TagPollution Control Hearings Board(1507)

v. ) STRAND IN SUPPORT OF ACC'S ) MOTION FOR STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No.9 THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, issued August 10, 2001, Respondents. ) Related to Construction of a Third ) Runway and related projects at Seattle Tacoma International Airport)12 Dr. John Strand declares as follows: 1. I declare the following from personal knowledge and am competent to testify thereto before the Board if necessary. 2. I am an internationally recognized fisheries biologist with over 25 years experience specializing in studies to determine potential effects of human activities on aquatic resources. I received my Ph.D. in Fisheries Biology from the University of Washington in 1975 and currently am the Principal Biologist for Columbia Biological Assessments. I am also an adjunct faculty member of the Environmental Sciences and Regional Planning Program at22 Washington State University Tri-Cities. I am a Certified Fisheries Professional and have extensive experience assessing the ecological risks from discharges of contaminants to surface n lp l l^ I HELSELL_ETTERIVlANLLP Rachael Paschal Osborn _.,/ H l I_,tl| _/.-...IL 1500 PugetSound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF DR. JOHN STRAND IN Seattle, WA98101-2509 Spokane,WA99201 SUPPORT OF ACC'S MOTION FOR STAY - 1 AR 008387 waters on sensitive aquatic species and their habitats. I also have substantive local knowledge, having studied the fate of stormwater residuals in both Miller and Des Moines Creeks for the Airport Communities…

FOR THE STATE OF WASHINGTON _2i)_,__,/_RL) i,4rv_ENT/a L2 AIRPORT COMMUNITIES ) _-_[_//R_NGSOFFI( IE3 COALITION, ) No. 01-133 ) Appellant, ) DECLARATION OF AMANDA

v. ) OF ITS MOTION FOR A STAY6 ) DEPARTMENT OF ECOLOGY and ) (Section 401 Permit No. 1996-4-02325,

STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA concurrency THE PORT OF SEATTLE, ) statement, issued August 10, 2001, ) Related to Construction of a Third Respondents. ) Runway and related projects at Seattle ) Tacoma International Airport) This matter having come on for hearing on the __ day of October, 2001, and the Pollution Control Hearings Board having reviewed the briefs, declarations and exhibits filed herein, considered the arguments of the parties and being advised of the merits, it is now therefore ORDERED that Department of Ecology Order # 1996-4-02325 (Section 401 Certification and CZMA concurrency statement, issued by Ecology on August 10, 2001, for construction of third runway and related improvements) is hereby stayed in its force and effectiveness until 2o hearing and decision on the merits of this appeal. DATED this __ day of October, 2001. Kaleen Cottingham, Presiding [PROPOSED] HELSELL FETTERMAN LLP Rachael Paschal Osborn ORDER ON STAY - 1 15o0 Puget Sound Plaza Attorney at Law ORIGINAL 1325 Fourth Avenue 2421 West Mission AvenueSeattle, WA 98101-2509 Spokane, WA 99201 AN 008251 DATED this 12thday of September, 2001. HELSELL FETTERMAN LLP BY: i/ Peter J. 809 Kevin L Stock, WSBA #14541 AND BY: _ W@_2 Rachae_ Pascal 0_o_n, 1618 Attorneys for Appellant g:luaccpchbmotion-0911.doc MOTION FOR STAY - 2 HELSELLFETTERMANLLP Rachael Paschal Osborn 1500Puget Sound Plaza Attorney at Law 1325Fourth Avenue 2421 West Mission Avenue Seattle, WA98101-2509 Spokane, WA99201 AR 008252

STATE OF WASHINGTON, ) 1996-4-02325 and CZMA concurrency DEPARTMENT OF ECOLOGY; and ) statement, issued August 10, 2001, THE PORT OF SEATTLE, ) Related to Construction of a Third ) Runway and related projects at Seattle Respondents. ) Tacoma International Airport) )

STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA concurrency THE PORT OF SEATTLE, ) statement, issued August 10, 2001, ) Related to Construction of a Third Respondents. ) Runway and related projects at Seattle ) Tacoma International Airport) Thomas R. Luster declares under penalty of perjury as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. I have been asked to review the water quality certification that is the subject of this appeal and to provide the Board with information useful in determining whether the proposed proj ect and the certification comply with applicable requirements of the federal19 Clean Water Act (CWA) and state water quality standards, and whether, consequently, the Board should issue a stay of the certification. 2. My professional background includes 12 years at the Department of Ecology (Ecology) working on water quality, wetland, and sediment-related issues. During my first four ORIGINAL HELSELL FETTERMAN LLP Rachael Paschal Osborn1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF THOMAS R. LUSTER - 1 Seattle, WA 98101-2509 Spokane, WA 99201 AR 008218 years at Ecology from 1989 to 1993, I worked in the Sediment Management Unit. I evaluated proposed freshwater sediment criteria, managed laboratory contracts related to developing these criteria, and conducted public education and outreach. I was part of the team that prepared the state's sediment management rule, which was adopted…

