Mark C. Rutzick
Admitted to practice in
Oregon, Washington and New York
On October 1, 1992 the U.S. Fish and Wildlife Service (FWS) listed the Washington, Oregon and California populations of the marbled murrelet (Brachyramphus Marmoratus) as a threatened species. 57 Fed. Reg. 45328. The marbled murrelet is a small robin-sized seabird that spends most of its time in the ocean, and comes ashore to nest. See generally Marbled Murrelet v. Babbitt, 83 F.3d 1060 (9th Cir. 1996). The Recovery Team for the species identified a Puget Sound Conservation Zone that "includes all the waters of Puget Sound, the eastern waters of the Strait of Juan de Fuca and associated inland habitat extending 80 km (50 miles) from eastern Puget Sound and bisecting of the Olympic Peninsula." 61 Fed. Reg. 26255 (May 24, 1996).
Marbled murrelets are often observed feeding throughout Puget Sound. They have been seen from both the dock and the estuary of Des Moines Creek, less than two miles from STIA. Critical habitat for the species is found directly to the east in national forest and national park lands in the Cascade Range. 61 Fed. Reg. 26255 (May 24, 1996). A direct flight path from the Sound to the critical habitat for this threatened species passes over STIA.
The Port has never in any document analyzed the impacts of the Master Plan Update on the marbled murrelet.
Initially, it appears the Port arbitrarily defined its project area to omit Puget Sound, so that when the FWS was asked by the Port for a list of threatened and endangered species in 1994, it did not include the murrelet. Final Environmental Impact Statement (FEIS) Appendix K, Attachment A.
In April 1995 Shapiro and Associates, Inc. prepared its biological assessment, Appendix K to the FEIS. It contains no discussion whatever of the marbled murrelet. (In contrast, and without explanation, Appendix K analyzed the effects of the project on a pair of bald eagles that nested in a tree on the shoreline 2.5 miles northwest of the project area. Appendix K, page K-2.) The December 1995 update on Appendix K also fails to discuss the marbled murrelet.
Appendix M (undated) to the FEIS also fails to name the marbled murrelet as "occurring within areas that could potentially be affected by the proposed runway alternatives." Appendix M, page M-6.
The FEIS text (February 1996) does identify the marbled murrelet as a "species of concern listed as potentially occurring in the detailed study area," Table Iv.17-1 but in doing so makes two major errors concerning the species. First, Table IV.17-1 incorrectly lists the marbled murrelet as a state and federal candidate species, when in fact it had at that point been federally listed as threatened for more than three years. This error apparently occurred because the Port and its consultants relied on a document prepared by the Washington Department of Wildlife in 1991, before the murrelet was listed. Table Iv.17-1 footnote 4.
Second, after incorrectly listing the marbled murrelet as a candidate species, the FEIS also incorrectly claims that Appendix K presents information on the murrelet, which is simply untrue. FEIS IV.17-2 ("The Biological Assessment for all listed and candidate species in presented in Appendix K.") (emphasis added). In fact, Appendix K never mentions the marbled murrelet.
The 1997 Final Supplemental Environmental Impact Statement (FSEIS) also ignores the marbled murrelet. Its only information on bird species involves a raptor study conducted inland in 1996. FSEIS, Section 5-5.
In contrast, the Wildlife Hazard Management Plan for STIA adopted in November 1999 correctly lists the marbled murrelet as threatened under state and federal law, and acknowledges that it may occur at STIA. Wildlife Hazard Management Plan, page 4.10.
Thus, there is no question that the marbled murrelet may occur in the project area. The Rainier Audubon Society has reported that "the endangered Marbled Murrelet has been seen from both the dock and the estuary" at Des Moines Creek, less than two miles from the proposed construction site, and contiguous to the streams that are directly affected by the proposal. Yet the Port has never analyzed the impacts of the proposal on this threatened species. Before proceeding further on the 404 permit, the Port must address impacts on marbled murrelets both in a supplemental EIS under NEPA, and in a biological assessment as part of consultation under Section 7 of the Endangered Species Act(ESA), 16 U.S.C. 1536.
