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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
I. PRELIMINARY STATEMENT 1.1 This case challenges the issuance of a dredge and fill permit for the Sea-Tac Third Runway by defendants Colonel Ralph H. Graves and the United States Army Corps of Engineers (collectively, “the Corps”) in violation of § 401(d) of the Clean Water Act, 33 U.S.C. § 1341(d). The dredge and fill permit issued by the Corps to the Port of Seattle (“Port”) fails to incorporate several critical provisions imposed by the State of Washington’s Pollution Control Hearings Board to ensure that the project will comply with applicable state and federal water quality standards. The Corps has not provided a lawful or adequate explanation for its refusal to conform its permit to these conditions. 1.2 In addition, the Third Runway permit fails to comply with Corps regulations regarding the issuance of such permits. These regulations require that the Corps conduct a public interest review of the project, 33 C.FR. § 320.4(a), consider the practicability of alternatives to the project, 33 C.F.R. § 320.4(a)(2), and deny a permit application where a practicable alternative exists that would have less adverse impact on the aquatic environment, 40 C.F.R. § 230.10(a); 33 C.F.R. § 320.4(a)(1). The Corps has failed to conduct the required analyses in an adequate and lawful manner, and its conclusions that the project satisfies the standards of these provisions is not supported by a rational explanation based on the facts in the record. 1.3 Plaintiff Airport Communities Coalition (“ACC”) seeks declaratory relief and preliminary and permanent injunctive relief vacating the Corps’ permit. In the absence of such relief, ACC and its member municipalities will suffer irreparable harm, including present and future degradation to irreplaceable ecosystems within their jurisdiction and care. II. JURISDICTION AND VENUE 2.1 This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331. 2.2 Venue is proper in this Court under 28 U.S.C. §§ 1391(e) because the plaintiffs reside in this district, the Third Runway project is located in this district, and a substantial part of the events or omissions giving rise to the claim occurred in this district. III. PARTIES 3.1 Plaintiff Airport Communities Coalition was created by an interlocal government agreement entered into by the Cities of Burien, Des Moines, Federal Way, Normandy Park and Tukwila and the Highline School District to represent their interests collectively in matters relating to the construction of a Third Runway at Sea-Tac International Airport (“Sea-Tac”). Each member of ACC is a municipal corporation of the State of Washington located in King County, Washington adjoining or adjacent to the airport. 3.2 ACC is, has been, and, in the absence of relief from this Court, will continue to be adversely affected by the Corps’ unlawful issuance of a dredge and fill permit for the Third Runway and by Port activities pursuant to that permit. Issuance of the permit will result in the destruction of wetlands within watersheds of ACC member cities to the detriment of the environmental, aesthetic, and public health interests of those members. The continued development of the Third Runway enabled by the permit also will harm the socioeconomic interests of ACC’s members and their interests in protecting and enhancing the quality of life of their citizens. 3.3 Defendant Colonel Ralph H. Graves is the Commander and District Engineer for the Seattle District of the United States Army Corps of Engineers and the officer responsible for issuing the permit challenged in this suit. Colonel Graves is sued in his official capacity. 3.4 Defendant United States Army Corps of Engineers is an agency of the United States government with delegated authority to grant dredge and fill permits under § 404 of the Clean Water Act, 33 U.S.C. § 1344. 3.5 Defendant Port of Seattle (“Port”) is a port district and municipal corporation, located in King County Washington and is the permittee of the § 404 permit issued by the Corps for the Third Runway. IV. FACTUAL BACKGROUND 4.1 The Sea-Tac Third Runway project is one of the largest and most complex public works projects ever attempted in Washington State. The Port of Seattle, which operates the Sea-Tac Airport, proposes to fill a canyon on the airport’s west side with 20 million cubic yards of fill – equivalent to 40 football fields each piled 300 feet deep. In the process, the Port would fill or destroy over 20 acres of mostly highly functioning wetlands adjacent to three fish-bearing streams, Miller, Des Moines, and Walker Creeks, that run through the project area. The Port would fill almost 1,000 feet of Miller Creek and relocate it to a new, man-made channel. The project would alter the hydrology of the surrounding watersheds, permanently impair baseflows in Miller and Des Moines Creeks, and threaten contamination of Miller Creek by leaching of toxic materials from the fill used to construct the runway. The affected waters, Des Moines, Miller, and Walker Creeks, all flow through ACC member cities. The residents of the ACC cities including the students of the Highline School District (also an ACC member) use these streams for recreational and aesthetic