ML20092P777

Forwards Environ Hearing Board of PA Decision Setting Aside Util Permits to Build Point Pleasant Diversion & Bucks County Resolution Finding No Need for Diversion.Related Correspondence

ML20092P777
Person / Time
Site:	Limerick
Issue date:	07/05/1984
From:	Sugarman R DEL-AWARE UNLIMITED, INC., SUGARMAN & ASSOCIATES
To:	Brenner L, Cole R, Morris P Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8407090363
Download: ML20092P777 (160)

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g13 g;& V' '@DW SUGARM AN, DENWORTH & HELLEGERS ATTO R N E Y S AT L AW ROBERT J. SUGARM AN tetM rLoom. CENTER PLA2A gyggg g3g 20 N L AN E

E. NM JOANNE R. DENWORTH lot NORTH BROAD STREET JOHN F. HELLEGERS PHILADELPHIA. PENNSYLVANIA 19107

-uoanvs,44so'j ROSIN T. LOCKE MIS) 758 9733 i, ROSERT RAYMONO ELUOTT. P. C.*

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' Bee? Agnelf f CD Im Pa.

July 5, 1984 U.S. Nuclear Regulatory Commission Atomic Energy Licensing Board Washington, DC 20555 Attn:

Judge Lawrence Brenner Judge Richard F. Cole Judge Peter A Morris Re:

Application of Philadelphia Electric Company, Docket No. 50-352, 50-353-OL

Dear Judges:

On behalf of Del-AWARE Unlimited, intervenor in the within proceedings, I bring to the Board's attention the following documents:

1.

Decision of the Environmental Hearing Board of Pennsylvania setting aside the permits of PECo and NWRA to build the Point Pleasant diversion, pending certain modifications.

One of the modifications requires a 40% reduction in the velocity of the discharge from the diversion into the East Branch of the Perkiomen Creek, and the other requires the issuance of a Clean Water Act discharge permit (NPDES) prior to the utilization of the diversion.

The latter, the Board notes, will require substantial water treatment of the proposed diversion.

2.

Resolution of the Commissioners of Bucks County, passed June 20, 1984, finding no need for the Point Pleasant diversion, and directing the Neshaminy Water Resources Authority to prepare a substitute plan for public water supply, not including the Point Pleasant diversion.

The first of these documents further corroborates Del-AWARE's contention, rejected by the Board, that there will be adverse water quality impacts on the East Branch of the Perkiomen, including erosion, as a result of the diversion.

It is tendered as obviously constituting a new basis for the conten-tion, not previously available, and also as constituting justified late file contention material.

Based on this document, 8407090363 840705 PDR ACOCK 05000352 Q

PDR 3Sd3

2 July 5, 1984 therefore, Del-AWARE requests that the Appeal Board set aside the Licensing Board's determination of inadequate basis, and either i

require that Board to admit the contention, or admit it as a new contention.

The other document, the Commissioners Resolution, establishes that the termination of Point Pleasant is not speculative, but definitive.

While PECo is seeking judicial relief, it has no contractual rights against the County, which has used its legislative power as evidenced by the attached Resolution.

It should be further brought to the Board's attention that on June 22, 1984, the Pennsylvania Public Utility Commission unanimously voted to defer indefinitely any consideration of PECo's request to approve construction of the Bradshaw Reservoir and pumphouse, facilities necessary to the operation of the Point Pleasant diversion.

A copy of the PUC decision is enclosed.

The consequence of these matters is to give rise to a contention that PECo cannot operate Point Pleasant in accordance with its amended application, which doos not include any water treatment, and which assumes a velocity of 3.02 feet per second into the East Branch Perkiomen.

(Compared to the 2.0 f ps allowed by the Environmental Hearing Board).

Obviously, the basis for this contention having only just now arisen, it is timely, and for the reasons previously stated by Del-AWARE in its efforts to have similar contentions admitted, should be and must be considered by the Commission, and will not be considered unless presented by Del-AWARE.

Sincerely, r-w Robert J. Sugarman r42.rjs/sp cc: Troy B. Conner, Jr., Esq.

Ann Hodgdon, Esq.

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g COMMONWEALTI-t OF PENNSYLVANIA PENNSYLVANIA PUBUC UTIUTY COMMISSON P.O. BOX 32GS, HARRSOURG, Pa.17120 JUL 0 21984 l

June 26, 1984 i

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.I A-00103956 ALL PARTIES OF RECORD

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4 Application of Philadelphia Electric Company for a finding of necessity for the situation of a pumphouse to contain pumping g()v1/

and accessory equipment on a site located j' l' l u i

at the intersection of Bradshaw and Moyer Roads, in Plumstead Township, Bucks County IM To Whom It May C.1cern Please be advised that at Public Meeting hold on June 22, 1984 the Commission postponed a ruling on the above-referenced matter for an unspecified period.

The Commission has taken notice of an Adjudi-cation issued on Juno 18, 1984 by the Pennsylvania Environ-mental Hearing Board at Docket Numbers E.H.B. 82-177-H and E.H.B. 82-219-H which remands certain mattors to the Depart-ment of Environmental Resources and has granted the parties 30 days within which to file comments.

Please filo any comments within 30 days of the date of this lettor.

Sincerely,

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, eenorded by

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, with the vote as folicus, /.gP the followirg ammolution me adoptad

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6883 ens, the &cks Cbunty Omdselenses have baan inforand ard believe I that Ecke Omty does ret need the Point Pleasant Water Diversion Project ard that in significant adverse consepaences shuuld be suffered by ary party frtse a f tasmination of tht goojects and

'e lesseM,6tmtgesnary County has other alternativos as revealmi by various Istnailes urdertahan by it ord otherop ard 4

4083E28, there are teter resources available in the Schuylkill niver

,. Basin die are adotantially riore than adequate to take care of PetD's nands 4

'without ary significant adverse effect on otlw interest and wherene the digeettien testiseny of PauD witnameos has baan that PstD has deferred takiny Iaction samhitg alternettves until the resolution of the Point Planeant litige.

tion but tJet PetD be11svos even sent that it has adepants time to procame requeste for en altsumstive meter engly shraald that becesne nameseerys ard lespes, Muneyamary county has a omtract of quantioned ve1144ty ard Incks Onety has and een offar alterretives to ptetrysnery Qiuntys ard I

tesseM, PuCD has a onntract of questioned validity ard heis Otunty hee offered to provide easistates to PetD to obtain alternata wetar onties.

j N38,19e3EPCpt, the Qaanty directs the Nashedny Water mamanarces l Authority to study and adunit to the Omanty a plan to redefire the eage of the Authority's water engply propres so as tot to Arclisle the Point Planeant Pteg=

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>.t.tlen ar., t,e Os d.ei.r, Asc the preger officers are authreised to esecute all ducisente

reueneary to carry this monolution into etfact.

l I hereby cartify this to i.e a true 8trut correct etgy of the ammolution I

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pneemt by the mache Qaaney Osmie=

aloners their repdar emoting on Asr 6 "M

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CNvlRCf.8ACNT Al. HC AthNG Uo ARD 221 NOMTH SECOND ST ME ET THIRO P LOOM HAMRSSSURG, PENNSYLVANIA 17101 m:~a.r.ta:n.va:c.~ ~ =~

Juno 18, 1984 g e n ElV ED Iouise S. Timpson, Esquiro jg '20 W Dept. of Environmental Resources Suito 1200 - 1314 Chestnut Stroet

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• Philadelphia, PA<19107 Ibbert J. Sugaman, Esquiro Suganun, Dcrrerth t. !!cliegers 16th Floor Center Plaza 101 North Broad Street Philadolphia, PA 19107 RE: DI2rNINtB U:ILIJ11TED, Itc., et al.

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C0fIC30\\LT!! O? PCi:iSYINNTIA, DEPNCCTP OF CNIPOIETIAL PISOlmCES and !!ES!!NtItrl IATER RESOU!CES ALTalOrri and PilIIADELPilLT ELDCmIC

, CCttDNil DID DOCICP itT2 82-177-11 and 82-219-11 Dea Counsel:-

belosed is an adjudication in the above captioned matter.

Sincerely, ENVIRONMENTAL llEARING BOARD Y'

$k'$

M. DIANE SMITl!

Secretary to the licard cc: Bureau of Litigation 508 Executive House Apartments 101 South Second Street Harrisburg, l'ennsylvenh 17120 licrnhol J. Itichnm, Trep11ro D. Donald Janiccen, Enquiro

1rjeno J. Uradic/, Cupiro Ikirnard Cinntn,Irnfuiro

'!I Troy D. Conner,,Jr.,1:uquiro Jarvin M. Hail 1, r,tujuiro w

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COCKXMEALTH OF PEIUSYLVANIA JUN 201984 BEEoRE THE i

nunmarmL HEARnn BOARD

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DEte ANARE UNLIMITED, D1C., et al, E.H.B. DOCKE!f NOS. 82-177-H 82-219-H V.

Dam Safety and Encroachnents Act, COMMONWEALTH OE' PEUNSYLVANIA, 32 P.S. SS693.1 et seq.

DEPAIME7f OF HuIR0tEENIAL RESOURCES Clean Streams Law, 35 P.S.

and NESHAMINY HATER RESOURCES 55691.1 et seq.

AITfHORITY and PHILADELPHIA ELECfRIC NPDES Permits COMPANY ADJUDICATION By the Board, June 18, 1984 This adjudication was drafted by Dennis Jay Harnish, Esquire, former l

Chairman of the Board, who heard this matter. The adjudication has been reviewed j

and aporoved with scxne modifications by Edward Gerjuoy, Esquire, one of the two remaining mnNn s of the Board. The other runber, Anthony J. Mazullo, Jr. has recused himself at the request of the appellants. Drior to preparation of this adjudication, all the parties have agreed that - under the ciretrastances -

approval by Edward Gerjuoy alone satisfies the requirements of 25 Pa. Code

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S21.86 concerning final decisions.

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I.

PROCEDURAL STATDDTf This adjudication concerns various permit applications filed with the Pennsylvania Department of Enviscanianatal Resources (DER or Deparbnent) by the Philadelphia Electric Canpany (PICO) and Neshaminy Water Resources Authority (NWRA) (collectively " Applicants") for the Point Pleasant diversion project, by which IERA proposes to provide water supplies for Montgomery and Bucks Counties and PDOO proposes to obtain supplemental cooling water for the Limerick Generating I$

1 Station (Limerick), a nuclear power facility located in Pottstown, Pennsylvania.

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Under their agreement inter se NWRA will operate the Point Pleasant Ptznping Station, which will transmit water pumped frm the Delaware River through a jointly utilized transmission main to the Bradshaw Reservoir. Frcm there, NWRA will divert water via the North Branch Neshaminy Creek to the North Branch Waste Treatment Plant at Chalfont. PECO will take water frcm the Bradshaw Reser-voir by pipeline to the East Branch Perkicznen Creek, and on to the Limerick facility via the East Branch and main stem of the Perkicnen.

On April 7, 1981, Dec e ber 18, 1981 and January 7,1982, respectively, PIID filed applications with the Departsnent pursuant to the Dam Safety and Encroachments Act, 32 P.S. SS693.1 et seq., Flood Plain Management Act, 32 P.S.

55679.101. et seq. and The Clean Streams Law, 35 P.S. SS691.1 et scq. for three pemits facilitating the diversion of this water to the Limerick facility (PECO 1

Exhibits 8, 9 and 10). Accordingly, on Septanber 2,1982, the Department issued PIEO Permit Ib. ENC 09-51, permitting construction and maintenance of a water supply pipeline under the bed and across the channel of various streams in

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Plumstead and Bedminster Townships, Bucks County (PECO Exhibit 4); Permit Ib.

ENC 09-77, permitting the construction and maintenance of an cutfall structure, 7

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enerff dissicator and channel stabilization where diverted water would enter the East Branch Perkicman Crcek (PirC Exhibit 3); and Fermit No. DAM 09-181, per-mitting construction of the Bradshaw Reservoir (PIID Exhibit 5).

On February 8,1982, NW3A filed an application with the Department under the same statutes for a permit to construct and maintain a water intake structure in the Delaware River, an intake conduit crossing the Delaware Canal, a water main crossing Hickory Creek and an energy dissipator and outlet channel in the North Branch Neshaminy Creek. On Septenber 2,1982, the Depart 2nent is-sued NWRA Permit No. EtC 09-81 (NWRA Exhibit 11), authorizing these construction and maintenance activities.

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f Each of the above permits has been appealed by at least one third party.

In addition, two DER actions connected with-but distinct frcm--these permit-approvals have been appealed, namely:

(1) the issuance of a letter dated June 22, 1982, informing NWRA that no NPDES permit would be required for the release of water by NWRA to the North Branch Neshaminy Creek; and (2) DER's issuance of a Water Quality Certification to NWRA, by letter dated Septa ber 2, 1982, pursuant i

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to the requirements of Section 401 of the Federal Clean Water Act, 33 U.S.C. S1341.

In due course, all these appeals have been consolidated under the two docket numbers in the above captions.

II.

FINDINGS OF FACI' The following Findings of Fact have been adopted with substantial additions, deletions and modifications frcm.he gc.yosed findings of fact subnitted i

by DER, Friends of Branch Creek ("FBC"), NWRA and PE00. Del-Aware has not sub-mitted any proposed findings.

A.

General Background 4

i 1.

The proposed Point Pleasant project will divert water frcm the Delaware River at Point Pleasant, Pennsylvania to provide public water supplies I

for Bucks and Montgmery Counties and supplemental cooling water for the Limerick Nuclear Generating Station in Pottstown, Pennsylvania. The Irexinun pumpage on behalf of NWRA for water supply needs through the year 2010 would be 49 mgd. A maxt== of 46 mgd would be emped on behalf of PE00 for Limerick Units 1 and 2 l

(DER Exhibit 2 at 4-5; NWRA Exhibit 20 at 4-6; NRC Partial Initial Decision (March 8,1983) (NBC PID) at 51; PKD Exhibit 3 at 5; PE0 Exhibit 11 at 3).

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Designated as part of PECO Exhibit 7, the Partial Initial Decision of the NBC's presiding atcmic Safety and Licensing Board in the Limerick prWing, issued on March 8,1983, was provided to the Board during the hearing (Tr. 3406-07).

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2.

The Point Pleasant pumping station will be developed and oper-ated by NWRA on behalf of both project sponsors. IMRA is entitled to withdraw water fran the Delaware River pursuant to Pannsylvania Water Allocation Permit No. NA-0978601. This permit was issued in 1978 after an extensive evaluation, sumarized in the Department's " Report on the Application of Neshaminy Water Resources Authority for Water Allocation fran Pine Run, Ibrth Branch Neshaminy Creeh, and Delaware River" (November 1,1978) (DER Exhibit 2 at 4,17; Board Exhibit 4 at II-6).

3.

PEO also holds a valid water allocation fran the Delaware River awarded by the Delaware River Basin Ccmnission (DRBC), and could implement a Point Pleasant project on its own solely as an industrial diversion facility even if the NWRA portion of the Point Pleasant project were not constructed (DER Exhibit 2 at 28).

4.

The Point Plaaent pumping station will utilize puups with a total

• capacity of 95 mgd and an intake located approximately 245 feet out into the channel of the Delaware River (DER Exhibit 2 at 5; IEC PID at 52).

5, The intake structure will consist of two parallel rows of cylin-drical screen sections about 70 feet in length, located two feet fran the bottan of the river and extending four feet upwards at that point. Even at a compar-1 atively low flow of 3,000 cfs, the top of the intake would be approximately four i'

feet under the water surface (DER Exhibit 2 at 82-83; NRC PID at 10, 53-55; i

NWRA Exhibit 14 at 1).

-6.

The intake will utilize an assenbly of Johnstcn wedgewire screens, which constitute the " state-of-the-art" teduclogy as canpared to vertical ' traveling l

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screens utilized in shoreline intakes at other facilities (DER Exhibit 2 at 5, l

84; NRC PID at 10, 54; NWRA Exhibit 41 at 1; NWRA Exhibit 42; Kaufmann, Tr. 597).