The Migratory Bird Treaty Act (MBTA), 16 U.S.C. 703, is a criminal statute that prohibits the take of any bird species listed by the Secretary of Interior under the act, in the absence of a federal permit. Take means "pursue, hunt, shoot, wound, kill, trap, capture, or collect. 50 C.F.R. 10.12. The prohibitions extend to direct though unintended conduct. Seattle Audubon Society v. Evans, 952 F.2d 297 (9th Cir. 1991). The terms of the MBTA apply to federal agencies, and are enforceable by citizens in civil litigation under the Administrative Procedures Act. Id.
The Port has a federal permit to kill migratory birds "for the purpose of assuring safe aircraft operations." Wildlife Hazard Management Plan, Appendix D. The permit reflects the risks that bird-aircraft strikes may pose to aviation safety. The permit does not authorize killing migratory birds in connection with the Third Runway construction or any other aspect of the Master Plan Update. The FAA's policy to discourage avian wildlife within 10,000 feet of runways precludes the Port from adopting mitigation measures for the benefit of migratory birds within or near the project area. Thus, there can be no mitigation for any adverse impacts to migratory birds in the project area.
The FEIS admits that habitat in the 712 acre area slated for conversion to the Third Runway (including 269 acres of forest land) is "used extensively by neotropical migrant and resident songbirds for breeding." IV.16-12. While noting that "less mobile animals such as ... nesting birds would most likely perish during construction," IV.16-12, there is no discussion whatever of the effects on any specific species of removing 712 acres of habitat including 269 acres of forestland. The FEIS does not take a "hard look" at the effects of the project on migratory birds.
Appendix M asserts (page M-5) that no raptors nest in the area where the Third Runway would be located. The FSEIS explains that after publication of the FEIS local residents had observed raptors nesting in the project area, and reports the results of a September 23, 1996 survey of Port-owned land west of existing runways. FSEIS pages 5-55-21-23. Among the birds observed in the area were eight species protected under the MBTA: sharp-shinned hawk; red-tailed hawk; Stellar's Jay; black-capped chickadee; bushtit; house finch; American goldfinch; Hutton's vireo. See 50 C.F.R. 10.13. Yet the Port was apparently unfamiliar with the list of protected species because it reported it will comply with MBTA "should applicable species be identified," page 5-5-23, without evidently understanding that it had already identified eight protected species.
Even though the FSEIS had identified eight federally-protected migratory bird species in the project area, there is no discussion in the FSEIS (or in the FEIS) of the impact of the project on these species, such as removal of forestland where they may forage or nest.
On October 6, 1998 the Rainier Audubon Society submitted a report on its 1996 and 1997 Christmas Bird Counts to City of Des Moines for the area west of STIA. [PETER - ATTACH THE REPORT; IT'S COMMENT LETTER NO. 3 TO DES MOINES FSEIS] The Rainier Aubudon Society bird counts revealed 76 federally-protected migratory bird species in the area west and south of the airport, with a total of 1552 migratory birds in 1996 and 2317 birds in 1997, suggesting that the impacts of removing the habitat in question will be much greater than reflected in the Port's limited 1996 raptor survey. Many of these federally-protected species are not migratory in the conventional sense, and are likely to nest in the project area on a permanent basis. The Port has never examined the effects of the project on any of these species.
