The Lummi Nation scored a victory on May 9 when the Army Corps of Engineers denied the permit to construct a large terminal at Cherry Point. Located along the Strait of Georgia in Whatcom County, the Cherry Point Urban Growth Area currently houses a BP petroleum refinery and an aluminum smelter plant.

“This is a historic victory for treaty rights and the constitution,” Tim Ballew II, chairman of the Lummi Indian Business Council, said in a press release following the announcement. “It is a historic victory for the Lummi Nation and our entire region.”

Senator Kevin Ranker in a press release following the announcement: “This is an incredible victory for human health, environmental health, clean energy and the sovereign rights of the Lummi Nation, which rightly challenged the project on the basis of its threat to their air, water and land. Today we move forward, past coal and towards healthier communities and the more sustainable path of renewable energies and green jobs.”

Not everyone views the determination as a victory. Bob Watters, president of Pacific International Terminals, LLC, the company which proposed the terminal, expressed his discontent in a press release.

“This is an inconceivable decision,” said Watters. “Looking at the set of facts in the administrative summary, it’s quite obvious this is a political decision and not fact-based.”

Seattle District Commander for the Army Corps of Engineers Colonel John Buck concluded that the Lummi Nation’s usual and accustomed fishing rights, as defined in the Point Elliott Treaty of 1855, would have been negatively impacted by the construction of the Gateway Pacific Terminal beyond de minimis (too trivial to matter legally).

“I have thoroughly reviewed thousands of pages of submittals from the Lummi Nation and Pacific International Holdings,” said Buck. “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.”

Located between the BP refinery and the aluminum smelt, the $665 million project includes two materials handling and storage areas. PIT would develop 278 acres of land of a parcel approximately 1,500 acres, leaving the remainder of the property undeveloped. In addition to the land, the trestle, wharf, three ships at birth and new vessel approach lane would occupy 122 acres over the water. At full operation, the GPT would have the capacity to export and import approximately 54 million metric tons per year of dry bulk commodities a year, including coal, potash and calcined petroleum coke.

PIT projections stated that the GPT would provide a total of 5,680 new jobs to the Whatcom county community, many of them during the two-year construction process with 1,250 jobs being permanent positions directly or indirectly related to the terminal. A Vessel Traffic and Risk Assessment Study performed by the Washington State Department of Ecology revealed that vessel traffic would increase by an estimated 487 ships a year. The terminal also projected to generate $92 million in tax revenue for state and local in construction alone with an additional $11 million generated annually. Proponents of the project cited a boost to the local economy as their primary reason for support. PIT claims that a poll by Elway Research in July 2013 concluded that 55 percent of Washington state voters support the expansion of export terminals in the state, and 59 percent of Whatcom residents supported the construction and operation of the GPT.

Opponents of the GPT project fear an increase in train and marine traffic, coal dust being blown off moving trains through the state, a plethora of environmental concerns and the impact on the Lummi tribe’s sacred lands and traditional fishing grounds.

Pacific International Terminals, a partnership between SSA Marine and Cloud Peak Energy, originally submitted a permit application to the Corps of Engineers and Whatcom County to develop the GPT in July of 1992.

Permitting for the GPT includes obtaining approval from the county for the on-land portion of the project and the Corps of Engineers the water related usage. Any project permitted by a federal agency must be determined to be consistent with the state’s Coastal Zone Management Program. Under the CZMP, federal activities that affect any land use, water use or natural resource of the coastal zone must comply with: the Shoreline Management Act (including local government shoreline master programs); the State Environmental Policy Act; the Clean Water Act; the Energy Facility Site Evaluation Council and the Ocean Resource Management Act. With that in mind, Whatcom county issued a determination of significance resulting in an investigation into the environmental impact of the facility under the State Environmental Policy Act prior to reviewing the permit request.

Whatcom County modified the determination of significance, an updated scope notice was distributed in 1995 and the county began research for the Environmental Impact Statement.

In February 1997, Whatcom County Planning and Development Services released a final EIS for the proposed location of the GPT. The planning services’ EIS resulted in a favorable outlook for the GPT, and with the conclusion of the EIS, and encouragement from the Whatcom County Hearing Examiner, the county council approved the permit to construct the terminal in May 1997.

During the draft process of Whatcom county’s EIS, the Washington State Department of Natural Resources was consulted and had informed the county that it hadn’t addressed key environmental impact concerns, such as water contamination and the effect of the development on the spawning herring population. In documents presented to Whatcom County Council by the Whatcom County Hearing Examiner, it was noted that Cherry Point is located in the most important herring spawning area in the state, which had been the primary reason any prior permits for the area, though zoned Heavy Impact Industrial, had been rejected.

The Lummi council had also voiced their own concerns about the coal terminal disrupting historic tribal sites, ancestral fishing practices and water quality. The Washington State Department of Ecology appealed the county’s decision in June of 1997, but the appeal was dismissed in August 1999 and a settlement was reached between PIT and the state. Meanwhile, PIT continued working through the various permitting requirements needed before construction could begin.

PIT proposed some changes and updates to the GPT proposal in 2011, which included alterations to the shoreline substantial development permit that had been issued in 1999. Whatcom County declined the revision because it didn’t meet revision criteria and requested a new permit. The request instigated yet another review utilizing State Environmental Policy Act requirements before the permit would be approved. Thus began the second environmental impact study, this one a collaborative effort by Whatcom County and Washington Department of Ecology, with the U.S. Army Corps of Engineers conducting the review based on the National Environmental Policy Act.

Scoping for the second EIS began in September 2012. The 120-day process asked members of the public, the tribes and other agencies what environmental concerns should be reviewed. The scoping period concluded in January 2013 with approximately 125,000 comments collected at public meetings, online and in writing.

On April 1, PIT requested a 45-day suspension on the EIS study, citing that the “uncertainty and related costs are of significant concern.”

The May 9 decision will likely block the project from moving forward, but according to the PIT press release, it is still considering its alternatives.

“We are very disappointed that the GPT project has become a political target rather than being addressed on the facts,” said Watters. “The terminal promises to deliver substantial benefits through economic development, the creation of family-wage jobs, and the generation of significant taxes. The designs call for the terminal to operate at the highest levels of environmental stewardship and meet all federal and state regulations.”