Port of Seattle v. PCHB

• Decision Date: 14 May 2004
• Docket Number: No. 73419-4.,73419-4.
• Citation: 151 Wash.2d 568,151 Wn.2d 568,90 P.3d 659
• Court: Washington Supreme Court
• Parties: PORT OF SEATTLE, a port district of the State of Washington, Petitioner, v. The POLLUTION CONTROL HEARINGS BOARD, an agency of the State of Washington, Respondent, Airport Communities Coalition; Citizens Against Seatac Expansion; and State of Washington, Department of Ecology, an agency of the State of Washington, Respondents/Cross-Petitioners.

90 P.3d 659

151 Wn.2d 568

151 Wash.2d 568

PORT OF SEATTLE, a port district of the State of Washington, Petitioner, v. The POLLUTION CONTROL HEARINGS BOARD, an agency of the State of Washington, Respondent, Airport Communities Coalition; Citizens Against Seatac Expansion; and State of Washington, Department of Ecology, an agency of the State of Washington, Respondents/Cross-Petitioners.

No. 73419-4.

Supreme Court of Washington, En Banc.

Argued November 18, 2003.

Decided May 14, 2004.

Peter J. Eglick, Michael P. Witek, Helsell Fetterman LLP, Seattle, Rachel Paschal Osborn, Spokane, Lind J.N. Strout, Roger A. Pearce, Patrick J. Mullaney, Foster Pepper & Sheffelman PLLC, Kevin L. Stock, Starbucks Coffee Company, Richard Arthur Poulin, Smith & Lowney, PLLC, Traci Marie Goodwin, Gillis Edward Reavis, Brown Reavis & Manning PLLC, Seattle, for Petitioners.

Jean Marie Wilkinson, Attorney Generals Office, Olympia, Jeff B. Kray, Marten Law Group, Seattle, Joan Margaret Marchioro, Sharonne E. O'Shea, Thomas J. Young, Wa. State Atty. General's Office, Olympia, for Respondents.

Shirley Waters Nixo, Karen Allston, Center for Environmental Law & Policy, Seattle, Kevin Allen Klingbeil, Denver, Co., for Amicus Curiae (Center for Environmental Law & Policy).

Richard Adam Smith, William Hamilton Rodgers, U of Washington, Richard Arthur Poulin, Smith & Lawney PLLC, Seattle, for Amicus Curiae, Citizens Against SEATAC Expansion, Citizens for a Healthy Bay, Columbia Riverkeeper, Friends of Grays Harbor, Kettle Range Conservation Group, Lands Council, Okanogan Highland Alliance, Okanogan Wilderness League.

William Hamilton Rodgers, U of Washington, Seattle, for Amicus Curiae People for Puget Sound.

Richard Arthur Poulin, Smith & Lowney PLLC, William Hamilton Rodgers, U of Washington, Seattle, for Amicus Curiae Public Employees for Environmental Responsibility, Puget Soundkeeper Alliance.

Richard Adam Smith, William Hamilton Rodgers, U of Washington, Seattle, for Amicus Curiae Resources for Sustainable Communities.

Richard Arthur Poulin, Smith & Lowney PLLC, William Hamilton Rodgers, U of Washington, Seattle, for Amicus Curiae Sierra Club.

Richard Adam Smith, William Hamilton Rodgers, U of Washington, Seattle, for Amicus Curiae Washington Toxics Coalition, and Waste Action Project.

BRIDGE, J.

Construction of the third runway at the Seattle-Tacoma International Airport (Sea-Tac) will require placing fill into area wetlands. Before the Army Corps of Engineers may issue a permit to fill wetlands, the project proponent must obtain certification from the State, pursuant to § 401 of the Clean Water Act (33 U.S.C. § 1341), stating that there is reasonable assurance that the project will not violate applicable state water quality standards. On September 21, 2001, the Washington State Department of Ecology issued a § 401 water quality certification to the Port of Seattle (Port) for the third runway project. The Airport Communities Coalition (ACC) appealed the certification to the Pollution Control Hearings Board (PCHB). After a lengthy hearing, the PCHB affirmed the certification but added 16 new conditions it deemed necessary for reasonable assurance that state water quality standards would be met. All parties appealed and this court accepted direct review of the PCHB decision. We conclude that there is reasonable assurance that the third runway project will not violate state water quality standards. We uphold some of the PCHB's additional conditions but reverse others.

I Facts and Procedural History

In 1996, after years of study and debate, the Puget Sound Regional Council determined that a third runway was needed at SeaTac. In response, the Port developed a master plan update for SeaTac, which includes a new 8,500-foot parallel runway to be constructed in the Miller Creek, Walker Creek, and Des Moines Creek watersheds. All three creeks are classified as class AA waters, affording them the highest protection available in the state. The third runway project will fill all or portions of 50 wetlands within those watersheds. The PCHB found:

The site of the proposed Third Runway is currently a wooded canyon encompassing Miller Creek, the bottom of which lies approximately 150 feet below the level of the Airport's existing runways. To provide the site for the Third Runway, the Port proposes to fill the canyon with over twenty (20) million cubic yards of fill.

