TagPollution Control Hearings Board(1507)

v. ) THE EFFECTIVENESS OF SECTION 401 ) CERTIFICATION STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY and THE ) PORT OF SEATTLE, ) ) Respondents. ) S ) Appellant Airport Communities Coalition (ACC) filed a motion to stay the effectiveness

uu_-u_-_uut rRl u=,oq rr| _" rH_ NU, _l=U / t:l(b8 1_, U;_/05 • _.u/u,_lU,L ,L,t,;ga _.%l :'UI_ 44T tl7ug I" f a $ ....... ?.._6 447 ¢J"/_(_ _] 0oZ ? ,_-O3-Z_o, 1Z:43.: Fr:r.LSELL ,yrrEi_Al( ,,g;3,D2s_t i _----_._0_1_ _-_ OCT- 8Z001 ENV][RONMENTA HEARINGS OFFIC POLLUTIONCONTEOL _GS ZZOARD POR TEE STATEOF WASHINGTON AIEPOET CO!vE6UNZT]_S COAL/_ON, ) ) _CHB No. 01-133 ,_¢U_t, ) POIB N_ o1-15o s ) PCHB No. 01-160 v. ) = ) ST_T_ON AND ORDER DEPARTMENT O¥_COLOOY and ) TEE ]_OR.TOl=SEATTL]_. ) (CLT_A_ 'WATER ACT SECTION 401 s ) C_R__ZZONS #t_&4-0232s, gcs1_oz=_=. ) #1996,4,.023_ (A_4ENDED-I)) s ) __ I . ill ii ,] l i THE POET OF _ATTL_ } Appena_ ) Iz ) V. ) I= ) ?4 STAT_ OF W_OT(DI_, ) D_?AItTMENT OF ECOLOGY, ) R,=q===l_=, ) Is ) | m | i | , ls On S=l;_.emt_2.0,2001, the PoLb.._= Can,m:)[H=a,t'm_ Board ('Bo_d"] _ I,, At_-'c_e,_ _s =ndOtxlm.E=:P.=sdssioa©f401Ce=_fi_io=LuPCHBCasoNos.01-133 ==101-IS0(dm_'A_.=m==_: 'I _ 040="3. zt , Th= Dcp=t_a_t =f _¢olo_y s_bscqum_dyrm_=,:[=:lo_ September2l. 2_ I. _ S_n _ 1 Ca,u_c-a_ou,.,hi¢.hwas iss=_ by Ecolop/tmd=rP,cololWO_de¢Numt.=-_9=J_-.4-0232._on Au_=s'z10. 3.(_0_.,=mL_ an =ncmd_ 40! Coni_m mzdcrC_= N_ 1996,,4-o"_-325(_er,,d=E-1), zS On O©mber I, 2001,u_=Ah'portCm=_mid= Ca_li_icnfil=l m=l ==vcct1==-,.h=_'¢ ,=,.d. STIPtJ_l_Ch_._Np O/_SP.- t W=',_Et.L/-_i-f=-_._4ANLLP Iacluu=|Pzlch._O_bom ISooF.,_t SoundPllm_ _.I_ .._La,_ 1_2_,S_Fo_ Avenue Zo_LIW_,_P,elmloi_^v©, S_d_L_,W'A 9110I'J-E.oo Spak_e,WA _l_l_l AR 007332 lo-o8-?OOl 10:1Sam From-HELSELLFETTERMAN +2083402524 T-07'T P.004/006 F-g30 _v-u_-(.uut rK! u..1;_o rl'[ f_ PHA NIJ.._I_U ,,_I_/_ t', L/_/UbJ.UI_,4.1U,I. J.J.'_..t Jr.'q,_ lull ,,3,41 il/uU _- _ & _ ....... __ -.--- ....... L_e6447 978_ I_]oo_ lo.oz,-20ol IZ:44M Frmr-I,lZL$iLI.N_ #s.,gZ_40ZSZ4 T-IllS p.lZg4_U6 f-_Z O:dvr_ app_loEtl_ammxl_401__…

