating the worksheet. On February 27, 2020, the Planning Commission inserted a clause that requires the SEPA Official to consult with the Planning Commission when preparing/updating the worksheet. The proposed SEPA rules authorize GHG mitigation for "facility emissions" for fossil fuel facilities (proposed WCC 16.08.160.F.1.b.i(a) — Exhibit B, page 4). The proposed SEPA rules require "lifecycle" GHG emission analysis for renewable facilities (proposed WCC 16.08.160.F.1.b.ii — Exhibit B, page 5). The information required in the evaluation worksheet should correspond to these SEPA requirements. The evaluation worksheet addresses impacts "including but not limited to" the five listed issues. The phrase "including but not limited to" has been deleted because it is open-ended and undefined. Applicants will not know what they are required to address if this phrase is retained. Finally, if an environmental impact statement (EIS) is required, then the evaluation worksheet will not be needed since significant adverse impacts will be addressed in the EIS. 16.08.160 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. Rationale for Changes (shown with highlighting): Subsections E and F below include provisions relating to placing conditions on projects. 72 C. The county may deny a permit or approval for a proposal on the basis of SEPA so long as: 73 1. A finding is made that approving the proposal would result in probable significant adverse environmental impacts that 74 are identified in a FEIS or final SEIS prepared pursuant to this chapter; and 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 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. Rationale for Changes (shown with highlighting): Subsection F below includes a provision relating to denying projects. 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. 96 2. The county recognizes that each person has a fundamental and inalienable right to a healthful environment and that 97 each person has a responsibility to contribute to the preservation and enhancement of the environment. 98 3. The county adopts by reference the policies in the following county documents: 99 Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components) 100 Whatcom County Shoreline Management Program 101 Whatcom County Subdivision Ordinance 102 Whatcom County Solid Waste Management Plan 103 Whatcom County Critical Areas Ordinance 104 All official land use controls adopted by Whatcom County. 105 E. Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed b. these 106 SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific 107 adverse environmental impact has been adequately addressed by an existing rule or law of another agency with 108 jurisdiction, the County shall consult orally or in writing with that agency and may expressly defer to that agency. In 109 making this deferral, the County shall base or condition its project approval on compliance with these other existing 110 rules or laws. in deeidinf� lief o .these r-eeolatians , ide su ffieiefA ; et fnit ,... is the r, wty, shall , „lt ,,...,ii., with the r-espeasible federal, sta4e or- other ai�eney with iufisdietieff and efivir-eamental e�ii)ef4ise and ma- 1 1 2 . defer- to that ageftey. The !''eufit V shall base „ nditie its eet ,7eeisie o eemplianee ,Vitt. those ethe - 1 13 _ . The County needshall not so defer if such regulations did 114 not anticipate or are otherwise inadequate to address a particular impact of a project. 115 116 117 118 Rationale for Changes (shown with highlighting): The replacement language above (the 2nd and 3rd sentences) is taken from the State SEPA rules (WAC 1 97- 1 1-158(4)) to better reflect these State rules. 119 120 F. Specific Environmental Policies 121 1. Air Quality and Climate: 122 a. Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality 123 of life. Mitigation of ^r�air pollutant impacts will normally be the subject of air permits required by the 124 Northwest Clean Air Agency (NWCAA) and/or State Department of Ecology (DOE) and no further mitigation by 125 the County shall be required. However, where a project being reviewed by the County generates public nuisance 126 impacts, odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, 127 the County may require mitigation under SEPA. 128 129 130 131 132 133 134 Rationale for Changes (shown with highlighting): Criteria pollutants are specific types of pollutants identified in the Federal Clean Air Act. The NWCAA addresses a wider variety of pollutants. Additionally, the State Department of Ecology may require a "Prevention of Significant Deterioration" permit for certain industrial sources of air pollution (e.g. refineries). Using the term "public" nuisance in the text above will maintain consistency with WCC 20.66.704 and WCC 20.68.704, the Light Impact Industrial and Heavy Impact Industrial provisions relating to odors. 135 b. Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows 136 and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads, 137 dikes and critical infrastructure such as water and waste treatment facilities. While climate chan eg is a global 138 phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that 139 projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be 140 authorized by the County address greenhouse gas emissions impacts. 114;-4gsatiebe emeved�� 141 iens eantaifted in reofft , i...,a , v and deve , ent l ti rs th fei t, the Sta4e Env -,..,meat i Policy 143 144 145 146 147 148 149 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. GHG mitigation through SEPA is addressed below. 150 i. Greenhouse Gas Emissions — Fossil Fuel Facilities and Fossil Fuel Transshipment Facilities: The following 151 policies shall apply to fossil fuel facilities and fossil fuel transshipment facilities. 152 (a) Emissions Calculated: The SEPA Responsible Official may require mitigation for greenhouse gas 153 emissions of fossil fuel facilities and fossil fuel transshipment facilities, as calculated consistent with the 154 definition of facility emissions in WCC 16.08.175'4.°�T. 155 (b) Assessment: Greenhouse gas emissions impacts shall be assessed using *current scientifically 156 valid modeling technique syefsiea of the rPRRT Model developed by Ar e N..tien l T abera4 fies 157 where f edst. eke are P-....-. ('...,.,.7.. tl. - latest ver-sien of the GH !_onus .... edel devel oa 1. , r.,....,,7:.,,, 159 160 161 162 163 Rationale for Changes (shown with highlighting): Industry representatives have indicated concern about the models referenced above. The proposed changes would allow appropriate methods to be used in calculating greenhouse gas emissions. 164 165 (c) Mitigation: Greenhouse gas emissions that create specific adverse environmental impacts may be offset 166 far- or-epasals subieet to WGC_ 20.68.801 thfetteh either- eade r-eEittifemen4s or-, ifnet addressed thr-etleh-ee& 167 r-e efnerAs. through mitigation projects that provide realveddi4efia4 and quantifiable greenhouse gas 168 mitigation. 169 170 for- pefmits sweet teWCC L969.901. 171 172 173 174 175 176 177 178 179 180 181 182 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. The double counting language above is somewhat confusing. It seems to indicate that, if mitigation is required by a different agency, then County -required mitigation must be different and additional. But a general concept is that, if another agency requires adequate mitigation, County mitigation is not required. Therefore, this language has been deleted. Additionally, SEPA allows for mitigation of "specific adverse environmental impacts" (RCW 43.21 C.060). This language has been inserted above. 183 ii. Greenhouse Gas Emissions — Renewable Fuels Facilities and Renewable Fuel Transshipment Facilities: The 184 SEPA Responsible Official shall require documentation of lifecycle greenhouse gas emissions associated with 185 renewable fuel facilities. The SEPA Responsible Official will consider the lifecycle greenhouse gas emissions 186 analysis when making the threshold determination. The SEPA Resig risible O ffig ..1 shall re ,,' 187 documentation of emissions consistent with b4a) and b4b) above. The ai)plican4 shall demonstrate that the 188 lifecycle ereepAiottse eas reductions associated with the renewable f,ols vide ., net reduction even ..,L.e., 189 eonsiderine trans or-t.,ti..n.,n ' �sions.if there : a net inerease in emissions locally,the SEPA 191 192 193 194 195 196 197 198 On October 10, 2019, the Planning Commission provided direction that renewable fuel facilities should not be required to mitigate greenhouse gas emissions if they reduce lifecycle greenhouse gas emissions. Therefore, the greenhouse gas language above has been modified, including deletion of the mitigation language. 199 iii. Greenhouse Gas Emissions — Other Uses Within the Heavv Impact Industrial District: 200 (a) Method of analysis: Determined by SEPA Responsible Official following consultation with federal and 201 state agencies with jurisdiction or expertise. 202 ( Mitigation: Determined by SEPA Responsible Official. See I.c. 203 c. It is the Count policy to minimize or prevent adverse air qualitypacts. Federal, state, regional, and county 204 regulations and programs cannot always anticipate or adequately mitigate adverse air qualitypacts. If the 205 decision -maker makes a written finding that the applicable federal, state, regional, and/or County regulations did 206 not anticipate or are inadequate to address the particular impact(s) of the project, the decision -maker may 207 condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deRyproject under 208 the provisions of the State Environmental Policy Act. 209 2. Plants and Animals: 210 a. Many species of birds, mammals, fish, and other classes of animals and plants living in both rural and urban 211 environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened 212 by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of 213 ecological, educational, and economic value include priority habitats and species as listed in the Washington 214 Department of Fish and Wildlife's Priority Habitats and Species, as amended, consistent with WCC 16.16.710, 215 and High Biodiversity Value Areas per the Whatcom County 2017 Ecosystem Report, as amended. 216 b. It is the County's policy to minimize or prevent the loss of fish and wildlife habitat that have substantial 217 ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and 218 federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be 219 given to anadromous fisheries and marine mammals. 220 c. it is the Coupo's i3ehey to ensure ai3i3heant r-avide ver-ifiabie deeufnei4a4ian of eensistenev with federal an-' 221 +Feat ,r-ieh4s..-ea 222 . The decision -maker maX 223 condition or deny the project to mitigate its specific adverse environmental impacts if the decision -maker finds 224 that a proposed project would reduce or damage rare, uncommon, unique or exceptional plant or wildlife habitat, 225 designated wildlife corridors, or habitat diversity for plants or animals species of substantial educational, 226 ecological. or economic value. or interfere with treatv rights. clean water rights. or endangered species protection. 227 Discussion/Notes: If amendments are made to the Comprehensive Plan policies then the County 228 will in effect update policies under the County's SEPA substantive authority. 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 Rationale for Changes (shown with highlighting): Federal and state agencies would typically determine compliance with federal and state laws when they issue or deny a permit or other authorization for a project. The language above implies that certain federal and state permits/authorizations must be issued before the County can do SEPA review on a project. The State SEPA rules (WAC 197-1 1- 158(4)) indicate: In deciding whether a project specific adverse environmental impact has been adequately addressed by an existing rule or law of another agency with jurisdiction, the GMA county/city shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the GMA county/city shall base or condition its project approval on compliance with these other existing rules or laws. This concept of consultation is already embodied in the proposed amendments in WCC 16.08.160.E above. Therefore, the language highlighted above should be deleted. 244 16.08.175 Purpose of this article and adoption by reference. 245 This article contains uniform usage and definitions of terms under SEPA. The county adopts the following sections 246 by reference, as supplemented by WAC 173-806-040: 247 248 WAC 249 197-11-700 Definitions. 250 197-11-702 Act. 251 197-11-704 Action. 252 197-11-706 Addendum. 253 197-11-708 Adoption. 254 197-11-710 Affected tribe. 255 197-11-712 Affecting. 256 197-11-714 Agency. 257 197-11-716 Applicant. 258 197-11-718 Built environment. 259 197-11-720 Categorical exemption. 260 197-11-721 Closed record appeal. 261 197-11-722 Consolidated appeal. 262 197-11-724 Consulted agency. 263 197-11-726 Cost -benefit analysis. 264 197-11-728 County/city. 265 197-11-730 Decision maker. 266 197-11-732 Department. 267 197-11-734 Determination of nonsignificance (DNS). 268 197-11-736 Determination of significance (DS). 269 197-11-738 EIS. 270 197-11-740 Environment. 271 197-11-742 Environmental checklist. 272 197-11-744 Environmental document. 273 197-11-746 Environmental review. 274 197-11-750 Expanded scoping. 275 197-11-752 Impacts. 276 197-11-754 Incorporation by reference. 277 197-11-756 Lands covered by water. 278 197-11-758 Lead agency. 279 197-11-760 License. 280 197-11-762 Localagency. 281 197-11-764 Major action. 282 197-11-766 Mitigated DNS. 283 197-11-768 Mitigation. 284 197-11-770 Natural environment. 285 197-11-772 NEPA. 286 197-11-774 Nonproject. 287 197-11-775 Open record hearing. 288 197-11-776 Phased review. 289 197-11-778 Preparation. 290 197-11-780 Private project. 291 197-11-782 Probable. 292 197-11-784 Proposal. 293 197-11-786 Reasonable alternative. 294 197-11-788 Responsible official. 295 197-11-790 SEPA. 296 197-11-792 Scope. 297 197-11-793 Scoping. 298 197-11-794 Significant. 299 197-11-796 State agency. 300 197-11-797 Threshold determination. 301 197-11-799 Underlying governmental action. 302 In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this article, 303 the following terms shall have the following meanings, unless the context indicates otherwise: 304 A. "Early notice" means the county's response to an applicant stating whether it considers issuance of a 305 determination of significance (DS) likely for the applicant's proposal (mitigated determination of 306 nonsignificance (MDNS) procedures). 307 B. "ERC" means environmental review committee established in WCC 16.08.045. 308 C. "Facility Emissions" means greenhouse gas emissions associated with fossil fuel refineries or fossil fuel 309 transshipment facilities based upon the refining and processing of fossil fuels located within the Cherry 310 Heavy Industrial area. 311 312 313 314 315 316 317 318 319 320 321 322 323 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definition of "facility emissions" was in the proposed Zoning Code language. However, this term no longer is used in the Zoning Code. Therefore, the definition was moved from the Zoning Code to the County's SEPA rules. On June 25, 2020, the Planning Commission approved a motion to remove the following elements from the original Council definition of facility emissions: • The transportation within the borders of Whatcom County of refined and unrefined fossil fuels to and from a facility located within the Cherry Point Heavy Industrial area, and • The upstream emissions generated by the production and transport of raw products to the facility such as crude oil feedstocks or other fuels used in production or energy generation at facilities. 324 D. "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse 325 gases," "GHG," and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, 326 perfluorocarbons, and sulfur hexafluoride, and any other gas or gases designated by the federal clean air act 327 (United States Code Title 42, Chapter 85), state clean air act (Chapter 70.94 RCW) or state limiting_ greenhouse 328 aas emissions law (Chanter 70.235 RCW). 329 330 E. "Lifecycle greenhouse ,gas emissions" means the aggregate quantity of greenhouse gas emissions (including 331 direct emissions and significant indirect emissions), related to the full fuel lifecycle, includingall of fuel 332 and feedstock production and distribution, from feedstock ,generation or extraction through the distribution and 333 delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are 334 adjusted to account for their relative global warming potential. 335 336 337 338 339 340 341 342 343 344 345 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definitions of "greenhouse gas emissions" and "lifecycle greenhouse gas emissions" are in the proposed Zoning Code language. However, these terms are only used in the definition of "renewable fuels" in the Zoning Code. They are most often used in the proposed SEPA rules. Therefore, these terms were inserted into the County's SEPA rules. 346 FE. "Ordinance" means the procedure used by the county to adopt regulatory requirements. 347 348 GD. "Responsible official" shall mean the director of the department which bears responsibilities for the SEPA 349 process or his/her designee. 350 351 HE. "SEPA rules" means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 98-048 Exh. A; 352 Ord. 84-122 Part 8). 353 354 355 356 357 358 359 360 361 362 363 364 Exhibit C 365 CHAPTER 20.66 LIGHT IMPACT INDUSTRIAL (LII) DISTRICT 366 20.66.200 Prohibited uses. 367 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not 368 limited to the following, which are listed here for purposes of clarity: 369 .201 Reserved. 370 .202 Adult businesses except those allowed as an administrative approval use under WCC 20.66.131. 371 .203 In the Bellingham Urban Growth Area the following uses are prohibited: „et -Oleum r-e fi er-y and the pr-'—,,..., 372 anuf eturing of pr-oduets theFe^f primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and 373 products derived thereof, and primary metal industries. 374 .204 New fossil -fuel refinery; or new fossil fuel transshipment or -facility „rips ermitted as a i3aft of n existing-e fi 375 modification other -wise permitted tmder this code. 376 377 378 379 Rationale for Changes (shown with highlighting): The existing refineries are south of Grandview Rd., in the Heavy Impact Industrial zone. There are no refineries north of Grandview in the Light Impact Industrial zone. 380 DiscussionlNotes: Prohibit fossil fuel related industries in the LII District; already 381 prohibited in the Bellingham UGA. It does not appear that such uses exist in the LII zone; 382 thus, we have only addressed the prohibition of fossil -fuel refinery and fossil fuel 383 transshipment facility unless part of an existing refinery (e.g. transshipment). 384 385 386 387 388 389 390 391 392 393 11 10 394 CHAPTER 20.68 HEAVY IMPACT INDUSTRIAL (HII) DISTRICT 395 20.68.050 Permitted uses. 396 Unless otherwise provided herein, permitted and accessory uses shall be administered pursuant to the applicable provisions of 397 Chapter 20.80 WCC, Supplementary Requirements, and Chapter 20.84 WCC, Variances, Conditional Uses, Administrative 398 Uses and Appeals, the Whatcom County SEPA Ordinance, the Whatcom County Subdivision Ordinance and the Whatcom 399 County Shoreline Management Program -.-and implementing regulations. The purpose of the SIC numbers listed within this 400 ehapter- is to adept by reference other- activities similar- in nature to the use identified herein. (Policies of the subare-a 401 Gompr-ehensive Plan may preolude oer-tain permitted uses to occtw in par-tiottlaf s4ar-eas. Please refer- to the policies of 402 appheable stibar-ea plan to deter -mine the appFepFiateness of a land use aetivitY listed below4 403 .051 The manufacture and processing of food including meat (including packinghouses and slaughterhouses), dairy, fruits, 404 vegetables, seafood, grain mill, large scale bakery, sugar and beverage products, provided the following criteria are met: 405 (1) Holding pens associated with packinghouses and slaughterhouses shall be limited to that necessary to accommodate 406 animals intended for processing within 24 hours. 407 (2) The facility shall comply with the solid waste handling standards as set forth in Chapter 173-350 WAC, as administered 408 by the Whatcom County health department as adopted by reference in Chapter 24.06 WAC. 409 (3) If required by the Washington State Department of Ecology, the following permits shall be obtained: 410 (a) State waste discharge permit (Chapter 173-216 WAC); 411 (b) Industrial stormwater permit - general permit (Chapter 173-226 WAC); 412 (c) An NPDES permit (Chapter 90.48 RCW and Chapter 173-220 WAC). 413 .052 Manufacturing and processing of textiles including weaving cotton, synthetic, silk or wool fabrics; knitting yarn and 414 thread mills; textile bleaching, dyeing and printing; and carpet manufacture. 415 .053 The manufacture and processing of lumber and wood including sawmills; planing mills; millwork; veneer, plywood and 416 prefabricated wood products; wooden containers and cooperage. 417 .054 The following are permitted uses except as otherwise prohibited: 418 (1) The manufacture and process of paper including pulp, paper and paperboard mills; and building paper and board mill 419 products. 420 (2) The manufacture and processing of chemicals and allied products including industrial inorganic and organic chemicals; 421 synthetic resins, rubber, fibers and plastic materials; soap, detergents and cleaning preparations; paint, linseed oil, shellac, 422 lacquer and allied products; chemicals from gum and wood; and agricultural chemicals. 423 424 (a) fossil A,ol refineries, isti. lee ll... of FXXX effective .late! 425 (W fossil fuel tra-, sshi ea4 f e l;tieS v iStifie lo,...11.... Of FXXX eff 6ti Ve .la4ej 426 427 428 429 430 431 Rationale for Changes (shown with highlighting): Existing fossil fuel facilities have been moved to proposed WCC 20.68.068 below. (34) The manufacture and processing of rubber and plastic products. (4-5) Leather tanning and finishing. 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 (56) The manufacture and processing of cement and glass; and concrete, gypsum, plaster, abrasive, asbestos and nonmetallic mineral products. (69) Primary metal industries including blast furnaces and steel works; mills for primary smelting, secondary smelting, refining, reducing, finishing, rolling, drawing, extruding, and casting of ferrous and nonferrous metals; and the manufacture of miscellaneous metal products. (7) Storage of asphalt in the Heavypact Industrial Zone. DiscussionlNotes: Retained from (3) above in case of construction related businesses. Rationale for Changes (shown with highlighting): Existing renewable facilities are addressed in proposed WCC 20.68.068 and 20.68.071 below. .055 The fabrication of metal products including metal cans, hardware, hand tools, cutlery, heating apparatus, plumbing fixtures, structural metal and stamping. .056 The manufacture of machinery including engines; turbines; farm machinery and equipment; construction, mining and materials handling equipment; machine tools and dies; and special and general industrial equipment. .057 The manufacture of electrical machinery including transmission and distribution equipment, and industrial apparatus. .058 The manufacture of transportation equipment including automobiles, trucks, buses, airplanes, boat building and repair, railroad equipment, bicycles and motorcycles. .059 Bulk commodity storage facilities, and truck, rail, vessel and pipeline transshipment terminals and facilities except for fossil fuel facilities or fossil fuel transshipment facilities s4jeet t the pr-e isiens of 2Q6 , c3 New fossil a,o, o a Rationale for Changes (shown with highlighting): Proposed WCC 20.68.068, WCC 20.68.153, and WCC 20.68.205 address permitted, conditionally permitted, and prohibited fossil fuel facilities. The above change would simplify the proposed language by indicating that fossil fuel facilities are not addressed by WCC 20.68.059. 457 .060 Stationary thermal power plants with generating capacity of less than 250,000 kilowatts, floating thermal power plants 458 with generating capacity of less than 50,000 kilowatts, and other power plants utilizing renewable resources from solar, wind 459 (Chapter 20.14 WCC) or water sources, except that coal-fired power plants are prohibited. 460 461 462 463 464 465 466 467 468 469 470 Rationale for Changes (shown with highlighting): The Council's proposed amendments would prohibit coal fired power plants (proposed WCC 20.68.207). However, power plants are already permitted in the HII zone (WCC 20.68.060). Therefore, WCC 20.68.060 should be modified to clarify that permitted power plants do not include coal fired power plants. .061 Heavy construction contractors. .062 Public uses and community facilities including police and fire stations, libraries, activity centers, community centers, park and recreation facilities identified in an adopted city or county Comprehensive Plan or Park Plan, and other similar noncommercial uses, excluding state education facilities and correction facilities. .063 One one-story detached accessory storage building per lot; provided, that the floor area shall not exceed 200 square feet and shall only be used for personal storage and not for habitation or business; and provided further, that the storage building shall contain no indoor plumbing but may be served with electrical power for lighting. 11 12 471 .064 Uses allowed in the Light Impact Industrial Zone as permitted uses, WCC 20.66.100, shall be permitted outright within 472 the Heavy Impact Industrial District in the Bellingham UGA. 473 .065 Trails, trailheads, restroom facilities and associated parking areas for no more than 30 vehicles. 474 .066 Marijuana production or processing facility. 475 .068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, renewable fuel refineries, renewable fuel 476 transshipment facilities, piers and docks legally established as of [XXX effective date of ordinancel, provided that when a 477 permit is sought for a project proposed within or attached to a facility of such classification, the applicant must disclose any 478 capacity changes defined under WCC 20.68.153 to the county permitting authorities. pProvided that a conditional use permit 479 is not required by WCC 20.68.153, permitted uses includeing_repairs, improvements, maintenance, modifications, remodeling 480 or other changes including but not limited to the following,: 481 (1) Accessory and appurtenant buildings, structures, and processing equipment. 482 (2) Office space. 483 (3) Parking lots. 484 (4) Radio communications facilities. 485 (5) Security buildings, fire stations, and operation centers. 486 (6) Storage buildings. 487 (7) Routine maintenance and repair. 488 (8) Environmental improvements and other projects that are required on the subject site by federal, state, regional, or local 489 regulations, including modifications of fossil fuel facilities for purposes of co -processing biomass with petroleum. 490 (9) Road projects and bridges. 491 (10) Temporary trailers. 492 (11) Heating and cooling systems. 493 (12) Cable installation. 494 (13) Information technology improvements. 495 (14) Continuous emissions monitoring systems or analyzer shelters. 496 05) Wastewater and stormwater treatment facilities. 497 (16) Replacement and upgrading of existing equipment. 498 (17) Safely ogrades. 499 (18) Storage tanks. 500 (19) Pipelines carrvine Detroleum or petroleum Droducts solelv within the Heavv Impact Industrial zonine district. 501 (20 Pipelines cart iinn,g natural gas solely within the HeM Impact Industrial zoning district. 502 (21) Renewable fuel production and shipment. 503 (22) Other similar structures or activities. 504 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and transshipment facilities from former 505 proposed WCC 20.68.802 to the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code. Additional items have been inserted as permitted uses to address public comments, including pipelines (# 19 and 20) added on July 9, 2020. On August 13, 2020, the Planning Commission added the co -processing language to # 8 and inserted # 21 above. 11 13 506 .070 New renewable fuel refineries or renewable fuel transshipment facilities, except that new piers, docks, or wharves in the 507 Cherry Point Industrial District are prohibited. 508 509 510 511 512 513 514 515 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by Council). The Council's original proposed amendments would prohibit new piers, docks, or wharves in the Cherry Point Industrial District (proposed WCC 20.68.206 and 20.74.055). This is recognized in proposed WCC 20.68.070 by indicating that this provision does not apply to piers, docks, or wharves. 516 0.71 Expansion of existing legal renewable fuel refineries or renewable fuel transshipment facilities, provided that the 517 expansion is for renewable fuels only. 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 Rationale for Changes (shown with highlighting): On January 16, 2020, the Planning Commission passed a motion that expansion of renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by the County Council). .081 Freight railroad switching yards and terminals, excluding uses addressed in .059. .082 Marine port facilities, excluding uses addressed in .059, and excluding new piers, docks, or wharves. .085 Type I solid waste handling facilities. .086 Type II solid waste handling facilities. 