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Rachael Paschal Osborn attorney at law

(Address omitted)

February 15, 2001

U.S. Army Corps of Engineers

Regulatory Branch

PO Box 3755

Seattle, WA 98124

Attn: Jonathan Freedman, Project Manager

Washington State Department of Ecology

Shorelands & Environmental Assistance Program

3190 – 160^th Ave. S.E.

Bellevue, WA 98008-5452

Attn: Ann Kenny, Environmental Specialist

Re: Port of Seattle, Ref. No. 1996-4-02325

Dear Mr. Freedman and Ms. Kenny,

This letter comprises comments regarding water resource elements of the Port of Seattle’s application for a Section 401 certification and Section 404 permit for the proposed Third Runway Project and associated construction. These comments are submitted on behalf of Airport Communities Coalition, composed of the Cities of Burien, Des Moines, Federal Way, Normandy Park, Tukwila, and the Highline School District. These communities are vitally concerned with the health of the streams and watersheds located within their communities. They object to any approval by the Department of Ecology of the Port’s proposal that does not provide verifiable, real assurance that local streams, water quality, and the fish and wildlife dependent on them will be maintained and protected.

The analysis contained in this letter is pertinent to your upcoming decision regarding the Port’s application for a Section 401 certification. The Port admits that activities associated with the Third Runway construction proposal will reduce late summer flows in the three stream systems that surround Sea-Tac International Airport. Supplement to Biological Assessment, p. 2 (Parametrix Dec. 2000). Impacted streams are already degraded for flow-related water quality parameters such as temperature and dissolved oxygen. Sea-Tac Runway Fill Hydrologic Studies Report (Pacific Groundwater Group, June 19, 2000). These flow reductions and associated water quality impacts, if not addressed, would be inconsistent with state certification and approval. These issues must be resolved before 401 certification may issue.

These comments focus in particular on the low streamflow mitigation proposal submitted by the Port, and associated water right requirements. In sum, the Port: (1) does not provide a credible analysis of the impacts of its proposal on base flows in Miller, Walker and Des Moines Creeks, (2) does not provide a certain method by which those impacts will be mitigated, and (3) does not address legal requirements under the state water code. Moreover, the Port’s proposals for alleviating stormwater impacts and peak flow damage will themselves contribute to low flow problems. As a consequence, the Port’s proposal provides no basis for a finding of reasonable assurance that water quality standards will be met.

Set forth below is information relating to the water quality and beneficial use problems that must be mitigated by the Port, a review of the various options for streamflow augmentation gleaned from recent Port submittals, a discussion of the facts and issues associated with the water rights proposed for use by the Port as a part of its water quality mitigation project, and a brief review of relevant water quality law.

Section 401 of the Clean Water Act (33 U.S.C. § 1341) and its implementing regulation, 40 C.F.R. § 121.2(a)(3), require the Department of Ecology to certify, with “reasonable assurance,” that the airport expansion, facilitated by permits from both the Federal Aviation Administration and the Army Corps of Engineers, will be conducted in a manner that does not violate Washington’s water quality standards. To achieve “reasonable assurance,” the Port of Seattle must develop concrete and detailed plans and designs for its projects. Speculative plans and concept-only designs do not provide the level of assurance that state law requires to ensure that water quality standards can be met.

Among the many flaws associated with mitigation plans for the airport expansion, the Port has failed to identify specific and credible sources of augmentation water to meet its mitigation goals. Consequently, these plans do not provide reasonable assurance that the proposed mitigation activities will occur in a manner that prevents violation of state water quality standards.

The “reasonable assurance” standard requires a high level of certitude when water rights are an element in the project design requiring certification. Many water rights in Washington are subject to significant uncertainty concerning quantity and validity. The water rights documents found in the files of the Department of Ecology’s Water Resources Program – permits, certificates and claims – often bear little resemblance to actual, on-the-ground water usage or the final administrative determination of validity that the Department and the courts must make when transfers or changes are proposed. Water rights can and do change over time, depending on factors such as non-use, reasonable efficiency and priority of use. As a result, it is necessary that applicants provide valid rights prior to certification when augmentation is a component of a water quality plan.

