Submitted by Friends of the San Juans.

After ignoring court order for 17 years, Corps authorizes unmitigated growth of BP’s tanker traffic The United States Army Corps of Engineers released a Record of Decision last week that at first blush seems like a win for reducing oil spill risks in the Salish Sea. The Decision requires BP to limit the volume of crude oil handled at its Cherry Point terminal to 191 million barrels per year and prohibit handling crude oil at its North Wing dock unless authorized. However, the Record of Decision significantly overestimates the crude oil handling capacity of the terminal prior to the construction of the new wing.

“The Corps’ ‘limit’ on the volume of crude oil that BP can receive at its terminal is nonsensical and unconscionable,” said Lovel Pratt, Marine Protection and Policy Director at Friends of the San Juans. “This ‘limit’ is a license to more than double the volume of crude oil that’s currently processed at BP.”

The Corps’ Record of Decision undermines the legacy of Washington State’s late US Senator, Warren Magnuson, who instituted significant protections against oil spills in the Salish Sea. Senator Magnuson’s 1977 amendment to the Marine Mammal Protection Act (33 U.S.C. § 476), sometimes referred to as the Magnuson Amendment prohibits federal agencies from granting permits “which will or may result in any increase in the volume of crude oil capable of being handled at any such facility (measured as of October 18, 1977), other than oil to be refined for consumption in the State of Washington.”

There are also positives in the Record of Decision; the concluding sentence in Appendix A (page 25) states: “Given these findings, the Corps has determined that the permit authorizing construction and operation of the Cherry Point Marine Terminal’s North Wing dock increased the terminal’s crude oil handling capacity to a level exceeding the October 18, 1977, baseline handling capacity, in violation of the Magnuson Amendment.”

This finding is the first time, since the Magnuson Amendment was passed in 1977, that the Corps has ever made such a determination for a refinery tanker terminal permit. “The Corps finally agrees with our long-held assertion that BP has been able to handle more crude oil at its marine terminal since the new wing was built in 2001. Therefore, the Corps determined its permit must be modified to comply with the Magnuson Amendment,” said Marcie Keever, Oceans and Vessels Program Director at Friends of the Earth.

Unfortunately, with 191 million barrels per year being set as the limit, almost double their current capacity, the Record of Decision could result in increased vessel traffic impacts and increased risks of catastrophic oil spills. “The law is clear: federal permits cannot allow more crude oil in Puget Sound. This decision makes a mockery of that standard” said Jan Hasselman, senior attorney at Earthjustice on behalf of the plaintiff organizations.

So how did we get here? Let’s step back through 22 years of litigation (see pp 1-4 of the Record of Decision for a complete legal history that led to this decision).

In 2000, the Corps issued BP a permit to add a second wing to its oil tanker terminal at Cherry Point – effectively doubling the number of tankers able to berth at the refinery – the largest in Washington State. Not only did the Corps fail to consider whether the permit had to be conditioned to comply with the Magnuson Amendment, it didn’t even require BP to complete a full Environmental Impact Statement, as required by the National Environmental Policy Act for major projects. This, despite the potential for the significant increases in oil tanker traffic and risks of catastrophic oil spills in the Salish Sea.

In 2005, following a lawsuit filed by an environmental coalition challenging the legality of the Corps permit, the Ninth Circuit Court of Appeals ruled that the Corps’ action was illegal and ordered the Corps to prepare a full Environmental Impact Statement, and also determine if the permit complied with the Magnuson Amendment. The Corps published its intent to prepare a draft Environmental Impact Statement in August 2006, but didn’t issue the draft Environmental Impact Statement until 2014, a delay of nine years after the Court’s order.

As of 2021, the Corps had still not published the Final Environmental Impact Statement (17 years after the Court’s orders and 22 years after the terminal began operations). Recognizing the increasing urgency of preventing a catastrophic oil tanker spill and in light of the continued decline of many marine species, especially the endangered Southern Resident Killer Whales, the Friends of the San Juans, Evergreen Islands and Friends of the Earth sued the Corps in September 2021 for its unreasonable delay in issuing the final Environmental Impact Statement or consider its permit’s compliance with the Magnuson Amendment. The parties reached a settlement in 2022 with the Corps committing to a firm deadline to finalize the Environmental Impact Statement and complete its Magnuson determination.

Pursuant to the settlement, the Corps released the final Environmental Impact Statement in August 2022 and on Jan. 23, issued their Record of Decision, including what, if any, conditions would be needed to ensure that the permit complies with the Magnuson Amendment. The Record of Decision has raised more questions than it’s answered. “It’s a sad day when it takes the US Army Corps of Engineers 17 years after being sued to exercise its basic public responsibilities and then to use its authority to eviscerate the late

Senator Magnuson’s legislative legacy,” said Marcie Keever, Oceans and Vessels Program Director at Friends of the Earth. “Vessel traffic poses three ominous threats to the orcas’ existence: vessel noise, vessel/orca collisions, and oil spills,” said Tom Glade, Evergreen Islands. “We, the human residents of Puget Sound, currently have an opportunity to take steps towards preventing the Southern Resident Killer Whales from annihilation – or to our dishonor, letting this opportunity, to improve the orcas’ habitat by reducing the vessel traffic through the Salish Sea, slip through our fingers.”

Background:

Corps Overestimation of Crude Oil Handling Capacity

The Corps’ estimate of the volume of crude oil that could be handled at the original South Wing (that provided a single-berth capacity) in 1977 was 191 million barrels per year when in fact the refinery could only process 36.5 million barrels per year. The Corps estimate is so inflated that it even exceeds the refinery’s current capacity (91.25 million barrels per year) by 100 million barrels per year.

The Corps determined that it would not be practical to transfer crude oil from the North Wing dock with the current piping that connects the North Wing to the refinery’s crude oil storage tanks. However, the Corps’ estimate of the volume of crude oil that can be handled at the South Wing did not consider the capacity of the refinery’s crude oil storage tanks (as of 1977) a relevant constraint.

The Corps further asserts that 229 tankers could have called on the terminal’s South Wing in 1977. Whereas, BP had already declared the terminal was functionally at capacity in 1998, when there were only 114 tanker calls. This is why the refinery sought the permit to build the North Wing and double its berthing capacity. The highest number of tankers to call at both the South and North wings was 191 in 2007, still 38 less than the Corps claim could have called at just the South Wing.

Consequences Of Building A Second Wing And Doubling The Berthing Capacity At The Bp Tanker Terminal:The number of crude oil tankers increased 40% (from 114 in 1998 to 191 in 2007).

Refinery capacity to handle crude oil increased 60% from 100,000 barrels per day in 1971 to 250,000 barrels per day in 2022.

The second wing that has doubled the refinery’s berthing capacity could enable BP to use the Trans Mountain pipeline spur to receive more Canadian Tar Sands crude oil and export it directly from the terminal. This opportunity will increase once the Trans Mountain pipeline expansion is completed.

History:

1967 – Torrey Canyon oil spill (30 million gallons)

1968 – Oil was discovered in North Slope of Alaska (ANS)

1971 – ARCO built the Cherry Point Refinery to process 36.5 million barrels per year of ANS and Canadian Tar Sand crude oil was received via the Trans Mountain pipeline.

1976 – ANS crude deliveries start

1977 – Magnuson Amendment

1996 – ARCO applied for a permit to build a second wing

2000 – Corps grants ARCO a permit to build the North Wing without an Environmental Impact Statement

2000 – BP purchases Cherry Point refinery from ARCO

2001 – North Wing becomes operational

2001 – Lawsuits begin as described in the Record of Decision