20.68.100 Accessory uses. .101 Employee recreation facilities and play areas. .102 Restaurants, cafes and cafeterias operated primarily for the convenience of employees, clients and customers of the district. .103 Temporary buildings for construction purposes for a period not to exceed the duration of such construction. .104 When auxiliary to a principally permitted use: electric utility facilities; substations; generating plants, if less than 50 megawatt (MW) net plant capability; gas works; sewage disposal facilities; solid waste landfills and incinerators. .105 Other accessory uses and buildings, including security services, customarily appurtenant to a principally permitted use. .106 On -site treatment and storage facilities for hazardous wastes associated with outright permitted uses or approved conditional uses subject to the most current siting criteria under Chapter 173-303 WAC. .107 Mini -day care centers, and day care centers operated by, maintained by or funded by business in the district for the purpose of serving the child care needs of employees whose place of employment lies within this zone district. .108 Electric vehicle rapid charging stations and battery exchange facilities. 11 14 539 20.68.130 Administrative approval uses. 540 .131 Commercial mushroom substrate production limited to the Cherry Point Industrial Area and pursuant to the 541 requirements as contained in WCC 20.15.020(2) (commercial mushroom substrate production facilities). (Ord. 2006-031 § 1 542 (Exh. A), 2006). 543 20.68.150 Conditional uses. 544 The following uses require a conditional use permit in the HII Zoning District. 545 .152 Uses allowed in the Light Impact Industrial zone as permitted uses, WCC 20.66.100, subject to the following: 546 (1) Outside of the Bellingham Urban Growth Area, approval shall be supported by a finding by the hearing examiner that 547 allowing the use will not limit the supply of land available to meet the demand for future heavy industrial uses. 548 (2) Filing of a deed restriction acknowledging that heavy industrial uses are the preferred uses in the zone and agreeing not to 549 protest proposed heavy industrial uses allowed in the zone in accordance with Chapter 20.68 WCC, and to refrain from legal 550 action against any heavy industrial use in compliance with the regulations of WCC Title 20 and any conditions of approval 551 which might have been proposed. 552 .153 Expansion of existing legal fFossil (Fuel rRefineries�s and the pr-ifflar-y Manufa 553 or-oduets the -eoF or expansion of existing legal (Fossil Fuel tTransshipment €Facilities. For purposes of this 554 section, an expansion is any Fossil Fuel Refinery and/or Fossil Fuel Transshipment Facility development (including 555 otherwise permitted or accessory), vested after the effective date of this ordinance, that meets any one of the following 556 applicable thresholds: 557 A. Cumulatively increases its maximum atmospheric crude distillation capacity of fossil fuels by more than 10,000 558 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment limitations conducted by a 559 licensed professional engineer: or 560 B. Cumulatively increases itsthe-maximum transshipment capacity of the f edity by more than 10,000 barrels (or 561 420.000 gallons) per dav: or 562 C. Cumulatively increases itsthe-maximum transshipment capacity of unrefined fossil fuels from the facility by more 563 than 10.000 barrels (or 420.000 uallons) per day. 564 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. 565 566 567 568 569 570 571 572 573 574 575 576 577 Rationale for Changes (shown with highlighting): On January 16 and 30, 2020, the Planning Commission approved motions defining what activities constitute an "expansion" and when a conditional use permit is required. On January 16, 2020, the Planning Commission also approved a motion to move expansion of renewable fuel facilities from conditional use to permitted use, as long as the expansion is for the increased production of renewable fuels. On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to remove certain fossil fuel storage tank capacity increases from the above list of improvements that require a conditional use permit (storage tanks are a permitted use under proposed WCC 20.68.068). Such expansions shall be subject to the conditional use criteria below: (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; (3) The applicant has documented to the satisF etion 4Fthe County decision maker all of the anticipated sees -types; and volumes of substances to be processed, stored, or transferred in bulk at the facility, the maximum transshipment capacity or [he maximum atmospheric crude distillation capacity (as applicable), and the mode of shipment vessels to be loaded or 11 15 578 unloaded at the facility. The permit shall be limited exclusively to those types and volumes of materials or products as 579 documented and approved. 580 581 582 583 584 585 586 587 588 589 590 591 592 593 Rationale for Changes (shown with highlighting): Sources of raw materials may change over time and new sources may come on-line. It may be very difficult, if not impossible, to predict sources of materials over the life of a project. (4) Insurance requirements meet the provisions of WCC Section 22.05.125. (5) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction. (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. ..il t the ., 1;oant shall pFe�vide verifiable .le,.,,,Y,ent.,tio to the e , 4 , that the f eili , has bee,. ,. nstnaete.l e iste.,t with any 1;cable federal or --state re e„ts includine..,te. rieh4s and -use, Rationale for Changes (shown with highlighting): Criterion 7 above, addressing federal and state requirements appears to be unnecessary because criterion 9 already addresses federal and state permitting. 594 (78) Plans for stormwater and wastewater releases have been approved. 595 (89) Prior to commencement of anypreparation or construction activities, all necessary state leases shall be acquired for 596 any piers or aquatic lands improvements, and it shall be demonstrated to the satisfaction of the zoning administrator that the 597 project applicant has met any federal or state permit or -consultation requirements, including tribal treaty 598 riehts or the provisions of the Maenuson Amendment throueh state and federal oermittine decisions: and 599 (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete 600 any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site 601 preparation or construction activities until it has fulfilled that condition. 602 (10) The permittee must inform the county permitting authorities of a change in the aforementioned disclosures so that the 603 department can document current capacity levels to ensure that the cumulative thresholds under 20.68.153 have not been 604 exceeded. �play 606 607 608 609 611 612 613 614 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission approved a motion to delete the living wage job language from the conditional use permit approval criteria. 11 16 615 .154 Treatment and storage facilities for hazardous wastes subject to the following: 616 (1) The -eight criteria for a conditional use listed under WCC 20.84.200. 617 (2) The most current state siting criteria under Chapter 173-303 WAC. 618 (3) It shall be the responsibility of the applicant to document to the satisfaction of the approving body the anticipated sources, 619 types, volumes and final disposition of hazardous wastes to be collected and the type of treatments associated with those 620 wastes. The permit shall be limited exclusively to those types of wastes and treatments as documented and approved. 621 (4) Total off -site facility capacity shall be limited to that needed to treat and store wastes generated within Whatcom County 622 by generators requiring off -site management of hazardous wastes; provided, however, waste streams may be sourced from 623 other jurisdictions through interagency zone designation agreements as approved by the county council, not to exceed 10 624 percent of the total local hazardous waste stream. 625 (5) Prior to occupancy of the facility, the State Department of Ecology shall certify to the county that the facility has been 626 constructed consistent with state requirements. 627 (6) As a condition of approval, the applicant shall be required to keep and maintain accurate and current records of the types, 628 amounts, sources, and final disposition of hazardous wastes collected. The applicant shall provide such records annually to 629 the county, or sooner upon county request. If the facility is found to be exceeding the waste stream limitations or permit 630 restrictions, the county staff shall so report to the approving body who shall have the authority to revoke the permit, 631 following a public hearing, if the limitation has been exceeded absent an emergency situation. Any emergency must be 632 documented by county staff. 633 (7) Annual inspections of the facility shall be a minimum requirement. The applicant shall be required to forward copies of 634 all facility inspection reports to the county. If deficiencies are found, the operator shall, within 15 days, submit to the county 635 for approval an implementation schedule of corrective measures. Such schedule shall include specific completion dates and 636 inspection reporting procedures. 637 If the state does not inspect the facility within the year, the applicant shall be required to arrange and bear all costs for an 638 inspection by a qualified and independent inspection agency satisfactory to the county. 639 (8) Should the facility be found to consistently operate in a manner unsatisfactory to the county in regard to the public health 640 and safety, the permit may be revoked by the approving body following a public hearing. 641 .156 Public and private parks facilities not included in an adopted city or county Comprehensive Plan or Park Plan. 642 .157 Trailheads with parking areas for more than 30 vehicles. 643 .158 Athletic fields. 644 645 646 647 648 649 650 651 652 653 654 655 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new renewable fuel facilities should be allowed as a permitted use (instead of a conditional use, as proposed by Council). Therefore, a new code section, WCC 20.68.070, has been inserted indicating that new renewable fuel facilities would be permitted outright uses. 180 Major passenger intermodal terminals. 187 Type III solid waste handling facilities; provided, that: (1) The facility or site will not be located within the 100-year floodplain or the Lake Whatcom watershed. The facility or site will not be located within any area identified in an adopted critical areas ordinance unless outside of the floodplain and at least three feet in elevation higher than the floodway elevation; 11 17 656 (2) Solid waste handling facilities shall be located at least 1,500 feet from the following: 657 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; 658 (b) Public parks, public recreation areas, or publicly -owned wildlife areas; 659 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; 660 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 661 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 662 (f) This 1,500-foot buffer does not apply to: 663 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 664 the property line 100 feet or the standard zoning district setback, whichever is greater; 665 (ii) Inert landfills; 666 (3) Inert landfills shall be located at least 500 feet from the following: 667 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; 668 (b) Public parks, public recreation areas, or publicly -owned wildlife areas; 669 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; 670 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 671 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 672 (f) This 500-foot buffer does not apply to: 673 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 674 the property line 100 feet or the standard zoning district setback, whichever is greater; 675 (4) The facility or site will not result in filling or excavation, location of structures or buildings, driveways or machinery use 676 except for vegetation maintenance within 100 feet of any property line and except for driveways within 150 feet of any 677 county or state road right-of-way; 678 (5) The facility or site will have vehicular approaches designed to minimize conflict between automobile and truck traffic, 679 will maintain the carrying capacity of county roads, and will be located on a road classified as all weather, except where use 680 is shown to be intermittent and easily delayed until emergency conditions have passed; 681 (6) The facility or site has complied with the provisions of WCC 20.84.200 and all other ordinances and laws regulating solid 682 waste facilities and sites, such as but not limited to WCC Title 24, the Whatcom County SEPA Ordinance, as well as state 683 and federal regulations concerning solid waste facilities and sites; 684 (7) All landfills have a final closure plan meeting the requirements of WCC Title 24 and of Chapter 173-350 WAC, and the 685 closure plan includes: 686 (a) Reclamation in two to 10 acre increments, as appropriately responsive to the size and intensity of the particular 687 activity, with seeding to be accomplished annually but no later than September 30th; and 688 (b) Permanent vegetative cover that will maintain in healthy growing condition with the level of maintenance that is 689 covered through the financial assurance for post -closure activities; 690 (8) The buffer areas and visual screening shall include a minimum of 50 feet wide of landscaping meeting the requirements 691 of WCC 20.80.300 (Landscaping); 692 (9) Solid waste facilities or sites shall be located outside the 10-year time of travel boundary of a public water system's 693 delineated wellhead protection area; 11 18 694 (10) Solid waste facilities or sites that handle putrescible waste will be located at least 10,000 feet from airports serving 695 turbine -powered aircraft and at least 5,000 feet from airports serving piston -powered aircraft. These buffers shall be 696 measured from the boundary of the Airport Operations Zone or, if the airport is not within an Airport Operations Zone, from 697 the boundary of the airport property; 698 (11) In addition, the Whatcom County hearing examiner may impose conditions of approval which may be necessary to 699 protect the value and enjoyment of existing adjacent uses. 700 .188 Mitigation banks as a form of compensatory mitigation for wetland and habitat conservation area impacts when 701 permitted in accordance with the provisions of Chapter 16.16 WCC; provided, applications for mitigation banks shall be 702 processed as a major development project pursuant to Chapter 20.88 WCC. 703 20.68.200 Prohibited uses. 704 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not 705 limited to the following, which are listed here for purposes of clarity: 706 .201 Reserved. 707 .202 Adult businesses. 708 .203 In the Bellingham Urban Growth Area the following uses are prohibited: petroleum refinery and the primary 709 manufacturing of products thereof, primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and 710 products derived thereof, and primary metal industries. 711 .204 New Fossil fuel refineries and thepr-imar-yufaetufi of pr-e"ets Cher-e f vvv oFro, #ye ante' 712 713 714 715 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new fossil fuel refineries should be prohibited, as proposed by Council. "Fossil fuel refinery" is defined by proposed WCC 20.97.160.4. The "primary manufacturing" text is unnecessary. It is also unnecessary to insert the effective date into the code. 716 .205. New Fossil fFuel tTransshinment fFacilities: provided that. the followine uses of facilities are not prohibited: (i) inter- 717 refinery shipments of refined products and intermediate materials such as unfinished oils and blendstocks, (ii) transferring 718 „etrolettm product-sFossil Fuels during emergency scenarios where contingencies require „etroletim prodtw4s Fossil Fuels to 719 be moved, and (iii) necessary petroleti product Fossil Fuels transfers during turn-arounds or maintenance periods.; 720 includine bulk stomee r transfer facilities for fossil fuels fYYY oFF ctiye .l.,tol 721 722 723 724 Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.205 as shown above. 725 .206. New piers, docks, or wharves in Cherry Point Industrial District. 726 727 728 729 730 Rationale for Changes (shown with highlighting): Cite the full name of the zoning district. DiscussionlNotes: Prohibit New Fossil Fuel Refineries. Prohibit Crude Oil and Coal Export Facilities — made broader to Fossil Fuel transshipment. .207 Coal-fired power plants. 11 19 731 (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 2016-011 § 1 (Exh. L), 2016; Ord. 99-078, 1999; Ord. 99-070 § 2, 1999; Ord. 91- 732 075, 1991). 733 20.68.250 Minimum lot size. 734 The minimum lot size shall be consistent with the area required to meet the building setback, lot coverage, buffer and 735 development standards of the district. (Ord. 97-057 § 1, 1997; Ord. 96-046 § 1, 1996). 736 20.68.255 Minimum lot frontage. 737 For the purpose of dividing property, minimum lot frontage shall be sufficient to provide adequate access and utility 738 development, and meet applicable building setback, buffer, and development standards of the district. In no case shall the 739 frontage be less than 30 feet. (Ord. 99-045 § 1, 1999). 740 20.68.350 Building setbacks. 741 Building setbacks shall be administered pursuant to WCC 20.80.200, 20.80.254 and 20.68.550. (Ord. 99-078, 1999). 742 20.68.400 Height limitations. 743 No maximum height is established; however, when a building exceeds 50 feet, the setback requirements of WCC 20.80.200 744 shall be increased by one foot for each foot of building height in excess of 50 feet, as applicable to all setbacks. 745 20.68.450 Lot coverage. 746 The maximum building or structural coverage shall not exceed 60 percent of the lot size. 747 20.68.500 Open space. 748 Repealed by Ord. 97-057. (Ord. 96-046, 1996). 749 20.68.550 Buffer area. 750 .551 The industrial user shall establish a buffer for building sites adjoining the boundary of the Heavy Impact Industrial 751 District (HII), which shall be located adjacent to the district boundary. The purpose of the buffer is to optimize the visual 752 appearance of the site by obscuring industrial activity from view by passing motorists, to contribute to on -site and off -site 753 impact abatement, and to move towards attaining compatibility with surrounding nonindustrial land uses and character. 754 .552 To implement the buffer requirements of this district, minimum setbacks for heavy industrial buildings and accessory 755 structures shall be established consistent with the following options: 756 (1) If a planting screen is not provided by the industrial user and no natural vegetative screening exists, the minimum 757 setback(s) shall be 660 feet, as measured from the edge of the district boundary. The setback area may be used for security 758 roads, parking, or open space. 759 (2) If natural sight -obscuring and dense vegetation exists, the minimum setback(s) shall be 250 feet, as measured from the 760 district boundary; provided, that a minimum width of 50 feet of natural vegetation is retained. The remainder of the 761 setback(s) may be used for security roads, parking, or open space. 762 (3) If a 50-foot buffer planting screen is established, pursuant to WCC 20.80.345, the minimum setback(s) shall conform to 763 the setback requirements of WCC 20.80.200, as measured from the district boundary. In addition, security roads may be 764 situated within the minimum buffer setback; provided, that the 50-foot-wide buffer planting is established. 765 (4) When a parcel situated within this district is located within the Bellingham Urban Growth Area and adjoins an Urban 766 Residential District or residential district within the city limits, setbacks for heavy industrial buildings and/or uses shall be 767 increased to 100 feet and landscaped in accordance with the requirements of WCC 20.80.345. 768 (5) In no case shall the setback from the northern and western boundaries of the Cherry Point heavy industrial area not 769 contiguous to another industrial zone be less than 660 feet, nor the natural vegetation removed except for parking and 770 security or protective uses. 11 20 771 .553 Uses other than heavy industrial will conform to the normal setback requirements as set forth in WCC 20.80.200 and 772 20.80.254(3) and the buffering requirements for light impact industrial uses WCC 20.66.551. 773 .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 774 separated or sold shall be used only as a buffer area in accordance with the above requirements. (Ord. 2019-013 § 1 (Exh. A), 775 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, 776 1989; Ord. 87-12, 1987; Ord. 87-11, 1987). 777 20.68.600 Sign regulations. 778 Sign regulations shall be administered pursuant to WCC 20.80.400. 779 20.68.650 Development criteria. 780 (Ord. 96-056 Att. A § Al, 1996). 781 20.68.651 Landscaping. 782 Refer to WCC 20.80.300 for landscaping requirements. (Ord. 89-117, 1989). 783 20.68.652 Off-street parking and loading. 784 Off-street parking and loading provisions shall be administered pursuant to WCC 20.80.500. In addition, loading areas must 785 be located in such a manner that no loading, unloading and/or maneuvering of trucks associated therewith takes place on 786 public rights -of -way. 787 20.68.653 Drainage. 788 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No 789 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019; Ord. 96-056 Att. A § 790 A2, 1996; Ord. 94-022, 1994). 791 20.68.654 Driveways. 792 Consistent with WCC 20.80.640, driveway plans shall be reviewed by the county engineer or State Department of 793 Transportation, as applicable. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 84-38, 1984). 794 20.68.655 Access. 795 Access shall conform to the provisions of WCC 20.80.565 and 20.80.660. (Ord. 89-117, 1989). 796 20.68.656 Maintenance. 797 The owner, lessee or user shall be responsible for maintaining an orderly appearance of all properties, and shall be 798 responsible for assuring the care and maintenance of any natural growth, where appropriate. 799 20.68.657 Enclosure. 800 All manufacturing or fabrication processes which have the potential to produce off -site impacts of a detrimental nature, 801 including light, glare, odors and noise impacts, shall be sufficiently enclosed to mitigate the impacts. (Ord. 99-078, 1999). 802 20.68.700 Performance standards. 803 20.68.701 Pollution control and nuisance abatement. 804 Each industry is required to continuously employ the best pollution control and nuisance abatement technology when 805 reasonably and practicably available for each particular industry; provided, that where federal, state, or regional laws or 806 regulations provide for the level of technology to be employed, the appropriate standards shall apply. 11 21 807 20.68.702 Heat, light and glare. 808 All operations and facilities producing heat, light or glare, including exterior lights, shall be so constructed, screened or used 809 as to not unreasonably infringe upon the use and enjoyment of property beyond the boundaries of the district. 810 20.68.703 Ground vibration. 811 No ground vibration other than that caused by highway vehicles, trains or construction activity shall be permitted, which is 812 discernible without instruments, at or beyond the property line for the use concerned. 813 20.68.704 Odors. 814 No odors, dust, dirt, or smoke shall be emitted that are detectable, at or beyond the property line for the use concerned, in 815 such a concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe 816 upon the use and enjoyment of property beyond the boundaries of the district. (Ord. 91-075, 1991). 817 20.68.705 Noise. 818 No use in this district shall exceed the maximum environmental noise level established by Chapter 173-60 WAC. (Ord. 91- 819 075, 1991). 820 20.68.706 Toxic gases and fumes. 821 Any release of toxic gases or fumes must be in compliance with Washington State and Northwest Air Pollution Control 822 Authority standards. (Ord. 91-075, 1991). 823 20.68.707 Liquid pollutants. 824 There shall be no off -site release to soil or surface drainage ways of water borne or liquid pollutants. (Ord. 91-075, 1991). 825 20.68.708 Appearance. 826 New facilities developed in the Bellingham Urban Growth Area shall be designed, constructed, operated, and maintained so 827 as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and such 828 uses shall not change the essential character of the same area. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 99-078, 1999). 829 20.68.709 Marijuana odor. 830 For indoor facilities no odor or smoke shall be emitted that is detectable at or beyond the walls of the facility, in such a 831 concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe upon 832 the use and enjoyment of neighboring use. The applicant shall install an exhaust system that is designed and constructed to 833 capture sources of contaminants to prevent spreading of contaminants or odors to other occupied parts of the building or 834 surrounding area. The system must be designed by a licensed Washington State professional engineer. (Ord. 2015-006 Exh. 835 A, 2015). 836 837 838 transshipment f eilities - __ PHA �• j:i - 11 22 19 2 eiveiefeel fat: ei smed! emissien Feeluefien (i.e., the benefit ef e 1-31012 t=eeluefien)." See., 896 897 898 899 900 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the proposed GHG provisions from the Zoning Code. �!7•L7\1_�!r _ 902 ^ isti, legal fossil f,^1 refineries, fossil fuel tr..r.sshi ent F e l:ties ^ ^ able ffivl r^F or;o 903 renewable fuel trans,: e t -facilities for .,o capacity ottrooses are otAr; ht per-mitted uses. T7xaff les of non , ;ty 905 (a)ueeesso s 907(e) i3ar-kr�s 908 (a) radio ^ ^^t;^ 910 0 stomee buildines, 911 0 ^tl.^r ,v.;l..r Str ^t„r^S ^ti.,:t:^ 912 nt t n4en nce replacement, safety tmerades, and environmental iflVrovements are „tr; ht vermitte4 913 uses, but shell mit: .,to ^„ 1,..,,�^ .Fro .l by \7I GG 7n �Q 4n1 .. �TG1212J TfVIITIrCG�LTLj'GQV�ITTTZ��O:O�f 914 915 916 917 918 919 920 921 922 923 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and transshipment facilities from proposed WCC 20.68.802 above to the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code, where additional items have been inserted as permitted uses to address public comments. Additionally, the reference to GHG mitigation provisions in the Zoning Code has been deleted. 11 24 924 CHAPTER 20.74 CHERRY POINT INDUSTRIAL (CP) DISTRICT 925 20.74.010 Purpose. 926 The purpose of the Cherry Point Industrial District is to implement the policies of the Cherry Point Major Industrial Urban 927 Growth Area section of the Whatcom County Comprehensive Plan by establishing a range of land uses and types of 928 development appropriate for the Cherry Point UGA and to encourage large scale master planning of industrial sites to 929 preserve sites of sufficient size to accommodate major port and industrial development. (Ord. 98-083 Exh. A § 57, 1998). 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 20.74.020 Applicability. This chapter is applicable to the entire Cherry Point Major Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 20.74.030 Permitted uses. (1) Primary permitted uses: (a) Area south of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Heavy Impact Industrial District, Chapter 20.68 WCC, as well as large scale high technology businesses. (b) Area north of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Light Impact Industrial District, Chapter 20.66 WCC. (2) Secondary permitted uses shall include smaller scale industrial uses, nonretail commercial uses, and industry -related professional services, provided the secondary use supports or is supported by primary permitted uses in the Cherry Point Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 20.74.040 Accessory uses. Accessory uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.050 Conditional uses. Conditional uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.055 Prohibited uses. Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District as applicable (Chapter 20.66), the Heavy pact Industrial District as applicable; (Chapter 20.68 WCC), and the following: Rationale for Changes (shown with highlighting): The Cherry Point Industrial District includes both the Heavy Impact Industrial and Light Impact Industrial zone. Therefore, both should be referenced. (1) New piers, docks, or wharves. (2) Conversion of Renewable Fuel Refinery or Renewable Fuel Transshipment Facilities to Fossil Fuel Refinery or Fossil Fuel Transshipment Facilitiesf ssi foe' f eil4 os is prohibited, except -as allowedonder WGG 20.''�r5and `x GG 2n�4. 957 20.74.060 Master site plan requirements. 958 (1) Development in the Cherry Point Industrial District requires the review and approval of a master site plan, including 959 SEPA review. Acceptable master site plans include site plans and supporting information submitted and approved for 960 applications for a building permit, a short subdivision, a preliminary plat, a binding site plan, a major project permit or a 961 planned unit development. 11 25 962 (2) The minimum area for a master site plan (planning block) shall be 160 acres, or the entire property under common 963 ownership if the common ownership is less than 160 acres. 964 (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 965 industrial activity; provided, that if the planning block is 40 acres or smaller, the requirement for the major industrial site 966 shall be waived. 967 (4) Within a planning block, one or more parcels smaller than 40 acres may be created for secondary uses 968 (5) Review and approved of a master site plan for a planning block shall be included in the approval of any building permit, 969 short subdivision, preliminary plat, binding site plan, major project permit or a planned unit development and shall be subject 970 to the same review and approval standards, including SEPA review, as the plat, binding site plan or permit. Each master site 971 plan shall identify, as appropriate, the proposed phasing of the development including the construction of public and private 972 facilities and utilities. The master site plan or supporting documentation as appropriate shall also include any mitigation 973 required under SEPA and the county critical areas ordinance. (Ord. 98-083 Exh. A § 57, 1998). 