TagACC

September 17, 2002 Z Limited Liability Part .... hip Peter.J.E._li.cr,_ Atto_{_NGS OFFICE Mr. Roger Pearce Ms. Joan Marchioro Foster Pepper & Shefelman Mr. Thomas Young 1111 Third Ave., Suite 3400 Mr. Jeff Kray Seattle, WA 98101 Attorney General's Office, Ecy. Division P.O. Box 40117 Olympia, WA 98504-0117 Mr. Gillis Reavis Ms. Linda Strout Mr. Jay Manning Ms. Traci Goodwin Brown Reavis & Manning Port of Seattle 2201 Third Avenue, Suite 320 P.O. Box 1209 Seattle, WA 98101 Seattle, WA 98101 Ms. Jean Wilkinson Assistant Attorney General 1125 Washington St. S.E. P. O. Box 40100 Olympia, WA 98504-0100 Re: ACC VoPCHB, et al., Thurston County Cause No. 02-2-01549-0 Dear Counsel: Enclosed please find a Notice of Assignment/Notice of Status Conference in the above-referenced case, along with a Certificate of Service. We have not yet received a case schedule from the Court. Sincerely, H_N LLP Pel_r J. E_ Enclosure cc: Richard Poulin Kaleen Cottingham, PCHB Presiding Officer M.R. Dinsmore, Executive Director, Port of Seattle Rachael Paschal Osborn AR 000340 g:Xluaccpchbappeal-tcscXcounsel-091702-statconf.doc 1500 PUGET 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@hePsell.com SEP 1 8 2002 ENVIRONMENTAL HEARINGS OFFICE SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY Plaintiff/Petitioner, vs. NO. 02-2-01549-0 NOTICE OF ASSIGNMENT/_TAS) Defendant/Respondent. NOTICE OF STATUS CONFERENCE fNTC) TO: THURSTON COUNTY CLERK ATTORNEYS/LITIGANTS PLEASE TAKE NOTICE: 1. That the above-noted case is assigned to: Department 5, The Honorable Judge Richard D. Hicks. 2. That the Status Conference is scheduled for 9:00…

and CITIZENS AGAINST SEA-TAC CASE No. 02-2-01549-0 EXPANSION Petitioner, NOTICE OF APPEARANCE

PI,EASE TAKE NOTICE that without waiver of any defenses or objections under Civil Rule 12, the appearance of Port of Seattle is hereby entered in the above-named action through the undersigned attorneys. You are hereby directed to serve all future pleadings or papers, including process, upon said person, at the address set forth/)below. 1_1/1/ DATED this [_' day of _-'__ ,200223 ¢ _A ,,_u4,4_/_/__25 t nda-J.Strout, WSBA #9422 General Counsel Traci M. Goodwin, WSBA #14974 Senior Port Counsel AR 000332 PORT OF SEATTLE NOTICE OF APPEARANCE- 1 2711ALASKANWAY SEATTLE, WASH., 98111 206-728-3000 FAX 206-728-3205 SEP2 4 7.002 ENVIRONMENTAL HEARINGS OFFICE IN THE SUPERIOR COURT OF WASHINGTON FOR THURSTON COUNTY STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY CASE No. 02-2-01595-3 Petitioner, CERTIFICATE OF SERVICE VS.

2425 Bristol Court SW 2nd Floor • Olympia WA 98502 Mailing Address: PO Box 40117 • Olympia WA 98504-0117 (360) 586-6770 September 18, 2002 Betty J. Gould Clerk of the Court Thurston County Superior Court 2000 Lakeridge Drive SW Olympia, Washington 98502 RE: State of Washington, Dep 't of Ecology v. Pollution Control Hearings Board, et aL Dear Ms. Gould: Enclosed for filing is the Department of Ecology's Petition for Review of Agency Action and Certificate of Service. A check in the amount of$110.00 is enclosed for the filing fee.