7.

Three intake lines below the channel bottan will convey water l

fran the intake to the ptmping station (DER Exhibit 2 at 5).

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Cooling Water for Limerick 8.

Water pumped frcm the Point Pleasant pumping station will be trans-mitted approximately 2.4 miles through a ccmbined transmission main to the Bradshaw Reservoir, which will have an operating capacity of approximately 70 million gallons (DER Exhibit 2 at 6; Board Exhibit 4, Part III at 2-13; PECO Exhibit 10).

9.

Water for NWRh will be delivered by gravity flow frcm the Bradshaw Reservoir to the North Branch Neshaminy Creek to Lake Galena, and ultimately to the North Branch Waste Treatment Plant at Chalfont (DER Exhibit 2 at 4).

10. DRBC Docket No. D-65-76 CP(8) represents DRBC's approval of the NWRA Neshaminy Watershed Plan and Water Supply Project adopted by DRBC on February 18, 1981, as unanimously approved by all DRBC mmbers (NWRA Exhibit 20; Weston, Tr. 3426). The Corps of Engineers also approved the project. See DcI-Arrra Unlimited, Inc. v. Balduin, Docket No. 82-5115 (Bench Opinion issued Decarber 15, 1982, as modified by Bench Opinion Correction Sheet issued December 23, 1982); (3d Circuit, unpublished order, July 5,1983 at Docket No. 83-1010);

(rehearing denied, 3d Circuit, August 2,1983).

11. A transmission main appronmately 6.7 miles long will connect the Bradshaw Reservoir with the East Branch Perkicmen Creek, by which cooling water for Limerick will be conveyed to the East Branch. Another outfall structure is to be located on the East Branch approximately 200 feet upstream frcm Elephant Road, discharging cooling water to the East Branch. This water will then follow the East Branch for approximately 22 miles, and will ultimately be withdrawn by an intake located along the main sten of the Perkicmen near Graterford (DER Exhibit 2 at 6-7; Board Exhibit 4, Part III at 2-18 to 2-25; PECO Exhibit 2 at II-1). _ _ _.

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12. The East Branch of the Perkimen (East Branch) is a tributary of Perkimen Creek, originating in central Bucks County and flowing generally northwest through the boroughs of Perkasie and Sellersville. In its headwaters, for sme six miles above Perkasie and Sellersville, the East Branch is a small stream flowing through a rural, largely open area of farmland.

It has one principal tributary in this reach, that being 2 rris Run.

13. In this six-mile headwaters section, the stream is largely unspoiled, j

flowing according to natural conditions. It is a " flashy" stream, subject to abrupt and high rates of run-off during rainfall, especially thunderstorms. Its i

flows are high in winter and low in sumer, when it is rMW to a series of pools connected by riffles.

(Tr. 1346)..

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14. The headwaters and the stream in general have good water quality, though they are smewhat turbid, principally frm erosion of farmland in the stream basin. This erosion is not a permanent or necessary feature of the basin, but due to correctable land managenent practices.

15. The banks of the stream are also subject to erosion. This occurs during ccmnon spring run-off rates and volumes of flow, and does not require major 4

flood flows of the magnitude of the annual flood or mean annual flood.

(Tr. 701, 2846, 3215).

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16. At and downstream fran Sellersville and Perkasie, the character of the stream changes. The stream is d=nM at Perkasie. A public sewage treatment plant discharges wastewater to the East Branch at Sellersville. Channel size and flows are substantially increased by tributaries joining the stream.

17. Maximum consunptive cooling water use at Idmerick will be 21.3 mgd for one unit and 42 mgd for two units (DER Exhibit 2 at 8; PDCO Exhibit 1 at 2).

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18. On March 29, 1973, DRBC issued Docket No. D-69-210 CP which pre-liminarily aporoved the PIEO portion of the Point Pleasant project and established, q

4 inter alia, the limits on withdrawals frm the Schuylkill River (Weston, Tr.

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3450; PBCO Exhibit 1). Final approval for the PDCO portion of the project was t

granted by DRBC on February 18, 1981 in Docket No. D-79-52 CP (PECO Exhibit 11).

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19. Withdrawals fr a the Schuylkill River pursuant to the DRBC alloca-tion are limited to the following conditions:

(1) flows (excluding augmentation fr m DRBC-sponsored projects) measured at the Pottstown gauge shall exceed 530 cfs for one unit in operation; and (2) no withdrawals may be made when water tem-peratures in the Schuylkill below Limerick are above 15'C, except when the flow F

at the Pottstown gauge exceeds 1791 cfs (DER Exhibit 2 at 8; PECO Exhibit 1 at 5).

20. As a result of the tenperature and flow restrictions imposed by the DRBC dockets, it is estimated that Limerick will be unable to withdraw i

l cooling water frm the Schuylkill 40 percent of the time, or 146 days a year (Runkle, Tr. 1152-53).

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21. The historic record of flows of the Schuylkill River detonstrates, in light of conditions imposed upon PECO by DRBC, that if only one unit were f

operating at Limerick, Schuylkill flows w uld be available only 7 to 12 addit-f t

i ional days of the year, i.e., roughly 3 percent more of the time than would be the case with two units. Therefore, whether Limerick ultimately has one or tm units in operation makes little difference in the availability of Schuylkill water (Runkle, Tr.1154; DER Exhibit 2 at 29).

22. -Thus, even if construction and operation of Limerick Unit 2 were l

delayed or ultimately cancelled, cooling water requirements for efficient oper-ation of Unit 1 would still necessitate cmpletion of the Point Pleasant project i

in its present dimensions or the availability of a like amount of water frm j

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another source.

(DER Exhibit 2 at 29; Boyer, Tr. 3899-C).

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23. In the ccarte of its evaluation, the Department assumed that there may be only one un Lt at Limerick, but nonetheless conclMM that the Point Pleasant project was necessary regardless of whether there were one or two units (Weston, Tr. 2366-67).

24. In approving the diversion of Delaware River water at Point Pleasant for Limerick, DRBC provided that natural flows of the Perkimen Creek, exclusive of any water pumped frcm the Delaware River, may be used only when the flow at the Graterford gauge exceeds 180 cfs for one unit in operation and 210 cfs for two units in operation (DER Exhibit 2 at 8; PECO Exhibit 1 at 6). Without regard to withdrawals at Graterford for Limerick, DRBC has further required that PECO maintain, through augmentation, a minimum flow of 27 cfs in the East Branch Perkicnen Creek at Bucks Road (downstream frcan Elephant Road) during the period in which Limerick is utilizing water pumped frun the Bradshaw Raservoir. A minimum flow of 10 cfs must be maintained the renainder of the year (DER Exhibit 2 at 9; PECO Exhibit 1 at 6; PECO Exhibit 3 at 5; PECO Exhibit 11 at 6; Boyer, Tr. 3904).

25. Under the terms of DRBC's allocation for Limerick, diversions frcm the Delaware River are prohibited when withdrawals would reduce the flow at the Trenton gauge below 3,000 cfs. At such times, water may be diverted at Point Pleasant only if ccupensated in an equal anount by release frun an up-stream storage facility (DER Exhibit 2 at 9; PECO Exhibit 1 at 6; PECO Exhibit 11 at 5; Board Exhibit 4 at IV-6; NBC PID at 72).

C.

Aquatic Life Impacts in the Delaware River

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Entrapment and impingement

26. The most significant aquatic life impacts attributable to oper-ation of a water intake are generally entrainment (passage of small planktonic or nektonic organisms such as fish eggs and larvae through the intake screens) -

and impingment (capture of fish and other aquatic organisms on the screens)

(DER Exhibit 2 at 30; Kaufmann, Tr. 596).

27. The passive Johnson wedgewire screens utilized in the Point Pleasant intake represent the " state-of-the-art" technology in water intake structures and substantially reduce any possibility of entrainment or impinge-ment of aquatic life at Point Plment as ccupared to conventional screening (DER Exhibit 2 at 30-31, 84; Applicant's NRC Testimony at 3-5, ff. NBC Tr. 949; Boyer, NFC Tr. 1350;2 Kaufmann, Tr. 683).

28. In terms of protection of the fish population, it is better to have the intake screen in its proposed location-245 feet out in the Delaware channel rather than along the bank as originally planned (Kaufmann, Tr. 683).

29. Shad avoid shadow 3 so that even though they could swim below the intake structure they will probably veer towards either the Pennsylvania or New Jersey shores on sunny days. If they veer towards New Jersey the sport fish 11ng on the Pennsylvania side of the Delaware would be diminished. However, in texms of any potential impact on sport fishing at Point Pleasant, there is no reason to believe that shad will veer toward either the New Jersey or Penn-sylvania shore as a result of the intake structure (Kaufmann, Tr. 585, NRC PID at 38-39, 89). There is no evidence that anglers will not have access to the site once the intake is operational (Kaufmann, Tr. 586-87).

30. The slots in the intake screens to be used at Point Pleasant are only 2 nm. wide (DER Exhibit 2 at 31; Applicant's NRC Testimony at 4; NWBA Exhibit 41 at 10. This is smaller than the size of a water-hardened sturgeon or shad egg (Kaufmann, Tr. 607-08).

2.

The NRC testinony was also a part of PECO Exhibit 7.

See footnote 1, supra. l

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31. The maxinun intake velocity through the screens is.5 fps, with an average velocity of.35 fps. The average intake velocity will decrease frm about.071 fps at a distance of one foot from the screen's surface to.011 fps i

at five feet from the screen and to.0037 fps 10 feet frm the screen (DER Er.hibit 2 at 84; NRC PID at 59).

1 32.

" Bypass velocity" is the speed of the river water passing directly in front of and parallel to the long axis of the intake. Although sme exper-ience with vertical traveling screens shows that a 2:1 ratio of bypass velocity to screen intake velocity is optimal for mininization of impingement and en-trainment, the passive wedegwire screen to be utilized for the Point Pleasant intake provides considerable protection against impingenent and entrainment at a 1:1 bypass, or even in the absence of any bypass velocity (NBC PID at 60-61).

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33. Nonetheless, with a flow of 3,000 cfs the river velocity at the location and de.pth of the proposed intake has been. measured at or in excess of i

r the 1.0 fps required to provide a '2:1 bypass to intake velocity ratio, even at the maximum intal:e velocity (DER Exhibit 2 at 31, 83; NRC PID at 62; Kaufmann, Tr. 598-99).

34. Even at a low flow of 2,500 cfs, the minimum bypass velocity will be approximately.8 fps (NBC PID at 70).

35. The zone of influence of the intake velocity would only be approxi-l mately two inches (Kaufmann, NRC Tr.1882).

36. The Department evaluated the potential impacts of the water intake i

structure on the shortnose sturgeon, an endangered species found in sme reaches of the Delaware River (DER Exhibit 2 at 31).

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37. Based upon a July 19, 1982 letter fr a William G. Gordon, Assis-tant Administrator for Fisheries, National Marine Fisheries Service to Lt. Col.

Roger L. Baldwin, District Engineer, U.S. Army Corps of Engineers, and an attached

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4 Biological Opinion rendered pursuant to Section 7 of the Endangered Species l

Act, as amended,16 U.S.C. S1536, the Department concluded that:

(1) the intake construction would cause no significant adverse effects on shortnose sturgdoh present in the area; (2) the design of the water intake structure and projected schedule of withdrawals were adequate to ensure "that juvenile and adult shortnose sturgeon as well as sturgeon eggs and larvae present in the area would not be significantly affected; (3) construction and opention of the punping station would not likely jeopardize the continued existence of shortnose sturgeon in 1

the Delaware River (DER Exhibit 2 at 31).

38. No shu.L cse sturgeon have been found at or above Point Pleasant, i

and there is no evidence that they spawn in or inhabit the Point Pleasant area (NWRA Exhibit 36 at 2-13; NRC PID at 73; Kaufmann, Tr. 587-88, 594). There is nothing peml4= to the Point Pleasant area that makes it a particularly de-sirable spawning environment for shortnose sturgeon. There are many other i

sites along the' Delaware, upstream and downstream of Point Pla m nt, that are i

suitable habitats as well (Kaufmann, Tr. 593, 697).

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39. In any event, given the physical characteristics of sturgeon eggs I

and the benthic orientation and swinning ability of its larvae, entrainment j

and impingenent of shortnose sturgeon would be highly unlikely (tBC PID at 73-78; Kaufmann, Tr. 697-98).

40. While most American shad spawn in the Delaware River upstream of Point Pleasant and pass through the Point Pleasant area during their migra-tion, there would be no impingenent or entrainment of juvenile or adult shad even if they spawned at Point Pleasant, because of their size and stage of developnent (IEC PID at 78-80; NWRA Exhibit 36 at 2-17). The yearly peak spawning i

l period for American shad will have passed prior to the (sunner) periods of the t

largest. withdrawals at Point Pleasant (161RA Exhibit 41 at 7).

4 l

C

+

41. Nothing in the Point Pleasant vicinity makes it unique as a shad spawning area for shad as conpared to the rest of the Delaware River (IMPA Exhibit 41 at 8; Kaufnunn, Tr. 691).

42. The operation of intakes utilizing less than " state-of-tie-art" technology at three other power plants on the Delaware River in the traditional shad spawning area upstream fran Point Pleasant has resulted.in very little impingement or entrainment of American shad. Overall, those plants have not had a negative effect on the American. shad population (Kaufmann, Tr. 695).

43. A single shad fenale lays an estimated 100,000 to 500,000 eggs, and less than 1 percent of these eggs w:rald hatch even if unaffected by the intake (NRC PID at 83). The size and danersal (sinking) nature of shad eggs preclude entrainment or impinganent of the vast majority of healthy eggs which would otherwise produce larvae (Kaufmann, Tr. 692-93).

44. Shad eggs, even if present at Point Pleasant as a result of spawning in the upstream pool ere shad could ' conceivably spawn, will be no nure particularly concentrated in the area of the intake than other places in that area of the river (Kaufinann, Tr. 610-11).

45. The main factors inhibiting the further growth and recovery of the American shad in the Delaware River are the dissolved oxygen block in the Philadelphia area (upper Estuary) and the locking out of shad fran the Schuylkill River, Ichigh River and other tributaries by dams and other physical barriers (Kaufmann, Tr. 561, 743).

b.

Dissolved oxygen and salinity

46. Historically, the dissolved oxygen block has been quite variable in terms of length. Normally, it extends fran the Philadelphia area (30 miles dmnstream of Point Pleasant) to Chester (Kaufmann, Tr. 565-66).

l t t l

l

=

0

47. The extent of the dissolved oxygen block is controlled by flow levels and water tmperature, the latter of which is affected by industrial intakes and discharges in the Delaware Estuary (Kaufmann, Tr. 568-69).

48. For shad, the dissolved oxygen block acts as a barrier to passage upstrean at a level of four parts dissolved oxygen per million parts water or less (Kaufmann, Tr. 566-67).

49. DRBC has concluded that the major causes of dissolved oxygen sags in the Delaware River are pollution loads fran sewage treatment plant dis-charge and decay of organic debris (NWRA Exhibit 25 at 26-29; Kaufmann, Tr.

710).

50. Other factors that affect the dissolved oxygen level in the Delaware Estuary are tidal flows, t mperature, precipitation, wind, climate and the level cf photosynthesis (Kaufmann, Tr. 712-13).

51. Present data strongly suggest that dissolved oxygen levels are far more sensitive to minor variations in temperature than to relatively small diversions such as that at Point Pleasant (NWRA Exhibit 25 at 34; Rehn, Tr.

1467).

52. Even under extreme conditions of low river flow, e.g., 2,780 cfs, the maximum diversion of 95 ngd at Point Pleasant will result in a reduction in i

dissolved oxygen levels in Zone 2 (fran Trenton to Philadelphia) of aoproxi-mately only 0.08 ng/1. Reductions of this magnitude would produce virtually imperceptible changes in Zone 2 dissolved oxygen levels (Rehm, Tr. 1451-52, 1803).

