POLLUTION CONTROL HEARINGS BOARD
FOR THE STATE OF WASHINGTON
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AIRPORT COMMUNITIES COALITION, Appellant, CITIZENS AGAINST AIRPORT EXPANSION, Intervenor, v. STATE OF WASHINGTON, DEPARTMENT OF ECOLOGY; and THE PORT OF SEATTLE, Respondents. |
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PCHB NO. 01-160 FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER |
This matter came on for hearing before the Pollution Control Hearings Board (Board) on March 18-29, 2002. The Board was comprised of Kaleen Cottingham, presiding, Robert V. Jensen, and William H. Lynch. The Appellant, Airport Communities Coalition (ACC), and Intervenor, Citizens Against Airport Expansion (CASE), challenge the Port of Seattle’s (Port) §401 Water Quality Certification issued on September 21, 2001, by the Department of Ecology (Ecology) for the construction of a Third Runway, and related projects at the Seattle-Tacoma International Airport (Airport).
Appellant Airport Communities Coalition (ACC) was represented by Peter Eglick, Kevin Stock and Michael Witek of Helsell Fetterman, and Rachael Paschal Osborn; Intervenor Citizens Against Airport Expansion (CASE) was represented by Richard Poulin of Smith & Lowney; Respondent Washington State Department of Ecology (Ecology) was represented by Joan Marchioro, Thomas Young, and Jeff Kray, Assistant Attorneys General; and Respondent Port of Seattle (Port) was represented by Jay Manning and Gillis Reavis of Brown Reavis & Manning, Roger Pearce and Steven Jones of Foster Pepper & Shefelman, and Port Counsel Linda Strout and Traci Goodwin.
Pre-hearing briefs and pre-filed written direct testimony were submitted, witnesses were sworn and heard, exhibits were introduced, portions of eight depositions were published, and the parties presented arguments to the Board. On April 9, 2002, an evidentiary order was issued, along with a final matrix of exhibits, identifying the exhibits admitted in this case, and for what purpose. Based upon the evidence presented, the Board makes the following Findings of Fact and Conclusions of Law.
The parties stipulated to a list of 22 issues to be presented to the Board for resolution. The Board granted summary judgment on one of those issues (Issue No. 14) before the hearing. Another issue (Issue No. 20) was withdrawn following the hearing on the merits, leaving 20 issues for resolution by the Board. The remaining issues have been grouped below in topic areas, both to facilitate the resolution of similar issues, and as an outline for the Findings of Fact and Conclusions of Law.
1.
WATER QUALITY AND
STORMWATER
a. Do the stated limitations on the temporal, operational, and geographic scope of the certification, including its limitation to “Port 404 projects,” violate the requirements of Section 401 of the Clean Water Act and applicable state water quality law? (Issue No. 3)
b. Is there reasonable assurance that the Third Runway and related projects, for which a Clean Water Act Section 401 certification is required, will not violate §401 and applicable water quality law? (Issue No. 4)
c. Must there be reasonable assurance that a proposed project will not violate §401 and applicable water quality law when a §401 certification is issued? (Issue No. 5)
d. Is there reasonable assurance that §401 and applicable water quality law will not be violated if the certification relies on data, reports, and plans that were not in being at the time of issuance of the certification? (Issue No. 6)
e. Did Ecology have reasonable assurance that §401 and applicable water quality laws would not be violated when it relied on a stormwater detention system that may require future compliance with dam safety regulations (chapter 173-175 WAC) and may require a dam safety permit prior to commencing construction? (Issue No. 22)
f. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of the stormwater impacts (with the identified mitigation) of the Third Runway Project? (Issue No. 10)
g. Is there reasonable assurance that §401 and applicable water quality law will not be violated if discharges from the airport have violated water quality standards or the Port’s NPDES (§402) permit? (Issue No. 11)
h. May a certification of reasonable assurance that §401 and applicable water quality law will not be violated be based upon current and future NPDES (§402) permits? (Issue No. 12)
i. Is there reasonable assurance that §401 and applicable water quality law will not be violated if the certification authorizes a mixing zone without compliance with applicable procedural and substantive requirements for authorization of such a zone? (Issue No. 13)
j. Is there reasonable assurance that §401 and applicable water quality law will not be violated where the certification allows future amendment of its terms “by any future Ecology-approved NPDES (§402) permit for the Seattle-Tacoma International Airport as determined in that permit”? (See, e.g., amended certification at 4, § 1.f.) (Issue No. 21)
a. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of low flow impacts (with the identified mitigation) of the Third Runway Project? (Issue No. 8)
a. Must the Port obtain a water right to implement the low stream flow conditions in the certification and if so:
(1) is there reasonable assurance that §401 and applicable water quality law will not be violated in the absence of such a water right, and
(2) is there reasonable assurance that §401 and applicable water quality law will not be violated in the absence of review of a water right application under the State Environmental Policy Act (“SEPA”)? (Issue No. 9)
a. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of the embankment and fill criteria, including:
(a) the method of determining compliance with the fill criteria,
(b) embankment and wall construction specifications, and
(c) groundwater discharges from the embankment and Mechanically Stabilized Earth (“MSE”) wall. (Issue No. 15)
b. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of the possibility of MSE wall and embankment failure? (Issue No. 16)
a. Is there reasonable assurance that potential migration and discharge of existing groundwater pollutants originating from the airport (with the identified mitigation) will not violate §401 and applicable water quality law? (Issue No. 17)
b. Is there reasonable assurance that §401 and applicable water quality law will not be violated if the Port is in violation of the terms of the MTCA Agreed Order for SeaTac International Airport (Ecology Order No. 97TC-N122, dated 5/15/99)? (Issue No. 18)
c. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of wetland fill, stream alteration, and identified mitigation activities? (Issue No. 19)
a. Is there reasonable assurance that §401 and applicable water quality law will not be violated as a result of wetland fill, stream alteration, and identified mitigation activities? (Issue No. 19)
7.
