TagPollution Control Hearings Board(1507)

v. ) STRAND IN SUPPORT OF ACC'S ) REPLY ON 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)) Dr. John Strand declares as follows:13 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 197519 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 at 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 HELSELL FETTERMAN LLP Rachael Paschal Osborn 1500 Puget Sound Plaza Attorney at Law 1325 Fourth Avenue 2421 West Mission Avenue DECLARATION OF DR. JOHN STRAND IN Seattle, WA 98101-2509 Spokane,WA99201 SUPPORT OF ACC'S MOTION FOR STAY - 1 ORIGINAL 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 a Airport Communities Coalition (ACC), an organization composed of the Cities of Burien, Des…

ECOLOGY and THE PORT OF SEATTLE, ) ) Respondents. ) As required by the Board's "Order Granting Intervention" dated December 21, 2001, Intervenor Citizens Against Seatac Expansion (CASE) hereby submits its preliminary list of new C_20 witnesses and exhibits. ;XJ PRELIMINARY WITNESS LIST CASE may call the following as witnesses at the hearing on the merits of this matter. _23 CASE reserves the right to call all witnesses listed by other parties or who have or will submit /---24 testimony, written or oral, in this appeal. Kate Rhoads, King County DNR Bob Furstenberg, King County DNR CASE'S PRELIMINARY LIST OF WITNESSES SMITH_ LOWNEY, P.L.L.C._-3 1 7 EAST JOHN STREET AND EXHIBITS - 1 S_L_, W_H,_O. 9811 z VAX i2oal B_O-41B7 AR 005746 PRELIMINARY EXHIBIT LIST CASE incorporates by reference and may introduce any or all documents listed by any of4 the parties on their exhibit lists submitted to date. In addition, CASE identifies the following exhibits. 1. Documents relating to construction stormwater monitoring produced by the Port of Seattle in 2001 in response to a Public Disclosure Act request from Greg Wingard.9 2. National Pollutant Discharge Elimination System Waste Discharge Permit No. WA- 002465-1, Modification Date May 29, 2001 (NPDES Permit as modified, and Fact Sheet with Addenda). 3. Discharge Monitoring Reports generated by the Port of Seattle and submitted to the Department of Ecology under NPDES Permit No. WA-002465-1. DATED this 31st day of December, 2001. SMITH & LFIWNEY, P,L.L.C. By: Richard A. Poulin, Of Counsel WSBA # 27782…

Airport Communities Coalition having filed a motion for summary judgment on Issue No. 9(a) of the stipulated legal issues in this matter, i.e., whether a water right is required for implementation of the Port's low flow mitigation plan for the Third Runway Project; Citizens Against Sea-Tac Expansion having joined in the motion; the Board, having reviewed the following pleadings and exhibits filed in this matter: 1. ACC's Motion and Memorandum for Summary Judgment Regarding the Absence of a Water Right for Third Runway § 401 Certification; 2. Declaration of Michael P. Witek in Support of ACC's Motion for Summary Judgment, with attachments: a. Declaration of William A. Rozeboom in Support of ACC's Motion for Stay, filed with the Board on September 12, 2001; 2_4 b. Declaration of Dr. John Strand in Support of ACC's Motion for Stay, filed with the Board on September 12, 2001; AR 005740

1o v. ) 1996-4-02325 and CZMA concurrency ) statement, issued August 10, 2001, STATE OF WASHINGTON, ) Related to Construction of a Third DEPARTMENT OF ECOLOGY; and ) Runway and related projects at Seattle THE PORT OF SEATTLE, ) Tacoma International Airport) ) Respondents. ) ) Michael P. Witek declares as follows: 1. I am one of the attorneys for the Airport Communities Coalition. I make this declaration based on personal knowledge and am competent to do so. 2. Attached to this declaration are true and correct copies of the following documents:19 2o Exhibit A: Pages 1, 3, 4 and 14 of the Declaration of William A. Rozeboom in Support of ACC's Motion for Stay, filed with the Board on September 12, 2001; Exhibit B: Pages 1, 5, 18 and 21 of the Declaration of Dr. John Strand in Support of ACC's Motion for Stay, filed with the Board on September 12, 2001; DECLARATION OF MICHAEL P. WITEK IN HELSELLFETTERMANLLP Rachael Paschal Osborn SUPPORT OF ACC'S MOTION FOR 1500PugetSound Plaza Attorneyat Law SUMMARY JUDGMENT - 1 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL Exhibit C: Pages 1, 4, 5 and 20 of the Declaration of Dr. Peter Willing in Support of ACC's Motion for Stay, filed with the Board on September 12, 2001. declare under penalty of perjury under the laws of the State of Washington that the isco ect.6 DATED this 4th day of January, 2002, at Seattle, Was i . p7…