STATE OF WASHINGTON, ) 1996-4-02325 and CZMA DEPARTMENT OF ECOLOGY; and ) concurrency statement, issued August THE PORT OF SEATTLE, ) 10, 2001, Related to Construction of a ) Third Runway and related projects at Respondents. ) Seattle Tacoma InternationalAirport) William A. Rozeboom declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. I am a professional civil engineer licensed in the State of Washington. I am employed as a senior engineer with Northwest Hydraulic Consultants, located at Suite 350,19 16300 Christensen Road, Seattle, Washington, 98188. I have over 20 years of specialized experience in surface water hydrology and hydraulics, including over 5 years as principal reviewer of all Master Drainage Plan, Stormwater Management Plan, and Storm Drainage Technical Information Report documents for the i,300-acre Snoqualmie Ridge project currently under construction in the city of Snoqualmie. The Snoqualmie Ridge project is similar to the 3'd DECLARATION OF WILLIAM A. HELSE[i FETTERMAN LLP Rachael Paschal Osborn ROZEBOOM - 1 ORIGINAl_ 1500 Puget Sound Plaza Attorney at Law1325 Fourth Avenue 2421 West Mission Aw?nue Seattle, WA 98101-2509 Spokane. WA 99201 AR 008132 runway project in that it is a large site development which is subject to the requirements of the Washington State Department of Ecology Stormwater Management Manual and the King County Surface Water Design Manual (KCSWDM). Attached as Exhibit A is a copy of my curriculum vita. 3. Northwest Hydraulic Consultants has been retained since October…

1. I am over the age of 18, am competent to testify, and have personal knowledge of the facts stated herein. 2. I am responding to the brief and declarations submitted by the ACC in reply to Ecology's and the Port of Seattle's (Port) response briefs on the motion for stay. 3. The ACC wrongly assumes that hydrologic monitoring has not commenced downgradient of the embankment. The Port has provided hydrologic monitoring data at wetlands 18 and 38 downgradient of the embankment, in addition to other areas. These data were collected by Hart Crowser, spanning seven monitoring events from March 10, 2000 to January 23, 2001, at eight monitoring wells. Exhibit 1 attached to this declaration is a spreadsheet with containing those data points. The Port also began collecting additional SECOND DECLARATION OF 1 ATTORNEYGENERALOFWASHINGTON Ecology Division ERIK STOCKDALE POBox40117 Olympia, WA 98504-0117 ORIGINAL hydrologic data on the downslope wetlands in February 2001, at the request of the Corps and Ecology. (Second declaration of James Kelley at paragraph 7). 4. The ACC wrongly asserts that the absence of hydrologic data precludes Ecology from being able to develop hydrologic performance standards. The Natural Resource Mitigation Plan contains the performance standards required by Ecology for this element of the project. They are highlighted in the Second Declaration of James Kelley at paragraph 10. declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. DATED this q_/Iday of __-'_ _[ _,_.-__/_A__ _------ ERIK…

Pursuant to the Agreed Order Re Recission of 402 Certification entered by the Board on September 21, 2001, the Department of Ecology (Ecology) submits this sur-reply brief. As per that order, the sur-reply confines itself to responding to the new issues raised in the ACC's reply brief. If a determination by Ecology that, in issuing a 401 Certification, it has reasonable assurance that water quality standards will be met by the proposed project could be rebutted by misstatements and misconstruing the record, then the ACC would be entitled to its stay. However, as this Board has indicated in its prior 401 Certification decisions, much more is needed to overcome Ecology's finding of reasonable assurance. Addressing the new issues it asserts are created by the Amended 401 Certification, the ACC continues to rest its case on ECOLOGY'S SUR-REPLY TO 1 ATTORNEY GENERAL OF WASHINGTON Ecology Division ACC'S MOTION FOR STAY po Box 40117 Olympia, WA 98504-0117 ORIGINAL FAX(360)586-6760 misstatement and inaccurate renditions of the record. The Board should deny the ACC's request for a stay of the Amended 401 Certification. ARGUMENT A. The Amended 401 Certification Does Not Lessen The Protectiveness Of The Acceptable Fill Criteria. The ACC asserts that the addition of a provision in Condition E, which sets forth the6 protocols that the Port of Seattle (Port) must follow when selecting fill material for placement in the Third Runway embankment, lessens the stringency of that provision. However,8 consistent with the allegations in its opening brief, the ACC simply ignores…

the ACC's request to file an overlength reply brief) The ACC seems to have forgotten the recent history of this matter. It created the current cramped briefing schedule. It was informed by the Board in the September 17, 2001 prehearing conference that its reply brief was to include any new issues raised by the Amended 401 Certification. Moreover, in that conference, after stating to the Board that the length of the briefs on the motion for stay should be adjusted, the ACC was told that its reply was not to exceed 30 pages. This latter directive is incorporated in the Agreement and Order Re Recission of 401 Certification entered by the Board on September 20, 2001. AR 006649 1Ecologyjoins inthe Port of Seattle'sMotionto Strikethe ACC'sOverlengthBrief. ECOLOGY'SRESPONSETOACC'S 1 ATTORNEYGENERALOFWASHINGTON Ecology Division MOTIONTOFILEOVERLENGTH POBox40117 REPLY BRIEF Olympia, WA 98504-0117 ORIGINAL FAX(360)586-6760 In its motions, the ACC claims that it needed to file the overlength brief because of the new issues raised in the Amended 401 Certification. This statement is belied by the contents of its Reply brief. There is, at best, a handful of pages of discussion of changes that appear in the Amended 401 Certification. In addition, the ACC states that, rather than file a separate brief on the changes, it elected to simply file the overlength reply. Again, the ACC seems to disregard the fact that the schedule it asked for and received from the Board did not include the opportunity to file such a separate brief. Ecology and the…