MONITORING AND ADAPTIVE MANAGEMENT
a. Is there reasonable assurance that §401 and applicable water quality law will not be violated if (1) the certification relies on future monitoring, or (2) if the certification fails to require adequate pre-construction monitoring? (Issue No. 7)
a. Did Ecology violate applicable law pertaining to public and agency notice, hearing, comment, and modification regarding the original §401/404 application and Amended certification? (Issue No. 1)
a. Does Ecology’s concurrence with the Port’s consistency certification, issued pursuant to the Coastal Zone Management Act (“CZMA”), fail to comply with the requirements of the CZMA and Washington’s approved Coastal Zone Management Plan? (Issue No. 2)
III.
PROCEDURAL HISTORY
The proposal to construct the
improvements at the Seattle-Tacoma International Airport (Airport) was the
culmination of years of study, debate, and decisions by governmental bodies and
elected officials in the Puget Sound region to address the region’s commercial
air transportation needs and, in particular, to address poor weather delays and
increasing demand on facilities at the Airport. In 1996, the regional transportation planning organization–the
Puget Sound Regional Council–adopted resolutions adding a Third Runway at the
Airport to the Regional Transportation Plan for the Puget Sound region and
determining a new major supplemental airport, at another location, was not
feasible.
The Plan
developed by the Port is called the Master Plan Update (MPU) and includes the
proposed Third Runway and related facilities.
Because some of the improvements require filling waters of the United
States, the Port submitted a Joint Aquatic Resource Permit Application (JARPA)
to the U.S. Army Corps of Engineers and Ecology in December 1996. A JARPA is the form used to apply for
Hydraulic Project Approvals, Shoreline Management Permits, Approvals for
Exceedance of Water Quality Standards, Water Quality certifications, and U.S.
Army Corps of Engineers §404 and §10 (of the Rivers and Harbor Act)
permits.
At the
time of application, the Port did not have title to a number of properties on
the westside of the Airport necessary for completion of the project. These properties are located in the area
between the embankment for the second runway and State Route (SR) 509. After the JARPA application was submitted
and public notice was issued, the Port began acquiring the westside properties
and gaining access to those properties.
Because new wetlands were discovered after gaining access to the
westside properties, a second public notice was issued.
The Port also submitted a Coastal
Zone Management Act (CZMA) Consistency Statement to Ecology in December
1999. At Ecology’s request, the Port
resubmitted its CZMA Consistency Statement on May 22, 2000. The Consistency Statement was revised on
January 22, 2001.
Pursuant to 33 C.F.R.
§325.2(b)(ii), Ecology must complete its review and issue a §401 certification
within one year of the filing of the JARPA application. In response to a request from Ecology for
additional time to complete its §401 review, the Port agreed to withdraw the
JARPA application and resubmitted an application to the Corps on October 25,
2000.
The filing of the JARPA constituted an application to the Army Corps of Engineers for a permit pursuant to §404 of the Clean Water Act (33 U.S.C. 1344) for permission to discharge dredge or fill materials into waters of the United States, i.e., the filling of wetlands necessary for construction of the Port’s proposed Third Runway and other Master Plan Update Improvements.
The JARPA application also
constituted an application under §401 of the Clean Water Act (33 U.S.C. 1341)
for certification by the State of Washington as to whether or not the Port’s
proposal complied with applicable water quality laws.
On August 10, 2001, Ecology issued Order No. 1996-4-02325, a §401 certification, and a Coastal Zone Management Act consistency statement for the Port’s proposed Third Runway and other Master Plan Update projects. The §401 certification was appealed on August 23, 2001, by ACC, and assigned PCHB Case No. 01-133. On September 10, 2001, the Port of Seattle filed its own Notice of Appeal of the August §401 certification, which was assigned PCHB Case No. 01-150. At the same time, the Port filed a Stipulation and Agreed Order signed by Ecology for entry by the Board to modify the §401 certification and, on that basis, dismiss the Port’s appeal. It also would have potentially mooted ACC’s appeal. ACC objected to entry of the Order.
After two status
conferences before the Board, Ecology indicated it would rescind the existing
§401 certification and issue a new §401 certification in lieu of requesting the
Board to approve the Stipulation and Agreed Order of Dismissal. All parties, including ACC, agreed to this
proposal, which was reflected in an Agreement and Order signed by all parties
and entered by the Board on September 20, 2001.
Ecology thereafter withdrew
the August §401 certification and issued a new one, on September 21, 2001,
Order No. 1966-4-02325 (Amended-1).
Pursuant to the stipulation, the pleadings on ACC’s prior appeal and
Motion for Stay were transferred to a new appeal file (PCHB Case No. 01-160)
for the September §401 certification.
The Board heard oral argument
on ACC’s Motion for Stay on October 15, 2001.
On December 17, 2001, the Board issued its Order Granting ACC’s Motion
to Stay the Effectiveness of the §401 certification. On December 21, 2001, Citizens Against Sea-Tac Expansion (CASE)
was granted Appellant Intervenor status.
Prior to the hearing on the merits, the Board considered two motions for summary judgment. The first was ACC’s motion for summary judgment on the water right issue (Issue No. 9). At the time this summary judgment was decided, the Board consisted of two members, who split on the disposition of the motion. Based on this split decision, ACC’s motion was denied. Subsequently, a third member was appointed to the Board prior to the March 2002 hearing on the merits. Accordingly, the Board reserved resolution of this issue until the final decision on the merits.