| 76 Migratory Bird Species Observed in Rainier Audubon Society Christmas Bird Counts in 1996 and 1997 | ||
|---|---|---|
| Species | 1996 | 1997 |
| Red-throated loon | 1 | 1 |
| Common loon | 3 | - |
| Pied-billed Grebe | 7 | 2 |
| Horned Grebe | 32 | 40 |
| Red-necked Grebe | 10 | 8 |
| Double-crested cormorant | 88 | 10 |
| Brant's cormorant | 3 | - |
| Pelagic cormorant | 3 | 4 |
| Great Blue Heron | 3 | - |
| Brant | 14 | - |
| Canada Goose | 14 | 23 |
| Wood Duck | 1 | - |
| Green-winged teal (duck) | - | 9 |
| Mallard (duck) | 64 | 213 |
| Northern Shoveler (duck) | 6 | - |
| Gadwall (duck) | 5 | 1 |
| American Wigeon (duck) | 99 | 251 |
| Ring-necked duck | 1 | 5 |
| Greater scaup (duck) | 1 | 23 |
| Lesser scaup (duck) | - | 8 |
| Harlequin Duck | - | 2 |
| Black scoter (duck) | 15 | 26 |
| Surf scoter (duck) | 128 | 134 |
| White-winged scoter (duck) | 59 | 94 |
| Common goldeneye (duck) | 36 | 57 |
| Barrow's goldeneye (duck) | 82 | 32 |
| Bufflehead (duck) | 4 | 20 |
| Hooded merganser (duck) | 2 | 6 |
| Common merganser (duck) | 6 | 5 |
| Red-breasted merganser (duck) | 9 | 2 |
| Ruddy Duck | 1 | 14 |
| Bald Eagle | 4 | 8 |
| Sharp-shinned hawk | 2 | 1 |
| Cooper's Hawk | 1 | - |
| Red-tailed Hawk | 2 | 2 |
| American Coot | 65 | 449 |
| Bonaparte's Gull | 1 | - |
| Mew Gull | - | 6 |
| Ring-billed Gull | - | 10 |
| Western Gull | 7 | 4 |
| Glacous-winged Gull | 61 | 131 |
| Pigeon Guillemot | 3 | 1 |
| Rhinoceros Auklet | 2 | 3 |
| Band-tailed pigeon | 9 | 3 |
| Belted kingfisher | 5 | 2 |
| Downy Woodpecker | 2 | 3 |
| Northern Flicker | 9 | 21 |
| Pileated Woodpecker | - | 1 |
| Stellar's Jay | 7 | 2 |
| American Crow | 207 | 110 |
| Common Raven | 1 | - |
| Black-capped chickadee | 46 | 18 |
| Chestnut-backed chickadee | 7 | 12 |
| Bushtit | 50 | 38 |
| Red-breasted nuthatch | 4 | 2 |
| Brown creeper | - | 2 |
| Bewick's wren | 14 | 7 |
| Winter wren | 3 | 6 |
| Golden-crowned kinglet | 5 | 75 |
| Ruby-crowned kinglet | 7 | 12 |
| American robin | 143 | 239 |
| Varied Thrush | 3 | 2 |
| Cedar Waxwing | 27 | 2 |
| Hutton's Vireo | - | 1 |
| Yellow-rumped warbler | - | 1 |
| Savannah sparrow | 1 | - |
| Fox sparrow | 13 | 9 |
| Song sparrow | 26 | 21 |
| Golden-crowned sparrow | 1 | 8 |
| White-crowned sparrow | 1 | - |
| Dark-eyed Junco | 43 | 29 |
| Red-winged blackbird | 2 | 1 |
| Brewer's blackbird | - | 1 |
| House Finch | 28 | 70 |
| Pine Siskin | 18 | 14 |
| American Goldfinch | 25 | - |
| Total species: 76 | 1552 | 2317 |
NEPA imposes an obligation on the Port and the Corps to take a "hard look" at the impacts of the project on migratory birds before the project is approved. In National Audubon Society v. Hoffman, 132 F.3d 7 (2d Cir. 1997) the U.S. Forest Service had decided to clearcut 300 acre of habitat used by neotropical migratory birds, without preparing an EIS on the action. The court of appeals held that the agency had violated NEPA by failing to consider whether the effects of the habitat removal on the migratory birds, such as exposing them to predators who may inhabit newly created forest "edges," was significant. Id. at 17-18. Without knowing the effect of its proposed action on the migratory birds, the agency had failed to consider a relevant factor, rendering its decision arbitrary and capricious. Id.