974 20.74.070 Minimum lot size and parcelization. 975 The minimum lot size in the Cherry Point Industrial District shall be 40 acres; provided, that lots less than 40 acres may be 976 permitted as follows: 977 (1) When the lots are to be located within a development approved as a major project under Chapter 20.88 WCC consistent 978 with the master site plan requirements in this chapter. 979 (2) When the lots are to be located within a development approved as a planned unit development under Chapter 20.85 WCC 980 consistent with the master site plan requirements of this chapter. 981 (3) When the lots are part of a short subdivision, long subdivision or binding site plan approved as consistent with the master 982 site plan requirements of this chapter. 983 (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 984 and will not interfere with the development of the primary large uses intended by the Comprehensive Plan. 985 (5) When an existing lot of record is less than 40 acres, provided further division is consistent with this section. (Ord. 98-083 986 Exh. A § 57, 1998). 987 20.74.080 Design standards. 988 Unless otherwise modified by this chapter, building height, setbacks, landscaping, open space and other building and site 989 design standards for areas south of Grandview Road shall be the same as those of the Heavy Impact Industrial District, 990 Chapter 20.68 WCC; and for the area north of Grandview Road, the same as those of the Light Impact Industrial District, 991 Chapter 20.66 WCC. (Ord. 98-083 Exh. A § 57, 1998). 992 20.74.090 Traffic demand management. 993 RCW 36.70A.365 requires the implementation of traffic demand management (TDM) programs for designating a Major 994 Industrial Urban Growth Area. Any employer in the Cherry Point Urban Growth Area that employs 100 or more full-time 995 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 12 996 continuous months during the year are required to meet the TDM requirements of Chapter 16.24 WCC. 997 (1) Employers located in Cherry Point who have not implemented a TDM program shall implement a TDM program by 998 December 1, 2011. 999 (2) Employers in Cherry Point meeting the criteria for having to complete a plan after December 1, 2011, shall meet the 1000 requirements of this section within one year of having met the criteria. (Ord. 2009-071 § 2 (Exh. B), 2009). 1001 20.74.100 Drainage. 1002 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No 1003 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019). 11 26 •• ••. _ 1007 This shall be processed as a Twe 1 per-mit in Ghai)ter- 22.05-WGG The new use shall ensufe-i ••: ••. �`CORSiSteRGY With_industrial 1012 epplies. 1013 1014 1015 1016 1017 1018 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions above. Concerns have been expressed relating to the potential conversion of an existing refinery/transshipment facility into a crude oil transshipment facility (e.g. see Resolution 2019-037). The Planning Commission language for proposed WCC 20.68.153 addresses this potential situation by requiring a conditional use permit if shipping capacity of unrefined fossil fuels were to increase over a certain level. 1019 20.74.115 Chanae ef Use ef '--- • • RefineryRenewableor- 1021 bettadaFy of an-existine lee"ssil- -refin- - Other • Renewable 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 11 27 1036 CHAPTER 20.88 MAJOR PROJECT PERMITS 1037 20.88.100 Major project permits. 1038 .110 All major developments shall, prior to any construction, obtain a major project permit. 1039 .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 1040 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 motel/hotel 200 units Number of Employees 250 SEPA Review An EIS is required 1041 1042 In addition, the zoning administrator may make an administrative determination after receiving a recommendation from the 1043 technical review committee that any project be considered a major development, if in the opinion of the administration it is of 1044 a nature that council review would be appropriate. 1045 .130 Pursuant to WCC 22.05.120 the hearing examiner shall recommend to the county council project approval, approval 1046 with conditions, or denial, based upon written findings and conclusions supported by the evidence of record. The hearing 1047 examiner's recommendation and county council's decision shall determine the adequacy of a major project permit application 1048 based on the following criteria: 1049 (1) Will comply with the development standards and performance standards of the zone in which the proposed major 1050 development will be located; provided where a proposed major development has obtained a variance from the development 1051 and performance standards, standards as varied shall be applied to that project for the purposes of this act. 1052 (2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for 1053 the issuance of a conditional use permit for the zone in which the project is located. 1054 1055 (3) Prior to commencement of any site preparation or construction activities, Wwill obtain, if required, a state aquatic lands 1056 lease, and all other necessary permits consultations and authorizations, including federal determinations that the project will 11 28 1057 not interfere with treaty fishing rights of tribal nations, the limits set forth in the "Magnuson Amendment" under 33 U.S.C. § 1058 476(b) (2004), Section 10 of the Rivers and Harbors Act (for structures in or over navigable waters of the U.S.), the Coastal 1059 Zone Management Act (including any state Department of Ecology shoreline conditional use or variance approval), the Clean 1060 Air Act, and/or under the Clean Water Act, including but not limited to a federal Section 404 authorization (for fill into 1061 waters of the U.S.) and a state Section 401 water quality certification, miof to issuanee of any site pFev aaticensauctio-fl- 1063 (4) Will not substantially interfere with the operation of existing uses. 1064 (5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as 1065 roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for 1066 such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the 1067 appropriate agency or division thereof. 1068 (6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and 1069 will not impose uncompensated costs on other property owned. 1070 (7) Will be appropriately responsive to any EIS prepared for the project. 1071 .140 In addition, the hearing examiner may recommend or county council may impose any reasonable conditions precedent 1072 to the establishment of the major development as may be required to mitigate impacts of the proposal on the natural 1073 environment of the county, and to protect the health, safety and general welfare of the people of the county consistent with 1074 the policies for environmental protection set forth in the Comprehensive Plan. The County decision maker may approve a 1075 major project permit with a condition to obtain relevant leases and complete any necessary federal and state permitting 1076 requirements, and may restrict the major project permittee from undertaking site preparation or construction activities until it 1077 has fulfilled that condition. 1078 .150 The hearing examiner may recommend or county council may also approve alternative mitigation plans for major 1079 project permits in accordance with WCC 16.16.260(E) which may be used to satisfy the requirements of Chapter 16.16 WCC 1080 and provide relief from the specific standards and requirements thereof. 1081 20.88.200 Procedure. 1082 .205 If a major project permit is determined to be required, an application shall be completed and filed along with the 1083 appropriate fees, and the application shall be processed in accordance with Chapter 22.05 WCC. A master plan is required as 1084 part of the application for a major project permit. The master plan document shall include all elements required per the 1085 department's administrative manual. 1086 .210 Development Standards. The mmajor project permit may propose standards that will control development of 1087 the possible future uses that are in addition to, or substitute for, requirements of this chapter. These may be such things as 1088 height limits, setbacks, frontage, landscaping requirements, parking requirements, signage, view corridors or facade 1089 treatments. Proposed standards that do not meet the minimum county standards must obtain the appropriate variance prior to 1090 county approval of the proposed standards. If the proposed design standards will apply to property located partially or totally 1091 within an urban growth area, concurrence of the affected city will be required. 1092 .215 Procedures. Master project permit review shall be conducted under current review procedures. Other land 1093 use reviews may be conducted concurrently with the master plan- project permit review. 1094 (a) Any modifications, additions or changes to an approved master plan are subject to the following: 1095 (i) Minor changes shall be reviewed for compliance and compatibility with the approved master- project 1096 permit. 1097 (aA determination is made by the director. The director is authorized to consult a technical committee at 1098 his/her discretion. 1099 (2) Minor changes are those amendments which may affect the dimensions, location and type of 1 100 improvements of facilities; provided, the amendment maintains the basic character of the major project 1 101 permit application approved by the county council including_ general type and location of dwellings and 1 102 other land use activities, arrangement of buildings, density of the development, and provisions of the 11 29 1103 1104 1105 1106 1107 1108 1109 1110 1112 1113 1114 1115 1116 1117 project to meet density bonus and open space requirements, or capacity limits, and maintains required conditions or mitigation. (ii) Major changes shall be subject to the original procedural application type, subject to the fees as contained in the unified fee schedule. (iii) "���Major project permits may include, as a condition of their approval, a requirement for periodic progress reports and mandatory updates on a predetermined interval. Rationale for Changes (shown with highlighting): A master plan is one component of the major project permit. The procedures above should relate to the entire permit (not just one component of the permit). .220 through .265 Reserved. .270 Where a project requires a major project permit, that project shall be exempt from the requirement of obtaining a conditional use permit. .275 Major project permits: Where an applicant has applied for a planned unit development or a development agreement, that project shall be exempt from the requirement to obtain a major project permit except in the Cherry Point Industrial District. 1118 .280 Major project permits in the Cherry Point Industrial District: where a project in the Cherry Point Industrial District 1119 requires a major project permit, the major project permit shall be concurrently processed with other required land use permits 1120 including but not limited to: , planned unit development; or development 1121 agreement. 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 Rationale for Changes (shown with highlighting): The master plan is part of a permit application (not a permit in itself). Additionally, when a major project permit is required, it is exempt from the conditional use permit (WCC 20.88.270 above). 11 30 1137 CHAPTER 20.97 DEFINITIONS 1138 Discussion/Notes: Definitions added are based on a review of federal (US Energy 1139 Information Administration, US Census, Code of the Federal Register, Revised Code of 1140 Washington), County Ordinance NO. 20 7 8-007, Resolution 20 7 9-004 and examples 1141 addressed in the White Paper. .. 1142 1143 "Chatwe of use" Ineans when a buildifie or- Ewettva-ney is altered E)F Feplaeed, for- example 40m tnaffafaetuF 1144 Renumber- Section 0.care 20.97.052.2 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The term "facility emissions" is no longer is used in the Zoning Code. Therefore, this definition has been moved to the County's SEPA rules, where it would be used. 20.97.160.2 Fossil Fuels. "Fossil fuels" include coal, petroleum, crude oil, natural gas, oil shales, bitumens, tar sands, propane, butane, and heavy oils. All contain carbon and were formed as a result of geologic processes acting on the remains of organic matter. Renewable fuels are not fossil fuels. Rationale for Changes (shown with highlighting): The U.S. Energy Information Administration defines "Petroleum" as: A broadly defined class of liquid hydrocarbon mixtures. Included are crude oil, lease condensate, unfinished oils, refined products obtained from the processing of crude oil, and natural gas plant liquids. Note: Volumes of finished petroleum products include non hydrocarbon compounds, such as additives and detergents, after they have been blended into the products. While crude oil is a type of petroleum, it might be useful to insert it in the definition so the reader can know that without going to another source. This would be consistent with the definition of "Fossil -Fuel Refinery" below, which specifically refers to crude oil. 11 31 1170 20.97.160.3 Fossil or Rene•• ahk Fuel Transshipment Facilities. 1171 "Fossil Fuel Transshipment Facility" is a facility engaging primarily in the process of off-loading ef-fossil fuels 1172 fine' mater-ials,-fefined or tinfefined, refiner,, f edsteek ,.a,,, is or by r,., auets from one transportation method (such as a 1173 ship, truck, or railcar) RKjhbtand loading it onto another transportation method€aei-� for the purposes of transporting the 1174 fossil fuels„ ed� into ander out of Whatcom County. Examples of transp.rtatio f edit es inelude ship, tfuev 1 175 freieht . Fossil fiiel t,anssh ent rn ilities ., also ; elude i3ttmo and eami3r-esser- s.,,4ans and asseeiated f ,.;hies. This 1176 definition shall include bulk storage or transfer facilities for the shipment of crude oil without refining or consuming within 1 177 the Cherry Point Industrial District and shall excludes Small Fossil or Renewable Storage and Distribution Facilities. 1178 1179 1180 1181 1182 Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.160.3 as shown above. Planning Commission also approved a motion to insert a separate definition of Renewable Fuel Transshipment Facilities (proposed WCC 20.97.350.4 below). 1183 20.97.160.4 Fossil -Fuel Refinery. 1 184 A "Fossil -Fuel Refinery" axe-ansis a facility that converts e-ei-lFossil Fuels and other liquids into petroleum products 1 185 including but not limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, 1186 lubricating oils, intermediate materials and asphalt. ^ etivities that s,,pyoi4 re fie-s Fossil Fuel Refinery facility uses include 1187 but are not limited to: bulk storage, manufacturing, or processing of fossil fuels, intermediate materials or byproducts, and 1188 shipment of those Drocessed materials to downstream customers. This definition excludes Small Fossil or Renewable Storage 1189 and Distribution Facilities er..an.ws.�..rsseasrsi r�ss+:asss�rrsxe s�sss er.:eers es:re s . rs�.r . �,:. - - -1193 actual throttehput aver-aeed over the latest thfee Year reportin�,x per-iod i3r-i to the date of a oompleted application for 1196 1197 1198 1199 Rationale for Changes (shown with highlighting): "Fossil -Fuel Refinery Capacity" does not occur in the proposal. "Refinery Capacity" appeared one time (proposed WCC 20.68.801(2)(a)(ii)), but the Planning Commission recommends deleting this section of the proposal. Therefore, a definition is not needed. 1200 20.97.163 Greenhouse Gas Emissions. 1201 "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse eases," "GHG," 1202 and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, 1203 and an.. o� gas or gases designated by the federal clean air act (United States Code Title 42, Chapter 85),-Of state clean air 1204 act (Chapter 70.94 RCW) or state limiting greenhouse ,gas emissions law (Chapter 70.235 RCW). 1205 DiscussionlNotes: See RCW 70.235.0 7 0 and RCW 70.94.030 regarding State laws. 1206 See also htti2s://www.ega.ciovIghciemissions/overview-greenhouse-gases. 11 32 1207 1208 20.97.190.2 Intermediate Materials 1209 "Intermediate Materials" refers to refined or partially refined fossil fuel products that are produced at a refinery by processing 1210 crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other blending 1211 components. Under this definition, feedstocks such as "topped crude" are not intermediate materials. 1212 20.97.201 Lifecycle Greenhouse Gas Emissions 1213 "Lifecycle greenhouse gas emissions" means the aggregate quantity of greenhouse gas emissions (including direct emissions 1214 and significant indirect emissions), related to the full fuel lifecycle, includingall 1 stages of fuel and feedstock production and 1215 distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the 1216 ultimate consumer. where the mass values for all greenhouse gases are adiusted to account for their relative global warming 1217 potential. 1218 Discussion/Notes: Considers a definition under the Clean Air Act. See: 1219 https://www.epa.ciov./renewab/e-fuel-standard-program,lifecyc/e-anal ysis-greenhouse- 1220 gas -emissions -under -renewable -fuel and 1221 https://www.govinfo.-gov/content/pkq/USCODE-20 7 0-title421htmIZUSCODE-20 7 0- 1222 title 42-chap85.htm. 1224 "Liyinf4 waf4e" means the hoiir-ly rate that an individual must eafn to suvvei4s their- family, if they are the sole or-ovider- and are 1225 war -king ffill time (2090 houfs per- year-). For- the pufposes of this definition family ineludes fi3uf individth4s, �// 1228 calculator for each state eind each county within. -Living wage ordinances YOFY in thei 1232 1233 1234 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the "living wage" job language from the conditional use permit approval criteria (proposed WCC 20.68.153). This term does not appear elsewhere in the proposal. 1235 20.97.230 Maximum Atmospheric Crude Distillation Capacity. 1236 "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the 1237 atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is 1238 defined as the physical constraints of the atmospheric distillation process equipment as determined by a professional engineer 1239 licensed in the State of Washington and shall be measured in barrels per day_ 1240 NOTE: Renumber existing WCC 20.97.230 (definition of "May") to WCC 20.97.231. 1241 Rationale for Changes (shown with highlighting): On January 30, 2020, the 1242 Planning Commission approved a motion adding the above definition to the Zoning Code (the definition was proposed by industry). This term is used in proposed WCC 20.68.153. 33 1243 20.97. 350.1 Renewable Biomass. 1 244 "Renewable biomass" includes but is not limited to the following: 1245 (1) Planted crops and crop residue harvested from agricultural land. 1246 (2) Planted trees and tree residue from a tree plantation. 1247 (3) Animal waste material and animal byproducts. 1248 (4) Slash and pre -commercial thinnings. 1 249 (5) Organic matter that is available on a renewable or recurringbasis. asis. 1250 6 Algae. 1251 (7) Separated yard waste or food waste, including recycled cookingand nd trap grease. 1252 (8) Items 1 through 7 including_any incidental, de minimis contaminants that are impractical to remove and are related to 1253 customary feedstock production and transport. 1254 Discussion/Notes: Adapted from based on federal renewable fuel definition, 1255 httgs://www.law.cornell.edu/cfr/textZ4OZ80.140 7. 1256 20.97.350.2 Renewable Fuel. 1257 "Renewable Fuel" means liquid fuels produced from renewable biomass and limited in terms of blending with fossil fuels. 1258 Common renewable fuels include ethanol and biodiesel: 1259 (1) "E85 motor fuel' means an alternative fuel that is a blend of ethanol and hydrocarbon of which the ethanol portion is 1260 nominally seventy-five to eighty-five percent denatured fuel ethanol by volume that complies with the most recent version of 1261 American society of testing and materials specification D 5798. 1262 (2) "Renewable diesel' means a diesel fuel substitute produced from nonpetroleum renewable sources, including vegetable 1263 oils and animal fats, that meets the registration requirements for fuels and fuel additives established by the federal 1264 environmental protection aeencv in 40 Code of Federal Reeulations (C.F.R.) Part 79 r'�and meets the reauirements of 1265 American society of testing and materials specification D 975. 1266 Rationale for Changes (shown with highlighting): Federal regulations may be amended over time. 1267 1268 (3) Renewable fuels shall include those designed to result in a lifecycle greenhouse gas emission reduction of at least 50% or 1 269 more under the Federal Clean Air Act. Renewable fuels shall not include products produced from palm oil or other 1270 feedstocks that cannot be proven to reduce greenhouse gas emissions utilizing accepted methods of the Washington State 1271 Department of Ecology or US EPA. 1272 Discussion/Notes: A basic renewable fuel energy source is biomass. From biomass, 1273 common liquid fuel forms include ethanol and biodiesel. See: 1274 httl2s://www.eia.gov/energyexl2lained/?page=renewable home. 1275 Washington State defines renewable diesel and E85 motor fuel in the motor fuel 1276 quality act (Chapter 19.1 12 RCW), which are integrated in the definition. 1277 Limiting fossil fuel percentages to 5% is workable for buses and power cars. See 1278 http://www.cleanairtrust.org/Differences-Between-E85-and-E95.htm1. E85 includes 15- 1279 25% fossil fuels and is used by flexibly fueled vehicles. See 1280 https://www.fueIeconomyaov/feci/fIextech.shtm1. 11 34 1281 1282 1283 1284 1285 1286 1287 1288 1289 1290 1291 1292 1293 1294 1295 1296 1297 1298 1299 1300 1301 1302 1303 1304 1305 1306 1307 1308 1309 1310 1311 1312 1313 1314 1315 1316 Under the EPA renewable fuel standard, three of four renewable fuel categories must meet a 50% or 60% lifecycle greenhouse gas (GHG) reduction. A fourth conventional renewable ethanol must meet a 20% lifecycle GHG reduction. See: https:Z/www.epa.gov/renewable-fuel-standard-program/overview-renewable-fuel- standard. 20.97.350.3 Renewable Fuel Refinery. A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small Fossil or Renewable Storage and Distribution Facilities. 20.97.350.4 Renewable Fuel Transshipment Facilities. "Renewable Fuel Transshipment Facility" is a facility engaging primarily in the process of off-loading renewable fuel from one transportation method (such as a ship, truck, or railcar) and loading it onto another transportation method for the purposes of transporting the renewable fuel into and out of Whatcom County. This definition shall include bulk storage or transfer facilities for the shipment of renewable fuels without refining or consuming within the Cherry Point Industrial District and shall exclude Small Renewable Storage and Distribution Facilities. Rationale for Changes (shown with highlighting): On August 13, 2020, the Planning Commission approved a motion to insert a new definition of Renewable Fuel Transshipment Facilities (it was previously combined with the definition of Fossil Fuel Transshipment Facilities). 20.97.425.1 Small Fossil or Renewable Fuel Storage and Distribution Facilities. "Small Fossil or Renewable Fuel Storage and Distribution Facilities" means: (1) Equipment and buildings used for purposes of direct sale or distribution to consumers of fossil fuels or renewable fuels, or (2) Accessory equipment that supplies fossil fuels or renewable fuels to an onsite allowed commercial or industrial operation, and that does not meet the definitions of fossil -fuel refinery, renewable fuel refinery, or fossil or renewable fuel transshipment facilities. Rationale for Changes (shown with highlighting): Buildings may also be needed at small scale facilities. 20.97.434.1 Technical committee. "Technical committee" or "technical review committee" means the designated representatives of the Whatcom County Planning and Development Services Director, who shall act as chairperson, the Whatcom County Public Works Director, and the Whatcom County Health Department Director. 11 35 1317 1318 Exhibit D 1319 CHAPTER 22.05 PROJECT PERMIT PROCEDURES 1320 22.05.020 Project permit processing table. 1321 (1) Marked boxes in the table below indicate the required general steps for processing all project permit applications or 1322 administrative actions. The requirements for each step listed in the top row of the table are provided in WCC 22.05.040 1 323 through 22.05.160, as indicated. Specific requirements for each project permit can be found through the references given in 1 324 the table. Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see 2 Application Specific Required na Required Required Required Hearing Held By: Maker (see 22.05.1,160 Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Type 1 Applications (Administrative Decision with No Public Notice or Hearing) Boundary Line 21.03 Administrator Hearing Adjustment Examiner Building Permit 15.04 (fl Administrator Hearing Examiner (i) Natural Resource Title 16 Administrator Hearing Assessment Examiner ram' lad Bx-atttixer Commercial Site Administrator Hearing Plan Review Examiner Exempt Land 21.03 Administrator Hearing Division Examiner Floodplain Title 17 Administrator Hearing Development Examiner Permit Land Disturbance 15.04 and Administrator Hearing Permit 20.80 Examiner Lot of Record/Lot 20.83 and Administrator Hearing Consolidation 20.97.220 Examiner Nonconforming 20.83 Administrator Hearing Use Examiner Removal of 20.80.738(3) Development Moratorium Shoreline 23.60 (a) Administrator Hearing Exemption Examiner Zoning 22.20 Administrator Hearing 11 36 Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see Application Specific Required Hea Required Required Required Hearing Held By: Maker (see 22.051.160, Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) InterpretationI i i i i Examiner I Type II Applications (Administrative Decision with Public Notice; No Public Hearing) Administrative 20.84.235 Administrator Hearing Use Examiner Lot Consolidation 20.83.070 Administrator Hearing Relief Examiner Reasonable Use 16.16 Administrator Hearing (b) Examiner Shoreline 23.60 (a) Administrator Shorelines Substantial (c) (d) Hearings Board (h) Shoreline 23.60 (a) Administrator Hearing Conditional Use (d) Examiner (c) Short Subdivision 21.04 Administrator Hearing Examiner Type III Applications (Hearing Examiner Decision with Public Notice and Public Hearing) Conditional Use 20.84.200 Hearing Hearing Superior Court Examiner Examiner Floodplain Title 17 Hearing Hearing Superior Court Development Examiner Examiner Variance Long Subdivision 21.05 Hearing Hearing Superior Court Examiner Examiner (g) Binding Site Plan 21.07 Hearing Hearing Superior Court Examiner Examiner (g) Reasonable Use 16.16 Hearing Hearing Superior Court (e) Examiner Examiner Removal of 20.80.738(2) Hearing Hearing Superior Court Development Examiner Examiner Moratorium Shoreline 23.60 (a) Hearing Hearing Shorelines Conditional Use Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Substantial Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Variance Examiner Examiner (d) Hearings Board (h) Zoning or Critical 20.84.100 or Hearing Hearing Superior Court 11 37 Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see Application Specific Required Hea Required Required Required Hearing Held By: Maker (see 22.051.160, Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Areas Ordinance 16.16.270 Examiner Examiner Variance Type IV Applications (County Council Decision with Public Notice and Public Hearing) Development 2.11.205 Hearing County Superior Court Agreement Examiner Council Major Project 20.88 Hearing County Superior Court Permit Examiner Council Planned Unit 20.85 Hearing County Superior Court Development Examiner Council 1325 1326 Check marks indicate a step is required; reference letters refer to the notes in subsection (2) of this section. 1327 Discussion/Notes: Scrubbing the Existing Code for consistency with new provisions and 1328 desired review process. 1329 1330 1331 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions of WCC 20.74.110. Therefore, the "Change of Use" permit type is no longer needed. 1332 22.05.1 10 Final decisions — Type I, II, and III auulications. 1333 (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 1334 permit. The determination or permit may be granted subject to conditions, modifications, or restrictions that are necessary to 1335 comply with all applicable codes. 1336 (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) 1337 shall either grant or deny the application or appeal. 1338 (a) The hearing examiner may grant Type III applications subject to conditions, modifications or restrictions that the 1339 hearing examiner finds are necessary to make the application compatible with its environment, carry out the objectives 1340 and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and objectives 1341 of Whatcom County. 1342 (b) Requirements: 1343 (i) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to ensure 1344 compliance with the conditions, modifications and restrictions. 1345 ii) Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 1346 provide insurance or other financial assurance acceptable to the prosecutingattorney torney consistent with Section 1347 22.05.125. 