The second summary judgment motion was brought by the Port on the SEPA issue (Issue No. 14). The Board granted the Port’s motion on this issue under a separate order, dated March 14, 2002, finding the environmental documents prepared by the Port and FAA contained a detailed look at the impacts of the project and proposed mitigation, even though some of the mitigation plans had become more detailed over time. The decision on this motion for summary judgment is incorporated into this decision by reference.
The hearing on the merits was held before the Board on March 18 through March 29, 2002. For the convenience of the Board and to reduce the time of the hearing, direct testimony from witnesses was submitted in writing prior to the hearing. At the hearing, the parties also presented witnesses for direct examination, cross-examination, and questioning by members of the Board. In addition, the Board allowed Appellants to submit portions of certain deposition testimony as part of the evidence in the case, and Respondents were allowed to submit counter-designations of deposition testimony. Rulings on the admissibility of the various exhibits offered by the parties are contained in a separate order issued by the Board, dated April 9, 2002.
After closing arguments on March 29, 2002, the Board left the record open for several purposes, which have been separately addressed in subsequent orders, which are incorporated into this decision by reference. The Board also set a schedule for submission by the parties of proposed Findings of Fact and Conclusions of Law pursuant to RCW 34.05.461(8)(a).
IV.
FINDINGS OF FACT
The improvements at the Airport contained in the MPU include a new 8,500-foot parallel runway approximately one-half mile west of the existing two runways, a 600-foot extension of existing Runway 34R, extension of existing runway safety areas, terminal improvements, and construction of the South Aviation Support Area to accommodate aircraft maintenance and air cargo facilities.
The Third Runway portion of the project is to be constructed in the Miller Creek, Walker Creek, and Des Moines Creek watersheds. In addition, some of the mitigation occurs at a proposed off-site mitigation area in Auburn, which is outside the individual watersheds impacted by the project, but within the same administrative Water Resource Inventory Area (WRIA), WRIA 9. Miller, Walker, and Des Moines Creeks are all classified as Class AA waters of the state, the highest and most protective category established for state waters. Des Moines Creek and Miller Creek have been administratively closed for further consumptive appropriation throughout the entire year.
The project would fill all or portions of 50 wetlands. As a result of the filling of these wetlands, the project cannot proceed without a permit approval under §404 of the federal Clean Water Act, a permit program administered by the U.S. Army Corps of Engineers. As a prerequisite to issuance of a §404 permit, the state must issue a Clean Water Act §401 certification. The project would also require filling and reconstruction of portions of Miller Creek and portions of drainage channels in the Miller and Des Moines Creek basins.
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. Under the fill, the Port would construct a drainfield to capture and transport groundwater.
The Port proposes an elaborate system of embankments and retaining structures to keep the 20 million cubic yards of fill in place. One element of this would be a 135-foot-high mechanically stabilized earth (MSE) wall with a 20-foot high sloped embankment above the wall. This section of the wall would run for approximately 1,500 feet. The proposed construction footprint for the MSE wall comes within approximately 50 feet of Miller Creek.
The Port’s JARPA application was first submitted in 1996. In 1997 the Corps issued a public notice of the Port’s application. In April 1998, the Corps and Ecology conducted the first of three joint public hearings on the application. A significant number of public comments were submitted to the Corps and Ecology, and the Port prepared detailed written responses to the comments. In July 1998, following in-depth review of the permit application, Ecology issued a §401 certification for the project, which included a significant number of conditions.
During this time period, the Port was acquiring properties on the west side of the Airport necessary for construction of the new runway. After acquiring the properties and conducting on-the-ground wetland delineations, the Port discovered more wetlands than previously estimated from aerial photos and distant observations from nearby rights-of-way. Accordingly, in September 1999, the Corps issued a revised public notice, which reinitiated Ecology’s review under §401. The Corps and Ecology conducted another public hearing. Once again, extensive public comments were submitted, and the Port again prepared detailed written responses to those comments.
Ecology’s reinitiated §401 review was more extensive than its original review. Ecology contracted with King County to review the Port’s proposed Stormwater Management Plan for compliance with the technical requirements of the King County Surface Water Design Manual. King County conducted a multi-year review of the plan. Following that review, King County approved the revised Stormwater Management Plan.
Ecology also contracted with Pacific Groundwater Group to conduct a study of the potential impacts of the proposed Third Runway embankment on aquifers, wetlands, and streams in Miller, Walker, and Des Moines Creeks basins, culminating in the Sea-Tac Runway Fill Hydrologic Studies Report (2000). During this period, the Port also prepared numerous technical and environmental reports regarding wetlands and aquatic resources, including but not limited to the following:
Biological Assessment, Master Plan Update Improvements, Seattle-Tacoma International Airport (Parametrix 2000)
Seattle-Tacoma Airport Master Plan Update
Low Streamflow Analysis (Earth
Tech, Inc. 2000)
Wetland Functional Assessment and Impact Analysis, Master Plan Update Improvements, Seattle-Tacoma International Airport (Parametrix 2000)
Natural Resource Mitigation Plan, Master Plan Update Improvements, Seattle-Tacoma International Airport (Parametrix 2001)
Subsurface Conditions Data Report 404 Permit
Support Third Runway Embankment (Hart
Crowser, July 1999)
Stability Review of RECo 30% Design Third
Runway Embankment Project (Draft
Memorandum Hart Crowser, November 2000)
Geotechnical Engineering Analyses and
Recommendations Third Runway Embankment (Draft Memorandum Hart Crowser, December 2000)
Revised Methods and Results of Liquefaction
Analysis Third Runway Embankment (Draft
Memorandum Hart Crowser, March 2001)
In December 2000, the Corps issued another revised public notice, inviting further public comment on the application and studies. In January 2001, the Corps and Ecology conducted a third public hearing and accepted additional public comments.
