TagACC(1521)

Airport Communities Coalition ("ACC") advised the Board that it has filed a Petition for Review of the Board's Order granting ACC a stay of the Department of Ecology's § 401 Certification for the Third Runway Project. ACC seeks direct review in the Court of Appeals. To that end, ACC asks the Board to issue a Certificate of Appealability for the Stay Order. The Board should deny ACC's request. The Board cannot issue a Certificate of Appealability for two reasons. First, under the Administrative Procedure Act ("APA"), RCW 34.05, the Board's Stay Order was not an appealable "final decision." Second, under the Board's enabling act, RCW 43.21B.320, Thurston County Superior Court is the only forum with jurisdiction to hear ACC's Petition for Review of the Board's Stay Order. AR 004649 ECOLOGY' S MEMO OPPOSING ACC'S 1 ATTORNEYGENERALOF WASHINGTON APPLICATION FOR CERTIFICATE OF EcologyDivisionPO Box40117 APPEALABILITY OF THE BOARD'S Olympia,WA 98504-0117 ORDER ON MOTION FOR STAY ORIGINAL FAX(360) 586-6760 II. ARGUMENT A. Procedures for Obtaining Judicial Review. In RCW 34.05.518 and .522 the APA sets forth the procedures for obtaining direct review in the Court of Appeals. For non-environmental board decisions, once a petition for review is filed in Superior Court, a party has 30 days to file an "application for direct review" by the Court of Appeals. RCW 34.05.518(1). In 1995, the Legislature added specific provisions applicable to final decisions of"environmental boards." See RCW 34.05.518(3)-(6) and amendments to RCW 34.05.522.1 The Pollution Control Hearings Board is an "environmental board." RCW 43.21B.005.…

Enclosed please find a copy of the cover sheet for the Wallula Power Project Site Certification Application. This cover sheet was inadvertently omitted from Exhibit D to the Second Declaration of Michael P. Witek in Support of ACC's Motion for Summary Judgment Regarding the Absence of a Water Right for Third Runway § 401 Certification. Also enclosed, please find a copy of 50 C.F.R. §402.02, which is cited in ACC's Reply. Thank you for your consideration of the above. Sincerely, /') /.. Michael P. Witek MPW:rp encs cc: Jay J. Manning / Gillis E. Reavis w/encs via FAX Joan M. Marchioro / Thomas J. Young / Jeff Kray w/encs via FAX Linda Strout / Traci Goodwin w/encs via FAX Roger Pearce / Steven G. Jones w/encs via FAX Richard A. Poulin w/encs via FAX Rachael Paschal Osborn w/encs via FAX G:LUACCPCHBCOTTINGHAM2-012302 AR 004644 1500 PU6ET SOUND PLAZA 1325 FOURTH AVENUE SEATTLE, WA 98101-2509 P.O. BOX 21846 SEATTLE, WA 98111 3846 PH: (206) 292-1144 FX: (206) 340-0902 EMAIL: hf@helseli.corn "-'_ JAN 2 4 2002 ENVIRONMENTAL APPLICATION FOR SITE CERTIFICAT_GS OFFICE "-"'":,- WALLULA POWER PROJECT VOLUME 1 '-......-" BY: _rALLULA GZIgERA TIO N,ttt SUBMITTED TO: State of Washington Energy Facility Site Evaluation Council Project Developed By: Newport Northwest LLC ,I-'-" AR 004645 JAN 2 4 2002 ENVIRONMENTAL HEARINGS OFFICE FWS, Interior/NOAA, Commerce §402.02 listed species or critical habitat Bio- (d) actions directly or indirectly logical assessments are required under causing modifications to the land, section 7(c) of the Act if listed species…

On September 4, 21 and 24, 2001, four separate appeals were filed with the Shoreline Hearings Board ("Board") requesting a review of different aspects of a proposed destination resort in the City of Westport (Westport). The project proponent is Mox Chehalis LLC. Some of the appeals challenge the Shoreline Substantial Development Permit issued by Westport. Some of the appeals challenge the denial of the Conditional Use Permit by the Department of Ecology (Ecology). These appeals were filed by Ecology, Westport, Mox Chehalis and the Port of Grays Harbor (Port). On October 9, 2001, the Board consolidated these four appeals. On December 4, 2001, the Board granted Intervention status to Friends of Grays Harbor and Wildlife Forever of Grays Harbor (collectively referred to as Intervenors). SHB 01-023, 01-024, 01-025 and 01-026 1 PRE-HEARING ORDER AR 004637 A pre-hearing conference was held on January 24, 2002. Kaleen Cottingham presided for the Shoreline Hearings Board. Appearances for the parties were as follows: 1. Charles B. Roe, Jr. and Barnett Kalikow, representing Mox Chehalis LLC; 2. Jeffrey S. Myers, representing Westport; 3. Art Blauvelt, representing the Port; 4. Andrew Fitz, representing Ecology; and 5. Knoll Lowney, representing the Intervenors. Based on the conference, the following pre-hearing order is entered: I. HEARING At the request of the parties, the original hearing date has been cancelled to allow the parties to pursue settlement discussions, in particular to gain acceptance for a proposed settlement agreed to by some but not all of the parties. This proposed settlement…

