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00:00:00.530 — Next on t.v. debut the Washington State Supreme Court listens to oral arguments in the case of Port of Seattle versus the pollution control hearings board the case was heard in Olympia on November eighteenth.
00:00:37.640 — The morning ladies and gentlemen.
00:00:40.010 — Welcome to the Supreme Court on this somewhat story November eighteenth two thousand and three.
00:00:48.190 — As counsel have already been informed will take Case number two first.
00:00:53.690 — Then followed by case number one one of the counsel in case number one is currently caught in.
00:00:59.150 — Traffic and then in the big city will.
00:01:02.910 — Take a step or two which is part of Seattle petitioner versus the pollution control hearing board respondent Mr you have reserved fifteen minutes for opening and Mr Reavis and Ms Marciano will have to divide thirty minute argument and then history.
00:01:24.951 — You’ll have fifteen minutes or whatever portion that remains for your rebuttal you may proceed.
00:01:38.621 — May it please the court I’m Peter regolith from Helsel federal minimum here representing today a consortium of five cities as well as the highline school district I’m also arguing this morning for case a citizens group represented by Rick seated behind me this case arises out of the ports challenge to the pollution control hearings board unanimous correction of a politically skewed Clean Water Act Section four hundred one certification in the form issued by the Department of Ecology the certification would have allowed contaminated filth and storm water laden with toxic metals to be released into area class double a fish bearing streams what you’re being handed right now is an excerpt I want to ask about there’s three crease here to mine Craig Miller Creek and Walker Creek Dog get they it just salmon spawning these great well there they are fish bearing there are salmon they are they were not found to be subject to the Endangered Species Act but they are fish bearing and.
00:02:42.461 — They do have spawning fish in them yes the.
00:02:47.290 — You may be going to cover this and if Iran are standing out of the third runway it would fill in this canyon or revealing.
00:02:56.400 — That goes down into Miller Creek is that right yes it’s as the board described it it’s a canyon that’s one hundred fifty feet deep and it would be filled with approximately twenty million cubic yards of filling clear to me from the findings whether that is the creek covered and then has a culvert that carries the water through or is it or does it come in there comes within fifty feet that’s correct around or in place as it does in portions of Miller Creek are going to be relocated that’s part of what the mitigation the port has offered would do was for about one they won’t use culverts they’ll relocate that’s that’s the theory in a fairly artificial way yes that’s the theory your honor.
00:03:41.260 — How the third way is constructed turns on this case and I want to emphasize this is not about the merits of the third runway project should it be built or not but it’s about how it will be built and how it will be operated the Clean Water Act and state water quality standards including the federal and state anti degradation mandate which is paramount under both the federal Clean Water Act and the state clean water law r.t.w. Chapter nineteen point four eight don’t have a sliding scale of compliance depending on the politics or popularity of a project if the five local governments I represent here today allowed such considerations to enter into permit in decisions this court would rightly reject such an approach in fact this court has in the past rejected such an approach the point has filed by far the broadest of any of the appeals here the ports issues if granted or upheld by this court would have disarray the protections imposed by the pollution control hearing board.
00:04:42.491 — Therefore because time is limited and the issues that a.c.c. and case have raised are fully briefed I’m going to start with the discussion of the ports attack on p.c.h. be condition number eight and if you recall that’s the condition concerning the synthetic precipitation leaching procedure or s p l p.
00:05:02.181 — Of the as we just discussed the signature feature of the ports third runway proposal as the board itself pointed out is depositing twenty million cubic yards of fill in a wooded canyon which encompasses Miller Creek at the bottom of the canyon lies one hundred fifty feet below the level of the airport’s existing runway give you an idea and this is in the record twenty million cubic yards of fill is equivalent to forty football fields of fill each stacked three hundred feet high it’s an unimaginable quantity there’s another analogy given by Professor William Rodgers who submitted an Amakosa brief on behalf of the Sierra Club and over ten other environmental groups across the state and he noted that this amount of fill is equivalent to five times all of the material dredged by the Army Corps of Engineers out of the four Snake River reservoirs plus associated projects over twenty years the quality of the fill deposited by the port is critical for the health of the Aquatic Resources which under state and federal law must be protected from degradation after a two week trial review of voluminous testimony you you have the record before you it’s over fifty thousand pages the board found that the ports proposal for placement of film was wanting in virtually every key respect for example the board found that the limits on toxic materials in the field what are called numeric field criteria I call them limits on pollution were set too high above natural background levels which would allow use of contaminated fill.
00:06:36.490 — And the board determined that the reasonable assurance standard of the Federal Clean Water Act was not met by a process incorporated into the four a one certification for acceptance of Fil which it tested as contaminated In other words which had already discussed it is vitally in the Corps of Engineers that through that certification I mean doesn’t that undercut your argument Well the Corps of Engineers reviewed whether or not it would incorporate the P.C.’s be conditions and for a number of reasons both discretionary and legal it said it would not those were reviewed by the federal court on an arbitrary and capricious standard the court in fact did not have the benefit of having sat through the fifty thousand page.
00:07:18.280 — Two week trial and in addition the course review was very much based on the u.s. Fish and Wildlife Service Endangered Species Act review which itself was focused on a very narrow issue of harm to for example habitat for particular endangered species so I think the the two determinations operated on a different review on a different standard and on top of that it’s important to keep in mind the purpose of section four a one of the Clean Water Act Its purpose is to make sure that water quality is not denigrated and when it was adopted when Section four a one was adopted the legislative history indicates it was supposed to backstop in just this kind of situation to make sure that if the Army Corps that the federal government allowed something the state would be there have the authority and have the mandate to say no that won’t work so they’re really two separate regimes are are now fully understood that’s c.p. procedure maybe that’s an redundancy is is an accepted procedure for testing these contaminants in both the federal or Jeem and other states you’re right it is used for some purposes and it’s important to understand what the board did and did not do the board did not say s.p.l. p. in all cases is a bad procedure or a bad test the board looked at the s.p.l. p work plan which had been attached to a college use for a one certification and was included to allow importation of fill that had already failed the numeric field criteria and it said that work plan won’t work the work plan involved using the s.p.o. p. test on a certain sampling mode with certain assumptions and so on and the board analyzed it from all of those aspects and said it won’t work there may be some circumstances where it would but one of the things the board found here that it was that it was too blunt instrument and the record was.
