In the arcana of land use regulation, you can apparently legalize illegal grading and other damages to a forested landscape, by agreeing to put everything back the way it was and apply for a retroactive permit. The permit would have allowed you to do it legally in the first place, except it might never have been issued in the first place.
Whatcom County planning officials last week made public the nature of their sanctions against SSA Marine, the seaport building giant based in Seattle. Contractors for the company cleared and reshaped some nine acres, without a grading permit, through a forested area of Cherry Point where SSA wants to build a coal export terminal. They graded roads, removed trees, and disturbed some wetlands, all without permits.
County Planning Director Tyler Schroeder says he will issue retroactive permits for the work, on SSA’s promise to restore the landscape — including the forested wetland — to its former condition. SSA will pay for planting trees and shrubs and will relocate stumps that had been pushed into the wetlands to make way for four miles of roads. The company will also pay a fine of $2,000 and permit fees of $2,400.
SSA has until 2014 to complete the restoration. If it has any luck in acquiring its major permits for the terminal — from the federal, state and county agencies — it will complete the restoration a couple of years before it needs to tear it all out again.
Earthjustice attorney Jan Hasselman says, “”If this terminal’s approved, the trees they’re going to plant will be under a hundred foot pile of coal.”
There’s an unreal quality also about the language used to adjudicate the illegal tree cutting on the terminal site. Key to the seriousness of sanctions against unpermitted tree cutting is the term “conversion.” If SSA’s transgression were part of a planned conversion to some use other than forestry, the county would have been required to impose a six-year moratorium on the company’s development applications. The moratorium could be lifted after a public hearing, but that’s an embarrassing and politically difficult process.
Not to worry. The state Department of Natural Resources found that SSA does not intend to convert its land from forestry to any other purpose. The company that has announced its desire to build North America’s largest coal export terminal at the site does not intend to convert the terminal site from forestry to any other use, the DNR ruled. Gary Smith, the affable and helpful public relations professional who represents SSA, explains: “The purpose of this clearing was to bring in equipment to gather information (geotechnical data to see what the subsurface earth will support), not to actually make a conversion.” He added, “Where we got in trouble was that the contractor cut more trees than he should have. That took us beyond the number that would have been exempted, so that we needed a Forest Practices permit.”
County Planning Director Schroeder echoed DNR’s word treatment in his own conclusions. He warns SSA that if the restoration work isn’t done to the county’s satisfaction, “Whatcom County Planning and Development Services will forward a letter to DNR indicating that the County has ‘become aware of conversion activities to a use other than commercial timber operations.' "
This story has been edited since it first appeared to add a quote that was missed in an earlier version.