OF ECOLOGY, and THE PORT OF SEATTLE, Respondents. I. INTRODUCTION AND RELIEF REQUESTED Pursuant to WAC 371-08-450 and the Pre-Hearing Order filed in this matter, Appellant Airport Communities Coalition ("ACC") hereby moves for summary judgment on the ground that Ecology' s § 401 Certification is not based on reasonable assurance that the Port of Seattle ("Port") has legal means to permanently mitigate the low flow impacts of its proposed project. The Section 401 Certification should be invalidated on this ground. AR 005710 ACC'S MOTION FOR PARTIAL HELSELL FETTERMAN LLP Rachael Paschal Osborn SUMMARY JUDGMENT RE: ABSENCE 1500 Puget Sound Plaza Attorney at Law OF A WATER RIGHT-- 1 1325 Fourth Avenue 2421 West Mission Ave. R 1 6 1N A Lseattle, WA 98101-2509 Spokane, WA 99201 II. STATEMENT OF FACTS On September 21, 2001, the Department of Ecology issued a revised Section 401 Certification to the Port of Seattle for the Port's Master Plan Update of Sea-Tac International Airport (commonly referred to as the "Third Runway Project"). The Section 401 Certification contains "Conditions for Mitigation of Low Flow Impacts," approving the Port's low flow mitigation plan. 401 Cert. at p. 22. The low flow plan contemplates the capture and use of stormwater to offset the impacts of construction of the Third Runway Project on three local streams: Des Moines, Miller and Walker Creeks. 1o On December 17, 2001, the Board issued its Order Granting Motion to Stay the Effectiveness of Section 401 Certification. Among other rulings, the Board found that…

municipal corporation of the State of BOARD'S ORDER GRANTING STAY Washington, (PCHB No. 01-160) Respondents.

STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and ) 1996-4-02325 and CZMA THE PORT OF SEATTLE, ) concurrency statement, Issued ) August 10, 2001, Reissued Respondents. ) September 21, 2001, under No. 1996- ) 4-02325 (Amended-I)) Dyanne Sheldon declares as follows: 1. I am over the age of 18, am competent to testify, and have personal13 knowledge of the facts stated herein. 2. I am an environmental scientist, with over 20 years of specializing in wetland ecology and management related issues. I have a Bachelor's of Science in Botany, and a Master's of Education and Curriculum Development. I have worked as a wetland ecologist and land-use planner in the Pacific Northwest for over 20 years, and as a naturalist20 and educator for over 25 years. In 1981 I was one of three biologist hired by King County to assist in conducting King County's wetland inventory: the first such effort ever undertaken in the Pacific Northwest by a local jurisdiction. From that position I was hired as the Wetland Planner at DECLARATION OF DYANNE SHELDON IN HELSELL FETTERMAN LLP Rachael Paschal Osborn SUPPORT OF ACC'S MOTION FOR STAY - 1 15ooPugetSound Plaza AttorneyatLaw 1325Fourth Avenue 2421West MissionAvenue Seattle. WA98101-2509 Spokane, WA99201 ORIGINAL King County, Washington, the first such 'local wetland planner' position in the country. I created the precedent setting wetland management program at King County: it established the first wetland rating system, the first requirements for buffers and setbacks on wetlands from development activities and the…

