Tethys Bottling Plant: Anacortes Proposes UGA Expansion – Part 5

by Tom Glade Sunday, September 9, 2012 11:29 PM

This post is the fifth installment of a series on the City of Anacortes’s problematic application to expand its urban growth area (UGA).  While the UGA Expansion will adversely impact the environments of Padilla Bay and Turners Bay, this post addresses only the “likely significant adverse impacts” of the UGA Expansion on the March’s Point Heronry and Padilla Bay.

When Skagit County considers the City of Anacortes’s UGA Expansion application, the County’s SEPA decision-maker must realize that, for a project of this size and scope, a Determination of Significance is required.  The County must insist on an extensive Environmental Impact Statement (EIS) – a statement which addresses the significant adverse impacts that the UGA expansion will have not only on Skagit County but also on the rest of the state as well.

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Photo credit: Jon

March's Point Heron Colony

The Padilla Bay National Estuarine Research Reserve website1 provides the following information about the March’s Point Colony:

The heron colony on March's Point is believed to be the largest nesting area for Great Blue Herons in all of Western North America. Herons have nested at this site on Padilla Bay since the late 1970s. In 1984, just 42 nests were counted at this site, with a steady increase ever since. In 2006 Skagit Land Trust estimated over 700 active nests in the area!!!

Skagit Land Trust owns the land which supports part of the heronry and has developed conservation agreements with neighboring landowners and the City of Anacortes to further protect the habitat and nesting birds. The site also hosts an active bald eagle nest. Remarkably this robust nesting sanctuary sits in the midst of the City of Anacortes' Industrial Area. Due to the sensitivity of the nesting site, direct access to the heronry is not permitted.

March's Point is located near three productive estuary bays; Fidalgo, Padilla and Similk. These and the farm fields of the Samish and Skagit river deltas, provide herons with areas to hunt for fish, frogs and small mammals. The proximity of so much rich foraging habitat makes it ideal for finding enough food to satisfy hungry, young chicks.

Additionally the Skagit Land Trust website provides the following information about the March Point Heronry:

Hosting one of the largest Great Blue Heron colonies in Western North America, this island of forest sits between Padilla and Fidalgo Bays.  483 heron nests were counted in 2010 in this relatively small area, which provides easy access to feeding grounds for the herons. Vera and Bed Kinney donated this property to Skagit Land Trust in 1994 to protect the nesting herons.

With the cooperation of neighboring landowners, each year, Skagit Land Trust conducts a nest count in the heronry.  Unfortunately, Skagit Land Trust does not have access to all neighboring property, and therefore some heron nests are uncounted (the drop-off in 2004 is because of losing access to the neighboring property).  The overall trend, however, shows increasing number of heron nests in the colony, with almost 500 counted this year on SLT property and the property to which we have access -- and there are likely to be hundreds more nests on the adjacent property to which we do not have access.

 

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Note: drop-off in 2004 caused by losing access to count nests on a neighboring property.

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(The Skagit Land Trust’s March Point Heronry property highlighted in red)

The Washington State Environmental Policy Act (SEPA)

The Washington State Environmental Policy Act (SEPA) requires the County to determine whether “a proposal is likely to result in significant adverse environmental impacts.”  For the March Point heronry, the Tethys Project will likely have the following significant adverse environmental impacts:

  • Loud noises, which must be avoided especially in April and May when eggs are in the nests and a time when it is crucial not to scare adults off the nest.
  • Bald eagle nesting and activity in the vicinity of the project.
  • Diesel exhaust emissions from the 12 unit-trains per day
  • Ground vibrations that occur randomly throughout the day.
  • Significant loss of value of the adjacent Skagit Land Trust’s holding should the herons abandon the heronry.

A Parallel SEPA Universe: T Bailey and Tethys

In evaluating a zoning change, Washington State’s “State Environmental Policy Act” requires the local agency to determine whether the project is likely to have an significant impact on the environment (significant “means a reasonable likelihood of more than a moderate adverse impact on environmental quality”).  The history of the T Bailey SEPA process illuminates the pitfalls that the Tethys SEPA process may encounter.

In 2002, T Bailey was forced to move their operations to the old Concrete Nor’West site after Anacortes limited the hours of their steel fabrication operation.  In its letter to T Bailey limiting their hours of operation, Anacortes stated, “…given the loud and particularly noticeable character of the noise that is generated from your site, many of your neighbors have had their sleep and their lives disrupted in a major way.”  Without appropriate protective measures, T Bailey’s noisy operation would have had similar adverse impacts on the herons.

