PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT
MEMORANDUM
April 14, 2025
TO:
Angela Fontaine, Responsible Partner, Calderwood & Harkness LLP Priya Shankar-Wells, General Counsel, Cascadia State Infrastructure Authority Connor Oakes, Director of Capital Programs, Cascadia State Infrastructure Authority Teresa Villanueva, Project Manager, Nooksack Pump Station Program, Cascadia State Infrastructure Authority
FROM:
Grace Nakamura, Lead Associate, Calderwood & Harkness LLP Rafael Dominguez, Working Associate, Calderwood & Harkness LLP
RE:
Permitting Strategy — Regional Flood Resilience and Stormwater Management Program, Lower Nooksack Pump Station Network CSIA Capital Project No. CP-2025-NPS-004 C&H Matter No. 1030-00003
PRIVILEGED & CONFIDENTIAL — ATTORNEY WORK PRODUCT This memorandum is a privileged and confidential attorney-client communication and attorney work product prepared in connection with the rendering of legal advice. It is not intended for disclosure to third parties and should not be disclosed without the prior written consent of Calderwood & Harkness LLP and the Cascadia State Infrastructure Authority.
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I. EXECUTIVE SUMMARY
This memorandum provides a comprehensive analysis of all federal, state, and local governmental permits and approvals required prior to the commencement of construction of the Lower Nooksack Pump Station Network (the "Project"). The memorandum has been prepared at the request of the Cascadia State Infrastructure Authority ("CSIA") to guide the Authority's permitting strategy and to ensure that all necessary governmental authorizations are obtained on a timeline consistent with the Project's planned Construction Notice to Proceed ("NTP") date of December 15, 2025.
The Project involves the construction of four pump stations (designated PS-1 through PS-4) along the Lower Nooksack River corridor in Whatcom County, Washington, together with approximately 6.2 miles of 24-inch and 36-inch high-density polyethylene ("HDPE") force-main pipeline connecting all four stations to the existing Nooksack Regional Wastewater Treatment Plant outfall. The Project is a core component of CSIA's Regional Flood Resilience and Stormwater Management Program and is designed to materially improve the Lower Nooksack corridor's capacity to manage stormwater flows, reduce flood risk to surrounding agricultural and residential areas, and enhance the long-term resilience of regional infrastructure.
The total Project value is approximately $48,000,000, funded through two sources: (1) a Washington State Capital Appropriation of $31,200,000 (approximately 65% of total Project cost) authorized by Senate Bill 5140 during the 2025 Legislative Session, and (2) CSIA Series 2025A Revenue Bonds in the principal amount of $16,800,000 (approximately 35% of total Project cost), underwritten by Harborstone Capital Markets LLC. The bond proceeds are expected to be available following bond closing, currently anticipated in the second quarter of 2025.
CSIA is a Washington State governmental instrumentality created and authorized by Chapter 43.99N of the Revised Code of Washington, headquartered at 1100 Jefferson Avenue SE, Suite 400, Olympia, Washington 98501, with Martin R. Calloway serving as Executive Director. CSIA possesses broad statutory authority to develop, construct, operate, and maintain public infrastructure projects throughout the State of Washington, including the authority to acquire real property interests through negotiation or, where necessary, condemnation.
The target date for obtaining all required permits and approvals is November 30, 2025, providing a fifteen-day window before the Construction NTP on December 15, 2025. The Project's target for substantial completion is June 30, 2027.
Through the analysis set forth below, this memorandum identifies nine distinct permit and approval tracks across three levels of government — federal, state, and local — that must be coordinated and completed to authorize construction. These nine tracks are:
1. State Environmental Policy Act (SEPA) Mitigated Determination of Non-Significance (MDNS)
2. Shoreline Substantial Development Permit
3. Critical Areas Review and Habitat Management Plan Approval
4. Grading Permits
5. Section 401 Water Quality Certification
6. NPDES Construction Stormwater General Permit
7. Section 404 Clean Water Act Permit and Section 10 Rivers and Harbors Act Permit
8. Hydraulic Project Approval (HPA)
9. Section 106 Cultural Resources Concurrence
For each permit track, this memorandum analyzes the applicable statutory and regulatory basis, the issuing authority and key agency contacts, the scope and content of the application, the expected outcome, the estimated timeline, and the sequencing dependencies with other permits. The memorandum further identifies key risk factors — including risks associated with wetland mitigation, an identified pre-contact archaeological site, floodplain compliance, Endangered Species Act considerations, landowner negotiations, and potential third-party appeals — and recommends specific mitigation strategies for each.
Environmental and geotechnical support for the permitting program is being provided by Pinnacle Geotechnical & Environmental Consulting Inc. ("Pinnacle"), with Dr. Raymond Ostrowski, PE, serving as Principal-in-Charge. Surveying services, including ALTA/NSPS surveys and easement plats, are being provided by Ironclad Surveying & Land Services LLC, with Karen Whitfield, PLS, as managing member.
Based on our analysis, the November 30, 2025 target for obtaining all permits is achievable but carries limited float, particularly with respect to the Section 404/10 Nationwide Permit verification from the U.S. Army Corps of Engineers ("USACE"), which is the final permit on the critical path. Risks associated with the archaeological site 45WH-1287 near PS-3 and the potential for Endangered Species Act formal consultation represent the most significant sources of schedule uncertainty. We recommend that CSIA adopt the coordinated filing strategy and risk mitigation measures set forth in Section VIII of this memorandum, and that all parties maintain disciplined adherence to the application target dates identified herein.
II. PROJECT DESCRIPTION AND SITE OVERVIEW
This section provides a detailed description of the Project sites, the pipeline corridor, the status of landowner negotiations, and a summary of environmental and site conditions that bear on permitting requirements.
A. Pump Station Sites
The Project consists of four pump stations, each situated along the Lower Nooksack River corridor in Whatcom County, Washington. The stations are designated PS-1 through PS-4 and are described individually below. Each pump station will house submersible or dry-pit submersible pumps, associated electrical controls and telemetry equipment, emergency generator facilities, and related civil infrastructure. The stations will be connected by the HDPE force-main pipeline described in Section II.B.