8, 2002, by the Port of Seattle (Port). The summary judgment motion asks the Board to enter judgment in favor of the Port on Issue No. 14 relating to the State Environmental Protection Act (SEPA). Issue No. 14 specifically asks "[d]id Ecology and the Port comply with SEPA?" The Board, comprised of Kaleen Cottingham, presiding, and Robert V. Jensen, 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. Port of Seattle's motion for partial summary judgment on SEPA issue; 2. ACC's and CASE's response to the Port's motion for partial summary judgment; PCHB 01-160 1 ORDER GRANTING SUMMARY JUDGMENT ON ISSUE 14 AR 002384 3. Ecology's memorandum in response to the Port's motion for partial summary judgment on SEPA issue; and 4. Port's reply memorandum supporting motion for partial summary judgment on SEPA issue. Based on this review and being otherwise fully apprised in the circumstances of this case the board enters the following ruling. BACKGROUND ACC and CASE (hereinafter referred to as ACC) have appealed a § 401 water quality certification issued by Ecology. This water quality certification is a necessary pre-requisite to the issuance ofa § 404 dredge and fill permit by the U.S. Army Corps of Engineers. The project at issue is the Port's implementation of its proposed master plan development actions at the Seattle-Tacoma International Airport, including the construction of the third runway. In February 1996, the Port, as the…

the Board to strike the pre-filed written direct testimony of Thomas R. Luster submitted by Appellant Airport Communities Coalition (ACC). The basis for the motion is that the testimony violates the Board's rules of practice. The Board's rule provides: Former employee as an expert witness. No former employee of the department shall at any time after leaving the employment of the department appear, except when permitted by applicable state conflict of interest law, as an expert witness on behalf of other parties in a formal proceeding in which an active part of the investigation as a representative of the department was taken. WAC 371-08-475(7). PCHB No. 01-160 1 MOTION IN LIMINE RE: WAC 371-08-475 AR 002380 The purpose of this rule is, much like the prohibitions on former state employees contained in the State's ethic laws RCW 42.52.080, is to ensure the interests of the state are not compromised after a person has completed his or her state service. The appeal before the Board challenging the validity of the § 401 Certification issued by Ecology was filed on August 23, 2001. Shortly thereafter, on September 12, 2001, the Appellants filed a motion to stay the effectiveness of the § 401 Certification. Appended to their motion for stay was the declaration of Mr. Luster. Appended to the Appellants' reply brief in support of the stay, filed on October 8, 2001, was a second declaration of Mr. Luster. On October 11, 2001, the Appellants' filed their preliminary list of witnesses in which…

v. ) PASCHAL OSBORN IN SUPPORT OF ) APPELLANTS' MOTION IN LIMINE STATE OF WASHINGTON, ) TO EXCLUDE TESTIMONY FROM DEPARTMENT OF ECOLOGY; and ) DAVE GARLAND THE PORT OF SEATTLE, ) ) (Section 401 Certification No. Respondents. ) 1996-4-02325 and CZMA concurrency ) statement, Issued August 10, 2001, Reissued September 21, 2001, under No. 1996-4-02325 (Amended- 1)) Rachael Paschal Osborn declares as follows: 1. I am one of the attorneys for Petitioner Airport Communities Coalition ("ACC"). am over the age of eighteen, have personal knowledge of the matters set forth in this declaration, and am competent to testify thereto.19 2. Attached to my declaration as Exhibit A are true and correct copies of pages 1, 10, 12, and 15 from Department of Ecology's Responses to ACC's Interrogatories and Requests for Production. DECLARATION OF RACHAEL PASCHAL HFISF.LL FETTERMAN LLP Rachael Paschal Osborn OSBORN IN SUPPORT OF APPELLANTS' aso0 PugetSoundPlaza Attorneyat Law MOTION IN LIMINE RE DAVE GARLAND - 1 1325 FourthAvenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 AR 002348 3. Attached to my declaration as Exhibit B is a true and correct copy of Department of Ecology's Supplemental Responses to ACC's Interrogatories and Requests for Production (a Memo from Garland to Ecology counsel). 4. Attached to my declaration as Exhibit C are true and correct copies of transcript pages 25-26 from the January 9, 2002, deposition of Dave Garland. 5. Attached to my declaration as Exhibit D is a true and correct copy of a January…

v. ) MOTION IN LIMINE TO EXCLUDE ) TESTIMONY OF ECOLOGY'S DAVE STATE OF WASHINGTON, ) GARLAND11 DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) (Proposed) ) Respondents. ) Airport Communities Coalition and Citizens Against Sea-Tac Expansion ("Appellants") having filed a motion to exclude evidence in this matter; the Board, having reviewed the memoranda filed in favor of and in opposition to the motion, and any reply thereto and being otherwise informed, IT IS HEREBY ORDERED: 1. Appellant's Motion In Limine To Exclude Testimony of Ecology's Dave Garland is GRANTED. 2. The Pre-filed testimony of Dave Garland is Excluded. 3. Ecology is barred from offering the testimony of Dave Garland at hearing. AR 002345