The district court would have gone even further, holding that the effects of the habitat removal on the neotropical migratory birds "require the Forest Service to prepare an EIS analyzing such effects." National Audubon Society v. Hoffman, 917 F. Supp. 280, 289 (D. Vt. 1996). The appellate court held that the agency was entitled in the first instance to make the significance determination, but that it had acted unlawfully by failing to even consider the issue.
Here the Port has acknowledged that the project will destroy habitat used by neotropical migratory birds. Thousands of these birds are known to be present in and near the project area. Yet the FEIS and FSEIS fail to even consider the effects of the project on those birds.
The Port must prepare a supplemental EIS to consider and disclose the impacts the project will have on migratory birds.
On or about November 16, 1999 the Port made available a "Revised Draft" Biological Assessment (BA) on Master Plan Update Improvements at STIA prepared by a consultant, Parametrix, Inc. This document updates the Biological Assessment (Appendix K) prepared by Shapiro and Associates, Inc. in 1995. The BA reveals and confirms the existence of significant new information on fish species that requires a supplemental EIS under NEPA.
A. Threatened Puget Sound Chinook Salmon. On March 24, 1999 the National Marine Fisheries Service (NMFS) listed the Puget Sound chinook salmon as a threatened species. The BA acknowledges that the project "may affect" threatened Puget Sound chinook based primarily on two factors:
1. The likely presence of chinook salmon in the nearshore environment at the mouth of Miller and Des Moines creeks: "the[] species could potentially use small estuaries at the mouths of Miller and Des Moines creeks ... [and] do occur in the Green River near the off-site wetland mitigation project." Pages vii-viii.
2. Those portions of Miller, Walker and Des Moines creeks that are accessible to chinook are proposed for designation as critical habitat, along with the estuaries of those streams and the adjacent marine environments. Id.
The Port has never disclosed or discussed the impacts of the project on Puget Sound chinook in any NEPA document. Neither the FEIS nor the FSEIS addressed the impacts of the project on Puget Sound chinook. Although NMFS had advised the Port in 1994 that Puget Sound chinook were a candidate species for listing, the 1995 Biological Assessment (Appendix K) completely ignored the species, as did Appendix M. The FSEIS also ignores the species.
B. Threatened Bull Trout. Bull trout were listed as threatened by the FWS on November 1, 1999. The BA was apparently prepared before this date (although released later), and does not report the threatened status correctly. In Washington bull trout and Dolly Varden are managed together as native char. The BA reports that anadromous phases of bull trout could potentially inhabit nearshore marine areas at the outlets of Miller and Des Moines creeks. Page 5-20. The Green River may have historically supported healthy populations of char. Page 5-21.
Although bull trout are identified as a candidate species in the FEIS (Table IV.17-1), Appendix K contains no discussion of bull trout. Nor does the FSEIS. Like the Puget Sound chinook, the Port's first discussion of this threatened species appears in the new BA.
C. Coho Salmon -- Candidate Species. The Puget Sound/Strait of Georgia Evolutionarily Significant Unit (ESU) of coho salmon is designated as a candidate species for listing by the NMFS, 64 Fed. Reg. 33466 (June 23, 1999), due to a variety of factors including habitat degradation. BA page B-1. The Port's consultant admits that Coho salmon from this ESU are present in Miller, Walker and Des Moines creeks. The BA relies on mitigation measures such as its three volume Preliminary Comprehensive Stormwater Management Plan released by the Port on or about November 16, 1999, and on such construction techniques as preserving a 50 foot buffer from coho habitat, to support the consultant's judgment that, if listed, the species would receive a "may affect, not likely to adversely affect" determination. BA page B-6-7. As with the Puget Sound chinook and the bull trout, neither the FEIS nor the FSEIS contain any discussion of coho salmon.
