POLLUTION CONTROL HEARINGS BOARD

STATE OF WASHINGTON

 

AIRPORT COMMUNITIES COALITION,

 

                                                Appellant,

 

            v.

 

STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY and THE PORT OF SEATTLE,

 

                                                Respondents.

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PCHB 01-160

 

ORDER GRANTING MOTION TO STAY THE EFFECTIVENESS OF SECTION 401 CERTIFICATION

 

Appellant Airport Communities Coalition (ACC) filed a motion to stay the effectiveness of § 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, this motion now applies to stay the effectiveness of the re-issued § 401 Certification No. 1996-4-02325 (amended-1) issued by Ecology on September 21, 2001.

The Board, comprised of Kaleen Cottingham (presiding) and Robert V. Jensen, heard oral argument on this motion on October 15, 2001, and reviewed the briefs, declarations and exhibits filed on this motion[1].  Having considered the arguments of the parties and being advised of the merits, the Board enters the following:

              

               This § 401 Certification is a pre-requisite to the issuance of a § 404 permit by the U.S. Army Corps of Engineers.  Water quality certifications are required under the following terms of section 401 of the Clean Water Act (CWA) (33 U.S.C. 1341):

Any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate that any such discharge will comply with the applicable provisions of 1311, 1312, 1313, 1316, and 1317 of this Title.

 

 

The state thus certifies that a proposed federal action complies with applicable water quality laws. The federal action at issue here is a permit to be issued under § 404 of the CWA (33 U.S.C. § 1344) to allow the Port to fill certain wetlands as part of the development of the third runway and other projects at the SeaTac International Airport.  The U.S. Army Corps of Engineers will rely upon a § 401 Certification in finding the project meets all applicable federal and state water quality criteria before issuing a decision on a § 404 permit.  33 U.S.C. § 1341 (d); 33 CFR § 320.4 (d).

            The Board may stay the effectiveness of an order during the pendency of an appeal.  RCW 43.21B.310 and WAC 371-08-415.  The party requesting the stay must make a prima facie case for issuance of the stay by showing either: (1) a likelihood of success on the merits of the appeal; or (2) irreparable harm.  If a prima facie case is made, the Board shall grant the stay unless Ecology demonstrates either a substantial probability of success on the merits or a likelihood of success coupled with an overriding public interest justifying denial of the stay.  RCW 43.21B.320 and WAC 371-08-415.

            A stay is akin to a preliminary injunction and is not an adjudication on the merits, but rather a device for preserving the status quo and preventing irreparable loss of rights before the judgment.  Textile Unlimited, Inc. v. ABMH and Co., Inc., 240 F.3d 781 (9th Cir. 2001), citing Sierra On-line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984).

               Likelihood of success on the merits means one or both sides have presented the Board with justiciable arguments for and against a particular proposition.  Likelihood of success on the merits is not a pure probability standard under RCW 43.21B.320 and WAC 371-08-415(4).  Blohowiak et al. v. Seattle-King County Department of Health, PCHB No. 99-093 (Order on Motions for Partial Summary Judgment and Stay, September 28, 1999).  This standard does not require the moving party to demonstrate it will conclusively win on the merits, but only that there are questions "so serious…. as to make them fair ground for litigation and thus for more deliberative investigation."  Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (C.A. 2d Cir. 1971).  The evaluation of the likely outcome on the merits is based on a sliding scale that balances the comparative injuries that the parties and non-parties may suffer if a stay is granted or denied. For example, where the non-moving party will incur little or no harm or injury if a stay is granted, then the moving party's demonstration of likelihood of success need not be as strong as where the non-moving party would suffer great injury. Federal Practice and Procedure, Wright & Miller, SS 2948, Chapter 9, pp. 453-455.  The sliding scale used to determine the likelihood of success must also take into account the injuries that the non-parties may suffer if a stay is granted or denied. Abbott Laboratories v. Mead Johnson Company, 971 F2d 6, 11-12 (C.A. 7th Cir. 1992).

