Environmental and Land Use Department Update
Summer 2003
U.S. District Court for Oregon Tells EPA
to Rewrite Oregon’s Water Quality Standards
and Voids NOAA Fisheries Earlier ESA Approvals
By Catherine Drews and Sally Brick
The United States District Court for Oregon
recently entered an order that potentially
confuses the regulatory landscape for development involving Oregon waters. In
Northwest Environmental Advocates v. EPA
and NMFS (D. Or. No. CV-01-510HA, Slip
Op. Mar. 31, 2003), the court ordered the
United States Environmental Protection
Agency (EPA) to rewrite substantial portions
of Oregon’s revised water quality standards.
The Order required parties to establish a
timeline for EPA compliance by April 30,
2003.
The court also invalidated the
Endangered Species Act (ESA) approval for
Oregon’s revised standards, and ordered the
National Marine Fisheries Service (NMFS now known as NOAA Fisheries) to initiate a
new round of ESA consultation on the EPA’s actions. Finally,
the court ordered the EPA to either issue more stringent
standards to satisfy the ESA or determine through a new
consultation that the existing standards do not jeopardize
listed species.
In reaching these conclusions the court addressed a
complex range of claims by Northwest Environmental
Advocates (NWEA) under the Clean Water Act (CWA), the
Administrative Procedure Act (APA) and the ESA. The court’s
specific rulings are as follows:
Water Quality Temperatures for the Willamette River
The court found that the EPA had failed to exercise its
mandatory duty to revise the temperature criteria on the
Willamette River after having determined that Oregon’s new
68 degree Fahrenheit standard would not protect salmonids.
The EPA must now issue a new temperature standard for the
Willamette in accordance with the schedule the court has
ordered the parties to develop.
Water Quality Temperatures
for the Columbia River
Inside This Issue:
In contrast, the court
U.S District Court for Oregon
found that because
Tells EPA to Rewrite Oregon’s
Water Quality Standards and
Oregon had not submitted
Voids NOAA Fisheries Earlier
a new or revised temperaESA Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ture standard for the
A Closer Look at the
Pollution Control Hearings
Columbia River and the
PCHB’s Third Runway Ruling
EPA had not independentOn Wetland Assessment
in Mitigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
ly concluded that a new
standard was necessary,
Working with
Aquifer Storage and
the court did not have
Recovery Regulations
jurisdiction under the
in Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
CWA’s citizen suit provision to review the adequacy of Oregon’s existing temperature standard for the
Columbia. Consequently, Oregon’s numeric temperature
standard for the Columbia will remain at 68 degrees
unless Oregon or the EPA affirmatively act to change it.
Oregon’s Antidegradation Implementation Policy
The purpose behind the CWA’s antidegradation policy is to
permit existing uses while preventing further degradation of
water bodies, and it requires states to submit and the EPA
approve implementation plans for their antidegradation
policy. The court held that Oregon’s one-sentence antidegradation implementation plan lacked the necessary detail, and
that the EPA’s failure to propose an alternative plan with
sufficient details was arbitrary and a violation of the APA.
The court ordered the EPA to promulgate an antidegradation
implementation plan pursuant to the schedule to be submitted to the court on April 30, 2003.
Revised Numeric Water Quality Criteria
Water quality standards consist of two components: water
quality criteria (numeric or narrative) and designated uses
where the criteria apply. The relevant criteria here included
Oregon’s 64 degree temperature for salmon spawning, 50
Continued on Page 6
Page 2
Environmental and Land Use Department Update
A Closer Look at the Pollution Control Hearings
PCHB’s Third Runway Ruling On Wetland Assessment in Mitigation
By Eric Laschever
The Pollution Control
Hearings PCHB’s
(PCHB) decision in
Airport Communities
Coalition v. Ecology and
the Port of Seattle provides the PCHB’s latest
thinking on a number of
wetland assessment and
mitigation issues. This article focuses on
the PCHB’s rulings regarding the proposed wetland fills. The PCHB’s decision,
including the key wetlands ruling,
is currently pending before the State
Supreme Court.
Background Regarding
Proposed Wetland Impacts
To construct the Third runway, the Port of
Seattle proposed to affect a total of
21.34 acres of wetlands by permanently
filling 18.37 acres of wetlands and 0.92
acres of prior converted cropland and by
temporarily affecting 2.05 acres of wet-
land during construction.