1348 (c) The hearing examiner shall render a final decision within 14 calendar days following the conclusion of all testimony 1349 and hearings. Each final decision of the hearing examiner shall be in writing and shall include findings and conclusions 1350 based on the record to support the decision. 11 38 1 351 (d) No final decision of the hearing examiner shall be subject to administrative or quasi-judicial review, except as 1 352 provided herein. 1353 (e) The applicant, any person with standing, or any county department may appeal any final decision of the hearing 1 354 examiner to superior court, except as otherwise specified in WCC 22.05.020. (Ord. 2019-013 § 1 (Exh. A); Ord. 2018- 1355 032 § 1 (Exh. A)). 1356 22.05.120 RecernmendedRecommendations and final decisions . Type 1357 IV applications 1358 (1) For Type IV applications per WCC 22.05.020 the hearing examiner's recommendations to the county council may be to 1359 grant, grant with conditions or deny an application. The hearing examiner's recommendation may include conditions, 1360 modifications or restrictions as may be necessary to make the application compatible with its environment, carry out the 1361 objectives and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and 1362 objectives of Whatcom County. 1363 (2) Each recommended decision of the hearing examiner for an application identified as a Type IV application per WCC 1364 22.05.020 shall be in writing to the clerk of the county council and shall include findings and conclusions based upon the 1365 record to support the decision. Such findings and conclusions shall also set forth the manner in which the decision carries out 1366 and conforms to the county's comprehensive plan and complies with the applicable statutes, ordinances or regulations. 1367 (3) The deliberation of the county council on quasi-judicial actions shall be in accordance with WCC 22.05.090(4) and 1368 Chapter 42.36 RCW. 1369 (4) For planned unit developments and major project permits the following shall apply: 1370 (a) The recommendation of the hearing examiner regarding planned unit developments and major project permits shall 1371 be based upon the criteria set forth in WCC 20.85.335 and 20.88.130, respectively. 1372 (b) The hearing examiner shall file the recommendation with the clerk of the county council within 21 calendar days 1373 following the conclusion of the open record hearing. 1374 (c) The county council shall conduct the following within the specified time frames, except as provided in subsection 1375 (4)(c)(iii) of this section: 1376 (i) Hold a public meeting, not an open record public hearing, to deliberate on the project application within 28 1377 calendar days after receiving the hearing examiner's recommendation. 1378 (ii) Issue a final written decision within 21 calendar days of the public meeting. 1379 (iii) The county council may exceed the time limits in subsection (4)(c)(i) or (ii) of this section if the county council 1380 meeting schedule does not accommodate a meeting within the above time frames, or if the county council makes 1381 written findings that a specified amount of additional time is needed to process a specific application or project 1382 type, per RCW 36.70B.080(1). 1383 (5) The county council's final written decision may include conditions when the project is approved and shall state the 1384 findings of fact upon which the decision is based. 1385 (a) Performance bonds or other securityy, acceptable to the prosecutingattorney, torney, may be required to ensure compliance 1386 with the conditions, modifications and restrictions. 1387 (b) Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 1388 provide insurance or other financial assurance acceptable to the prosecutingattorney consistent with Section 22.05.125. 1389 (6) Any deliberation or decision of the county council shall be based solely upon consideration of the record established by 1390 the hearing examiner, the recommendations of the hearing examiner and the criteria set forth in ^^ue applicable state 1391 county code, the county comprehensive plan if applicable, and the county shoreline management 1392 program, including but not limited *^ compliance with SEPA. WAC 197-11 (SEPA Rules) as adonted and modified in the 1393 county code, and the county's adopted SEPA policies. (Ord. 2018-032 § 1 (Exh. A)). 1394 11 39 1395 1396 1397 1398 1399 1400 1401 1402 1403 1404 1405 1406 1407 1408 1409 1410 1411 1412 1413 1414 1415 1416 1417 1418 1419 1420 1421 1422 1423 1424 1425 Rationale for Changes (shown with highlighting): Other parts of the proposal require that state permits be obtained. However, that is different than the County Council or hearing examiner evaluating criteria in state laws and regulations. It's the applicable state agency's job to evaluate state criteria, determine if those criteria are met, and then issue the permit. A copy of that permit can then be submitted to the County. 22.05.125 Proof of insurance for hazards created in the County Permit applicant to provide proof of insurance naming Whatcom County as additional insured for any of the following that require a conditional use permit or major project permit: (1) Expansion of existing fossil fuel refinery or existing fossil fuel transshipment facility; (2) Expansion of or new renewable fuel refinery or renewable fuel transshipment facility. Rationale for Changes (shown with highlighting): On November 14, 2019 and June 25, 2020, the Planning Commission approved motions inserting the insurance language above. The Planning Commission recommended deleting the insurance language below from the original Council proposal. 1426 ' 1427market. We suggest telking 1428 1429 hmit cis each permit is revieweef cinef maefe pat=t of et development agFeeffient. Other fei=ffls 1430 1431 company cei-pei=afe gueti-einfee or etheF financial assui-eince acceptable to the County 1432 11 40 1433 that effect in this draft. The !•'.....•t., could ...1,., indicate that the c flt of s;..cir,_:al 1434 1435 tzethet= then specifying e efneunt her, 1 436 (4) Uahe , De"et;hle... TF the Policy has ., ,le,l..,.tihle the 7«.,,,rer shall he liable for- the i3awne„t E) f of ,e.,«t., ..;th;r, ., 1 437 dedtietible o elf instifed retention amount ., 1;,..,hle to the ..1:.. with ., ht of reimbursement by the insured F ,• ., 1438 such payment made by the inswen if the Policy has a self i uf ed r-etention (SIR) amount, the Pr-ifnafy N ed instif ed sha-U 1439 deelafe how it intends to i3fo,:,le ., Ar....�,...,1 assufance to the County A,r s ,.h SIR afnotin4, .,here ., e table f; nns of 1440 finan.;,.1 assufance e let4er-s ,.food t and ,.eft;a,.,.tes e Eder �;t 1441 1442 -1445 written notice and only after- the expiration of 60 days after a �esrrs ra::. - ►a: raa:ess: r�s�atsys�: r�rtsssa�:rs:�: Tara srrrr>.. nrsr sr�aa copy 1448 (7) Choiee of Law and FE)f:ufn: The Poliev shall not spegiftibat the laws of a state etheF than the State of Washington 1449 in the event ofa0ayy:a ' :rt Policy.1450 tmn, condition, definition orpr-ovision of the Policies1451 (9) instwance Company Financial Strength -Miniamm Rating: The instwer shall meet or- exeeed a Financial St-r-enp-th R-a 1452 ftom A.M. Best of "A" (Exceilent) with a mininmm Financial Size Gate�-,of-,Y major -of XINI and "Stable" or- stfonger-�� Or 1453 the equivalent-ftem another- finaneial.ram f .i 1454 (9)r�Definitions: For- �yy: PermittedPermitted means a loeation ai3i3lieable • P. rmit, ineludine any 1457 (h) Less shall ineludei 1 458 (i) monetary awards orsettle settlements of Rimiu . 1459 a ..,here ..11,,..,..t.le by law, .,:t;. e e e .,E)Flr , „lt: le ,l.,fA e 1 460 C-rtrrCiVil fines, penalties, or assessment&7 1461 e) Pollution nd t:,...s shall ifieWde .1;..,nh.,r a ,1; a .,1 release or e e .nh„l:f h.. Are , e 1 s:... f « , 1; 1 1462 hEittid, easeous r thermal irritant o contaminant, .n,,.h,.t:n but not limited to etr..le,,m hydrocarbons, smoke, 1463 soot, A,rr,es aeids, alkalis, of othe • ehefnie, ls 1464 .1\ Sudden pollution ,. «n.t;tions may be defined breaso able time limits for .t;s..ove and r oftin t.. the insurer, 1 465 e) T-r-a s ,.,•t.,tio f tee movement by any ,eh;ele o ..,le of transit ; ,.h „1:,,, t.,,t ,,,,,t limited to atAef eh:te tr.,,.v 1466 watereraft, as well a and is inelusive of loadine, temporary laeement .1„r:vn transit pfior to final .let;..e 1467 1468 (•) ten e,a f: delivery • t, Permitted �-'r,-ii^i«rn�ca�vrRcrire�r`,5 cv,;a-e-izrir«�aTa�ni� 1469 (4) beificx eft from, .. per- tied L'ae lit„ 1470 11 41 PLEASE NOTE: THIS IS A WORKING DOCUMENT AND IS NOT A FINAL DRAFT DRAFT Proposal Revised by Stakeholder Group 2/12/2021 Proposed GHG Emissions Assessment & Mitigation Provisions for the Cherry Point Amendments Specific Environmental Policies - Air Quality & Climate Explanatory Note: For projects that are not "expansions," existing SEPA Rules would apply. Proposed Language: 16.08.160.F.1.i. Greenhouse Gas Emissions: The following shall apply to projects that: (1) are expansions of Refineries and Fossil Fuel Transshipment Facilities, as defined in WCC 20.68.153, or new, or expansion of Renewable Fuel Refineries and Renewable Fuel Transshipment Facilities; and (2) will have reasonably foreseeable, probable, direct greenhouse gas emissions resulting from new or modified equipment of greater than 25,000 MT/year as determined by the Northwest Clean Air Agency using methodology consistent with 40 CFR § 98.253,Calculating GHG Emissions (for Petroleum Refineries) and 40 CFR § 98.33, Calculating GHG Emissions (for Stationary Fuel Combustion Sources), as applicable. (a) Emissions Assessed: The SEPA Responsible Official shall require assessment of the reasonably foreseeable, probable, direct and indirect, gross greenhouse gas emissions caused by the project, consistent with WAC 197-11-060(4)(d). The assessment shall estimate the incremental gross emissions change from a baseline established in current Prevention of Significant Deterioration and/or Minor New Source Review Permit Technical Support Documents. (b) Impact Assessment: Greenhouse gas emissions impacts shall be assessed using current scientifically valid modeling techniques, accounting for project emissions and gross increases of existing facility emissions resulting from the proposed expansion project. The range of greenhouse gas emissions impacts assessed may be greater than the range of greenhouse gas emissions impacts for which mitigation is required. (c) Mitigation: The County decision -maker shall require the applicant to identify options for mitigation of greenhouse gas emissions that are caused by the project pursuant to WAC 197- 11-660 and WCC 16.08.160.13, and in accordance with the following considerations: (1) Mitigation measures must be imposed on the permitee to the extent attributable to the identified direct emissions of the project proposal as permitted, as provided in WAC 197- 11-660(d). Required mitigation may be limited to direct project greenhouse gas emissions, and may also be required for indirect emissions. Voluntary additional mitigation may occur, per WAC 197-11-660(d). Mitigation shall not be required for projects shown in SEPA assessment to reduce greenhouse gas emissions of existing facilities on a lifecycle basis. (2) The SEPA Responsible Official shall not require duplicative mitigation of greenhouse gas emissions (MT CO2e) reasonably foreseeable, probable, and caused by the project to the extent these emissions or a portion of these emissions are otherwise mitigated under other local, state, or federal laws, rules, or permits. DRAFT Proposal Revised by Stakeholder Group 2/12/2021 (3) [PLACEHOLDER: The stakeholder group is further developing language indicating what types of mitigations are acceptable, language regarding availability of local mitigations with respect to permit approval, and other requirements around the execution of mitigations.] (4) Mitigation based on emission reductions from activities or programs must be: (a) real, specific, identifiable, and quantifiable; (b) permanent; (c) enforceable; and (d) verifiable. [PLACEHOLDER: A sunset clause is necessary to clarify intent and avoid issues of preemption arising from other, higher level rulemakings. This language is still under development by the stakeholder group.] Conceptual draft definitions. These definitions apply for the purpose of this section of Whatcom County Code: Gross emissions are defined as the actual incremental emissions increases or decreases resulting from the project. Gross emissions do not include reductions or additions from offsite mitigation or lifecycle impacts. Indirect emissions are defined as emissions resulting from offsite generation of power purchased for consumption at the facility and emissions from other contiguous or adjacent utilities directly supplying the facility (examples include cogeneration of steam, offsite hydrogen production). Subject: Cherry Point Comprehensive Plan and Code amendments - Joint Stakeholder Proposal Attachments: Exhibits B - D (Code Amendments - Oct, 2020) + Joint Stakeholder Proposal - 4-12-21.docx; Exhibits B - D (Code Amendments - Oct, 2020) + Stakeholder Proposal - 4-12-21.pdf Honorable Councilmembers — Please find attached the final code language proposal for the Cherry Point Comprehensive Plan and Code amendments, presented by the Joint Stakeholder group which consists of representatives from: - Labor - Industry - Environmental advocates Our proposal is presented as redline changes to the original Council proposal sent to the Planning Commission as follows: - Underline and stFikethFeugh represent changes to the Code recommended by Council in Resolution2019-037 - Yellow highlights represent redline changes to the Council resolution as proposed to the Council from the Planning Commission on August 13, 2020 - Gray highlights represent redline changes to the Planning Commission document, presented to Council by the Joint Stakeholder group that received a positive vote during a previous Council meeting - Blue highlights are Joint Stakeholder changes proposed as part of the final recommendation to Council thathave not yet received a vote from Council This proposal represents a significant effort by the stakeholder group to come together, discuss our differing viewpoints, resolve our differences, and seek a common ground proposal that the group found suitable to address numerous concerns from multiple perspectives. The stakeholders jointly present this proposal for the Council's consideration. Though we may collectively find this proposal suitable as a whole for the Cherry Point Comprehensive Plan, this joint proposal does not indicate that any member of the stakeholder group fully agrees with each or all of the approaches adopted in the proposal for implementation in other jurisdictions, or in different situations. Each party may find that other approaches, threshold amounts, mitigation criteria, etc. may be more appropriate at state or federal levels. We welcome your questions, and will have members available on the 15t" to discuss our proposal with you. Thank you in advance, Brad Brown Project Engineer 0: 360-384-8262 1 M: 346-775-9473 3901 Unick Rd I Ferndale, WA 98248 phillips66.com is County Council Working Draft — With Changes through October 28, 2020 + Joint Stakeholder 1 Exhibit B 2 NOTE: Changes from existing text are shown within underlines and strikethroughs 3 Color Coding: 4 • Planning Commission changes that differ from the County Council Resolution 20 7 9-037 are 5 highlighted in yellow 6 • County Council changes from fall 2020 are highlighted in gray 7 • Joint Stakeholder proposals are highlighted in Pul 8 CHAPTER 16.08 STATE ENVIRONMENTAL POLICY ACT (SEPA) 9 16.08.090. Environmental checklist 10 E. Evaluation/Worksheet for Fossil and Renewable Fuel Facilities: Air and environmental health are elements of the 1 1 environment in WAC 197-11-444 and subjects addressed in WAC 197-11-960, Environmental Checklist. As provided in 12 WAC 197-11-906(l)(c), Whatcom County hereby adds a procedure and criteria to help identify the affected environment, 13 impacts, and potential mitigation regarding air quality and climate and risks from spills and/or explosions. For anyj2roposed 14 change of use or expansion of facilities pursuant to and in accordance with WCC 20.68.15311FCC 20.68.154 or any new or 15 expansions of a Renewable Fuel Refinery or Renewable Fuel Transshi�cility that manuf et—v ffeeess. store OF 16 transport any fossil fuel, renewable or hydroearbon zeedst-&&, the proponent will provide an expert evaluation or fill out 17 the County's SEPA "Worksheet for Fossil and Renewable Fuel Facilities." This expert evaluation or Worksheet provides 18 detailed information required to evaluate impacts to air, land and water during review of a SEPA environmental checklist. 19 The form of the worksheet shall be prepared and updated as needed by the SEPA Responsible Official in 20 consultation with the Planning Commissionand taking into aeoo ant the oomments of the Climate impaets Advisof-,� 21 ara its w,embefs. The expert evaluation or Worksheet shall analyze the "significance" of direct, indirect, and cumulative 22 impacts : eludi ^ b * not limited to thow arisin from: rom: 23 1. Windborne transport of fossil or renewable fuel emissions across Whatcom County; 24 2. Lifecycle greenhouse gas emissions for lfie project's incre renewable facilities and 25 fossil fuel facilities; 26 3. Transits of tankers or barges and their support vessels that have the potential to create risks of spills or explosion or 27 interfere with commercial and treaty tribe fishing areas; a 28 4. Releases of stormwater and wastewater to groundwater, marine waters, intertidal wetlands, streams within the 29 shorelines, and to their headwaters; and 30 5. Potential for loss of life and/or property related to risks from spills or explosions associated with refining and 31 transport of renewable or fossil fuels or related feedstocks within Whatcom County. 32 In determining whether possible impacts are "significant" and "probable," the Responsible Official shall determine whether 33 the a erginformation in the expert evaluation or the Worksheet for Fossil Fuel F.,,.44ie&accurately analyze the severity 34 of potential harm, independently from analysis of probability of occurrence, in compliance with WAC 197-11-330. Also, as 35 provided in WAC 197-11-794, "the severity of an impact should be weighed along with the likelihood of its occurrence" and 36 "an impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe 37 if it occurred. 38 The „ OFIES eet and sttypletnenta information provided in the expert evaluation or Worksheet required for fossil and 39 renewable fuel facilities shall be considered procedures and criteria added to Whatcom County's SEPA policies and 40 procedures pursuant to WAC 197-11-906(1)(c) and are deemed necessary to be consistent with the provisions of SEPA 41 contained in RCW 43.21C.020, RCW 43.21C.030 and RCW 43.21C.031. However, the expert evaluation or Worksheet may 42 not be required if an environmental impact statement is prepared. 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 61 62 63 64 65 66 67 68 69 70 71 72 Discussion/Notes: Suggest reference to WAC 7 97-1 1-906 (7) (c) as basis to require worksheet since it allows for additional procedures and criteria. WAC 7 97-1 1-315 refers to Ecology and 30- day review for planned actions, which is not proposed. Rationale for Changes (shown within highlighting): The worksheet will take time to develop and likely will not be available when Council adopts the ordinance. Additionally, larger or more complex projects would benefit from expert evaluation of the issues listed above. It may not be necessary to update the worksheet every year. Therefore, the proposed change is to update the worksheet "as needed." On January 30, 2020, the Planning Commission passed a motion to remove the reference to the Climate Impact Advisory Committee, as the SEPA Official may consult with any committee (including but not limited to the Climate Impact Advisory Committee) when preparing/updating the worksheet. On February 27, 2020, the Planning Commission inserted a clause that requires the SEPA Official to consult with the Planning Commission when preparing/updating the worksheet. The proposed SEPA rules authorize GHG mitigation for "facility emissions" for fossil fuel facilities (proposed WCC 16.08.160.F.1.b.i(a) — Exhibit B, page 4). The proposed SEPA rules require "lifecycle" GHG emission analysis for renewable facilities (proposed WCC 16.08.160.F.1.b.ii — Exhibit B, page 5). The information required in the evaluation/worksheet should correspond to these SEPA requirements. The evaluation/worksheet addresses impacts "including but not limited to" the five listed issues. The phrase "including but not limited to" has been deleted because it is open-ended and undefined. Applicants will not know what they are required to address if this phrase is retained. Finally, if an environmental impact statement (EIS) is required, then the evaluation/worksheet will not be needed since significant adverse impacts will be addressed in the EIS. 16.08.160 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. 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Rationale for Changes (shown with highlighting): Subsections E and F below include provisions relating to placing conditions on projects. 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 FEIS 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. Rationale for Changes (shown with highlighting): Subsection F below includes a provision relating to denying projects. 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. 3. The county adopts by reference the policies in the following county documents: Whatcom County Comprehensive Land Use Plan (inclusive of goal statements and all subarea components) Whatcom County Shoreline Management Program Whatcom County Subdivision Ordinance Whatcom County Solid Waste Management Plan Whatcom County Critical Areas Ordinance 108 All official land use controls adopted by Whatcom County. 109 E. Relationship to Federal, State and Regional Regulations. Many of the environmental impacts addressed b. these hese 110 SEPA policies are also the subject of federal, state and regional regulations. In deciding whether a project specific ill adverse environmental impact has been adequately addressed by an existing rule or law of another agency with 112 jurisdiction, the County shall consult orally or in writing with that agency and may expressly defer to that agency. In 113 making this deferral, the County shall base or condition its project approval on compliance with these other existing 114 rules or laws. in decidi whether- those r „l.,tions provide su ffi ie t i aet mitt .,tio the r,,,myy shall , „lt r 115 or in writine with the responsible federal, state or other aeeney with i isdi ti r, and environmental o expertise and may 1 1 6 expfessly defer to that ageney. The !''aufq , shall base o nditie its those ether 117 _ The County needs4a4 not so defer if such regulations did 118 not anticipate or are otherwise inadequate to address a particular impact of a project. 119 120 121 122 Rationale for Changes (shown with highlighting): The replacement language above (the 2nd and 3rd sentences) is taken from the State SEPA rules (WAC 197- 1 1 -1 58(4)) to better reflect these State rules. 123 124 F. Specific Environmental Policies 125 1. Air Quality and Climate: 126 a. Air pollution can be damaging to human health, plants and animals, visibility, aesthetics, and the overall quality 127 of life. Mitigation of eriteriaair pollutant impacts will normally be the subject of air permits required by the 128 Northwest Clean Air Agency (NWCAA) and/or State Department of Ecology((DOE) and no further mitigation by 129 the County shall be required. However, where a project being reviewed by the County generates public nuisance 130 impacts, odors or greenhouse gas emissions impacts not addressed through the regulations of NWCAA or DOE, 131 the County may require mitigation under SEPA. 132 133 134 135 136 137 138 Rationale for Changes (shown with highlighting): Criteria pollutants are specific types of pollutants identified in the Federal Clean Air Act. The NWCAA addresses a wider variety of pollutants. Additionally, the State Department of Ecology may require a "Prevention of Significant Deterioration" permit for certain industrial sources of air pollution (e.g. refineries). Using the term "public" nuisance in the text above will maintain consistency with WCC 20.66.704 and WCC 20.68.704, the Light Impact Industrial and Heavy Impact Industrial provisions relating to odors. 139 b. Climate change is resulting in increased temperatures, reduced summertime snowpack, reduced stream flows 140 and increased stream temperatures, more intense storms with increased potential for flooding and damage to roads, 141 dikes and critical infrastructure such as water and waste treatment facilities. While climate change is a lg obal 142 phenomenon, it is the policy of Whatcom County to do its fair share to reduce local emissions and to ensure that 143 projects with a likelihood of more than a moderate adverse impact on air quality and climate that may be 144 authorized by the County address greenhouse gas emissions impacts. N444atiea be aekieved *>,r�„T> *' 145 ions containedi (''oun , land , and development re ,l.,tions or thr,,,, 1, the State Environmental PoTlie., 146 Act where land , ode provisions a not address mit .,tia f ereenhous 147 1148 149 150 151 152 153 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. GHG mitigation through SEPA is addressed below. '+ J if 157 of fossil fuel facilities and fossil fuel transshipment f4eilities, as calettlated eonsistent with the definition -of 158 facility emissions in WGG 156 (a) Emissions Calculated: The SEPA Responsible Offieial ti�!ation foF efeenhouse eas e 159 (b) Assessment: GFeenhottse:l, . . . fftvaets shall be assessed ttsim-,ffie most ettFFent scientificalIN-validd LI •, modeline teehi f the GREET Model developed iyLAFf i 161 feedstooks are from Canada, the latest version of the - Genitts model developed by Ganadiai+ 163 164 165 166 167 Rationale for Changes (shown with highlighting): Industry representatives have indicated concern about the models referenced above. The proposed changes would allow appropriate methods to be used in calculating greenhouse gas emissions. .: 169 (e) Miti�4ation: GFeenhouse �4as emissions that oreate specific adverse environmental impaets may be offset for- 171 t:ecittirements, throtwh mitieation projeets that provide real, additional and cittantifiable ereenhouse-eas n,173 double eatintine of emission reduetions where identified as other reettlatory meehanism and there shall be no mitieation ofereenhouse- J �l1ZJ 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the reference to GHG mitigation in the Zoning Code. The double counting language above is somewhat confusing. It seems to indicate that, if mitigation is required by a different agency, then County -required mitigation must be different and additional. But a general concept is that, if another agency requires adequate mitigation, County mitigation is not required. Therefore, this language has been deleted. Additionally, SEPA allows for mitigation of "specific adverse environmental impacts" (RCW 43.21 C.060). This language has been inserted above. i. Greenhouse Gas Emissions: The followine shall apply to proiects that: (1) are expansions of Fossil Fuel Refineries and Fossil Fuel Transshipment Facilities, as defined in WCC 20.68.153 and WCC 20.68.154, or new, or expansion of Renewable Fuel Refineries and Renewable Fuel Transshipment Facilities; and (2) will have reasonably foreseeable, probable, direct greenhouse gas emissions resulting from new or modified equipment of greater than 10,000 MT/.year (CO2e) as determined by the Northwest Clean Air Agency using methodology consistent with 40 CFR § 98.253, Calculating GHG Emissions (for Petroleum Refineries) and 40 CFR § 98.33, Calculating GHG Emissions (for Stationary Fuel Combustion Sources), as applicable. (a) Emissions Assessed: The SEPA Responsible Official shall require assessment of the lifecycle greenhouse ,gas emissions of the project, with a focus on the reasonably foreseeable, probable, direct and 197 indirect, ,gross ,greenhouse gas emissions caused by the project, consistent with WAC 197-11-060(4)(d). 198 The assessment shall estimate the incremental gross facility emissions change from a baseline established 199 in current Prevention of Significant Deterioration and/or Minor New Source Review Permit Technical 200 Support Documents. 201 (b) Impact Assessment: Greenhouse emissions impacts shall be assessed using current scientifically 202 ,gas valid modeling techniques, accounting for project emissions and gross increases of existing facility 203 emissions resulting from the proposed expansion project. The range of ,greenhouse ,gas emissions impacts 204 assessed may be greater than the range of greenhouse gas emissions impacts for which mitigation is 205 required. 206 (c) Mitigation: The County decision -maker shall require the applicant to identify options for mitigation of 207 greenhouse ,gas emissions that are caused by the project pursuant to WAC 197-11-660 and WCC 208 16.08.160.B, and in accordance with the following considerations: 209 (1) Mitigation measures must be imposed on the permittee, but only to the extent attributable to 210 the identified direct emissions of the project proposal as permitted, as provided in WAC 197-11- 211 660(d). Required mitigation may be limited to the project's direct greenhouse gas emissions and 212 may also be required for indirect emissions. Voluntary additional mitigation may occur, per WAC 213 197-11-660(dd). Mitigation shall not be required for projects shown in SEPA assessment to reduce 214 greenhouse gas emissions of existing facilities on a lifecycle basis. 