purposes. Miller and Walker Creeks flow around and through the Normandy Park community recreation center, providing a natural setting for community activities. Children are taught in the communities’ schools about the surrounding streams through field trips and special stream restoration projects. Over the years, community groups have undertaken significant efforts to restore these salmon-bearing streams to levels of purity in which aquatic biota may thrive. Residents flock to the streams in October to see the annual return of the salmon. Many residents fish in them. 4.2 Wetlands and creeks are protected from impacts such as those of the proposed Third Runway project under several provisions of the federal Clean Water Act. Under § 404 of the Act, 33 U.S.C. § 1344, the Port must obtain a permit from the Corps before depositing fill in Miller, Des Moines, and Walker Creeks or any of their adjacent wetlands. 4.3 In turn, the Corps cannot issue a § 404 permit until the State certifies under § 401 of the Act, 33 U.S.C. § 1341, that the project will comply with all applicable federal and state water quality standards. Section 401(d), 33 U.S.C. § 401(d), provides that: [a]ny certification provided under this section shall set forth any effluent limitations or any other limitations and monitoring requirements necessary to assure that any applicant for a federal license or permit will comply with any effluent limitations and other limitations … and with any other appropriate requirement of state law set forth in the certification, and shall become a condition on any Federal license or permit subject to the provisions of this section. As the Supreme Court has explained, “The limitations included in the [§ 401] certification become a condition on any federal license.” PUD No. 1 v. Washington Dep’t of Ecology, 511 U.S. 700, 708 (1994). Section 401 is intended to give force to “the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution.” 33 U.S.C. § 1251(b). 4.4 The Port originally applied to the Washington State Department of Ecology (“Ecology”) for a § 401 certification for the Third Runway project in 1996. Ecology certified the project in 1998 in response to that application, but withdrew certification upon the discovery of significant additional impacts to wetlands and aquatic resources that had not been disclosed during the certification process. 4.5 The Port applied for § 401 certification a second time in the fall of 1999, but, anticipating denial of that request, withdrew its application in September 2000. 4.6 Notice of the Port’s third application for § 401 certification was published on December 27, 2000. Ecology certified the project in response to this request on August 10, 2001. However, the Port appealed the August 10 certification conditions to the Washington Pollution Control Hearings Board (“PCHB”), as too stringent. In response, on September 21,2002, Ecology replaced the August 10 certification with a revised certification developed in private consultations with the Port. 4.7 ACC appealed the August 10 and September 21, 2001 certifications to the PCHB on August 23 and October 1, 2001, respectively. The PCHB is a quasi-judicial body created by Washington State to hear appeals of various orders and permits issued by Ecology, including certifications under § 401. Washington law expressly gives the PCHB final review and authority over CWA § 401 certifications initially issued by the Department of Ecology. The applicable statute provides that, “The purpose of the Pollution Control Hearings Board is to provide for a more expeditious and efficient disposition of appeals with respect to decisions and orders of the Department ...” RCW 43.21B.010. The PCHB is by statutory mandate made up of “members qualified by experience or training in pertinent matters pertaining to the environment ...” RCW 43.21B.020. 4.8 The PCHB held an extensive trial on the ACC appeal from March 18 through March 29, 2002. The PCHB heard testimony from 38 expert witnesses and reviewed over 50,000 pages of exhibits and related documents. On August 12, 2002, the PCHB issued a 139-page Findings of Fact, Conclusions of Law, and Order that found that the 401 certification, as issued by Ecology, failed to provide reasonable assurance that state water quality criteria would be met. To cure these defects, the Board imposed 16 modified conditions on the 401 certification, including conditions designed to protect instream flows, provide adequate mitigation of wetlands and wetland functions affected by the project, and prevent leachate from contaminated fill from affecting aquatic resources in and downstream from the project area. The Board concluded, “with the further conditions imposed by the Board, there is reasonable assurance the construction of the Port’s proposed improvements at the Airport will comply with state water quality standards. Accordingly, the Board affirms Ecology’s §401 certification for the Port’s projects as modified by the conditions established by the Board in this Order.” PCHB Final Order at 138 (emphasis added). 