00:09:17.880 — Very clear on this said I think the best analogy is you’re trying to determine whether it’s freezing outside and you’re only using a thermometer that most times will only register down to fifty degrees to blow on an instrument and that was one of the major problems the board found here in its decision is there any anything to the fact that the s.p.l. procedure was only being they were only proposing to use it to measure the surface waters mounted in ground waters and if that were extended to major groundwater contaminants with that meets your issuer well address that at least in some part if.
00:09:57.200 — I don’t want to kind of recreate after the condition for the for the porter ecology here but there would have to be a lot of calculations done to determine how to integrate the s.p.l. p. procedure and.
00:10:12.131 — Solve that Short coming that wasn’t done here on this record and that would only solve one of the problems the board found.
00:10:19.871 — It hard made your own what are you asking us to do.
00:10:23.641 — Well on this issue we’ve said the board bade the right decision the port originally appealed and said The board did not make the right decision the port has since said because of legislation passed in the last session that really the board’s decision is moot we’re asking you to say a the board made the right decision and b. the legislation does not make the board’s decision moves and you become a condition which That’s correct Your Honor and it’s important understand what Condition eight did condition it didn’t say s.p.l. p. is a bad idea out in the universe it can never be used it said on the standard we must apply here reasonable assurance that water quality standards will not be violated s.p.l. p. will not work in this case now the legislation that the port is relying on says if a college she has required s.p.l. p. then that is ratified by the legislature we don’t think that legislation gets the port were really wants to go what it may do is say Ok if a college e. uses s. p. o. p. then the board decision says there’s no reasonable assurance the end result being there’s no certification and no ability to go ahead that’s one of the problems with the legislation stepping back and these may be issues the court jurisprudential the mayor may not want to reach the legislation attempts to essentially adjudicate a federal So what a federal standard will result in in this particular case the federal standard says you must have reasonable assurance that water quality standards will not be violated that’s in the federal Clean Water Act the legislature according to the port of ecology presume to say well in every case s.p.l. p. will meet the reasonable assurance test.
00:12:09.851 — Legislature.
00:12:12.351 — I mean if they were saying that in every case this well it’s a matter of procedure of testing will satisfy the requirements of a for a one certificate how how would they then have used the word mean well I agree Your Honor in the sense that what I was characterizing is what I think the port of a college you’re arguing I think the actual language of the legislation doesn’t as I said get them where they want to go the fact that a college e-mail use it in our view doesn’t bind the p.c.h. b. or make it conclusive if their argument is correct that it does bind the p.c.h. b. and somehow make it conclusive that immediately is a violation of separation of powers and a violation of the supremacy clause there are two very key cases we cited for those latter two propositions of Tacoma versus O’Brien on the separation of powers and I’d urge the court to to examine that because I believe it’s on all fours with this situation but the other case is the northern plains case out of the Ninth Circuit the northern plains Resource Council case which is very clear that one cannot the state legislature cannot legislate in a way that essentially tries to preempt or change the federal standard Professor Rodgers in his Amoco brief cites another case that I think is also instructive on that point that is the I’m going to get this wrong I know but it’s the Macusi case it’s involves a I believe Native American tribe out of Florida concerns the Everglades so those are all cases on point that say that legislation our position on it is you can’t get there from here it didn’t do what apparently it was intended to do which was preempt and adjudication by the p.c.h. b. and I want to emphasize my clients my city government spent a lot of effort and public resources going to the cause a judicial body that the legislature in a statute said they should go to to have this issue for example Phil criterion s p o p resolved huge amounts of public money and effort were spent good faith scientific testimony.
00:14:11.741 — The works and now we have a bill that the legislature passes that some folks think says that’s out the window and your hands are tied we simply don’t agree with that we think it doesn’t get us there and it can’t legally do that now your honor I do have other issues I’d like to address but I feel like to reserve the balance of my time if I could for reply.
00:14:35.361 — Thank you Mr Reed.
00:14:49.462 — Thank Your Honor may it please the court My name is Gil Revis I represent the Port of Seattle in this case.
00:14:55.272 — Out of court is pleased to be here to present its arguments on a very important public transportation project construction of the third runway at Sea-Tac International Airport were here on an appeal of a decision by the pollution control hearings by.
00:15:09.502 — The Department of college the recognize that there is reasonable to surance that the ports project would not violate water quality standards the board affirmed that decision yet the board added sixteen conditions in the port is appealing six of those conditions that this project has been under study for more than fifteen years.
00:15:29.443 — It’s perhaps the most intensively study project in the history of the state in one nine hundred ninety two the Puget Sound regional council completed a programatic environmental impact statement.
00:15:42.744 — Regarding the air traffic needs of the region nine hundred ninety six the p.s.r. c. a den of five the third runway as the preferred and only feasible alternative one of the reasons for that decision was that this particular location would have fewer environmental impacts particular with regard to wetlands than other locations that were study from one thousand nine hundred two until one thousand nine hundred six ition when you say that this will not degrade.
00:16:10.234 — State Water will not.
00:16:12.940 — Create create a condition that’s below state water quality standards or is the ports position that the water quality will be as good after this they’re going ways in is in is it was trying to the building of the That’s correct Your Honor that’s what’s required by the anti degradation standards in fact there are things that the port is doing that will be to bring in all that you’re going to bring in all this.
00:16:35.080 — I call it dirt but it would be called Phil I guess for purposes of this.