The final mitigation strategy included
in-basin and out-of-basin mitigation. The
Port’s planned in-basin mitigation included improvements to over 112 acres of
land in the affected basins. Specifically,
the Port proposed to: (1) restore 11.95
acres of degraded wetlands, (2) enhance
22.32 acres of degraded wetlands, (3)
enhance 54.93 acres of wetland and
riparian buffers, and (4) preserve 23.55.
Siting new wetland creation in-basin was
Continued on Page 7
Summary of Wetland Mitigation Credit for Seattle-Tacoma International Airport Master Plan Update
MITIGATION
ON SITE
Wetland Restoration - Credit ratio 1:1
Remove Fill Adjacent to Lora Lake
Remove Fill at Des Moines Way Nursery Site
Remove Fill at Wetland A17
Vacca Farm (prior converted cropland and other upland)
Temporary Impact
Mitigation Area (ac)
Mitigation Credit
Subtotal
1.00
2.00
0.30
6.60
2.05
11.95
1.00
2.00
0.30
6.60
2.05
11.95
Subtotal
0.86
5.70
10.25
4.50
1.01
22.32
0.43
2.85
5.12
2.25
0.51
11.16
Subtotal
40.86
4.58
1.81
1.57
3.38
2.73
54.93
8.17
0.92
0.36
0.31
0.68
0.55
10.99
Subtotal
Total On-Site
2.35
21.20
23.55
112.75
0.24
2.10
2.34
36.44
Total Off-Site
TOTAL
29.98
19.50
15.90
65.38
178.13
29.98
9.75
3.18
42.91
79.35
Wetland Enhancement - Credit ratio 1:2
Des Moines Way Nursery
Vacca Farm (Farmed Wetland, Other Wetlands, Lora Lake)
Wetlands in Miller Creek Wetland and Riparian Buffer
Tyee Valley Golf Course
Wetland in Des Moines Creek Buffer
Buffer Enhancement - Credit ratio 1:5
Miller Creek Buffer, South of Vacca Farm
Vacca Farm
Lora Lake
Tyee Valley Golf Course Mitigation Area Buffer
West Branch Des Moines Creek Buffer
Des Moines Way Nursery
Preservation - Credit Ratio 1:10
Borrow Area 3 Wetland
Borrow Area 3 Buffer
OFF-SITE
Wetland Creation - Credit ratio 1:1
Forest (17.20 acres), Shrub (6.0 acres),
Emergent (6.20 acres), and Open Water (0.60 acres)
Wetland Enhancement - Credit ratio 1:2
Buffer Enhancement - Credit ratio 1:5
Page 3
Working with Aquifer Storage
and Recovery Regulations in Washington
By Matthew D. Wells
Introduction and Summary
Aquifer storage and
recovery (ASR) is a
simple concept. Water
is added to an underground formation or
“aquifer” through
injection or infiltration,
and is stored there until
it is needed. In many regards ASR is
identical to surface storage projects. The
critical difference is that ASR does not
require dams or reservoirs. ASR therefore
offers the most important benefits of
storage — the ability to accumulate water
during times of plenty for use during
times of shortage — while avoiding the
most significant drawbacks of surface
impoundments — adverse environmental
impacts of dams and reservoirs. ASR
then offers the potential of providing
much-needed storage capacity in an
environmentally responsible manner
without further compounding the competition between fish, farmers and growing
communities for surface water resources.
In 2000, the same year the
Washington legislature created a Water
Storage Task Force, the legislature
identified ASR as an important tool for
sound water management and expressly
authorized use of aquifers as underground “reservoirs.” The legislature also
directed the state Department of Ecology
(Ecology) to develop standards for permitting ASR projects and mitigating adverse
effects. In 2002, the legislature amended
the ASR statute to further encourage ASR
by streamlining the permitting process.
Ecology published its final ASR
regulations in early 2003. While several
applications have been filed for ASR
projects around the state, no full scale
projects have been permitted. Ecology’s
regulations resolve some key ASR issues
— such as the priority date for water
withdrawn from an ASR project — but
create new issues likely to make ASR
permitting challenging. In addition, the
interaction between ASR permitting and
other regulatory programs — specifically
Washington’s ground water quality
regulations and antidegradation
policy — poses challenges for full
scale ASR permitting.