v. ) 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. ) Reissued September 21, 2001, under No. ) 1996-4-02325 (Amended-l)) Greg Wingard declares as follows: 1. The following is based on personal knowledge to which I am competent to testify before the Board. 2. I have worked extensively on issues related to the SeaTac International Airport's NPDES permit since 1994 in my capacity as a consultant, at various times, to CASE, the City of Des Moines, the Airport Communities Coalition, and individual area residents, and in my capacity as the19 2O Executive Director of Waste Action Project. This work has included reviewing NPDES permit applications, working on NPDES permit appeals, reviewing of discharge monitoring reports from 1994 to present, participating in site inspections, including inspection of the airport's listed NPDES permitted outfalls, site sampling activities, and photographing of the site. My review of documents DECLARATION OF GREG WINGARD IN HELSELL FETTERMAN LLP RachaelPaschalOsborn SUPPORT OF ACC'S MOTION FOR STAY - 1 150oPugetSound Plaza Attorneyat Law 1325FourthAvenue 2421WestMissionAvenue ORl'; jAL• _i Seattle, WA 98101-2509 Spokane, WA 99201 AR 007327 included the Port of Seattle's 1996 Section 404 application, which was later withdrawn in 1998, as well as the existing Section 401 certification-related materials. 3. As an environmental consultant for the past 18 years and in my capacity as Executive Director of Waste…

On November 16, 2001, the Airport Communities Coalition (ACC) filed a motion to supplement the record on its motion for stay. On November 26th, the Port of Seattle (Port) filed its response indicating its opposition or alternatively to further supplement the record. On November 28th,ACC filed its reply. The motion to stay the effectiveness of the re-issued § 401 Certification No. 1996-4- 02325 (amended-l) issued by the Department of Ecology was heard by the Pollution Control

v. ) IN SUPPORT OF ACC'S REPLY ON ) MOTION FOR STAY STATE OF WASHINGTON, ) DEPARTMENT OF ECOLOGY; and ) (Section 401 Certification No. THE PORT OF SEATTLE, ) 1996-4-02325 and CZMA concurrency ) statement, issued August 10, 2001, Reissued Respondents. ) September 21, 2001, under No. 1996-4- ) 02325 (Amended-l)) ) Dr. Peter Willing 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 have reviewed the Port of Seattle and Department of Ecology declarations,16 briefs, and exhibits submitted in opposition to ACC's motion for stay. I have also reviewed additional documents, including but not limited to the Stormwater Management Manual for Western Washington, and scientific literature related to the scope of my review. 3. I have reviewed the Department of Ecology' s Water Quality Certification No. 1996-4-02325 for construction of a third runway at SeaTac Airport, issued on August 10, 2001 and then amended and re-issued on September 26, 2001. The certification contains a number of defects that cause it to fall considerably short of reasonable assurance that the construction will HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF DR. PETER WILLING IN Seattle,WA98101-2509 Spokane,WA99201 SUPPORT OF ACC'S MOTION FOR STAY-1 ORIGINAL , .oorao protect water quality standards. The two particulars to which I will address my statement are the augmentation of stream flow in SeaTac area…

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) )

Linda Strout and Traci Goodwin, Jay J. Manning and Gillis E. Reavis, and Roger Pearce and Steven G. Jones, Attorneys for Port of Seattle Please take notice that Richard A. Poulin of Smith & Lowney, 2317 E. John Street, Seattle, WA 98112, hereby associates with Helsell Fetterman LLP and Rachael Paschal Osbom as counsel to represent Airport Communities Coalition and requests that all further papers and pleadings, except original process, be served on same at the address noted below. DATED this 1)/ day of December, 2001. S_ Richard A. Poulin ,, O(_ 2317 E. John Street _ -__ Seattle, WA 98112 AR 005802 NOTICE OF ASSOCIATION OF COUNSEL- 1 HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Ave. Seattle, WA 98101-2509 Spokane, WA 99201 PCHB178005802

On August 23, 2001, Airport Communities Coalition (ACC) filed an appeal challenging the § 401 Certification No. 1996-4-02325 issued by the Department of Ecology (Ecology) to the Port of Seattle (Port) on August 10, 2001. As a result of a stipulation between the parties entered by the Board on September 28, 2001, Ecology re-issued the § 401 Certification No. 1996-4- 02325 (amended-l) on September 21, 2001. Also as a result of the stipulation, ACC filed a new appeal on the re-issued § 401 Certification No. 1996-4-02325 (amended-l). On November 30, 2001, Citizens Against SeaTac Expansion (CASE) filed a motion to intervene in the appeal. CASE is a non-profit, local citizens' group which, among other things, acts to protect the local environment and communities from activities associated with the SeaTac International Airport. CASE is involved with another appeal before the Board regarding the National Pollutant Discharge Elimination System permit (NPDES permit) for the airport. PCHB 01-160 1 ORDER GRANTING INTERVENTION AR 005798 Further, CASE was involved in the public involvement stage of the issuance of the § 401 certification at issue in this appeal, including submitting oral and written comments. In response to the motion to intervene, the Port indicates no objection to the intervention so long as appropriate limits are set to avoid the impairment of the "prompt and orderly conduct of the appeal." In particular, the Port requests that CASE: 1. Not be allowed to raise new issues than those stipulated or imposed by the Board in this appeal;…

