into white papers, which were submitted as a body, and were available to anyone who was interested.  In proceedings such as this request for certification under section 401, the piecemealed studies should appear in comprehensive documents that are accurately and fully described to the public in the Notice, and all of the documents should be available for public review.

 

2.5.           Problems with the Public Hearing

2.5.1.   Insufficient Time Allowed

It is obvious that the four hours allotted for oral public comments, even with the very short limitation of three minutes per person and organization was insufficient.  RCAA notes that there were many speakers signed up, who were not called on.  RCAA also notes that while some speakers' comments overlapped with those of previous speakers, even in the last half-hour, new materials were being presented (from which we conclude there was plenty of additional information waiting in the audience).

 

2.5.2.   Lack of Identification of Self-Described Experts

In closing this discussion, RCAA wishes to deprecate the practice, allowed at the public hearing of allowing project proponents to present expert witnesses without providing full identification of those witnesses and without revealing that they were appearing as part of their work for the Applicant.  This applies with special force to the three alleged experts on wall construction.  The hearing officers should have required each of these people to provide full identification and to disclose their interest in the outcome of the proceedings.  It was obvious that persons speaking against a grant of the permit understood the rules normally followed in this jurisdiction: they identified themselves down to street address, and disclosed organizational affiliations most of the time.  Non-identification is especially bothersome when the experts come from remote places, are not sworn, and cannot be cross-examined on the spot.  (Terminating the proceedings before all speakers could be heard exacerbated the problem further, for persons in attendance who might have been able to refute inaccuracies were not heard.)  The credentials of such persons are not immediately subject to review; their bald assertions about their work elsewhere (one thinks especially of the gentleman from Georgia) come out of the blue and are hard to verify.  At least with addresses spoken aloud and clearly, inquiry could be made.  We might add that had we known sooner that an extension for comments would be granted to 29 November, we would have had a reasonable opportunity to make further inquiry -- seeking addresses etc., from the Corps and Ecology, and then making our own investigations about the 'experts'.

 

 

 

3.          RELATED PROCEEDINGS

3.1.  Related Proceedings Are Pending

RCAA believes it will be useful to refer to other proceedings that are now pending, either closely related to the pendent application or actually part of it.  The final decision by Ecology and the Corps should await the satisfactory outcome of these other matters. As we will demonstrate the 401-certification process for the Port of Seattle's application is an extremely problematic issue for the Department of Ecology. It is common knowledge that Ecology is understaffed, under-budgeted, & under a lot of political pressure to sign off on anything that the Port proposes

 

3.2.  Hydrology Studies

The last session of the Washington State Legislature funded two studies that are relevant to this proceeding.  One is a study of the impacts of gravel mining on the hydrology of Maury Island, having in mind the application from Lone Star Northwest to King County for permission to institute large-scale mining for fill materials on property that Lone Star controls on Maury.  The other is the study of the hydrology of the Highline district, intended to provide an independent understanding of the potential impacts of the third runway on the aquifers as well as impacts of the proposed fill embankment on local salmon bearing streams.  RCAA joins with the State legislature in urging that the pendent application not be considered in detail until the results of both of those studies are at hand, in final form.  It seems self-evident that regulatory agencies – the Corps and Ecology – would want to have as much information available as possible before considering whether to grant the permit and certification sought here, with its irreversible harm to protected elements of the environment.

 

3.3.  Maury Island Mining Review

As mentioned earlier, there is now pending in King County’s processes an application from Lone Star Northwest for permits to commence strip-mining activities on a grand scale in contaminated soils on Maury Island, largely for the purpose of offering fill material for sale to the Port for the third-runway embankment.  While the Port has not appeared in those proceedings, the Port has a plain interest in them: as examination of the relevant sections of the Third Runway FEIS shows the Maury Island site has more fill and is closer to the Airport than any other potential large site.  As Lone Star has argued in its draft EIS for its permit request, there is at present a tight & rising market for high-quality fill materials.  That makes it difficult for the Port to secure appropriate fill material anywhere within the range of practical transport.  The fill requirements are enormous.  The total fill needed for the third-runway embankment (before emplacement & compaction) alone is at least 19.84 million cubic yards.  Independent experts have set the amount at a higher level.  The Port has moved some fill from one part of the Airport to another, & has purchased & stockpiled what, in context, is a small quantity of fill from various off-site sources.  At present the Port has less than 6% of the fill material needed for the runway project at the Sea-Tac site.  Any proposal for very large-scale fill mining in Western Washington at this time is necessarily connected with the Port’s huge unmet need for good-quality fill.  The Port has taken the administratively convenient route of not stepping forward as a proponent of any of the proposals for very large scale fill mining that have been put forward recently, but each of them is potentially an integral part of this project: no local fill mining, no runway, and no demand for 19.84 million cubic yards of fill -–no demand for vastly accelerated mining. 