The Port’s proposals to augment streamflow in Des Moines, Walker and Miller Creeks provide apt illustration of this problem. The Port has yet to offer a valid water right or other credible source of water in support of its plans to augment flow in Des Moines Creek, notwithstanding specific water rights problems associated with its two prior Section 401 applications. In Miller Creek, the Port proposes a water right retirement strategy that raises concerns about beneficial quantities. A new augmentation strategy involving stormwater releases appears to be an improper attempt to bypass water permitting requirements. In each case, the lack of certain water supply makes it impossible to certify the viability of the plan. Each of these issues is discussed in detail below.

A. Water Quality Requirements

Before discussing the water right problems associated with the Port’s augmentation plans, it is useful to review why the Port is proposing augmentation. The airport expansion project will, because of the quantity of fill involved, obliterate wetlands and a significant reach of Miller Creek and create large quantities of new impervious surfaces. These changes will disrupt hydrologic recharge and discharge functions for Miller, Walker and Des Moines Creeks, exacerbating degradation of water quality and fisheries habitat. There are significant legal ramifications to these problems.

(1) Washington’s Water Quality Standards

Water body classifications for Des Moines, Walker and Miller Creeks are derived from the general classification rule for water quality standards, WAC 173-201A-120(6). Because the streams discharge into Puget Sound east of Hartstene Island, the Puget Sound water quality standard governs. That standard is Class AA, and applies to all three streams. WAC 173-201A-140(21).

Class AA water bodies are defined as “extraordinary” and must “markedly and uniformly exceed the requirements for all or substantially all uses.” WAC 173-201A-030(1)(a). Characteristic use regulations require that Miller, Walker and Des Moines Creek waters be clean enough to support water supply, recreational use, and the migration, rearing, spawning and harvesting of salmonid and other fishes. WAC 173-201A-030(1)(c).

Water quality criteria require that Miller, Walker and Des Moines Creeks meet specific standards for dissolved oxygen, fecal coliform, temperature, pH, turbidity, and toxic substances. WAC 173-201A-030(c). The same standard also requires that the three streams be of sufficient quality to not impair aesthetic values, i.e., offend senses of sight, smell, touch or taste.

Finally, the state anti-degradation rule requires that existing beneficial uses of Miller, Walker and Des Moines Creeks be maintained and protected, and that no additional degradation be allowed which would interfere with or harm existing uses. WAC 173-201A-070.

Guidance for applying Washington’s water quality standards in the context of a Section 401 certification is found in the two court decisions resolving the City of Tacoma’s ill-fated Elkhorn hydroelectric project. Both the U.S. Supreme Court and the Washington Supreme Court approved the imposition of conditions upon a Section 401 certificate requiring the project proponent to maintain the characteristic uses of the affected water body. Department of Ecology v. PUD No. 1, 121 Wn.2d 179 (1993), affirmed, PUD No. 1 of Jefferson County v. Washington Department of Ecology, 114 U.S. 1900 (1994).

In the Elkhorn decisions, the courts upheld Ecology’s decision to require Tacoma to maintain streamflow levels adequate to protect salmonid fisheries in the Dosewallips River. Thus it is Ecology’s duty, in reviewing the Port of Seattle’s Section 401 application, to prohibit degradation not only to the chemical and physical quality of Miller, Walker and Des Moines Creeks, but also to protect the capacity of the Creeks to support biological uses such as salmon migration and spawning. Other characteristic uses, such as recreation, as well as aesthetic standards, must also be maintained.

The project may not be approved if the Port has failed to provide a permanent reliable means to maintain flow in the late summer season. Thus, in reviewing the 401 application, you must look to the elements of the Port’s proposed augmentation plan and its specific relationship to state water quality requirements to determine whether the reasonable assurance standard is met.

In reviewing those plans, water is an essential component. Yet, as detailed below, at this critical juncture in the Section 401 decision process, the Port does not have a credible water source for its augmentation plans. Water rights are uncertain with respect to Miller, Walker and Des Moines Creeks. Consequently, there is no way of knowing at this time whether the Port will be able to provide the most basic ingredient of augmentation. As a result, reasonable assurance is not achieved, and the 401 certification must be denied.