PS-1 — River Road at Slater Road Intersection, Whatcom County. PS-1 is located at the intersection of River Road and Slater Road in unincorporated Whatcom County. The site is identified by Whatcom County Assessor Parcel Number 380219-401200. The parcel is privately owned by Veldkamp Family Holdings LLC, a Washington limited liability company. CSIA will acquire a permanent easement of approximately 2.3 acres for the pump station footprint and associated facilities. A temporary construction easement will also be required on a portion of the Veldkamp parcels; the temporary construction easement area for PS-1 and PS-2 combined totals approximately 3.1 acres. PS-1 is located within the FEMA-designated Zone AE (100-year floodplain) and is in proximity to delineated Category III palustrine emergent wetlands, as discussed further in Section II.D below.
PS-2 — River Road, North of Ten Mile Road, Whatcom County. PS-2 is located on River Road, approximately 0.6 miles north of the intersection with Ten Mile Road, in unincorporated Whatcom County. The site is identified by Whatcom County Assessor Parcel Number 380219-401201. Like PS-1, this parcel is privately owned by Veldkamp Family Holdings LLC. CSIA will acquire a permanent easement of approximately 1.8 acres for the pump station footprint and associated facilities. A temporary construction easement on the Veldkamp parcels is included within the combined 3.1-acre temporary easement area for PS-1 and PS-2. PS-2 is also located within FEMA Zone AE and is subject to the same floodplain design considerations as PS-1.
PS-3 — Hannegan Road at Nooksack River Crossing, Whatcom County. PS-3 is located on Hannegan Road at the point where the road approaches the Nooksack River crossing, in unincorporated Whatcom County. The site is identified by Whatcom County Assessor Parcel Number 380220-108400. The parcel is privately owned by Dunlap Creek Ranch Inc., a Washington corporation. CSIA will acquire a permanent easement of approximately 2.1 acres for the pump station footprint and associated facilities, together with a temporary construction easement of approximately 1.6 acres on adjacent Dunlap Creek Ranch parcels. PS-3 is located in proximity to a pre-contact archaeological site (designated 45WH-1287) identified during Phase I cultural resources survey, and a portion of the PS-3 footprint overlaps with delineated Category III palustrine emergent wetlands.
PS-4 — E. Smith Road, Existing CSIA Right-of-Way, Whatcom County. PS-4 is located on E. Smith Road within existing CSIA right-of-way, in unincorporated Whatcom County. The site is identified by Whatcom County Assessor Parcel Number 380221-005700. The parcel is owned by CSIA and encompasses approximately 1.5 acres. No private easement acquisition is required for PS-4, which simplifies the property-rights component of permitting for this site. PS-4 is not located within a designated FEMA flood zone and does not contain identified wetlands or known cultural resource sites.
B. Pipeline Corridor
The Project includes the construction of approximately 6.2 miles of HDPE force-main pipeline connecting the four pump stations to the existing Nooksack Regional Wastewater Treatment Plant outfall. The pipeline will consist of both 24-inch and 36-inch diameter segments, with the larger-diameter segments connecting PS-1 and PS-2 (the primary upstream intake stations) to the downstream infrastructure. The pipeline route has been designed to follow existing road rights-of-way to the extent practicable, but significant portions of the corridor traverse privately held agricultural lands.
Specifically, the pipeline corridor crosses portions of Veldkamp Family Holdings LLC property (Whatcom County Assessor Parcel Number 380219-401203) and Dunlap Creek Ranch Inc. property (Whatcom County Assessor Parcel Number 380220-108401). CSIA is negotiating separate pipeline corridor easement agreements with both landowners. The pipeline route also includes crossings of the Nooksack River and its tributaries, which will be accomplished using horizontal directional drilling ("HDD") technology to avoid in-water work and minimize impacts to fish habitat and stream substrates. The HDD crossings are a key design feature that reduces the Project's environmental footprint and simplifies certain aspects of the permitting program, particularly with respect to ESA-listed salmonid species and Hydraulic Project Approval requirements.
C. Landowner Status
Two private landowners control property required for the Project. The status of negotiations with each is summarized below.
Veldkamp Family Holdings LLC. Veldkamp Family Holdings LLC owns approximately 187 acres of agricultural land in the Lower Nooksack corridor. The managing member of the company is Hendrik "Hank" Veldkamp. Veldkamp Family Holdings LLC is represented by the law firm of Bridger Hollis & Pratt LLP, with Nadia Sorensen (partner) and Tyler Fong (associate) serving as counsel. Good-faith offer letters for the permanent and temporary easements on the Veldkamp parcels (covering PS-1 and PS-2 sites, temporary construction areas, and the pipeline corridor) are targeted for delivery on April 21, 2025. The total compensation offered to Veldkamp Family Holdings LLC is $677,000, consisting of $615,000 for permanent easements and $62,000 for temporary construction easements, based on the independent appraisal prepared by Northwind Valuation Group LLC.
Dunlap Creek Ranch Inc. Dunlap Creek Ranch Inc. owns approximately 94 acres of dairy farmland in the Lower Nooksack corridor. The president of the corporation is Garrett Dunlap. Dunlap Creek Ranch Inc. is currently self-represented, although Mr. Dunlap has informally consulted with Bridger Hollis & Pratt LLP. Good-faith offer letters for the permanent and temporary easements on the Dunlap Creek parcels (covering the PS-3 site, temporary construction areas, and a portion of the pipeline corridor) are also targeted for delivery on April 21, 2025. The total compensation offered to Dunlap Creek Ranch Inc. is $347,000 for the pump station site and construction easements, with the pipeline corridor easement compensation amount still to be determined pending final survey and route alignment.
The combined easement compensation budget for both landowners is $1,024,000, consisting of $930,000 for permanent easements and $94,000 for temporary construction easements. These figures are based on the appraisal prepared by Northwind Valuation Group LLC (Jocelyn Trueblood, MAI), dated March 14, 2025. The pipeline corridor easement compensation for the Dunlap Creek parcels will be appraised separately once the final alignment is confirmed.
The target for execution of all easement agreements is August 15, 2025. Title commitments on all affected parcels have been ordered from Cascade Basin Title Company (Diane Ashworth, Title Officer) to ensure clear title and identify any encumbrances, liens, or other matters that could affect the easement acquisition or CSIA's ability to demonstrate site control in permit applications.