215 (2) The SEPA Responsible Official shall not require duplicative mitigation of ,greenhouse gas 216 emissions (MT CO2e) that are reasonably foreseeable, probable, and caused by the project to the 217 extent these emissions or a portion of these emissions are otherwise mitigated under other local, 218 state, or federal laws, rules, or permits. 219 (3) Mitigation may be achieved through on -site mitigation measures, such as efficiency 220 improvements and reduced generation, and through local and regional projects, so long as such 221 measures or projects are reasonable, capable of being accomplished, are likely to protect or 222 enhance environmental quality, and meet current state rules and standards. Alternatively, 223 mitigation may be achieved through 1j_projects located outside of the local area/region, or 2) 224 through purchase of carbon offsets from any carbon registry approved by the Planning 225 Department, NWCAA, or any Washington state agency, subject to the provisions of item (6), 226 below. Mitigations for the project beings permitted may concurrently satisfy an. othe 227 requirements imposed by County, State or Federal ,governments for the same project. 228 (4) When considering the total mitigation required, a multiplier of 1.5 shall be applied to the 229 tonnage of all mitigationsperformed locally (including those selected from the current Whatcom 230 County Climate Action Plan) after [the effective date of this ordinance] as a means to encourage 231 local investment. This multiplier shall not apply to emission reduction units ,generated by and 232 purchased from local third -party projects or activities that were implemented prior to the effective 233 date of this ordinance. 234 (5) Applicants are encouraged, but not required, to select mitigation proposals from the Whatcom 235 County Climate Action Plan and to select projects that yield energy efficiency gains, local 236 economic benefits such as creation of jobs with living wage or use of prevailing wages, and/or 237 local economic development. 238 (6) Mitigations based on emissions reductions from activities or programs must be: (a) real, 239 specific, identifiable, and quantifiable; (b) permanent; (c) enforceable; (d) verifiable; and (e) 240 except as allowed by (3) above, additional to reductions required under other laws, rules, or 241 permits for unrelated projects or expansions. 242 (7) The County decision maker may not deny permit based upon lack of availability of local or 243 regional mitigation. 244 (d) Should a Washington state greenhouse ,gas assessment and mitigation permitting or project requirement 245 _ be adopted, such as a rule adopted pursuant to the Washington Governor's Directive 19- 18, Environmental 246 Assessment of Greenhouse Gas Emissions, Title 16.08.160.F.l.b.i shall no longer apply as of the effective 247 date of the requirement or rule. Should a new Federal greenhouse gas assessment and mitigation permitting 248 or project requirement with the same force and effect of Title 16.08.160.F.l.b.i be adopted Title 249 16.08.160.F.l.b.i shall no longer apply as of the effective date of the requirement or rule. 250 (e) For the purposes of 16.08.160.F.1.b.i., the following definitions apply: 251 (1) Gross emissions are defined as the actual incremental emissions increases or decreases 252 resulting from the project. Gross emissions do not include reductions or additions from offsite 253 mitigation or lifec, cl�pacts. 254 (2) Indirect emissions are defined as emissions resulting from offsite ,generation of power 255 purchased for consumption at the facility and emissions from other contiguous or adjacent utilities 256 directly supplying the facility (examples include cogeneration of steam, offsite hydrogen 257 production). 258 259 260 261 ii. Greenhouse Gas Emissions Renewable Fuels Facilities Renewable Fuel Transshipment Faoilities: The- and 262 ,a,,,.time t.,tio Flif l ,,moo SEPA Responsible Official ions shall require eyelo e gzzs cri...3: as oe-i-ateawith 263 fuel facilities. The SEPA Responsible Offieial the lif m�irs Fenewable will a sides eyelo ereenhous �:rcmis 264 ,v,.,ki the threshold determination. The SEPA Responsible Offieial analysis when shaILreqjAN 265 doetimentation b4a) b4b) The demonstrate that t---. of emissions consistent with and above. appheant shall 266 lifeeyele ,-vo,,,l., ,-odoetions ...,.,,.ei to F..vls ,-,.vide ., ,-oduetie the use as with renewable net even when 267 268 269 270 271 272 273 274 275 276 277 278 279 On October 10, 2019, the Planning Commission provided direction that renewable fuel facilities should not be required to mitigate greenhouse gas emissions if they reduce lifecycle greenhouse gas emissions. Therefore, the greenhouse gas language above has been modified, including deletion of the mitigation language. iii. Greenhouse Gas Emissions — Other Uses Within the HeM Impact Industrial District: (a) Method of analysis: Determined by SEPA Responsible Official following consultation with federal and state agencies with jurisdiction or expertise. (b) Mitigation: Determined by SEPA Responsible Official. See I.e. 280 c. It is the Count'spolicy to minimize or prevent adverse air quality impacts. Federal, state, regional, and county 281 regulations and programs cannot always anticipate or adequately mitigate adverse air quality impacts. If the 282 decision -maker makes a written finding that the applicable federal, state, regional, and/or Coun . regulations did 283 not anticipate or are inadequate to address the particular impact(s) of the project, the decision -maker maX 284 condition the proposal to mitigate its adverse impacts or, if impacts cannot be mitigated, may deny project under 285 the provisions of the State Environmental Polices 286 2. Plants and Animals: 287 a. Many pecies of birds, mammals, fish, and other classes of animals and plants living in both rural and urban 288 environments and are of ecological, educational, and economic value. Fish and wildlife populations are threatened 289 by habitat loss and by the reduction of habitat diversity. For the purposes of this policy, animals and plants of 290 ecological, educational, and economic value include priority habitats and species as listed in the Washington 291 Department of Fish and Wildlife's Priority Habitats and Species, as amended, consistent with WCC 16.16.710, 292 and Hieh Biodiversitv Value Areas Der the Whatcom Countv 2017 Ecosystem Report. as amended. 293 b. It is the County's policy to minimize or prevent the loss of fish and wildlife habitat that have substantial 294 ecological, educational, and economic value. A high priority shall also be given to meeting the needs of state and 295 federal threatened, endangered, and sensitive species of both plants and animals. Special consideration shall be 296 given to anadromous fisheries and marine mammals. 297 c. 298 state laws reeardine treaW riehts, elean water riehts (both water civality and water cittarAiW), and endangered 299 . The decision -maker maX 300 condition or deny the project to mitigate its specific adverse environmental impacts if the decision -maker finds 301 that a proposed project would reduce or damage rare, uncommon, unique or exceptional plant or wildlife habitat, 302 designated wildlife corridors, or habitat diversity for plants or animals species of substantial educational, 303 ecological, or economic value, or interfere with treaty rights, clean water rights, or endangered species protection. 304 Discussion/Notes: If amendments are made to the Comprehensive Plan policies then the County 305 will in effect update policies under the County's SEPA substantive authority. 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 Rationale for Changes (shown with highlighting): Federal and state agencies would typically determine compliance with federal and state laws when they issue or deny a permit or other authorization for a project. The language above implies that certain federal and state permits/authorizations must be issued before the County can do SEPA review on a project. The State SEPA rules (WAC 197-1 1- 158(4)) indicate: In deciding whether a project specific adverse environmental impact has been adequately addressed by an existing rule or law of another agency with jurisdiction, the GMA county/city shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the GMA county/city shall base or condition its project approval on compliance with these other existing rules or laws. This concept of consultation is already embodied in the proposed amendments in WCC 16.08.160.E above. Therefore, the language highlighted above should be deleted. 324 16.08.175 Purpose of this article and adoption by reference. 325 This article contains uniform usage and definitions of terms under SEPA. The county adopts the following sections 326 by reference, as supplemented by WAC 173-806-040: 327 328 WAC 329 197-11-700 Definitions. 330 197-11-702 Act. 331 197-11-704 Action. 332 197-11-706 Addendum. 333 197-11-708 Adoption. 334 197-11-710 Affected tribe. 335 197-11-712 Affecting. 336 197-11-714 Agency. 337 197-11-716 Applicant. 338 197-11-718 Built environment. 339 197-11-720 Categorical exemption. 340 197-11-721 Closed record appeal. 341 197-11-722 Consolidated appeal. 342 197-11-724 Consulted agency. 343 197-11-726 Cost -benefit analysis. 344 197-11-728 County/city. 345 197-11-730 Decision maker. 346 197-11-732 Department. 347 197-11-734 Determination of nonsignificance (DNS). 348 197-11-736 Determination of significance (DS). 349 197-11-738 EIS. 350 197-11-740 Environment. 351 197-11-742 Environmental checklist. 352 197-11-744 Environmental document. 353 197-11-746 Environmental review. 354 197-11-750 Expanded scoping. 355 197-11-752 Impacts. 356 197-11-754 Incorporation by reference. 357 197-11-756 Lands covered by water. 358 197-11-758 Lead agency. 359 197-11-760 License. 360 197-11-762 Localagency. 361 197-11-764 Major action. 362 197-11-766 Mitigated DNS. 363 197-11-768 Mitigation. 364 197-11-770 Natural environment. 365 197-11-772 NEPA. 366 197-11-774 Nonproject. 367 197-11-775 Open record hearing. 368 197-11-776 Phased review. 369 197-11-778 Preparation. 370 197-11-780 Private project. 371 197-11-782 Probable. 372 197-11-784 Proposal. 373 197-11-786 Reasonable alternative. 374 197-11-788 Responsible official. 375 197-11-790 SEPA. 376 197-11-792 Scope. 377 197-11-793 Scoping. 378 197-11-794 Significant. 379 197-11-796 State agency. 380 197-11-797 Threshold determination. 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 1402 197-11-799 Underlying governmental action. In addition to those definitions contained within WAC 197-11-700 through 197-11-799, when used in this article, the following terms shall have the following meanings, unless the context indicates otherwise: A. "Early notice" means the county's response to an applicant stating whether it considers issuance of a determination of significance (DS) likely for the applicant's proposal (mitigated determination of nonsignificance (MDNS) procedures). B. "ERC" means environmental review committee established in WCC 16.08.045. C. "Facility Emissions" means greenhouse ems emissions associated with €Fossil €Fuel rRefineries.-of4Fossil €Fuel tTransshipment 1Facilities, Renewable Fuel Refineries, or Renewable Fuel Transshipment Facilities based upon the refining and processing of €Fossil 1Fuels located within the Cherry Point Heavy Industrial area. Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definition of "facility emissions" was in the proposed Zoning Code language. However, this term no longer is used in the Zoning Code. Therefore, the definition was moved from the Zoning Code to the County's SEPA rules. On June 25, 2020, the Planning Commission approved a motion to remove the following elements from the original Council definition of facility emissions: • The transportation within the borders of Whatcom County of refined and unrefined fossil fuels to and from a facility located within the Cherry Point Heavy Industrial area, and • The upstream emissions generated by the production and transport of raw products to the facility such as crude oil feedstocks or other fuels used in production or energy generation at facilities. 10 403 D. "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse 404 gases," "GHG," and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, 405 perfluorocarbons, and sulfur hexafluoride, and any other gas or gases designatedy the federal clean air act 406 (United States Code Title 42, Chapter 85), state clean air act (Chapter 70.94 RCW) or state limiting greenhouse 407 Lyas emissions law (Chanter 70.235 RCW). 408 409 E. "Lifecycle ,greenhouse ,gas emissions" means the aggregate quantity of greenhouse gas emissions (including 410 direct emissions and significant indirect emissions), related to the full fuel lifecycle, including all stages of fuel 411 and feedstock production and distribution, from feedstock generation or extraction through the distribution and 412 delivery and use of the finished fuel to the ultimate consumer, where the mass values for all greenhouse gases are 413 adjusted to account for their relative global warming potential. 414 1415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 1433 434 1435 436 437 1438 439 440 441 Joint Stakeholder Note to PDS: This definition is duplicated word-for-word in 20.97.201 but is used in portions of both Title 16 and Title 20. The Joint Stakeholder group was unsure of the preferred method to handle duplicate definitions for multiple Titles at the time the language was finalized. In our discussions, we noted that a cross-reference or carrying a definition in both locations would work. Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The definitions of "greenhouse gas emissions" and "lifecycle greenhouse gas emissions" are in the proposed Zoning Code language. However, these terms are only used in the definition of "renewable fuels" in the Zoning Code. They are most often used in the proposed SEPA rules. Therefore, these terms were inserted into the County's SEPA rules. FE. "Ordinance" means the procedure used by the county to adopt regulatory requirements. G13. "Responsible official" shall mean the director of the department which bears responsibilities for the SEPA process or his/her designee. HE. "SEPA rules" means Chapter 197-11 WAC adopted by the Department of Ecology. (Ord. 98-048 Exh. A; Ord. 84-122 Part 8). 442 443 Exhibit C 444 CHAPTER 20.66 LIGHT IMPACT INDUSTRIAL (LII) DISTRICT 445 20.66.200 Prohibited uses. 446 All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not 447 limited to the following, which are listed here for purposes of clarity: 448 .201 Reserved. 449 .202 Adult businesses except those allowed as an administrative approval use under WCC 20.66.131. 450 .203 In the Bellingham Urban Growth Area the following uses are prohibited: petrelet.„. fefiaer- , and the ,.,.:_'FY 451 manufae.ffiag of p,.,.,tuets the fee f primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and 452 products derived thereof, and primary metal industries. 453 .204 Mel Ttransshipment of-F€acilitiel unless -permitted -as-apart of an e�:st«g 454 refinet-, modification otherwise permitted under this ,ode. 455 456 457 458 Rationale for Changes (shown with highlighting): The existing refineries are south of Grandview Rd., in the Heavy Impact Industrial zone. There are no refineries north of Grandview in the Light Impact Industrial zone. 459 DiscussionlNotes: Prohibit fossil fuel related industries in the LII District; already 460 prohibited in the Bellingham UGA. It does not appear that such uses exist in the LII zone; 461 thus, we have only addressed the prohibition of fossil -fuel refinery and fossil fuel 462 transshipment facility unless part of an existing refinery (e.g. transshipment). 463 464 12 465 CHAPTER 20.68 HEAVY IMPACT INDUSTRIAL (HII) DISTRICT 466 20.68.050 Permitted uses. 467 Unless otherwise provided herein, permitted and accessory uses shall be administered pursuant to the applicable provisions of 468 Chapter 20.80 WCC, Supplementary Requirements, and Chapter 20.84 WCC, Variances, Conditional Uses, Administrative 469 Uses and Appeals, the Whatcom County SEPA Ordinance, the Whatcom County Subdivision Ordinance and the Whatcom 470 County Shoreline Management Program.- and implementing_regulations. The puTese e f the SIC nu ffibers listed ..,ithi ff this 471 472 Comprehensive Plan may preclude eei4aifi peizmiaeduses to oeetif in pai4ieulaf subareas. Please Fefef to the pelieies of 473 474 .051 The manufacture and processing of food including meat (including packinghouses and slaughterhouses), dairy, fruits, 475 vegetables, seafood, grain mill, large scale bakery, sugar and beverage products, provided the following criteria are met: 476 (1) Holding pens associated with packinghouses and slaughterhouses shall be limited to that necessary to accommodate 477 animals intended for processing within 24 hours. 478 (2) The facility shall comply with the solid waste handling standards as set forth in Chapter 173-350 WAC, as administered 479 by the Whatcom County health department as adopted by reference in Chapter 24.06 WAC. 480 (3) If required by the Washington State Department of Ecology, the following permits shall be obtained: 481 (a) State waste discharge permit (Chapter 173-216 WAC); 482 (b) Industrial stormwater permit — general permit (Chapter 173-226 WAC); 483 (c) An NPDES permit (Chapter 90.48 RCW and Chapter 173-220 WAC). 484 .052 Manufacturing and processing of textiles including weaving cotton, synthetic, silk or wool fabrics; knitting yarn and 485 thread mills; textile bleaching, dyeing and printing; and carpet manufacture. 486 .053 The manufacture and processing of lumber and wood including sawmills; planing mills; millwork; veneer, plywood and 487 prefabricated wood products; wooden containers and cooperage. 488 .054 The following are permitted uses except as otherwise prohibited: 489 (1) The manufacture and process of paper including pulp, paper and paperboard mills; and building paper and board mill 490 products. 491 492 493 494 495 496 497 498 499 500 501 502 (2) The manufacture and processing of chemicals and allied products including industrial inorganic and organic chemicals; synthetic resins, rubber, fibers and plastic materials; soap, detergents and cleaning preparations; paint, linseed oil, shellac, lacquer and allied products; chemicals from gum and wood; and agricultural chemicals. Rationale for Changes (shown with highlighting): Existing fossil fuel facilities have been moved to proposed WCC 20.68.068 below. (34) The manufacture and processing of rubber and plastic products. (4-) Leather tanning and finishing. 13 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 (56) The manufacture and processing of cement and glass; and concrete, gypsum, plaster, abrasive, asbestos and nonmetallic mineral products. (6-) Primary metal industries including blast furnaces and steel works; mills for primary smelting, secondary smelting, refining, reducing, finishing, rolling, drawing, extruding, and casting of ferrous and nonferrous metals; and the manufacture of miscellaneous metal products. (7) Storage of asphalt in the Heavy Impact Industrial Zone, Discussion/Notes: Retained from (3) above in case of construction related businesses. Rationale for Changes (shown with highlighting): Existing renewable facilities are addressed in proposed WCC 20.68.068 and 20.68.071 below. .055 The fabrication of metal products including metal cans, hardware, hand tools, cutlery, heating apparatus, plumbing fixtures, structural metal and stamping. .056 The manufacture of machinery including engines; turbines; farm machinery and equipment; construction, mining and materials handling equipment; machine tools and dies; and special and general industrial equipment. .057 The manufacture of electrical machinery including transmission and distribution equipment, and industrial apparatus. .058 The manufacture of transportation equipment including automobiles, trucks, buses, airplanes, boat building and repair, railroad equipment, bicycles and motorcycles. .059 Bulk commodity storage facilities, and truck, rail, vessel and transshipment terminals and facilities, except as pry under WCC 20.68.200. aFe- expr-essly pFehibited except aivviccc¢iirvco crorr-��rvo . Rationale for Changes (shown with highlighting): Proposed WCC 20.68.068, WCC 20.68.153, and WCC 20.68.205 address permitted, conditionally permitted, and prohibited fossil fuel facilities. The above change would simplify the proposed language by indicating that fossil fuel facilities are not addressed by WCC 20.68.059. 530 .060 Stationary thermal power plants with generating capacity of less than 250,000 kilowatts, floating thermal power plants 531 with generating capacity of less than 50,000 kilowatts, and other power plants utilizing renewable resources from solar, wind 532 (Chapter 20.14 WCC) or water sources, except that coal-fired power plants are prohibited. 533 534 535 536 537 538 Rationale for Changes (shown with highlighting): The Council's proposed amendments would prohibit coal fired power plants (proposed WCC 20.68.207). However, power plants are already permitted in the HII zone (WCC 20.68.060). Therefore, WCC 20.68.060 should be modified to clarify that permitted power plants do not include coal fired power plants. .061 Heavy construction contractors. 14 539 .062 Public uses and community facilities including police and fire stations, libraries, activity centers, community centers, 540 park and recreation facilities identified in an adopted city or county Comprehensive Plan or Park Plan, and other similar 541 noncommercial uses, excluding state education facilities and correction facilities. 542 .063 One one-story detached accessory storage building per lot; provided, that the floor area shall not exceed 200 square feet 543 and shall only be used for personal storage and not for habitation or business; and provided further, that the storage building 544 shall contain no indoor plumbing but may be served with electrical power for lighting. 545 .064 Uses allowed in the Light Impact Industrial Zone as permitted uses, WCC 20.66.100, shall be permitted outright within 546 the Heavy Impact Industrial District in the Bellingham UGA. 547 .065 Trails, trailheads, restroom facilities and associated parking areas for no more than 30 vehicles. 548 .066 Marijuana production or processing facility. 549 .068 Existing Fossil Fuel Refineries, Fossil Fuel Transshipment Facilities, Senewable Ruel refineries, 550 Renewable fFuel tTransshipment facilities, piers and docks legally established as of FXXX effective date of ordinancel, 551 provided that when a permit is sought for a project proposed within or attached to a facility of such classification, the 552 applicant must disclose any cMacity changes defined under WCC 20.68.153 and WCC 20.68.154 to the county permitting 553 authorities. pProvided that a conditional use permit is not required by WCC 20.68.153 or WCC 20.68.154,permitted uses 554 includeifigg repairs, improvements, maintenance, modifications, remodeling or other changes including but not limited to the 555 following,: 556 (1) Accessory and appurtenant buildings, structures, and processing equipment. 557 (2) Office space. 558 (3) Parking lots. 559 (4) Radio communications facilities. 560 (5) Security buildings, fire stations, and operation centers. 561 562 563 (6) (7) (8) Storage buildings. Routine maintenance and repair. Environmental improvements and other projects that are required on the subject site by federal, state, regional, or local 564 regulations, including modifications of fossil fuel facilities for purposes of co -processing biomass with petroleum. 565 (99,) Road projects and bridges. 566 (10.) Temporary trailers. 567 (11) Heating and cooling systems. 568 (12) Cable installation. 569 (13) Information technology improvements. 570 (14) Continuous emissions monitoring systems or analyzer shelters. 571 (15) Wastewater and stormwater treatment facilities. 572 (16) Replacement and upgrading of existing equipment. 573 (17) Safety upgrades. 574 575 (1.8) Pipelines carrying petroleum or petroleum products solely within the Heavy Impact Industrial zoning district. 15 576 (Pipelines carrying natural gas solely within the Hem Impact Industrial zoning district. 577 (20-1) Renewable fuel production and shipment. 579 t 0 Inter -refinery shipments of refined products and Intermediate Materialsuch as unfinished oils and blendstocks; 580 (22) Transferring Fossil Fuels during emergency scenarios where contingencies require Fossil Fuels to be moved; 581 F23) Necessary Fossil Fuels transfers during turn-arounds or maintenance periods. 582 (24.) Storage tanks, provided that the County decision maker shall include in any approval of an application for storage tanks 583 at an existing Fossil Fuel Refinery, Fossil Fuel Transshipment Facility, Renewable Fuel Refinery, or Renewable Fuel 584 Transshipment Facility a condition that the storage tank shall only be used in the manner described in the application and 585 approved in the permit. The application and permit shall describe the intended use of the storage tank, including the type of 586 fuel to be stored and, if located within a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the storage tank will or 587 will not be used for transshipment. 588 (25) Other similar structures or activities 589 590 591 592 593 594 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and transshipment facilities from former proposed WCC 20.68.802 to the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code. Additional items have been inserted as permitted uses to address public comments, including pipelines (# 19 and 20) added on July 9, 2020. On August 13, 2020, the Planning Commission added the co -processing language to # 8 and inserted # 21 above. 595 .070 New Senewable juel refineries or rRenewable (Fuel tTransshipment (Facilities, except that new piers, docks, or 596 wharves in the Cherry Point Industrial District are prohibited. 597 598 599 600 601 602 603 604 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by Council). The Council's original proposed amendments would prohibit new piers, docks, or wharves in the Cherry Point Industrial District (proposed WCC 20.68.206 and 20.74.055). This is recognized in proposed WCC 20.68.070 by indicating that this provision does not apply to piers, docks, or wharves. 605 10171 Expansion of existing legal rRenewable Suel refineries or renewable Fuel tTransshipment facilities, provided that 606 the expansion is for rRenewable (Fuels only. 607 608 609 610 Rationale for Changes (shown with highlighting): On January 16, 2020, the Planning Commission passed a motion that expansion of renewable fuel facilities be allowed as a permitted use (instead of a conditional use, as proposed by the County Council). 16 611 .081 Freight railroad switching yards and terminals 612 $5-9- 613 .082 Marine port facilities tted 615 .085 Type I solid waste handling facilities. 616 .086 Type II solid waste handling facilities. 617 20.68.100 Accessory uses. 618 A 0 1 Employee recreation facilities and play areas. 619 .102 Restaurants, cafes and cafeterias operated primarily for the convenience of employees, clients and customers of the 620 district. 621 .103 Temporary buildings for construction purposes for a period not to exceed the duration of such construction. 622 .104 When auxiliary to a principally permitted use: electric utility facilities; substations; generating plants, if less than 50 623 megawatt (MW) net plant capability; gas works; sewage disposal facilities; solid waste landfills and incinerators. 624 .105 Other accessory uses and buildings, including security services, customarily appurtenant to a principally permitted use. 625 .106 On -site treatment and storage facilities for hazardous wastes associated with outright permitted uses or approved 626 conditional uses subject to the most current siting criteria under Chapter 173-303 WAC. 627 .107 Mini -day care centers, and day care centers operated by, maintained by or funded by business in the district for the 628 purpose of serving the child care needs of employees whose place of employment lies within this zone district. 629 .108 Electric vehicle rapid charging stations and battery exchange facilities. 630 20.68.130 Administrative approval uses. 631 .131 Commercial mushroom substrate production limited to the Cherry Point Industrial Area and pursuant to the 632 requirements as contained in WCC 20.15.020(2) (commercial mushroom substrate production facilities). (Ord. 2006-031 § 1 633 (Exh. A), 2006). 634 20.68.150 Conditional uses. 635 The followine uses reauire a conditional use hermit in the HII Zonine District. 636 .152 Uses allowed in the Light Impact Industrial zone as permitted uses, WCC 20.66.100, subject to the following: 637 (1) Outside of the Bellingham Urban Growth Area, approval shall be supported by a finding by the hearing examiner that 638 allowing the use will not limit the supply of land available to meet the demand for future heavy industrial uses. 639 (2) Filing of a deed restriction acknowledging that heavy industrial uses are the preferred uses in the zone and agreeing not to 640 protest proposed heavy industrial uses allowed in the zone in accordance with Chapter 20.68 WCC, and to refrain from legal 641 action against any heavy industrial use in compliance with the regulations of WCC Title 20 and any conditions of approval 642 which might have been proposed. 