The newly-discovered presence of a threatened species in or near the project area is significant new information requiring a supplemental EIS under NEPA. Portland Audubon Society v. Lujan, 712 F. Supp. 1456 (D. Or. 1989), aff'd in part and rev'd in part, 884 F.2d 1233 (9th Cir. 1989), cert. denied 494 U.S. 1026 (1990), later opinion 795 F. Supp. 1489 (D. Or. 1992), aff'd sub nom Portland Audubon Society v. Babbitt, 998 F.2d 705 (9th Cir. 1993). This is particularly true where, as here, the existing EIS does not address the species in question. Headwaters, Inc. v. BLM, Medford Dist., 914 F.2d 1174 (9th Cir. 1990),rehearing denied, 940 F.2d 435 (9th Cir. 1991). If the Port is unsure whether the effects on the chinook or bull trout are significant, it must prepare an environmental assessment to make that determination. Oregon Natural Resources Council v. Lyng, 882 F.2d 1417, 1421 (9th Cir. 1989).
A newly-discovered candidate species whose viability may be threatened by a proposed action should be accorded similar treatment under NEPA. Seattle Audubon Society v. Moseley, 798 F. Supp. 1484 (W.D. Wash. 1992), aff'd sub nom. Seattle Audubon Society v. Espy, 998 F.2d 699 (9th Cir. 1993) (NEPA analysis required for species not listed as threatened or endangered if viability is in question).
Disclosing the information in the BA to the public in a NEPA document, and allowing review and comment on a new NEPA document, is particularly important in this case because the BA's conclusion that the project is "not likely to adversely affect" chinook salmon, bull trout or coho salmon is "based on the extensive mitigation measures incorporated into the project." Page 5-1, Page B-7. Among these mitigation measures is the Comprehensive Stormwater Management Plan just released by the Port.
If the mitigation measures, including the Comprehensive Stormwater Management Plan, will not be fully effective, the "not likely to adversely affect" conclusions may not be supportable. Appendix D to the BA suggests that if there is "less than full treatment for all new impervious surface area in a subbasin [such as Miller and Des Moines creeks] that provides habitat or potential habitat for a listed fish species," a finding of "may affect likely to adversely affect is required. BA Appendix D, third page.
Yet the BA itself offers no justification for its unrestrained confidence in the as-yet untested and partially-undefined mitigation measures. Indeed, there is no indication that the authors of the BA had reviewed the current Comprehensive Stormwater Management Plan. Further Appendix E to the BA notes that standard BMP's alone will not be sufficient during construction to maintain water quality standards, discloses that the specific additional mitigation steps have not yet been decided, and refers to the required steps as "experimental BMPs" that are the subject of "on-going research". BA, Appendix E, pages 6, 1, 4-8.
NEPA allows the public to analyze the new information on these listed species, and the consultant's conclusions stemming from this new information, and to provide the Port and the Corps additional information and analysis to aid the Corps in determining if the consultant's conclusion is justifiable. The Corps' recognition in its November 22, 1999 letter to Peter J. Eglick that it should (and will) continue to accept and consider comments on the BA and the new stormwater management plan after the close of the current comment period confirms the importance of these new documents, but does not in any way substitute for the procedural rights provided in the NEPA process.
The Corps' permitting regulations require it to initiate formal consultation under the ESA for all projects that "may affect" a listed species. Section 325.2(b)(5) states:
If the district engineer determines that the proposed activity would not affect listed species or their critical habitat, he will include a statement to this effect in the public notice. If he finds the proposed activity may affect an endangered or threatened species or their critical habitat, he will initiate formal consultation procedures with the U.S. Fish and Wildlife Service or National Marine Fisheries Service.
If the Corps concurs with the Port's "may affect" finding on Puget Sound chinook and bull trout, it must initiate formal consultation regardless of the "not likely to adversely affect" assertion in the BA.
Even if the Corps intends to use the Port's "may affect, not likely to adversely affect" findings as a basis for substituting informal consultation for formal consultation under section 7 of the ESA, it will have to obtain the written concurrence of NMFS and FWS to the "not likely to adversely affect" finding. 50 C.F.R. 402.14(b)(1). To do this, the Corps must first convince itself that the consultant's blind confidence in the Port's proposed mitigation measures is justified. The Corps must examine each proposed mitigation measure and determine if a) it will actually occur, and b) if it is likely to be successful. In the case of the Comprehensive Stormwater Management Plan, there are powerful reasons to reject any reliance on that endeavor as an effective mitigation measure. [See comments of ....]