 

The DOE should review with great care the environmental hazards of the Maury Island operation, & should require appropriate mitigation & controls as a part of this permit process. (if the DOE concludes that the Maury Island operation is indeed permissible), over & above anything that King County may require.

 

3.4.  Hazardous Waste Issues

Another environmental issue that absolutely must be considered in conjunction with this application is that of on-site hazardous waste materials, including petroleum hydrocarbons, jet fuel, solvents, etc. that exist in areas where construction of projects identified in the Port's permit application would occur.  Petroleum and other contamination exist in at least ten identified locations. [i]  The situation of on-site hazardous waste is well documented in Port and Ecology records.  [ii]  [iii]  [iv]  RCAA has posted on its website a record that traces the history of this issue. We have posted on our website numerous letters and correspondence obtained from the Department of Ecology files documenting, over the course of the last fifty (50) plus years, the issues of toxic materials discharged and abandoned on site at Sea-Tac airport and discharged in local streams. Past Port practices of dumping petroleum products, chlorinated solvents, and other chemicals into pits on Port property[v] have serious implications related to the Port's 401 application and must be addressed by the Department of Ecology.  Concerns include the effects of contamination from petroleum and other chemical contamination at Sea-Tac on the regional aquifer supplying the area as well as the effects of these contaminants on water quality in Des Moines and Miller Creeks.

 

This significance of the on-site contamination is especially significant because of the Port's proposed Master Plan program involves the complete replacement of the fuel distribution system throughout the airport with a new "hydrant fueling" system.[vi]  The existing fuel distribution system at the airport is over forty years old and has experienced numerous leaks into surrounding soils, utility trenches, and other conduits.  Installation of the new system will require the removal of existing contaminated soils that have been in contact with leaking pipes and tanks. Ecology has noted: "the construction of a new fuel distribution system would be a major component of the airport development alternatives."  Requirements for proper disposal and treatment must be conditioned as part of this permitting process. RCAA includes with these comments a memorandum detailing the extent of the on site contamination. The records show the shallow regional aquifer underlying Sea-Tac airport has been impacted by hydrocarbon contamination in six locations at the airport.[vii] 

 

We include in these comments reference to a bibliography providing a detailed record of on-site contamination at Sea-Tac airport that is being submitted to Ecology under separate cover by Mr. Greg Wingard commenting on this application.

 

3.5.  Issues Concerning Toxics in Material Proposed for Use in Filling Wetlands

We have grave concerns with the acceptance of material, proposed for use in filling wetlands, that has not been evaluated and tested to assure the material is protective of ecological receptors. Under conditions of the permit "No discharge of dredged or fill material shall be permitted if it (1) Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard; [or] (2) Violates any applicable toxic effluent standard or prohibition under [CWA] section 307 …."  40 CFR 230.10(b)(l)-(2). Washington's water quality standards are set forth in WAC 373-201A.  Washington's water quality standards for toxic substances are set forth in WAC 173-201A-040.

 

The Department of Ecology's "1999 Airfield Project Soil Fill Acceptance Criteria" enclosed with this submittal discloses the Port is accepting material from sites that merely have a "supplier certification" that materials brought to the Sea-Tac site meet the MTCA Method A level for Arsenic. This criteria is unacceptable and inconsistent with both federal regulations and with the Department of Ecology's acknowledgment that fill material meeting MTCA Method A cleanup standards is not necessarily protective of ecological receptors. [viii]  Therefore, it is critical that Ecology require conditioning of specific testing requirements that require testing at the material source for levels of contaminants and that environmental criteria be established in accordance with federal regulations that prohibit the use of fill that causes or contributes to violations of water quality standards or that is not protective of ecological receptors.  We make specific reference to the requirements of 40 CFR 230.60 and 40 CFR 230.61 prohibiting use of material in filling wetlands that would degrade water quality.

