The Port of Bellingham, in coordination with the City of Bellingham, is submitting an Interim Clean-Up Plan to the Department of Ecology (DOE) that would amend the existing Whatcom Waterway Consent Decree and Clean-Up Plan.  The Interim Clean-Up Plan would allow the Overwater Walkway, (OWW) connecting Boulevard Park to the Cornwall Landfill, to be constructed before full clean-up of the Landfill.

The Interim Clean-Up Plan, if approved by DOE, would allow the Port to use dioxin contaminated sentiment dredged from Squalicum Harbor in the clean-up of the Cornwall Landfill. Normally, state law prohibits the re-use of contaminated sediment, but there is a special provision being cited by the Port that allows for a permit exemption for “beneficial” re-use.

The City is agreeing to this proposal because it facilitates their need to ensure the OWW is on schedule so no ear-marked federal funds are forfeited. Additionally, they also need to have the Consent Decree amended because when it was drafted in 2007, it omitted any reference to the OWW by “mistake.”

The most troubling aspect is the quiet agreements being made between the City, Port, and DOE, who all share a very cozy relationship, on matters of public health and safety.  By the time information is released to the public, it is almost certain the requested amendments will have been informally approved by DOE.  The Toxic Cleanup Program manager and MTCA site manager are reviewing and providing comment on the draft Interim Clean-up Plan, amendments to the Consent Decree, and the SEPA checklist, as well as written concurrence with the basic proposal concepts before this matter is released for public review and comment.  

Printed below is the letter I submitted to DOE setting out my concerns, as well as hyperlinks to the documents I am relying upon as evidence.  I hope others will add their voices in objecting to the re-use of dioxin contaminated sediment at the Cornwall Landfill, as well as the lack of open, transparent government indicated through these actions. 

Wendy Harris

---------------------------------------------------------------------------------------------------

Lucy McInerney, P.E

Site Manager, Bellingham Bay Demonstration Pilot Project manager

DOE, Northwest Regional Office

Toxic Clean-Up Program, NW Region

Sent via email on March 7, 2010

Dear Ms. McInerney:

The City of Bellingham Parks and Recreation Department, in coordination with the Port of Bellingham, has requested that the Department of Ecology (Toxics Cleanup Program) approve amendment of the Whatcom Waterway 2007 Consent Decree and Clean-up Action Plan (the Consent Decree), which governs remediation of the Cornwall Landfill under the Washington Model Toxic Control Act. The Parks Department requested that the Consent Decree include a “missing” reference to a future Overwater Walkway (OWW) that will connect Boulevard Park to the Cornwall Landfill. The Parks Department asserts that the OWW was included in City planning efforts since 2002, and was omitted from the Consent Decree by error. (http://bit.ly/dJFHAZ ).

This assertion is incorrect and fails to reflect the City’s true intention, which is to include the OWW in a proposed Interim Clean-Up Plan for the Cornwall Landfill.  The draft Interim Clean-Up Plan allows development of the OWW without full remediation of the Cornwall Landfill.  It may also allow re-use of dioxin contaminated sediment as part of the interim clean-up, which has not yet been disclosed to the public. (Interim Clean-Up Plan at http://bit.ly/facx1b  and DOE letter to Port at http://bit.ly/hNz30W and Port letter to DOE at http://bit.ly/fQpY5X; and City internal discussion regarding interim plan at http://bit.ly/e26kJN ).

Amending the Consent Decree is premature until the City reaches a settlement with the Lummi Nation regarding OWW impacts to Lummi treaty rights. Concurrence from Lummi Nation is necessary for permit approvals by the federal government.  A letter from the Lummi’s does not indicate that settlement is imminent. The Lummis question whether the City has the financial ability to make a fair settlement offer.  They also remain unconvinced that the OWW is either necessary or properly mitigated.  (http://bit.ly/h0JqGG ).

The Parks Department alleges that the OWW has been planned since 2002.   However, the documents cited by the Parks Department prior to 2008 are either drafts or visioning statements. And the City’s primary source of funding for this project, the Greenway Levy III, was not available until 2006.    

The Greenway Levy III was approved by the public pursuant to special election held on May 26, 2006.  The public approved this levy for “acquisition, development and maintenance of greenways, open space, parks and trails.”  No specific projects, including the OWW, were identified in the language of the levy. This has not stopped the Parks Department from making allegations that the OWW was approved by public vote. (http://bit.ly/fR04yo ).  

A City Council ordinance, dated March 13, 2006, includes “illustrative guidelines” of levy projects. (Ordinance 2003-03-033, above hyperlink.)  The ordinance allocated 4 million dollars for a “Future Waterfront Redevelopment Trail.”  This description indicates that little more was determined about the future trail other than its location within the waterfront redevelopment area.  If the OWW had been an established Parks project at the time of the Greenway Levy III vote, it would have been specifically identified in the City ordinance, but it was not.  Other projects, such as expansion of the Bay to Breaker trail, or the future Samish Crest Hiking trail, were specifically identified.