Further downriver, the effect is only about one-half (Board Exhibit 4 at IV-31).

53. The Department found that during normal periods, upper and lower basin reservoirs will be operated by DRBC to sustain the current mininun flow objective at Trenton of no less than 3,000 cfs (DER Exhibit 2 at 34). With-drawals fran the Delaware for Limerick are prohibited below this level unless l -

fully cmpensated by releases frm utility-owned upstream storage (see Finding of Fact 25, supra).

54. A diversion of the maximum 95 mgd that will be taken by the Point Pleasant project represents less than 5 percent of the Delaware River flow when the flow at the Trenton gauge is 3,000 cfs (DER Exhibit 2 at 32, 84; Board Exhibit 4 at IV-15; IBC PID at 55; Rehm, Tr.1848; Kaufmann, Tr. 711-12).

55. Water withdrawn at Point Pleasant for public supply by IERA would be substantially a non-consumptive use, with substantial return of water via sewage treatmant plant discharges to the Delaware River via the Neshaminy, Perkimen, Pennypack and Wissahickon Creeks, and the Schuylkill River (NWRA Ex hibit 5 at 6, 23; DER Exhibit 2 at 34, 36; Rehm, Tr. 1747). The anticipated consmptive use of only 10 percent will result in a total loss to the Delaware niver Basin of less than 5 mgd (about one-fifth of one cercent of a 3,000 cfs flow), which for practical purposes is not significant (DER Exhibit 2 at 34-34; Board Exhibit 4 at IV-17).

56. While IMRA may withdraw water at Point Pleasant when the flow at the Trenton gauge is below 3,000 cfs, DRBC has exoressly conditioned such withdrawal upon the prohibition of nonessential water uses, as @ecified in DRBC Pasolution No. 81-5 (to the extent applicable) and in "any other emergency resolu-tions or ordere adcpted hereafter.

(IEFA Exhibit 20 at 16.)

57. At a low flow of 2,500 cfs at Trenton, the maximum diversion of 48.8 mgd for the year 2010 by NWRA for public water supplies would result in a reduction of M1=are River flows by less than 3 percent. Even during drought conditions, it is anticipated that basin reservoirs would be operated to main-l tain a flow at Trenton of at least 2,500 cfs (DER Exhibit 2 at 34; Del-Aware Exhibit 28 at 3).

58. Both the DRBC docket decision and the Ccmoonwealth's permits i

i regarding the allocation of Delaware River water at Point Pleasant indicate i

Is i

t 1

that the allocations for public water supplies are subject to modification, I

restriction or suspension during any mergency declared by DRB.

(NWRA Exhibit 7 at 11; Finding of Fact 56, aupra). This provision has been impleented in DRBC's Ievel B planning by identifying those times which are to be autmatically considered drought warning or drought emergency periods when cutbacks will be effected (Weston, Tr. 2681).

59. Even assuming that the entire 95 mgd diverted at Point Pleasant

~

were lost to the Estuary under a worst case analysis (i.e., lower than 2,000 cfs flow at Trenton), the assimilative wasteload capacity of the Delaware River would not be significantly affected or require a change in water quality waste-load allocations (Rehn, Tr. 1438-41).

60. Examining both the Ievel B Study results and the " Good Faith" Re umerdations (Draft) (June 1982), the Department concluded that the interim salinity objective of 180 mg/l chloride at River Mile 98 can be met with existing flow managment capability at Trenton, even during a record drought like that of the 1960's. The Departrent also concitxied that salinity intrusion into the Delaware Estuary would not be exacerbated by withdrawals at Point Pleasant, since salinity control is dependent upon the cmbined flows entering the Estuary frcn the Delaware and Schuylkill Rivers and their tributaries. Salt water frcm the Delaware Bay is repelled by all flows which enter above River Mile 90, whethei fr a the Delaware River mainst m or the Schuylkill River. Since nearly 90 per-cent of the NWRA withdrawal will be returned above River Mile 90, all but 5 mgd of the NWRA total allocation will aid in the repulsion of salt water (DER Exhibit 2 at 36; Board Exhibit 4 at IV-47; NWRA Exhibit 25 at 36; Runkle, Tr.

1096; Rehm, Tr. 1690-93, 1747).

61. Withdrawals at Point Pleasant for Limerick when flows exceed 3,000 cfs at Trenton present no significant concern for salinity control. As _.

h for flows below 3,000 cfs at Trenton, withdrawals for Limerick cannot be made unless fully campensated by releases frm an upstream storage facility, thereby resulting in an equivalent flow at the Trenton gauge as if no withdrawal had been made at Point Pleasant (DER Exhibit 2 at 36-37; Board Exhibit 4 at IV-47 to 48; see Finding of Fact 25, supra).

l

62. While Del-Aware's hydraulic witness attenpted to establish that the " Good Faith" criteria could be artificially manipulated by managenent of upstream reservoirs to the detriment of salinity objectives in the Estuary (Phillippe, Tr. 3302-04), it was not established that any such manipulation of upstream reservoir releases had ever occurred or that DRBC, as the river l

manager, would tolerate any unfair or deceptive practice.

63. Because salt water intrusion will not be exacerbated by with-drawals at Point Pleasant, the oyster industry in the Delaware Bay could not be affected by the proposed project (Board Exhibit 4 at IV-32).

D.

Aquatic Impacts in the East Branch Perkicraen Creek

64. The Departnent evaluated potential impacts upon the aquatic ecology of tiu East Branch Perkicmen Creek resulting frm the discharge of pumpages frm the Bradshaw Reservoir.

In conduc. ting this analysis, the Dcpartment reviewed DRBC's Envirorgnental Impact Statement (1973) and its Final Environmental Assessment (August 1980), PECO's Environmental Report (July 1979) and Corps of Engineers reports (DER Exhibit 2 at 41-42; Ford, Tr. 2035).

65. The decision about these potential impacts was raade by the Chief of the Planning Section in the Department's Bureau cf Water Quality Management, who testified that he relied on the expertise and knowledge of the Department's Regional Water Pollution Biologist, Donald Knorr.

(Tr. 1356; Environmental Assessment, p. 40) l

66. 'Ihe Chief of the Planning Section in fact had only a handful of informal discussions with Mr. Knorr, and Mr. Knorr had no direct input into the Environmental Assessment. Mr. Knorr did not make, and Mr. Knorr (and the Department) did not have the data adequate to make or support the conclusion in the Environmental Assessment (p. 40), that dischaljes of water to the East Branch would increase habitat size, decrease seasonal mortality and in general have a beneficial effect on aquatic biota.

(Tr. 1353, 1356, 1358)

67. One of the present limitations on aquatic life in the East Branch is the lack or water during the summer (Knorr, Tr.1346). Currently, the stream experiences very lw sunnettime flows (Knorr, Tr.1341; Runkle, Tr.1501). The 0 -10 fica (defined at Finding of Fact 176, infra) at the mouth of the East 7

Branch is.5 cfs (Kauxmann, Tr. 614).

68. At the present time, aquatic life and vegetation are restricted to standing ponds during low flow periods. As the ponds dry up, the aquatic life and vegetation are lost (Rehm, Tr. 1501-02).

69. Existing pool areas (i.e., standing water, now present in the East Branch v' der low or no-flow conditions) will be eliminated by the addition of the diverted flow, and existing riffle areas will be enlarged (IP_rmon, Tr.

4043-E).

'70.

The mininun flow requirenents established as a condition cf the DRBC permits will ensure that fish and other aquatic life are provided with a l

flowing stream throughout the year (Harmon, Tr. 5043-C to D).

71. Essentially the same situation exists in the North Branch Neshaminy Creek, as to which IMRA's expert witness on aquatic life drew similar i

i conclusions (Brundage, Tr. 3863-64).

72. Del-Aware's ichthyological witness, Mr. Kaufmann, agreed that minimtm flow augmentation and increased flows resulting frtm the diversion in i

l.

i i

a a

4 l

the East Branch would result in an increased aquatic habitat and an improvanent co the fishery (Kaufmann, Tr. 621). His opinion as to adverse impacts of in-j i

creased <=dimantation was premised on the belief that substantial erosion would l

occur as a result of these flows (Kaufmann, Tr. 641).

73. Turbidity tends to limit the diversity of aquatic life because primary productivity by aquatic plants is r@M due to the lack of sunlight t

penetration into the water. '1his results in less photosynthesis and less life at the base of the food chain. Additionally, deposition of soil materials frm turbid water into the rocky substrate of a riffle type bottczn will limit the existing habitat and life forms present (Knorr, Tr. 1339-40).

74. Predicting impact upon aquatic life in the East Branch or North Branch from increased turbidity would require knowledge as to the level of.

4 turbidity, the length of time that the stream was exposed to these levels of turbidity, the type of life that initially existed in the, stream and the I

norphological characteristics of the stream (Knorr, Tr.1350). Stream depth l

and velocity through the riffle area and pools would also be factors, since i

turbidity will re.atrict aquatic life to a certain level of sunlight p=ww.ation (Knorr, Tr.1351).

75. If the Nrhidity that might be caused by the project is of short duration, it will not be lethal to fish (IIarmon, Tr. 404:FC, 4069-71; Behn, Tr.

18520. If high levels of mvhidity last for less than one full growing season, l

a new halance will quickly be established (Harmon, Tr. 4069-70; Rehn, Tr.

1852-53, 1878-79; Ford, Tr.1963). Assuning short-term turbidity, any loss in aquatic life will not be significant and the overall quality of the East Branch aquatic life will improve with time (Harmon, Tr. 4043-C).

76. Based on his familiarity with the East Branch and similar streams, the Department's Water Pollution Biologist concluded that a rocky-bottmed stream i

l,-

t'

[

_ _ ~,___.,.- -,. _.,.. _.. _. _

of riffles and pools, such as the East Branch, would be very adversely affected by soil deposition and high levels of long-lasting turbidity, and that this would severely reduce the varieties of life forms and life habitats in the substrate.

(Tr. 1340).

77. For reasons described in detail belcw, it is anticipated that sig-nificant erosion and resulting turbidity can be eliminated if the velocity of the East Branch of Perkimen Creek is kept below two feet per second; the same state-ment pertains to the North Branch of Neshaminy Creek.

E.

Riparian Impacts in the East Branch Perkimen Creek a.

Existing stream regime and increased flows

78. The East Branch Perkicmen Creek is highly eroded as a result of storm events and poor land managment practices (Steacy, Tr. 3580-E; Kaufmann, Tr. 613, 671-72, 677-78). Many farms along the East Branch use poor land management techniques, such as failing to use contour plowing, planting too close to the stream bank without buffer strips, and grazing cattle near the banks. The resulting run-off creates crosien of stream banks and, ultimately, a large amount of siltation (Kaufmann, Tr. 613, 652-53, 678-80, 740-41). Run-off is also caused by the roadways criss-crossing the East Branch (Kaufmann, Tr.

741-42).

79. High stream velocity is the principle cause of channel configur-ation (Steacy, Tr. 3580-D, 3610; Ford, Tr. 2169; Harmon, Tr. 4033; Dresnack, Tr.

4434-35, 4449). Large floods with velocities as high as 7-10 fps have caused and will continue to cause the erosion occurring in the East Branch (Steacy, Tr. 3580-E, 3795; Board Exhibit 4 at IV-64; Kaufmann, Tr. 619). These very large flows with high velocities, rather than average flows with low velocities, l

create the channel configuration in a stream (Steacy, Tr. 3778-79, 3839; Dresnack, Tr. 4362; Harmon, Tr. 4017-19). -

4 t

80. 'Ihe dminant discharge, the 1.5 year flood (average recurrence interval of 1.5 years) which is assuned to be bank full flow, effectively de-temines the shape of the stream channel (Harmon, Tr. 4029-31, 4034, 4070, i

i 4077-78; Dresnack, Tr. 4354).

81. While the additional ptmpages into the East Branch Perkianen Creek and North Branch Neshaminy Creek may be large in p+ Lion to the median flows at the point of discharge, they are by no means large in <=narison to the flows exhibited during storm events occurring annually or every few years i

(Dresnack, Tr. 4370); they are well within the 1.5 year flood and thus will not be %ted to substanHally alter the channel configuration.

82. Flows substanHally below those associated with 1.5 year floods can cause substantial erosion of stream banks and bottans and can, therefore, result in unacceptable turbidity in the stream. This erosion begins above a i

j critical or threshcid velocity which depends upon the type of soils encountered I -

by the stream and the type and amount c'f materials already being transpcaLed by the water entering the stream,

83. 'Ihe rwlian flow at Elephant Road plus the maximian plunpage yields

,4 i

a flow of 66.4 cfs with a velocity of 3.02 fps as de,21atei by Mr. Steacy. A I

f onewoar flood at that site has a flow c,f 112 cts with a velccity of.3.7 fps, while the mean annual flood has a flow of 320.0 cfs with a velocity of 5.1 fps (DER Ddlibit 2 at p. 42; PE00 Exhibit 2,Section IV at 4, Tables Nos. 2 and 3).

i

84. The possibility of erosive velocities downstream of an outfall would be a consideration for any project under the general criteria'of Chapter 1

105 9 vhapter A of the Department's regulations, which require the Depart 2nent r

l (when reviewingithe envimmeithi inpacts of a project) to review the effects of a project on stream regime (Weston, Tr. 2494). Such consideration would mandate an effort to mitigate any erosive impact to the extent possible, in-4

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i cluding the implmentation of necessary protective measures. If mitigative measures could not reduce the impact to an. insignificant level, the Department i

should consider whether on balance the need for the project outweighed the i

significantly adverse impact re aining after mitigation. The Department has yet to make such a balance since the Department feels that the erosional impacts 4

i will be insignificant.

(Weston, Tr. 2495).

85. According to a bore hole analysis conducted by PECO's agent, the soils in the bank of the East Branch are classifiable as silty loam. According to PIDO's application the soils to be excavated for the Bradshaw Reservoir also are classifiable as silty loam. PIDO's expert witness, Robert Steacy, considered j

the soils of the East Branch bank and bed to be ordinary firm loam, but Mr.

Steacy was not qualified in the science of soils analysis and was testifying frun his visual examinations during a single field visit. Thus, his testimony in this regard must be accorded little weight.

86. Applying the Fortier and Scobey tabulations set forth in the j

" Handbook of Hydraulics" (E. Brater and H. King, 6th ed.) (FEDO Exhibit 12),

i recognized as authoritative by the American Society of Civil Engineers, and assuming the soils of banks of the East Branch to be silty loam, the critical velocity in 2.0 fps for clear water (FECO E45ibit 12 at 7-24; Steacy, Tr. 3580-E, 3746; Dresnack, Tr. 4372).

87. Uater containing greater amounts of collnirlal matter has less i

effect than clear water in removing additional material. Corrspordingly, tur-bid water is less erosive than clear water, at a given velocity. Thus, the range of pezmissible channel velocities for a formed and shaped channel is 2.0 - 2.25 feet per second (fps) for clear water, 2.5 fps for slightly turbid water, and l

3.5 fps for highly turbid water; the lower value of 2.0 - 2.25 fps is most repre-sentative of water turbidity of the discharge into the North Branch and the East

! L

(

Branch. 'Ihis lower value takes into account the settling of sediments in Bradshaw Reservoir. It also takes into account the fact that Delaware River water may be substantially clearer than present sediment-carrying run-off frm farmland e w ially in the East Branch watershed. The permissible channel velocity of 3.5 $s relied on by the Department in permitting the discharge was unreasonable (Tr. 3157-58, 3767, 3774).

88. The range of permissible channel velocities was developed for use in dimensionally regular channels, such as canals. 'Ihe permissible channel i

velocity must be reduced further when channels are natural and flows are turbu-lent, as they are in the East Branch at and below the discharge point (Tr. 3053, 3770, 3231).

89. Aged canals and natural streams resist erosion better than new canals because colloidal material disperses into the interstices of the banks of a stream and gradually coats the sides of the stream bank. It provides a firm matting, or armor plating, which increases resistance to erosion (Steacy, Tr.