The §401 certification was issued on September 21, 2001. As discussed above, the September §401 certification replaced an earlier version of the certification issued on August 10, 2001. The §401 certification is limited to the work described in the October 25, 2000, JARPA, as amended. The §401 certification is further subject to the conditions contained in the Order itself and to the water quality and aquatic resource related conditions of the: 1) Hydraulic Project Approval (HPA) issued by the Department of Fish and Wildlife, 2) the National Pollution Discharge Elimination System (NPDES) permit #WA-002465-1 issued by Ecology on February 20, 1998 and modified on May 29, 2001, and 3) the NPDES General Stormwater Permit for Construction Activity #S03-00491 issued by Ecology on April 4, 2001. The conditions contained in the §401 certification itself are enumerated in fifteen sections (A through O) intended to ensure compliance with all appropriate water quality law.
Those specific conditions address:
A. Water Quality
B. Permit Duration
C. Notification and Reporting Requirements
D. Wetland, Stream and Riparian Mitigation
E. Conditions for Acceptance of Fill
F. Prevention of Transport of Contaminants
G. Dam Safety Requirements
H. Upland Construction Activities
I. Mitigation of Low Flow Impacts
J. Operational Stormwater Requirements
K. Construction Stormwater Limitations and Monitoring Requirements
L. Emergency/Contingency Requirements
M. General Conditions
N. Violations of the Order
O. Appeal Process
Originally the §401 certification (August version) provided "This Order shall be valid during construction and long-term operation and maintenance of the project.” As revised in September, the current §401 certification provides in pertinent part the Order shall be valid during construction of the project, with several, but not all, provisions valid during long-term operation and maintenance of the project. Some of the provisions that are valid for the long-term are: 1) restrictive covenants protecting the mitigation areas, 2) the Final Natural Resources Mitigation Plan (NRMP) as amended, and 3) the low streamflow facilities and the revised Low Stream Flow Plan as amended. Some of the provisions only apply for a fixed duration: 1) provisions regarding wetland, stream, and riparian mitigating monitoring and reporting, 2) the Surface Water and Groundwater Monitoring Plan, and 3) the plan to monitor potential contaminant transport via subsurface utility lines. The remainder of the provisions applies only during construction.
The provisions of the operational stormwater requirements (condition J), to the extent they are incorporated into and superseded by any future NPDES permit for the Airport, shall be superseded as determined in the NPDES permit. If a condition is not incorporated, it shall remain in effect as provided in condition J.
The §401 certification is a one-time opportunity for the State to assure water quality standards will be met, whereas the §402 permit (the NPDES permit) will be periodically reviewed and updated to assure water quality standards will be met.
a.
General
The three creeks impacted by the projects at the Airport are Miller, Des Moines, and Walker Creeks. They are typical of Puget Sound lowland creeks in urbanizing areas. Portions of these creeks have been channelized, ditched, and straightened. All three creeks have reasonably abundant fish life.
The construction of the proposed projects at the Airport will result in increased impervious surfaces and increased stormwater runoff. Construction of the projects will add approximately 305 acres of new impervious surface at the Airport (approximately 103 acres in the Miller Creek watershed, approximately 6 acres in the Walker Creek watershed, and approximately 128 acres in the Des Moines Creek watershed). In addition, runoff from approximately 67 acres of new impervious surface will be directed to the Industrial Wastewater System (IWS).
Drainage from most of the areas of industrial activity is routed to the IWS for treatment prior to discharge to Miller and Des Moines Creek. The other areas of the Airport drain to the Stormwater Drainage System (SDS), which routes water to various detention facilities prior to discharge to Miller and Des Moines Creeks. The sub-basins on the northern side of the Airport route stormwater to Lake Reba, which discharges to Miller Creek. Runoff from the Northeast Parking lot flows into a vault, which also discharges to Lake Reba. Stormwater from the southern, eastern, and western portions of the Airport is detained in either Tyee or Northwest Ponds prior to discharge to Des Moines Creek. One drainage sub-basin, SDS-3, discharges directly to Des Moines Creek. SDS-3 is the main discharge for the runway. The Airport contributes 5% of the flow to Miller and Walker Creek and 27% of the flow to Des Moines Creek.
The §401 certification is subject to the Port’s National Pollutant Discharge Elimination System (NPDES) permit. The future NPDES permit can supersede the §401 certification provisions. The NPDES permit requires the Port to comply with Best Management Practices (BMPs) for the control and treatment of stormwater. The BMPs are set forth in the Storm Water Pollution Prevention Plan (SWPPP). The NPDES permit requires the Port to maintain the existing SWPPP according to the special condition in the NPDES. Numerous source control and treatment BMPs have been completed at the Airport over the past several years. As part of the Port’s annual SWPPP review and update, the Port reviews existing BMPs and, as appropriate, identifies and selects new BMPs. Whenever a self-inspection reveals the pollution prevention measures and controls are inadequate to meet water quality standards, due to the discharge of or the potential to discharge, the SWPPP shall be modified, as appropriate. The Port shall implement any modifications to the SWPPP in a timely manner.
The BMPs shall be selected from the most recently published edition of the Storm Water Management Manual (SWMM) or manuals deemed equivalent by Ecology, available at least 120 days before the selection of the BMPs. Site-specific BMPs may be selected appropriate for airport industrial activities with approval of Ecology.
The water quality of the Third Runway stormwater runoff is expected to be similar to the water quality of stormwater discharged through Outfall SDS-3 in recent years. Sub-basin SDS-3 consists almost exclusively of runways, taxiways, and grass infields. The Third Runway and new taxiways will add more of the same. Thus, when Ecology and the Port evaluate expected water quality impacts from construction of the Third Runway, they use SDS-3 discharges as a surrogate for future Third Runway-related discharges. Stormwater from the vast majority of the airfield is discharged through outfall SDS-3. Stormwater discharges from Outfall SDS-3 flow through a swale to the Northwest Ponds and into the west tributary of Des Moines Creek.