               The party requesting the stay need only show a likelihood of success on the merits on one of the issues raised on appeal, not all of the issues raised, in order to meet its burden under RCW 43.21B.320 and WAC 371-08-415.

               In determining Appellant’s likelihood of success on the merits, the Board looks to the standards governing issuance of § 401 Certifications.  A certification must be based on a valid finding that “there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards.” 40 CFR § 121.2(a)(3); PUD No. 1 v. Washington Dept. of Ecology, 511 U.S. 700, 712 (1994).  A § 401 Certification means the state has reasonable assurance there will be compliance with water quality laws.  Friends of the Earth v. Department of Ecology, PCHB No. 97-64 (1988).

        The § 401 Certification also requires reasonable assurance that any impacts to aquatic resources will be fully mitigated.  This requirement is derived from the Washington State anti-degradation policy:

Waters of the state shall be of high quality.  Regardless of the quality of the waters of the state, all wastes and other materials and substances proposed for entry into said waters shall be provided with all known, available, and reasonable methods of treatment prior to entry.  Notwithstanding that standards of quality established for the waters of the state would not be violated, wastes and other materials in the substances shall not be allowed to enter such waters which will reduce the existing quality thereof, except in those situations where it is clear that overriding considerations of the public interest will be served.

 

 

RCW 90.54.020(3)(b).  See: Okanogan Highlands Alliance et al. v. Department of Ecology, PCHB Nos. 97-146, 97-182, 97-183, 97-186, and 99-019 (Final Findings of Fact, Conclusions of Law and Order, January 19, 2000).

In order to overturn a § 401 certification, the Appellant “must establish by a preponderance of the evidence that Ecology did not have ‘reasonable assurance’ the applicable provisions [of the Clean Water Act and state water quality standards] would be complied with.”  Friends of the Earth v. Ecology, PCHB 87-63 (Final Findings of Fact, Conclusions of Law and Order at 25 (1988)(majority opinion.) 

            Water quality standards are composed of three elements: numeric criteria for conventional pollutants and toxic substances, WAC 173-201A-030(1)(c) and WAC 173-201A-040; narrative criteria protecting beneficial uses of state waters, WAC 173-201A-030(1)(a) and (b); and an antidegradation standard.  RCW 90.54.020(3) and WAC 173-201A-070.  Washington’s water quality standards include procedural and substantive requirements for determining compliance.

            The term “reasonable assurance” is not defined in the law nor has the Board defined the term in any of the previous decisions evaluating reasonable assurance[2].  In such instances, the board looks to a dictionary to determine a term’s common meaning.  See Development Services of America v. Seattle, 138 Wn.2d 107, 118 (1999).  Webster’s Third New International Dictionary (1971) defines “reasonable” as “being within the bounds of reason: not extreme: not excessive and moderate.”  It defines “assurance” as “something that inspires or tends to inspire confidence” and “the quality or state of being sure or certain: freedom from doubt: certainty.”  Taken together “reasonable assurance” means something is reasonably certain to occur.  Something more than a probability; mere speculation is not sufficient.  See Friends of the Earth, PCHB 87-63 at 28.

            Appellants contend reasonable assurance was not present for this § 401 Certification in several areas: 1) wetland mitigation; 2) low flow analysis; 3) low flow augmentation plan; 4) contaminated fill criteria; and 5) stormwater.  This decision and order is formatted to parallel the requirements for granting a stay: Appellant’s prima facie case; Respondent’s showing of overriding public interest; and irreparable harm.  The Board’s decision focuses on three of the areas raised by Appellants: wetland mitigation, low flow augmentation, and contaminated fill criteria.

