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Analysis of Pollution Control Hearings Board 8/12/02 decision on Section 401 permit application:
by Kevin Stock Attorney for ACC (Airport Communities Coalition) On Monday August 12, the Pollution Control Hearings Board issued its decision on ACC's appeal of Ecology's 401 water quality certification for the third runway. The decision is 140 pages in length. While the Board affirmed the 401 certification, the Board agreed with a number of key issues raised by ACC's experts and imposed significant and stringent, new conditions that are potentially insurmountable obstacles to the construction of the runway. Rather than remanding the 401 back to Ecology, the Board essentially rewrote significant portions of the 401. The areas in which the Board imposed stringent new conditions are: water quality and stormwater management; low flow mitigation and water rights (requiring that the Port obtain a water right in Des Moines creek); fill criteria and sampling; and wetland mitigation.
Water quality and stormwater management:
The Board criticized the Port's past practices in sampling and monitoring stormwater discharges in accordance with the current NPDES permit. Most of the sampling stations are upgradient from the receiving waters and, thus, do not characterize the receiving waters. "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." Order at 25. "The Board is not convinced the Port has done an adequate job in sampling to ascertain the status of the receiving waters." Order at 28. "The Board finds this lack of monitoring to result in, at best, confusing and, at worst, inaccurate data." Order at 34. As a result, the Board Order requires the Port to sample stormwater above and below stormwater outfalls and to monitor the hardness of the receiving waters even though Ecology and the Port argued it would be difficult if not impossible to do so. Order at 34.
The Board also agreed with ACC's experts that current and proposed BMPS for stormwater runoff (filter strips and bioswales) "are not effective in removing dissolved metals from the stormwater." Order at 31. As a result, the Board imposed a new condition requiring the Port to select BMPs from the enhanced treatment list prepared by Ecology in its 2001 Stormwater Manual. In other words, the Port cannot rely upon filter strips alone for treatment of stormwater runoff but now must also install additional BMPS (sand, compost or active medium filters) to better remove dissolved metals from the discharge.
With respect to retrofit of existing areas at the Airport to comply with applicable and appropriate BMPS, the Board rejected the Port's argument and the condition in the 401certification as drafted by Ecology, that the Port could avoid the 20% retrofit schedule for every 10% of impervious surface added by demonstrating that such a rate is not feasible. Instead, the Board is requiring without qualification that 100%of the stormwater management facility retrofit be completed by the time 50% of the impervious surfaces have been constructed. Order at 35.
The Port's current NPDES permit requires whole effluent toxicity (WET) testing of the Port's principal stormwater discharges. The Board is adding a condition to the certification that requires the Port to ensure that future WET test monitor and measure as well, not only mortality, but impairment and loss of function of the tested organisms. Order at 35.
Ecology's certification prohibits the Port from discharging any stormwater from new impervious surfaces until after a site-specific study (a "water effects ratio") is completed and approved by Ecology. ACC argued that Ecology and the Port could use the site-specific study as a method to reduce water quality standards based upon site-specific data. The Board concluded: "Given the sampling concerns raised earlier, the Board does not believe the water quality criterion should be increased. The WER study results shall only be used if the data suggests the water quality criterion should be lowered; i.e. made stricter. The Board therefore further conditions the §401 certification to limit the use of the WER study. Order at 39.
Low flow mitigation and water rights (requiring that the Port obtain a water right):
The Board rejected the Port's modeling of low flows in Des Moines Creek (.33cfs) below which mitigation would be required, and found that "the correct threshold flow to be 1CFS, below which mitigation will be required. The Board further conditions the §401 certification to include this corrected threshold flow of 1 CFS for Des Moines Creek." Order at 45.
The third runway project will significantly alter the hydrology of the airport property. Because of these impacts, the Port must mitigate through low flow augmentation of Des Moines and Walker Creeks. The proposed source of mitigation water is stormwater from the Port property release from detention vaults. "Capture of stormwater for use as low flow augmentation requires a water right because it is materially different under the law from familiar stormwater management facilities." Order at 121. As a result, the Board is requiring the Port to obtain a water right
Fill criteria and sampling:
The Board rejected on a wholesale basis the fill acceptance criteria as specified in the 401 certification and substituted its own stricter criteria for allowable levels of contaminants in imported fill. For most of the listed constituents, the Board adopted natural background levels as the allowable limit including a level for arsenic of 7 mg/kg as opposed to the 20mg/kg approved by Ecology. The Board also totally rejected any allowance in the imported fill for total petroleum hydrocarbons. Order at 62.
The Board also found that the minimum sampling protocol required by the certification for testing imported fill is "inadequate." The Board Order requires the Port to conduct the same minimum number of samples required under the Model Toxics Control Act for reaching "95% confidence level that you will meet the contaminant criteria." Order at 64.
The Board also rejected that part of the certification that allowed the Port to rely upon a Synthetic Precipitation Leaching Procedure (SPLP) to assess whether a sample that failed the numeric criteria could be accepted in any event because an SPLP test establishes that the contaminant would not threaten water quality. Order at 64 and 67. The Board pointed to conflicting testimony between Ecology and Port experts on this issue and determined that the SPLP procedure is "ineffective at determining compliance with water quality standards." Order at 65-66.
Wetland mitigation:
The Board has rejected in significant part, the Port's Natural Resources Mitigation Plan on the grounds that the Port relied upon buffers as mitigation for wetland impacts. Order at 79. The Port's reliance on buffers does not meet the baseline criteria of no-net loss of aquatic resources. The Board found that "enhancement activities and upland preservation should not be used in exchange for the baseline acres and are not a substitute for replacement of actual wetland losses." Order at 79. The result is that the Board's Order prohibits the Port from relying upon enhancement and upland buffers for mitigation credit meaning that the current NRMP mitigation falls woefully short of the 2:1 replacement ratio required by Ecology and the Board. When credit for the enhancement and upland preservation activities are removed from the NRMP, the NRMP is short by approximately 22.63 acres of mitigation credit. Thus, "The Board finds the Port has not fully mitigated the impacts to the filled wetlands and wetland functions." Order at 81. The Board also found that the Port had failed to exhaust all opportunities for in-basin mitigation. Id.
The Board also modified the performance standard for wetlands to require the Port to match the hydroperiods of the wetlands pre- and post-project, in order to assure the long-term maintenance and perpetuation of wetland characteristics.
Concluding Remarks:
The Board's decision appears to leave to Ecology the task of requiring the Port to comply with these new conditions. The Port should now be required to prepare, among other things, a new Stormwater Management Plan identifying appropriate BMPs consistent with the Board's decision, a new sampling protocol to comply with MTCA and a new Natural Resources Mitigation Plan that sets forth in detail the additional in-basin mitigation required by the Board's Order.
The bottom line is that the Port is substantially worse off with these new conditions than it was when it appealed the 401 certification issued in August 2001. We fully expect that the Port will not be able to comply with these new conditions and will appeal the decision rather than try to live up to new conditions that have been imposed.
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