Should negotiations fail, CSIA holds condemnation authority under Chapter 43.99N RCW, supplemented by the general eminent domain procedures set forth in Chapter 8.04 RCW. The implications of a potential condemnation proceeding for the permitting timeline are discussed in Section V.E of this memorandum.
D. Environmental and Site Conditions Summary
The following environmental and site conditions are relevant to the permitting program and have been identified through surveys and investigations conducted by Pinnacle Geotechnical & Environmental Consulting Inc. and Ironclad Surveying & Land Services LLC.
Wetlands. Pinnacle conducted a wetland delineation across all four pump station sites and the pipeline corridor in accordance with the U.S. Army Corps of Engineers Wetland Delineation Manual (1987 Manual) and the Regional Supplement to the Corps of Engineers Wetland Delineation Manual: Western Mountains, Valleys, and Coast Region (Version 2.0). The delineation identified approximately 1.4 acres of Category III palustrine emergent wetlands within the PS-1 and PS-3 footprints. Based on the current pump station design and site layout, permanent wetland fill of approximately 0.38 acres is anticipated. The wetland boundaries, classification, and fill estimates are set forth in detail in the Pinnacle wetland delineation report, which is referenced in Appendix D to this memorandum.
Floodplain. PS-1 and PS-2 are located within the FEMA-designated Zone AE (100-year floodplain) as shown on the effective Flood Insurance Rate Map (FIRM) for Whatcom County. The Base Flood Elevation ("BFE") at the PS-1 and PS-2 sites is 62.5 feet NAVD88. The pump station design incorporates 2.5 feet of freeboard above the BFE, with finished floor elevations set at 65.0 feet NAVD88. This design approach is intended to comply with Whatcom County floodplain development standards and to provide an additional margin of safety against flood inundation. The floodplain implications for the permitting program are discussed further in Section V.C.
Cultural Resources. Pinnacle completed a Phase I Cultural Resources Survey on February 10, 2025, covering all four pump station sites, the pipeline corridor, and associated staging areas. The survey was conducted in accordance with Washington State Department of Archaeology and Historic Preservation ("DAHP") guidelines and included pedestrian survey, shovel probing, and background literature and records review. The survey identified one pre-contact archaeological site, designated 45WH-1287, located near the PS-3 site on Dunlap Creek Ranch Inc. property (Parcel No. 380220-108400). The site consists of a pre-contact lithic scatter with possible midden deposits. The National Register of Historic Places eligibility determination for site 45WH-1287 is pending, and the implications for the Section 106 review process are discussed in detail in Section III.I of this memorandum.
Phase I Environmental Site Assessment. Pinnacle completed Phase I Environmental Site Assessments ("ESAs") in accordance with ASTM E1527-21 for all four pump station parcels and the pipeline corridor on January 22, 2025. The Phase I ESAs did not identify any recognized environmental conditions ("RECs") on any of the assessed parcels. No further Phase II subsurface investigation is recommended at this time based on the Phase I ESA findings.
III. PERMIT-BY-PERMIT ANALYSIS
This section provides a detailed analysis of each of the nine permit and approval tracks required for the Project. For each track, we discuss the statutory and regulatory basis, the issuing authority, the scope and content of the application, the expected outcome, the estimated timeline, and the sequencing dependencies with other permits.
A. State Environmental Policy Act (SEPA) — Mitigated Determination of Non-Significance (MDNS)
1. Overview. The State Environmental Policy Act ("SEPA"), codified at Chapter 43.21C RCW and implemented through WAC 197-11, requires that all state and local governmental agencies in Washington consider the environmental consequences of proposed actions before issuing permits, approvals, or other decisions. SEPA applies to any "action" by a governmental agency, including the issuance of permits for private or public projects. For the Project, SEPA review is triggered by the need for multiple local and state permits, including the Shoreline Substantial Development Permit, Critical Areas Review approval, and Grading Permits.
Under the SEPA rules, a "lead agency" is designated to conduct the threshold determination and coordinate SEPA review. Because the Project involves multiple permits from Whatcom County, and because Whatcom County is the agency with primary jurisdiction over the local land-use approvals, Whatcom County will serve as the lead agency for SEPA purposes. The County's Department of Planning & Development Services will administer the SEPA process, with Senior Planner Lorraine Cho serving as the primary contact. The County's offices are located at 311 Grand Avenue, Suite 105, Bellingham, Washington 98225.
CSIA, as a state agency, will submit the SEPA Environmental Checklist (Form A) to Whatcom County for threshold determination. The anticipated SEPA Project Number is SEP-2025-00487, although this number will be assigned by the County upon receipt of the application.
2. Scope and Content. The SEPA Environmental Checklist is the foundational environmental disclosure document for the Project. Its preparation requires coordination between Calderwood & Harkness LLP ("C&H"), which is preparing the legal, land-use, and project-description sections, and Pinnacle, which is preparing the environmental and technical sections. Specifically, Rafael Dominguez is drafting the legal and land-use sections and Grace Nakamura is providing substantive review, while Pinnacle (Dr. Raymond Ostrowski, PE) is responsible for the environmental and technical sections, including wetland delineation data, habitat assessment findings, stormwater analysis, and cultural resources information.
The key topics to be addressed in the SEPA Environmental Checklist include the following:
• Project Description. A comprehensive description of the four pump stations, the 6.2 miles of force-main pipeline, the connection to the existing Nooksack Regional Wastewater Treatment Plant outfall, and the total Project value of $48,000,000.
• Land Ownership and Easement Status. Identification of all parcels affected by the Project, the ownership status of each, and the current status of easement negotiations with Veldkamp Family Holdings LLC and Dunlap Creek Ranch Inc.
• Zoning and Comprehensive Plan Consistency. Analysis of the Project's consistency with applicable Whatcom County zoning designations and with the Whatcom County Comprehensive Plan, including the Capital Facilities element and any applicable special-purpose plans or policies for the Nooksack River corridor.
• Critical Areas. Disclosure of identified critical areas within and adjacent to the Project footprint, including the 1.4 acres of Category III palustrine emergent wetlands, the FEMA Zone AE floodplain at PS-1 and PS-2, and the fish and wildlife habitat conservation areas associated with the Lower Nooksack River.