A.           Appellant’s Prima Facie Case

1.      Wetlands

In order to build the third runway, the Port proposes to fill 18.37 acres of wetlands in the Miller, Walker and Des Moines Creek watersheds, impact an additional 2.05 acres of wetlands along Miller Creek, and alter the location of a portion of Miller Creek.  The mitigation to offset these impacts is contained in the Natural Resources Mitigation Plan.  The mitigation plan was developed to take into consideration the Federal Aviation Administration’s (FAA’s) concern for bird-aircraft strike hazards, as well as the provisions of chapter 90.74 RCW.  Ecology developed environmental objectives for the mitigation planning effort that required wetlands impacted be replaced on a one-to-one basis in-basin[3] and on a two-to-one basis out-of –basin.[4]

Off-site mitigation in a watershed is allowed in 33 CFR Part 320.4(r)(1), however mitigation “shall be required to ensure that the project complies with the § 404 (b)(1) guidelines.”  These guidelines are found at 40 CFR 230.10 et seq.

Off-site mitigation within the same Water Resource Inventory Area (WRIA)[5] is addressed by chapter 90.74 RCW. State agencies are directed to consider “innovative mitigation measures” for infrastructure projects when they “are timed, designed, and located in a manner to provide equal or better biological functions and values compared to traditional on-site, in-kind mitigation proposals.”  RCW 90.74.005(2).  Compensatory mitigation is to occur within a watershed.  RCW 90.74.020(1).  The department of Ecology is “not required to grant approval to a mitigation plan that the department finds does not provide equal or better biological functions with the watershed or bay.”  RCW 90.74.020(2).

               The Anti-degradation policy does not prohibit all impacts to aquatic resources.  Instead, as applied to wetlands, the policy mandates impacts be avoided, minimized and compensated. Okanogan Highlands Alliance et al. v. Department of Ecology.  Wetland mitigation is a series of steps that should be taken in sequential order, from avoiding adverse impacts to compensating and monitoring the impacts.  In the context of wetlands, the anti-degradation policy is expressed in terms of a goal that there be no net-loss of wetlands.  In regulating activities impacting wetlands the department requires a staged analysis and mitigation ratio.  O'Hagen v. DOE, PCHB No. 95-25 (1995). 

When adverse wetland impacts are truly “unavoidable,” an applicant is required to develop a compensatory mitigation plan.  This can include creation of a new wetland, restoration of a former wetland, enhancement of a degraded wetland or some combination of the three.  In some instances, preservation of high quality wetlands and adjacent high quality uplands may be acceptable as part of an overall mitigation package. See: Water Quality Guidelines for Wetlands, Ecology Pub. #96-06, April 1996 at page 43.

Ecology has developed guidelines for mitigation of unavoidable impacts to achieve no net loss.  The guidelines are based on habitat categories.  See: Water Quality Guidelines for Wetlands, Ecology Pub. #96-06, April 1996; How Ecology Regulates Wetlands, Ecology Pub. # 97-112, April 1998; Wetland Mitigation Replacement Ratios: Defining Equivalency, Ecology Pub. No. 92-08, Feb. 1992.  The guidelines provide recommended mitigation ratios as follows:

Wetland category

Creation and Restoration

Enhancement

Category 1

6:1

12:1

Category 2 or 3

·                    Forested

·                    Scrub/shrub

·                    Emergent

 

3:1

2:1

2:1

 

6:1

4:1

4:1

Category 4

1.25:1

2.5:1

 

These ratios are general guidelines that are adjusted up or down based on the likelihood of success of the proposed mitigation and the expected length of time it will take to reach maturity.

            The Memorandum of Agreement between the Environmental Protection Agency and the Department of the Army (February 6, 1990 implementing the § 404 guidelines) explains in the absence of more definitive information on the functions and values of specific wetland sites, a minimum of 1:1 acreage replacement may be used as a reasonable surrogate for no net loss of functions and values.  Ecology required the Port to provide mitigation of 1:1 in the basin and 2:1 out-of-basin. 