(2) Water Quality in Miller Creek, Walker Creek, and Des Moines Creek

Notwithstanding state and federal water quality requirements, Des Moines, Walker and Miller Creeks do not presently meet standards nor fully support all legal beneficial uses. According to the Low Streamflow Analysis, construction of the Third Runway project will reduce flows in Miller, Walker and Des Moines Creeks during low flow periods when water quality is already stressed. Low Streamflow Analysis, Tables 9, 11, 12, 13.

Nor do these three streams measure up to water quality standards. The Sea-Tac Runway Fill Hydrologic Studies Report (PGG, June 19, 2000) provides baseline information about water quality and fisheries habitat. Des Moines and Miller Creek have routinely violated water quality criteria over the years. PGG’s independent sampling revealed low dissolved oxygen in Walker Creek. The Port’s Natural Resources Mitigation Plan (December 2000) and the Des Moines Creek Basin Plan (November 1997) also describe prior water quality studies and their results, most particularly the history of violations of water quality standards in Miller and Des Moines Creeks. Des Moines Creek is also listed on the state’s 1998 303(d) list for violation of the fecal coliform standard.

Miller and Des Moines Creeks are both classified as Class II salmon-bearing waters by the state Department of Fish & Wildlife. Both support populations of salmonid fish, including native and hatchery Coho salmon and sea-run cutthroat trout, as well as other resident fish. Walker Creek contains an abundant supply of cutthroat trout in addition to juvenile Coho salmon. These fisheries rely upon cold, clean, flowing water for survival. The PGG study indicated that low flow and water quality problems contribute to fisheries habitat degradation.

The reductions in flow that would be caused by the Port’s expansion projects are expected to exacerbate degradation of water quality and fisheries habitat. The Des Moines Creek Basin Plan (Nov. 1997) indicates that increased impervious surfaces on the order of that proposed by the Sea-Tac expansion will further reduce base flows and degrade water quality. The Port’s proposed expansion will, unmitigated, impede state and local efforts to restore water quality to Des Moines, Walker and Miller Creeks and will harm the biological integrity of these streams. See, e.g., previous comments and February 2001 comments (all in the 401/404 record in this matter) of Dr. Peter Willing of Water Resources Consulting, Bill Rozeboom and Dr. Malcolm Leytham of Northwest Hydraulic Consultants, Dr. John Strand of Columbia Biological Assessments, and Dr. Tracy Hillman of BioAnalysts.

All three streams also support local recreational use. Large amounts of volunteer and city investment and restoration money have been focused on restoring Des Moines Creek Park, which is the subject of a vigorous community effort to protect the stream as a resource treasure. A paved path adjacent to Des Moines Creek provides a valuable recreational opportunity for use by local residents who walk, jog and bicycle the Creek. The streams also support trout fisheries. Decreased flows and water quality will interfere with public uses of the stream. Further, there is little, if any, discussion of these beneficial uses in the Port’s submittals.

In sum, Des Moines, Walker and Miller Creeks are urban streams that continue to support public use and aquatic life systems, uses that will suffer additional degradation as a consequence of Sea-Tac expansion. These uses and their degradation are central to the Department’s inquiry under the Section 401 process.

(3) Technical Deficiencies of the Augmentation Plan

The recent Battle Mountain Gold decision provides additional insight into how the reasonable assurance standard should be interpreted to apply to the technical aspects of the Port’s mitigation plan. Okanogan Highlands Alliance v. Ecology, PCHB No. 97-146, et al., Final Findings of Fact, Conclusions of Law and Order (1/19/00). Like the Port, Battle Mountain Gold (BMG) proposed water treatment facilities and off-site wetland mitigation to offset the water quality and aquatic resource impacts associated with its proposed gold mine. Unlike the Port, BMG’s mitigation plan was detailed in concept and design. There is barely a comparison to be made between the quality of the BMG plan and what has been offered to date by the Port.

The PCHB rejected BMG’s plans and reversed Ecology’s issuance of a 401 certification due to flaws that are identical to those found in the Port’s plan. The Port’s proposed expansion project is predicted to cause violations of water quality standards. At present, the sketchy augmentation plan identifies the need for permanent treatment facilities and offers up concepts, but provides little or no reliable information about design, construction, operation and maintenance in perpetuity. There is inadequate discussion of the relationship of the plan to water quality violations and degradation in Des Moines, Walker and Miller Creeks.