3610-11, 3761-G3, 3774; Dresnack, Tr. 4373, 4470). A stream bank n W _ of-a mixture of materials is more resistant to erocicn than a single material (Steacy, Tr. 3611, 3744). Since the Brater and King Table is for aged canals, this effect has already been considered.

90. If erosion should occur as a result of the diversion, the Depart-s ment has mandated that corrective action must be taken. Candition I in Permit 09-77 provides that PECO shall monitor the East Branch on a regular basis down-l stream to the point that its ptsupaiges have no further significant effect. PECO must w1.n:ct any damage caused by the diversion (PECO Exhibit 3 at 5; Ford, Tr.

1962-63, 2054, 2057; Weston, Tr. 2302-05). A similar condition is in NWRA's permit. L l

1

- 91. If the diversion causes bank damage downstream of the outlet, t

PECO can correct it by using riprap, gabion structures, i.e., wire baskets filled with rock, or flood walls (Ford, Tr. 2042, 2055). If property owners refuse to allow PECO (or WRA) onto their land to correct the proble, the Department a

must either waive the particular condition for that property owner or enter and correct the condition itself under the Prevention and Control of Floods Act of 1936 (Weston, Tr. 2304). Condition L does not address ongoing damage to the l

aquatic comunity"of the East Branch or North Branch which might be caused by i

continued ercsion.

1 b.

Avoidance of incraased flooding

~

92. As a condition of its allocation of water for Limerick, DRBC has l

required that during periods of high natural flow in the East Branch Perkicmen 4

Creek, "pmping fran Point Piment shall be kept at a level so as not to aggra-t vate high water levels" (PECO Exhibit 1 at 6; PS:0 Exhibit 11 at p. 5).

J

93. USGS will install and maintain a standard stream gauging station on the East Branch at Bucks Road, slightly downstream of the outfall. The installation of this gauge will ensure that PBCO will have the capacity to noni-tor East Branch flows continuously and accurately. The same information will be transmitted to DRBC, for monitoring to ensure cmpliance with the DRIC docket I

condition requiring that ptopages shall not aggrante high water levels in the East Branch (Steaq, Tr. 3580 {, 3584).

t

94. The paping station at Bradshaw will N fed flow data translated frcm gauge readings at Bucks Road and Graterford, the latter of which is the 1

point in the main sten of the Perkicnen Creek where water will be withdrawn for Limerick (Boyer, Tr. 3903-04). When the flow in the East Branch approaches potential flood levels, an alann will be autmatically activated at the pumping control center, and the peps (if operating) will be stuw d (DER Exhibit 2 at e

'42; Ford, Tr. 2053; Boyer, Tr. 3905-06).

i-l l

_,-.~...---..-_.

t

' 95. Utilizing information frm the gauging station, the Bradshaw pumps (if operating) therefore shall be stopped well in advance of the point at which further papages might cause the flow at Elephant Road (the narrowest cross-section of the East Branch) to reach an equivalent one-year flood condition at 112 cfs (DER Exhibit 2 at p. 42; Board Exhibit 4 at IV-57 to 60; Steacy, Tr.

3580-C to D; PEDO Envirornnental Report,Section IV, Table 3).

96. There would be no problens of limit'ing cooling water flow to Limerick caused by shutting off the Bradshaw ptrps well before the flow at Bucks Road reaches 238 cfs. Asstaning a generalized rain event, stm the flow at Bucks Road (Station 13) is 238 cfs; then it will be 1,470 cfs'at Station i

1 downstream, and even significantly greater at the Graterford intake for Limerick on the main stan of the Perkicznen (Ford, Tr. 2164, 2166). Such heavy flows vastly avM the flow at which PECO may withdraw water at Graterford E DRBC docket conditions (see Finding of Fact 24, supra). Under such conditions, l:

there would be no reason for any ptunping frm. Bradshaw to ranlar= water drawn I.

j-l at Graterford (Bayer, Tr. 3904).

l :.

{'

}

97. Further emmunation has irdicatal that the pap cutoff flow valu at Bucks Road can be rachM to 125 cfs (i.e., less than 112 cfs upstream at Elghant Road) for two units and probably 75 cfs for one unit (Boyer, Tr. 3906).

The Depart 2nent has no objection if P900 sets a lower cutoff value than presently planned for the gauge at Bucks Road (Weston, Tr. 3460-61).

i

98. Final designation of an operating plan for.the cutoff, including i

the actual cutoff figure, will riananel upon the record aev'=Cated frcm the new -

gauge at Bucks Road. '1he data frm these actual measurements will provide the i

most meaningful basis for selecting the appropriate cutoff 'value (Steacy, Tr..

l 3842-43). -

!-i

99. Limerick will operate with only one unit for two or three years at least, and thereafter unless and until the second unit is complete. Pumpages fr m the Bradshaw Reservoir will be only half of the maximum 65 cfs during that time. 'Ihis will provide ample time to obtain accurate data fran the Bucks Eoad gauging station, and will help season the creek to the new flow regime (Steacy, Tr. 3845).

100. Inasmuch as the Department determined that there would be no pumpages during flood flows, it did not find a need to analyze any potential for flood damages downstream through a loss of flood plain storage (Ford, Tr.

2051-52).

1 101. Since pumping will be unnecessary when the natural flows in the Schuylkill River and Perkimen Creeks are adequate to provide cooling water for Limerick and to meet the minimum flow requirenents imposed by DRBC, PECD will not I

be required to pump water frm the Bradshaw Reservoir throughout the entire year.

It is anticipated that pumpages frm the Bradshaw Feservoir will be necessary I

fran roughly mid-April to mid-Novmber under average stream flow conditions, during which titre the estimated average pumpage rate will be 34 cfs (DER E>Albit 2 at 42; PECO Exhibit 2 at Table No.1 ff. 4; Runkle, Tr.1148).

102. Pipeline drainage lag-time will not present a problen in terms of flooding. The pipeline between the Bradshaw Reservoir and East Branch goes over an uphill divide, such that in excess of half the water between the reservoir and the East Branch will renain in the pipe after the pumps.are shut off (Steacy, Tr. 3844). The water on the East Branch side of the divide will run out within l

l 10 minutes after the ptznps are shut off (Steacy, Tr. 3841).

F.

Water Quality Impacts in the East Branch Perkimen Creek l

103. The Depart 2nent's water quality review for the Point Pleasant project was initially conducted with respect to the issuance of a water quality certifica-l,

3 tion under Section 401 of the Federal Water Pollution Control Act (Rehm, Tr.

1394-97). In the spring of 1982, the Department conducted an AMitional review based upon ccmnents received in response to the public notice of an opportunity for ccmnents with reswet to the request for the Section 401 certification (Rehm, Tr. 1395). The water quality certification was issued by letter dated Septanber 2,1982 frcm the Department (Del-Aware Exhibit 39).

104. As part of its ongoing water quality review of the Point Pleasant project, the Department examined the effects of the diversion on water quality in the East Branch Perkicmen Creek using water quality analyses prepared by DRBC, EPA and NWPA's private consultant. 'lhe data it relied upon represent i

stations in the Delaware River near Trenton and in the 'lbhickon below the Nockamixon Dam. The Department also had data frcm various agencies for the East Branch (Rehm, Tr. 1454, 1506-08, 1525, 1615-16, 1807-08, 1810-12).

105. Within the Department, water quality analysis under the permit applicaticn was coordinated by Charles Rehm, Chief of the Planning Section of the Bureau of Water Quality Managenent (Tr.1393).

106. Water quality data fr;r Point Pleasant itself were not availabla.

The Department therefore used water quality data frcm '2renton, Ne<r Jersey, and assumed that the water withdrawn at Point Pkasant was equivalent, though f

probably sanewhat better quality then, the Trenton data indicated. Trenton data l'

were assumed indicative of Point Pleasant water quality because Trenton is dowt-stream; because nMitional effluent is added in the Pcint Pleunt-Trenton reach, it was assumed Trenton water quality could only be worse than Point l

Pleasant quality (Tr. 1536, 1596).

1 1

i l

107. The Department had available and considered S'IORET water quality data for T*rville, New Jersey, two miles downstream frcm Point Pleasant. It chose Trenton, New Jersey, data as "more representative" hv am it included a

_ _ ~

i I

greater number of saroples, assuned to be within the range of values or "within l

the window that the Trenton gauging station was reporting". Lunberville data v

in fact shows significant variation fran, and greater pollution than, Trenton data (Tr. 1608-09, 1618-19).

108. Data fran sampling performed on either side of the Delaware River are indicative of the quality of water that would be withdrawn at Point Pleasant.

While individual discharges may create sans locally higher concentraticns, these would be quickly eliminated by mixing of the waters. In addition, no substantial evidence of any single discharge causing an aberration was shown. Mr. Rehrn tried 1

j to explain the high level of organics below Fielikhnro, New Jersey, as due to an

)

industrial discharge there, but the organics were both industrial and pesticide

[

chenicals and Mr. Rehm's suggestion, which was itself guarded, is not credible 1

("?r. 1586, 1614, 1616, 1738).

I I

109. Water quality data fran samples collected closer to the point i

i of withdrawal are more indicative of the quality of water to be withdrawn. More

}

frequent samplings at a distant paint do not necessarily make those samplings 1608-09, 1818-19).

more accurate or more indicative (Tr.

110. The Departsnent determined that the discharge would have a sig-i l

nificant impact cn the water quality of the section of the East Branch above l'

the Penn Ridge sewago treat 2nent plant (12 kilaneters), where present water. quality f

is good and the discharge would be a substantial portion of flow. The Depart 2ient s!

l detowdned that the discharge would not have a significant inpact on the section of the creek below the sewage treatment plant. The Depart 2nent therefore con-I cluded that there would be no significant impact on the entire East Branch (Tr. 1426-27).

t l

l 111. Water quality data at the outfall on the East Branch were not available. The Department therefore used water quality data at Station 160, i

I - /~

k. x \\l

/

<v;;

,e downstream frm the Penn Ridge sewage treatment plant. 'Jhe Department did not f

1 I

seek to obtain water quality da'ta on the upper reaches, available fra the County

,of Bucks (Tr.1727). Water quality data downstream of the sewage treatment plant do not reflect water quality at points above the treatment plant, including the point of outfall. Measurments may be in error by as nuch as a factor of 20 (Tr. 1734).

112. She Department has developed a stateside water quality standard i:

applicable to the East Branch, of 50 micrograms per liter of lead. The mean of 17 samples taken near Riegelsville, 18 miles upstream fr m Point Pleasant was 311 micrograms per liter for lead. If water discharged to the East Branch would reflect these lead values, it would violate the water quality standard six times over. Even the Trenton date showed, and the Department determined, that the mean value for lead in the Del 3 ware River in the vicinity of Point Pleasant was 51.4 micrograms per liter. The statewide standard under Chapter 93 of the regulations is 50 micrograms per liter (Del-Aware Exhibit 46; Rehm, Tr. 1526).

The value utilized for comparison, taken frcm sampling at Station 160 in the East Branch was 35 micrograms per liter (Del-Aware Exhibit 46; Rehm, Tr. 1530-31).

]

113. Reasonably expectable water quality in the water withdrawn at Point Pleasant, as determined frm hwille SIOREP data, wild violate water quality standards for discharges to the East Branch for r.t least three heavy l

metals and phosphorus. Copper concentrations could be near 9 micrograms per liter, or about twice the applicable standard. Iron concentrations would be 1

near 110 micrograms per liter, or about 115% of the applicable standard.

Zinc concentrations would be near 4700 micrograms per liter, in excess of three times the applicable standard. Phosphorus standards also would be exceeded.

(Del-aware Exhibit 55; Tr.1608-09,1612). Fecal coliform bacteria have been observed in the Delaware near Point Pleasant (DER Exhibit 2, p. 52). :

(

G.

Archeological, Historical and Aesthetic Impacts at Point Pleasant a.

Archeology 114. The Department reviewed the Point Pleasant project and deternuned that it would not cause any adverse impacts upon the historical and archeological resources of the area (DER Exhibit 2 at 62).

115. An archeologically stratified site exists in one small section of the Point Pleasant project site, in the area between the Canal and the Dela-ware River (Landis, Tr. 385). This area canprises approximately a 75 foot square (Landis, Tr. 419). Otherwise, 95 percent of the total area of the Point Pleasant diversion project site is devoid of significant cultural resources (NWRA Exhibit 1 at 6).

116. Stratification is important because it enables one to determine i

the chronology of the area's inhabitants (Landis, Tr. 347-48). However, not all stratified sites are archeologically significant (Landis, Tr. 384).

l 117. No conclusions can be rade as to the significance of this site until its material has been analyzed (Landis, Tr. 408).

118. The Advisory Councilion Historical Preservation, the State Historic Preservation Officer, the Army Corps of Encjineers and NWRA have entered into a Menorandum of Agreement for the conduct of an archeological survey of the Point Pleasant site and preservation of any sicjnificant archeoloigical resources (NWRA Exhibit 18; Ford, Tr. 2193; DER Exhibit 2 at 62).

4 119. Although the Department was not a direct participant in the negotiation of this Menorandum of Agreenent, the Armf Corps of Engineers pro-vided copies of materials pertinent to those discussions to the Department.

In its consideration of appropriate mitigative measures to assure coupatibility of the project with the area and to protect historical and archeological resources, the Department reviewed the draft Mernorandum of Agreenent, which it found l

4

& a h

-i sufficient to preserve the integrity of any finds. The Department therefore conditioned the permit it issued to NWRA upon cmpliance with the Macrandum of Agreement (Weston, Tr. 3434-38; NWRA D(hibit 18; DER Exhibit 2 at 62).

120. Pursuant to the Mmorandum of Agrement, a preliminary archeological investigation of the Point Pleasant project site was conducted by Gilbert Camon-wealth Associates, a professional archeological consulting firm retained 'by NWRA (NWRA Ddubit 18 at 7; Landis, Tr. 340-41).

121. The purpose of this initial survey was to determine whether any archeologically significant area existed on the Point Pleasant project site and, it so, whether it should be excavated for emplete data recovery or preserved in place (NWRA Dchibit 18 at 5-6; Landis, Tr. 415-16).

122. Del-Aware's archeological witness worked four days in Novm ber 1982 as a field worker for Gilbert Cmmonwealth Associates, the archeological consulting firm retained by NWRA for investigation of the Point Pleasant site (Land.ts, Tr. 341-43). He expressed his opinion that the Gilbert Camonwealth investigation was adequate for that purpose (Landis, Tr. 416).

123. The Msorandun of Agreement also provides that, once construction begins, an archeologist cmpetent in the methods and procedures of prehistoric archeology will be stationed onsite to monitor the excavations and any archeo-logical remains which might be encountered during the course of construction (NWRA Exhibit 20 at 15; Landis, Tr. 400, 415, 430). Del-Aware's archeological witness agreed that these measures will properly preserve the historic record (Landis, Tr. 400-01).

124. In a procedure approved by the Pennsylvania State Historical Preservation Officer, the archeologically sensitive area itself will not be -

excavated at this time but will be preserved in place (NWRA Exhibit 18 at 6; t

Iandis, Tr. 402, 415). An access road will pass adjacent to the archeologically l i h

1 i

sensitive site, but no structure will be placed there. Measures have been taken to chain off the site and prevent vehicular access (Landis, Tr. 401-03).

A plastic cover will be.placed over the area and covered with earth (Landis, Tr. 415, 432).

125. The measures approved by the Pennsylvania Historical Museun Ccmnission will exclude large machinery frcra the archeologically sensitive area (NWRA Exhibit 18 at 6; Landis, Tr. 424).

126. Considering the difficulties in obtaining adequate resources to investigate the area, and recognizing the possibility of intrusion by the activ-ities of man, Del-Aware's archeological witness acknowledged that the investigation of the Point Pleasant area, undertaken as a direct result of the Point Pleasant project, is a very worthy acccuplishment (Landis, Tr. 425-27). By ccatrast, the activities of man have substantially destroyed the integrity of other portions of the stratified area in the vicinity of the construction site. Even portions of the potentially stratified area have been previously disturbed (NWRA Exhibit 1 at 4; Landis, Tr. 421).