• Floodplain. Description of the Project's location within the 100-year floodplain, the design approach (2.5 feet of freeboard above the BFE of 62.5 feet NAVD88), and any proposed mitigation measures such as compensatory flood storage.
• Cultural Resources. Summary of the Phase I Cultural Resources Survey findings, including the identification of pre-contact archaeological site 45WH-1287 near PS-3, and the proposed mitigation measures (monitoring protocol, inadvertent discovery plan, tribal consultation).
• Proposed Mitigation Measures. A detailed description of all proposed mitigation measures for identified environmental impacts, including wetland mitigation through the Whatcom County In-Lieu Fee Program, archaeological monitoring near site 45WH-1287, erosion and sediment control measures, stormwater management, and design features to avoid impacts to ESA-listed species (including HDD for river crossings).
3. Expected Outcome. Based on our analysis of the Project scope, design, and available mitigation measures, we anticipate that Whatcom County will issue a Mitigated Determination of Non-Significance ("MDNS") rather than requiring preparation of a full Environmental Impact Statement ("EIS"). The MDNS is the appropriate threshold determination for projects that may have a probable significant adverse environmental impact, but where the impacts can be reduced to a level of non-significance through the imposition of mitigation conditions.
We do not believe that a Determination of Non-Significance ("DNS") without mitigation conditions is likely, given the presence of wetland fill, floodplain development, and the identified archaeological site. Conversely, we do not believe that the Project rises to the level of requiring a full EIS, given the relatively modest scale of environmental disturbance, the availability of well-established mitigation frameworks (particularly the In-Lieu Fee Program for wetlands and the Section 106 process for cultural resources), and the design measures that avoid in-water work and provide floodplain-compliant elevations.
The MDNS conditions are likely to include, at a minimum:
• Wetland mitigation through the purchase of credits from the Whatcom County In-Lieu Fee Program at the required mitigation ratio;
• An archaeological monitoring protocol for all ground-disturbing activities within 200 feet of site 45WH-1287;
• Compliance with floodplain development standards, including the elevated design for PS-1 and PS-2;
• Implementation of a comprehensive stormwater management plan; and
• Adherence to any conditions imposed through the Section 106 process and ESA consultation.
4. Timeline. The target date for submission of the SEPA Environmental Checklist to Whatcom County is May 15, 2025. In order to meet this target, the technical sections prepared by Pinnacle must be finalized and delivered to C&H by May 1, 2025, allowing two weeks for legal review, integration, and finalization of the complete checklist.
Upon receipt of a complete application, Whatcom County will publish a notice of application and open a public comment period of at least 15 days, as required by WAC 197-11-340. During this period, members of the public, interested agencies, and tribal governments may submit written comments on the proposed action and the SEPA checklist. Following the close of the comment period, the County will review all comments and issue a threshold determination.
We estimate that the MDNS will be issued on or about July 1, 2025, approximately six to seven weeks after submission. This estimate assumes a 15-day comment period commencing approximately two weeks after submission (to allow for County completeness review and publication of the notice of application), followed by approximately two to three weeks for County staff review and preparation of the threshold determination. If the County requires additional information or if a substantial number of comments are received, the timeline could be extended by two to four weeks.
5. Sequencing Dependencies. The SEPA MDNS is the foundational "gate" permit for the Project's permitting program. Its issuance — or, at minimum, the submission of the checklist and initiation of the comment period — is a prerequisite for virtually all other local permits:
• The Shoreline Substantial Development Permit cannot be issued without a SEPA threshold determination.
• The Critical Areas Review approval is processed concurrently with other local permits but requires the SEPA checklist to have been submitted and reviewed.
• Grading Permits require the SEPA MDNS to have been issued.
• SEPA review is also referenced in federal permit applications (Sections 404/10) as evidence that state environmental review has been completed, and USACE may condition its NWP verification on the issuance of the MDNS.
Given these dependencies, timely submission and processing of the SEPA checklist is essential to maintaining the overall permitting schedule. Any delay in SEPA submission or review directly impacts the downstream timeline for all local permits and, indirectly, the federal permit timeline.
B. Shoreline Substantial Development Permit
1. Overview. The Shoreline Management Act ("SMA"), codified at Chapter 90.58 RCW, and the Whatcom County Shoreline Master Program ("SMP"), set forth in Title 23 of the Whatcom County Code ("WCC"), regulate development within designated shoreline jurisdictions. The Lower Nooksack River is classified as a Shoreline of the State, and the shoreline jurisdiction extends 200 feet landward from the ordinary high water mark ("OHWM").
A Shoreline Substantial Development Permit ("SSDP") is required for the construction of PS-1, PS-2, and PS-3, as all three pump station sites are located within 200 feet of the OHWM of the Lower Nooksack River. PS-4 is located outside the shoreline jurisdiction and does not require an SSDP.
The issuing authority for the SSDP is the Whatcom County Department of Planning & Development Services. Lorraine Cho, Senior Planner, will serve as the County's primary contact for this permit, consistent with her role as the lead SEPA planner.
2. Scope. The SSDP application must include a comprehensive set of project plans, environmental documentation (including the SEPA Environmental Checklist and the SEPA threshold determination, once issued), shoreline use analysis, and a detailed demonstration of consistency with the policies and regulations of the Whatcom County SMP. The SMP contains specific policies and development standards applicable to different shoreline use categories, environment designations, and types of development.
We have analyzed whether the Project may qualify for a public infrastructure exemption under the SMA and the Whatcom County SMP. While pump stations constructed as part of a regional flood resilience and stormwater management program may qualify as "essential public facilities" under certain provisions of the Growth Management Act and the SMP, the SMA's exemption from the Substantial Development Permit requirement is narrowly construed and is limited to developments with a fair market value below the statutory exemption threshold, currently set at $7,047 (or $11,781 for certain dock improvements), pursuant to RCW 90.58.030(3)(e) and WAC 173-27-040. Because the Project's fair market value of $48,000,000 vastly exceeds the exemption threshold, the SSDP is required regardless of the Project's status as essential public infrastructure.