There are no non-Port contributors of stormwater upstream of SDS-3, and all stormwater that discharges through SDS-3 is runoff from the Port of Seattle.
While some conditions in the §401 certification are standard boilerplate, the §401 certification imposes other conditions where Ecology has uncertainties whether the project will comply with water quality standards. The conditions are aimed at addressing the uncertainties uncovered in Ecology’s reasonable assurance analysis. Each of these conditions addresses essential components of the Third Runway Project and the proposed mitigation. Many of these conditions require the Port to submit additional data, plans, and reports. Where the conditions require the Port to submit new information to Ecology, Ecology reserves the right in the §401 certification to review and approve all new plans. The list of additional information Ecology seeks through the conditions is very long and includes: a mitigation plan for permanent impacts to the Wetland 17A complex, a plan to prevent interception of contaminated groundwater and to monitor potential contaminant transport via subsurface utilities, a revised NRMP, a Surface Water and Groundwater Monitoring Plan, a revised Low Streamflow Analysis and Low Flow Offset Proposal, a Construction Stormwater Pollution Prevention Plan and Erosion and Sediment Control Plan, a Spill Prevention and Containment Plan, a site specific study before stormwater from new surfaces can be discharged into receiving waters, and a Stormwater Facilities Operation and Maintenance Plan.
These post-certification plans and reports are needed for Ecology to have reasonable assurance that the project will comply with water quality laws.
The Port’s NPDES permit covers stormwater discharges from the Airport–both from construction activities and stormwater associated with industrial activities–including the proposed improvements. Ecology conditioned the §401 certification on the Port’s continuing compliance with its NPDES permit. Consistent with the existing NPDES permit and the §401 certification, the Port has prepared a Comprehensive Stormwater Management Plan to manage both the peak flow and low flow impacts, which would otherwise result from the improvements.
Peak flow impacts, i.e., impacts from stormwater falling on the new impervious surfaces constructed as part of the improvements, could result in adverse impacts such as erosion, scouring of area streambeds, and habitat destruction, unless those impacts are appropriately managed. Under the Port’s SMP, peak flow impacts from new and existing impervious surfaces will be mitigated by capturing all stormwater runoff and detaining it in 344.1 acre-feet of stormwater detention facilities, including ponds and vaults. As required by the Ecology and King County stormwater manuals, stormwater collected in the detention facilities will be released at specifically selected flow rates in order to avoid peak flow impacts.
During the drier months of the year, low flow impacts to area streams could also result because the new impervious surfaces constructed as part of the improvements will change the groundwater infiltration patterns. As mitigation for these low flow impacts, Ecology has required some of the stormwater collected in the vaults to be detained and slowly released to Walker and Des Moines Creeks during the summer months. Not only do Appellants challenge the absence of a water right for this water use, but also have raised concerns with the quality of the water held in the vaults. Of particular concern is the potential lack of dissolved oxygen, contaminants from the stormwater, changed pH from the new concrete, and turbidity from the first flush of released retained water. The Appellants have not, however, shown these water quality concerns will not be adequately addressed by the conditions in the §401 certification.
The projects will be constructed on Airport-owned property or, in the case of the Third Runway, on recently acquired residential land. Many existing land uses and sources of adverse water quality impacts will be removed as a result of the projects. For example, over 400 houses and businesses will be removed, which had previously contributed stormwater pollutants such as sediment, metals, pesticides, herbicides, fertilizers, and animal waste. In addition, farms in the Port’s acquisition area will be removed, reducing pollutants commonly associated with farms, such as sediments, animal waste, and agrichemicals.
The §401 certification (Condition J) prohibits any releases of stormwater from the new impervious surfaces until a site-specific study (Water Effects Ratio Study) is complete and Ecology sets effluent limits via the NPDES permit.
b.
Reliance on the
NPDES permit
Ecology employs numeric water quality standards, narrative standards, and an anti-degradation standard in order to maintain water quality. Ecology uses BMPs as the primary method of attaining compliance with water quality standards for stormwater discharges.
The Port applied in December 2001 for renewal of its NPDES permit. In connection with the processing of the renewal application, Ecology will have the opportunity to review the existing stormwater controls the Port is currently using under its existing permit and require the Port to implement new and additional Best Management Practices (BMPs) as appropriate and necessary to control and treat stormwater, including conditions required by the §401 certification. In addition, the §401 certification requires the Port to retrofit the existing stormwater management system at the Airport. The target flow regime will match the flow from a theoretical basin in a predevelopment condition, i.e. the volume of water, which would be expected from pre-Airport conditions: 10% impervious surface, 15% grassland, and 75% forest. This ratio was derived from the Des Moines Creek Basin Study and is viewed as the most beneficial type of flow regime/flow control for that stream to adequately recover. All but 80 acres of the existing Airport will be retrofitted for stormwater quality BMPs.
A portion of Des Moines Creek–located downstream from the Airport adjacent to Puget Sound–is listed pursuant to Section 303(d) of the Clean Water Act as exceeding applicable standards for fecal coliform bacteria. There are no affected Section 303(d)-listed stream segments for any other pollutant, although the potential exists for Ecology to list copper. There was no evidence the projects proposed at the Airport would result in the addition of more fecal coliform to Des Moines Creek. Moreover, the NPDES permit process allows Ecology to place limitations in the Port's NPDES permit, which can include any legally applicable requirements necessary to implement total maximum daily loads ultimately established pursuant to Section 303(d). WAC 173-220-130(1)(b)(iii).