 

3.6.           Auburn Wetlands 

As most have now recognized, the Port’s proposal to build artificial wetlands in the Green River drainage, in the City of Auburn, is part and parcel of the Port’s third-runway project.  All aspects of that plan require independent review by the Corps, for the plan both in construction & afterwards would have impacts that are subject to the Corps’ regulation.  The Port has declared that there is no significant environmental impact from its Auburn proposal, a declaration that is now under challenge in King County Superior Court in litigation filed by Citizens Against Sea-Tac Expansion (CASE).  Until that litigation & potential related administrative proceedings are resolved, it seems to RCAA to be premature to proceed to decision-point on the pendent application.  We also draw Ecology's attention to comments provided by the U.S. Department of Fish and Wildlife in conjunction with the Port's Auburn wetland mitigation proposal questioning the "long-term viability of the proposed site to function as a wetland" and suggesting that the loss of perched groundwater as a result of the substantial development planned on surrounding property "may result in failure of the mitigation site to function as a wetland in the future." [ix] 

 

4.     FACTORS REQUIRING DENIAL OF PERMIT

4.1.Water Quality

The project would contribute to on-going violations of water quality standards.  The proposed activity cannot be permitted because it would cause or contribute to violations of State water quality standards. See, 40 CFR 230.10(b)(1). In addition, the proposed activity cannot be permitted because it would result in the violation of toxic effluent standards for copper and zinc. See, 40 CFR 230.10(b)(2), and WAC l73-201A-040. Further, the proposed activity cannot be permitted because it would cause or contribute to significant degradation of the waters of the United States. See, 40 CER 230.10(c).

 

As required by law, "a permit will be denied if the discharge that would be authorized by such permit would not comply with the Environmental Protection Agency's 404(b)(1) guidelines" See, 33 CFR 320.4(a)(l). And "in evaluating whether a particular discharge activity should be permitted, the district engineer shall apply the section 404(1,)(l) guidelines (40 CFR part 230.10(a) (1),(2), (3))." 33 CFR 320.4(b)(4).  Continued existing violation of current water quality precludes issuance of a 401 water quality certification for the proposed project by Ecology because it would promote the continuance of existing water quality violations in contravention of the 404 guidelines.

 

4.1.1.    Ecology Must Consider the Cumulative Impacts of All Current and Proposed Activities at Sea-Tac Airport in Evaluating the Proposed Discharge

 

It is important to consider the scope of the analysis required by Ecology and the Corps. The regulations emphasize a "fundamental" precept - that: dredged or fill material should not be discharged into the aquatic ecosystem, unless it can be demonstrated that such a discharge will not have an unacceptable adverse impact either individually or in combination with known and/or probable impacts of other activities affecting the ecosystems of concern.  40 CFR 230.1(c) (emphasis added).

 

This requirement is a "presumption against discharge" which applies to die Corps' decision-making process. 40 CFR 230.6(c).  Further, in evaluating the impacts the Corps must "determine in writing" the potential short-term and long-term effects of the proposed discharge on the physical, chemical, and biological components of the aquatic environment, including a determination of "secondary effects on the aquatic ecosystem." 40 CFR 230.11(h). As the regulations explain,

 

(1) Secondary effects are effects on an aquatic ecosystem that are associated with a discharge of dredged or fill materials, but do not result from the actual placement of the dredged or fill material. Information about secondary effects on aquatic ecosystems shall be considered prior to the time final section 404 action is taken by permitting authorities.

 

(2) Some examples of secondary effects on an aquatic ecosystem are surface runoff from ... commercial developments on fill.... Activities to be conducted on fast land created by the discharge of dredged or fill material in waters of the United States may have secondary impacts within those waters which should be considered in evaluating the impact of creating those fast lands.  40 CFR 230.11(h) (emphasis added).

 

In short, the law requires the Corps to consider not just the adverse environmental impacts of the fill itself; but also the adverse environmental impacts of the activities to be conducted on the fill. These "secondary effects" of the proposal include all of the impacts on the aquatic ecosystem that will result from the activities to be conducted on the Third Runway, in the Runway Safety Areas, and in the South Aviation Support Area.

 

Further, because the regulations require the consideration of cumulative impacts on the ecosystem - See 40 CFR 230.1(c) and 230:11(g) - the Corps must also consider the ongoing impacts of the operations at Sea-Tac Airport as presently configured. And because one purpose of the proposed fill is to meet future demand for air transportation, the Corps must also consider the impacts of projected growth at Sea-Tac.  Consideration of these ongoing and projected impacts confirms that the proposed discharge cannot lawfully be permitted.