We have also evaluated whether a Shoreline Conditional Use Permit or Shoreline Variance might be required. Based on our preliminary analysis of the Project design and the applicable SMP bulk and dimensional standards, we do not anticipate that either a conditional use permit or a variance will be necessary, provided that the final design complies with all applicable setback, height, and lot-coverage requirements of the SMP. However, this conclusion should be confirmed at the pre-application conference with Whatcom County staff.
3. Timeline. The target date for filing the SSDP application is June 1, 2025. This date is set approximately two weeks after the target submission of the SEPA Environmental Checklist (May 15, 2025), allowing the SEPA review process to be initiated before the SSDP application is filed. While the MDNS need not be issued before the SSDP application is filed, the checklist must have been submitted and the comment period should be underway.
The Whatcom County review period for an SSDP is approximately 90 to 120 days, which includes a 30-day public comment period, technical review by County staff and referral agencies, and preparation of the staff report and decision. We estimate that the SSDP will be issued on or about September 15, 2025.
It is important to note that, following issuance by the County, the SSDP is subject to a 30-day review period by the Washington Department of Ecology pursuant to RCW 90.58.140. During this period, Ecology reviews the permit for consistency with the SMA and the SMP and may approve, condition, or deny the permit. The Ecology review period is accounted for within the overall 90-to-120-day estimate set forth above, as the County typically transmits the permit to Ecology concurrently with or shortly after the close of the public comment period.
4. Sequencing Dependencies. The SSDP has the following sequencing dependencies:
• SEPA Threshold Determination. The SEPA MDNS must be issued, or at a minimum, the SEPA Environmental Checklist must have been submitted and the public comment period initiated, before the County will complete processing of the SSDP application. In practice, the County typically will not issue the SSDP before the SEPA threshold determination is final.
• Grading Permits. The SSDP must be obtained before grading permits can be issued for sites within the shoreline jurisdiction (PS-1, PS-2, and PS-3).
• Department of Ecology Review. Under RCW 90.58.140, the Washington Department of Ecology has a 30-day review authority over all SSDPs issued by local governments. This review is incorporated into the timeline above, but it represents an additional layer of agency oversight that could introduce delay if Ecology raises concerns or requires modifications to the permit conditions.
C. Critical Areas Review and Habitat Management Plan Approval
1. Overview. The Growth Management Act ("GMA"), codified at Chapter 36.70A RCW, requires all Washington counties and cities to adopt regulations for the protection of critical areas, including wetlands, fish and wildlife habitat conservation areas, frequently flooded areas, geologically hazardous areas, and critical aquifer recharge areas. Whatcom County has adopted a Critical Areas Ordinance set forth in WCC Chapter 16.16. The Critical Areas Ordinance regulates development activities within and adjacent to designated critical areas and establishes buffer requirements, development standards, and mitigation requirements.
The Project triggers review under the Critical Areas Ordinance because of the presence of wetlands, fish and wildlife habitat conservation areas, and frequently flooded areas within and adjacent to the pump station sites and the pipeline corridor. The issuing authority is the Whatcom County Department of Planning & Development Services, with Lorraine Cho serving as the primary contact.
2. Key Critical Areas. The following critical areas have been identified within or adjacent to the Project footprint and are subject to review under the Whatcom County Critical Areas Ordinance:
Wetlands. As described in Section II.D, Pinnacle delineated approximately 1.4 acres of Category III palustrine emergent wetlands within the PS-1 and PS-3 footprints. Permanent fill of approximately 0.38 acres is anticipated based on the current pump station design and site layout. Under the Whatcom County Critical Areas Ordinance, Category III wetlands are subject to standard buffer widths of 50 to 80 feet, depending on the intensity of the proposed land use and the habitat functions of the wetland.
Wetland Mitigation. The Project's permanent fill of 0.38 acres of Category III palustrine emergent wetlands requires compensatory mitigation at a ratio of 1.5:1 under Whatcom County standards. The required mitigation is therefore 0.57 acres (0.38 acres × 1.5). CSIA proposes to satisfy this mitigation obligation through the purchase of mitigation credits from the Whatcom County In-Lieu Fee Program at a cost of $87,500 per acre, for a total mitigation cost of $49,875. The In-Lieu Fee Program is an approved mitigation mechanism under federal and state regulations and has been accepted by the USACE and the Washington Department of Ecology as a means of satisfying compensatory wetland mitigation obligations.
Frequently Flooded Areas. PS-1 and PS-2 are located within the FEMA-designated Zone AE (100-year floodplain), as shown on the effective Flood Insurance Rate Map for Whatcom County. The BFE at these locations is 62.5 feet NAVD88. The Project design addresses this constraint by setting the finished floor elevations of PS-1 and PS-2 at 65.0 feet NAVD88, providing 2.5 feet of freeboard above the BFE. Compliance with Whatcom County floodplain development standards is also required as a component of the Critical Areas Review, and the floodplain development permit component is integrated into the Critical Areas application.
Fish and Wildlife Habitat Conservation Areas. The Lower Nooksack River is mapped as habitat for ESA-listed species, including Chinook salmon (Oncorhynchus tshawytscha), steelhead (Oncorhynchus mykiss), and bull trout (Salvelinus confluentus). The river and its riparian corridor constitute a fish and wildlife habitat conservation area under the Whatcom County Critical Areas Ordinance. The Project has been designed to avoid in-water work through the use of horizontal directional drilling (HDD) for all pipeline crossings of the Nooksack River and its tributaries. This design approach significantly reduces the Project's potential impact on fish habitat and is expected to satisfy the avoidance and minimization requirements of the Critical Areas Ordinance.
3. Habitat Management Plan. The Whatcom County Critical Areas Ordinance requires the preparation and submission of a Habitat Management Plan ("HMP") as part of the Critical Areas application for projects that impact wetlands, buffers, or fish and wildlife habitat conservation areas. The HMP must be prepared by a qualified professional and must address the following topics:
• Avoidance of impacts to critical areas to the maximum extent practicable;
• Minimization of impacts where avoidance is not practicable;
• Compensatory mitigation for unavoidable impacts, including the mitigation plan, mitigation ratio, and mitigation mechanism (here, the In-Lieu Fee Program);
• Buffer impact analysis and proposed buffer modifications, if any;
• Construction best management practices, including erosion and sediment control, work-area isolation, and biological monitoring; and
• Long-term management and monitoring commitments.