Stormwater discharges at the Airport have been regulated under a NPDES permit since 1994. The Port's current NPDES permit was issued in February 1998. The Port's NPDES permit does not authorize a mixing zone for stormwater discharges. As a result, compliance with surface water quality criteria is at the point of discharge. The NPDES permit requires the preparation of a SWPPP covering areas of industrial aviation activity that drain to the Port’s SDS and to the IWS.
There are several non-Port areas that drain to the SDS:
1. Portions of State Route (SR) 518 (drains to SDN-1)
2. Portions of SR 99 (International Blvd) (drains to SDE-4)
3. Portions of south 188th Street (drains to SDS-1, SDS-2 and SDS-3)
4. Portions of 16th Ave. South (drains to SDS-2)
One of the requirements of the Port’s NPDES permit is the Port must monitor its stormwater discharges. This monitoring is done by taking stormwater samples, using methods specified in the NPDES Permit, for each of the Port’s 14 stormwater outfalls throughout the year, with sampling frequencies specified by Ecology in the NPDES permit. Because the Port’s NPDES permit addresses stormwater quality primarily through the application of BMPs, the general purpose of the Port’s stormwater monitoring has been to determine the effectiveness of the applicable BMPs. The sampling is used to assess whether the BMPs required under that permit are effective, consistent with the adaptive management strategy employed under the Clean Water Act and the Port’s NPDES permit.
Most of the sampling locations specified by the NPDES permit are upgradient from the receiving waters and, in many instances, upgradient from where treatment takes place prior to discharge. The location of these monitoring points was the result of a stipulation/agreed Order in another case between ACC/CASE and the Port. The sampling is not instream due to potential contributions from non-Port sources. The current locations better characterize the Port’s discharges, but do not help characterize the condition of the receiving water. Based on this fact, the sampling results are not truly indicative of the water quality of the stormwater discharges as they enter the receiving waters, or of the water quality in the receiving streams themselves.
The Port has designated monitoring installations. These inspection points and in some cases monitoring stations appear in many places to be substantially removed from the point at which the stormwater or pipe discharges into Des Moines Creek or Miller Creek.
c.
Stormwater Treatment BMPs
The Port’s NPDES permit requires design and implementation of BMPs to mitigate any adverse water quality impacts of stormwater runoff. Ecology’s approach, as evidenced by testimony, is a “presumptive approach” to dissolved metals in industrial stormwater. Ecology assumes that compliance with BMPs will result in no water quality violations, except in certain situations. To address those certain situations, Ecology created a treatment list of BMP choices for those Industrial and highway sites where dissolved metals might be present. The primary water quality "treatment BMP" proposed for the stormwater that will runoff from the new impervious areas of the Third Runway and taxiways is "filter strips." Filter strips are the existing treatment BMPs currently in place at SDS-3. While they may be effective to remove suspended solids including particulate metals, filter strips and biofiltration swales are not effective in removing dissolved metals from stormwater. This is due to the relative lack of suspended particulate matter in the Airport's stormwater waste stream, and the difficulty of achieving a level flow-spreading configuration in such facilities. In late June of 1998, Ecology and Port staff conducted a Reasonable Potential Analysis to determine whether stormwater discharges from the proposed Third Runway had a reasonable potential to exceed water quality standards. Using data from Outfall SDS-3 to represent predicted runoff from the Third Runway, determining surface water quality criteria based on stated hardness values, and considering expected "removal efficiencies" of various BMPs, the Reasonable Potential Analysis predicted resulting "effluent pollutant concentrations." The Reasonable Potential Analysis predicted "Copper concentrations after treatment remained higher than the criteria." As a result, Ecology concluded, "The Port must go beyond minimum BMPs in order for the project to be certified." However, Ecology’s current §401 certification acquiesces in the Port's proposal to use basic BMPs. In developing its Storm Water Management Manual for Western Washington (SWMMWW), Ecology found the basic treatment list of BMPs is not sufficient to assure that the concentrations of dissolved metals in stormwater discharges from industrial and commercial land uses will comply with water quality standards. Ecology therefore created an enhanced treatment list of BMP options applying to industrial and commercial land use sites and high-use road systems, to restrict the available BMP options to those Ecology has determined have the potential to achieve a higher degree of dissolved metals removal.
Along with infiltration, large sand filters, amended sand filters, and stormwater treatment wetlands, the SWMMWW's enhanced treatment list recommends the use of "two facility treatment trains" to remove dissolved metals. Filter strips are only available as treatment BMPs when applied in combination with Linear Sand Filters in a two-facility treatment train.
Metals of concern include copper and zinc. The copper may be originating from aircraft tires and may be coming from vehicle tires and brakes along International Boulevard (also known as highway 99) or other areas upgradient from the airport. As early as 1999, Ecology and the Port became aware metals concentrations in untreated stormwater runoff from uncoated, galvanized metal roofs at the Airport was causing zinc toxicity in discharges from Outfall SDN-1, which is an in-pipe location upstream from receiving waters and upstream of a water quality treatment facility at Lake Reba. The Port traced the toxicity to leaching zinc from galvanized roofing and is committed to implementing BMPs to correct this problem. This existing galvanized roof issue is not an issue for this §401 certification, as the improvements proposed do not include that type of roofing material.
Any analysis of whether there is an exceedance of the zinc and copper standards in WAC 173-201A-040 requires: (1) hardness data measured in the receiving water, (2) sampling over a set period of time, (3) the sampling to be conducted in receiving waters (waters of the state), not upstream of those receiving waters, and (4) measurement of the dissolved fraction of metals.