2000 Legislation Expressly Authorizes ASR
Prior to the legislation enacted in 2000,
permitting an ASR project in Washington
was possible, under existing statutes
such as RCW 90.44.130, but would have
likely been difficult, requiring significant
interpretation and creativity from both
applicants and Ecology. With the enactment of the 2000 ASR legislation
(ESSHB 2867, 2000 Wash. Laws Ch.
98), ASR is now both authorized and
identified as an important tool for water
management. As Section 1 of the 2000
legislation states:
permitting will be done “subject to the
provisions of” RCW 90.03.250 through
.320, which include some relevant
substantive standards such as the no
impairment of existing rights and no
detriment to public interest tests. The
statute also contains the list of issues set
out in footnote 1. But the statute does
not set the applicable standard for the
enumerated issues — in other words,
it does not indicate whether the standard
is least practicable impact or zero
impact, and whether mitigation is
required where practicable or in all
circumstances. Instead, the legislation
passes to Ecology the responsibility to
establish these substantive standards.
2002 Amendments Streamline ASR Permitting
“The legislature recognizes the
importance of sound water management. In an effort to promote new
and innovative methods of water
storage, the legislature authorizes
the Department of Ecology to issue
reservoir permits that enable an
entity to artificially store and recover
water in any underground geological formation, which qualifies as a
reservoir under RCW 90.03.370”
(codified at RCW 90.44.460).
In addition to expressly authorizing
ASR, the 2000 legislation did several key
things. First, it characterized ASR as a
type of reservoir project, thereby establishing the permitting path as the same
as for surface water storage projects.
Second, it enumerated eight issues
against which underground geological
formations proposed for ASR projects
must be assessed to identify adverse
1
impacts and mitigation. Third, it placed
the onus of analyzing proposed ASR
projects and aquifers on the applicants,
with review by Ecology. Fourth, it directed
Ecology to issue “standards for review
and standards for mitigation of adverse
impacts” associated with ASR.
Interestingly absent from the statute
are substantive standards specific to ASR
projects. The statute indicates that
In 2002, amendments were enacted that
help streamline ASR permitting. EHB
2993, 2002 Wash. Laws, Ch. 329,
Section 10. The two key features of the
amendments relate to priority processing
and the need for secondary permits.
While Ecology has made some recent
progress in reducing the backlog of water
right applications, the backlog still poses
a significant administrative hurdle to
many projects. The 2002 amendments
gave ASR projects a helping hand by
identifying several types of ASR projects
for which Ecology must provide expedited
or priority processing. These include projects that do not require a new water right
for the water to be stored - i.e., projects
for which the applicant already has a
water right - and applications involving
changes to existing storage facilities.
RCW 90.03.370.370(1)(b)(i) through
(iv). The effect of this amendment is
that, in Washington’s new “two-line”
water rights permitting system, applications for these types of ASR projects get
placed in the shorter line for water rights
changes, rather than the much longer
line for new water rights.
The second key amendment in 2002
relates to “secondary permits” and when
they are required. The reservoir permitting statute generally calls for issuance of
two separate permits for each reservoir.
Continued on Page 4
Page 4
Environmental and Land Use Department Update
Working with Aquifer Storage
and Recovery Regulations in Washington (cont’d from page 3)
The first for the reservoir itself (reservoir
permit), and the second for withdrawals
from the reservoir and subsequent
beneficial use (secondary permit). This
two part permit system reflects the irrigation company model common when the
water code was adopted, wherein a
private developer or association would
build a storage system and individuals
would then contract for the use of the
stored water. Under this model, the reservoir permit would typically be senior to
the secondary permit - sometimes by
years or even decades.
“...the Rule establishes a
rigorous process for approval
of ASR projects that may make
it impractical for any but the
largest and most sophisticated
applicants to pursue ASR.”
The 2002 amendments did away with
the requirement for a secondary permit
for projects where the applicant already
has water rights for the water to be stored
and where those rights authorize the
proposed end use for the stored water.
RCW 90.03.370(1)(c). Effectively, the
amendment recognizes that someone with
an existing right to divert and use water
should not be required to get a new right
to use that same water after storage. In
practical terms, this amendment likely
makes it much easier to permit an ASR
project in areas where groundwater is
closed to further appropriation and recognizes that key aspects of the underlying
water right — such as its purpose of use
and priority date — run with the water
and are not lost after storage.