643 .153 Expansion of existing _1egal-fFossil fFuel rRefineries�s and the primary mantifa -'r 644 eduets the -e o of existif le ..t fFassil , o e ,able fFuel rrransshi en4 fc. eilities For purposes of this 645 section, an expansion is any Fossil Fuel Re fiaetmy and/ar- Fessil Fuel T -aass = ment F �jj development (including 646 otherwise Dermitted or accessory uses). vested after the effective date of this ordinance. that meets anv one of the followin 647 aDDlicable thresholds: 648 A. Cumulatively increases Mhe facility's total Mmaximum atmospheric Cc -rude Ddistillation Mapacit 649 €Fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment 650 limitations conducted by a licensed professional engineer; or 17 651 B. Cumulatively increases Wtkethe facility's total-M+naximum Ttransshipment Ceapacity for Fossil Fuels^'o 4 652 by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation of physical equipment 653 fimiMns conducted by a licensed professional engineer in accordance with 20.97.230.4; or 654 C —C. Increases the frequency of Fossil Fuel unit train shipments by rail unloaded or loaded at an existing _ facility in 655 excess of limits, if any, established by County, State or Federal authorities (where applicable) as of fXXX effective 656 date of ordinance] or the effective date of a previously approved conditional use permit, whichever is more 657 recent. 658 659 .154 Expansion of existing Fossil Fuel Transshipment Facilities. For purnoses of this section. an expansion is an 660 development (including otherwise permitted or accessory uses), vested after the effective date of this ordinance, that 661 cumulatively increases the facility's total Maximum Transshipment Capacity for Fossil Fuels by more than 10,000 barrels or 662 420.000 gallons) per day. based upon an evaluation conducted by a licensed professional eniziII110baccordance with 663 20.97.230.4 664 If a conditional use permit is obtained, the baseline for determining the cumulative increases is reset. 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 Rationale for Changes (shown with highlighting): On January 16 and 30, 2020, the Planning Commission approved motions defining what activities constitute an "expansion" and when a conditional use permit is required. On January 16, 2020, the Planning Commission also approved a motion to move expansion of renewable fuel facilities from conditional use to permitted use, as long as the expansion is for the increased production of renewable fuels. On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to remove certain fossil fuel storage tank capacity increases from the above list of improvements that require a conditional use permit (storage tanks are a permitted use under proposed WCC 20.68.068). & eExpansions, Vper 20.68.153 or shall be subject to the conditional use criteria below —: (1) The conditional use permit approval criteria listed under WCC 20.84.220 are met; Joint Stakeholder Note to PDS: 20.84.220 appears to have been moved as part of Ord. 2020-045. Since the Stakeholder Group did not modify this language, we have not updated this code reference. (2) Within shorelines, if applicable, County approval shall be contingent upon approval of a shoreline permit; (3) The applicant has documented to the sari f etior of the County decision maker —: -all of the anticipated soufees, types; and volumes of substances to be processed, stored, or transferred in bulk ith the proposed expansion • ;changes in 4he--Mmaximum Ttransshipment Ceapacity and/orer the rnMaximum aAtmospheric eTrude Wistillation c-Capacity occurring as a result of the proposed expansion, as applicable; and • , the mode of shipment vessels to be loaded or unloaded wit a ,Jpn l/or as a �t d expansions *�xrc aie ucilic . The hermit shall be limited exclusively to those types and volumes of materials or products as documented and approved. 18 689 690 691 692 693 694 695 696 697 698 699 700 701 702 Rationale for Changes (shown with highlighting): Sources of raw materials may change over time and new sources may come on-line. It may be very difficult, if not impossible, to predict sources of materials over the life of a project. (4) Insurance requirements meet the provisions of WCC �22.05.125. (55) Mitigation of transportation impacts consistent with Chapter 20.78 WCC, Transportation Concurrency Management, and Chapter 16.24 WCC, Commute Trip Reduction. (6) Mitigation of impacts to other services including fire and emergency response capabilities, water supply and fire flow, to address risks created by expansions. ,.ilit the ., 1;. a flt shall vide verifiable :Fable ,1,.etff neata4i,.« to the e ,ter . that the f edit .-has been ,. fis4ffete,l e ist& r with any ai3pkeable federal er state FeEpaifements, ineluding but not limited to water- rights anduse. Rationale for Changes (shown with highlighting): Criterion 7 above, addressing federal and state requirements appears to be unnecessary because criterion 9 already addresses federal and state permitting. 703 (78) Plans for stormwater and wastewater releases have been approved. 704 (8-9) Prior to commencement of any site preparation or construction activities, all necessary state leases shall be acquired for 705 any piers or aquatic lands improvements, and it shall be demonstrated to the ffiffiRWRIPMWzoning administrator that the 706 project applicant has met any federal or state permit of -consultation requirements, including p -epe y , ddr-v., iag tribal treaty 707 rights or the provisions of the Magnuson Amendment through state and federal permitting decisions—,-aPl; 708 (9) The County decision maker may approve a conditional use permit with a condition to obtain relevant leases and complete 709 any necessary federal and state permitting requirements, and may restrict the conditional use permittee from undertaking site 710 preparation or construction activities until it has fulfilled that condition. 711 (10.) The permittee must inform the county permitting authorities of a change in the aforementioned disclosures so that the 712 department can document current capacity levels to ensure that the cumulative thresholds under WCC 20.68.153 or WCC 713 20.68.154 (as applicable) have not been exceeded. 714 01) The County decision maker shall include, in any approval of an application for an expansion, as per 20.68.153 or 715 20.68.154, a condition that the permitted equipment shall only be used in the manner described by the project proponent in 716 the application and approved in the permit. The application shall describe the intended use, including the type of fuel to be 717 stored and, if located at a Fossil Fuel Refiner.. o�gwwable FueLUzf nery,.iyhether the equipment will or will not be used 718 for transshipment. 719 1 0) Minimization of enhm is ,,..7 inclusion of local car -bon offset miti .,ti.,.,.projeets; and 720 721 722 723 725 726 727 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission approved a motion to delete the living wage job language from the conditional use permit approval criteria. 19 728 729 .150 Treatment and storage facilities for hazardous wastes subject to the following: 730 (1) The-ei& criteria for a conditional use listed under WCC 20.84.200. 731 (2) The most current state siting criteria under Chapter 173-303 WAC. 732 (3) It shall be the responsibility of the applicant to document to the satisfaction of the approving body the anticipated sources, 733 types, volumes and final disposition of hazardous wastes to be collected and the type of treatments associated with those 734 wastes. The permit shall be limited exclusively to those types of wastes and treatments as documented and approved. 735 (4) Total off -site facility capacity shall be limited to that needed to treat and store wastes generated within Whatcom County 736 by generators requiring off -site management of hazardous wastes; provided, however, waste streams may be sourced from 737 other jurisdictions through interagency zone designation agreements as approved by the county council, not to exceed 10 738 percent of the total local hazardous waste stream. 739 (5) Prior to occupancy of the facility, the State Department of Ecology shall certify to the county that the facility has been 740 constructed consistent with state requirements. 741 (6) As a condition of approval, the applicant shall be required to keep and maintain accurate and current records of the types, 742 amounts, sources, and final disposition of hazardous wastes collected. The applicant shall provide such records annually to 743 the county, or sooner upon county request. If the facility is found to be exceeding the waste stream limitations or permit 744 restrictions, the county staff shall so report to the approving body who shall have the authority to revoke the permit, 745 following a public hearing, if the limitation has been exceeded absent an emergency situation. Any emergency must be 746 documented by county staff. 747 (7) Annual inspections of the facility shall be a minimum requirement. The applicant shall be required to forward copies of 748 all facility inspection reports to the county. If deficiencies are found, the operator shall, within 15 days, submit to the county 749 for approval an implementation schedule of corrective measures. Such schedule shall include specific completion dates and 750 inspection reporting procedures. 751 If the state does not inspect the facility within the year, the applicant shall be required to arrange and bear all costs for an 752 inspection by a qualified and independent inspection agency satisfactory to the county. 753 (8) Should the facility be found to consistently operate in a manner unsatisfactory to the county in regard to the public health 754 and safety, the permit may be revoked by the approving body following a public hearing. 755 .156 Public and private parks facilities not included in an adopted city or county Comprehensive Plan or Park Plan. 756 .157 Trailheads with parking areas for more than 30 vehicles. 757 .158 Athletic fields. 758 759 760 761 762 763 764 765 766 Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new renewable fuel facilities should be allowed as a permitted use (instead of a conditional use, as proposed by Council). Therefore, a new code section, WCC 20.68.070, has been inserted indicating that new renewable fuel facilities would be permitted outright uses. 180 Major passenger intermodal terminals. 187 Type III solid waste handling facilities; provided, that: 20 767 (1) The facility or site will not be located within the 100-year floodplain or the Lake Whatcom watershed. The facility or site 768 will not be located within any area identified in an adopted critical areas ordinance unless outside of the floodplain and at 769 least three feet in elevation higher than the floodway elevation; 770 (2) Solid waste handling facilities shall be located at least 1,500 feet from the following: 771 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; 772 (b) Public parks, public recreation areas, or publicly -owned wildlife areas; 773 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; 774 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 775 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 776 (f) This 1,500-foot buffer does not apply to: 777 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 778 the property line 100 feet or the standard zoning district setback, whichever is greater; 779 (ii) Inert landfills; 780 (3) Inert landfills shall be located at least 500 feet from the following: 781 (a) All zoning district boundaries, except Commercial Forestry and Industrial Zones; 782 (b) Public parks, public recreation areas, or publicly -owned wildlife areas; 783 (c) Archaeological and historical sites that are registered with the State Office of Archaeology and Historic Preservation; 784 (d) Shorelines that are within the jurisdiction of the Shoreline Management Program; 785 (e) Rivers, streams or creeks that contain documented threatened or endangered fish species; 786 (f) This 500-foot buffer does not apply to: 787 (i) Structures used for offices, storage areas for equipment, and weigh scales. These facilities shall be set back from 788 the property line 100 feet or the standard zoning district setback, whichever is greater; 789 (4) The facility or site will not result in filling or excavation, location of structures or buildings, driveways or machinery use 790 except for vegetation maintenance within 100 feet of any property line and except for driveways within 150 feet of any 791 county or state road right-of-way; 792 (5) The facility or site will have vehicular approaches designed to minimize conflict between automobile and truck traffic, 793 will maintain the carrying capacity of county roads, and will be located on a road classified as all weather, except where use 794 is shown to be intermittent and easily delayed until emergency conditions have passed; 795 (6) The facility or site has complied with the provisions of WCC 20.84.200 and all other ordinances and laws regulating solid 796 waste facilities and sites, such as but not limited to WCC Title 24, the Whatcom County SEPA Ordinance, as well as state 797 and federal regulations concerning solid waste facilities and sites; 798 (7) All landfills have a final closure plan meeting the requirements of WCC Title 24 and of Chapter 173-350 WAC, and the 799 closure plan includes: 800 (a) Reclamation in two to 10 acre increments, as appropriately responsive to the size and intensity of the particular 801 activity, with seeding to be accomplished annually but no later than September 30th; and 802 (b) Permanent vegetative cover that will maintain in healthy growing condition with the level of maintenance that is 803 covered through the financial assurance for post -closure activities; 21 804 (8) The buffer areas and visual screening shall include a minimum of 50 feet wide of landscaping meeting the requirements 805 of WCC 20.80.300 (Landscaping); 806 (9) Solid waste facilities or sites shall be located outside the 10-year time of travel boundary of a public water system's 807 delineated wellhead protection area; 808 (10) Solid waste facilities or sites that handle putrescible waste will be located at least 10,000 feet from airports serving 809 turbine -powered aircraft and at least 5,000 feet from airports serving piston -powered aircraft. These buffers shall be 810 measured from the boundary of the Airport Operations Zone or, if the airport is not within an Airport Operations Zone, from 811 the boundary of the airport property; 812 (11) In addition, the Whatcom County hearing examiner may impose conditions of approval which may be necessary to 813 protect the value and enjoyment of existing adjacent uses. 814 .188 Mitigation banks as a form of compensatory mitigation for wetland and habitat conservation area impacts when 815 permitted in accordance with the provisions of Chapter 16.16 WCC; provided, applications for mitigation banks shall be 816 processed as a major development project pursuant to Chapter 20.88 WCC. 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 20.68.200 Prohibited uses. All uses not listed as permitted, accessory, administrative approval, or conditional uses are prohibited, including but not limited to the following, which are listed here for purposes of clarity: .201 Reserved. .202 Adult businesses. .203 In the Bellingham Urban Growth Area the following uses are prohibited: petroleum refinery and the primary manufacturing of products thereof, primary manufacturing and processing of rubber, plastics, chemicals, paper, asbestos and products derived thereof; and primary metal industries. .204 New Fossil Fuel ;Refineries and the o„ f et r:rrt of pr-.a ets thereof rvvv egeetiyt-dete4. Rationale for Changes (shown with highlighting): On December 12, 2019, the Planning Commission passed a motion that new fossil fuel refineries should be prohibited, as proposed by Council. "Fossil fuel refinery" is defined by proposed WCC 20.97.160.4. The "primary manufacturing" text is unnecessary. It is also unnecessary to insert the effective date into the code. Joint Stakeholder note: These clauses moved to 20.68.050 in Joint Stakeholder proposal Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.205 as shown above. 22 843 .206. New piers, docks, or wharves in Cherry Point Industrial District. 844 845 846 847 848 849 850 851 852 853 854 Rationale for Changes (shown with highlighting): Cite the full name of the zoning district. DiscussionlNotes: Prohibit New Fossil Fuel Refineries. Prohibit Crude Oil and Coal Export Facilities — made broader to Fossil Fuel transshipment. .207 Coal-fired power plants. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 2016-011 § 1 (Exh. L), 2016; Ord. 99-078, 1999; Ord. 99-070 § 2, 1999; Ord. 91- 075, 1991). 20.68.250 Minimum lot size. The minimum lot size shall be consistent with the area required to meet the building setback, lot coverage, buffer and development standards of the district. (Ord. 97-057 § 1, 1997; Ord. 96-046 § 1, 1996). 20.68.255 Minimum lot frontage. 855 For the purpose of dividing property, minimum lot frontage shall be sufficient to provide adequate access and utility 856 development, and meet applicable building setback, buffer, and development standards of the district. In no case shall the 857 frontage be less than 30 feet. (Ord. 99-045 § 1, 1999). 858 20.68.350 Building setbacks. 859 Building setbacks shall be administered pursuant to WCC 20.80.200, 20.80.254 and 20.68.550. (Ord. 99-078, 1999). 860 20.68.400 Height limitations. 861 No maximum height is established; however, when a building exceeds 50 feet, the setback requirements of WCC 20.80.200 862 shall be increased by one foot for each foot of building height in excess of 50 feet, as applicable to all setbacks. 863 20.68.450 Lot coverage. 864 The maximum building or structural coverage shall not exceed 60 percent of the lot size. 865 20.68.500 Open space. 866 Repealed by Ord. 97-057. (Ord. 96-046, 1996). 867 20.68.550 Buffer area. 868 .551 The industrial user shall establish a buffer for building sites adjoining the boundary of the Heavy Impact Industrial 869 District (HII), which shall be located adjacent to the district boundary. The purpose of the buffer is to optimize the visual 870 appearance of the site by obscuring industrial activity from view by passing motorists, to contribute to on -site and off -site 871 impact abatement, and to move towards attaining compatibility with surrounding nonindustrial land uses and character. 872 .552 To implement the buffer requirements of this district, minimum setbacks for heavy industrial buildings and accessory 873 structures shall be established consistent with the following options: 874 (1) If a planting screen is not provided by the industrial user and no natural vegetative screening exists, the minimum 875 setback(s) shall be 660 feet, as measured from the edge of the district boundary. The setback area may be used for security 876 roads, parking, or open space. 877 (2) If natural sight -obscuring and dense vegetation exists, the minimum setback(s) shall be 250 feet, as measured from the 878 district boundary; provided, that a minimum width of 50 feet of natural vegetation is retained. The remainder of the 879 setback(s) may be used for security roads, parking, or open space. 23 880 (3) If a 50-foot buffer planting screen is established, pursuant to WCC 20.80.345, the minimum setback(s) shall conform to 881 the setback requirements of WCC 20.80.200, as measured from the district boundary. In addition, security roads may be 882 situated within the minimum buffer setback; provided, that the 50-foot-wide buffer planting is established. 883 (4) When a parcel situated within this district is located within the Bellingham Urban Growth Area and adjoins an Urban 884 Residential District or residential district within the city limits, setbacks for heavy industrial buildings and/or uses shall be 885 increased to 100 feet and landscaped in accordance with the requirements of WCC 20.80.345. 886 (5) In no case shall the setback from the northern and western boundaries of the Cherry Point heavy industrial area not 887 contiguous to another industrial zone be less than 660 feet, nor the natural vegetation removed except for parking and 888 security or protective uses. 889 .553 Uses other than heavy industrial will conform to the normal setback requirements as set forth in WCC 20.80.200 and 890 20.80.254(3) and the buffering requirements for light impact industrial uses WCC 20.66.551. 891 .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 892 separated or sold shall be used only as a buffer area in accordance with the above requirements. (Ord. 2019-013 § 1 (Exh. A), 893 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, 894 1989; Ord. 87-12, 1987; Ord. 87-11, 1987). 895 20.68.600 Sign regulations. 896 Sign regulations shall be administered pursuant to WCC 20.80.400. 897 20.68.650 Development criteria. 898 (Ord. 96-056 Att. A § Al, 1996). 899 20.68.651 Landscaping. 900 Refer to WCC 20.80.300 for landscaping requirements. (Ord. 89-117, 1989). 901 20.68.652 Off-street parking and loading. 902 Off-street parking and loading provisions shall be administered pursuant to WCC 20.80.500. In addition, loading areas must 903 be located in such a manner that no loading, unloading and/or maneuvering of trucks associated therewith takes place on 904 public rights -of -way. 905 20.68.653 Drainage. 906 All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No 907 project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019; Ord. 96-056 Att. A § 908 A2, 1996; Ord. 94-022, 1994). 909 20.68.654 Driveways. 910 Consistent with WCC 20.80.640, driveway plans shall be reviewed by the county engineer or State Department of 911 Transportation, as applicable. (Ord. 2013-057 § 1 (Exh. A), 2013; Ord. 84-38, 1984). 912 20.68.655 Access. 913 Access shall conform to the provisions of WCC 20.80.565 and 20.80.660. (Ord. 89-117, 1989). 914 20.68.656 Maintenance. 915 The owner, lessee or user shall be responsible for maintaining an orderly appearance of all properties, and shall be 916 responsible for assuring the care and maintenance of any natural growth, where appropriate. 24 917 20.68.657 Enclosure. 918 All manufacturing or fabrication processes which have the potential to produce off -site impacts of a detrimental nature, 919 including light, glare, odors and noise impacts, shall be sufficiently enclosed to mitigate the impacts. (Ord. 99-078, 1999). 920 20.68.700 Performance standards. 921 20.68.707 Pollution control and nuisance abatement. 922 Each industry is required to continuously employ the best pollution control and nuisance abatement technology when 923 reasonably and practicably available for each particular industry; provided, that where federal, state, or regional laws or 924 regulations provide for the level of technology to be employed, the appropriate standards shall apply. 925 20.68.702 Heat, light and glare. 926 All operations and facilities producing heat, light or glare, including exterior lights, shall be so constructed, screened or used 927 as to not unreasonably infringe upon the use and enjoyment of property beyond the boundaries of the district. 928 20.68.703 Ground vibration. 929 No ground vibration other than that caused by highway vehicles, trains or construction activity shall be permitted, which is 930 discernible without instruments, at or beyond the property line for the use concerned. 931 20.68.704 Odors. 932 No odors, dust, dirt, or smoke shall be emitted that are detectable, at or beyond the property line for the use concerned, in 933 such a concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe 934 upon the use and enjoyment of property beyond the boundaries of the district. (Ord. 91-075, 1991). 935 20.68.705 Noise. 936 No use in this district shall exceed the maximum environmental noise level established by Chapter 173-60 WAC. (Ord. 91- 937 075, 1991). 938 20.68.706 Toxic gases and fumes. 939 Any release of toxic gases or fumes must be in compliance with Washington State and Northwest Air Pollution Control 940 Authority standards. (Ord. 91-075, 1991). 941 20.68.707 Liquid pollutants. 942 There shall be no off -site release to soil or surface drainage ways of water borne or liquid pollutants. (Ord. 91-075, 1991). 943 20.68.708 Appearance. 944 New facilities developed in the Bellingham Urban Growth Area shall be designed, constructed, operated, and maintained so 945 as to be harmonious and appropriate in appearance with the existing or intended character of the general vicinity, and such 946 uses shall not change the essential character of the same area. (Ord. 2018-006 § 3 (Exh. C), 2018; Ord. 99-078, 1999). 947 20.68.709 Marijuana odor. 948 For indoor facilities no odor or smoke shall be emitted that is detectable at or beyond the walls of the facility, in such a 949 concentration or of such duration as to cause a public nuisance, or threaten health or safety, or to unreasonably infringe upon 950 the use and enjoyment of neighboring use. The applicant shall install an exhaust system that is designed and constructed to 951 capture sources of contaminants to prevent spreading of contaminants or odors to other occupied parts of the building or 25 952 surrounding area. The system must be designed by a licensed Washington State professional engineer. (Ord. 2015-006 Exh. 953 A, 2015). 954 20.68.800. 955 This SeetiEM ai3i3lieS te fOSS4-�el refiner-ies fossil fuel tr-ansshipmefit feeilities, r-enewable ftiel r-eAneries, or renewable fuel • f7Should a national state ereenhouseeas mitieat' - ereenhouse eas - the defer- to the national or- state 992 (3)11i= d ee k3 40/seetienIXAXI. 994 (a) The appheant shall identify local car -bon off -set projects ineludine the vvve and extent, dur-ation, and expeeted 26 ••8 ••• 000 003 Aueust 2016). T4e-fee--shall be eelleeted a-m+ua!I3v for- the life of the fossil fuel faeilitY OF fOSSil fuel tfafisshipffleIA4 � Should a national or state ereenhouse eas mitieafi t be adopted that pre empts or EmId cause •duplication throtteh ereenhouseeas mitieation,:21l- 007 DiscussionlNete.- Regarding the fee in lieu, per the US EPA, the Social cost Of ceirben (SC- 8 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ by _ _ _ _ _ _ eliaxiele 009 (CO2) emiss* fl yecii% This deflar figure alse i=epresents the value of elamcige-s 010 eveieleel fef ef smell emissien feeluetien (i.e., the benefit ef ei C-10-1-2 feeluetiem)." See: 1014 015 1016 1017 1018 019 020 021 022 023 024 025 026 027 028 029 030 031 1032 1033 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The above changes would delete the proposed GHG provisions from the Zoning Code. 27 1034 1035 1036 1037 1038 1039 Rationale for Changes (shown with highlighting): Moving permitted uses associated with existing refineries and transshipment facilities from proposed WCC 20.68.802 above to the permitted use section of the Heavy Impact Industrial Zoning District for consistency with other sections of the Code, where additional items have been inserted as permitted uses to address public comments. Additionally, the reference to GHG mitigation provisions in the Zoning Code has been deleted. CHAPTER 20.74 CHERRY POINT INDUSTRIAL (CP) DISTRICT 1040 20.74.010 Purpose. 1041 The purpose of the Cherry Point Industrial District is to implement the policies of the Cherry Point Major Industrial Urban 1042 Growth Area section of the Whatcom County Comprehensive Plan by establishing a range of land uses and types of 1043 development appropriate for the Cherry Point UGA and to encourage large scale master planning of industrial sites to 1044 preserve sites of sufficient size to accommodate major port and industrial development. (Ord. 98-083 Exh. A § 57, 1998). 1045 20.74.020 Applicability. 1046 This chapter is applicable to the entire Cherry Point Major Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 1047 20.74.030 Permitted uses. 1048 (1) Primary permitted uses: 1049 (a) Area south of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Heavy 1050 Impact Industrial District, Chapter 20.68 WCC, as well as large scale high technology businesses. 1051 (b) Area north of Grandview: Uses shall include the range of port and large scale industrial uses allowed in the Light 1052 Impact Industrial District, Chapter 20.66 WCC. 1053 (2) Secondary permitted uses shall include smaller scale industrial uses, nonretail commercial uses, and industry -related 1054 professional services, provided the secondary use supports or is supported by primary permitted uses in the Cherry Point 1055 Industrial Urban Growth Area. (Ord. 98-083 Exh. A § 57, 1998). 1056 1057 1058 1059 1060 1061 062 063 064 1065 om 067 068 20.74.040 Accessory uses. Accessory uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.050 Conditional uses. Conditional uses shall be the same as those permitted in the Heavy Impact Industrial District, Chapter 20.68 WCC. (Ord. 98- 083 Exh. A § 57, 1998). 20.74.055 Prohibited uses. Prohibited uses shall be the same as those prohibited in the Light Impact Industrial District Chapter 20.66 - the Heavy Impact Industrial District (Chapter 20.68 WCC), - and the following_ Rationale for Changes (shown with highlighting): The Cherry Point Industrial District includes both the Heavy Impact Industrial and Light Impact Industrial zone. Therefore, both should be referenced. (1) New piers, docks, or wharves. 28 069 2 Conversion of I Renewable Fuel Refinery or Renewable Fuel Transshipment Facili to Fossil Fuel Refine1y or 070 Fossil Fuel Transshi ment Facilities 071 1072 20.74.060 Master site plan requirements. 1073 (1) Development in the Cherry Point Industrial District requires the review and approval of a master site plan, including 1074 SEPA review. Acceptable master site plans include site plans and supporting information submitted and approved for 1075 applications for a building permit, a short subdivision, a preliminary plat, a binding site plan, a major project permit or a 1076 planned unit development. 1077 (2) The minimum area for a master site plan (planning block) shall be 160 acres, or the entire property under common 1078 ownership if the common ownership is less than 160 acres. 1079 (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 1080 industrial activity; provided, that if the planning block is 40 acres or smaller, the requirement for the major industrial site 1081 shall be waived. 