Pinnacle (Dr. Raymond Ostrowski, PE) will prepare the HMP in coordination with C&H and the CSIA design team. The HMP must be finalized and submitted with the Critical Areas application by June 1, 2025.
4. Timeline. The target date for filing the Critical Areas Review application and HMP is June 1, 2025, concurrent with the Shoreline Substantial Development Permit application. The Critical Areas Review is typically processed concurrently with the SSDP when both approvals are required for the same project, as the County's review of critical areas issues is integrated into its overall land-use review process. We estimate that the Critical Areas approval will be issued on or about September 15, 2025, concurrent with the SSDP.
5. Sequencing Dependencies. The Critical Areas Review application will be filed concurrently with the SSDP. The SEPA MDNS must be issued or pending before the County will complete processing of the Critical Areas application. In addition, the wetland delineation report prepared by Pinnacle must be finalized and submitted with the application to support the County's review of wetland impacts and mitigation.
D. Grading Permits
1. Overview. Whatcom County requires grading permits for earthwork activities that exceed specified thresholds, including excavation, filling, and grading associated with construction projects. The grading permit is issued by the Whatcom County Department of Planning & Development Services and is required for each of the four pump station sites and for pipeline trenching segments that involve earthwork exceeding the County's volume and area thresholds.
2. Scope. Separate grading permit applications will be prepared and submitted for each pump station site (PS-1 through PS-4) and for pipeline trenching segments that require grading permits. Each application must include the following:
• Detailed grading plans prepared by a licensed civil engineer, showing existing and proposed grades, cut and fill volumes, slope configurations, and drainage patterns;
• Erosion and sediment control plans, demonstrating compliance with Whatcom County and Washington Department of Ecology requirements for construction stormwater management;
• Stormwater management plans, demonstrating compliance with the Whatcom County stormwater manual and applicable state and federal stormwater requirements; and
• References to the SEPA threshold determination and any applicable SEPA conditions.
The grading plans and associated engineering documents will be prepared by CSIA's design engineer, with C&H providing legal review of the permit applications and coordination with the County.
3. Timeline. The target date for filing grading permit applications is August 1, 2025. This date is set to follow the anticipated issuance of the SEPA MDNS (July 1, 2025) and to allow the Shoreline and Critical Areas applications to be under review. We estimate that grading permits will be issued on or about September 30, 2025, approximately eight weeks after submission. Grading permits are generally subject to less extensive review than the SSDP or Critical Areas Review, and the County can process them relatively expeditiously once the prerequisite SEPA and land-use approvals are obtained or pending.
4. Sequencing Dependencies. Grading permits have the following sequencing dependencies:
• SEPA MDNS. The SEPA MDNS must be issued before grading permits can be issued.
• Shoreline Permit. For sites within the shoreline jurisdiction (PS-1, PS-2, and PS-3), the SSDP must be obtained before grading permits can be issued.
• Critical Areas Approval. The Critical Areas Review must be completed and approval granted before grading permits can be issued for sites with identified critical areas impacts.
• NPDES Construction Stormwater General Permit. The NPDES permit must be obtained before grading activities commence on any site, but the NPDES permit need not necessarily be in hand before the grading permit is issued by the County. The grading permit may be conditioned on proof of NPDES coverage before any ground-disturbing activity begins.
E. Section 401 Water Quality Certification
1. Overview. Section 401 of the Clean Water Act, 33 U.S.C. § 1341, requires that any applicant for a federal permit or license that may result in a discharge to navigable waters must obtain a water quality certification from the state in which the discharge originates. In Washington, the Section 401 Water Quality Certification program is administered by the Washington State Department of Ecology ("Ecology"), and the certification confirms that the proposed activity will comply with applicable state water quality standards, including those established under Chapter 90.48 RCW and WAC 173-201A.
The Section 401 certification is required for the Project because the Project requires a federal permit (the Section 404/10 permit from USACE) and involves activities (specifically, wetland fill and construction near the Nooksack River) that may result in discharges to waters of the State. The issuing authority is the Washington State Department of Ecology, Northwest Regional Office, located at 913 Squalicum Way, Suite 200, Bellingham, Washington 98225. The permit coordinator is Samuel Dralvecen.
It should be noted that in Washington, the Coastal Zone Management consistency review required under the federal Coastal Zone Management Act is incorporated into the Section 401 review process. Ecology conducts the consistency determination as part of its Section 401 certification, so a separate consistency certification is not required.
2. Scope. The Section 401 application must demonstrate that the Project will comply with all applicable state water quality standards. The application must include the following:
• A detailed description of the proposed discharge activities, including the 0.38 acres of permanent wetland fill, the nature of the fill material, and the methods of placement;
• The compensatory wetland mitigation plan, referencing CSIA's proposed use of the Whatcom County In-Lieu Fee Program;
• A stormwater management plan demonstrating that construction and post-construction stormwater discharges will meet state water quality standards;
• An erosion and sediment control plan with specific best management practices for each construction phase;
• Water quality monitoring commitments during and after construction; and
• Any additional information required by Ecology to evaluate compliance with state water quality standards.
3. Timeline. The target date for filing the Section 401 application with Ecology is June 15, 2025, concurrent with the filing of the Section 404/10 Pre-Construction Notification with USACE. The review period for Section 401 certifications typically ranges from 90 to 180 days, depending on the complexity of the project and the completeness of the application. We estimate that the Section 401 certification will be issued on or about October 31, 2025.
It is important to note that under Section 401(a)(1) of the Clean Water Act, 33 U.S.C. § 1341(a)(1), if the state fails to act on the certification application within a reasonable period of time (not to exceed one year), the certification requirement is deemed waived. While we do not anticipate that this provision will be invoked, it provides a backstop in the unlikely event that Ecology's review is significantly delayed.
4. Sequencing Dependencies. The Section 401 Water Quality Certification is a critical sequencing dependency for the Section 404/10 NWP verification. Under Section 404 of the Clean Water Act, the USACE cannot issue a Section 404 permit (or verify a Nationwide Permit) until the state has issued the Section 401 certification or has waived the certification requirement. Therefore, any delay in the Section 401 certification directly delays the issuance of the NWP verification.
