Seattle v. The Pollution Control Hearings Board, No. 73419-4 (WA 5/14/2004), No. 73419-4

CourtUnited States State Supreme Court of Washington
Writing for the CourtBridge
Docket NumberNo. 73419-4
PartiesPORT 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.
Decision Date14 May 2004

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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.
Oral Argument Date: November 18, 2003
Filed: May 14, 2004

Appeal from Superior Court of County. Judgment or order under review. Date filed: 10/29/2002. Judge signing: Hon. Suzanne M Barnett.

Counsel for Petitioner(s), Traci Marie Goodwin, Attorney at Law, PO Box 1209, Seattle, WA 98111-1209.

Patrick J. Mullaney, Attorney at Law, Foster Pepper & Sheffelman Pllc, 1111 3rd Ave Ste 3400, Seattle, WA 98101-3299.

Roger A. Pearce, Attorney at Law, 1111 3rd Ave Ste 3400, Seattle, WA 98101-3264.

Gillis Edward Reavis, Brown Reavis & Manning PLLC, 1201 3rd Ave Ste 320, Seattle, WA 98101-3075.

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Linda J. N. Strout, Port of Seattle, PO Box 1209, Seattle, WA 98111-1209.

Peter J. Eglick, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.

Rachael Paschal Osborn, Attorney at Law, 2421 W Mission Ave, Spokane, WA 99201-2928.

Michael P Witek, Helsell Fetterman LLP, 1001 4th Ave Plaza Ste 4200, Seattle, WA 98154.

Richard Arthur Poulin, Smith & Lowney PLLC, 2317 E John St, Seattle, WA 98112-5412.

Counsel for Respondent(s), Jean Marie Wilkinson, Attorney Generals Office, PO Box 40100, Olympia, WA 98504-0100.

Joan Margaret Marchioro, Wa State Aty General's Ofc/ Ecology Div, 2425 Bristol Ct SW Fl 2, PO Box 40117, Olympia, WA 98504-0117.

Sharonne E O'Shea, Attorney Generals Office, PO Box 40117, Olympia, WA 98504-0117.

Thomas J. Young, Attorney General's Office, Ecology Division, PO Box 40117, Olympia, WA 98504-0117.

Amicus Curiae on behalf of SIERRA CLUB, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of WASHINGTON TOXICS COALITION, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall,

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1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of PUBLIC EMPLOYEES FOR ENVIRONMENTAL RESPONSIBILITY, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of WASTE ACTION PROJECT, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of PUGET SOUNDKEEPER ALLIANCE, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of RESOURCES FOR SUSTAINABLE COMMUNITIES, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of CITIZENS FOR A HEALTHY BAY, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of CITIZENS AGAINST SEATAC EXPANSION, Richard Adam Smith, Attorney at Law, 2317 E John St, Seattle, WA 98112.

Amicus Curiae on behalf of KETTLE RANGE CONSERVATION GROUP, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of COLUMBIA RIVERKEEPER, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of OKANOGAN HIGHLAND ALLIANCE, William Hamilton Jr Rodgers,

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U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of FRIENDS OF GRAYS HARBOR, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of OKANOGAN WILDERNESS LEAGUE, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of LANDS COUNCIL, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

Amicus Curiae on behalf of CENTER FOR ENVIRONMENTAL LAW & POLICY, Karen Allston, Center for Environmental Law & Policy, 2400 N 45th St Ste 101, Seattle, WA 98103-6973.

Kevin Allen Klingbeil, Attorney at Law, 383 Clarkson St, Denver, CO 80218.

Shirley Waters Nixon, Center for Environmental Law & Policy, 2400 N 45th St Ste 101, Seattle, WA 98103.

Amicus Curiae on behalf of WASHINGTON STATE ASSOCIATION OF MUNICIPAL ATTORNEYS, Suzanne Marie Skinner, Seattle City Attorneys Office, 600 4th Ave Fl 4, PO Box 94769, Seattle, WA 98124-4769.

Amicus Curiae on behalf of PEOPLE FOR PUGET SOUND, William Hamilton Jr Rodgers, U of Washington, 530 Condon Hall, 1100 NE Campus Pkwy, Seattle, WA 98195.

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BRIDGE, J.


Construction of the third runway at the Seattle-Tacoma International Airport (SeaTac) 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 sec. 401 of the Clean Water Act (33 U.S.C. sec. 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 sec. 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

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State Department of Ecology (Ecology), pursuant to sec. 404 of the Clean Water Act (33 U.S.C. sec. 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 sec. 401 of the Clean Water Act (33 U.S.C. sec. 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 sec. 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 sec. 401 certification on September 21, 2001. Ecology issued the new sec. 401 certification as an order under chapter 90.48 RCW, thereby ensuring that its conditions would be enforceable, independent of the federal sec. 404 permit. The ACC again appealed the sec. 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 sec. 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 sec. 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...

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