127. If the Point Pleasant project were not going to be constructed, there would be no controls in place to protect archeologically sensitive areas, which would otherwise be as subject to disturbances and destruction as the adjacent private property has been (Landis, Tr. 428).

b.

Aesthetics 128. A full set of drawings and artistic renderings showing landscaping plans for the Point Pleasant pumping station were subnitted by NWRA; these docu-ments were reviewed by various DER personnel during DER's evaluation of the aesthetic impacts of the project (Ford, Tr. 2135-38). These officials agreed that construction of the project will not harm the Delaware division of the Pennsylvania Canal aesthetically and that the project is ccmpatible with the park 1

l and its functions (Weston, Tr. 2405-14). In so. agreeing, DER officials again relied (in part) on the above Mmorandum of Agrement, which included require-ments intended to minimize the aesthetic impact of the pumping station on Point t

Pleasant (See Finding of Fact 136, infra).

129. The Historic and Museun Camission and the Corps of Engineers also reviewed the premM ptstphouse, and found that it would have no adverse effect on the Point Pleasant historic district. In reaching this decision, the Corps

- of Engineers concluded that the pumphouse will be small, quiet, inconspicuous, built of appw iate materials, and carefully larvkaped so as to blend in with r

its surroundings (NWRA Exhibit 44; Tr. 2077; NWRA Exhibit 23.) On this basis, the Department concluded that the project would have at most a very slight -

I aesthetic impact on the surrounding area (DER Exhibit 2 at 45).

130. The NBC has required that any noise probles caused by the pump-J house must be mitigated (Weston, Tr. 2420; NBC PID at 101).

c.

Historical and physical 131. Not only will the construction of the Point Pleasant intake 4

cause no harm to the Canal (Oberdorfer, Tr.1662; Nuss, Tr. 2020), but construc-tion procedures and future maintenance requirements will ensure that it will be left in better shape after construction is empleted than it is at this thne (Weston, Tr. 2405; NWRA Exhibit 12 at 2; see Del-Aware Edlibits 59 and 60).

~

j The eassent granted NWRA simply involves minor patch-up work (Oberdorfer, Tr.

1670).

i 132. Breaches in the Delaware Canal have occurred dozens and maybe hundreds of times, both mand and naturally as the result of floods (Oberdor-i

)

l fer, Tr. 1670). Through the 60-mile length of the Canal there are at least 127 water, sewer and other utility crossings, along with 135 public and private bridges and culverts providing access and transport (NWRA Exhibit 12 at 2). l:,

r i

133. Prior to the issuance of a construction permit to the MGA, the U.S. Army Corps of Engineers consulted with the Advisory Council on IIistoric Preservation and the State 11istoric Preservation Officer, pursuant to the National IIistoric Preservation Act of 1966,16 U.S.C. SS470(f) and 470h-2(f),

to insure the protection of the historic and archeological resources at Point Pleasant, Bucks County. This consultation resulted in the signing of a "tksto-randum of Agreement" outlining the measures to be taken by the MGA to protect and preserve these resources (MGA Exhibit 18).

134. The "Mcnorandum of Agrement" outlines the measures to be taken to protect the Delaware Canal during construction of the Point Pleasant project:

Any requ.tred blasting is to be controlled through procedures established by the DER; during excavation, a qualified professional archeologist must record cross sections and other information through appropriate photographs and drawings; following construction, the Canal and Canal towpath must be restored to their original appearance in consultation with the State 11istoric Preservation Officer; following construction, the Canal and Canal towpath banks must be reshaped, graded, seeded and landscaped to their preconstruction contour including the placement of an impervious clay liner; and, during construction, machinery dis-turbances in the vicinity of the canal must be kept to a minimum (NWRA Exhibit 18, pp. 3-4).

135. Based upon the requirments hnposed by the Memorandum of Tgree-j ment, the Department, after its own independent review, concitried that the construction of the Point Pleasant Pumping Station would have no adverse per-manent impact on the Delaware Canal (IAtss, Tr. 2020; Del-Aware Exhibits 59 and 60; NWPA Exhibit 12).

136. To protect the Point Pleasant flistoric District, the okstorandum of Agrement required design plans and specifications for the Point Pleasant Pumping Station and boundary fencing to be developed in consultation with the State Historic Preservation Officer, and to be approved prior to construction.

Additionally, a landscaping plan, consistent with the existing natural setting of the area, has to be developed to minimize the visual impact of the pumping station and boundary fence (hMRA Exhibit 18, pp. 4-5).

137. The Department also conditioned permit approval on hWRA land-scaping the Point Pleasant site with flora indigenous to the area (NWRA Exhibit 11, Special Condition K).

H.

Wetlands 138. Only a small area of wetlands contiguous to the Delaware River, approximately 0.308 acres, will be affected by the Point Pleasant project. This area is about one-third of the 0.93 acres of wetlands on the site. These wet-lands are typical of many flooded plain forests in southeastern Pennsylvania (DER Exhibit 2 at 66).

139. Based upon the abundance of wetlands with similar characteristics in southeastern Pennsylvania, the Department determined that the small wetland area involved at Point Pleasant was not an "important wetland" within the meaning of Section 105.17 of its regulations. Nonetheless, efforts have been undertaken to minimize and mitigate unavoidable impacts by the project, so that cnly 0.22 acres of wetlands will be pernunently destroyed by the placement of fill. The reaining 0.08 acres of affected wetlands will be restored to original grade and pre-construction conditions (CER Exhibit 2 at 66-67).

140. Mr. Hershey, as' witness for Friends of Branch Creek ("FBC") and Del-Aware, identified at least 75 acres of wetlands on the East Branch in or along the affected portion of the stream, using guidelines for identification prepared by the Bucks County Planning Ccmnission, as well as other sources (Tr.

2895-2897).

s \\

\\

141. The Bucks County Planning Comtission has independently identified wetland areas on the East Branch, which are indicated as existing extensively along the affected portion of the stream.

(FBC Exhibit 25, with supplunents required by the Examiner at Tr. 4182). However, since the appellants did not carry their burden of proving that the discharge would cause the East Branch to overtop its banks or otherwise inundate any wetlands, there has Ian no danon-strated effect on wetlands.

I.

Alternatives a.

Scope 142. Alternatives to the Point Pleasant project considered by the Department included those previously studied by DRBC and the Army Corps of Engineers in the issuance of their respective permits for the project. Other alternatives, suggested by representatives of Del-Aware and the Applicants, were also studied (Weston, Tr. 2452).

143. Friends of Branch Creek took the position that pumping the water for Limerick further downstream, to a discharge point at Sellersville, would be an alternative to the proposed transport systen involving discharge near Elephant Road (Neill, Tr. 6). The Departant apparently did not consider this alternative but there is no evidence that this alternative was presento:1 to the Department prior to the hearing.

144. The Department considered a great many alternatives to the Point Pleasant project, but did not specifically describe their various conbinations and permutations in the Environmental Assessment. Rather, the Environmental Assessment was designed primarily to represent the Department's understanding of the basic options available (Weston, Tr. 2451, 2472, 2479, 3524-25). Del-Aware did not suggest to the Department at the April 14, 1982 meeting or any other time any particular canbination of alternatives it wished to have considered (Weston, Tr. 2452-53). '

145. The Departnent decided to devote a specific section in the Environmental Assessment to the discussion of alternatives, after Del-Aware broached the topic in the April 14, 1982 meeting (Ford, Tr.1924).

146. The Department previously had performed a very detailed review of alternatives for public water supply syst ms and consumptive use makeup by other water users, as a part of the State Water Plan; this information was included in the Department's consideration (PDOO Ddubit 6 at 3; Weston, Tr. 3457-58). Same of this infonnation was uphted for the specific purpose of ccmpiling the Environmental Assessment (Weston, Tr. 3641). The State Water Plan utilized a matrix approach for evaluating alternatives for public water supply systcms and industrial consumptive uses (Weston, Tr. 3468-69).

147. In addition to reviewing the alternatives outlined in its Environ-mental Assessment, the Depart:nent also examined the alternatives discussed in the DRDC Level B Study (NWRA Exhibit 25) and in the Merrill Creek Draft Environ-mental Impact Statenent. The latter was a report prepared by the Delaware River Basin Electrical Utilities Group, which examined alternative reservoir sites for makeup water for various power plants, including Limerick (Weston, Tr. 3457).

148. The DRDC Level B Sttriy is regarded by the Department as an official recordation of the DRBC's rules and policy regarding Basin management, which have the force and effect of a regulation so far as water management by the Department is concerned. DRBC approval of the project under application is a prerequisite to issuance of a permit by the Depart 2nent (Weston, Tr. 3440-42).

149. After exanining all the options frcm the viewpoint of minimizing environmental impacts and maximizing cost effectiveness considerations under the State Water Plan, the Department determined that (fran a long-term planning l

)

standpoint) a cmbined systs which integrated existing retail public water sup-ply systems with a wholesale public water supply systs, and also solved a major industrial user's (PECO's) water managment requirments, made the most sense (Weston, Tr. 3440, 3494-95).

150. In reviewing the PECO permits under the Dam Safety and Encroach-ments Act, the Depart 2nent considered cmpliance not only with its own regula-tions under Chapter 105, but also with all other laws and regulations adminis-tered by the Department and by the Delaware River Basin Ccmrission (Weston, Tr.

3440-42).

151. Any one of the permits would have been denied if the Department's review of the application showed a violation of Chapter 105 of its regulations (Weston, Tr. 2489-90).

152. After reviewing all the alternatives, the Department found the Point Pleasant project to be the nost reasonable regional solution to meet the needs of Bucks County, Montgmery County and Philadelphia Electric cmpany u

(Weston, Tr. 2604).

b.

Groundwater 153. Conjunctive managment is a term of art used by water resource managers to mean the systmatic joint develognent and use of ground and surface waters. Conjunctiva managment has been the thrust of the policy underlying the State Water plan and the actions of the DRBC in past years. The Point Pleasant project is one of the prototypical conjunctive water managment projects, because it represents a ground and surface water supply systen for the region it serves (Weston, Tr. 2608).

154. Both the Environmental Assessment and the State Water Plan assume that groundwater in Bucks and Montgmery Counties will continue to be used, and further assume that in the more developed areas whose public water supply systons _ _ _ _

A 4.

s now rely on groundwater, conjunctive water use managment will be utilized to obtain additional water fran surface supplies (Weston, Tr. 2453-54).

155. For the service area of the NWRA project, the ambination of water supply alternatives contemplated by the Envirorsnental Assessment and authorized by the pennits on appeal is consistent with a continuing use of groundwater (which most of the retail systems in that area currently rely on almost exclusively) as part of a conjunctive managenent plan'. Under this plan, groundwater will be utilized with supplemental water fran surface sources, in-cluding numerous interconnections with other retail systems such as the Philadelphia Suburban Water Canpany and the City of Philadelphia (Weston, Tr. 2600-01; see NWRA Exhibit 5 at 8,11, 33-34).

156. Further develognent of groundwater as the exclusive source of public water is not viable. This source is already highly stressed and, as a result, all of Montganery County and part of Bucks County is regulated by DRBC as a ter protected area (DER Exhibit 2 at 25; NWRA Exhibit 5 at 4; Runkle, Tr. 1184-85; see also 29 C.F.R. S430). For example, many of the water supply systens in Central Bucks and Montganery Counties relying on groundwater have experienced difficulty in providing adequate water supplies to their custaners in recent years, even those years that were not unusually dry. Moreover, this area is rapidly urbanizing and can expect growing water shortage problems i

(NWRA Exhibit 5 at 8,15).

157. The Neshaminy Water Supply Systen area is located predaninantly within the groundwater protected area designated by DRBC as a critical water supply area (Runkle, Tr. 1184-85).

158. In assessing the groundwater alternative, the Department examined een nonnal recharge rates of the formations underlying central Bucks and Mont-ganery Counties, on the assunption that withdrawals could be allowed up to the,

annual recharge during a non:n1 year (no discount for drought years was included).

It then detennined how large an area would be required for groundwater with-drawals to serve the needs identified for the water supply portion of the Point Piment project; the Department did not look at the future nesis of existing users in the area. '1he Department assuned that the area wherein new wells would be developed would be restricted to its current level of groundwater withdrawal or perhaps less (Weston, Tr. 2530-31, 3444-46, 3663-64).

159. The Department also took into account DRBC's policy of avoiding overdevelopnent of stressed groundwater areas in which a regional water supply systen is available. This policy applies whether or not a paztimlne well is withdrawing or would withdraw in excess of the recharge rate. The purpose of this policy is to ensure that groundwater exists not only to support the public water supply, but also to support streans and other users in the area (Weston, Tr. 3500-01).

160. Even if withdrawal of groundwater does not exceed its replacement in an average recharge year or one in ten-year recharge. period, cones of depression-which are a particularly difficult problen in Triassic formations--will result.

There is a likelihood that nearby danestic wells or wells located along the t.ame fracture traces will experience drawdown problems (Weston, Tr. 3465-66).

161. Based on recharge rates, a grotL%eter systen would have to be spread over a very large region, rendering it impractical. An added disadvan-tage is that a widespread systen of wells would encourage further checkerboard developnent.

(DER Exhibit 2 at 69-71; Weston, Tr. 2422-24, 2463-64, 2535-36, Runkle, Tr. 1078-80).

c.

Conservation 162. Water conservation is not a viable long range alternative to the project because even during severe drought conditions, when people are most sensi-.

tive to shortages and the need to conserve, a savings of only 10-15% in average total public water supply use has been achieved. Also, this rate of savings has proved not to be sustainable over a long (e.g., five-year) period. Conser-vation therefore will not solve the long-range Bucks-Montgmery water supply proble (DER Exhibit 2 at 68; Ford, Tr. 2205, 2265-67).

d.

Lake Nockamixon 163. Lake Nockamixon was considered as an additional water supply source for Limerick (Duncan, Tr. 770). However, Lake Nockamixon was constructed for-and is dedicated to-recreational uses up to the year 2000, and may not be used for other purposes until that time (Runkle, Tr. 1010, 1022; DER Exhibit 2 at 72-73).

164. In any event, the facility would have to be redesigned and modified before it could be used for water supply purposes. Special legislative authority would be needed before water frcm Lake Nockamixon could be sold (DER Exhibit 2 at 73-74). Moreover, the use of Lake Nockamixon for water supply purposes would render it unavailable for emergency use in controlling the salinity front during droughts (NWPA Exhibit 7).

e.

Schuylkill River 165. The question of alternative sources of cooling water for Limerick has been extensively considered by other regulatory agencies (Boyer, Tr. 3899-E).

During the planning stage of this project, PBJO discussed with DRBC and the Department the possible use of water frcm existing or proposed reservoirs on the Schuylkill and Delaware R' vers (Boyer, Tr. 3907-08). DRBC considered the i

use of the Schuylkill River for Limerick in its 1973 Envircx1 mental Impact Statment and 1980 Enviromental Assessment, but concluded that the Schuylkill could not absorb the year-round consumptive withdrawals Limerick will require (Boyer, Tr. 3899-E; Doard Exhibit 4, Part III at 2-29). In fact, the DRBC docket expressly provides that. withdrawals frcn the Schuylkill River itself are not permitted when the flow at Pottstown is less than 530 cfs for one unit at Limerick and 560 cfs for two units, not counting augmentation frcm storage l

i developed and sponsored by the DRBC. (PECO Exhibit 1 at 5; Weston, Tr. 2509).

166. A PECO request for use of an existing reservoir on the Schuylkill River (or of the Schuylkill itself) as PECO's source of cooling water for Limerick would require further regulatory approval by DRBC. In light of DRBC's extensive consideration of alternatives in its 1973 EIS and 1980 Final Environ-mental Assessment, and its decision declining to reconsider its previous docket orders, it is unlikely that DRBC would approve any additional use of Schuylkill water for Idmerick (Boyer, Tr. 3899-D).