The Section 401 application should be submitted simultaneously with, or shortly before, the Section 404/10 PCN to USACE, so that both the state and federal review processes can proceed in parallel. This concurrent filing approach is reflected in the June 15, 2025 target date for both applications.
F. NPDES Construction Stormwater General Permit
1. Overview. Section 402 of the Clean Water Act, 33 U.S.C. § 1342, establishes the National Pollutant Discharge Elimination System ("NPDES") permit program for point-source discharges to waters of the United States. In Washington, the NPDES program is administered by the Department of Ecology under the authority of Chapter 90.48 RCW and WAC 173-226. Construction activities that disturb one or more acres of land are required to obtain coverage under the Construction Stormwater General Permit ("CSGP") issued by Ecology.
The Project will disturb well in excess of one acre of land. The four pump station sites encompass a combined total of approximately 7.7 acres of permanent easement area, plus approximately 4.7 acres of temporary construction easement area, plus the pipeline corridor. Coverage under the CSGP is therefore required.
2. Scope. To obtain coverage under the CSGP, CSIA must prepare and file a Notice of Intent ("NOI") with Ecology. Before the NOI is filed, a Stormwater Pollution Prevention Plan ("SWPPP") must be prepared. The SWPPP is a site-specific plan that identifies all potential sources of stormwater pollution during construction, establishes best management practices ("BMPs") to prevent and control stormwater discharges, and sets forth monitoring and inspection requirements.
Pinnacle will prepare the SWPPP in coordination with CSIA's design engineer. The SWPPP must be consistent with the requirements of the CSGP and any applicable conditions imposed through the SEPA MDNS or other permit approvals.
3. Timeline. The target date for filing the NOI with Ecology is September 1, 2025. Coverage under the CSGP typically becomes effective within 30 to 60 days of Ecology's receipt of a complete NOI. We estimate that CSGP coverage will be effective on or about October 15, 2025.
4. Sequencing Dependencies. The CSGP must be obtained before any ground-disturbing construction activity commences. The NOI can be filed in parallel with other permit applications and is not dependent on the SEPA MDNS, although the SWPPP should reference any relevant SEPA conditions that relate to stormwater management.
Importantly, the CSGP must be in place before the Construction NTP of December 15, 2025. Given the estimated effective date of October 15, 2025, there is approximately two months of float on this permit track, making it one of the lower-risk items in the permitting program.
G. Section 404 Clean Water Act Permit and Section 10 Rivers and Harbors Act Permit
1. Overview. Section 404 of the Clean Water Act, 33 U.S.C. § 1344, prohibits the discharge of dredged or fill material into waters of the United States without a permit from the U.S. Army Corps of Engineers. Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403, prohibits the construction of any structure in or over any navigable water of the United States, or the excavation or fill of any navigable water, without a permit from USACE.
The Project requires authorization under both Section 404 (for the discharge of fill material into wetlands, which are waters of the United States) and Section 10 (for construction activities in proximity to the Nooksack River, a navigable water). The issuing authority is the U.S. Army Corps of Engineers, Seattle District, Regulatory Branch. The Branch Chief is Major Christine Tao.
2. Permit Type Analysis. USACE issues two general categories of permits under Sections 404 and 10: Individual Permits and General Permits. General Permits include Nationwide Permits ("NWPs"), which are pre-authorized permits for specific categories of activities that have been determined to have minimal individual and cumulative adverse effects on the aquatic environment. NWPs are subject to general conditions, regional conditions (specific to each USACE district), and activity-specific thresholds.
We anticipate that the Project can be authorized under two NWPs:
• NWP 12 — Utility Line Activities. NWP 12 authorizes activities required for the construction, maintenance, repair, and removal of utility lines and associated facilities in waters of the United States. The force-main pipeline crossings and associated trenching in wetlands fall within the scope of NWP 12. NWP 12 is subject to a fill limitation of one-half (½) acre per single and complete project.
• NWP 39 — Commercial and Institutional Developments. NWP 39 authorizes the construction of commercial and institutional building foundations and building pads and attendant features in waters of the United States. The pump station structures and their associated footprint within wetlands fall within the scope of NWP 39. NWP 39 is also subject to a fill limitation of one-half (½) acre per single and complete project.
The Project's combined permanent wetland fill of 0.38 acres is within the ½-acre threshold for each applicable NWP. However, it is important to confirm with USACE during the pre-application meeting that the Project is treated as a single and complete project for NWP purposes, and that the fill associated with each NWP authorization does not independently exceed the applicable threshold.
Because the Project involves more than minimal impacts to wetlands and is located in proximity to a navigable water, a Pre-Construction Notification ("PCN") is required before either NWP can be verified. The PCN is the functional equivalent of a permit application for NWP verification purposes.
3. Scope. The PCN application must include the following:
• A complete project description, including plans, cross-sections, and specifications for the pump stations and force-main pipeline;
• The wetland delineation report prepared by Pinnacle, demonstrating the location and extent of wetlands within the project area and the acreage of permanent and temporary fill;
• The compensatory wetland mitigation plan, referencing CSIA's proposed use of the Whatcom County In-Lieu Fee Program and the required mitigation credits (0.57 acres);
• The cultural resources survey results from Pinnacle's Phase I Cultural Resources Survey, including the identification and preliminary assessment of site 45WH-1287;
• A threatened and endangered species analysis (biological evaluation) addressing the Project's potential effects on ESA-listed Chinook salmon, steelhead, and bull trout, and demonstrating avoidance of adverse effects through design measures (particularly HDD for river crossings); and
• Any additional information requested by USACE during the pre-application meeting.
Section 7 ESA Consultation. As the federal permitting agency, USACE is responsible for initiating consultation with the U.S. Fish and Wildlife Service ("USFWS") and NOAA Fisheries (National Marine Fisheries Service) under Section 7 of the Endangered Species Act, 16 U.S.C. § 1536. Because the Project has been designed to avoid in-water work and to use HDD for river crossings, we anticipate that USACE will initiate informal consultation and will conclude that the Project is "not likely to adversely affect" ESA-listed species. If the agencies concur in this determination, the informal consultation process can be completed in approximately 30 to 45 days. However, if either USFWS or NOAA Fisheries determines that the Project may adversely affect listed species, formal consultation would be required, which carries a statutory timeline of up to 135 days. This risk is discussed further in Section V.D.
