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Pending in Federal court in Seattle
is a challenge by Airport Communities Coalition (ACC) to
a wetlands-filling permit issued last December by the U.S.
Army Corps of Engineers. The coalition has raised several
legal issues, including the failure by the Corps to include
in its permit half of the important conditions that the
Airport was ordered to observe by the State’s Pollution
Control Hearings Board (PCHB), in a parallel State case. ACC
regards those omitted conditions as the most important
of the 16 laid down by the Board. [See TIA,
June 2003]
Now the Department of Ecology has joined
in the federal court challenge—on the side airport
of critics! The Department argues that the Corps of Engineers
was legally required to honor the earlier decision by the
State, as expressed by the PCHB. This was unexpected, for
the Department was unhappy with the PCHB actions. But the
Department now argues vigorously that the State’s determinations,
no matter how severe or restrictive, are binding on the
Corps of Engineers, by the very terms of the federal Clean
Water Act.
The result is that in the federal court,
Ecology is defending the eight conditions, while in the
Port’s appeal pending in the state’s Supreme Court, Ecology
challenges the Board action. U.S. District Court Judge Barbara Rothstein
has not yet decided whether the State will in fact be allowed
to participate in the lawsuit, which is on a bit of a fast
track, with a decision expected in late August or early
September.
Assistant Attorney General Joan Marchioro,
who is house counsel for Ecology, told the Associated Press
that the Corps of Engineers had “failed to show respect
for the state judicial-review process”. For some unknown
reason, the Engineers apparently believe that the Pollution
Control Hearings Board is not part of the State environmental-review
process. In fact, the Board’s rulings are an integral
part of the State’s system to control water pollution. Ms
Marchioro explained to the Seattle
Times that one reason
for the intervention was the Department’s concern that
a precedent would be set for later projects. The integrity
of the process is thus at stake, regardless of the details
of any particular PCHB order.
Airport opponents and critics were greatly
pleased at the Ecology action. ACC chairman Stu Creighton
(Normandy Park city councilmember) said that the action
showed “good strong support for our contention that [the]
whole permitting process was very, very poorly done”. The conditions required by the PCHB
but not by the Engineers include additional mitigation
for Des Moines Creek, a better wetlands’ replacement plan
(twice as much acreage in new, artificial wetlands on the
west side of the Airport), strong monitoring requirements,
and strengthened follow-up on future health of the impacted
wetlands.
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Seattle
P-I