In sum, in carrying out its duties under the Section 401 certification process, the Department must consider the impact of the Port’s proposal on the chemical, physical and biological characteristics of Miller, Walker and Des Moines Creeks. It must analyze the technical elements of the Port’s proposals to offset degradation to these characteristics to ensure that each component of the plan can be achieved, and in performing such analysis, it may not accept IOUs.

B. Low Flow Augmentation Options

The documents submitted by the Port discussing its streamflow augmentation plans are confusing and inconsistent. The Port has yet to select a mechanism by which it will mitigate the harm to late summer base flows in the Des Moines, Walker and Miller Creek basins caused by the Third Runway Project and associated construction. While the Port has identified a range of options in its various submittals, the documents are inconsistent and do not provide adequate technical information to evaluate the implementation elements of mitigation and their effectiveness. Some of the submittals seem to indicate that augmentation will not work; the Port even acknowledges that the benefits of one of its proposals cannot be measured.

The augmentation program discussed in the Comprehensive Stormwater Management Plan (Parametrix, Dec. 2000, Agency Review draft) conflicts with two other Port submittals addressing the same subject, the Supplement to the Biological Assessment (Parametrix, Dec. 2000), and the Low Streamflow Analysis (Earth Tech Inc., Dec. 2000). These three documents, which presumably should provide a definitive and integrated description of the Port’s streamflow augmentation plans, in fact do not describe what plans the Port intends to implement in order to augment low flow. Nor do they describe what the actual streamflow benefits will be, or whether state water law requirements are satisfied. The Department of Ecology cannot make a finding that water quality standards will be met with reasonable assurance based on the information provided in these submittals.

(1) Comprehensive Stormwater Management Plan

The Comprehensive Stormwater Management Plan (CSMP) at pages 6-10 and 6-11 states that augmentation in Miller Creek will be accomplished via retirement of existing water rights. In the Des Moines Creek basin, according to the CSMP, a “Port-owned well located within the Tyee Valley Golf course” will provide augmentation water. Id.

Analysis of the Miller Creek proposal raises questions about the augmentation benefits of this proposal. Appendix G of the CSMP reveals that, upon investigation of actual water use in the Miller Creek basin, the retirement of water rights and commensurate agricultural acreage yields a much smaller improvement in streamflow than first predicted. The proposed mitigation is now in doubt because the Port’s original assumptions about whether and how much water was being used by riparian property owners have turned out to be false.

Notwithstanding this empirical information, the Port, without justification, continues to utilize its original discredited assumptions for those parcels where the Port’s consultant was unable to obtain actual usage data. These assumptions are not defensible where the Port’s own research has shown them to be false. CSMP, Table G-2. Moreover, when empirical data is coupled with hydrologic analysis, the results reveal an alarming trend. The Port’s Low Streamflow Analysis indicates that the Port’s proposed Miller Creek water rights retirement will result in a net decrease in streamflow, due primarily to the dependence of a number of small farms on imported municipal water as a source of irrigation. Low Streamflow Analysis, pp. 9-10.

The assumptions that underlie the CSMP’s discussion of augmentation in the Des Moines Creek basin are similarly flawed. There is no mention of the significant water rights problems associated with the Tyee Golf Course well. See discussion Section B.2 below. The Department of Ecology acknowledges (personal communications with Pat Svoboda and Dan Swenson of Ecology) that there are significant questions about the validity of this water right and there is certainly no guarantee whatever that any portion of the Tyee water right will be available for transfer to streamflow augmentation purposes.

Moreover, the asserted relative benefits, asserted in the CSMP, of the Des Moines Creek augmentation proposal are not supported. The report asserts that an addition of 0.8 cfs will be adequate to maintain a recommended in streamflow of 1.0 cfs, given that late summer flow typically drops to “about 0.3 to 0.5 cfs.” CSMP, p.6-10 to 6-11. The report then provides a paragraph of discussion regarding the benefits to stream temperature and dissolved oxygen that will result from this level of augmentation. However, no data is provided to support the bare assertions that under the proposed augmentation regime, baseline stream temperatures will improve to the level required to meet water quality standards.