00:16:39.900 — Proceeding going to bring all this and put it in there right next right I guess it goes right next to Miller Creek within fifty feet is that right in one location places and in some place it will cover the existing Crete it will cover certain wetlands in that creek and the reason that Miller Creek is being rerouted in certain locations is so that it can continue to flow going to you’re going to alter the historical course of this creek and bring all this fill and the water quality is going to be just as good afterwards it was before we believe it may actually have find that difficult we believe it may actually be better yonder let me first address the issue on Miller Creek because Miller Creek is not in it’s historically quite location it runs through an agricultural area known as block a farm and in certain locations that it resembles a ditch which I think the board acknowledged in its findings so what the port is doing is actually improving that particular Creek for the purposes of this one life this routine that you’re filling in was the historic location with.
00:17:38.841 — No you are it’s actually been rerouted that Miller Creek sort of runs from the north east of the airport down around where the.
00:17:48.401 — Film is going to be placed now in certain locations the field is going to move so close to Miller Creek that Miller Creek has to be rerouted but the present location of Miller Creek was created as a result of a Pete farm that was located there in that block of farm area so it’s been channelized it’s been ditched the board in fact concluded that it was degraded so the what some of the steps that the port is taking particular with regard to Miller Creek or specifically designed to improve aquatic habitat there the port is also eliminating a number of uses in this area where the field is going to be placed such as septic systems and water uses and other measures that are all described in the record so that in the end the goal is to improve the water quality in the wind as I understand the water that will collect on the runway which will be immense I mean this is a huge runway that’s correct you will be diverted into an underground reservoir or some sort of the holding place and then it’ll be pumped into the creek at low when there’s low flows of more or less you’re under that going to be is that water going to be.
00:18:56.061 — Pristine or is it going to be in good shape when it comes into the creek but let me address first what the system does your honor because the system is not unlike most storm water detention and treatment facilities at various projects around the state because storm water is detained.
00:19:15.241 — In order to prevent high flow impacts such as scouring erosion of streams and this particular project it’s also being held a little bit longer so that water can be added back to the streams.
00:19:27.690 — Now what’s happening here is that the ports up infiltrating some of this water through normal ponding so you create a pond in the pond holds the water for a certain period of time after which it can be pumped into a stream or into a wetland or simply down the normal water course.
00:19:48.280 — But the ports proposal treats that water as it sits in the detention whether it’s a pond or evolved because the contaminants are pollutants settle out and then the water can be released when it’s cleaner than when it went into the vault so there is treatment and the ecology concluded that based upon all of these mitigation measures that there is reasonable to surance the water quality standards would not be violated and the board agree with all the.
00:20:16.460 — Whatever airplanes put on the runway.
00:20:21.660 — Gas or oil or whatever comes.
00:20:24.600 — You know I’m sure there’s some sort of.
00:20:27.840 — Some impact on their own way that will all be cleaned out but you’re out of the one thing to understand about the way the the runway works in the system is that not all of the storm water goes to the streams what the port has done in design of this facility is route a good portion of the storm water to what’s called the industrial waste water system yes which does actually run through some additional ponding and some additional treatment before being discharged to Puget Sound.
00:20:59.601 — And so not all of the storm water goes to the stream some of it goes other locations and that’s the subject of a separate federal permit issued under section four of two of the Clean Water Act.
00:21:12.790 — Now the problem on the runway is primarily with regard to glide calls from de icing events and that the ecology considered that issue very carefully and decided that the ports system for detaining this water wasn’t going to cause any problem with like calls in the streams but most of the other contaminants and fueling activities and all of those things occur in a separate location that drains to the idea of yes instead of draining directly to the streams.
00:21:40.230 — That this project in one thousand nine hundred seventy the f.a.a. issued a formal record of decision concluding the no prudent alternatives existed and all reasonable steps have been taken to mitigate and remember impacts since that time u.s. Fish and Wildlife has decided the project does not violate the Endangered Species Act that was concurred in by National Marine Fisheries Service and in December of two thousand and two the Army Corps of Engineers granted the port a permit to fill wetlands under Section four hundred four of the Clean Water Act That decision was appealed to Judge Ross team and it was up held now the forum for permit is significant because the for one certification is necessary in this case primarily to tell the federal government whether this project complies with state water quality standards so the decisions are very similar terms of what the Corps was doing versus what ecology was doing here.
00:22:33.430 — So that we’re there would have been aware that of the plan to test the soils that would be used to spill s p l procedures and the court was satisfied that that would result in testing that would demonstrate that the levels of contaminants did not exceed the federal Clean Water Act that’s pretty level ceilings and that was that the court made a couple of decisions one was that the fill criteria did not have to be incorporated within the federal permit because the boards fill criteria were developed after the one year period in which the state had to.
00:23:11.200 — Provide a service station but if you read Judge decision I would urge you to do that Judge Rothstein’s decision that says that was not arbitrary or capricious because upon review of the fill criteria themselves some of them simply don’t make any sense for example one the judge last in a den of fide was below natural background limits so all of this is covered in our briefing we believe that ecology made the correct determination with regard to fill criteria because ecology after all is the primary agency that on a daily basis considers questions such as how much of a particular constituent can exist in soil without threatening water quality and we both sides have argued the difference question but I it’s our position with regard to a highly technical issue such as s.p.l. theory or feel right Tyria that some deference needs to be given to a college’s expertise in that regard and what difference has to be given to the board.
00:24:04.810 — We believe the board should be given deference with regard to its own factual findings as required by the substantial evidence standard so I don’t believe you can set aside the board’s factual findings without substantial evidence but in evaluating some of these questions of judgment with regard to highly technical matters I think you also need to look at the standards that ecology selected there’s a couple of cases on this I believe that are relevant the one I would like to indicate to you is the ecology versus the p u d of Jefferson County number one which is known as the corn case and this court stated specifically that it is well settled that due deference must be given to the specialized knowledge of an administrative agency here ecology was exercising its expertise in judging the appropriate in string flow rate for the project therefore in analyzing the board’s decision under the clearly erroneous standard we also give due deference to a college’s expertise in this area.
00:25:06.451 — So there are many cases that discuss I prefer precise factual situation where you have a decision by ecology and a decision but if so I think there’s an interplay here this court has previously recognize that ecology is deference particularly on technical recalls his judgement on technical issues should be given deference let me jump to condition number eight which is s.p.l. p..