1082 (4) Within a planning block, one or more parcels smaller than 40 acres may be created for secondary uses. 1083 (5) Review and approved of a master site plan for a planning block shall be included in the approval of any building permit, 1084 short subdivision, preliminary plat, binding site plan, major project permit or a planned unit development and shall be subject 1085 to the same review and approval standards, including SEPA review, as the plat, binding site plan or permit. Each master site 1086 plan shall identify, as appropriate, the proposed phasing of the development including the construction of public and private 1087 facilities and utilities. The master site plan or supporting documentation as appropriate shall also include any mitigation 1088 required under SEPA and the county critical areas ordinance. (Ord. 98-083 Exh. A § 57, 1998). 1089 20.74.070 Minimum lot size and parcelization. 1090 The minimum lot size in the Cherry Point Industrial District shall be 40 acres; provided, that lots less than 40 acres may be 1091 permitted as follows: 1092 (1) When the lots are to be located within a development approved as a major project under Chapter 20.88 WCC consistent 1093 with the master site plan requirements in this chapter. 1094 (2) When the lots are to be located within a development approved as a planned unit development under Chapter 20.85 WCC 1095 consistent with the master site plan requirements of this chapter. 1096 (3) When the lots are part of a short subdivision, long subdivision or binding site plan approved as consistent with the master 1097 site plan requirements of this chapter. 1098 (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 1099 and will not interfere with the development of the primary large uses intended by the Comprehensive Plan. 1100 (5) When an existing lot of record is less than 40 acres, provided further division is consistent with this section. (Ord. 98-083 1101 Exh. A § 57, 1998). 1102 20.74.080 Design standards. 1 103 Unless otherwise modified by this chapter, building height, setbacks, landscaping, open space and other building and site 1 104 design standards for areas south of Grandview Road shall be the same as those of the Heavy Impact Industrial District, 1 105 Chapter 20.68 WCC; and for the area north of Grandview Road, the same as those of the Light Impact Industrial District, 1 106 Chapter 20.66 WCC. (Ord. 98-083 Exh. A § 57, 1998). 1107 20.74.090 Traffic demand management. 1 108 RCW 36.70A.365 requires the implementation of traffic demand management (TDM) programs for designating a Major 1 109 Industrial Urban Growth Area. Any employer in the Cherry Point Urban Growth Area that employs 100 or more full-time 1 1 10 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 1 1 1 1 continuous months during the year are required to meet the TDM requirements of Chapter 16.24 WCC. 29 1112 1113 1114 1115 1116 1117 1118 119 120 121 122 123 124 125 126 127 1128 1129 1130 1131 1132 1133 134 135 136 137 1138 1139 1140 (1) Employers located in Cherry Point who have not implemented a TDM program shall implement a TDM program by December 1, 2011. (2) Employers in Cherry Point meeting the criteria for having to complete a plan after December 1, 2011, shall meet the requirements of this section within one year of having met the criteria. (Ord. 2009-071 § 2 (Exh. B), 2009). 20.74.100 Drainage. All development activities are subject to the stormwater management provisions of WCC 20.80.630 through 20.80.635. No project permit shall be issued prior to meeting those requirements. (Ord. 2019-013 § 1 (Exh. A), 2019). Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions above. Concerns have been expressed relating to the potential conversion of an existing refinery/transshipment facility into a crude oil transshipment facility (e.g. see Resolution 2019-037). The Planning Commission language for proposed WCC 20.68.153 addresses this potential situation by requiring a conditional use permit if shipping capacity of unrefined fossil fuels were to increase over a certain level. 30 1141 CHAPTER 20.88 MAJOR PROJECT PERMITS 1142 20.88.100 Major project permits. 1 143 .110 All major developments shall, prior to any construction, obtain a major project permit. 1 144 .120 A major project permit will be required for mitigation banks proposed in accordance with the provisions of Chapter 1 145 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 motel/hotel 200 units Number of Employees 250 SEPA Review An EIS is required 1146 1147 In addition, the zoning administrator may make an administrative determination after receiving a recommendation from the 1148 technical review committee that any project be considered a major development, if in the opinion of the administration it is of 1149 a nature that council review would be appropriate. 1150 .130 Pursuant to WCC 22.05.120 the hearing examiner shall recommend to the county council project approval, approval 1151 with conditions, or denial, based upon written findings and conclusions supported by the evidence of record. The hearing 152 examiner's recommendation and county council's decision shall determine the adequacy of a major project permit application 1153 based on the following criteria: 1154 (1) Will comply with the development standards and performance standards of the zone in which the proposed major 1 155 development will be located; provided where a proposed major development has obtained a variance from the development 1156 and performance standards, standards as varied shall be applied to that project for the purposes of this act. 1157 (2) Where the project is conditionally permitted in the zone in which it is located, the project must satisfy the standards for 1158 the issuance of a conditional use permit for the zone in which the project is located. 159 j 160 (3) Prior to commencement of any site preparation or construction activities, Wwill obtain, if required, a state aquatic lands 161 lease, and all other necessM permits consultations and authorizations, including federal determinations that the project will 31 162 not interfere with treaty fishing rights of tribal nations, the limits set forth in the "Magnuson Amendment" under 33 U.S.C. § 163 476(b) (2004), Section 10 of the Rivers and Harbors Act (for structures in or over navigable waters of the U.S.), the Coastal 164 Zone Management Act (including any state Department of Ecology shoreline conditional use or variance approval), the Clean 165 Air Act, and/or under the Clean Water Act, including but not limited to a federal Section 404 authorization (for fill into 166 waters of the U.S.) and a state Section 401 water quality certification, prier to issuance of ^p.� site prepar ation-vremisametion 167 permits necessary, to eonstmet a faoility a-uth-ofized under a major projeet:permit. 1168 (4) Will not substantially interfere with the operation of existing uses. 1169 (5) Will be served by, or will be provided with essential utilities, facilities and services necessary to its operation, such as 1170 roads, drainage facilities, electricity, water supply, sewage disposal facilities, and police and fire protection. Standards for 1171 such utilities, facilities and services shall be those currently accepted by the state of Washington, Whatcom County, or the 1172 appropriate agency or division thereof. 1173 (6) Will not impose uncompensated requirements for public expenditures for additional utilities, facilities and services, and 1174 will not impose uncompensated costs on other property owned. 1175 (7) Will be appropriately responsive to any EIS prepared for the project. 1176 .140 In addition, the hearing examiner may recommend or county council may impose any reasonable conditions precedent 1177 to the establishment of the major development as may be required to mitigate impacts of the proposal on the natural 1178 environment of the county, and to protect the health, safety and general welfare of the people of the county consistent with 179 the policies for environmental protection set forth in the Comprehensive Plan. The County decision maker may approve a 180 major project permit with a condition to obtain relevant leases and complete any necessary federal and state permitting 181 requirements, and may restrict the major project permittee from undertaking site preparation or construction activities until it 182 has fulfilled that condition. 1183 .150 The hearing examiner may recommend or county council may also approve alternative mitigation plans for major 1184 project permits in accordance with WCC 16.16.260(E) which may be used to satisfy the requirements of Chapter 16.16 WCC 1185 and provide relief from the specific standards and requirements thereof. 1186 20.88.200 Procedure. 1187 .205 If a major project permit is determined to be required, an application shall be completed and filed along with the 1188 appropriate fees, and the application shall be processed in accordance with Chapter 22.05 WCC. A master plan is required as 1189 part of the application for a major project permit. The master plan document shall include all elements required per the 1190 department's administrative manual. 1191 .210 Development Standards. The master plan major project permit may propose standards that will control development of 1192 the possible future uses that are in addition to, or substitute for, requirements of this chapter. These may be such things as 1193 height limits, setbacks, frontage, landscaping requirements, parking requirements, signage, view corridors or facade 1194 treatments. Proposed standards that do not meet the minimum county standards must obtain the appropriate variance prior to 1195 county approval of the proposed standards. If the proposed design standards will apply to property located partially or totally 1196 within an urban growth area, concurrence of the affected city will be required. 197 .215 Procedures. "'�^�rMajor project permit review shall be conducted under current review procedures. Other land 198 use reviews may be conducted concurrently with the master plan- project permit review. 1199 (a) Any modifications, additions or changes to an approved master plan are subject to the following: 200 (i) Minor changes shall be reviewed for compliance and compatibility with the approved master plan project 201 permit. 202 aA determination is made by the director. The director is authorized to consult a technical committee at 203 his/her discretion. 204 (2) Minor changes are those amendments which may affect the dimensions, location and type of 205 improvements of facilities; provided, the amendment maintains the basic character of the major project 206 permit application approved by the county council including_ general type and location of dwellings and 207 other land use activities, arrangement of buildings, density of the development, and provisions of the 32 208 project to meet density bonus and open space requirements, or capacity limits, and maintains required 209 conditions or miti ag tion. 1210 (ii) Major changes shall be subject to the original procedural application type, subject to the fees as contained in 1211 the unified fee schedule. 1212 (iii) "�a�Major project permits may include, as a condition of their approval, a requirement for periodic 1213 progress reports and mandatory updates on a predetermined interval. 1214 1215 1216 1217 Rationale for Changes (shown with highlighting): A master plan is one component of the major project permit. The procedures above should relate to the entire permit (not just one component of the permit). 1218 .220 through .265 Reserved. 1219 .270 Where a project requires a major project permit, that project shall be exempt from the requirement of obtaining a 1220 conditional use permit. 1221 .275 Major project permits: Where an applicant has applied for a planned unit development or a development agreement, that 222 project shall be exempt from the requirement to obtain a major project permit except in the Cherry Point Industrial District. 223 .280 Major project permits in the Cherry Point Industrial District: where a project in the Cherry Point Industrial District 224 requires a major project permit, the major project permit shall be concurrently processed with other required land use permits 225 includine but not limited to: rlio=. Pei fft master site i3lan. , anditien l ..so 13efF :. planned unit developmentz or development 226 agreement. 1227 1228 Rationale for Changes (shown with highlighting): The master plan is part of a permit application (not a permit in itself). Additionally, when a major project permit is required, it is exempt from the conditional use permit (WCC 20.88.270 above). 33 1229 CHAPTER 20.97 DEFINITIONS 1230 Discussion/Notes: Definitions added are based on a review of federal (US Energy 1231 Information Administration, US Census, Code of the Federal Register, Revised Code of 1232 Washington), County Ordinance NO. 20 7 8-007, Resolution 20 7 9-004 and examples 1233 addressed in the White Paper. 20.97.052.1 234 235 236 . _ on . ear-e. 237 238 " 239 240 0 0 able (1) the tra a.oi tra-ass ipmer. f ,..hies based . ,,ftat: the borders fan,.,.,.,,,., Countyf d , refined fossil Eels t from ., facility 241 242 1.,eate.7 within the within Fefined and -the Ghern. Point LIoayy industrial area, n . fa.ois i,.eatea the rt.v....., Point Hem-,x ladustFial FeAa ni. a -a,] efeeessine of ssi within afea, and 1245 1246 1247 1248 1249 Rationale for Changes (shown with highlighting): On October 24, 2019, the Planning Commission approved a motion to remove the proposed GHG mitigation requirements from the Zoning Code and keep proposed GHG provisions in SEPA (with further discussion on the SEPA language at a later date). The term "facility emissions" is no longer is used in the Zoning Code. Therefore, this definition has been moved to the County's SEPA rules, where it would be used. • • • #tea ■ #�� Clip------- ------- ---- - 251 _ 252 All tl,� Of organic mat, 253 j254 1255 1256 1257 1258 259 260 261 Joint Stakeholder Note: This definition moved to 20.97.230.2 and updated. See below. 34 262 263 264 265 266 267 268 1269 1270 1271 Rationale for Changes (shown with highlighting): The U.S. Energy Information Administration defines "Petroleum" as: A broadly defined class of liquid hydrocarbon mixtures. Included are crude oil, lease condensate, unfinished oils, refined products obtained from the processing of crude oil, and natural gas plant liquids. Note: Volumes of finished petroleum products include non hydrocarbon compounds, such as additives and detergents, after they have been blended into the products. While crude oil is a type of petroleum, it might be useful to insert it in the definition so the reader can know that without going to another source. This would be consistent with the definition of "Fossil -Fuel Refinery" below, which specifically refers to crude oil. • • >•i 273 "Fossil Fuel Transshipment Facility" r'7�T"Ps� is f4eility in th"roeess loading fos4l-�elsor 274 fuel a primarily of off of renewable feedstooks, from transportation (stteh materials, -refined or unrefined, truek, f4eility loadine Products or produets, method as -a refinei-� one it transportation for the ship, or railear) and 276 fossil ftielstieh-products into onto another methodfaoility purposes275 Whateom County. Examples transportation faeilities inelude tmek, �277 andor FE)ssil_fuel out of of ship, or- -ht _tra-fisshi may+:_ Peint ladtistFial Distriet Small Fossil Renewabletaraee \ and shall exeludes of 280 281 282 283 1284 1285 1286 1287 11288 289 Joint Stakeholder Note: This definition split into separate definitions, moved to 20.97.230.5 and 6 and updated to suit updated proposed code language. See below. Rationale for Changes (shown with highlighting): On August 13, 2020, in response to the joint Industry/RE Sources proposal, the Planning Commission approved a motion to modify proposed WCC 20.68.160.3 as shown above. Planning Commission also approved a motion to insert a separate definition of Renewable Fuel Transshipment Facilities (proposed WCC 20.97.350.4 below). .Saa .n.reer�.rn ara.e.,z�:es�JaRssssFrs�Zr:rs.�..er.Tas.. �eer�rLs r..s�nsaer. eeerrsrsaT.s:7.rSeec:�e7.: errs 291 nited to easoline, distillates ;p eh as diesel fuel and heatin�_x oil, jet fuel, petfoehemieal feed 292 - .. j: • - - 293 but are not limited to: bulk 'L il -: 294 shipment of those prooessed-materials to downstream eustomers. This definition exeludes Small Fossil or Joint Stakeholder Note: This definition moved to 20.97.230.8 and updated from the above definition, which contains language previously proposed to Council. See below. 35 296 r1 n.•.-: - — — — na1 1303 1304 1305 1306 Rationale for Changes (shown with highlighting): "Fossil -Fuel Refinery Capacity" does not occur in the proposal. "Refinery Capacity" appeared one time (proposed WCC 20.68.801(2)(a)(ii)), but the Planning Commission recommends deleting this section of the proposal. Therefore, a definition is not needed. 307 20.97.163 Greenhouse Gas Emissions. 308 "Greenhouse Gas Emissions" means gases that trap heat in the atmosphere. "Greenhouse gas," "greenhouse gases," "GHG," 309 and "GHGs" includes carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur hexafluoride, 310 and an.. o� gas or gases designated by the federal clean air act (United States Code Title 42, Chapter 85),-Of state clean air 311 act (Chapter 70.94 RCW) or state limiting greenhouse gas emissions law (Chapter 70.235 RCW). 1312 Discussion/Notes: See RCW 70.235.0 7 0 and RCW 70.94.030 regarding State laws. 1313 See also https://www.ega.gov.1ghgemissions.loverview-greenhouse-gases. 314 315 319 320 321 322 323 324 325 :J• Joint Stakeholder Note: This definition moved to 20.97.230.3 and unchanged from the language previously presented to Council except to capitalize defined terms. See below. 36 326 20.97.201 Lifecycle Greenhouse Gas Emissions 327 "Lifecycle greenhouse gas emissions" means the aggregate quantity of greenhouse gas emissions (including direct emissions 328 and significant indirect emissions), related to the full fuel lifecycle, including ges of fuel and feedstock production and 329 distribution, from feedstock generation or extraction through the distribution and delivery and use of the finished fuel to the 330 ultimate consumer, where the mass values for all greenhouse gases are adjusted to account for their relative global warming 331 potential. 1332 Discussion/Notes: Considers a definition under the Clean Air Act. See: 1333 httgs://www.ega.gov/renewab/e-fuel-standard-,gro_cr► am//ifecycle-analysis-greenhouse- 1334 gas -emissions -under -renewable -fuel and 1335 httRs://www.govinfo.gov/content/Rkg/USCODE-20 7 0-title42/html/USCODE-2010- 1336 title 42 - chap8 5.htm. 337 338 20.97.202Living _ �az% fneEffis the y.ef4 theif family, if they are the sale pfevider and aree • wer4ing full time (2090 heurs per yeaf). Faf the pffmases ef this deAnitien family ineludes fetif iadivid+h4s, 341 r1:....ussi_.. /Net _: Based . de ,mini.. by Massachusetts institut , r a 342 published 343 for dinances in thei calculater each stette anel each 344 they the county withim.-Li very hew-ly full time, , emel effeti set 345 to bring a family of four eut of poverty. 346. weige e yeeF Feumel ",efkeF must eelf:M See- 1347 1348 1349 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the "living wage" job language from the conditional use permit approval criteria (proposed WCC 20.68.1 53). This term does not appear elsewhere in the proposal. 350 20.97.230.1 Maximum Atmospheric Crude Distillation Capacity. 351 "Maximum Atmospheric Crude Distillation Capacity" or "MACDC" is the maximum number of barrels of input that the 352 atmospheric distillation unit can process within a 24-hour period when running at maximum capacity. Maximum capacity is 353 defined as the physical constraints of the atmospheric distillation process equipment as determined by professional en ig neer 354 licensed in the State of Washington and shall be measured in barrels per day. 355 NOTE: Renumber existing WCC 20.97.230 (definition of "May") to WCC 20.97.231. 37 356 357 358 359 Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission approved a motion adding the above definition to the Zoning Code (the definition was proposed by industry). This term is used in proposed WCC 20.68.153. 360 20.97.4-60230.2 Fossil Fuels. 361 "Fossil fuels" refers to hydrocarbon compounds and composites as a result of geologic processes actin on n the 362 remai�r,ganic matter, including but not limited toinc4tide coal, petroleum products and byproducts, crude oil, 363 Intermediate Materials (such as unfinished oils and blendstocks), natural gas, oil shales, bitumens, tar sands, liquified 364 petroleum gases, propane, butane, and heavy oils. All ^ rtai ^^ bon and • e^ f ffi^a as e^'' of ee 365 an the refnaifis of ^ream^ matter. Renewable fuels are not €Fossil €Fuels. 366 367 1368 Joint Stakeholder Note: Moved from 20.97.160.2, above and updated. 369 20.97.230.3 Intermediate Materials: 370 "Intermediate Materials" refers to refined or partially refined Fossil Fuel products that are produced at a refinery by 371 processing crude oil and other petroleum -based feedstocks that can be further processed to produce refined products or other 372 blending components. Under this definition, feedstocks such as "topped crude" are not Intermediate Materials. 373 374 375 Joint Stakeholder Note: Moved from 20.97.190.2, above, with capitalization changes only. 376 377 20.97.230.4 Maximum Transshipment Capacity 378 The calculation of Maximum Transshipment Capacity shall be conducted by a professional engineer licensed in the State of 379 Washington and shall consist of one or a combination of the following limitations: 380 (a) The maximum physical limit of a facility's capacity for off-loading Fossil Fuels from one or more modes of 381 shipment (i.e., rail, truck, pipeline, etc.), then storing and/or loading such Fossil Fuels, without processing through a 382 Fossil Fuel Refinery, onto another mode of shipment to be transported outside of the designated zoning district 383 boundaries such as the Cherry Point Industrial District, based on the facility's maximum physical limits to move Fossil 384 Fuels from the receipt points of all its inbound shipment methods to the delivery points of all its outbound shipment 385 methods, including the capacities or other physical attributes of the facility's equipment, including but not limited to 386 capacities o£ 387 (i) loading equipment; 388 (ii) offloading_ equipment; 389 (iii) pumps and/or compressors 390 (iv) bulk storage; 391 (v) piping hydraulics; or 392 (vi) any combination of the above 38 393 394 The capacity calculation shall exclude anyequipment installed with a permit condition that prohibits that equipment 395 from being used for transshipment purposes. 396 397 (b) Shipment limitations imposed by County, State or Federal authorities that can be demonstrated by the applicant to 398 restrict the frequency and/or annual amount of Fossil Fuel shipments at its facility. If any such limitations form the 399 basis of a Maximum Transshipment Capacity calculation, then any future increases in Fossil Fuel shipments above 400 use previously posed limits would constitute an increase in Maximum Transshipment Capacity. 401 402 20.97.-=§ Fossil Fuel Transshipment FacilimL. 403 "Fossil Fuel Transshipment Facility" is entirE17mplex, consisting of its m ivi ment, or 404 eng_agM primarily in the process of off-loading Fossil Fuels from oneEmore modes of 405 wiipn , rai�uck, piipelin , q- g and/or loading 406 such mil Fuelsi without processing through a Fo'sPFFRWefine7, onto another Mode of shipment to be transported 407 outside of the designated zoning district boundaries, such as the Cherry Point Industrial District. tfanspOFtation method fof 408 the putq3oses of tra-a.. ei4i,-,e the shipment inte and/"of out -vfr-irhateom Geupi y. This definition shall ,.ludo bulk sta fea ,. 409 tfans f facilities f,F the shipment „F,.,ude oil Without out re finir _ the Gherry shall 410 exclude Small Fossil or Renewable del Storage and Distribution Facilities. 411 412 413 414 Joint Stakeholder Note: Moved from 20.97.160.3, above, split into 5 and 6, and updated. 415 416 20.974�. 230J Renewable Fuel Transshipment Facility+es. 417 "Renewable Fuel Transshipment Facility" is an entire complex, consisting of its individual units, equipment, or 418 gmponents which in aggregate engagetmP primarily in the process of off-loading Renewable Fuels and/or Renewable 419 Biomass from one mode of shipment (i.e., rail, truck, p Iwtff spo tie ethadTsueh as a ship, tniek, er Faileaf) 420 then storing and/or loading such fuels it without processing _ through hrough a Renewable Fuel Refinery or Fossil Fuel Refinery, , onto 421 another mode of shipment to be transported outside of the designated zoning district boundaries, such as the Cherry Point 422 Industrial District. transportation nw4hod for the purposes ft..a orti the shipment -renewable fuel into .,,,,ai,,.. out of 423 W>,..*eam Geup.. This definition shall exclude Small Fossil or Renewable Fuel Storage and Distribution Facilities. 424 425 426 427 Joint Stakeholder Note: Moved from 20.97.160.3, above, split into 5 and 6, and updated. 39 428 20.97.350.3230.7 Renewable Fuel Refinery. 429 A "Renewable Fuel Refinery" means a facility that processes or produces renewable fuels. This definition excludes Small 430 Fossil or Renewable Storage and Distribution Facilities. 431 Joint Stakeholder Note: 432 Moved from 20.97.350.3 and unchanged. 433 434 435 20.97.1W.230.8 Fossil Fuel Refinery 436 A "Fossil Fuel Refinery" et& an entire complex, consisting of its individual units, equipment, or components, which 437 re ate that en in convert n Fossil into peqqkAd products 438 including but not limited to gasoline, distillates such as diesel fuel and heating oil, jet fuel, petrochemical feedstocks, waxes, 439 lubricating oils, intermediate Materials, and asphalt. Fossil Fuel Refinery mouses include but are not limited to: 440 receiving feedstock bulk storage, manufacturing, or processing of lossil§uelslntermediateMaterials or byproducts, and 441 shipment of those processed materials to downstream customers. The following activities do not render a Fossil-Ful 442 Refinery a Fossil -Fuel Transshipment Facility: (i) inter -refinery shipments of refined products and Intermediate Materia71 443 such as unfinished oils and blendstocks, (ii) transferring Fossil Fuels during emergency scenarios wh 444 requin11111111111111111 Fuels to be moved, and (iii necessary Fossil Fuels transfers during turn-arounds or maintenance periods. This 445 definition shall exclude Small Fossil or Renewable = Storage and Distribution Facilities. 446 447 448 449 450 451 452 453 454 455 456 457 458 459 1460 1461 Joint Stakeholder Note: Moved from 20.97.160.4 and updated. 20.97. 350.1 Renewable Biomass. "Renewable biomass" includes but is not limited to the following: (1) Planted crops and crop residue harvested from agricultural land. (2) Planted trees and tree residue from a tree plantation. (3) Animal waste material and animal byproducts. (4) Slash and pre -commercial thinnings. (5) Organic matter that is available on a renewable or recurringbasis. asis. 6 Algae. (7) Separated yard waste or food waste, including recycled cookingand grease. (8) Items 1 through 7 including anv incidental. de minimis contaminants that are impractical to remove and are related to customary feedstock production and transport. Discussion/Notes: Adapted from based on federal renewable fuel definition, htt,gs://www.law.cornell.edu/cfr/text/.40/80.7407. 40 462 20.97.350.2 Renewable Fuel. 463 "Renewable Fuel" means liquid fuels produced from renewable biomass and limited in terms of blending with fossil fuels. 464 Common renewable fuels include ethanol and biodiesel: 465 (1) "E85 motor fuel' means an alternative fuel that is a blend of ethanol and hydrocarbon of which the ethanol portion is 466 nominally seventy-five to eighty -Eve percent denatured fuel ethanol by volume that complies with the most recent version of 467 American society of testing and materials specification D 5798. 468 (2) 'Renewable diesel' means a diesel fuel substitute produced from nonpetroleum renewable sources, including vegetable 469 oils and animal fats, that meets the registration requirements for fuels and fuel additives established by the federal 470 environmental protection agency in 40 Code of Federal Regulations (C.F.R.) Part 79 (2O and meets the requirements of 471 American society of testing and materials specification D 975. 472 1473 474 475 476 477 1478 1479 1480 1481 1482 Rationale for Changes (shown with highlighting): Federal regulations may be amended over time. (3) Renewable fuels shall include those designed to result in a lifecycle greenhouse gas emission reduction of at least 50% or more under the Federal Clean Air Act. Renewable fuels shall not include products produced from palm oil or other feedstocks that cannot be proven to reduce greenhouse gas emissions utilizing accepted methods of the Washington State Department of Ecology or US EPA. Discussion/Notes: A basic renewable fuel energy source is biomass. From biomass, common liquid fuel forms include ethanol and biodiesel. See: https://www.eia.gov/energyexplained/?page=renewable home. Washington State defines renewable diesel and E85 motor fuel in the motor fuel quality act (Chapter 19.1 12 RCW), which are integrated in the definition. 1483 Limiting fossil fuel percentages to 5% is workable for buses and power cars. See 1484 http://www.cleanairtrust.org,/Differences-Between-E85-and-E95.htm1. E85 includes 15- 1485 25% fossil fuels and is used by flexibly fueled vehicles. See 1486 https://www.fueleconomy.ciov/feci/flextech.shtml. 1487 Under the EPA renewable fuel standard, three of four renewable fuel categories must 1488 meet a 50% or 60% lifecycle greenhouse gas (GHG) reduction. A fourth conventional 1489 renewable ethanol must meet a 20% lifecycle GHG reduction. See: 1490 https://www.epa.gov/renewable-fuel-standard-program/overview-renewable-fuel- 1491 standard. 