167. Assuming arguendo DRBC would be willing to reconsider the Schuylkill alternatives it previously rejected as infeasible, the review process would be time consuming and potentially fraught with new objectives and objectors (Boyer, Tr. 3899-D). Even if DRBC approved a Schuylkill River alternative, PECO would still have to go back to the lac for nodification of its present construction permit and, when issued, its operating license (Boyer, Tr. 3899-D).

168. The Department likewise reviewed various alternatives in the Schuylkill River Basin for one unit, and found that no existing reservoir in that basin has sufficient storage available for use as a water source for Iamerick (Weston, Tr. 2367; Runkle, Tr. 858; PECO Exhibit 2,Section III at 3).

f.

Blue Marsh 169. Among the several Schuylkill River alternatives examined by the Department was the Blue Marsh Reservoir, which is owned and operated by the Corps of Engineers under the guidance of the DRDC. The Department doe's not have regu-latory jurisdiction over Blue Marsh.

Its entire operation and release schedules are under the jurisdiction of DhBC. Actual operation of the facility by the >L

Corps of Engineers is coordinated by the DRBC. DRDC is regularly advised as to any changes in releases, which require its concurrence (Weston, Tr. 2282, 2285, 2527-28; Erickson, Tr. 1541; Runkle, Tr. 858, 1128-30). Of the stcrage in the reservoir, 14,620 acre-feet has been contracted to DRBC and is within its con-trol. This is the total anount of water up to elevation 285 (Erickson, Tr.1543, 1568, 1571). The Departnrnt would oppose the allocation of Blue Mars'h water for Idmerick (Weston, Tr. 3463).

170. The Blue Marsh Reservoir is authorized by federal legislation for flood control, recreation, water supply and water quality augmentation (Runkle, Tr. 1130). In furtherance of these purposes, Congress allocated 8,000 acre feet in Blue Marsh for water supoly storage and 6,620 acre feet of storage for water quality augmentation (Runkle, Tr. 875, 1112-13; Weston, Tr. 2518-19). An addit-ional 4,400 acre-feet are allocated for recreation storage (Erickson, Tr. 1543).

I 171. To satisfy its water supply and water quality augmentation pur-i poses, the pool at Blue Marsh must be maintained at an elevation of 285 feet throughout the year (permanent pool). During the summer, the pool must be maintained at an elevation of 290 feet for recreational purposes, and at an initial elevation of 285 feet in the winter and spring for flood control (Erickson, Tr. 1571-72). The permanent pool is used continuously for recreation, even though it is cannarked for other purposes as well (Runkle, Tr. 1131-32).

172. Any change in the allocation of storage at Blue Marsh would re-quire an Act of Congress, which initially authorized the allocations with refer-ence to the report prepared by the U.S. Army Corps of Engineers (Runkle, Tr. 1092, 1131; Weston, Tr. 2519).

173. Western Berks Township has a 50-year allocation to withdraw water fran the 8,000 acre feet in Blue Marsh authorized for water supply (Runkle, Tr.

1131). The required release for Western Berks Water Authority to the year 1989, which mst be mada at all times, is 9 cfs (Runkle, Tr. 922). Fran 1990 through 1999 this release increases to 13 cfs, and frm 2000 through 2009 to 18 cfs. Afte-2010, it is set at 27 cfs (Erickson, Tr. 1572-73). When the Western Berks allo-cation reaches 14 cfs, it will require about 40 percent of the 8,000 acre feet of water supply storage contained in Blue Marsh (Runkle, Tr.1146).

174. Western Berks has top priority on the Blue Marsh Reservoir water supply storage because of its location in the Tulpehocken watershed, which feeds Blue Marsh (Runkle, Tr. 1141, 1146).

175. Water allocated to Western Berks has not been reallocated for other downstrean uses, on the theory that nonconsumptive uses will return the water to the Schuylkill River. The Depart:nent has never allocated the same block of storage for two separate purposes, nor even considered return flows as an available block of storage (Runkle, Tr.1267). The Department does not keep records, nor is there any way it could keep track of, the return flows of Western Berks (Runkle, Tr. 1272-73).

176. In addition to the Western Berks release, another 40 cfs must be continually released frm the Blue Marsh Reservoir as a minimum conservation release for downstream aquatic life in the Tulpehocken Creek (Runkle, Tr. 922-23, 1160; Erickson, Tr. 1557-58). This release must pass through the dam at all times, even during low flow conditions, but it has previously been lowered during periods of drought mergency (Runkle, Tr.1101; Erickson,1545). The 40 cfs continuous minimum downstream release was developed by the Corps in coordination

)

with the Ccmnonwealth of Pennsylvania, based on the 0 -10 flow of Tulpchocken 7

Creek as reflected in the State Water Plan (Erickson, Tr. 1552-55).

A Q -10 7

flow in a low daily flow ccmputed frcra a seven consecutivo day flow which is no far below average that its expected recurrence interval is ten yearn (Crickson, Tr. 1554-55). Section 105.113(b)(1) of the Department's regulatiorus states a --

fonnula specifying the amount of water (in cfs per square mile of the drainage areacfadamstructure)whichmustbereleaAedasaminimumconservationmeasure to protect aquatic life downstream (Runkle, Tr. 1102-03, 1105-06, 1111-13).

177. While the Department is consulted by DRDC with respect to changes in the conservation release, the Department does not have authority to approve or disapprove the change (Weston, Tr. 2527-28).

178. In addition to the Western Derks usage, the water supply storage in Blue Marsh has been utilized for anergency drawoffs during drought, e.g., in the 1980-81 drought, to control salinity in the Delaware Estuary (Runkle, Tr.1132).

179. In 1977, Blue Marsh was censidered as a source of supply for two units at Limerick, as part of the State Water Plan (Runkle, Tr. 861, 1133, 1137).

The Department also evaluated the possibility of using the Blue Marsh Reservoir to provide the makeup cooling water for one unit at Limerick in response to the general suggestions expressed by Del-Aware (PDI Exhibit 6 at 12; Runkle, Tr.

861-62, 1130-31, 1221; Westen, Tr. 2367).

180. The State Water Plan staff found that it would take five times the amount of water supply storage in Blue Marsh to sustain the 530 cfs flow in the Schuylkill River one unit at Limerick would have to withdraw frcm the river during the second and eighth worst years of record (Runkle, Tr. 914-15, 1120). This calculation did not include flows into the Blue Marsh Reservoir

~

because evaporation, minfrun downstream releases and the Western Berks Water Authority allocation would use up the total inflow ccming into the Reservoir (Runkle, Tr. 915). Additionally, this detennination was based on a 27 cfs average use figure for one unit and did not make allosances for peak use (Runkle, Tr. 938).

181. The Department determined that flows fran the Schuylkill and natural flows of the Perklanen Creek would provide sufficient water for Limerick

~

c only 60 mmt of the time, and that the renaining 40 percent, i.e., for 146

)

i days, per year, would be supplied fra the Point Pleasant diversion (DER Dc-hibit 2 at 28; Runkle, Tr. 1152-57).

I j

182.. One cis-day is equal to 2 acre-feet (Runkle, Tr.1151). There-l fore, utilizing the f1w value for one unit at Limerick of 32 cfs times 146 i

days yields 4,672 cfs-days, or 9,344 acre-feet of water storage n ===v y to i

meet the denands for even a single unit at Limerick- (Runkle, Tr.1153). The figure would be double for two units (Runkle, Tr.1154).

i 183. If one ignores the mininan flw requirements -(of 530 cfs and 560 cfs) iW_ by the DRBC for withdrawals for Limerick on the Schuylkill, flows available frcm the storage capacity at Blue Marsh would not, during the i

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second worst drought year of record, provide sufficient yield to meet the danands

]

for one unit at Limerick at less than peak demand. The 4,000 cfs available fran

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the 8,000 acre-feet water supply storage ccuponent of Blue Marsh would just 1

barely be enough to meet the average use at Limerick during such a drought i

l period (Runkle, Tr. 964). Blue Marsh would have capacity for one unit at Limerick f

even during drought periods if a portion of the block of storage of 6,620 acre-l feet which has been dedicated for lw flw water quality were used.

i 184. Although the definition of an interbasin or interwatershed trans-I i-for varies, the transfer of water at Point Pleasant fran the Delaware River to the Neshaniny and Perklanen Creeks (both tributary to the Delaware, does not j

constitute an interbasin transfer for purposes of the gg-Mi Water Resourcos Management Code or water managenent in the Ccanonwealth (Weston, Tr. 3648-49);

i j

transfer frun the Delaware to the Schuylkill is an interbasin transfer which, i

l Pursuant to DER policy, requires that the Schuylkill's resources have been i

i thoroughly utilized.

j l

4 185. Since the Schuylkill sub-basin is very heavily allocated, all plans for future water uses in the area rely solely upon Blue Marsh inasmuch as there are no other storage projects being planned by DRBC on the Schuylkill at this time (Weston, Tr. 2661-62). Thus, the only supply available in the future for i

public water suppliers and private users in that sub-basin is the re ainder of the Blue Marsh water supply storage (60 percent) left after the Western Berks a11mation (Runkle, Tr.1170; Weston, Tr. - 2660-61).

186. Dedication of Blue Parsh to Limerick means, as a practical matter, that all other area users would be restricted to their current alloca-tions with no capacity for expansion (Weston, Tr. 2661; Runkle, Tr. 1224). This would conflict with anticipated needs of public water suppliers for Philadelphia, Pottstown, Phoenixville and Norristown for additional withdrawals from the Schuylkill River (Runkle, Tr.1169).

187. Aside frm future allocations, allowing withdrawals frm Blue l

Marsh for even one unit at Limerick would have an impact upon downstream Schuyl-kill River users. The distance between Blue Marsh and Limerick is one of the i

most heavily used stretches of the most heavily used rivers in the Canmonwealth.

j

'1here are a number of industrial and municipal intakes between Philadelphia l'

and Limerick. These users would be deprived of any consunptive water use al-lowed for Limerick fran Blue Marsh. For example, 21 mgd for one unit at Limerick is roughly equivalent to 13 percent of the 0 -10 flow of the Schuylkill 7

at the Pottstown gauge; the Q -10 flow is the flow standard custmarily used 7

during investigations conceming water quality at low flow. Acrordingly, dimin-ishing the flow of the Schuylkill by 21 m;d below Limerick would subtract a substantial anount of the low flow, would impact users along the River, and would also affect instream uses of the River, including wasteload assimilation (PBCO Exhibit 6 at 16-18; Weston, Tr. 2669-70). L

0 188. The Department therefore again concluded--in the context of these appeals-that Blue Marsh is not a viable alternative to the Point Pleasant pumping project for even one unit at Limerick, because of anticipated needs for populaticn grwth and industrial expansion within the Delaware River Basin (PEEO Exhibit 6 at 16-18; Runkle, Tr.1162).

189. Even if there were sufficient water in Blue Marsh for one unit l

at Limerick, DRBC would have to approva PECO's use of that water (Boyer, Tr.

3910-11). Trie Department does not have jurisdiction over non-potable supplies of water allocation, just public water supplies. Any industrial water alloca-tion would therefore have to cme frcm DRBC (Runkle, Tr. 976).

190. Allwing PED to utilize water frcm Blue Marsh, to provide makeup cooling water for one unit at Limerick and to provide ccupensatory re-leases at low flow periods frcm Merrill Creek into the Delaware River, would not satisfy the conditions 'of PECO's docket at the DRDC (regarding Schuylkill flms) (Weston, Tr. 2372-74). PECO's allocation frcm DRDC is conditioned such that it may not withdraw frcm the Schuylkill River when the flw at Pottstwn, not including flow frcm any DRBC sponsored storage, falls below 530 cfs (Weston, Tr. 2374).

191. Interpreting the DRBC docket decisions relevant to withdrawal of Schuylkill River water by PEEO for Limerick, the Associate Deputy Secretary for Resources Managment, who is also the Alternative Delegate for the Ccmmonwealth j

f of Pennsylvania to DRDC, concluded that DRDC probably would not allow Blue Marsh to be used for Limerick under those decisions (PICO Exhibit 6 at 18; Weston, l

Tr. 2380). Significantly, the Alternative Delegate stated that the Depart-l ment and the Pennsylvania DRDC Cmmissioner would not support a cmmitment to a l

single user of a reservoir meant for an entire basin with 1.5 million people (Weston, Tr. 3463). 2

J i

g.

Philadelphia SubtrMn 192. The availability of water fran Philadelphia Suburban Water Ccmpany for Limerick was investigated in the State Water Plan (Runkle, Tr.1141). Phila-delphia Suburban Water Cmpany reservoirs have a cmbined 96.5 ngd yield. They are currently supplying 77.5 mgd and have a 17 mgd surplus (Runkle, Tr. 981-83).

The frequency on which this yield figure is based is unknown. Therefore, Phila-delphia Sit =1rMn may not actually have a surplus during droughts (Runkle, Tr. 984).

193. It is projected that Philadelphia Surburban will require 107.7 mgd by 1990 and 148.1 mgd by 2020 (Runkle, Tr. 1142). Even with the utilization of the Green Lane Reservoir, its four other reservoirs and its existing wells, Philadelphia Suburban faces a yield deficiency of 13.5 ngd in 1990 and 54 ngd in 2020. Thus it is not a long-term source of water for Limerick (Runkle, Tr.

1142-43, 1166-67).

h.

City of Philadelphia 194. The Departm2nt also considered. reducing the City of Philadelphia's allocation and having PE O take this water out at Pottstown, but rejected this i

alternative because of the nature of the use. One unit at Limerick requires a l

consumptive water use in excess of 21 mgd. The City of Philadelphia's use of its water is primarily nonconsumptive. Only ten percent is consumed; the remain-der is return flow. Also, the stretch of the Schuylkill between Pottstown and Philadelphia contains a nmber of industrial and municipal intakes, and is one of the most heavily used reaches in the Camonwealth. Those users would be deprived of water consumed at Lincrick, m a loss of this water would have a i

substantial impact on aquatic life, recreation, users along the river and the instream uses of the river, including waste load assimilation (PDCO Exhibit 6 at 6-12; Weston, Tr. 2669-70).

I

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i. Pipeline fran Philadelphia 195. The Department also considered diverting the Delaware River water at Philadelphia rather than at Point Pleasant as an alternative to the project.

This alternative would only provide cooling water for Limerick. It determined that a 30-mile pipeline with pa page over an elevation differential of 450 feet would be necessary. Installation of this pipeline, three times the ca bined length of the Point Pleasant cmbined transmissial main and Perkianen trans-mission main, would entail intensive construction activities through heavily prm lated areas at a cost exceeding 52 million dollars. It was also determined that maintenance and repair would be more difficult, and that operational costs for transmitting the water over a greater distance would necessarily be sub-stantially higher. It was also determined that this alternative would not be environmentally preferable, particularly as regards Delaware River flow and sa-linity intrusion (DER Exhibit 2 at 79-80).

196. Detailed discussion of the altern*atives dimwaarl for the NWRA portion of the project is set forth in the Discussion, infra, and incorporated herein by reference. In stan, none of the proposed alternatives were demonctrated by the appellants to be feasible, let alone superior to the Point Pleasant project.

J.

Permitting Process 197. Peter Duncar. was the Secretary of the Department in 1981-82.

In that capacity, he was ultimately responsible for the deterr.dnation that an Envirorunental Assessment should be prepared for the Point Plamaarit project (Duncan, Tr. 748-49). On the basis of his belief that a single focus was needed to pull all the necessary information together, Duncan assigned Timothy Weston to oversee.

the actual preparation of the Assessment (PBDO Exhibit 6 at 2; Duncan, Tr. 751-52).

Duncan assigned Weston lead responsibility for the Envi m.;.tal Assessment in view of his managerial experience and background in the Department, particularly in the Division of Water Quality Managenent (Duncan, Tr. 751-52)..