On January 8, 2002, the Airport Communities Coalition (ACC) and Citizens Against Seatac Expansion (CASE) filed, with both the Thurston County Superior Court and the Pollution Control Hearings Board, an Application for Direct Review by the Court of Appeals and a Request for a Certificate of Appealability from the Board.] Pursuant to the statutory provisions governing the direct review of final decisions of environmental boards including the PCHB, ACC and CASE cited detrimental delay, fundamental state-wide or regional urgency, and the19 significant precedential value of the proceeding as factors under RCW 34.05.518(3)(b) t ACC and CASE intended their Application for Direct Review and Request for a Certificate of Appealability to apply both to the Port of Seattle's Petition for Review in Cause No. 01-2-02386-9 (filed with the Superior Court on December 31,2001), and to their own Petition for Review in Cause No. 02-2- 00029-8 (filed with the Superior Court on January 8, 2002). When the Port raised a question as to whether this was so, ACC timely filed a second Application for Direct Review and Request for Certificate of Appealability on January 16, 2002, directed solely to securing direct appellate review of Cause No. 01- 2-02386-9. ACC'S & CASE'S REPLY IN SUPPORT OF HELSELL FETTERMAN LLP Rachael Paschal Osbom APPLICATION FOR CERTIFICATE OF 1500Puget Sound Plaza Attorney at Law APPEALABILITY - 1 1325Fourth Avenue 2421 West Mission Ave. ORI61NAL Seattle, WA98101-2509 Spokane, WA99201AR 004627 supporting direct review. See, Application at 5-8, citing RCW 34.05.518(3). In plain terms, ACC and CASE…

On January 8, 2002, Airport Communities Coalition (ACC) and Citizens Against Airport Expansion (CASE) filed with the Pollution Control Hearings Board (Board) a request for a Certificate of Appealability to allow for direct review by the Court of Appeals of a petition filed by ACC in Thurston County Superior Court (Cause No. 02-2-00029-8). Subsequently, ACC and CASE filed a second request for a Certificate of Appealability for direct review of a petition filed earlier by the Port of Seattle (Port) in Thurston County Superior Court (Cause No. 01-2-02386- 9). The requests for these Certificates of Appealability are opposed by the Port and the Department of Ecology (Ecology). The Board, comprised of Kaleen Cottingham (presiding) and Robert V. Jensen, has determined it does not have the authority to issue these Certificates of Appealability, although PCHB 01-160 1 DENIAL OF CERTIFICATES OF APPEALABILITY AR 004620 the matters presented clearly meet the criteria for such direct review. The Board's determination is based on the following materials submitted by the parties: 1. Application for Certificate of Appealability of Board's Order on Motion for Stay, dated January 8, 2002, filed by ACC and CASE, along with the accompanying attachments and exhibits; 2. Application for Direct Review and Request, Pursuant to RCW 34.05.518, for Certificate of Appealability (Thurston County Cause No. 01-2-02386-9) dated January 16, 2002 filed by ACC and CASE; 3. Letter from the Port's attorneys dated January 16, 2002; re: Port of Seattle's Opposition to ACC's RCW 34.05.518 Application for Certificate of Appealability of…

4, 2002, by the Airport Communities Coalition (ACC). The summary judgment motion asks the Board to find that Ecology's §401 certification is not based on a reasonable assurance the Port of Seattle (Port) has legal means to permanently mitigate the low flow impacts of its proposed Third Runway expansion. Specifically, ACC asks the Board to grant summary judgment for resolution of stipulated issue no. 9(a) which reads as follows: "[m]ust the Port obtain a water right to implement the low stream flow conditions in the certification and if so: (a) is there reasonable assurance that §401 and applicable water quality law will not be violated in the absence of such a water right." PCHB 01-160 1 DENIAL OF SUMMARY JUDGMENT AR 004617 The Board, comprised of Kaleen Cottingham, presiding, and Robert V. Jensen, heard oral arguments on the motions on February 4, 2002, and reviewed and considered the following pleadings and documents, together with all attachments thereto, filed in support and in opposition to the summary judgment motion: 1. ACC's motion and memorandum for summary judgment regarding the absence of a water fight for Third Runway §401 Certification; 2. CASE's response to ACC's motion for summary judgment re: necessary water right; 3. Ecology's response to ACC's motion for summary judgment regarding the absence of a water fight; 4. Port of Seattle's memorandum in opposition to ACC's motion for summary judgment regarding the absence of a water fight for Third Runway §401 Certification; and 5. ACC's reply on motion for summary…