(2) Low Streamflow Analysis

Earth Tech’s Low Streamflow Analysis (LSA) identifies five low-flow “factors” that will contribute to augmentation in the three subject stream systems. LSA at pp. 4-5. These involve stormwater recharge and infiltration in the embankment fill, in biofiltration strips adjacent to runways, and in stormwater detention facilities. The LSA frankly acknowledges that the model used by the Port’s consultants to ascertain streamflow impacts cannot assess the benefit that the Port claims will result from these three mitigation factors. LSA, pp. 4-5. The lack of certainty surrounding the benefit of these factors cannot be converted into the reasonable assurance necessary for Clean Water Act Section 401 certification.

The fourth factor identified in the LSA involves the change in flows in Miller Creek resulting from farm buy-outs and retirement of associated water rights. LSA, pp. 9-10. The LSA acknowledges that this strategy will result in a net reduction in flow in Miller Creek. See discussion of CSMP, above.

The fifth augmentation strategy, identified for the first time in the LSA, calls for “managed release of stormwater from reserved storage.” LSA, p. 5. An abbreviated description of this mitigation proposal is found at pages 15-20. While the Port has assured the Department of Ecology that a detailed description of this option will be provided for public review, in fact that description is nowhere to be found in the materials available at the commencement of the public comment period. See 12/08/00 Final Draft Meeting Notes, Sea-Tac Airport Third Runway 401 Permit Negotiations, at p. 5.

In contrast to the CSMP, the Low Streamflow Analysis makes no mention of use of the Tyee Golf Course well as a source of augmentation for Des Moines Creek low flows. Significantly, of the five factors identified in this report, only the managed stormwater release option is available in Des Moines Creek. LSA, p. 5.

(3) Supplemental Biological Assessment

The Port’s Supplement to the Biological Assessment (SBA) describes yet another configuration of potential augmentation strategies. The three mechanisms identified in this document include: (1) release of stormwater, (2) pumped water from the Tyee Golf Course well, and (3) retirement of water rights and water withdrawals. SBA, p. 12.

The SBA’s discussion of the first option, release of stormwater, does not indicate whether this release would be “managed” and “active” as described in the LSA, or whether it merely represents passive infiltration typical of most stormwater reservoirs. If the latter, the benefit, if any, of these releases on streamflow are immeasurable, as acknowledged by the Port.

Moreover, the SBA states that the approximate 9 acre feet of water required by this strategy would be stored in a separate vault. Where that vault would be constructed and its relationship to the subject streams is not identified in any of the Port’s submittals. SBA, p. 12. The location, construction, and operation of such a vault poses significant issues that may not be deferred if reasonable assurance is to be provided under the Clean Water Act.

The lack of modeling and measurement associated with the stormwater release and water right retirement strategies does not provide assurance that water quality and quantity standards will be met. Further, the confusing, contradictory array of information provided in these documents is inconsistent with the clarity and clear scientific basis necessary for reasonable assurance concerning the type and efficacy of streamflow augmentation. These problems are compounded by significant legal questions surrounding the water rights associated with the augmentation strategies, even were they clearly -- and consistently -- described.

C. Water Rights

As an initial matter, it should be noted that Miller and Des Moines Creek are closed to new water right appropriations. WAC 173-509-040(1). These closures constitute official acknowledgement that the streams are fully appropriated and in fact lack adequate flow. Any water right activity undertaken by the Port must provide absolute protection from further degradation and impairment. Postema v. Ecology, 11 P.3d 726 (2000).

(1) Tyee Golf Course well

Pursuant to the CSMP and the SBA, the Port continues to propose that it will pump water from the Tyee Golf Course well as a direct source of water to augment streamflow in Des Moines Creek. This reliance is misplaced, because the water right at issue is of dubious validity. Previous correspondence to the Department of Ecology has described in detail the problems with this water right. See Attachment 1 (letter to Pat Svoboda dated 8/9/00). Clearly, Ecology may not rely upon the proposed use of this water as a component of its reasonable assurance finding.

While the Department of Ecology is not currently even processing a Tyee Golf Course water right change application, the Port apparently believes that it will receive expedited processing pursuant to WAC Chapter 173-152. However, that rule only allows expedited processing when an application will provide a substantial enhancement to the natural environment or would provide public water supply to meet general public needs. WAC 173-152-050(3).