198. Duncan instructed William Middendorf, Deputy Secretary of Environ-mental Protection, to provide Weston with the necessary water quality information (Duncan, Tr. 752). In return, Middendorf delegated responsibility for coordin-ation with Weston to Icon Conshor, Director of the Southeastern Regional Envir-omuntal Protection Office, and Iouis Bercheni, Director of the Bureau of Water Quality Management (Middendorf, Tr'. 794).

199. Jack Ford, Chief, Eastern Section, Division of Waterways and Stornwater Managcment, was in charge of ccrnpiling the material for the Environ-mental Assessment (Rehm, Tr.1675). As such, he drafted many of the initial sections and prepared the final sections dealing with water conservation and wetlands (Ford, Tr. 2140, 2202; Weston, Tr. 2430). Other sections were supplied by Steve Runkle, a hydraulic engineering supervisor with the State Water Plan, l

and John McSparran, Director of the Water Resources Managcrnent Bureau (Runkle, Tr. 822-25; Ford, Tr. 1981-84; Weston Tr. 2430).

200. In preparing the Environmental Assessment, the Department cross-checked the infernution suPI' lied with the applications against information already in the Department (Ford, Tr. 1929, 2106-08).

201. As permit coordinator, Weston's duties were to coordinate the activities of an interdisciplinary staff involving professionals frcm a nunbar of DER bureaus and offices (PECO Exhibit 6 at 2).

202. In conducting its review of the Point Pleasant project, the Department examined and (to scme extent) relied upon numrous reviews, studies and analyses performcd by DRDC, the Corps of Engineers and the Soil Conservation Service of the U.S. Department of Agriculture.

In addition to the several environ-mental assessments and environmental impact statcznents prepared by these agencies, the Departncnt also reviewed and relied upon voluminous documents, studies, re-ports and ccmnents furnished by PIDD and lAGA, as well as by other individuals '

and organizations ccmnenting on the project (DER Exhibit 2 at 14-23; Ford, Tr.

2195; Weston, Tr. 2327).

203. With regard to the instant appeal, the Department reviewed a ntra-ber of reports and other forms of correspondence furnished by appellants and other opponents to the project (DER Exhibit 2 at A-13 to A-15; Stipulation, Tr.

213; see Del-Aware Exhibits 4-17).

204. The Department was also guided by the decision of the United States District Court for the Eastern District of Pennsylvania, affirming DRBC's previous approvals of the project in Dalaazra Water Dnergency Croup v.

Hansler, 536 F. Supp. 26 (E.D. Pa.1981), aff'd, 681 F.2d 805 (3d Cir.1982)

(DER Exhibit 2 at 21-22).

205. The Department reviewed DRBC's addition of the Li:nerick wursnent of the Point Pleasant project to the Ccuprehensive Plan, as set forth in DRBC Docket Nos. D-69-210 CP (March 29, 1973) (PECD Exhibit 1), D-69-210 CP (Final)

(Novenber 5,1975) and in DRDC Docket No. D-79-52 CP (February 18, 1981) (PECO

.i, Exhibit 11). In this regard, the Department studied DRBC's Final Envimme.ntal Impact Statcment on the Point Pleasant Diversion Plan (1973) and its Final Environmental Assessment for the Neshaminy Water Supply Systcm (August 1980),

which acccmpanied these approvals (DER Exhibit 2 at 17, 21, 28).

206. The Department also reviewed the record before the AEC (which re-sulted in the issuance of the Final Environmental Statement (Novcnber 1973) re-lated to Limerick), as well as the hearing record before the Atcmic Safety and Licensing Board and the Appeal Board of the ABC on the issuance of construction permits for Limerick in Philadelphia Elsatria Company (Limerick Generating Station, Units 1 and 2), LDP-74-44, 7 ABC 1098 (1974), aff'd AIAB-262,1 NRC 163 (1975),

aff'd sub ncm. Environmental Coalition of' Nuaicar Pover, et al. v. Nuclear Regulatory Commiacion, oc al., No. 75-1421 (Novenber 12, 1975) (DER Exhibit 2 at 18,19, 28)..

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207. 'Ihe Enviu.a i ::ntal Assessment was the primary decision doctznent for all the permits on appeal issued by the Department. The entire inpact of j

the project was considered in connection.with the issuance of each permit (Weston, i

Tr. 2298, 2484, 2489).

208. The Envirorunental Assessment prepared for the Point Pleasant i

project is the first Assessment canpleted for the issuance of dam and encroach-4 i

ment permits under Chapter 105 of the Department's regulations (Ford, Tr. 2200-4 01). Prior to the fall of 1982, environmental assessments were done on short fcrm letters with information supplied by the various Ccanonwealth agencies and i.

i departments (Ford, Tr. 2202).

4..

209. On April 14, 1982, Department officials met with Del-Aware repre-l sentatives and technical assistants for an entire day. The purpose of the j

meeting was not to solicit the views of state agencies, whose opinions had other-wise been sought through routine channels, but rather to ensure that the draft i

Enviu.iastal Assessment would fully address Del-Aware's concerns -(Ford, Tr.

1924; Sigstedt, Tr. 216-17, 230-31; Weston, Tr. 2339, 2342-43).

l l

210. At the April 14, 1982 meeting, Del-Aware subnitted a ompilation l

of written objections to the Point Piment project as well as 13 @= ants setting l\\

out its pcsition on the issues (Del-Aware Exhibit 18; Sigstedt, Tr. 215; Stipu-l lation, Tr. 212.-13).

t 211. Various Depiu6-st officials attended the April 14, 1982 meeting i

and noted the issues within their cognizance as discussed by Del-Aware's===hars.

i j

'Iheir responses to Del-Aware's ccmnents were then provided to Ford, as the pri-

}

l mary ccupiler of the Envie.i-ital Assessnent (Ford, Tr. 1935-36).

4 i

l 212. Del-Aware's representatives met with Department personnel with i

regard to the project on a nunber of other occasions, including one occasion in which Mr. Weston met with state legislators fran the Point Pleasant area, their i

l

constituents and opponents of the project to discuss treir concerns (Sigstedt, Tr.

217; Greenwood, Tr. 259).

213. Additionally, Representative Greenwood met with Mr. Runkle in the sumer of 1982, to review Schuylkill flows and the need for Delaware River water as a make-up source of cooling water for Limerick (Greenwood, Tr. 261-62).

4 I

State Representative Greenwood and Del-Aware's President, Colleen Wells, subse-4 quently reviewed this matter with Mr. Weston at a meeting on July 19, 1982 (Greenwood, Tr. 268).. Mr. Greenwood and Miss Wells discussed several concerns at this meeting, regarding Merrill Creek and the PUC decision on Unit 2 of r

Limerick. They also discussed the Blue Marsh Reservoir as an alternative to l

using Delaware River water, and raised various other issues (Greenwood, Tr.

270-72, 276, 297).

214. Another meeting, held on August 17, 1982, was attended by Secre-tary Duncan, State Representative Greenwood, Del-Aware's legal coursel and another Del-Aware representative on these same' subjects. They also discussed the potential use of Lake Nockamixon as a supplanental flow augmentation source.

Secretary Duncan agreed to consider the points raised at the meeting (Greenwood, Tr. 276-77, 281).

i f

'K. Morth Branch Flows 215. While the additional pumpages into the North Branch Neshaminy Creek may exceed the nwhn flows at the point of discharge, they are minor in 3

cmparison to the flows exhibited during storm events occurring every few years (testimony of Dr. Dresnack, Tr. 4370).

216. Based on Dr. Dresnack's independent analysis of the North Branch Neshaminy Creek,the 1970 calculations prepared by E. H. Bourquard are reasonable and accurate (testimony of Dr. Dresnack, Tr. 4481-85; DER Exhibit 2, Table 3; NWRA Exhibit 55 and 56).

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j 217. Flows in the North Branch Neshaminy Creek, after the initiation of puropages from the Bradshaw Reservoir, will be confirmcd to the stream bed and 1

will not cause overbanking (testimony of Dr. Dresnack, Tr. 4345-4349).

l 218. The ratio of peak flows to long-term-average flows is primarily j

I a function of drainage area; as drainage area increases, the ratio decreases.

As a result, a mean annual flood of 280 cfs at the North Branch Neshaminy Creek is considered reasonable since the drainage area is only two square miles (NWRA f

Exhibit 52, Testimony of Dr. Dresnack, Tr. 4364-69).

l 219. Using a worst-case scenario (no natural flow in the North Branch Neshaminy Creek), there will be ample in-bank capacity in the North Branch j

Neshaminy Creek to a

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hte a =w4== daily discharge of 48.8 mgd in the j

year 2010 (NWRA Exhibits 53 and 54; testimony of Dr. Dresnack, Tr. 4377-84).

i 220. Depth changes of no more than 1.5 feet above natural conditions i

will occur in the North Branch Neshaminy Creek (testimony of Dr. Dresnack, Tr. 4345-49).

j 221. Findings of Fact 86 and 87 aupra mean that for a bare stream chan-1 nel ccznposed of silty clay loam and sandy clay loam, a non-erosive diversion 1

velocity is 2 fps or less (testimony of Dr. Dresnack, Tr. 4371-72; NWRA Exhibit i

j 57); the correspcriding figure for water transporting colloidal silt in a firm i

j loam channel is 3.5 fps (testimony of Dr. Dresnack, Tr. 4372; PB00 Exhibit 12).

l 222. Using the maxinn daily discharge of 48.8 ngd in the year 2010, l

the diverted water will exit the North Branch Transnission Main at a velocity of 7.85 fps. However, the p1 W energy dissipator will reduce the flow velocity and the water diverted will enter the. North Branch Neshaminy Creek channel at only 1.2 fps (WRA Exhibits 31 and 55, testimony of Dr. Dresnack, l

Tr. 4348-92). In the year 2010, when conveying the average daily flow of 32.6 f

mgd through the North Branch Neshaminy Creek, the flow velocity in the channel will,be 2.2 fps and the stresa depth will be 1.2 feet (testimony of Dr. Dresnack,

{

Tr. 4392-93).

e 223. The mean velocity in the Ibrth Branch Neshaminy Creek after the initiation of pumpages fran the Bradshaw Reservoir will be 1 fps; maximum velocity will be 2.5 fps (testimony of Dr. Dresnack, Tr. 4345-49).

224. Impacts to the North Branch Neshaminy Creek will be minimal be-cause pumpages fran the Delaware River will be implemented gradually during a t

25 to 30-year time span. There will not be a zero-to-maximum increase on a daily or weekly basis, and monitoring in the early stages will help to establish flow requirenents needed for particular water danand (testimony of Dr. Dresnack, Tr.

• 4395-96).

225. To assure proper operation of the releases fran the Bradshaw Reservoir to the North Branch Neshaminy Crock, IMRA's operat.alg plan requires 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, 7 days per week monitoring of stream flows and weather conditions.

NWRA will not continue pumping during flood conditions (' estimony of Dr. Dres-t nack, Tr. 4492-4493; DER Exhibit 2, p. 40).

226. The amount of flow in the North Branch Neshaminy Crook will be based on the daily water supply needs and on the desired storago and recrea-tional water level in Lake Galena (IMBA Exhibit 13, testimony of Dr. Dresnack, Tr. 4423-24, 4427).

227. The refilling of Lake Galena for sumer recreational use will connence in Dcuner or January of each year. If natural inflows fran North

' Branch Neshaminy Creek to Lake Calena are considered inadoquate, those inflows will be supplemented by diversions fran the Delaware River. A plan of operation will establish Bradshaw Reservoir pumpage rates, based on Lake Galena recreational and storage needs and on drought considerations affecting tho tbrth Branch Nosham-iny Creek (testimony of Dr. Dresnack, Tr. 4444-46; DER Ex!tibit 2, p.10).

228. Although DER detennined that the diversion of water into the receiving stream, North Branch Neshaminy Creek, would have no odverso crosive 1,

o h inpacts, DER conditioned the permit issuance on permittee's continuous monitoring for erosion in the receiving stream (testimony of Jackie Ford, Tr.1962; Dams and Encroachnents Permit DC 09-81, Special Condition "V").

229. A seine sampling survey of the tbrth Branch Neshaminy Creek, per-forncd by IMA's consulting biologist on April 17, 1983, found a very diverso fish comunity, typical of small'tanperate streams in the Mid-Atlantic region (testimony of Harold M. Brundage, Tr. 3853-54).

230. The North Branch Neshaminy Crcek fish species are very similar in conposition and relative abundance to those found in the Delaware River near Point Picasant; but the Delaware River also has largo game species (American Shad, Blueback IIerring) not found in the North Branch Neshaminy Creek, because the Delaware has a larger volume of water and nero niches for fish to occupy (testinony of Harold M. Brundage, Tr. 3855-56).

231. The North Branch Neshaminy is an intermittent stream, having dry l

reaches and small stagnant pools in the summr. The Delaware River pumpages vould increase the fish habitat (testitony of Ilarold M. Brundage, Tr. 3863-64; testinony of Stephen Runkle, Tr. 856-57).

l 232. Aquatic life in the tbrth Branch Neshaminy Creek currently ex-i periences considerable changes in flow and sediment, duo to flash rainfalls l

(testimony of Ilarold M. Brundage, Tr. 3855-57).

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233. The water quality Chapter 93 standards applicablo to the North Branch are identical to those in the East Branch; thus the Findings abovo regarding water quality impacts on the East Branch (Findings of Fact 103-113) are incorporated herein as though set forth at length.

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1 i

d III. DISCUSSION 1

A.

PREN4BLE As the raadar has already discerned, having waded through or skinmed i

over the more than two hundred findings of fact, this has been a cmplex and j

4

:t hotly centested case. In order to get a handle on the lamentably extensive e

e discussion to follow, the first order of business is to describe:

(1) the i

b Point Pleasant project, and (2) the actions of DER regardirq that project which l

l gave rise to the appaala at the above docket.

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1.

Project Description--General J;)

The description of the project which innarliately follows this paragraph is frm DER Exhibit 2, a dev'=nt entitled Environmental Assessment Report and a'

Findings Point Pleasant Water Supply Project, dated August 1982.

It is appro-l priate to quote the Environmental Assessment because this +v'==1t sumarizes he i

the Department's reasoning for taking each of the presently appealed actions, while simultaneously addressing each of the environmental issues raised by the l

appa11 ants. This is not a coincidence; the appa11 ants in this case, a citizens t

j group known collectively as Del-Aware Unlimited, Inc.,.have been involved in DER's decision-making process to an unusal degree. Ibpresentatives of arpa11 ants s

p he participated in an April 14, 1982 scoping meeting with top-level DER personnel;

'r i

t during this meeting, and throughout dozens of other contacts with DER officials, 4

e aopellants helped DER construct the list of environmental issues to be considered.

i To sme extent the Envimmental Assessment can be considered the Department's r

answer to appellants' concerns.

j t

'Ihe proposed Point Pleasant Project is an integral-cmponent of the Neshaminy Water Supply Systen that is being implemented by the Neshaminy Water Resources Authority of Bucks County. This systen would divert water fra the Delaware River mainsten at Point Pleasant to (1) supplenent public water supplies in Bucks and i

Montgmery Counties, and (2) provide water, when needed, i

to the Idmerick Nuclear Generating Station in Montgmery l

County. -.

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i t

The Point Pleasant Pmp Station would have an ulti-mate capacity to divert 95 million gallons per day (mgd) and lift water via a transmission main sme 2.4 miles to the proposed Bradshaw Reservoir. The Bradshaw Reser-voir would serve as a holding and control structure.

This first segment, fran the Point Pleasant Pmp Station to the Bradshaw Reservoir and Pmp Station, would serve as a joint facility for Philadelphia Electric C apany (PECO) and Neshaminy Water Resources Authority (NWRA).

It w mld be developed and operated by the WRA on behalf of both project sponsors.