492 493 494 495 496 497 498 499 500 Joint Stakeholder Note: Moved to 20.97.230.7 and unchanged. Rationale for Changes (shown with highlighting): On August 13, 2020, the Planning Commission approved a motion to insert a new definition of Renewable Fuel Transshipment Facilities (it was previously combined with the definition of Fossil Fuel Transshipment Facilities). 41 1501 502 503 504 505 506 507 508 509 1510 511 512 513 514 515 20.97.425.1 Small Fossil or Renewable Fuel Storage and Distribution Facilities. "Small Fossil or Renewable Fuel Storage and Distribution Facilities" means: (1) Equipment and buildings used for purposes of direct sale or distribution to consumers of fossil fuels or renewable fuels, or (2) Accessory equipment that supplies fossil fuels or renewable fuels to an onsite allowed commercial or industrial operation, and that does not meet the definitions of fossil -fuel refinery, renewable fuel refinery, or fossil or renewable fuel transshipment facilities. Rationale for Changes (shown with highlighting): Buildings may also be needed at small scale facilities. 20.97.434.1 Technical committee. "Technical committee" or "technical review committee" means the designated representatives of the Whatcom County Planning and Development Services Director, who shall act as chairperson, the Whatcom County Public Works Director, and the Whatcom County Health Department Director. 42 1516 Exhibit D 1�518 517 CHAPTER 22.05 PROJECT PERMIT PROCEDURES 1519 22.05.020 Project permit processing table. 1520 (1) Marked boxes in the table below indicate the required general steps for processing all project permit applications or 1521 administrative actions. The requirements for each step listed in the top row of the table are provided in WCC 22.05.040 1522 through 22.05.160, as indicated. Specific requirements for each project permit can be found through the references given in 1523 the table. ir Notice of Open WCC Pre- Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see 2 Application Specific Required na Required Required Required Hearing Held By: Maker (see 22.05.160,1 Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Type I Applications (Administrative Decision with No Public Notice or Hearing) Boundary Line 21.03 Administrator Hearing Adjustment Examiner Building Permit 15.04 (f) Administrator Hearing Examiner (i) Natural Resource Title 16 Administrator Hearing Assessment Examiner Changee, IHfN44i2l- ir, ChapterR Y-1cttmini-stiato Commercial Site Administrator Hearing Plan Review Examiner Exempt Land 21.03 Administrator Hearing Division Examiner Floodplain Title 17 Administrator Hearing Development Examiner Permit Land Disturbance 15.04 and Administrator Hearing Permit 20.80 Examiner Lot of Record/Lot 20.83 and Administrator Hearing Consolidation 20.97.220 Examiner Nonconforming 20.83 Administrator Hearing Use Examiner Removal of 20.80.738(3) Development Moratorium Shoreline 23.60 (a) Administrator Hearing Exemption Examiner Zoning 22.20 Administrator Hearing 43 Notice of Open WCC Pre Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see 2 Application Specific Required na Required Required Required Hearing Held By: Maker (see .160, 22.051 Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Interpretation Examiner Type II Applications (Administrative Decision with Public Notice; No Public Hearing) Administrative 20.84.235 Administrator Hearing Use Examiner Lot Consolidation 20.83.070 Administrator Hearing Relief Examiner Reasonable Use 16.16 Administrator Hearing (b) Examiner Shoreline 23.60 (a) Administrator Shorelines Substantial (c) (d) Hearings Board (h) Shoreline 23.60 (a) Administrator Hearing Conditional Use (d) Examiner (c) Short Subdivision 21.04 Administrator Hearing Examiner Type III Applications (Hearing Examiner Decision with Public Notice and Public Hearing) Conditional Use 20.84.200 Hearing Hearing Superior Court Examiner Examiner Floodplain Title 17 Hearing Hearing Superior Court Development Examiner Examiner Variance Long Subdivision 21.05 Hearing Hearing Superior Court Examiner Examiner (g) Binding Site Plan 21.07 Hearing Hearing Superior Court Examiner Examiner (g) Reasonable Use 16.16 Hearing Hearing Superior Court (e) Examiner Examiner Removal of 20.80.738(2) Hearing Hearing Superior Court Development Examiner Examiner Moratorium Shoreline 23.60 (a) Hearing Hearing Shorelines Conditional Use Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Substantial Examiner Examiner (d) Hearings Board (h) Shoreline 23.60 (a) Hearing Hearing Shorelines Variance Examiner Examiner (d) Hearings Board (h) Zoning or Critical 20.84.100 or Hearing Hearing Superior Court 44 1524 1525 1526 1527 1528 1529 1530 1531 1532 1533 1534 Notice of Open WCC Pre Determination Notice of Site Open Record County Appeal Body Permit Reference for Application Complete-ss Application Posting Record Hearing Decision (see 2 Application Specific Required na Required Required Required Hearing Held By: Maker (see .160, 22.051 Processing Table Requirements (see (see 22.05.050) (see (see Required (see 2.11.210, 23.60.150(H)) 22.05.040) 22.05.070) 22.05.080) (see 22.05.090) 22.05.120) 22.05.090) Areas Ordinance 16.16.270 Examiner Examiner Variance Type IV Applications (County Council Decision with Public Notice and Public Hearing) Development 2.11.205 Hearing County Superior Court Agreement Examiner Council Major Project 20.88 Hearing County Superior Court Permit Examiner Council Planned Unit 20.85 Hearing County Superior Court Development Examiner Council Check marks indicate a step is required; reference letters refer to the notes in subsection (2) of this section. Discussion/Notes: Scrubbing the Existing Code for consistency with new provisions and desired review process. Rationale for Changes (shown with highlighting): On January 30, 2020, the Planning Commission passed a motion to delete the proposed change of use provisions of WCC 20.74.110. Therefore, the "Change of Use" permit type is no longer needed. 22.05.1 10 Final decisions — Type I, II, and III applications. (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 permit. The determination or permit may be granted subject to conditions, modifications, or restrictions that are necessary to comply with all applicable codes. 1535 (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) 1536 shall either grant or deny the application or appeal. 1537 (a) The hearing examiner may grant Type III applications subject to conditions, modifications or restrictions that the 1538 hearing examiner finds are necessary to make the application compatible with its environment, carry out the objectives 1539 and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and objectives 1540 of Whatcom County. 541 (b) Requirements: 542 (i) Performance bonds or other security, acceptable to the prosecuting attorney, may be required to ensure 543 compliance with the conditions, modifications and restrictions. 544 60 Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 545 provide insurance or other financial assurance acceptable to the prosecuting attorney consistent with Section 546 22.05.125. 1547 (c) The hearing examiner shall render a final decision within 14 calendar days following the conclusion of all testimony 1548 and hearings. Each final decision of the hearing examiner shall be in writing and shall include findings and conclusions 1549 based on the record to support the decision. 45 1550 (d) No final decision of the hearing examiner shall be subject to administrative or quasi-judicial review, except as 1551 provided herein. 1552 (e) The applicant, any person with standing, or any county department may appeal any final decision of the hearing 1553 examiner to superior court, except as otherwise specified in WCC 22.05.020. (Ord. 2019-013 § 1 (Exh. A); Ord. 2018- 1554 032 § 1 (Exh. A)). 555 22.05.120 RecemmenRecommendations and final decisions . Type 556 IV applications 1557 (1) For Type IV applications per WCC 22.05.020 the hearing examiner's recommendations to the county council may be to 1558 grant, grant with conditions or deny an application. The hearing examiner's recommendation may include conditions, 1559 modifications or restrictions as may be necessary to make the application compatible with its environment, carry out the 1560 objectives and goals of the comprehensive plan, statutes, ordinances and regulations as well as other official policies and 1561 objectives of Whatcom County. 1562 (2) Each recommended decision of the hearing examiner for an application identified as a Type IV application per WCC 1563 22.05.020 shall be in writing to the clerk of the county council and shall include findings and conclusions based upon the 1564 record to support the decision. Such findings and conclusions shall also set forth the manner in which the decision carries out 1565 and conforms to the county's comprehensive plan and complies with the applicable statutes, ordinances or regulations. 1566 (3) The deliberation of the county council on quasi-judicial actions shall be in accordance with WCC 22.05.090(4) and 1567 Chapter 42.36 RCW. 1568 (4) For planned unit developments and major project permits the following shall apply: 1569 (a) The recommendation of the hearing examiner regarding planned unit developments and major project permits shall 1570 be based upon the criteria set forth in WCC 20.85.335 and 20.88.130, respectively. 1571 (b) The hearing examiner shall file the recommendation with the clerk of the county council within 21 calendar days 1572 following the conclusion of the open record hearing. 1573 (c) The county council shall conduct the following within the specified time frames, except as provided in subsection 1574 (4)(c)(iii) of this section: 1575 (i) Hold a public meeting, not an open record public hearing, to deliberate on the project application within 28 1576 calendar days after receiving the hearing examiner's recommendation. 1577 (ii) Issue a final written decision within 21 calendar days of the public meeting. 1578 (iii) The county council may exceed the time limits in subsection (4)(c)(i) or (ii) of this section if the county council 1579 meeting schedule does not accommodate a meeting within the above time frames, or if the county council makes 1580 written findings that a specified amount of additional time is needed to process a specific application or project 1581 type, per RCW 36.70B.080(1). 1582 (5) The county council's final written decision may include conditions when the project is approved and shall state the 1583 findings of fact upon which the decision is based. 584 (a) Performance bonds or other security, acceptable to the prosecuting attorney, mU be required to ensure compliance 585 with the conditions, modifications and restrictions. 586 ( Fossil or Renewable Fuel Refinery or Fossil or Renewable Fuel Transshipment Facilities: The applicant shall 587 provide insurance or other financial assurance acceptable to the prosecutingattorney torney consistent with Section 22.05.125. 1588 (6) Any deliberation or decision of the county council shall be based solely upon consideration of the record established by 589 the hearing examiner, the recommendations of the hearing examiner and the criteria set forth in eeuvAy state 590 county code, the county comprehensive plan if applicable, and the county shoreline management 591 proiiram. includiruz but not limited compliance with SEPA. WAC 197-11 (SEPA Rules) as adopted and modified in the 1592 county code, and the county's adopted SEPA policies. (Ord. 2018-032 § 1 (Exh. A)). 1593 46 594 595 1596 1597 1598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 1617 1618 1619 1620 1621 622 623 624 625 626 627 628 629 Rationale for Changes (shown with highlighting): Other parts of the proposal require that state permits be obtained. However, that is different than the County Council or hearing examiner evaluating criteria in state laws and regulations. It's the applicable state agency's job to evaluate state criteria, determine if those criteria are met, and then issue the permit. A copy of that permit can then be submitted to the County. 22.05.125 Proof of insurance for hazards created in the For expansion projects requiring approval under a Conditional Use Permit at new or existing facilities per WCC 20.68.153 or WCC 20.68.154, financial assurance for the benefit of Whatcom County shall be required. For such expansion projects, a permittee must demonstrate proof of financial assurance (such as trust funds, letters of credit, insurance, self-insurance, financial tests, corporate guarantees, payment bonds, or performance bonds) sufficient to comply with the financial responsibility requirements set forth in State and Federal law, as applicable, prior to permit approval by a Whatcom County Decision Maker. If the financial assurance is in the form of insurance policies, the policies must name Whatcom Coun . as an additional insured and provide Whatcom County with a certificate of insurance to that effect. The permittee must maintain the approved level of financial assurance coverage for new or expanded uses while operating the permitted facility. At the request of the permittee, the Whatcom County Decision Maker may Uprove new or altered forms of financial assurance to meet the requirements of this section, provided that the new or altered form is consistent with the scope and intent of the original permit condition. Rationale for Changes (shown with highlighting): On November 14, 2019 and June 25, 2020, the Planning Commission approved motions inserting the insurance language above. The Planning Commission recommended deleting the insurance language below from the original Council proposal. 47 f.n;J:. 632 (2)G7 instirine Agreements:5pa"n behalf of the insured for loss from third !L:7fty bia7n•y ipk•SnLf� Lea Pefmitted of i •� L/�•n�n 1639 1640 million to $ 100 million may not be civetiietble ifl the insurance metrket. We suggest teikiflg 1641 1642 limit eis ectch peFmif is reviewed cinel mciele petrf of ci efevelopmeflt agimeeffient. Other form-5 1643 1644 compefly coFpereife guciFetfla,.,. . other 1:r,...r,.ial assurance acceptable to the r ",flay 1645 1646 theft effect in this ..freii1. The County could cilse r,.J:..ate theft the o nt of r:nci.._:ell 1647 1648 rather than specifying an amount here. 649 l D,.1:, . Tlo,l,,,.r:b.los. if the D,.1: . has ., ,lo,h,,,tiblo the! tifer shall be liable F the 650 .lo,l,,,.t:l.lo or self insured retention amount „ 1:eablo to the policy, with ., rieht of reimbursement by the insured fo ., 651 s ueh payment made by the insurer. if the Policy has a self i ured retention (SIR) amo ant, the Primary N ed insured sha44 652 deelare how :t intends to provide ., f:n.,,,..:.,1 0 ♦ ♦ho County for- such SIR amount, where , o table forms F 653 financialassur-anee are letters fero,a:tand ,.ortificatos ofde-: 654 hSi•C:RS. iMWW, • • (b) Ganeellation of the -insurance, whether by the insurer, the insured, or other entit-y havine an in ableinterestin - only upon 658 written notioe and only after the expiration of0 :�j. 659 as evideneed by the 661 (7) Choiee of Law and Forum: The Poliev shall not speei"at the laws of a state other- than the State of Washington 662 Pokey 663 term, eondition, definition orprovision of the Poliev. Poliei . silent on ehoiee of law and fora . Best !!'a ..4 ae 667 (9) Definitions: For the purposes of this section, terms are defined as follo.- 669 fixed e0fiveyanees and tel4nifial distFibution systems, as well asa.tiyi and eampresser-statiens and felate&4w444s-. 48 671 i) , mot.,,,, awards or settlements f I la 673 (iii) „ i r penalties, CLsJCJJIIIGLLLS 675 liouid, easeotts or thermal irritant or contaminant, includine, but not limited to, petroleum hydroearbons, smoke, v 677 (d) Sudden pollution eonditions may be defined by reaso able time limits for diseovery and reporting4o the insurer, 678 (e) Transportation means movement W,, aa,,� vehiele er ode ef transit ineludine bu4 t limited to automobile, waek-,-or 679 watereraft, as well as and is ineltisive of loadinex, temporat-v plaeement durine transit prior to final deli. 680 681 �'r,mil«Ildc¢ for delivery —Co-irPermitted ris�ili�9'� yr 683 684 22.05.126 Supplemental Procedures for Fossil Fuel Refinery and Fossil Fuel Transshipment 685 Facility Permitting 686 687 (1) Upon request of the County, Fossil Fuel Refineries or Fossil Fuel Transshipment Facilities shall fill out a supplemental 688 checklist for the purpose of determining whether a project qualifies as a permitted use or requires a conditional use permit as 689 specified in WCC 20.68.153 or WCC 20.68.154. The checklist shall contain supplemental information to include: 690 (a) Impact on Maximum Atmospheric Crude Distillation Capacity (MACDC), Maximum Transshipment Capacity, and 691 fossil fuel unit train shipment frequency from the proposed activity 692 (b) Confirmation of the acceptance of potential permit conditions as outlined in 20.68.068 subsection (24). 693 (c) Applicant name, property owner information, and parcel information as appropriate 694 (d) Clear indication of information considered confidential and non-disclosable under the Public Records Act, including 695 the provisions of WCC 1.32.090 and RCW 42.56 696 (e) An attestation by the applicant regarding the accuracy of the information contained therein, signed by the applicant 697 and certified by a Notary Public 698 699 (2) The checklist shall establish the procedure to be followed by the County upon receipt of a request for disclosure of any 700 information identified by the applicant as confidential. This procedure shall establish, at a minimum, that information 701 identified as confidential may be disclosed only after the County has: 702 (a) Notified the applicant in writing of the request; 703 bib) Determined that the requested information is not exempt from disclosure under WCC 1.32.090 and Chapter 42.56 704 _W 705 (c) Notified the applicant in writing of the County's intention to disclose the information and provided the applicant 706 with 10 days from the date of written notice to file an objection with the Public Records Officer; and 49 707 (d) Notified the applicant in writing of the County's decision to disclose the information despite the applicant's 708 objections and provided the applicant with a reasonable opportunity (at least 30 days from the date of written notice) to 709 file an injunction under RCW 42.56.540. 710 711 (3) Confidential Business Information 712 (a) For the purpose of permit applications and materials submitted by Fossil Fuel Refineries or Fossil Fuel 713 Transshipment Facilities for activities in the Cherry Point Heavy Impact Industrial District, the followingshall hall a12121y. 714 G) Applicants shall clearly identify information considered to be confidential and non-disclosable under the Public 715 Records Act, including the provisions of WCC 1.32.090 and RCW 42.56, and if confidential information is 716 contained in submittal documents, submit two copies of materials for County use as follows: 717 1. A copy with confidential information clearly identified, with a watermark indicating the document contains 718 confidential information 719 2. A copy with confidential information redacted, and a watermark added indicating that the document does 720 not contain confidential information and is suitable for public disclosure 721 GO The following may be considered confidential and non-disclosable under the Public Records Act, WCC 722 1.32.090, and RCW 42.56, and may be exempt from disclosure by the County in accordance with WCC 1.32.090: 723 1. Processing equipment technical specifications on internals, sidestream/pumparounds, design specifications, 724 and process controls 725 2. Process unit design, instrumentation and controls 726 3. Feedstock, product, or process unit pump capacity and configuration 727 4. Contractual aLyreements and all terms contained therein 728 (iii) The information listed above is not meant to be all-inclusive. Other information related to the applicant's 729 processing activities, feedstock and product purchase, and/or sale and transportation methods and costs may be 730 non-disclosable under the County's Public Record provisions and/or provisions of RCW 42.56 and other state 731 provisions. In all cases, such information will be marked as Confidential Business Information when submitted as 732 Dart of an aDDlication. 733 (iv) Calculation and permit material submittals may contain, but are not required to contain any of the above 734 information 735 (v) Where no increase to MACDC, Maximum Transshipment Capacity, or unit train frequency is proposed, 736 submittal of Confidential Business Information specifically related to the criteria of WCC 20.68.153 and WCC 737 20.68.154 shall not be required to be submitted with the permit application materials 738 739 (4) Where calculations are to be submitted for Maximum Transshipment Capacity of Maximum Atmospheric Crude 740 Distillation Capacity, the applicant shall provide calculations performed and certified by a professional engineer licensed in 741 the state of Washington, clearly indicating the impact on MACDC and Transshipment Capacity. Sections of the report 742 containing confidential business information shall be separated as noted in WCC 20.05.130 subsection (2) 743 Joint Stakeholder Note to PDS: 22.05.1 26 used as a possible section numbering; may need to be adjusted accordingly based on standard numbering philosophy. 50 From: Brown, Brad J To: Council; Todd Donovan; Barry Buchanan; Tyler Byrd; Kathy Kershner; Ben Elenbaas; Rud Browne; Carol Frazev Cc: Mark Personius; Matt Aamot; Tyler Schroeder; Satpal Sidhu; Dana Brown -Davis; pamela.bradyrabbp.com; shannonwCabre-sources.org; cart pstrust.org; Johnson, Tim; Holli Johnson; Gavin Carscallen; Andrew Gamble largamble(ftetrogascorp.com); johan.hellman(a bnsf.com; tsmithlocal292Cabgmail.com; Matt Krogh Subject: Cherry Point Comprehensive Plan and Code Amendments - Inter -Refinery Shipment Language Date: Tuesday, April 20, 2021 12:01:24 PM Attachments: image002.pnng Honorable Councilmembers — On behalf of the Joint Stakeholder group, thank you again for the opportunity to provide comment on the code amendments. Per Council's request on April 15th, the Joint Stakeholder group has met several times to review concerns expressed with the language on inter -refinery shipments as a Permitted Use in 20.68.068 (21) (Line 579, page 16 in the April 12th proposal). As a group, we have aligned that there are two viable options that can address concerns. We felt it best to propose both to the Council for consideration. Original (April 12th proposal): (21) Inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks; Option 1: Adjust language as follows: (21) Inter -refinery shipments of refined products and Intermediate Materials such as unfinished oils and blendstocks, excluding transshipment of such materials by a Fossil Fuel Refinery Option 2: Move language without changes to be an Accessory Use under 20.68.100 (reference page 17 in the April 12th proposal). Per WCC 20.95.005, an Accessory Use is defined as follows: 20.97.005 Accessory use. "Accessory use" means a use customarily incidental to a permitted use; provided, that such use shall be located on the same lot as the permitted use except where specifically permitted elsewhere in zoning district regulations. We will have members of the Joint Stakeholder group available to discuss each option in the meeting this afternoon. Thanks, Brad Brown Project Engineer 0: 360-384-8262 1 M: 346-775-9473 3901 Unick Rd I Ferndale, WA 98248 phillips66.com ORM From: Council To: Dana Brown -Davis; Lisa Bruner; Cathy Halka Subject: FW: Cherry Point Amendments - PDS Comments on Proposed Revisions (Nov 24) Date: Wednesday, November 25, 2020 1:53:59 PM From: Matt Aamot Sent: Wednesday, November 25, 2020 1:53:55 PM (UTC-08:00) Pacific Time (US & Canada) To: Eddy Ury; Council; Todd Donovan; Barry Buchanan; Tyler Byrd; Kathy Kershner; Ben Elenbaas; Rud Browne; Carol Frazey Cc: Brady, Pamela; Johnson, Tim; Gavin Carscallen; Andrew Gamble; Verburg, James E; Chalfant, Jeff; Brown, Brad J; Strang, Erin T; Trevor Smith; Alex Ramel; Rebecca Ponzio; Anna Doty; Mark Personius; Nick Smith; Amy Keenan; Karen Frakes Subject: Cherry Point Amendments - PDS Comments on Proposed Revisions (Nov 24) Dear Stakeholder Group: Thank you for sending PDS a copy of the 'Cherry Point Amendments Stakeholder Revisions" submitted to the County Council on Nov. 24, 2020. We appreciate and value the Stakeholder Group's hard work and diligence on this matter. PDS staff has the initial comments on the proposed changes: General Comments Generally speaking, we are still concerned about the degree to which proposed regulations are "transparent, accountable and easy to understand" (see our 11/19/2020 e-mail). As mentioned at the Council Committee of the Whole meeting yesterday, we would like the Stakeholder Group to apply the proposed regulations to a number of scenarios or examples to get a sense of whether the Council, PDS, and the Stakeholder Group would interpret the (sometimes complex) regulations in a similar fashion. This would also provide some level of transparency for the public relating to what the proposed regulations might mean for County review of different types of projects. We would appreciate receiving this information in writing. Specific Comments We also have the following specific questions/comments on the proposed amendments that we are hoping the Stakeholder Group can address: Proposed WCC 20.68.153.0 - This section requires a conditional use permit for expansion of Fossil Fuel Refineries when, among other things, the expansion: Increases the frequency of Fossil Fuel unit train shipments by rail unloaded or loaded at an existing facility in excess of limits, if any, established by County, State or Federal authorities (where applicable) as of [XXX effective date of ordinance] or the effective date of a previously approved conditional use permit, whichever is more recent. If a refinery could increase the train shipments without physical improvements (outside the RR R-O-W), would the County have the authority to permit an increase in rail traffic? Or is this preempted by the Federal government? This may initially be a question for industry (is it possible to increase train traffic without physical improvements). If so, it may be prudent to have County's legal counsel review the proposed language. Conditional Use Criteria - When expansion of Fossil Fuel Refineries (20.68.153) was separated from Fossil Fuel Transshipment Facilities (20.68.154), the approval criteria relating to both .153 and .154 were left hanging (don't appear to have a code citation). It may be cleaner to insert the conditional use criteria under both .153 and .154 so the code citations are clear. Transshipment by Refineries The proposal allows transshipment by Fossil Fuel Refineries that, by definition, are not Fossil Fuel Transshipment Facilities. Proposed WCC 20.68.068(24) allows the following as a permitted use (as long as none of the conditional use thresholds are met): Storage Tanks, provided that the County decision maker shall include in any approval of an application for storage tanks at an existing Fossil Fuel Refinery, Fossil Fuel Transshipment Facility, Renewable Fuel Refinery, or Renewable Fuel Transshipment Facility a condition that the storage tank shall only be used in the manner described in the application and approved in the permit. The application and permit shall describe the intended use of the storage tank, including the type of fuel to be stored and, if located within a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the storage tank will or will not be used for transshipment. Proposed WCC 20.68.153(B) requires a conditional use permit for a Fossil Fuel Refinery expansion if, among other things, it: Cumulatively increases the facility's total Maximum Transshipment Capacity for Fossil Fuels by more than 10,000 barrels (or 420,000 gallons) per day based upon an evaluation conducted by a licensed professional engineer in accordance with 20.97.230.2. Proposed conditional use criterion 11 states: (11) The County decision maker shall include, in any approval of an application for an expansion, as per 20.68.153 or 20.68.154, a condition that the permitted equipment shall only be used in the manner described by the project proponent in the application and approved in the permit. The application shall describe the intended use, including the type of fuel to be stored and, if located at a Fossil Fuel Refinery or Renewable Fuel Refinery, whether the equipment will or will not be used for transshipment. The fact that Fossil Fuel Refineries may transship fossil fuels raises the question of how much they can transship without processing on site? How would it be viewed if an existing Refinery imported exactly the same amount of crude oil but, instead of refining all of this crude oil on site, proposed to ship out some of it? It can be assumed that this would be a permitted use, if the Maximum Transshipment Capacity is increased by less than 10,000 barrels/day. If Maximum Transshipment Capacity is increased by more than 10,000 barrels/day of crude oil, it would require a conditional use permit. But at what point would it be considered a New Fossil Fuel Transshipment Facility that is prohibited under proposed WCC 20.68.205? Would it be when 25%, 50%, or some other % of this crude oil is transshipped (instead of refined on site)? Proposed WCC 20.97.230.4 - Clause # 1 of the definition of Maximum Transshipment Capacity is somewhat complex. The scenarios will give us a sense of the meaning of this definition, but ultimately, an engineer will have to determine whether clause # 1 is met in any given case (same for MACDC). We would like some examples of what improvements/activities, other than changes to the DNR lease limiting the number of vessels/year, would constitute an increase in the Maximum Transshipment Capacity? Thank you for considering our input. Sincerely, PDS Staff