Data provided by the Port show metal concentrations in discharges as total recoverable metals, which are not directly comparable to the dissolved fraction listed in the water quality standards. However, this data does serve as an indication of metal concentrations to be expected in the discharges of stormwater. Median metals concentrations from airfield stormwater typically range from 0.012 to 0.031 mg/l copper, 0.001 to 0.003 mg/l lead, and 0.020 o 0.051 mg/l zinc. These are values, however, sampled at points prior to entering the receiving waters. Additional treatment as the stormwater continues through the system is expected to result in lower metal concentrations actually entering the receiving waters. The Board is not, however, convinced the Port has done an adequate job in sampling to ascertain the status of the receiving waters.
In the Port's previous NPDES permit, which took effect in 1994, Ecology required the Port to conduct a "Receiving Environment Monitoring Study" evaluating the impact of the Airport’s stormwater discharges to Miller and Des Moines Creeks. The resulting 1997 Stormwater Receiving Environment Monitoring Report confirmed metals concentrations exceeded federal and state water quality criteria both above and below the Airport’s stormwater outfalls, and in the Airport's stormwater discharges. The Port monitored dissolved metals concentrations at stormwater outfalls and at in-stream locations upstream and downstream of the Port's discharges in Miller and Des Moines Creeks. The Port compared the measured metals concentrations with federal and state water quality criteria and standards. In Des Moines Creek, copper and zinc were exceeded upstream and downstream of the outfall. In Miller Creek, zinc exceeded the water quality criterion upstream and downstream, but copper only downstream of the outfall. In Des Moines Creek, copper and zinc criteria were exceeded in samples from both upstream and downstream of the discharge, as well as in the stormwater discharge itself. However, dissolved zinc concentrations downstream of stormwater discharges in Des Moines Creek only exceeded the criterion about 20 percent of the time. The Report shows the high (i.e., above-the-standard) levels of dissolved copper discharged from the Airport's outfalls caused the concentrations of dissolved copper in Des Moines Creek to increase—specifically, the concentrations downstream from the Port's discharges are greater than the upstream concentrations, and both exceed the water quality criteria for copper. The 1997 Report also found in Des Moines Creek, dissolved copper concentrations were highest in samples from the stormwater outfalls, particularly SDS-3 (45.5 ug/l) and SDE-4 (34 ug/l).
Stormwater sampling data presented in the Port's 2001 Annual Stormwater Monitoring Report also shows copper levels in SDS-3's discharges are higher than the copper levels in other Airport stormwater discharges. Specifically, the sampling data indicates more than 75% of the stormwater discharges from "all outfalls" at the Airport exceed the Port-calculated acute freshwater criteria for copper. The copper levels in stormwater discharges from the "airfield only" outfalls are higher. And the copper levels in stormwater discharges from SDS-3—the outfall that drains most of the airfield—are higher still. In 1998, Ecology informed the Port that Des Moines and Miller Creeks were not meeting water quality standards for copper, zinc, temperature, as well as fecal coliform. Further, Ecology's current NPDES Permit Fact Sheet for Sea-Tac reports that concentrations of total recoverable copper in ambient waters both upstream and downstream of the Port's stormwater discharges generally exceeded the water quality criteria.
In February 2001, the City of Des Moines released a report detailing the results of a five-year, in-stream water quality monitoring program in Des Moines Creek and three other area creeks. After monitoring 25 storm events and 15 base flow events at eight sampling stations in the four creeks studied, the Report showed the sampling station closest to the Airport—upper Des Moines Creek station "DM-1"—shared both the highest total copper concentrations, and the highest storm and base flow dissolved copper concentrations. The Report concluded 40% of the storm flow samples at sampling station DM-1 exceeded the Washington state Class AA water quality criterion for dissolved copper—the highest "All Years" percentage of any monitoring station. The Report further concluded, "runoff carrying pollutants from SeaTac Airport (which is located upstream of station DM-1) may be responsible for higher dissolved copper concentrations in upper Des Moines Creek."
Site-specific analysis can override minimum requirements. Ecology determined the Airport was an appropriate place for site-specific analysis. The uses and the size of the Airport in relation to the watersheds mean the Airport will have a disproportionate impact on the watershed.
The 2001 Stormwater manual does not set a specific performance goal for removal of dissolved metals because there is not a lot of data nationwide on effective BMPs for dissolved metal removal. Instead Ecology chose to list BMPs on the enhanced list as doing a better job on removing dissolved metals. Ecology has been employing a testing protocol to see how well the BMPs work. However, the §401 certification contains no requirement for the Port to implement any stormwater treatment measures beyond the King County Basic Water Quality list, despite the demonstrated problems of dissolved metals in the Port’s stormwater discharges.
The SWPPP includes both source control BMPs and treatment BMPs. The source control BMPs include: spill containment and control, elimination of de-icing materials, and re-routing stormwater to the IWS. The treatment BMPs include facilities such as filter strips, compost/peat filters, wet ponds, and other facilities, which filter out and remove pollutants from stormwater prior to discharge into area streams.
The primary components of the existing stormwater treatment system at the Airport are filter strips and bioswales. Filter strips are grassy areas, which slow stormwater runoff rates, allowing removal of stormwater pollutants through settling of particulates and other processes. Some stormwater infiltrates into the ground and, as a result, metals and organic compounds are removed as these pollutants bind to the organic material in the soil. Bioswales are grassy, flat-bottomed swales, which receive stormwater runoff after it has been collected in a detention facility. Vaults and ponds also treat stormwater by allowing for additional settling and removal of particulates.
The Appellants argue the Port should have selected more effective BMPs from the enhanced treatment list of BMPs, including sand, compost, or active medium filters. They argue filter strips and bioswales alone will not control the dissolved metals. This was confirmed by Ecology’s witness (O’Brien) who said biofiltration swales alone would not control dissolved metals. He indicated the use of biofiltration should be done in combination with other treatment options, such as an amended sand filter or a basic sand filter, and some other treatment combination. The Board agrees and further conditions the §401 certification to require BMPs be selected from the enhanced treatment list for better removal of dissolved metals, to provide reasonable assurance the Port’s stormwater discharges will not violate the relevant water quality standards. This is particularly important to address the potential listing of copper on the 303(d) list.