AIRPORT COMMUNITIES COALITION, ) 4, _;'@ _ ,.,Q_-a] ,4 ) PCHB No. 01-160 ,<_(.)? Appellant, ) ) ACC'S MOTION FOR PARTIAL v. ) SUMMARY JUDGMENT REGARDING ) ABSENCE OF WATER RIGHT STATE OF WASHINGTON, )7 DEPARTMENT OF ECOLOGY; and ) THE PORT OF SEATTLE, ) ) Respondents. ) Appellant Airport Communities Coalition hereby moves for partial summary judgment on the ground that there is no reasonable assurance that the Port has legal means to permanently mitigate the low flow impacts of its proposed project (Issue No. 9 in the November 15, 2001, Supplemental Stipulation Regarding Proposed Statement of Legal Issues). The 401 Certification should be invalidated on this ground. This motion is based on the stay pleadings, declarations and exhibits submitted to date in this case (which are incorporated here by reference), and on the Board's December 17, 2001, Order Granting Motion to Stay the Effectiveness of Section 401 Certification. The Order states at p. 14: The issue of whether a water right is required for stormwater detention structures is a case of first impression for the Board. The Appellants have shown a likelihood of success on the merits by showing the low flow augmentation plan is more than just a system to manage stormwater and as such requires a water right to use the stored water to maintain sufficient streamflow. The Appellants have shown, absent a water right, the Port is unable to demonstrate legal means are in place to permanently mitigate the low flow impacts. Without such means,…

. PORT OF SEATTLE, a municipal corporation No.' c. : " of the State of Washington,10 Petitioner, PETITION FOR REVIEW OF AGENCY ACTION v. STATE OF WASHINGTON, ,/_ r_ ';_-,_ POLLUTION CONTROL HEARINGS [__ _ /___,,,j ,_ BOARD, AIRPORT COMMUNITIES -'/ l_v/,-_."?_'',_L'_] COALITION, CITIZENS AGAINST Jll_ . _I._/,_ SEATAC EXPANSION, and STATE OF --., -. - WASHINGTON, DEPARTMENT OF 2002 ECOLOGY, F_'I_2_!._:I_!V _.iV,_" Respondents. " " ""_;'nt(:_i 1. NAME AND ADDRESS OF PETITIONER The petitioner is the Port of Seattle (Port). Its mailing address is: 2711 Alaskan Way, Pier 69, P.O. Box 1209, Seattle, WA 98111. 2. NAME AND ADDRESS OF PETITIONER'S ATTORNEY The Port of Seattle is represented by the following attorneys in this matter: Linda J. Strout, General Counsel Traci M. Goodwin, Senior Port Counsel Port of Seattle26 2711 Alaskan Way, Pier 69 Seattle, WA 98121 MARTEN BROWN INC PETITION FOR REVIEW OF AGENCY ACTION 421 s CAPITOL WAY SUITE 303OLYMPIA, WA 98501 PAGE 1 (360) 786-5057 AR 005758 Jay J. Manning Gillis E. Reavis Marten Brown Inc. 421 S. Capitol Way, Suite 3034 Olympia, WA 98501 Roger A. Pearce Steven G. Jones Foster Pepper & Shefelman PLLC 1111 Third Avenue, Suite 3400 Seattle, WA 98101 3. NAME AND ADDRESS OF AGENCY WHOSE ACTION IS AT ISSUE The Port seeks judicial review of a decision by the Pollution Control Hearings Board (PCHB or Board), whose mailing address is: 4224 6th Avenue S.E. Bldg 2, P.O. Box 40903, Olympia, WA 98504-0903. 4. AGENCY ACTION AT ISSUE The Port seeks…