00:25:29.403 — Because I think that is one of the more important issues in this case and it’s our view that the board simply got along when they prohibited s.b. LP.
00:25:37.433 — S p l p as a leaching test for its sole purpose is to determine how much of a particular metal or other naturally occurring substance can leach out of soil if it doesn’t leach out that’s not a threat to water quality and that’s why ecology included it and for one certification Now there’s some.
00:25:58.035 — Confusion here about what s.p.l. it is so I’d like to address that for just a minute s.p.l. people works like this you simply take soil or rock whatever the case may be you put it in a jar and acidic water has about the acid content of acid rain so it’s an aggressive test agitate that for eighteen hours and then you for water around that’s the end of s b l p that’s what I call the jar process now later what happens is that water is analyzed in a laboratory and it’s compared against whatever stance.
00:26:34.548 — Is required to be compared against.
00:26:36.661 — And that’s an entirely different analytical process a totally separate from s.p.l. p. that’s what I call the lab process so I believe what the board did and as the court noted earlier s.p.l. p is widely accepted accepted by e.p.a. it’s in ecology regulations went through notice and comment it was accepted by the Corps of Engineers for use at this project and it was also that decision was affirmed just last.
00:27:02.521 — But I think what the board did is misunderstood the s.p.l. p. process because as we noted in our briefs the board said board said it had four concerns about use of s.p.l. p. all four of those relate this to the lab process and not to s.p.l. p. itself so our position is that the board number one acted arbitrary arbitrarily or capriciously because it threw out the jar court s.p.l. p when its concerns were really about the lab part and I won’t go into detail about our arguments on the part concerns but our position is with regard to three of those concerns there’s absolutely no support in the evidence for those three concerns about the number of samples the detection limits the water quality standards not being available what about Kant’s argument that experience human has to go it well you’re right I think that.
00:27:59.221 — What the board did is unfortunately a den of five these concerns.
00:28:04.571 — That based upon a proposed finding of fact that was submitted by the project opponents a.c.c. in case it simply doesn’t have any evidence or support so I think it’s correct that the board was trying to identify some particular problem with this whole teaching procedure.
00:28:24.071 — And unfortunately what the board did is is misinterpreted the evidence and I think there just isn’t any valid evidence to support those concerns so I think the argument would be valid if the board had decided we don’t like the s.p.l. b. work plan and thrown out the work plan that’s not what the board did the board said you simply can’t use s.p.l. p. which is an entirely different process from the analytical issues that the board had concerns about so our position is in this case that s.p.l. p. should be reinstated because it wasn’t supported by the board’s decision was not supported by substantial evidence of the board’s decision was arbitrary or precious and it was overruled by the legislature it’s takes me into the question about s.s.p. fifty seven eighty seven the Senate bill I don’t want to spend a lot of time on it but I do want to talk about primarily the separation of powers issue because I believe that the cost of challenge here.
00:29:21.892 — Really simply misinterprets the bill.
00:29:25.552 — It’s the our position that the bill does not adjudicate any facts it does not tell this court how to resolve any review of the board’s finding that the bill does not compel the conclusion that ecology had reasonable assurance.
00:29:41.721 — What s s b fifty seven eighty seven does is establish s.p.l. p. itself as a valid scientific tool for determining whether water quality violations could occur and the legislature is in the business of determining what is or is not good science and establishing scientific tests for the courts and administrative agencies to apply to examples that cited in our brief are breathalyzer tests and d.n.a. tests so that’s a function of the legislature to engage in because the legislature was not attempting to adjudicate any facts however I think that to come over for a Bryant case is simply an applicable that was a case where the court said contracts that were entered into specific contracts have now become impossible to perform so I believe that that case doesn’t apply to the facts of this case there’s also a challenge to the piece of legislation.
00:30:34.141 — Violates the federal preemption doctrine and it’s a part that interferes.
00:30:39.051 — Let me address that quickly I think there’s an easy answer it’s simply not true to say that s.p.l. p. violates the federal Clean Water Act because it’s an accepted test but you see a ministers of clean water act on a national basis was also accepted in approved for this project by the Corps of Engineers which implement Section four hundred four of the Clean Water Act on a national basis it was approved by a college when ecology promulgated regulations it was approved by a called you for this project and ecology interprets and applies the federal Clean Water Act in the state of Washington so all of those authorities.
00:31:15.021 — Clearly hold that s.p. LP is consistent with the Clean Water Act And I don’t believe it’s true that there’s any conflict at all between us and the dictates of the Clean Water Act.
00:31:26.131 — It seems as if the use of the words reliable method are valid and reliable I guess is is close to the focus here is that inaccurate however based on the fact that it is widely accepted that it is in fact valid and rely.
00:31:42.171 — Well I think what I think what the legislature is trying to do is cure a problem that it perceived from the board’s decision that the board essentially casts some doubt on the validity of s.p.l. the ecologies ability to use it so it’s our interpretation of that statute that the letter legislature is trying to make it clear that that was an error that this is a valid and reliable test and you simply can’t throw it out typically in this case where the reasons why you’re throwing it out are entirely unrelated to the s.p.l. the process itself.
00:32:13.251 — What I’d like to address now because it sort of covers a lot of the issues here is the substantial evidence standard itself because what a.c.c. has done in its briefing is essentially try to avoid the substantial evidence standard by casting its arguments as legal or humans the best example of that is while a.c.c. says it’s only challenging a few issues they’re actually challenging the ultimate decision reached by the board and by ecology and by the board which was there is reasonable assurance that water quality standards will not be violated now by casting that as a legal issue that a.c.c. avoids discussing all of the contrary evidence to its position and its stead only talks about evidence as favorable to its case now that the truth of the matter is reasonable assurance as a mixed question of law in fact and under this court’s decision in Schubert’s as the Department of college mix the factual component of mix questions has to be reviewed on the substantial evidence standard so in reviewing a c.c.s. arguments I think it’s important to note that what they’re asking the court to do on many of these questions is simply to reweigh the evidence that they are choosing their favorite witness on a particular topic and saying essentially if you believe that witness then the board made a legal error but this is not a purely legal determination it’s a factual determination but about condition sixteen.