The water quality standards for metals in WAC 173-201A-040 are hardness dependent. Hardness data is the sum of calcium and magnesium in the water. Hardness renders metal ions in water less toxic by excluding negatively charged exchange sites for the metals to attach themselves. Knowing the hardness of the water is necessary to determine the criteria for certain dissolved metals in stormwater. The hardness of the water can change or vary over a short stretch of time or space (such as following a rain event). As a result of the ability of hardness to vary, sampling protocols exist. Appellants argue the absence of hardness data makes it impossible to demonstrate that specific numeric water quality standards are being exceeded. The Board finds hardness data of the receiving water and the stormwater effluent would make comparisons between total recoverable metal concentrations in the stormwater effluent with acute and chronic criteria for metals easier; however, these comparisons are still possible to make by relying on historic seasonal values for hardness in the same receiving waters.
The acute toxicity testing is referred to as Whole Effluent Toxicity (WET) testing and determines the toxicity of the Port’s stormwater to certain sensitive marine organisms. Those tests indicated acute toxicity in the effluent at the Port’s SDN-1 outfall, but at no others. The metal of concern at SDN-1 is zinc. The Port traced the source of the zinc to certain metal covered roofs in that area and proposed steps to eliminate the pollution source.
The water quality standards for copper, lead, and zinc require showing an exceedance of the numeric criteria on an average basis over time. The acute criteria for copper, lead, and zinc are expressed as one-hour average concentrations, not to be exceeded more than once every three years on the average. The chronic criteria are expressed as a four-day average concentration, not to be exceeded more than once every three years on average.
The Port’s sampling shows instantaneous exceedances of the numeric water quality criteria, but they do not show that the criteria were exceeded for the necessary length of time. Further, the historic sampling data did not present the data in a manner showing exceedances of water quality standards. In the historic sampling data presented, one or more of the required elements were missing–either the hardness data (averaged over the correct time period) was missing, the sampling was done in-pipe rather than in receiving water, the sampling was an instantaneous reading rather than an average over the time period required in WAC 173-201A-040, or the sampling showed total recoverable metals rather than the dissolved fraction. Even the in-stream sampling from 1997 was not done over the proper time period to determine compliance with numeric criteria, and also did not show what contribution of metals in-stream were from the Port’s stormwater, and what contribution came from other sources such as area highways and roadways that drain to the same creeks. This appears to be related more to the sampling methods than to any chemical changes.
Further, due to the location of sampling, these exceedances in the monitoring report do not show concentrations in the receiving waters. These water quality standards apply to the receiving waters. Ecology and the Port argued in order to establish a violation of the water quality standards for metals in the receiving waters, it would be necessary for the Port to sample both upstream and downstream of its discharges. This, they argue, is difficult, if not impossible because the Airport’s discharges pass through pipes, ponds, ditches, and other detention facilities before reaching the streams.
The NPDES permit does not currently require the Port to monitor upstream or downstream of its stormwater outfalls, nor does the permit require the Port to monitor for the dissolved fractions of copper, lead, or zinc. The NPDES permit does not currently require the Port to monitor the hardness of the receiving water. The NPDES does, however, require acute toxicity testing for stormwater. The Board finds this lack of monitoring to result in, at best, confusing and, at worst, inaccurate data. Therefore, the Board further conditions the §401 certification to require sampling upstream and downstream from its stormwater outfalls, and to require the Port to monitor the hardness of the receiving waters.
d.
Retrofit of
existing areas at the Airport
In addition to these existing BMPs, the §401 certification requires the Port to retrofit to currently applicable standards built areas at the Airport and surrounding developed areas recently acquired by the Port. Ecology imposed the requirement to retrofit existing stormwater management facilities as Condition J in the §401 certification, including a requirement the Port assure that 20% of the retrofitting is accomplished for every 10% of new impervious surface added to the project. The Port must maintain this rate of retrofit unless it can demonstrate to Ecology’s satisfaction that such a rate is not feasible. Testimony indicated such a showing does not alleviate the Port from completing the retrofit. It is assumed, although not set forth in the §401 certification, by the time 50% of the new impervious surfaces have been constructed, 100% of the retrofit will be completed as well. The feasibility language allows the rate of retrofitting to be adjusted based on operational constraints. The Board imposes a further condition on the §401 certification to assure this assumption of 100% retrofit is part of the collective understanding.
e.
Whole effluent toxicity testing
The Port’s existing NPDES permit requires periodic whole effluent toxicity (WET) testing of the Port’s principal stormwater discharges. As its name implies, WET tests assess the aggregate toxicity of the whole effluent sample, which reflects the effect of all constituents together in addition to toxicity from individual chemical constituents. WET tests use sensitive aquatic species such as waterfleas or juvenile fathead minnows, which are placed in a whole effluent sample and then monitored to assess mortality among the test organisms. Testing for mortality, but not testing for impairment, or loss of function, we find does not measure injury to existing beneficial uses. Therefore, we add a condition to this certification requiring future toxic testing for sensitive organisms, related to this certification, to monitor and measure as well, not only mortality, but impairment and loss of function of the tested organisms.
In addition to the WET tests conducted pursuant to the NPDES permit, the Port undertook instream WET testing during 1999 and 2000. All samples were taken during qualifying storm events, which are defined in the testing protocols contained in the Port’s NPDES permit.
During these qualifying storm events, the Port collected in-stream samples below Port stormwater discharge points in Miller Creek, Walker Creek, and the east and west branches of Des Moines Creek. In addition, the Port collected stormwater discharged from the Airport’s stormwater outfalls (prior to the receiving water) including O