Implicit in these two key amendments
is the concept that storage is a beneficial
use inherent in all water rights. Both
amendments recognize that ASR proponents can and often will come to the
table with existing rights to divert and
use water. However, rather than requiring
such applicants to first obtain a change
of purpose of use to allow storage, the
amendments instead provide expedited
processing of reservoir permits and do not
require secondary permits.
2003 ASR Regulations Good, Bad and Indifferent
Ecology developed the ASR Rule with
input from a Technical Advisory Group
(TAG), and provided drafts to interested
parties for review. Ecology should be
commended for its collaborative approach
to developing the Rule. Evaluating ASR
projects will undoubtedly involve complex
technical issues, and the early input from
the TAG reflected in the final Rule should
improve the permitting process.
As discussed below, the Rule establishes a rigorous process for approval of
ASR projects that may make it impractical for any but the largest and most
sophisticated applicants to pursue ASR.
On substantive issues, the Rule provides
clarity on several potentially unresolved
issues. However, it also fails to resolve
other potential impediments to ASR, and
creates some new concerns along the way.
The Permitting Process in a Nutshell
The basic procedural aspects of ASR permitting under the Rule are not surprising.
Applicants submit detailed applications
to Ecology regional offices. If applications
are complete, Ecology seeks input from
other state agencies and tribes on projects where injection or withdrawal may
impact surface waters. Ecology seeks
public comment. Ecology considers the
comments of all reviewers, including
the public. Ecology issues permits with
appropriate conditions. After completion
of the project, Ecology issues “proper
documentation,” i.e., certificates.
On closer review, however, the Rule
contemplates intensive and ongoing project review and presumably adjustment by
Ecology, even after permitting is complete.
• First, the Rule indicates that Ecology
may require a “detailed feasibility
study” if an application does not
adequately describe the “general set
tings and conditions” for the proposed
ASR project. WAC 173-157-100(1).
• Second, the Rule requires all projects
to include a “pilot phase” that will be
used to validate models, monitor
performance, and adjust monitoring,
operation and mitigation plans. WAC
173-157-100(2). While not spelled out
in the Rule, the pilot phase Ecology
contemplates would presumably
typically occur after initial permitting
has occurred.
• Third, the Rule requires at least annual
monitoring, perhaps for the life of the
project, so Ecology can verify assumptions during both the pilot and operational phases. WAC 173-157-170.
The major emphasis of the ASR regulations is on the contents of applications.
Required contents of an application
include:
• conceptual model of the hydrogeologic
system (prepared by licensed
hydrogeologist)
• operation plan including pilot and
operational phases (prepared by
licensed engineer or geologist)
• description of legal framework
• environmental assessment
• mitigation plan (prepared or approved
by “appropriately experienced”
licensed engineer)
• monitoring plan
WAC 173-157-110. This focus on applications is apparently in response to the
legislation’s directive that ASR permitting
be based on Ecology’s review of “applicantinitiated studies.” RCW 90.03.370(2)(b).
The result, however, is a rule that is
over-prescriptive as to the contents of
applications and potentially underprescriptive as to the standards Ecology
should apply in evaluating applications.
Key Benefits of 2003 Regulations
Several features of the final ASR Rule
resolve outstanding issues and clarify
permitting expectations. First among
these is the Rule’s clear determination
that the priority date for stored water
is the priority date of the water that is
placed in storage, not the priority date of
the application. WAC 173-157-200(7).
While this issue may seem somewhat
academic given the no impairment test,
it could have significant effect in areas
closed to further withdrawals or where
groundwater withdrawals are otherwise
restricted. Because the water being withdrawn is water the applicant stored —
as opposed to groundwater generally —
it is entirely reasonable to retain the
original priority date.
The second clarification relates to
treatment of water stored in an ASR project. Early drafts of the Rule suggested
that treatment — including treatment to
drinking water quality standards —
Page 5
would be required for all ASR projects.
The final Rule simply requires a description of any treatment that will be provided and of the project’s compliance with
the state’s ground water quality standards
(WAC 173-200), including the antidegradation policy. WAC 173-157-130(6).
Shortcomings of 2003 Regulations
and “To be determined”
While resolving some key outstanding
issues, the Rule has several shortcomings that could, depending on implementation, make permitting more challenging.
The Rule may, therefore, require amendment after Ecology and project proponents experience working with ASR and
the new ASR Rule. Briefly stated, some
of the issues that may arise under the
final Rule are:
• No recognition of environmental benefit or
balancing. The rule ignores the possibility that ASR projects can provide
significant environmental benefit by
reducing demand on surface water at
critical times of year and replenishing
depleted aquifers. Nor does the Rule
appear to contemplate balancing this
environmental benefit against potential
impacts associated with ASR projects.