00:33:36.141 — Portillo.
00:33:37.791 — Obtain a water right to use water as proposed mitigation into the low flow.
00:33:42.471 — Plan.
00:33:44.111 — Or I think if I can jump to the crux of that issue.
00:33:48.321 — It’s essentially that.
00:33:50.941 — The port is not using the water the ports system is designed to take out certain water and detain it for high flow purposes to release it slowly to mitigate high flow problems and to mitigate low flow Pam if you had too much more water than you used part of a water a golf course or something like that would you be using it then yes and we’ve acknowledged that in our briefings that you that would require you’re not using it if you put it back into the stream exactly it’s taken out it’s put back at exactly the same time in the same quantities that it was taken out so it’s simply not it’s not a use of the water and the what of the section ninety five ninety fifty four zero two zero zero subsection of eleven talks about water management program as distinguished from subsection one which talks about uses of water and there’s I think the flaw in the board’s argument and they see season cases argument is simply no rational way to distinguish between mitigation detention of water for high flows and low flows so there’s no reason to conclude that the low flow requires a water right in normal storm water management doesn’t.
00:35:03.891 — Stand down I want to ask you a question I didn’t see it in Preview but it seems as if you’re posing Council is it’s almost I’m standing in the shoes of what they consider to be senior water right holders.
00:35:17.321 — And I don’t see any any challenge to their standing to assert other person’s water rights is that because there is some sort of tourney general.
00:35:27.381 — Scheme that allows them to stand in the shoes of other moderate holders I’m not aware of anything that would allow that I think that everybody acknowledges.
00:35:35.811 — That even if the port were granted a water right here it would be a junior water right to other water users so I don’t think that that’s necessarily an issue that needs to be resolved but.
00:35:46.561 — Thank you thank you Mr Reavis them as.
00:36:01.331 — It.
00:36:10.621 — May please the court My name is John Mark euro insisted attorney general and I represent the department ecology in this appeal.
00:36:17.681 — When the court conducts its thorough review of the record and looks past the rhetoric of counsel you will be left with but one conclusion there is a reasonable assurance that the ports project will comply with applicable water quality standards ecology makes a reasonable assurance determination by first determining whether through parts of the evidence the project can and will meet water quality standards and by identifying any uncertainties that are raised and second by addressing those uncertainties by imposing conditions that reduce or remove the uncertainty.
00:36:48.531 — In some ecology makes a determination if the project is feasible imposes conditions to ensure the project is properly constructed and then has its enforcement authority to require compliance where necessary.
00:37:01.131 — As a record demonstrates in this case ecology had reasonable assurance with respect to the hits of Daniel evidence to make a reasonable Short attempts to terminations as to the ports project and its compliance with water quality standards the conditions requiring the port to invite for additional submittals are prescriptive in nature and simply require refining of the proposal already provided to ecology during the process in addition as requests as permitted under section four and when d. of the Clean Water Act ecology impose monitoring requirements in the for when certification that monitoring data will be used to determine whether the port is in fact complying with water quality standards to determine whether the project is having the anticipated environmental impacts and to evaluate the effectiveness of the required mitigation.
00:37:47.741 — If the court is not in compliance and I think and police are arguing however those monitoring.
00:37:54.701 — Conditions if you will doesn’t suffice that you shouldn’t have issued this certification if in fact you have to monitor to ensure that it’s going to be on your honor as I stated Section four when de specifically permits or share requires monitoring and the important thing to remember about a foreign certification as with many other permits it’s forward looking in nature and so there’s an element of prediction that going into the decision in order to determine whether that prediction is accurate ecology imposes monitoring and impose in a variety of different permits that issue to for one certification it’s quite important to have the monitoring to determine whether those predictions were accurate and been to be able to either enforce where necessary or apply adaptive management to adjust the different aspects of the proposal will come into compliance with water quality standards.
00:38:44.981 — For the board’s ruling in this case create several issues to college regarding how it conducts its business now for instance the board’s authority to limit the.
00:38:54.561 — Limit the full implementation of an ecology regulation the board’s ability to override ecologies technical expertise when there is no evidence in the record to support that and the scope of review of the board’s review of ecologies decisions and I’m going to focus my argument on two issues raised in ecologies briefing and the first is the board’s limitation of the full use of the water fix ratio study and the board’s rewriting of the field criteria stablished by the college’s technical expert could you refer to them to as to which condition those I’m sorry it’s conditions I think most likely five and seven.
00:39:28.842 — As to condition five to four when certification provides that the port can not discharge.
00:39:35.751 — Storm water from new impervious surfaces without conducting a site specific water quality study which is also referred to as a water effects ratio study and which is provided for ecologies water quality regulations Now the purpose of the study is to evaluate the quality of the storm water runoff and the receiving water to determine whether the numeric water quality needs to be adjusted and that ratio serves as a local translator taking into account local conditions which is in contrast to the criteria themselves which are developed using laboratory water.
00:40:06.920 — Now the results of the study will be used to determine whether a specific effort limitations need to be imposed ecologies stormwater discharge permit the N.P.T.’s permit.
00:40:18.220 — Ecologies testimony of Kevin Fitzpatrick and the board found in its order as well if the study indicates that an adjustment is needed that does not result in a lessening of the stringency of the water quality standards despite that testimony.
00:40:33.250 — College g. determined to the board impose a condition limiting the full use of the water fix ratio study and in doing so committed an error of law first ignored invalidly problem data regulation by the Department of college and that regulation was not challenge below on its face or as applied rather the board on its own initiative limited or created an exception to that regulation Secondly the a political water quality standard does not impose that such a limitation and in fact require permits the full use of the water fix ratio studies results and finally the e.p.a. which oversees the Clean Water Act in approves of ecologies water quality standard has recognized the use of the water fix ratio study to adjust its generic water quality criteria.