On March 7, 2002, Ecology produced its pre-filed direct testimony, including testimony from Ecology's Dave Garland. In his pre-filed testimony, Mr. Garland states that, "Most recently, I reviewed PGG's 1updated modeling of the embankment for the December 2001 Low Stream Flow Analysis and Summer Low Flow Impact Offset Facility Proposal submitted by the Port of Seattle. The results of my reviews have been documented in memos to Ann Kenny and others dated March 9, 2001, May 5, 2001, August 7, 2001, and March 6, 2002." Garland Pre-21 filed Testimony at ¶ 4 (emphasis added). Mr. Garland's Testimony then goes on to discuss and AR 002338 ' Pacific Ground Water Group ("PGG") is the consultant used by the Port of Seattle to prepare an embankment model for the Port's December 2001 Low Stream Flow Analysis and Summer Low Flow Impact Offset Facility Proposal. ORIGINALHELSELLAPPELLANTS'MOTION IN LIMINE TO F ET T E R M A N EXCLUDE TESTIMONY FROM DAVE GARLAND - 1 ALimitedLiability Partnership 1500PUGETSOUNDPLAZA P.0.BOX21846 SEATTLE,WA 98111-3846 PH:(206)292-1144 express his opinions regarding the Port's new December 2001 Low Flow Analysis, and to reply to criticisms of the plan by ACC's Dr. Lucia. ld. at ¶¶ 11-15; 16-19. This was the first indication ACC had that Mr. Garland reviewed, prepared a report on, and would be testifying concerning the December 2001 Low Flow Analysis, despite repeated, specific inquiries to Ecology as to whether Mr. Garland would give such testimony. Ecology's inexcusable failure to identify or produce Mr. Garland's March 6 Low…

Integration of HSPF Model with Hydrus and Slice Models ............................ 3 Calibration .................................................................................................................... 4 Miller Creek Low Streamflow Calibration ...................................................... 5 Walker Creek Low Streamflow Calibration ..................................................... 6 AR 002320 PREFILED TESTIMONY OF JOSEPH BIL&SCI-IE 0 R I GIN s._._o,o ._ PAGE i SEATTLE, WA 98101 (206) 292-6300 Page2 Low Streamflow Analysis ............................................................................................ 9 Determination of Low Streamflow Periods ..................................................... 9 Determination of Existing Summer Low Streamflows .................................... 9 Embankment Modeling ................................................................................................ 9 HSPF Input and Runoff Calculations ............................................................. 10 Effective Recharge ......................................................................................... 11 Incorporation of Hydrus/Slice into HSPF Models ..................................................... 12 Miller Creek ................................................................................................... 12 Walker Creek ................................................................................................. 139 Results of Analysis ..................................................................................................... 14 AR 002321 PREFILED TESTIMONY OF JOSEPH BRASCHER BROWN REAVIS & MANNINGPLLC PAGEii 1191SECONDAVE.,SUITE2200 SEATTLE,WA 98101 (206) 292-6300 1. I have personal knowledge of the facts stated in this testimony and would be competent to testify to those facts. BACKGROUND Current Position and Experience 2. I have been employed by AQUA TERRA Consultants for almost nine years, since May 1993. My responsibilities with the firm currently include, project management, hydrologic analysis and computer programming, in addition to management of the Olympia satellite office. Prior to beginning my employment with AQUA TERRA, I was employed by the City of Olympia Surface Water Department as temporary technician from June 1991 until April 1993. My duties included hydrologic model review and model application. From May 1992 until April 1993, I worked for the Thurston County Water and Waste Management division, where my duties included hydrologic model review and model…