IN AND FOR THE COUNTY OF TttVRSTON ) AIRPORT COMMUNITIES COALITION, ) ) CAUSE No.01-2-02386-9 Appellant, ) (PCHB 01-160) )

PreFilo Testimony Iof '_ _ _ ?002 W. A. Rozeboom, M.B.A., P.E. ENVIRONMENTAL HEARINGS OFFICE INDEX TO EXHIBITS A. Curriculum Vitae of W. A. Rozeboom B. Letter dated November 24, 1999 from Northwest Hydraulic Consultants, Inc. commenting on the stormwater management plan for the proposed 3_ runway C. Title page and pp. 227 - 240 of the Port of Seattle's March 10, 2000 responses to public comments. The enclosed pages respond to the comments in Exhibit B D. Letter dated February 15, 2001 from Northwest Hydraulic Consultants, Inc. to the U.S. Army Corps of Engineers, with comments on stormwater, hydrology and hydraulic aspects of the 3rdrunway proposal E. Title page and pages III-74 - 84 of Port's responses to the letter from February 15, 2001, listed above as Exhibit D F. Letter dated June 25, 2001, from Northwest Hydraulic Consultants, Inc. ___ I to the U.S. Army Corps of Engineers, with follow-up comments on the stormwater, hydrology, and hydraulic aspects of the 3 rdrunway proposal G. Introduction and overview pages from the 1998 King County Surface - Water Design Manual cr_ (_) H. Letter dated December 18, 2001, from Northwest Hydraulic Consultants, Inc. to U.S. Army Corps of Engineers, which outlines inconsistencies in the Port of Seattle Documents I. Page I and pages 22 - 25 of the Section 401 Certification issued on September 21, 2001 J. Cover pages and Table 3-1 on page G-23 of the 1996 FEIS Appendix G by Montgomery Water Group, a summary of land use…

The Board's Pre-Hearing Order in this case allowed each party to file a pre-hearing brief no greater than 30 pages in length. 1 To ensure that no party took unfair advantage, the Board's Order18 also explicitly required that: The standards of General Rule 14 adopted by the Supreme Court regarding paper size and formatting shall apply to all papers filed with the Board. In addition, the parties shall not manipulate document fonts or line spacing to attempt to crowd more words on each page. The font size shall be 12 points and the line spacing shall be double, except when blocking a22 quotation. AR 002111 Pre-Hearing Order at 9. The Pre-Hearing Order states at p. 9: "Pre-hearing briefs are limited to 30 pages in length, including attachments." ACC'S MOTION TO STRIKE PORT'_ t _:, _, '_IglLLLL FETTERMANLLP RachaelPaschalOsbom PREHEARING BRIEF - 1 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 In compliance with the Board's Order, ACC and CASE filed a joint brief which was 60 pages in length (30 pages per party). That brief complied in all respects with the Board's requirements. To achieve that compliance, ACC and CASE had to pare down the submission from pages and, in doing so, was forced to eliminate key arguments and points critical to ACC and CASE's concerns, respectively, in order to meet the page limitation in the Pre-Hearing Order. In contrast, while it is not numbered that way, the…

EXPANSION, ) ECOLOGY MANAGERS AND CR 30(b)(6) ) DESIGNATED WITNESSES Intervenor, ) ) v. ) s ) STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) ) On March 19, 2002, at 1:00 p.m., during the hearing on the merits, the Board entered its ruling on appellant ACC's Motion To Publish Depositions of Ecology Managers and CR 30(b)(6) Designated Witnesses. Kaleen Cottingham presided for the Board. The parties were represented by Kevin Stock and Michael Witek (for ACC), Rick Poulin (for CASE), Gillis Reavis (for the Port) and JeffKray (for Ecology). Kim Otis provided court-reporting services. The following reflects the decisions made after hearing from all parties: RULING ON MOTION TO PUBLISH DEPOSITIONS No deposition will be admitted carte blanche. PCHB No. 01-160 1 ORDER GRANTING APPELLANT'S MOTION TO PUBLISH DEPOSITIONS AR 002108 Publication of depositions requested under Rule 32(a)(2) will be conditionally granted for general use. This applies to depositions for: Tom Fitzsimmons, Gordon White and Ray Hellwig. Admission will also be subject to the conditions stated below. Publication of depositions requested under Rule 30(b)(6) will be conditionally granted but only for those matters specifically designated. This applies to depositions for: Ann Kenny, Erik Stockdale, John Drabek, Kevin Fitzpatrick and Peter Kmet. Admission will be subject to the same conditions. In the current case, the submission of any other depositions must also meet the conditions, which are stated as follows: 1. Admissibility - An introductory summary or statement must be attached…