 

4.1.2.    Washington's Water Quality Standards and Toxic Effluent Standards

Under the law, "No discharge of dredged or fill material shall be permitted if it (1) Causes or contributes, after consideration of disposal site dilution and dispersion, to violations of any applicable State water quality standard; [or] (2) Violates any applicable toxic effluent standard or prohibition under [CWA] section 307 …."  40 CFR 230.l0(b)(l)-(2). Washington's water quality standards are set forth in WAC 373-201A.

 

Washington's water quality standards for toxic substances are set forth in WAC 173-201A-040. Both copper and zinc are regulated as toxic substances under Washington's water quality standards. Id.

 

With respect to ongoing violations of water quality standards resulting from the Port's current operations at Sea-Tao Airport, CASE adopts and incorporates by references the separate comments and exhibits of Greg Wingard, dated November 29, 1999. In light of this and other evidence of ongoing water quality violations resulting from the Port's operations, (e.g., the inclusion of Des Moines Creek on the list of water-quality impaired water bodies issued pursuant to CWA section 303(d)), the proposed permit cannot be granted.

 

Moreover, where "there does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines[,]" the regulations require that the proposed disposal site must be specified as failing to comply with the requirements of the guidelines. See, 40 CFR Part 230.12(a)(3)(iv). Accordingly, the applicant - not the public -- bears the burden of proof on this issue,

 

4.1.3.    The DOE Must Prohibit Violation of State Water Quality Standards and Toxic Effluent Standards as a Condition of any Permit Issued

The Port's NPDES permit covering operations at Sea-Tac Airport does not explicitly prohibit discharges of pollutants that would violate - or contribute to violations of state water quality standards. As a result, the Port presently enjoys a "permit shield" enabling it to violate such standards with impunity. In light of this glaring deficiency, a Special condition expressly prohibiting discharges of pollutants that would violate or contribute to violations of state water quality standards is necessary to "satisfy legal requirements or to otherwise satisfy the public interest requirement". See, 33 CFR 325.4(a).

 

4.1.4.    Water Quality Continues to Fail Meeting Standards

Conditions of the Port of Seattle's previous National Pollution Discharge Elimination System (NPDES) permit at Sea-Tac airport were modified after its provisions were challenged before Washington State's Pollution Control Hearings Board.  Under the conditions of the settlement agreement pursuant to this appeal, the Port was required to sample discharges from outfalls on Port property. Subsequently, the Port was defendant in a federal Clean Water Act litigation for alleged violations of conditions in its NPDES permit. Settlement of this litigation resulted in a Consent Decree. [x]  Terms the Consent Decree required additional monitoring of effluent from Port storm water outfalls.

 

Since adoption of the additional storm water monitoring requirements pursuant to the appeal and Consent Decree the Port has provided discharge monitoring reports (DMRs) that sample parameters of storm water, including turbidity, total suspended solids (TSS), chemicals including petroleum, copper, zinc, glycol's, etc. These reports are consolidated into annual monitoring reports. We include with this submittal copies of the Port's Annual Storm water Monitoring Report for the period from June 1, 1997 through June 30, 1998[xi] and for the period from July 1, 1998 through June 30, 1999.[xii].  Copies of individual DMRs for storm water outfalls for the months of April, May and June 1999 are included with this submittal. [xiii]   A review of the Port's DMRs shows a consistent pattern of discharges that exceed water quality criteria standards.  High levels of fecal coliform, total suspended solids (TSS) copper, zinc, and petroleum hydrocarbons, etc.  A summary of these exceedences of water quality standards in the Port's DMRs is included with these comments.[xiv] 

 

A recent study [xv] evaluated toxicity at several Port storm water outfalls, no. 002, which discharges into Des Moines Creek, and no. 006 which discharges into Miller Creek.  The results of the study: "Percent survival for D. pulex in 100% effluent was 100% of Outfall 002; percent survival for P. promelas in 100% effluent was 70% and 32.5% for Outfall 002 and Outfall 006, respectively." (p.5) This indicates serious problems of toxicity in effluent from Port storm water outfalls that flow into Miller and Des Moines Creeks.