v. ) REPLY ON MOTION FOR STAY ) STATE OF WASHINGTON, ) (Section 401 Certification No. DEPARTMENT OF ECOLOGY; and } 1996-4-02325 and CZMA THE PORT OF SEATTLE, ) concurrency statement, issued August ) 10, 2001, Reissued September 21, Respondents. ) 2001, under No. 1996-4-02325 (Amended-I)) Robert Sheckler declares as follows: 1. I am over the age of 18, am competent to testify, and have personal knowledge13 of the facts stated herein. 2. I am Mayor Pro Tem and a City Councilmember tbr the City of Des Moines, lS Washington. I am also Chair of the Airport Communities Coalition (ACC) Executive Committee. The ACC Executive Committee, per interlocal agreement of the ACC jurisdictions (Burien, Des Moines, Federal Way, Normandy Park, Tukwila, and the Highline School District), has engaged a number of19 independent scientists and technical experts to review and comment on the Port of Seattle's successive Clean Water Act Section 401 applications for certification of the Port's third runway and related major projects. 3. ACC has taken an active role in this process because of the dramatic effect which construction of the third runway would have on our member jurisdictions. We have particular DECLARATION OF ROBERT SHECKLERIN HELSELLFETTERMANLLP RachaelPaschalOsborn SUPPORT OF ACC'S MOTION FOR STAY - 1 15ooPugetSoundPlaza Attorneyat Law 1325 Fourth Avenue 2421 West Mission Avenue Seattle, WA 98101-2509 Spokane, WA 99201 ORIGINAL .oor 8, stewardship responsibilities under state law and our own municipal codes for the streams and watersheds within our boundaries, including Des Moines Creek, Miller Creek,…

v. ) REPLY ON MOTION FOR STAY ) 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, ) Reissued September 21, 2001, under No. Respondents. ) 1996-4-02325 (Amended-I)) ) 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 have reviewed the declarations of Steven G. Jones, Joseph Brascher, Donald W E. Weitkamp, Paul S. Fendt, and the Port of Seattle's Memorandum Opposing ACC's Motion for Stay, all filed by Foster Pepper & Shefelman, PLLC. I have also reviewed the declarations of Ann Kenny, Eric Stockdale, Kelly Whiting, and the Department of Ecology's Response to20

_>23 1.2 Citizens Against Sea-Tac Expansion ("CASE")19900 4th Avenue SW i"'- 24 Normandy Park, WA 98166 Phone: 206-824-0805 Fax: 206-824-3451 AR 005530 HELSELL ACC'S AND CASE'S PETITION FOR REVIEW OF F E T T E ILM A N AGENCY ACTION - 1 a Limited Liability Pa..... hip 1500 PUGETSOUND PLAZA EO. BOX21846 SEATrLE,WA98111-3846PH:(206)292-1144 II. NAME AND ADDRESS OF PETITIONERS' ATTORNEYS 2.1. Attorneys for Airport Communities Coalition ("ACC") Peter J. Eglick, WSBA No. 8809 Kevin L. Stock, WSBA No. 14541 Michael P. Witek, WSBA No. 26598 HELSELL FETTERMAN LLP 1325 Fourth Avenue, Suite 1500 P.O. Box 21846 Seattle, WA 98111 Tel. (206) 292-1144 Fax (206) 340-0902 Rachael Paschal Osbom, WSBA No. 21618 Attorney at Law 2421 West Mission Avenue Spokane, WA 99201 Tel. (509) 328-1087 Fax (509) 328-8144 2.2 Attorneys for Citizens Against Sea-Tac Expansion ("CASE"): Richard A. Poulin, WSBA No. 27782 Of Counsel Smith & Lowney P.L.L.C. 2317 East John Street Seattle, WA 98112 is Tel. (206) 860-1394 Fax (206) 860-418719 III. NAME AND ADDRESS OF AGENCY WHOSE ACTION IS AT ISSUE ACC and CASE seek judicial review of a decision by the Pollution Control Hearings Board ("PCHB"), whose mailing address is: AR 005531 HELSELL ACC'S AND CASE'S PETITION FOR REVIEW OF F ET T E R M A N AGENCY ACTION - 2 ALimitedLiability P...... hip 1500PUGETSOUNDPLAZA P.O.BOX21846 SEAI-I'LE,WA 98111-3846 PH:(206)292-1144 Office of Environmental Hearings 4224 6thAvenue S.E. Bldg 2, Rowe 6 P.O. Box 40903 Olympia, WA 98504-0903. IV. AGENCY ACTIONS AT ISSUE 4.1 ACC and CASE ("Petitioners") seek…