Instead, the Rule presumes that all
environmental changes are adverse and
require mitigation, regardless of avoided adverse impacts associated with
alternate actions.
• Scattered substantive standards. The
Rule does not include a consolidated
section containing the substantive
standards Ecology will use to evaluate
applications for ASR projects. Instead,
the substantive standards are scattered
throughout the Rule, imported from
other statutory and regulatory schemes,
and implied in the Rule’s description
of the required contents of an application. As a result, applicants may have
a hard time knowing what target they
have to hit for project approval, and
Ecology may likewise have a hard time
determining whether a project should
be permitted and establishing appropriate conditions.
• Mandatory pilot phase. The final Rule
appears to require all projects to
include a pilot phase, after which a
project could presumably be further
conditioned or even denied. Given the
substantial investment that can be
required to conduct ASR — even on
a pilot phase basis — this requirement
may effectively preclude smaller projects from getting off the drawing board.
• Confusing exercise of underlying water right
with implementing ASR. Given the scarcity
of new water rights, most ASR proponents will have to bring to their
projects valid water rights that they
propose to store. In such situations,
the Rule appears to indicate that,
through issuance of a reservoir permit,
Ecology might seek to condition an
applicant’s exercise of their otherwise
valid water right. Where a project proponent has a valid water right, their
exercise of that right should not be
subject to new regulation simply
because they choose to store the water
for later use.
• No clear resolution of tension between ASR
and ground water quality standards. ASR
is often associated with municipal
systems in which stored water is
treated to drinking water standards.
Chlorination is the most widespread
means of treatment. In the chlorination
process, disinfection byproducts are
formed in concentrations that meet
tandards for human consumption, but
can exceed Washington’s ground water
quality criteria. WAC Ch. 173-200.
Ecology can grant temporary variances
in cases of overriding public interest,
but these are currently limited to a
maximum of five years, after which
they must be renewed.
“While resolving some key
outstanding issues, the Rule
has several shortcomings that
could, depending on
implementation, make
permitting more challenging.”
WAC 173-200-050(3)(b)(vi). The ASR
Rule begins to address this issue by
stating that Ecology “shall give strong
consideration to the overriding public
interest in its evaluation of compliance
with ground water quality protection
standards” which will help with obtaining temporary variances. WAC 173157-200(2). However, relying on a
variance that must be renewed every
five years creates significant uncertainty for infrastructure investment in ASR
faciliies, bonding surety, and water
supply planning, all of which typically
operate with horizons of 20 years or
more. Fully resolving the potential
inconsistencies between the groundwater quality regulations and the
practicalities of ASR will be challenging, and may require amendment of
the groundwater regulations.
Summary and Conclusions
Over the last three years, Washington
has come a long way toward developing
the statutory and regulatory framework
for ASR. However, there continue to be
a number of issues that may present
challenges for actual permitting and
operation of ASR projects. How applicants and Ecology handle these issues
in the next few years will make the
difference between having a “new and
innovative tool” available for managing
Washington’s scarce water resources and
having an interesting but unused statute
and regulation on the books.
1 The issues are:
(i) Aquifer vulnerability and hydraulic continuity;
(ii) Potential impairment of existing water rights;
(iii) Geotechnical impacts and aquifer boundaries
and characteristics;
(iv) Chemical compatibility of surface waters and
ground waters;
(v) Recharge and recovery treatment requirements;
(vi) System operation;
(vii) Water rights and ownership of water stored for
recovery; and
(viii) Environmental impacts.
RCW 90.03.370(2)(a)(i) through (viii). Some of
these factors are rather unclear. Others obviously
refer to aspects of an ASR project other than the
geological formation. Nevertheless, the factors and
their interpretation will likely come into play in
appeals of ASR permit decisions.
Environmental and Land Use Department
Seattle
mattheww@prestongates.com
Page 6
Environmental and Land Use Department Update
U.S. District Court for Oregon Tells EPA to Rewrite Oregon’s Water Quality
Standards and Voids NOAA Fisheries Earlier ESA Approvals (cont’d from page 1)
degree temperature for bull trout spawning, and a dissolved oxygen criteria of 6.0
milligrams per liter of water. The court
found that the EPA’s approval of the temperature standards was arbitrary because
Oregon’s standards failed to designate the
specific areas and times where and when
the criteria would apply. The court
ordered the EPA to rescind its approval of
the criteria and to issue revised criteria
that complied with the CWA, complete
with designated uses for those criteria.
