The Whatcom County Planning Commission will have a public hearing on the proposed Birch Bay Watershed “in lieu of fee” mitigation program this Thursday at 6:30 PM in the Whatcom County Council Chamber.  You can testify in person or send an email comment to PDS_Planning_Commission@co.whatcom.wa.us.
 
The Birch Bay alternative mitigation plan is authorized under the County Critical Area Ordinance (CAO) if certain conditions are met.  As drafted, there are substantive problems.  A good example is the loophole that undermines the intention of the proposal.
 
The program allows developers who have adopted LID (“Low Impact Development”) standards to participate in the Birch Bay Watershed alternative mitigation program.  The developer pays an off-site mitigation fee, and the County uses the money to identify, manage and secure off-site habitat that will result in environmental enhancement on a watershed wide basis, while consolidating many small individual projects.  In theory, this should be a win-win for everyone.  Developers are allowed to reduce normal habitat buffers restricting development and the community obtains off-site habitat that has greater conservation value.  
 
The Birch Bay alternative mitigation program only mitigates habitat impacts although buffers provide a number of ecological functions.   The County believes that these additional buffer impacts will be mitigated on-site through the use of LID standards. (Appendix F of CAO, page 16).  (This belief is probably inaccurate, but that is another topic.)   To ensure that all buffer impacts are mitigated (at least in theory), a developer must adopt LID standards before participating in the alternative mitigation program.  If  LID standards are not adopted, there will be direct and unmitigated impacts on wetlands and streams that violate the CAO, state and federal law. 
 
However, under proposed WCC 16.16.920.C, the “technical administrator may waive this requirement [enrollment in the LID program] on a case by case basis if s/he has reason to believe that the proposed development project has minimal effects on water quality and quantity.”   Who is the Technical Administrator? This term is not defined.  What standards does the TA use in this making a waiver determination?  Without standards, we are granting the TA unlimited discretion without public process or appeal rights.  This violates the requirement for defined standards in alternative mitigation programs required in the CAO.  WCC 16.16.260.E.2.g.
 
More importantly, the Birch Bay alternative mitigation program mitigates habitat buffer impacts, but the waiver is based on the water quality and quantity impacts of the entire development.  In other words, the waiver is determined under standards, and reflects goals, completely different from those employed in the normal operation of the program.  This has the potential to substantially undermine the purpose of the alternative mitigation proposal.  For example, a waiver could be granted even if it resulted in habitat buffer impacts. 
 
This is a particular concern with regard to larger projects, such as industrial development, which is permitted under the proposal.  WWC 20.50.030.  Part of the Cherry Point Industrial Area is within the Birch Bay watershed, and includes the SSA project, and new rail connections.  http://www.whatcomcounty.us/pds/plan/current/gpt-ssa/pdf/2011-02-preliminary-conceptual-compensatory-mitigation-plan.pdf. 
 

This creates a risk that SSA will be allowed unmitigated buffer reductions without meeting LID requirements.  This risk is not speculative.  It is clear that SSA has been working with the County on creating the same type of alternative mitigation plan that is being proposed for the Birch Bay watershed. http://www.co.whatcom.wa.us/pds/plan/current/gpt-ssa/pdf/2011-project-info-doc-pds-comments.pdf.

Tell the Planning Commission to eliminate this loophole by requiring the use of LID standards as a mandatory prerequisite for participation in the mitigation fund.  I do not support the proposal for a number of reasons that I hope I will have the time and ability to address.  However, if the proposal is adopted, eliminating the waiver would prevent the most egregious of impacts.