00:41:19.240 — The board community error of law by if you’re in the terms of ecologies regulation and condition five should therefore be stricken as to the field criteria which is in condition seven the poor community err in that regard by rewriting ecologies fill criteria developed in the for one certification the purpose of the fill criteria is to confirm that no contaminated fill will be used in the construction of a third runway.
00:41:43.771 — Condition of the for when certification sets forth stringent protocols that the poor must observe in selecting fill sites and then fill Merrick fill a criteria for the testing of that fill to ensure it’s that is not contaminated now despite the unrebutted evidence presented by ecology establishing that the field criteria is protective of water quality standards the board ignored that testimony and substituted its own judgement for ecologies technical expert.
00:42:11.451 — There is no evidence let alone substantial evidence in the record to support the board’s criteria the board developed as and as this course recognized an ecology versus beauty number one of Jefferson County ecology staff does have knowledge and specialized knowledge and expertise in technical areas it is charged overseeing and the deference that should be given in this case especially in a case such as this where there is no evidence in the record to support the board is that deference should be given to ecologies technical experts coming in reaching a technical determination if there had been evidence or substantial evidence would the board be able to substitute its judgment for that of the Department of Ecology who your honor.
00:42:54.090 — To the extent that there is evidence in the record in the board is weighing the evidence before it is choosing which is more credible evidence yes in fact it can substitute its judgment but with respect to the film criteria there was no evidence there was no testimony by anyone that stated that the film criteria was not going to protect water quality standards and the testimony that was presented with respect to the field criteria was that it would be protective and yet the board deviated from that testimony and crafted its own fill criteria.
00:43:23.700 — There’s no record today there’s no evidence in the record to support the board’s condition number seven ecology requests that that condition be stricken in the original criteria in the for when certification be reinstituted.
00:43:37.760 — As demonstrated by the record there is reasonable assurance that the porch project will comply with water quality standards this court should strike the board’s conditions limiting the use of the water fix ratio study rewriting the bill criteria and rejecting the use of the s.p.l. pee test procedure in those conditions are not supported by substantial evidence for the law and finally the court she concluded there is no legal support for the board’s modification of the noble scope of review required by the a.p.a. and the board’s own rules thank you before you stand.
00:44:09.270 — It’s a college’s position in this project goes forth forward with the reduced number of conditions through to advanced in your argument that.
00:44:20.440 — The applicable water quality standards in the state will be met Yes Your Honor the what the board did was added conditions on top of ecology reasonable assurance determination if those conditions are removed the original determination as to reasonable assurance stands.
00:44:37.340 — So you you agree with Mr Rivers that.
00:44:41.370 — The condition of the water will be just as good as it was before they built this third runway Well Your Honor you need to take into I do agree with Mr Rasmussen the point on that and that regard to you I mean your department Yes the problem because he does and as Mr Revis pointed out and I think it’s important to note is what we have is a highly modified system for stuff you have a farm to keep wetland that has been farmed over the years and highly degraded and that is part of the area where Miller Creek runs Miller Creek will now be put back into a more natural channel for significant benefits that will be brought to Miller Creek both in terms of restoration activities to the creek itself as well as the removal of homes and certain activities that cause additional pollution such as runoff from fertilizers to these existing wetlands that are in there and I understand it’s about twenty acres of them and yes they do they affect the currently affect the quality of the creeks in a.
00:45:41.950 — Positive way.
00:45:44.780 — To Stanford the wetlands are functioning and they should have some water quality benefit because that’s the nature of a wetland the concern that it will be part of the some of the conditions here of the wetlands have to be restored the one through be taken.
00:45:59.340 — Yes some of the wetlands will be restored some wells were going to be restored down in Auburn a quarter or ways away from it and looking at what’s required as far as the Clean Water Act certainly there is in Basin mitigation if the the court looks at the Natural Resources mitigation plan it Wolf and the testimony of ecologies expert Eric Stockdale it will be for you to find that in fact the mitigation that’s in Basin replaces the wetland functions and values with the exception of the avian habitat which raises a concern for Air airline safety bird strike hazards those functions and values are being replaced in Basin and there’s the addition of the Auburn mitigation which will provide the avian habitat.
00:46:42.350 — But he does it but the burn restoration won’t affect the quality of the water in these creeks wlan Well not in the basin but it will be within the watershed so to the extent that there’s a watershed benefit a larger Watership Yes and if you look at ninety seven before it specifically allows for ecology to consider an out of basin in watershed resource inventory area mitigation plan but does not require ecology to accept that plan unless it determines that the plan will provide equal or better functions and values and in fact ecology did review very closely the Auburn plan and found that it would meet those standards as well as the scientific standards that govern what when scientists both low flow it’s been an issue in the in the a put your opposition says that ecology zone expert didn’t really agree they’re talking about Mr Kelly Whiting who also work for well to look for King came out with your response to them when Mr Whiting provided a review of the low flow plan for ecology because the college is not having an expert in that area and Mr Whiting had several comments with respect to the plan but he did find that the plan was going to be feasible it needed to be refined to determine the exact impact and in their brief they said that the the validation report for the Des Moines creek was not even done at the time of the hearing has it been done since then or what are we to make of that I believe that the validation report was completed just prior to trial and I honestly don’t recall specifically to the extent that it has been provided it’s been reviewed by ecology I believe I do not know if that’s in the record and I might only be speaking from sort of a scattered memory on that I was referring to page forty three and forty five of their brief.
00:48:25.230 — Their reply pre.
00:48:27.200 — I’m sorry I don’t I don’t have an answer to that thank you Ms Martin throughout history Glick you have seventeen minutes.