 

We including with this submittal the July 15, 1998 letter from Lisa Zinner at Ecology discussing storm water issues and recommended treatment of elevated levels of fecal coliform, copper, zinc found discharged from Port outfalls (p.6). 40 CFR 401.15 indicates that copper and zinc are among those pollutants designated as "toxic" under section 307(a)(1) of the Clean Water Act.  40 CFR 122.41 requires that: "The permittee shall comply with effluent standards or prohibitions established under section 307(a) of the Clean Water Act for toxic pollutants . . . within the time provided in the regulations that establish these standards of prohibitions . . . even if the permit has not yet been modified to incorporate the requirement."

 

The Port's DMRs as well as Ecology's correspondence indicates the Port is having ongoing water quality violations of both copper and zinc.  Washington's water quality criteria for toxic substances including copper and zinc are found in WAC 173-201A-040.  Design of storm water controls that maintain properly functioning conditions in downstream areas that will preserve aquatic habitat is obviously a function of maintaining water quality

 

Included in this submittal are copies of the Port's Stormwater Receiving Environmental Monitoring Report [xvi] and copies laboratory tests of stormwater for metals including copper, zinc and lead [xvii] [xviii] that document violations of water quality standards. Also included is correspondence from the Port of Seattle to the Department of Ecology concerning toxicity testing of Stormwater required under the Port's NPDES permit. [xix]

 

We include with this submittal recent research concerning the impacts of airport stormwater runoff on water quality including effects on aquatic habitat.  We note this research has led to a requirement for a toxicity reduction evaluation for all dischargers that have confirmed acute toxicity in stormwater effluent in the State of Maryland. [xx] Ecology must condition similar requirements in conjunction with the Port's existing facilities, notwithstanding action concerning the Port's current application.  We include with this submittal research published by the scientific community as well as publications produced by government agencies the environmental community and the aviation industry concerning glycol's and the effects of aircraft de-icing and ant-icing fluids on water quality including effects on aquatic habitat.  [xxi] [xxii] [xxiii] [xxiv] [xxv] [xxvi]  In light of this recent research we note the Port's application provides an insufficient analysis of the glycol issue or how the activity proposed in the application will address the concern of the glycol's discharging from Port stormwater outfalls into reaches of Miller, Walker and Des Moines Creeks which provide critical habitat for aquatic species.

 

We incorporate by reference comments being submitted under separate cover, prepared by Dr. Strand Poulin of Columbia Biological Assessments and addressed Rick Poulin, Esq. Of the firm Smith and Lowney.  These comments recapitulate Dr. Strand’s review of Port documents, including the Port’s stormwater receiving reports, the Port’s Annual Stormwater Monitoring Reports and the Port’s proposed Comprehensive Stormwater Management Plan.  His analysis concludes with the following key points:

 

·        Violations of water quality criteria in Miller and Des Moines Creeks have historically and currently occur as a result of stormwater discharged from Sea-Tac, suggesting that additional treatment is required in order to meet water quality standards;

 

·        At present there is insufficient sampling conducted at Port stormwater outfalls to demonstrate compliance with state and federal water quality standards;

 

·        Whole Effluent Toxicity (WET) testing is needed during de-icing events to determine the potential effects of de-icers and anti-icers in stormwater discharged to area surface waters;

 

·        Quality assurance procedures must be strictly followed when collecting and analyzing stormwater samples;

 

·        The stormwater management plan proposed by the Port provides no modeling of the effect of the proposed system on water quality, including and analysis of how the system will affect levels of copper, zinc, glycols and other materials in stormwater affecting water quality.

 

We submit that until these issues are resolved, the Port will have failed to provide Ecology with any reasonable assurance that its proposed projects will meet water quality standards.  Further, until the issues are addressed the existing conditions will permit the Port’s continued on-going violations of water quality standards.

 

4.2.  The Port's Proposed Stormwater Management Plan

We incorporate by reference comments being submitted under separate cover by Northwest Hydraulics Consultants Inc. on behalf of the Airport Communities Coalition.  [xxvii] The comments provided by NW Hydraulics provided a technical review of the proposed stormwater facilities and related streamflow impacts from the proposed 3^rd runway development and raise a host of serious issues that must be addressed by the Port prior to action by Ecology and The Corps on the Port's application.  We note that the Port's stormwater plan was grossly negligent in providing any substantive technical evaluation and assessment of the effects of the stormwater system on water quality. The report instead provided a nebulous comparison of the Miller and Des Moines Creek systems with other water bodies in the region, and provided no technical analysis of existing water quality conditions or assessment of the impacts of the project on water quality.  This deficiency in the report alone is basis for rejecting the application. The 9 pages of detailed analysis and technical comments provided in response to the Port's proposed plan conclude:

 

"In summary, there appear to be major deficiencies in the analysis which may result in significant adverse impacts to the natural stream systems if the current version of the Preliminary Comprehensive Stormwater Management Plan (SMP) is approved and implemented as a basis for mitigation of project impacts. We request on behalf of the Airport Communities Coalition that, prior to regulatory certification or approval of the proposed 3^rd runway project, the applicant be required to respond to the SMP issues we have raised in this letter, and that we be granted the opportunity to provide follow-up review and comment on that response."