Neither factor applies here. The purpose of the airport project is “to meet the public need for an efficient regional air transportation facility to meet anticipated future demand.” Army Corps of Engineers, Public Notice of Application for Permit, Reference No. 1996-4-02325, p. 4. There is no “benefit” to the natural environment that accrues from the project. The Port’s offering of “mitigation” for its environmental harm does not convert a project which proposes to fill wetlands with 20 million cubic yards of fill into one in which the natural environment is substantially enhanced. Further, neither public water supply nor public health or safety are benefited.

For purposes of the Section 401 certification decision, the serious questions surrounding ownership and validity of the Highline water “right” go to the heart of the “reasonable assurance” standard. Questions concerning this water transfer will not be resolved in the time frame required for the Section 401 decision and indeed may take years to resolve, especially if appeals are invoked. The Department may not rely upon a speculative, unapproved transfer application as a basis for certifying that adequate base flow will be maintained in Des Moines Creek.

(2) Miller Creek Water Rights Retirement

The Port proposes to retire 18 acquired water rights certificates and claims on Miller Creek, in order to mitigate base flow reductions in the Creek. LSA, p. 9. These water rights are described in the Port’s Comprehensive Stormwater Management Plan, Appendix G, Table G-2 (revised December 2000).

However, even according to the Port’s own analysis, the strategy of purchasing and retiring water rights in the Miller Creek basin will result in a net reduction in water flow. LSA, pp. 9-10. This result is based on empirical analysis, which revealed that most of the riparian landowners were not pumping water from Miller Creek, but were utilizing imported municipal water for irrigation purposes. Return flows of imported water added to flow in Miller Creek, a phenomenon no longer at work since these parcels have been purchased and vacated.

Further, while the Port indicates intent to retire these rights to the Department of Ecology, such an action does not of itself protect the water from future appropriation. If the Port intends to permanently dedicate this water to instream flow uses, it must submit change applications to the Department that will ensure perpetual protection for these rights. Otherwise, even assuming some benefit from the relinquishments, the rights will be available to others. Because many of these rights have been relinquished for non-use, legally, such permanent dedication may not be possible. See CSMP, Table G-2.

Nor is the Port entitled to mitigation credit for what appears to be illegal commercial irrigation on the Scarsella and Genzales properties. It is disingenuous for the Port to assert that “although the properties do not appear to have a recorded water right or claim in Ecology’s files, it is assumed that the farmer either has a permit that is not filed with Ecology, or feels that they have a valid vested right for water.” See LSA, p. 10.

Neither “feelings” nor unfilled “documents” alone guarantee a water right. The water code clearly requires either a permit or a claim form be on file with the Department to establish all but exempt ground water uses. RCW 90.03.010; RCW 90.14.041. In their absence, it may be assumed that these water diversions are illegal. As such, they are not transferable and the Port may not rely upon them as a basis for designing a permanent flow augmentation plan.

In sum, the Port claims that cessation of surface diversions will result in “a direct and immediate benefit” to Miller Creek, but has placed information on the application record about this strategy that proves the opposite conclusion. The Miller Creek “water rights cessation” analysis provides no basis for a finding that water quality impacts associated with decreased base flows will be offset under this strategy.

Further, from a legal perspective, the Port is not entitled to credit for water rights that are not placed into trust water rights status, pursuant to RCW 90.42 and protected as instream water rights. It is doubtful that most of these rights can be placed into trust status. Therefore, no legal benefit should accrue to the Port for retirement of these rights and claims.

The Miller Creek water right retirement strategy provides no assurance whatever that base flows and attendant water quality standards will be met. A Section 401 certification cannot issue based on the Port’s analysis of impacts to Miller Creek.

(3) Stormwater Release

The Port’s submittals fail to identify exactly how the Port proposes to augment low streamflow from stormwater releases. There appear to be two options: passive infiltration (SBA, p. 12), and active/managed release (LSA, p. 5).