00:48:40.501 — Right I want to start with some comments made by smart Yoro she kept on emphasizing the need for deference to a college G.’s experts but she did not name any experts the reason for that is because by and large the boards findings are actually based not just on testimony from a.c.c. experts but on testimony from a college expert they consistently in their depositions some of which were incorporated into the record and in their testimony before the board actually supported the positions that a.c.c. took and that the board all to mit lead hit on its findings if you look at the testimony for example and the documents that we have from Chung Dr Chung ye of the Department of Ecology and from Peter Cometti who’s ecology senior toxics clean up.
00:49:32.511 — Engineer they support that testimony that evidence supports the board’s findings with regard to the numeric field criteria that’s why the board made the findings it did because it was deferring to a college these experts not if if if you will to a college’s political decision and that testimony that evidence is in the record for example if one looks at the record one seven three five seven it’s one of the seminal memoranda from Peter commit the senior toxics cleanup engineer talking about what’s needed for the sole criteria and that’s the kind of evidence the board relied on so in a sense the the deference debate is almost beside the point because the colleges expertise is what the board did for life.
00:50:19.941 — Support of course by a.c.c. testimony as well I did want to answer a question that the chief justice directed to my colleagues and that is where does the storm water from the runways go my understanding of the record is that the storm water from the runways does not go to the industrial waste water system it goes to the runoff that goes into the discharges that goes into the streams that’s the record.
00:50:47.341 — There may be other things that part of the industrial waste water system but not the massive runoff from the runways and in addition to that I think it’s important to point out that it go from the runway to.
00:50:59.181 — How does it get down and there are points that collected and then it is discharged into the streams at various discharge points I think one in particular is focused on in the board’s decision I may get the number wrong but if something like s.t.s. three I believe is one that it says is a discharge point that’s exclusively storm water runoff of these underground retention No you’re out of these are well off their baby under underground return ssion involved in collection of the storm water but ultimately the storm water for.
00:51:32.071 — On the runways ends up in the streams out may be retained in some places to level the peaks but it ends up in the streams not an industrial waste water system or a treatment as as I think was suggested.
00:51:45.331 — And it’s also important in any year saying that any treatment of the runoff from the runway Well that’s one of the issues in the case is what kind of treatment there will be and as you know the board called for more treatment than what had been proposed and.
00:52:03.741 — That has to do with the question of whether we go from the menu of treatment that’s limited to what it’s called For example bio swales essentially a grass lined ditch or whether we go to actual treatment with active filters and sand filters and that sort of thing the board required more but that’s that’s the kind of treatment that we’re talking about it’s relatively limited and of course we’ve raised the concern that the way the board’s decision is written it requires more but allows a college ie the leeway to later take it away in a subsequent N.P.T.’s permanent that’s one of the issues where we’ve disagreed with the board and said it wasn’t tight enough but I want to distinguish something here the low flow mitigation water is presumably going to be gathered from storm water runoff also that is gathered as I understand it in separate vaults and that water there is a suggestion will be treated but one of the issues before the board was how how are you going to do this you’re going to hold this water for six months or more and then put it out and in these streams that require life support because of all the the revamping of the watershed that’s been done it’s one of our experts called it an anorak sic slug of dirty water and that’s that’s one of the issues that wasn’t really resolved before the board how that water that’s put in on low flow would be treated as long as I’m talking about low flow augmentation on that separate system to collect storm water and discharge.
00:53:32.281 — It in perpetuity that separates at set times I want to emphasize that we think that issue is clearly resolved by the water code it’s a beneficial use the law is clear that when you collect water and then discharge it use it for this kind of purpose that is maintenance of habitat that is by statute we’ve cited the the portions of the statute in our briefs that is a beneficial use and that should be the end of the discussion it’s very different than a storm water system for example that relies on infiltration ultimately then ends up back on the groundwater as a base flow or some other non government system for release in other words there is no requirement that you release in perpetuity there is no requirement that you release its Pacific rates you’re just collecting storm water to level off the peaks so that streams don’t get scoured the beneficial use makes the difference and that’s why the water right was required here by the board if if the idea is that there ought to be an exemption for this kind of beneficial use there is a way to do that in the legislature can it has been a number of instances for example we’ve pointed out in our brief in the last legislature there was an exemption created I believe for small irrigation reservoir us.
00:54:52.451 — Farmers collect presumably storm water some kind of water and then release it for irrigation where the legislature created an exemption from the water right requirement in the statute no question there they were using it for irrigation purposes that’s clearly right but the port does a lot of things but it has it’s not farming yet your honor so we’re we’re we’re looking at something here that’s very different and must be done in perpetuity to give life support to these streams and that’s why I think the mitigation I mean that’s just it’s making sure that the impact on the runway doesn’t have an adverse effect on this on the streams and it it’s simply trying to replicate what would happen in nature.
00:55:32.291 — If it weren’t for these runways in there and so were the two previous mitigation plans for augmenting stream flow both of which ecology and the port acknowledged required a water right somehow when we got to this one all of a sudden the water right requirement was dispensed with until the board said no you cannot do that but the fact that it’s a mitigation tool in one sense doesn’t take it outside of the water code because that’s what the law is in the statute is clear and there’s no exemption for this I did want to emphasize that water quality in a narrow view will not be maintained if the board’s decision is not upheld that’s that’s absolutely critical here the board rules out the s.p.l. p. process and I want to emphasize that the board rules out not the tasked by itself but the process that was not a process that was crafted by ecology experts the record on this is uncontroverted that it was the result of an e-mail exchange between Ms Markey Yoro and an attorney for the port over the weekend before the certification was issued for the second time with the changes that the port had demanded So this is not an expert drafted process it’s a process that was cobbled on it’s called the work plan in the actual ecology order and it will result in denigration of water quality as the board found board Yes you know could have spent one hundred pages just on that part of it’s decision we’ve given you the four pages the board did spend keep in mind the board decision is already over one hundred and fifty pages.
00:57:09.911 — So sure it could have gone into more detail on lots of things but but it it gave the reasons and they’re all good and valid reason if the board decision is not up held then this idea of a water affects ratio study will be allowed which will also denigrate water quality and I think the argument from ecology here has kind of danced around the issue.