4.9 Concurrent with its request for § 401 certification, the Port applied for a § 404 permit from the Corps. The Corps granted that permit on December 13, 2002, four months after the PCHB issued its Order. The permit issued by the Corps does not adopt or incorporate at least nine (9) of the sixteen (16) conditions imposed by the PCHB. 4.10 Corps regulations require the Corps to independently evaluate the public interest in a project before issuing a § 404 permit. 33 C.F.R. § 320.4(a). As part of this review, the Corps must consider “[t]he relative extent of the public and private need for the proposed structure or work,” and “the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work.” 33 C.F.R. § 320.4(a)(2). In conducting this review, “full consideration and appropriate weight will be given to all comments, including those of federal, state, and local agencies, and other experts on matters within their expertise.” Id. Permit applications that are contrary to the public interest must be denied. Id. at 320.4(a)(1). 4.11 In addition, EPA guidelines for § 404 provide, in relevant part, that “no discharge of dredged or fill material shall be permitted if there is a practicable alternative to the proposed discharge which would have less adverse impact on the aquatic ecosystem.” 40 C.F.R. 230.10(a). These guidelines are binding on the Corps and are incorporated by reference in the Corps regulations. 33 C.F.R. § 320.4(1). Therefore, the Corps cannot issue a § 404 permit for a project if there is a practicable alternative that would have less adverse impact on aquatic resources. 4.12 The Third Runway project was first conceived by the Port more than a decade ago. The stated purpose and need for the project was to provide additional capacity at Sea-Tac Airport to offset modest flight delays during poor weather conditions particularly in light of projections for much higher levels of operations in ensuing years. However, changes in the airline industry and in technology and techniques for air traffic management in the past several years have eliminated this need. On the one hand, changes in the industry have led to significant reduction in flights, aircraft operations, and passenger demand at SeaTac during all weather conditions. As a result the airport is currently operating far below capacity and will do so for many years into the future. On the other, advancements in technology and techniques are sufficient to allow handling of current and foreseeable growth in air traffic at the airport during poor weather without the addition of the Third Runway and its consequent environmental impacts. These facts are fully documented in the record before the Corps through the comments and submissions of qualified experts. 4.13 Despite this record, the Corps did not independently consider the need for and alternatives to the project in light of the changed conditions and improvements in air traffic handling. The Corps also did not articulate a rational and lawful explanation for its conclusions that the project is in the public interest, that the need for the project outweighs its environmental and other costs, and that there are no less environmentally harmful alternatives to the project. 4.14 The Corps failed to give appropriate consideration to alternatives to the proposed runway, such as developing a supplemental airport and/or using existing airports. In rejecting these alternatives, the Corps erroneously relied upon studies from the 1990’s by the Puget Sound Regional Council (“PSRC”), which are now completely out of date. These PSRC studies could not and did not anticipate the current drop and change in character of aviation demand, the new security needs, the financial condition of the airlines, nor the unanticipated added cost and impacts of a third Sea-Tac runway, for which the Port has refused to produce an accurate cost estimate. The PSRC studies were driven by the then-prevailing political circumstances, and also did not properly recognize the possibility of using existing airports in the region. Further, the Federal Aviation Administration’s August 8, 2001 Record of Decision (“ROD”) on the Third Runway project acknowledges that a combination of technological advancements, like Localizer Directional Aid, new air traffic control instrument procedures, and use of other regional airports, could handle all forecast growth in demand. 4.15 The Corps did not give sufficient considerations to alternatives, such as the development of a shorter 5,500 foot third runway, which would have less impact that the proposed 8,500 foot runway. At Sea-Tac, over one third of the current fleet is regional jet or smaller aircraft and could use a new 5,000’ long runway; and the proportion of regional jets in the fleet is increasing. Prior information provided to the Corps showed that a 5,500’ runway could be constructed at Sea-Tac on the plateau with no earthwork or wetland fill. 4.16 The Corps did not give sufficient weight to evidence regarding the increased risk of accidents due to additional runway crossings that would be required if a third runway were added at Sea-Tac airport. In recognizing the risks of runway incursions, the National Transportation Safety Board has proposed new rules to address safety problems that occur when aircraft taxi across multiple runways, as a result, the capacity of the existing Sea-Tac runways will be reduced by operation of a third runway. Thus, not only will development of the Third runway increase the risk of accidents from runway incursions, but further, the efficiency gains claimed for a third runway would not be obtained. 