The mitigation plan for the projects at the Airport provides for 102.27 acres of in-basin mitigation and 65.38 acres of out-of-basin mitigation, for a total of 167.65 acres of mitigation to offset the impacts from filling the 18.37 acres.  The wetlands being filled by the Port are classified[6] as follows:

Wetland Category

Total acres filled/eliminated

Category 1

0

Category 2 or 3

·                    Forested

·                    Scrub/shrub

·                    Emergent

 

8.17

2.98

5.21

Category 4

2.01

Buffer enhancement

Na

Total

18.37

 

 

 

 

 

 

Using Ecology’s guidelines, the following shows the numbers of acres required for mitigation:

Wetland Category

Ecology’s guideline for creation/restoration

Ecology’s guideline for enhancement

Category 1

NA

NA

Category 2 or 3

·                    Forested

·                    Scrub/shrub

·                    Emergent

 

22.71

6.14

11.26

 

45.42

12.28

22.52

Category 4

2.51

5.03

Buffer enhancement

0

 

Total

42.62

60.90

 

 

 

 

 

 

 

The Port’s mitigation plan includes the following acres, by wetland category and segregated by location:

Wetland Category

Filled wetland acres

Acres of wetlands created or restored

Acres of wetlands enhanced

Acres of buffer enhancement

Total acres

Category 1

0

 

 

 

 

Category 2 or 3

·                    Forested

·                    Scrub/shrub

·                    Emergent

 

8.17

2.98

5.21

 

25.96

9.53

5.2

 

 

19.54

 

 

25.96

29.07

5.2

Category 4

2.01

 

 

 

 

Upland Buffer

Na

 

 

43.39

43.39

Total Acres

18.37

40.79

19.54

43.39

103.72

Credited Acres

Na

11.79

4.9

7.23

23.92

 

               To determine the mitigation credits for the Port’s mitigation plan, the mitigation ratio “discounts” are applied to the acres of wetland enhancement, upland buffer enhancement, and wetland preservation.  The mitigation ratio acreage discounts are as follows:

Type of mitigation

Discount

Wetland creation

1:1

Wetland restoration

1:1

Wetland enhancement

1:2

Wetland preservation

1:10

Buffer enhancement

1:5

               Applying the acreage discounts to the Port’s mitigation plan shows that the plan provides 29.82 acre credits for in-basin mitigation and 42.91 credits for out-of-basin mitigation, for a total of 72.73 mitigation acre credits as distributed in the following categories:

Location

Wetland creation

Wetland restoration

Wetland enhancement

Wetland preservation

Upland buffer enhancement

Total

In-basin

0

6.6

21.46

23.55

50.66

102.27

Out-of-basin

29.98

0

19.5

0

15.9

65.38

Total mitigation

29.98

6.6

40.96

23.55

66.56

167.65

Mitigation ratio

1:1

1:1

1:2

1:10

1:5

 

In-basin credit

0

6.6

10.73

2.36

10.13

29.82

Out-of-basin credit

29.98

0

9.75

0

3.18

42.91

Total mitigation credit

29.98

6.6

20.48

2.36

13.31

72.73

 

               As noted above, Ecology chose a 1:1 replacement ratio for both wetland creation and wetland replacement despite its own publication (Water Quality Guidelines for Wetlands, Ecology Pub. # 96-06), which indicates “historically a replacement ration of 1:1 was common.  In recent years the ratio has increased and seldom is a 1:1 ratio acceptable to any regulatory agency.” 

               It appears from the information presented that the mitigation plan shifts the mitigation from restoration, creation and enhancement of wetlands to enhancement of upland buffers or to out-of-basin mitigation.  Approximately 1/3 of the mitigation acres are in-basin upland buffers and approximately 1/3 of the mitigation acres are out-of-basin. 

               Although state law allows Ecology to approve off-site mitigation, it must be within the same watershed.  Compliance with chapter 90.74 RCW does not necessarily result in compliance with the Clean Water Act.  Chapter 90.74 RCW guides Ecology on mitigation, but it does not override the requirement under federal law that the agency shall grant certification only if it has reasonable assurance that water quality standards will be met. 

               Appellants have sho