00:57:31.900 — All the board said was you can do a water effects ratio study but you can’t do it if you’re going to diminish the standards that would otherwise apply and it said that because it was frankly concerned and it gives the history of why about the ability of the Porton ecology actually sample accurately and get a handle on pollution and ascertaining the level of pollution at the airport that history is given very clearly in the board’s decision we’ve also pointed out in our briefing that there are prerequisites to using a water affects ratio study to change water quality standards to lessen them and those prerequisites are not met here in any event so the board’s decision made sense you can only do that to enhance habitat not to essentially.
00:58:19.170 — Try to vary the standards for example for the convenience of the port.
00:58:23.870 — If the board decision is not upheld the protections that I’ve described will basically go away and we don’t believe the water quality will be the same afterward and that’s why my clients are here Your Honor it’s water right conditions again.
00:58:45.670 — Pushed towards arguing this is just management of the water and beneficial use Give me your.
00:58:53.120 — Best you probably have already give me and that shell your best argument why this is a beneficial use rather than just management of water well it may be I’m sorry right it may be management in some sense but the statute says and I believe it’s and we give the cite nine hundred fifty four describes what beneficial use is and beneficial use is capturing the water managing releasing it whatever verb you want to use for the purpose of and in this case maintaining an Hansing habitat for example maintaining the viability of the stream that’s defined by statute as a beneficial you’ve got about ninety zero three to fifty you know what I believe Your Honor that that articulates the permit requirement I think a nine hundred fifty four has a discussion in it of what beneficial use is defined as but but they both work as young as fish and water used for fish and wildlife main and sin and cement and preservation of environmental anaesthetic values is that what you are yes your honor and you know that I don’t see how it could not Your Honor it’s you could say that you’re doing it as mitigation but that’s really wordplay on the part of the port it’s mitigation to maintain an enhanced all of those aspects that you just read and it’s for no other purpose the fact that it is mitigation does not take it outside of the statute and if it did there would be I think.
01:00:23.460 — Stanch a loophole created in the law and an exemption created it may be a good exemption we don’t think so but if that exemption is going to be created it should be done by the legislature not by the port or a college or this court frankly so is it your position that the failure to know water right.
01:00:41.990 — Would result in degraded water that it would result in some doubt down the road maybe not today but tomorrow and down the road about the ability of the port to maintain that low flow augmentation plant in perpetuity not been any senior water right holder has complained that this plan would would infringe on current water rights that are that have been.
01:01:08.410 — Allocated or determined Well not today your honor but its plans been in the works for how many years well things like ten twelve fifteen I don’t you think a senior water right well there would come forward and say wait a minute you’re here you’re infringing on my water right I mean I’m a senior holder and your plan here is going to.
01:01:28.350 — Run on water that I’ve got a wife right to keep in mind around or up until very recently the plan was to get a water right for the various zigged and zagged augmentation plants at the port had this is a relative newcomer and one of our issues of course is that it was brought before the board with an incomplete report there were literally chapter headings without text in them for the ports this particular port low flow augmentation plant so the fact that no one came forward twelve years ago really doesn’t mean a thing because this plan wasn’t on the table that this is a relatively new plant introduce any evidence of any any current senior water right now the record reflects that that the the streams are closed to conserve to further consumptive uses but there is no record that anyone has complained there is a record though about the concerned that the port will not be able to maintain this in perpetuity without the water right to do so and.
01:02:24.801 — If you look at it from the point of view of the code the code is saying if you have the beneficial use you must get the water right it doesn’t say only if someone complains well I’m going to understand how your time I mean you it’s your same one you have to have a lot of right.
01:02:42.071 — And it could well but how do you tie that to water quality in the end you have to make that tie or else it’s an arbitrary or caprices additional can condition that’s imposed by the board what’s there to the extent that to the extent the water right is necessary to make sure the port can provide that flow in perpetuity and it is then it is tied to water quality remember that section four a one day of the Clean Water Act says that you don’t just look to the Clean Water Act But you must also look to other state laws that would apply when you’re doing your review and your certification and this the water code is certainly another state law I did want to address before my time is up the questions that were asked about the Army Corps what is before this court is this state’s review of this state certification and clean water order the army corps decision is not before this court I could give you and I think some of the flavor of that is in our briefs and Professor Rodgers briefs all the reasons the Army Corps made the wrong decision but even Judge rusty recognizes and her decision at page fifteen and this is critical that just because the Army Corps doesn’t agree with the p.c.h. b. doesn’t mean the p.c. has to be decision is gone in fact she says it may mean that the port is going to have to go back to the corps and say help us make this consistent the port may have to go and comply with some of the state requirements anyway because the state requirements have independent life in force and they are not reviewed based on whether or not the Army Corps like them incorporated or agreed with them that’s page fifteen of Judge Rothstein’s decision and that’s very important here I also wanted to address because I think my time is Short the s.p.l. people process.
01:04:24.861 — Question And I think there was a question asked about we had said it was too blunt an instrument centrally what the board said the record was very very complete on that issue and very persuasive to the board because the record came from the ports own evidence the port had already been importing filled to the site based on a permission given by a colony that it could stockpile fill at the site and it was using already the s.p.o. p. process to do so saying well this is what we’re probably going to have to do in the end so we’ll do something like this now and therefore we had the test runs trial runs many of them and what the record showed was that the s.p.l. p. was too blunt instrument you had situations for example Phil brought in from the Black River Kwai from other areas where the fill did not meet violated the numeric field criteria the limits on pollution it was then tested on s.p.l. pvp and it passed and the reason that passed was because the s.p.l. Pete process that was used didn’t go down low enough to a den of five contaminants of concern at the prohibited levels so the board didn’t just have to take the word of a c.c. or case the board could look at the documentary evidence and deposition testimony from the ports own experts and say well this process is not giving us reasonable surance it’s got problems and that’s even apart from the points raised by Professor Rogers and his family has briefed concerning us built the you time today thank your honor we will oversee a recess and fifteen minutes past.
01:06:51.124 — This is t w Washington’s public affairs television network.