4.17 The Corps relied upon prior analysis of the project under the National Environmental Policy Act, 42 U.S.C. § 4321 et sec. (“NEPA”) by the Federal Aviation Administration (“FAA”) and did no analysis under NEPA of the significant new information revealed since the FAA’s NEPA analysis, which includes, but is not limited to significant new information regarding the need for the project in light of dramatic changes in the structure of the airline industry, the impacts of the project revealed though out the PCHB’s review of the Third Runway Project, and the impacts of the project in light of recent evidence regarding area-wide lead and arsenic contamination from the ASARCO smelter in Tacoma that has impacted the Third runway site, and the areas surrounding Sea-Tac airport. V. CLAIM FOR RELIEF Violation Of Clean Water Act § 401 And The Administrative Procedure Act 5.1 Under § 401(d) of the Clean Water Act, the Corps must incorporate all conditions imposed by the State under § 401 in its § 404 permit for the Third Runway project. The Corps failed to incorporate in the § 404 permit the 16 conditions imposed by the PCHB on the § 401 certification. The Corps lacks authority to omit these conditions from the § 404 permit under Clean Water Act § 401(d), 33 U.S.C. § 1341(d). 5.2 The Corps also failed to provide any rational or lawful explanation for its omission of the conditions imposed by the PCHB. The Corps’ own regulations require it to give “due consideration” to the “official views” of “a state, regional, or local agency having jurisdiction or interest over the particular activity.” 33 C.F.R. § 320.4(j). Even setting aside the requirements of § 401(d), the Corps’ rejection of the PCHB conditions was arbitrary and capricious. 5.3 The Corps’ grant of the § 404 permit is subject to review under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq. The Corps’ action was “arbitrary and capricious,” “not in accordance with law” and “in excess of statutory jurisdiction, authority, or limitation” and should be held unlawful and set aside under the APA, 5 U.S.C. § 706(2). Violation Of Corps Regulations And EPA Guidelines 5.4 The Corps did not undertake the independent public interest review required by 33 C.F.R. § 320.4(a) and failed to independently consider the need for and alternatives to the Third Runway project as required by 33 C.F.R. § 320.4(a)(2). The Corps did not articulate a rational explanation, based on the facts in the record, for its conclusions that the project is in the public interest, that the Port has demonstrated a need for the project that outweighs its environmental and other costs, and that no practicable alternatives exist that would have less adverse impacts on the aquatic environment. To the contrary, the record before the Corps establishes that there is no need for the project under existing and foreseeable future conditions and that alternatives do exist that would have less environmental impact. 5.5 The Corps failure to follow its own regulations and the EPA’s binding § 404(b)(1) Guidelines, 40 C.F.R. Part 230, is subject to review under the APA. The Corps’ issuance of the § 404 permit in derogation of the regulations and guidelines is arbitrary and capricious, an abuse of discretion, and not in accordance with law and should be held unlawful and set aside under the APA, 5 U.S.C. § 706. Violation Of National Environmental Policy Act, 42 U.S.C. § 4321 et sec. 5.6 The Corps did not undertake any analysis of the project under the National Environmental Policy Act, 42 U.S.C. § 4321 et sec. (“NEPA”) and instead relied entirely upon prior NEPA analysis by the Federal Aviation Administration (“FAA”). In doing so, the Corps ignored a wealth of significant new information regarding the environmental impacts of the project and violated its NEPA, the Council on Environmental Quality Regulations, 40 C.F.R. § 1500 et sec., and the Corps’ own NEPA regulations which require it to prepare a Supplemental Environmental Impact Statement. VI. PRAYER FOR RELIEF WHEREFORE, plaintiff requests that this Court: A. Declare that the Corps’ issuance of the § 404 permit for the Third Runway is arbitrary and capricious and not in accordance with law and exceeds the Corps’ statutory authority under the Clean Water Act; B. Grant preliminary and permanent injunctive relief setting aside the § 404 permit; C. Enjoin the Corps from issuing a § 404 permit for the Third Runway that fails to incorporate all conditions imposed by the State of Washington under § 401; D. Enjoin the Corps from issuing a § 404 permit for the Third Runway until a Supplemental Environmental Impact Statement has been prepared. E. Award plaintiff its reasonable attorneys’ fees, costs, and expenses in prosecuting this action; and F. Grant such other relief as may be just and equitable. DATED this ________ day of __________________________, 2002 . SCHROETER, GOLDMARK & BENDER ___________________________________ ADAM J. BERGER, WSBA # 20714
HELSELL FETTERMAN LLP ___________________________________ PETER J. EGLICK, WSBA #8809 KEVIN L. STOCK, WSBA #14541 MICHAEL P. WITEK, WSBA #26598 Counsel for Plaintiff |
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