4. Timeline. The target date for filing the PCN with USACE is June 15, 2025, concurrent with the Section 401 application to Ecology. USACE's 45-day review clock begins upon receipt of a complete PCN. However, the review clock may be extended if USACE determines that additional information is needed or if the PCN is initially deemed incomplete.
USACE cannot issue the NWP verification until the following prerequisite conditions are satisfied:
• Section 401 Water Quality Certification has been issued by Ecology (or the certification requirement has been waived);
• Section 106 Cultural Resources concurrence has been obtained from the Washington DAHP; and
• Section 7 ESA consultation has been completed.
Given these dependencies, and the estimated timelines for the Section 401 certification (October 31, 2025) and Section 106 concurrence (November 15, 2025), we estimate that the NWP verification will be issued on or about November 30, 2025. This makes the NWP verification the last permit on the critical path, with only 15 days of float before the Construction NTP of December 15, 2025.
5. Sequencing Dependencies. The Section 404/10 NWP verification has the most extensive sequencing dependencies of any permit in the program:
• Section 401 Certification. Must be issued by Ecology before USACE can issue the NWP verification.
• Section 106 Concurrence. Must be completed before USACE can issue the NWP verification.
• Section 7 ESA Consultation. Must be completed before USACE can issue the NWP verification.
• SEPA MDNS. While not a formal prerequisite for USACE action, the MDNS provides evidence of state environmental review and supports the NWP verification process.
This permit is the final, critical-path item. It is the latest estimated issuance date in the permitting program and is the most likely point of failure for the November 30, 2025 target. Any delay in any of its prerequisite permits or consultations directly delays the NWP verification and, consequently, the Construction NTP.
H. Hydraulic Project Approval (HPA)
1. Overview. The Hydraulic Project Approval ("HPA"), authorized under Chapter 77.55 RCW, is a state permit issued by the Washington Department of Fish and Wildlife ("WDFW"). An HPA is required for any construction activity that will use, divert, obstruct, or change the natural flow or bed of any state waters. The HPA program is designed to protect fish life and habitat from the adverse effects of construction activities in or near state waters.
The Project triggers the HPA requirement because the force-main pipeline route includes crossings of the Nooksack River and its tributaries, and because the pump station construction occurs in proximity to the river. Even though the pipeline crossings will be accomplished using HDD (which avoids direct disturbance of the streambed), the HPA is still required because the crossings involve work within the regulatory corridor of state waters.
2. Scope. The HPA application must demonstrate that the Project has been designed to avoid or minimize impacts to fish life and habitat. The application must include project plans showing the location and method of all stream crossings, a description of the HDD methodology and its benefits for fish habitat protection, and an analysis of any potential impacts to fish life from construction activities near the river.
WDFW may impose work-window restrictions as a condition of the HPA. For the Lower Nooksack River, the standard in-water work timing window to protect salmon spawning is typically July 15 through September 15. However, because the Project's pipeline crossings use HDD technology and avoid in-water work, we anticipate that the work-window restrictions may not apply to the HDD activities, although they could apply to any ancillary construction activities that involve work within the ordinary high water mark of the river or its tributaries. This issue should be confirmed with WDFW during the application review.
3. Timeline. The target date for filing the HPA application with WDFW is June 15, 2025, concurrent with the Section 401 and Section 404/10 applications. The standard WDFW review period is 45 days for standard projects, which may extend to 90 days for complex or large-scale projects. We estimate that the HPA will be issued on or about October 15, 2025. This timeline provides approximately two months of float before the Construction NTP.
4. Sequencing Dependencies. The HPA is independent of the SEPA threshold determination, as WDFW conducts its own environmental review as part of the HPA process. However, it is advisable to coordinate the HPA application with the USACE Section 404/10 PCN, as the conditions imposed by WDFW in the HPA may overlap with or complement the conditions imposed by USACE in the NWP verification. The HPA must be obtained before any construction activities near state waters commence.
I. Section 106 Cultural Resources Concurrence
1. Overview. Section 106 of the National Historic Preservation Act ("NHPA"), codified at 54 U.S.C. § 306108, and its implementing regulations at 36 C.F.R. Part 800, require that federal agencies take into account the effects of their undertakings on historic properties and afford the Advisory Council on Historic Preservation a reasonable opportunity to comment. An "undertaking" includes any project, activity, or program funded in whole or in part, or requiring a permit, license, or approval from a federal agency. Because the Project requires a Section 404/10 permit from USACE, the USACE is the lead federal agency for Section 106 purposes.
The state counterpart in the Section 106 consultation process is the Washington State Department of Archaeology and Historic Preservation ("DAHP"), which serves as the State Historic Preservation Office ("SHPO"). USACE will submit the Section 106 consultation package to DAHP for review and concurrence.
2. Key Issues. The central issue in the Section 106 process for this Project is the pre-contact archaeological site designated 45WH-1287, identified by Pinnacle during its Phase I Cultural Resources Survey completed on February 10, 2025. The site is located near PS-3 on Dunlap Creek Ranch Inc. property (Parcel No. 380220-108400) and consists of a pre-contact lithic scatter with possible midden deposits.
The National Register of Historic Places eligibility determination for site 45WH-1287 is pending. This determination is a critical threshold question in the Section 106 process: if the site is determined to be eligible for (or listed on) the National Register, the Section 106 process requires an assessment of the Project's effects on the site and, if adverse effects are found, the development of a Memorandum of Agreement ("MOA") to resolve the adverse effects. If the site is determined to be not eligible for the National Register, it is not considered a "historic property" under Section 106, and the consultation can proceed more expeditiously.
Based on the information available from the Phase I survey, we anticipate that the most likely outcome is a determination of "no adverse effect" with conditions. The anticipated conditions are likely to include:
• An archaeological monitoring protocol requiring the presence of a qualified archaeologist during all ground-disturbing activities within 200 feet of site 45WH-1287;
• An inadvertent discovery plan for all Project sites, specifying procedures to be followed if previously unknown archaeological materials are encountered during construction; and
• Documentation that tribal consultation with affected tribes has been completed.