NWEA also challenged the EPA’s
approval of Oregon’s inter-gravel dissolved
oxygen standard. NWEA contended that
the EPA approved Oregon’s 6.0 milligram
per liter standard based on the state’s
unenforceable promise to apply a higher
standard of 8.0 milligrams per liter when
endangered fish species were present.
Also, Oregon again failed the “time and
place” test for its dissolved oxygen standard. The court ordered the EPA to
rescind its approval of this standard, and
to issue a revised standard that would
meet the dissolved oxygen needs of
salmonids.
Narrative Criteria
The court found the EPA’s approval of
Oregon’s narrative water quality criteria
rational and upheld the agency’s approval
of Oregon’s surface water temperature
management plan, which allows sitespecific plans to override numeric water
temperature criteria. The discharger must
take all feasible steps to meet the criteria, and the Director of Oregon’s DEQ
must determine that the exemption will
not adversely impact designated uses.
The court found this plan consistent with
EPA regulations. The court also upheld
Oregon’s 1 degree cumulative increase
and its 0.25 degree increase over
numeric temperature criteria, finding
both programs had mechanisms to protect beneficial uses.
Alternate Mixing Zones
The court struck down the EPA’s approval
of Oregon’s alternate mixing zone provision purely on a technicality. This provision allows for a larger area of the waterway to exceed numeric water quality criteria than under Oregon’s standard mixing
zone rule. The court found that Oregon
had never properly submitted its program
to the EPA for approval; therefore, the
standard is not an applicable water quality standard under the CWA. As a result,
Oregon’s existing mixing zone rule applies
until the state properly submits its plan.
NMFS’s Biological Opinion
In another facet of the case that adds an
interesting twist on some of the CWA specific findings above, the court also struck
down the Biological Opinion (BO) issued
by NMFS on the EPA’s approvals of the
new or revised Oregon standards. The
BO had given the EPA the ESA “seal of
approval” for Oregon’s revised water
quality standards - it concluded that
Oregon’s standards would not jeopardize
ESA listed species.
However, the court held that NMFS
acted arbitrarily in drawing this conclusion because NMFS relied on conservation commitments by Oregon that were
speculative and unenforceable, and
because NMFS’s own scientists had
expressed contrary views about the
impacts of these standards on listed
salmonids. The court ordered NMFS to
withdraw its BO and reinitiate consultation with the EPA under the ESA.
ESA Duty to Conserve Threatened Species
The court denied plaintiffs’ claim that the
EPA must create a conservation plan for
ESA-listed bull trout and salmonid
species. The court held that the ESA
does not require species-specific programs, and that the EPA’s water-related
conservation programs were sufficient.
ESA Duty Not to Jeopardize Threatened Species
However, the court did find that the EPA
had breached the ESA because it failed
to ensure that its actions did not jeopardize threatened species, notwithstanding
NMFS’s approval of its action. In approving Oregon’s water quality standards, the
court found that the EPA had improperly
relied on NMFS’s BO and ignored evidence that the criteria were harmful. The
EPA was ordered to either issue more
stringent standards to satisfy the ESA or
determine through a new consultation
supported by the available evidence that
the existing standards do not jeopardize
listed species.
Conclusion
This is a highly complex decision with
several interweaving components. The full
implications of this decision are not clear
at this time and will vary depending on
the agencies’ response to it and on project-specific circumstances.
For further information about the water quality aspects of the Oregon decision and its
implications, contact Adam Gravley at
adamg@prestongates.com, Eric Laschever at
ericl@prestongates.com or Catherine Drews at
catherined@prestongates.com. For further
information about the endangered species
aspects of the decision and its implications,
contact Will Stelle at wills@prestongates.com,
Matt Wells at mattheww@prestongates.com,
or Sally Brick at sallyb@prestongates.com.
