The EPA Board of Assistance Appeals was made up of three members who would hear the evidence and make the final determination. An evidentiary hearing was held in Kansas City, Missouri, on July 24, 25, and 26, 1981. Each side was able to present its own witnesses and exhibits to support its point of view as well as to cross-examine the other's witnesses. Simply, it was a trial, to allow for the presentation of all of the facts.

The witnesses for Wichita included Wynkoop, Darrell Brewer, the city's superintendent of sewer maintenance, John Metzler of the Kansas Department of Health and Environment, and various engineers and residents of the area to speak on the environmental impacts of both the Dry Creek and Bluff Street alternatives. The EPA witnesses included the EPA employees involved in the project, especially related to the EIS and its conclusions.

At the completion of the hearing, the Board of Appeal members took the material from both sides. In addition, each party had to prepare a brief upon receiving transcription of the hearing, which contained the essential arguments of the case. Each party sent its brief to the EPA board. The board then presented copies of the opposition's brief to each side, allowing for response. Wichita received the EPA's brief on November 2, and had until November 23 to respond.

Wichita's brief of appellant, submitted by Dekker and Assistant City Attorney Joe Allen Lang, dealt with the entire history of Dry Creek, concluding essentially that the decision to make the EIS was wrong in light of the negative declaration, the fact that no significant change in the facilities plan had occurred, and that no new public controversy existed which had not previously been considered. The results of the EIS were also attacked with the city arguing that Dry Creek was the preferred route and mistakes had been made in the EPA's final recommendation.

"The evidence shows that the negative declaration was adequate and proper," the brief summarized. "The EIS figures and costs have been shown to be incorrect and unreliable and were successfully challenged. The city's figures and costs have been neither successfully challenged nor shown to be unreasonable. The city's witnesses are state and local officials who work day to day reviewing such projects and are familiar with the area, or are people who are cognizant of the day to day construction in Wichita. The EPA witnesses tend to be academically oriented, without the day to day practical experiences in the area or in construction, or are without engineering training," it stated. (City Attorney Files).

Based on these facts, it concluded, "The board, in reviewing the evidence, can find that the decisions of the regional administrator violated federal regulations, were based on erroneous interpretations of facts and law, and were unreasonable under the facts. The board can take an independent view of the evidence and reach its own decision as to the preferred alternative. The city requests the board to reinstate the original grant award under the grant agreement, based upon the negative declaration. If the board allows the EIS process, the city requests it amend the EIS to allow construction under the city's proposed alternative." (City Attorneys Files).

The EPA's brief of agency counsel, of course, disagreed with Wichita's conclusions. It based its case on four major contentions, "I) National Environmental Protection Act (NEPA) cases are not within the jurisdiction of the EPA Board of Assistance Appeals and therefore, this case should not be reviewed by the board; II) if there is a review, the proper standard of review is restrictive and limits the scope of the board's review to consideration of whether the decision was arbitrary, capricious or an abuse of discretion; III) the regional administrator was within her authority and in compliance with NEPA mandates in rescinding the negative declaration and requiring preparation of an EIS; IV) the regional administrator's decision was reasonable under the law and facts." The regional office of EPA, after presenting its case, asked the board to either refuse to consider the case or to uphold the regional administrator's decision. (City Manager's Files).

After receiving both briefs and hearing all testimony, the board rendered its decision on April 16, 1982, and, by a 3 to 0 vote, supported Wichita's position. The ruling of the board stated that the regional administrator had the right and duty to consider environmental concerns in making offers of federal grants, but there was no new or significant information that came up after the grant was first offered to justify a change in decision. Therefore, Camin had no basis to order a new location for the sewer. Once the grant had been awarded, there was no justification in law or fact to withdraw it." Because of this finding, the ruling called her decision "arbitrary and capricious in the context of EPA regulations and the existence of a valid award." The board also, of course, affirmed Wichita's right to appeal based on EPA regulations, denying the regional office's claim, and, after making the judgment about Camin's determination that Wichita's initial grant be changed, concluded: "The appeal of the city of Wichita is sustained. The effect of this decision is that the regional administrator's final decision is nullified and the project may proceed in accordance with the original facilities plan." Donnell Nanthes, of the board, prepared the decision, with the concurrence of Thomas A. Darnel, and Chairperson Barbara Sidler. (Water Files).

Once Wichita received word of the decision, it could begin again to implement the project. Dekker informed Denton in an April 28, 1982, memo, saying, "In effect, we are now in the position we were just before March 15, 1978, when we were ordered to delay construction bids. The previous finding that the construction of the sewer would have 'no significant environmental impact' stands." The city would get its 75 percent grant and could construct the sewer in Dry Creek. (City Manager's Files).

In response to a letter from Wynkoop on May 6, 1982, asking about the availability of the grant money, LaVene Brenden of the Kansas Department of Health and Environment (KDHE) informed the city on May 18 that EPA funds had been set aside for the project. The EPA confirmed that $550,650 in federal grant funds were available for Wichita in a letter to the KDHE on June 11, 1982. The state followed by informing Wynkoop by letter on June 18 that a reserve would be kept to cover cost increases resulting from the delay.

With the city winning the appeal and funds available, the commission could again act. The matter came up at the June 22 meeting, when Wynkoop recommended that a contract with PEC be approved to update the plans for the Dry Creek interceptor sewer. In a memo to the commissioners on June 14, Wynkoop explained that since the original survey was conducted in 1976, six years earlier, conditions had changed, requiring re-examination of the plans.

The commission did not vote on the contract, however. People interested in the project had asked to be given more time to gain additional information. A motion by Commissioner Margalee Wright to postpone it for two weeks passed 4 to 1, with Brown voting no. The matter was considered again on July 6. Wynkoop explained the history of the case and again recommended that the engineering contract be signed and that the city manager be instructed to proceed with the Dry Creek interceptor sewer project bid letting as soon as possible.