 

We strongly encourage Ecology to concur with the request of the commenter and also require that the Port's revised stormwater plan be resubmitted with an adequate analysis of the impacts of storm water on water quality.

 

4.3.  ESA Issues

Earlier this year the Chinook salmon (O. tshawytscha) in the Puget Sound area were listed as a threatened species under the federal Endangered Species Act (ESA).  The federal register notice March 9, 1998 proposed the designation of critical habitat for Chinook in the area of the Sea-Tac 3^rd runway project. [xxviii]  

 

We include with this submittal a map produced by the U.S. Fish and Wildlife Service identifying Miller Creek as providing Nursery and Migratory area habitat for species of CHINOOK, Coho and Chum salmon. [xxix]   We note the refusal of the proponent's biological assessment to acknowledge the existence of Chinook salmon in Miller Creek reported by the U.S. Fish and Wildlife Service.  The map produced by this agency titled "Pacific Coast Ecological Inventory" describing species of mammals, birds and fish found in western Washington and lists particular species of fish found in identified rivers and streams.  The map's legend identifies species no. 104 (Chinook salmon), no. 105 (Coho Salmon) and no. 106 (Chum salmon) in Miller creek.  In the area of the map showing Miller Creek the letters "b" and "g" appear for each of these species.  The "habitat use" legend on the map defines this indicator as meaning "nursery" and "migratory areas" for the identified species.  The conclusion from this is simply that as late as 1981 the U.S. Department of Fish and Wildlife determined that Miller Creek provided both nursery and migratory area habitat for Chinook, Coho and Chum salmon.

 

In reviewing the "Biological Assessment" prepared by Parametrix (November 1999) we were struck by its restated categorical denials that there is ANY record of the presence of Chinook salmon in Miller or Des Moines Creeks and comments these creeks would be unable to support Chinook salmon.[xxx]  (See pp.5-7, 5-8, 5-17).  In addition to the U.S. Fish and Wildlife survey local citizens have provided accounts of past sightings of Chinook in Miller Creek.   Therefore we believe it would be irresponsible for the agencies to accept the unfounded assertion in the applicant's biological assessment that species of Chinook salmon have not or currently are not present in Miller or Des Moines Creeks.

 

We are also struck by failure of the proponent's biological assessment to consider the impacts of the project on habitat for Chinook and other species in the near shore area where Miller and Des Moines creeks reach Puget Sound.  Eelgrass beds in this area undeniably serve as critical habitat for species of Chinook and Coho salmon.  Yet the proponent's biological assessment provides no assessment of existing eelgrass beds, no evaluation of the impacts on the near shore area from the project.

 

4.3.1.    Coho Salmon

Puget Sound Coho Salmon (Oncorhynchus kisutch) are under consideration for listing as a threatened species under the Endangered Species Act.  During the 1998-1999 spawning season 21 Coho salmon redds were identified in Miller Creek, 66 Coho salmon redds were identified in Walker Creek and 22 Coho Salmon redds were identified in Des Moines Creek.[xxxi]

 

4.3.2.    Migratory Birds

We incorporate by reference comments submitted by Mr. Mark Rutzick, on behalf of the Airport Communities Coalition, concerning other protected and endangered wildlife not discussed in the applicant’s Environmental Impact Statement or in its Biological Assessment.[xxxii]  These species include the Marbled Murrelet, protected under the Endangered Species Act, as well as 76 species of migratory birds found in the project area that are protected under the Migratory Bird Treaty Act. 16 U.S.C. 703.  The Port completely failed to evaluate the impacts of the project on these protected species both in its original EIS as well as its Supplemental EIS.  The Port must prepare a supplemental EIS that considers the effects on these protected species.

 

4.3.3.    Habitat Issues

RCAA has concerns with a number of the characterizations and assertions provided in the biological assessment (BA) provided by the project's proponent. 