Environmental and Land Use Department
Seattle
catherined@prestongates.com
sallyb@prestongates.com
Page 7
A Closer Look at the Pollution Control Hearings PCHB (cont’d from page 2)
difficult because of aircraft safety concerns about new wildlife attractants;
however, Ecology’s goal was to have the
Port replace all impacted wetland functions in-basin, with the exception of the
wildlife attractant functions. In addition
to these in-basin mitigation measures,
the Port proposed to construct wetland
mitigation off-site on a 65-acre parcel
in the City of Auburn. This mitigation
site would provide forested, shrub,
emergent, and open water wetland habitats and functions to a site where these
functions are currently absent or
degraded. The Auburn site is in the
same Water Resource Inventory Area as
the Airport (WRIA 9). Table 1 (on page
2) summarizes the wetland mitigation
for the Project.
The PCHB also noted that the Port’s
proposed wetland mitigation plan would
remove pollutant sources (e.g. lawns,
golf courses, farmland, streets, driveways, septic systems, livestock grazing
and home sites) of pollutants to wetlands, and to the Miller, Des Moines,
and Walker Creeks by removing land
uses, which contribute excess nitrogen
and other pollutants.
PCHB’s ruling
Appellants contested Ecology’s decision
regarding the proposed wetland fill on
several grounds, including the method
used to assess wetland functions, the
approach to mitigation credit for
restoration and the credits provided for
buffer enhancement, preserving existing
wetlands and the surface of Lora Lake.
The PCHB upheld Ecology on a
number of important issues. With regard
to the assessment method, the PCHB
rejected Appellants’ arguments that the
Port was required to use a peerreviewed published methodology for its
functional assessment. The PCHB also
rejected Appellants’ argument that the
assessment relied too heavily on best
professional judgment.
The PCHB also affirmed the Port’s
use of an assessment methodology
other than Ecology’s Washington
Functional Assessment Method (WFAM).
The PCHB reached this decision in part
because approximately 77% of the wetlands were sloped wetlands to which
the WFAM did not apply.
Finally, the PCHB upheld the 2:1
restoration credit for the Vacca Farm
wetlands. The PCHB rejected the
Appellants’ argument that restoration
credit could not be given because the
restoration site was already a jurisdictional wetland under the Department
of Ecology’s guidelines. The PCHB
reasoned that “[t]here is not a hard line
distinguishing restoration from enhancement. Depending on the circumstances,
a former wetland may be so degraded
that efforts to correct past practices
may qualify as restoration.” The PCHB
noted that this distinction is one for
best professional judgment and that the
Appellants had not shown the judgment
used was biologically flawed.
The PCHB, however, ruled against
Ecology on a number of grounds. First,
the PCHB held that no credit should be
given for enhancing wetland buffers.
The PCHB reasoned that no net loss is
measured in both acreage and function,
so in order to achieve no net loss in
acreage, projects must, at minimum,
restore or create an equal area of wetland. Enhancement activities and
upland preservation should not be used
in exchange for the baseline acres and
are not a substitute for replacement of
actual wetland losses.
Second, the PCHB ruled that no
credit should be given for preserving
existing wetlands. The PCHB concluded
that the area lies within the jurisdiction
of both the Growth Management Act
and the Forest Practices Act and that
both of these laws have mechanisms to
protect valuable wetlands.
Finally, the PCHB ruled that the
surface area of Lora Lake should not
receive credit because the Port was not
enhancing this area.
Based on these determinations, the
PCHB subtracted the 3.06 acres for the
surface of Lora Lake, the 10.99 acres
of credit for enhancing 54.93 acres of
buffer, and the 23.55 acres of preserved wetlands and concluded that the
remaining 31.22 acres of mitigation did
not meet the 2:1 ratio needed to mitigate the 21.34 acres of wetland
impacts. The PCHB also concluded
that there were opportunities for inbasin mitigation. In identifying acreage
to meet the 2:1 mitigation ratio, the
PCHB encouraged the Port to evaluate
the potential opportunities in the headwaters to Walker Creek.
Taken together, the PCHB’s ruling
recognizes that Ecology and applicants
must be able to exercise professional
judgment in developing appropriate
mitigation, and that flexibility is necessary under appropriate circumstances
for using off-site mitigation. The ruling,
however, limits Ecology’s ability to give
credit to actions that preserve existing
wetlands or enhance ecosystem functionality by enhancing buffers, rather
than enhancing wetlands.
Environmental and Land Use Department
Seattle
ericl@prestongates.com
925 Fourth Avenue, Suite 2900
Seattle, WA 98104-1158
925 Fourth Avenue
Suite 2900
Seattle, WA 98104-1158
Tel: (206) 623-7580
Fax: (206) 623-7022
www.prestongates.com
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