The proponent of a rejected coal shipping terminal in Lummi Nation’s historical territory is “looking at all its options” and “will decide shortly how we plan to proceed,” the company’s vice president wrote in a letter to ICTMN.
Bob Watters of SSA Marine said the Army Corps of Engineers’ denial of his company’s permit based on the project’s potential impacts to Lummi’s historical fishing areas is “a political decision rather than a regulatory decision.”
Col. John Buck, commander of the Army Corps’ Seattle District, ruled on May 9 that the potential impacts of the coal shipping terminal to Lummi’s usual and accustomed fishing areas could not be mitigated.
“I have thoroughly reviewed thousands of pages of submittals” from the Lummi Nation and SSA Marine, Buck wrote. “I have also reviewed my staff’s determination that the Gateway Pacific Terminal would have a greater than de minimis impact on the Lummi Nation’s U&A rights, and I have determined the project is not permittable as currently proposed.”
The Lummi Nation had asked the Army Corps in 2015 to deny the permit based on the terminal’s potential impacts to treaty-reserved fishing rights. SSA Marine wanted the Army Corps’ permit decision to be made based on a full environmental impact study.
“The Corps has never made a permit determination such as this prior to having a completed [Environmental Impact Study] where all the facts and science are made available to the public prior to the decision,” Watters wrote.
Watters quoted from a letter from Darrin Old Coyote, chairman of the Crow Nation, whose coal would have been shipped from the terminal: “I am deeply disappointed that the Army Corps of Engineers disregarded the treaty rights and the trust resources of the Crow Tribe and refused to engage in meaningful consultation with us on the Gateway Pacific Terminal Project. I am equally disappointed that the United States took the unprecedented step of preemptively blocking the coal terminal without preparing an EIS, which is required by law, is the standard process for considering usual and accustomed treaty fishing rights and which would have provided the Crow Tribe and the public with an opportunity to comment on the project.”
Two members of Congress also weighed in on the permit denial.
“The U.S. Army Corps chose one tribe’s treaty rights over another, harming good-paying union and tribal jobs,” Sen. Steve Daines, R-Montana, said on his website. “The Gateway Pacific Terminal would provide access to international markets for Montana coal and agriculture products – including Crow coal – creating much needed economic prosperity.”
And Rep. Rob Bishop, R-Utah, chairman of the House Committee on Natural Resources, said, “The Obama Administration has made a habit of randomly enforcing or denying NEPA whenever they please, using it as a tool to push through a leftist political agenda. Upholding treaty rights is just as imperative as providing due process, but for the Administration, NEPA has become a process of convenience. Americans deserve a fair and transparent legal system, not a government that uses everything in their arsenal to suffocate the American coal industry.”
Tough hurdles to overcome
The Gateway Pacific Terminal, proposed by SSA Marine subsidiary Pacific International Terminals, was expected to handle the export of up to 54 million dry metric tons per year of bulk commodities, mostly coal. BNSF Railway Inc. had proposed adding rail facilities adjacent to the terminal site.
SSA Marine owns 1,100 of the 1,500-acre site; the rest is controlled by an option to purchase, Watters said.
The project was opposed by First Nations in the Pacific Northwest and Canada, particularly those who share the Salish Sea. The risk of coal and oil spills was too great, they said, and they contended that coal dust from the railway and terminal would affect the health of marine waters and nearby communities. They also contended that increased shipping would result in substantially increased ballast water discharges, which would introduce invasive species to the local marine environment.
SSA Marine claimed its terminal was designed to minimize environmental impacts. A site map shows extensive buffering, enclosed rotary dumpers, onsite stormwater treatment, and covered or enclosed conveyors.
But the project had some tough hurdles to overcome. First, there’s the de minimis standard. In risk assessment, de minimis is described as a level of risk that is too small to be concerned with. According to the Army Corps, the risks associated with the terminal project rose above that threshold.
Second, the Lummi Nation and the United States are signatories to the Treaty of Point Elliott of 1855, which made a wide swath of Western Washington available for non-Native settlement. In the treaty, the Lummi reserved the right to fish and harvest in their usual and accustomed areas. According to Article VI of the U.S. Constitution, treaties are the supreme law of the land. Lummi contended that any negative impact to its treaty reserved fishing rights would be a violation of the treaty.
Third, Cherry Point – which the Lummi know as Xwe'chieXen – is an environmentally sensitive area. According to the Army Corps, the waters off Cherry Point are considered critical habitat for king salmon, bull trout, rockfish, and three pods of killer whales. Other endangered or threatened species found at Cherry Point are Puget Sound steelhead, Stellar sea lions, humpback whales, leatherback sea turtles, marbled murrelets and spotted frogs.
Watters said the Vessel Traffic and Risk Assessment Study, completed in 2014 by the marine engineering consulting firm The Glosten Associates, concluded that vessel traffic associated with the terminal would have a less than 1 percent impact on treaty fishing. But the report stated that increased shipping activity would increase disruption to Lummi fishing by 76 percent; additional vessel traffic would increase wave action at the shoreline by 24 percent; and bulk ships would nearly triple the volume of ballast water discharged in the area (vessels would be required to be refitted with ballast water treatment systems during their first drydock period).
“At full capacity, the annual volume of 487 deep draft vessels, the required assist tugs, and bunkering vessels will increase the vessel traffic within the study area,” the report states.
According to Col. Buck’s decision, the only way SSA Marine could reinitiate processing of its application is if, “in the future, the Lummi Nation withdraws its objections to the proposal.” All indications from Lummi are that that’s not going to happen.
Lummi Nation Chairman Tim Ballew said in a statement released after the Army Corps’ decision was announced: “This decision is a win for the treaty and protects our sacred site. Our ancient ones at Xwe'chieXen, Cherry Point, will rest protected. Because of this decision, the water we rely on to feed our families, for our ceremonies and for commercial purposes, remains protected. The impact of a coal terminal on our treaty fishing rights would be severe, irreparable and impossible to mitigate.”