A passive system of release does not provide the assurance necessary to certify that water quality standards will be met. It is axiomatic that, under a passive release system, the Port cannot control when water will be available to augment base flow. Hence, there is no assurance that water will be available in the stream when it is needed. This problem is fully acknowledged in the Port’s submittals, where it is stated that the Port is unable to model, measure or predict when or how much water will travel through embankment fill and other substrate to reach Miller, Walker and Des Moines Creeks. Clearly, there is no reasonable assurance here.

An active system of capture and release for streamflow augmentation raises other problems. If the Port wishes to engage in active/managed release of water to augment flow, it must obtain a water right. All waters of the state, including detained stormwater, belong to the public. RCW 90.03.010. Any entity who intends to put water to use for a beneficial use must obtain a permit. RCW 90.03.250. “Beneficial purpose” is defined under the water code to include “fish and wildlife maintenance and enhancement … and preservation of environmental and aesthetic values.” RCW 90.54.020. As a corollary, unless the Port obtains a water right protecting its augmentation water from appropriation by others, there is no reasonable assurance that streamflow in the three stream systems will be augmented in perpetuity, at the level necessary to maintain water quality standards.

Finally, both passive and active release raise questions about the quality of water that is returned to the stream. Absent treatment, stormwater will likely contain toxic pollutants from runways and other impervious surfaces, degraded dissolved oxygen, sediment, and other water quality degradation. See, e.g., previous and February 2001 comments by Northwest Hydraulic Consultants. Because the Port does not discuss where or how stormwater will be released to the three stream systems, information about treatment to meet water quality standards is entirely absent.

CONCLUSION

The Port has offered a sketchy and conflicting array of streamflow augmentation concepts in support of its proposal to expand the airport. It is a fact that the proposed expansion, if approved, would permanently eliminate and degrade important aquatic resources. Thus, the plans offered as mitigation must provide permanent, effective solutions to prevent the loss of aquatic functions.

The Port’s mitigation plans hinge upon the provision of water from an external source. Yet none of the Port’s various plans, discussed in this letter, identifies with any degree of certitude a viable source of external water for augmentation.

When it comes to water supply, reliance on assumptions is simply not an acceptable approach. The Section 401 process requires, above all else, assurance that the Port’s mitigation proposals will adequately compensate for water quality degradation. It is critical to have committed in legally reliable form the sources of clean, cold water that will serve, in perpetuity, the project’s mitigation requirements.

Given the water supply problems associated with the Port’s previous Section 401 applications, the omissions described herein are extraordinary. The Port has been aware for more than two years that water supply is a significant issue that must be resolved in order to present a complete and credible Section 401 application. Yet the Port has failed to step up to this issue. The Department of Ecology, on this basis, must deny the Port of Seattle’s Section 401 application.

Battle Mountain Gold proposed engineering and mitigation solutions for its gold mine project which are reminiscent of the Port’s proposals here. The PCHB, in reversing Ecology's 401 certification of the Battle Mountain Gold project, made some relevant observations about legal requirements for mitigation:

"The proposed mitigation . . . is not legally sufficient to meet the criteria for approval of the water right applications or providing reasonable assurance for the § 401 Certification. The physical knowledge of the affected lands is limited in critical areas necessary to conclude that proposed mitigation water is sufficient or that the water will be delivered in a timely manner to affected streams. The mitigation is therefore highly speculative and uncertain. The same must be said for the permanent engineered solutions offered for the shift in a hydraulic divide. The proposal in essence calls for re-plumbing a watershed with facilities that must be maintained forever."

The PCHB concluded:

"The focus of our environmental laws must be on preventing pollution and habitat degradation. It is not legally sufficient to proceed with the proposed mine without much more specific knowledge of the potential impacts from the development and meaningful means of preventing and protecting against the adverse consequences of the development. The long-term engineered solutions proposed in this case are legally insufficient."

Like BMG, the Port of Seattle is relying on models that cannot fully assess the impacts to small streams. The Port proposes to "re-plumb" the Miller, Walker and Des Moines Creek basins, and rely upon permanent engineered solutions (water storage vaults, reservoir infiltration) that have not been developed to a verifiable level and cannot be reliably said to work. The Port's proposal does not provide the reasonable assurance that the 401 permit process requires.

Yours Very Truly,

Rachael Paschal Osborn

Consulting Counsel to

Airport Communities Coalition