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Stuart Creighton, ACC chairman, said that the motion "stops
the running of the 60-day clock" for a full-scale
appeal of the decision.
The motion is based on one very narrow legal issue. The
judge ruled that the Engineers could ignore the runway
conditions laid down by the State, because the final State
action (the decision of the Pollution Control Hearings
Board reviewing and revising the approval granted by the
Department of Ecology) came more than one year after the
Port had filed its permit application. The federal Clean
Water Act contains specific language that allows the Engineers
to ignore State action if it takes the State more than
a year to act from the time the application is filed.
In fact, however, the State acted
within the one-year period. That action was the PCHB’s order staying the Department’s
approval, pending further proceedings at the PCHB level.
So, the ACC argues, at the end of the one-year period the
position was simple – the application had effectively been
disapproved. The Engineers should arguably have said, there
is no State approval, so we cannot approve either.
Part of the problem is the unwillingness
of the Corps of Engineers to recognize just exactly how
Washington evaluates
requests under the Clean Water Act. State law is very clear
that the initial review by Department of Ecology is strictly
administrative, with nothing remotely like a judicial hearing
involved – no sworn testimony, no outside experts testifying,
no cross-examination. State law creates a separate body
that can hold judicial, fact-finding hearings – the Pollution
Control Hearings Board.
The State has a real interest
in protecting the integrity of this entire process, including
federal recognition of
the critical rôle played by the PCHB in major cases. In
practice, most major permits & approvals are appealed
to the Board (and serious negotiations between the parties
then begin). The State has three of these expert review
panels for environmental cases: the PCHB, the Growth Management
Hearings Board, and the Shorelines Hearings Board, all
working with similar powers & duties.
No date has been set for action on the motion, and ACC
has not announced what, if any, appeals it may take to
the U.S. Court of Appeals for the Ninth Circuit.
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