If the Corps concludes through its independent review of the proposal that the mitigation measures will achieve a "not likely to adversely affect" result, it must then submit its analysis to NMFS and FWS, and each of these agencies must in turn independent assure itself that the Port's and Corps' conclusion is valid, again based on a review of each mitigation measure.
If either NMFS or FWS fails to concur in the "not likely to adversely affect" finding, formal consultation must be initiated.
Neither the FEIS nor FSEIS addresses the environmental effects of removing 26 million cubic yards of fill from borrow sites. The FSEIS asserts that the Port has not yet determined where the fill will come from. FSEIS 5-4-1. It then dismisses any environmental effects of removing and transporting this enormous amount of fill by stating: "Permitted material sites have or will be subjected to environmental review as part of the appropriate regulatory process that granted the permits and which established conditions of operations.
The effects of removing and transporting fill must be considered under 40 CFR 1508.8, which states:
>>Effects== include:
(a) Direct effects, which are caused by the action and occur at the same time and place.
(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems.
Removal and transportation of fill could be considered either direct or indirect, but are "reasonably foreseeable" under either subsection, because the project cannot proceed without the fill. The impacts of removal and transportation of the fill must therefore be analyzed in an EIS. Presidio Golf Club v. National Park Service, 155 F.3d 1153, 1163 (9th Cir. 1998); Sierra Club v. Marsh, 976 F.2d 763, 768 (1st Cir. 1992).
NEPA requires consideration of cumulative impacts of both current and planned activities, federal and non-federal. City of Carmel v. U.S. Dept. of Transportation, 123 F.3d 1142, 1159 (9th Cir. 1997). Since the FSEIS was completed in February 1997 there are new planned activities in the area including: SR-509/South Access Freeway, the Des Moines Creek Regional Detention Facility, the LINK light rail project, and potential development of some of the Port's so-called borrow areas. These have never been considered in a NEPA document.
The Port's August 1999 Draft Wetlands Re-evaluation Document (page 44) states in its section on "Cumulative Impacts":
Additional impacts to wetlands could occur as a result of other projects planned in the vicinity of the Airport. These projects include Washington Department of Transportation's proposed SR-509/South Access Freeway, the Des Moines Creek Regional Detention Facility, the LINK light rail project, and potential development of Borrow Areas.
Each of these projects may have direct or indirect impacts to wetlands near the airport and result in some unknown cumulative loss of wetland area and functions.
The Port cannot ignore these impacts simply because time has passed since issuance of its FSEIS, or simply because the developers of these other projects will also have to evaluate the impacts in a different process. The Council on Environmental Quality regulations define cumulative effect broadly:
Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time.
40 CFR 1508.7. The "present, and reasonably foreseeable future actions" must be analyzed as a cumulative impact "regardless of what agency (Federal or non-Federal) or person undertakes such other actions."
The Port's Draft Wetlands Re-evaluation Document (August 1999) provides an example of the Port's improper myopia. The document concludes that project's increase in destroyed wetlands from 12 acres to 18 acres is not environmentally significant. This document asks and answers the wrong question. The proper question is: do all the presently known cumulative effects, including changes in the Third Runway project, the SR-509/South Access Freeway, the Des Moines Creek Regional Detention Facility, the LINK light rail project, and potential development of Borrow Areas collectively create environmental impacts that are significantly different than those considered in the FEIS and FSEIS? According to information in the files of the Washington Department of Ecology, the SR-509/South Access Freeway will destroy 12 acres of wetlands directly adjacent to the Third Runway project, bringing the known wetlands loss to 30 acres. Additional wetlands losses from the other identified projects would further degrade the affected watersheds. The Port has never considered these cumulative effects, and must do so in a supplemental EIS.
Mark C. Rutzick
November 23, 1999