 

Section 5.1.1 of the Port's BA concerning the Miller Creek basin system describes barriers to upstream migrations of anadromous fish through the lower and upper reaches of Miller Creek. (p.5-2).  The BA describes a waterfall located at about RM2.8 citing sources (Williams et. al. 1975; Ames 1970) characterizing it as a "complete barrier to upstream migrations of anadromous fish". An RCAA constituent has recently been in contact with the owner of the property where the waterfall is located whose family has resided on the property for several generations. We have learned the referenced waterfall is artificial and was built by the current property owner’s father several decades ago to divert the flow through an existing swale on the property. [xxxiii]   We note that a map of the area produced earlier this century identify the stretch of Miller Creek UPSTREAM of the culvert under 1^st Ave. South and roads near RM 1.8 and UPSTREAM of the previously discussed waterfall as "Salmon Creek."  The map of the area produced by the Kroll Map company, and still utilized by the county assessor, identifies "Salmon Creek" flowing through the proposed location of the proponent’s regional detention facility (RDF) near Lora Lake and the Vacca Farm (also referred to as the "Pumpkin Patch").

 

We believe that Section 5.1.1 of the Port's assessment is also deficient in describing other features of the Miller Creek basin.  We refer the reviewers to material previously submitted by Mr. Chris Gower concerning the history of Miller Creek. Finally, the BA provided by the proponent's consultant completely fails to mention the restoration efforts currently underway by local citizens and municipalities to restore historical salmon runs in Miller, Walker and Des Moines creeks.  The city of Des Moines in cooperation with the State Department of Transportation is currently undertaking a project to replace the culvert under Marine View Drive so that the reach of Des Moines Creek that passes through this area is more friendly for salmon and other fish.  Similarly, the cities of Normandy Park, Burien, SeaTac and other agencies have recently adopted an interlocal agreement for restoration of aquatic habitat in the Miller Creek basin system.

 

We include with our comments a report produced by the U.S. Geological Service concerned with organic and trace elements surveyed in reaches of Miller Creek.[xxxiv]  The study found concentrations of chemical in streambed sediment exceeding Canadian probable effects levels (PEH) for arsenic, cadmium, chromium, lead, mercury, nickel and zinc.  The proponent's biological assessment provides no research or analysis considering the existence of levels of toxic contaminants in Miller, Walker, or Des Moines Creeks. The BA similarly fails to consider or attempt to evaluate or to provide proposed mitigation for the probable effect of the project of increasing these levels of contaminants.

 

The law prohibits the permitting of discharges of dredged or fill material which will cause or contribute to significant degradation of the waters of the United States. See, 40 CFR 230.10(c). Under the guidelines, such effects include significantly adverse effects of the discharge of pollutants on aquatic ecosystem diversity, productivity, and stability including the "loss of fish and wildlife habitat."

 

The project proposed in the application expressly involves the loss of wildlife habitat which will not be mitigated in the impacted Miller Creek and Des Moines Creek watersheds. Specifically, the Port proposes to destroy - without on-site mitigation - valuable aquatic and bird habitat functions. The proposed "Auburn wetland mitigation site" will do nothing to ameliorate the significant degradation of the impacted waters that support this habitat.

 

The proposed mitigation is additionally insufficient because it fails to avoid the destruction of remnant natural sites within areas already affected by development. See, 40 CFR 230.75(f).

 

4.3.4.    Other Marine and Riparian Biota at Risk, Especially Amphibians

In the short time allowed for these Comments, and with the volume of documents coming to light piecemeal, RCAA has not been able to conduct an extensive review of the question of impact of the Project on other marine and riparian biota.  We wish to focus attention to the parlous state of ecological health of several 'indicator' species -- especially riparian amphibians.  The DOE should thoroughly screen the submitted documents, & conduct relevant consultations with the State wildlife authorities and the several Federal wildlife agencies, to satisfy itself that the health of frogs, turtles, salamanders, & the like is fully protected and monitored.

 

4.4.  Wetland Impacts

There are significant increases in both the number of affected wetlands and the acreage of affected wetlands since the Port's previous application.  The number of wetlands has almost doubled and the acreage of wetlands that would be destroyed has increased by about 60%.  Footnote 1 on the notice of application states that the estimate of wetlands affected is NOT final since the applicant still admits it does not have access to all properties in the proposed project area.

 

Review of this permit application is premature until all properties are obtained and after all of the parcels have been thoroughly surveyed.  In addition, the magnitude