Moreover, the OWW violates the only requirement for the future trail… that it be located in the waterfront redevelopment district. The OWW begins at Boulevard Park and does not reach the waterfront redevelopment district until the last section of OWW lands at the Cornwall Landfill.  Therefore, the funds for the OWW have not been authorized pursuant to either public vote or City Council Ordinance. 

The Parks Department may have appropriated 4 million dollars from the Greenway Levy III for the OWW, but this is not synonymous with public support. The project has always been controversial. Citizens who supported the OWW were hand-picked for appointment to local committees, which subsequently revised the language used in the original levy and ordinance in order to justify the OWW.

Other documents cited by the Parks Department in support of their position include the Capital Facilities Plan; the Parks, Recreation and Open Space Plan; the City Transportation Improvement Plan; and the Waterfront District Draft Sub-Area Plan.  However, the Parks Department cites to the entire document, rather than the specific provision and page within the document, which is often only one or two sentences.  This fails to provide a proper context and discourages efforts to substantiate the Parks Department evidence.  For example, the referenced draft 2009 SMP includes the OWW among projects that may be established or enhanced for public shoreline access. (2009 draft SMP, Page 12; http://bit.ly/f7HmxZ ). The Parks Department should be required to provide specific citation and documentation.

An underlying implication in citing these documents is also misleading. The Parks Department believes these lengthy, technical documents establish City planning efforts justifying development.  These documents reflect only the City’s intent to allocate resources toward developing specific proposals. It does not establish that these proposals can actually be developed.  That determination can not be made until necessary data is developed and analyzed, and public hearings required under SEPA, the SMA, the GMA, or local law, have been completed. 

Nevertheless, the City is treating the OWW as a “done deal” that is not subject to question.  In fact, the Staff Report for the OWW conditional use permit prepared by the Planning Department repeatedly cited to the time and resources expended on this project as justification for permit approval. It is inappropriate for the City to treat preliminary work and expense mandated under state and federal law as a valid justification for moving forward with the project, while ignoring public controversy or valid and timely raised objections. 

A related and equally important concern is that the Parks Department posted information on a sign located at Boulevard Park, as well as its website and other publicly issued documents, such as the 2010 Waterfront District Draft Sub-Area Plan (Chapter 7, Pages 67, 69; http://bit.ly/f66KKv), that failed to inform the public of its rights. The public was not advised that the OWW was merely a proposed project subject to permit review and public input. 

A sign was placed at Boulevard Park on May 17, 2010, prior to the public hearing under SEPA and the SMA.  The sign stated that “the Boulevard Park Over-Water Walkway will connect Boulevard Park to the new Bellingham Waterfront District (former GP site). This project is included in the City Comprehensive Plan, the voter-approved Greenway Levy III, and the City’s Shoreline Master Program.”  Technical details and project completion dates were listed. (http://bit.ly/hgi9YX ).  By treating the OWW as an approved project, public input was discouraged.

Review of the comment tracker for the OWW documents reveals its  controversial nature.  (http://bit.ly/eJBKUr ). A frequent objection was based on the unnecessary expense of the OWW when an existing parallel multi-modal route, the South Bay trail, already connects Fairhaven to downtown Bellingham.  In addition, there is also a parallel bicycle lane on State Street.  (See map at http://bit.ly/gkcQg0; and Bellingham Waterfront Lands Analysis Final Report, 2007, BST Associates, http://bit.ly/gzOxqL, Page 20) .

Finally, after the OWW is developed, the City and Port intend to construct a park on the Cornwall Landfill that will contain a shoreline trail. The Parks Department ignores the potential to connect the future park at Cornwall Landfill to the South Bay trail, although this potential is mentioned in the 2010 Waterfront District Draft Sub-Area Plan, (Chapter 7, Page 69, stating that, “this park could be accessed in the future via a pedestrian bridge over the railroad tracks from the South Bay trail.)  This connector could be used in lieu of the OWW.  However, neither project is a transportation necessity, as trail connectivity already exists in this area. 

The totality of facts establish that the Parks Department is requesting that the Consent Decree be amended not because the OWW has an extensive planning history, but because it wants the OWW development to move forward quickly, unimpeded by obstacles such as public objection, or the Port’s plan to re-use dioxin contaminated sediment in partial remediation of the Cornwall Landfill.

I have reviewed an email indicating that you agreed to the City and Port’s request to include the OWW in the Consent Decree and have advised the Attorney General’s Office of the same. (http://bit.ly/h5grHY ). Please do not be misled by the Parks Department.  If the Consent Decree is amended to include the OWW, the Parks Department will attempt to use it to squelch any public objections to the Interim Clean-Up Plan. 

For the reasons above, and on behalf of the public interest, I ask that the request by the Parks Department to amend the Consent Decree be denied.

 Sincerely,

Wendy Harris