PCHB Findings of Fact, Conclusions of Law, and Order at 12 (PCHB Dec). On October 25, 2000, the Port submitted a joint aquatic resource permit application (JARPA) to the Army Corps of Engineers and to the Washington State Department of Ecology (Ecology), pursuant to § 404 of the Clean Water Act (33 U.S.C. § 1344). The Port's JARPA also constituted an application to Ecology for certification that the Port's plan complies with applicable water quality laws, as required by § 401 of the Clean Water Act (33 U.S.C. § 1341).¹

The Port submitted to Ecology numerous reports and studies on the impact of the third runway on various aspects of water quality. Ecology conducted a series of public hearings and proceeded with an in depth review of the Port's plan. Ecology issued a § 401 certification on August 10, 2001, and ACC and the Port appealed that certification to the PCHB. After negotiations between the Port and Ecology, Ecology rescinded its August certification and issued a new § 401 certification on September 21, 2001. Ecology issued the new § 401 certification as an order under chapter 90.48 RCW, thereby ensuring that its conditions would be enforceable, independent of the federal § 404 permit. The ACC again appealed the § 401 certification to the PCHB.

In December 2001, the PCHB granted ACC's motion to stay the effectiveness of the certification and Citizens Against SeaTac Expansion (CASE) successfully intervened. The PCHB held a 10-day hearing in March 2002. The PCHB admitted written direct testimony, portions of deposition testimony, and numerous exhibits. After an in depth review of the nearly 58,000-page record, the PCHB issued a 139-page decision on August 12, 2002, including findings of fact and conclusions of law. The PCHB affirmed Ecology's § 401 certification but added 16 new conditions which the PCHB deemed necessary for reasonable assurance.² Several conditions are not challenged here and therefore stand.³

The Port filed a petition for judicial review of the PCHB decision in King County while ACC and CASE and Ecology filed separate petitions for judicial review in Thurston County. All of the cases were transferred to King County and consolidated.

The Port immediately filed a motion for direct review at Division One of the Court of Appeals, and the Court of Appeals certified all motions for discretionary review to this court. All parties urged this court to review the PCHB decision directly. This court accepted certification and granted discretionary review on March 6, 2003.

In the meantime, on December 13, 2002, the Army Corps of Engineers issued a federal Clean Water Act § 404 permit to the Port, incorporating Ecology's certification and 7 of the PCHB's 16 conditions. Airport Cmtys. Coalition v. Graves, 280 F.Supp.2d 1207, 1211, 1214 (W.D.Wash.2003).⁴ The ACC sought review of the Army Corps' certification in federal court, arguing that the Corps acted arbitrarily and capriciously when it failed to incorporate all of the PCHB's conditions. On August 18, 2003, Judge Rothstein of the United States District Court granted summary judgment in the Corps' favor. Judge Rothstein concluded that it was within the Corps' discretion to accept or reject the PCHB's conditions because those conditions arose outside of the one-year time frame for state certification imposed by § 401 of the Clean Water Act. Judge Rothstein further noted that the Corps district engineer, in his discretion, may modify the § 404 permit to incorporate additional conditions upon conclusion of this court's review. The federal court may then again review the engineer's decision. Moreover, the Graves court noted that the state of Washington can take measures to ensure its continued involvement, including issuing the § 401 certification, "in the form of an independently enforceable order such that at the end of the judicial review process, there are independent state requirements above and beyond the federal requirements." Id. at 1217.

In sum, the federal court did not require that the Army Corps adopt any PCHB conditions affirmed by this court. However, the § 401 certification was issued as an independently enforceable state order under chapter 90.48 RCW, and the PCHB decision merely added conditions to that order. Thus, all unchallenged PCHB conditions and those affirmed by this court must be incorporated into the § 401 certification by Ecology and are independently enforceable under state law.

II Issues and Summary of Conclusions

A. Deference and Scope of Review

1. What level of deference is due Ecology where Ecology and the PCHB disagree? With regard to each challenge to a § 401 certification, the PCHB must determine as a threshold matter whether the § 401 certification provides reasonable assurance that state water quality standards will be met. The PCHB may create an additional condition only after it has concluded that the § 401 certification is inadequate to protect water quality. Ecology's interpretations of water quality statutes and its own regulations are entitled to great weight. A PCHB factual finding will not be overturned unless it is clearly erroneous, but deference will be given to Ecology on technical issues based on Ecology's specialized expertise.

2. Did the PCHB apply the proper scope of review? The PCHB did not erroneously interpret or apply the law or act contrary to agency rule when it considered plans, reports, and studies that were not available to Ecology. The scope of PCHB review is truly de novo, subject to established discovery deadlines.

B. Reasonable Assurance...