The failures of both the City of Anacortes and the Port of Anacortes to issue a Determination of Significance for the T Bailey project led to a year-long legal battle to protect the heronry.  The following table is a timeline of that effort:

DATE

ACTION

February 4

2002

City Letter to T Bailey limiting hours of operation because of noise

March 7

Port Meeting on T Bailey Lease Transfer

Oral requests for added protections and a Determination of Significance

were presented by representatives from:

            Evergreen Islands

            People for Puget Sound

            Skagit Audubon Society

            Skagit Land Trust

March 21

EI Letter to the Port

Requesting Determination of Significance (DS)

July 16

Port issues Public Notice of

Mitigated Determination of Nonsignificance (MDNS)

August 1

MDNS Comment Deadline

Letters asking for more protection were submitted by:

            1000 Friends of Washington

            Evergreen Islands

            People for Puget Sound

            Skagit Audubon Society

            Skagit Land Trust

August 12

EI calls City to set up meeting with environmental groups to discuss Anacortes permits for T Bailey

August 14

Skagit Land Trust calls the Building Official and asks if the Fill & Grade permit was issued yet.  The Official answers no.

(August 14)

City hand-delivers undated letter to T Bailey from the Building Inspector which the City claims is the Development Permit (disputed)

August 15

Meeting with the City Requesting that the City not issue permits based on inadequate Port MDNS. In attendance are representatives from:

            Evergreen Islands

            Friends of Skagit County

            Skagit Audubon

            Skagit Land Trust

August 26

Appeal of Fill & Grade Permit

            Evergreen Islands, Skagit Audubon, and Friends of Skagit.

            Skagit Land Trust appeals separately

September 16

EI requests stop work order until the appeals are heard.  The request went unanswered.

September 24

Meeting with City to Request Critical Areas Ordinance

            Evergreen Islands

            Friends of Skagit County

            Skagit Audubon

            1000 Friends of Washington

September 26

1st Board of Adjustment Hearing

October 10

2nd Board of Adjustment Hearing

November 14

Board of Adjustment voted 3-1 to deny the appeal

December 5

Skagit Land Trust appeals to the issue to Superior Court

February 2003

T Bailey and the Skagit Land Trust settle, and the settlement agreement included a monitoring plan.  The monitor plan includes the statement, “In the event that monitoring reveals a significant heron disturbance, including any significant cumulative affect to the herons (i.e., increasing agitation to disturbance identified through the data analysis), the information will be presented to T. Bailey and the Land Trust immediately.  T. Bailey will immediately implement appropriate contingency actions to mitigate the disturbance.”

One of the pivotal reasons why Evergreen Islands eventually appealed the City’s lack of a Critical Areas Ordinance was directly related to the March Point heronry episode.  Both the City and the Port failed to protect a local natural treasure despite an unbelievable combination of facts.  Those facts included:

  • The heronry is the largest heronry in the state of Washington, and possible the West Coast: After Concrete Nor’West closed its batch plant, the March Point heronry had grown to over 500 active nests, which made it the largest heronry in Washington State. 
  • The heronry is held in the public’s trust: Recognizing the irreplaceable value of the heronry, Bud and Vera Kinney donated to their land to the Skagit Land Trust to hold the heronry in the public’s trust in perpetuity.
  • The land for the proposed development is public land. Since the land was owned by the Port of Anacortes, it too was community land.
  • The heronry is adjacent to a national wildlife preserve: The March Point heronry is adjacent to the Padilla Bay National Estuarine Research Reserve.

In view of the heronry’s exceptional attributes, it is incredible that the Port of Anacortes failed to issue a Determination of Significance for the heronry.  After the Port issued its Determination of Nonsignificance for a natural asset with this magnitude of importance, the City of Anacortes should have 1) assumed Lead Agency status, 2) issued a Determination of Significance, and 3) required an Environmental Impact Statement   However neither the Port nor the City took advantage of the environmental protections that are afforded by state law, and both government entities resisted the environmental groups efforts to procure protections every step of the way.

After one of the environmental groups took proposal to Superior Court in an effort protect the heronry, T Bailey and the Skagit Land Trust hammered out an agreement that included meaningful protections for the March Point herons.  The time and money required to reach this settlement was more than likely “a wash” as to the cost of completing an Environmental Impact Statement or to the cost of going to court.  The cost of the division that it caused in our community is inestimable.

Skagit County must abide by our State Environmental Policy Act (SEPA), issue a Determination of Significance, and require an extensive Environmental Impact Statement (EIS).

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