In the second segment, the water diverted fran Bradshaw Reservoir to the Neshaminy Water Resources Authority water supply systan would be relm<:M into a transmission main approximately one mile long to the North Branch Neshaminy Creek, and then [would] flow by gravity into and through Lake Galena to the North Branch water treatment plant located in Chalfont, Pennsylvania. After awivytiate treatment to meet Federal and State drinking water standards, finished 4

I water would be distributed through several transmission mains to serve retail public water supply systes in Bucks and Montganery Counties serving over 50 munici-palities. These transmission facilities would be con-i structed and operated by NWRA.

i The maximum amount of water to be pumped fran the

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Delaware River at Point Plm*= ant through Bradshaw Reser-i voir in the year 2010 for public water supply would be 49 ngd. Forty mgd ultimately would be picked up at the Chalfont Water Treatment Plant. Approximately 4 mgd would constitute evaporative and seepage losses, and 5 ngd would serve as stream flow augmentation in the Neshaminy Creek to enhance fish and wildlife, in ac-cordance with release schedules requested by the Penn-sylvania Fish Cannission and imm<:M as conditions in the Water Allocation Permit No. NA-U978601 previously issued for the project by the Department of Environ-mental Resources.

The Chalfont Treatment Plant would be built in two phases. The first, with 20 ngd capacity, would serve i - Miate water supply needs. A second phase of 20 mgd would be aMM between 1990 and 2000, as projected demand requires.

In the third segment, a mwimum of 46 ngd would be peped'fran the Bradshaw Regnoir via a trans-mission main sane 6.7 miles to tis East Branch Perki-onen Creek. Water released to the upper reaches of the East Branch Perkicmen Creek would flow by gravity in the stream channel [ sane 22 miles] to a diversion point near Graterford on the Perkiomen Creek, and hence via a transmission main.to the Limerick Nuclear Generating l.

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Station. 'Ihis segment, including [the] Bradshaw Reser-voir, transfer facilities to Perkimen Creek, and pumping facilities frm Perkimen Creek to Limerick, would be I

developed and operated by the Philadelphia Electric Cm-pany.

(Reference should be made to Figure No. II-l a schmatic of the project also fran the Environmental Assessment which follows this page.)

A.

Point Pleasant Pump Station The project site is located on the west bank of the Delaware River at a point near the southern limits of the Village of Point Pleasant in Plumstead Township, Bucks County, Pennsylvania. As noted in material sup-plied by E.H. Bourquard Associates, Inc., and in the plans associated with Application No. 09-81, the sta-tion will be approximately 80 feet long by 45 feet wide

[by at least 15 feet] above finished grade and is to be a reinforced concrete structure with architectural fea-tures... [ causing it to]... resemble a barn. The station will house pumps having a total capacity of 95 mgd (147 cfs), together with related heating and ventilating, electrical, and instrumentation and control facilities.

(The station will be visible fran the Delaware Canal a/k/a Roosevelt State Park.)

The intake for the pumo station is to consist of an assably of wedge wire screens which will be located at a point approximately 245 feet streamward of the bank and which will have an approximate minimum subnergence of 4 feet during low flow stages in the river. A total of isty-four (24) screens will be installed in three groups of eight screens each. The screens will be 40 inches in diameter and maximum flow velocities through the screen slots will be approximately 0.5 feet per second. The screens will be cleaned by both hydraulic and air wash systes.

Each group of screens is to be connected by a 42 inch diameter reinforced concrete pipe to a gate well to be located along the shore line. Fran the gate well, a 72-inch diameter reinforced concrete pipe will pass l

under the Delaware Canal (Roosevelt State Park) carrying water frun the well to the punp station.

B.

Cmbined Transmission Main The conbined transmission main will deliver flow fran the puup station to Bradshaw Reservoir and will extend through a reach of approximately 2.4 miles.

Based on the use of reinforced concrete pipe, the first 1600 feet of main that will traverse the steen river

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valley slopes will be 66 inches in diameter with the remainder being a 60 inch diameter pipe. !

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Figure No. II-l NESHAMINY WAT8R SUPPLY SYSTEM J

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Psttstown o

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SOUTHERN 9,.

TRANSMISSION MAN

'f PHILADELPHIA i

)

ELECTRIO CO.

(

PUMP!NG STATION 6

s N

N f LIMERICK NUCLEAR g

GENERATING STATION s

O.a g

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'N 1

?

t' 8"*

g scale in miles A,

I I

C.

Bradshaw Reservoir The Bradshaw Reservoir (Application No. D09-181) will serve as the point of discharge for the water purrped through the cmbined transmission main. The reservoir will be structured on the drainage divide between the North Branch Neshaminy Creek and the South Branch GwWs Run. The embankment win consist of ~=w ted earthern dikes fomed fr m material excavated at the site. These dikes will vary in height frm 5 feet to 23 feet and will form a i

square reservoir about 900 feet an a side. Operating capacity of the reservoir will be approximately 70 million gallons (215 acre-feet). The reservoir win have no drainage area feeding it except for the actual water surface of 18.8 acres.

D.

North Branch Transmission Main The North Branch Transmission Main win deliver a n=4=n of 49 mgd by gravity flow frm Bradshaw Reser-voir to the upper reaches of the North Branch Neshaminy Creek,fr m which point the flow will be via the stream aan.ugimately 4 miles to Lake Galena and then on to the North Branch treatment plant. The main is to be a 42 inch dieaEwr pipe based on the use of reinforced concrete pipe and win be approximately one mile in 4

length. At the point of discharge on the North Bran,ch, 4

an energy dissipator and riprapped. channel are to be l

installed to reduce flow velocities and guard against erosion as the flow is discharged into the stream.

The maximum flow added to the channel will be 49 mgd l

l or 76 cfs.

1 E.

Perkimen Transmission Main The Perkimen Transmission Main which connects Bradshaw Reservoir with the East Branch Perkicmen Creek win convey water via a 42 inch diewww pipe a dis-tance of approximately 6.7 miles along an existing gas pipeline right-of-way to the upper reaches of the i

East Branch Perkimen Creek. At the point of discharge, an energy dissipator would be constructed to reduce erosion of the stream bed and stream banks. A small muscling spur channel dug pm.Adicitlar to the stream channe3 is also included in the energy dissipator design.

The water would travel 22.2 stream miles via open chan-nel conveyance to be picked up via withdrawal facilities located near Graterford, Pennsylvania, for eventual use at the Limerick Nuclear Generating Plant.

F.

Operating Plan 1

This assigrnent is based on plans of operation for the various elments of the Point Piment project as outlined j.

. in the applications and in conditions iW on project m.

operations by regulatory decisions and permits issued by the Delaware River Basin Carmission, the Depart 2nent and the Army Corps of Engineers.

Public Water Supply Operations Public Water supply withdrawals for the Neshaminy Water Supply Systen involve a sequance of diversions fr m a series of sources. The withdrawal plan approved by the Department as.part of the Water Allocation Permit No. ha-0978601 involves the following order of operations, as needed, to serve public water supply danands in the service area:

(1) Withdrawals fran the natural flow of Pine Run, up to 10 ngd (subject to minimum flow require-ments in the North Branch Neshaminy Creek below the Chalfont Treatment Plant, described below).

(2) Withdrawals fran the natural flows of the North Branch Neshaminy Creek, up to 15 mgd (subject to mininun flow requirements in the North Branch Neshaminy Creek below the Chalfont Treatment Plant, described belcw).

(3) Withdrawals fran releases to the North Branch Neshaminy Creek fran storage in Lake Galena, (subject to the Lake Galena operating plan, described below).

(4) Withdrawals fran the Delaware River up to 49.8 ngd (subject to conditions iW in DRBC Docket No. I>-65-76 CP(8).

The total withdrawal of Chalfont, fran natural or i

augmented flows, may not exceed 40 ngd. These withdrawals are conditioned upon maintaining a continuous minimum flow in the North Branch Neshaminy Creek below the Chalfont i

i Treatment Plant of 5.3 mgd fran March 1 to June 15 of each l

year, and 2.73 mgd fran June 16 through February.

Cooling Water Operations Withdrawals to serve consunptive cooling water require-t ments at the Limerick Nuclear Generating Station similarly' involve a sequence of diversions. The average rates of consunptive use for cooling are 17.5 mgd for one power plant unit coerating,-and 35 mgd for two units. Maxinun consump-tive use rates are 21.3 ngd for one unit operating, and 42 mgd for two units.

Depending on actual cooling water denand at Limerick (based on electric. generating denand and several technical -

factors), withdrawals will be made in the following order:

~ !

(1) Withdrawals frm the Schuylkill River, (Sub-4 ject to conditions described below);

(2) Withdrawals fran the natural flow of the Perkianen Creek at Graterford (subject to conditions described below);

(3) Withdrawals fra the Delaware River (sub-ject to conditions described below).

Each of these withdrawals is subject to limitations designed to protect water quality, in-stream and down-stream uses. Withdrawals frm the Schuylkill River are limited by the following conditions:

(i) flows (not i

l including flow augmentations frcm DRBC-spriscm1 pro-jects) measured at the Pottstown gauge nest exceed 342 mgd (530 cfs) with one power plant unit in operation and 362 mgd (560 cfs) with two units in operation; i

and (ii) no withdrawals may be made when water temper-atures in the Schuylkill below Iinerick exceed 15'C, except during April, May and June when the flow mea-sured at the Pottstown gauge is in excess of 1158 mgd (1791 cfs).

i Natural flows of the Perkimen Creek may be used for 1

oooling water only when creek flows measured at the Graterford gauge exceed 116 ngd (180 cfs) with one unit i

in operation and 136 mgd (210 cfs) with two units in operation. This condition assures that natural flows below Graterford will not be r d M by withdrawals when-flows fall below the long-term median flow of 97 1

mgd (150 cfs).

Conditions immM by DRBC further require that a minimum flow of 27 cfs (17.4 mgd) be maintained in the East Branch Perkicmen Creek at a gauge to be located at Bucks Road throughout fran Bradshaw Reservoir to the East Branch and ending when pumping is no longer re-quired for operation of the Limerick plant. For the t

remainder of the year, a miniman flow of 10 cfs (6.5 mgd) must be maintained in the East Branch.

1 Diversions fran the Delaware River for cooling water pis m are prohibited when such withdrawals would ram river flow measured at the. Trenton gauge below 3000 cfs (1940 mgd). When River flows fall below 3000 cfs at h b.in, cooling water diversions fran the Delaware must be curtailed, or u.ugasated by releases made fran upstream storage for such purposes.

Iake Galena Operations j

Lake Galena is a multiple purpose facility, serving water supply, ' flood control and recreation purposes. The

!i' i

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i i

i operational plan for this facility was previously developed and approved at the time Lake Galena was designed and con-structed. In so far as Lake Galena operations affect the operations of the Neshaminy Water Supply Syst s, the fol-lowing operating parameters and procedures apply.

i Lake Galena is and will be operated to achieve and sustain a recreation pool at elevation 321.7 feet MSL throughout the recreation season, between M m orial Day and Labor Day. This recreation pool will be maintained, with l

minor fluctuations between elevations 320.7 and 321.7 feet through the recreation seacn. The zone of one foot at f

pool elevation 320.7-321.7 feet MSL involves w uai- -

mately 60 million gallons of storage, which may be utilized to ccatrol reservoir inflow and releases for water supply and conservation purposes without affecting i

recreation uses.

During the recreation season, releases fr m the Lake to meet conservation release requirements and water supply needs, if not fully replaced by inflow to the Lake frm natural flows of the North Branch Neshaminy Creek, will i

be made up by diversions of water frm the Delaware River.

l, Following the conclusion of the recreation season, starting at pool elevation 321.7 f t M L, Lake levels will be radna d by conservation releases and releases for water supply needs, on an "as neerlarl" basis, drawing Lake levels down no further than the conservation pool t

elevation of 302.1 feet MSL. The total storage between the recreation and conservation pool elevations is 1.63 l

billion gallons. Because of this voline of sbuage, annual drawdowns during most years are not expcecbad to lower storage to the conservation pool level.

4 j

Releases will be made, in any event, to draw down Lake. Galena by at least 10 feet below the recreation i

pool elevation (e.g., to elevation 311.7 feet MSL or below) each year, and to sustain such lower elevation through cne or more freezing periods, as a means of i

retarding the growth of algae in the Lake.

t-Refilling of Lake Galena will cmuence in the i

period of mid-Drw..r through January (following the freeze periods described above). Refilling will rely to the maxinun extent possible on natural inflows to the Lake fr m ue North Branch. At each point through j

the winter-spring refilling process, natural inflovs will be monitored and evaluated.- If natural inflows are projected to be inadequate;to. reach. the Km,Hert pool elevation of 321.7 feet MSL by the start of the recreation season, natural flows of the North Branch i

Neshminy will be.suppleented by pwping frm the

i.....-.

v Delaware River.

If such supplanental withdrawals are required to refill Lake Galena, they will be projected as far in advance as possible and spread over the maxi-num number of days, in order to reduce the amount of the required daily withdrawal fran the Delaware and minimize flow variations in the North Branch Neshaminy Creek above the Lake.

(Consistent with conditions (s) of DRBC Docket D-65-76 CP(8), NNRA as operator of Lake Galena will subnit to DER for review and approval a tu.veurwd initial protocol and plan for projecting inflow / refill requirenents, to be refined on the basis of the first five years of experience with the systen.)

Pennsylvania Dam Safety and Encroachnents Permit No. 9-169 previously issued for Lake Galena requires a minimum conservation release of 1.5 mgd frcIn the dam, i

or equal to the inflow to the Lake if less than 1.5 mgd. h conservation release is made by a fixed orifice set in the dam, providing an essentially uncontrolled release of 1.5 mgd at alJ times.

Bradshaw Reservoir Operations Bradshaw Reservoir is designed to be operated essentially as a control structure, within the systsu, controlling the release and distribution of water diverted frcxn the Delaware into the Perkicznen and Neshaminy watersheds. Of the reservoir's total operating capacity of 70 million gallons, 46 million gallons will be held in reserve for i

energency storage (this storage is equivalent to one day's use or energency shutdown requirenents at Limerick). Six million gallons is assigned for silt buildup and counted as " dead storage". h remaining 18 million gallons, stored in the top three feet of the reservoir, will pro-vide operating capacity.

Planping rates at Point Pl-nt will be triggered by storage elevation changes at Bradshaw. As releases are made to the North Branch Neshaminy for public water e

supply needs, or to the East Branch Perkicznen for cooling water requirenents, elevations will lower in Bradshaw.

As storage falls within the three foot operating range, 1, 2, 3 and 4 punps at Point Pleasant will be triggered in sequence, and turned off in sequence as elevations in Bradshaw rise. This pattern noderates flow fluctu-ations in the Delaware River and provides more efficient utilization of the ptznps. This type of sequenced oper-ation is typical of water systens, and essentially the same as used by public water supplies which trigger well operations based on water levels in a storage tank.

3 -

Daily Operations Unlike operating plans for large Federal multipurpose projects, or typical flood control projects (which follow operating curves in adjusting storage and release rates),

the Point Pleasant operating plan is geared to daily oper-ations and constant adjustments, based on the operating parameters and conditions describri above. This form of operating plan is typical of water supply syst s operations.

4 It is designed to make maximum efficient use of all I

sources, while conserving storage and flow and mitigating any potential environmental effects.

Operation of the Neshaminy Water Supply System, fol-lowing the operating plan's parameters and conditions, will be conducted on a daily basis. '1here will be an instrumentation systs connecting the Chalfont Treat: ment Plant with Lake Galena, Bradshaw Reservoir and Point Pleasant P mping Station. Data will be im arliately available to the Plant operators on flows frm Lake Galena, the water level in Lake Galena, flows fr m Bradshaw Reservoir, the water level in Bradshaw Reser-voir and the operation of the pumps at Point Pleasant.

Treatment Plant personnel will operate the control gates which release water frm Lake Galena and frm Bradshaw Reservoir. To eliminate any shock effect on North Branch aquatic biota, all releases will be started at a low rate and increased gradually to the scheduled rate, and any adjustments in daily releases will be done gracinally.

i The Plant production on a partie,ilar day will be scheduled on the prior day on the basis of the anticipated water needs of the service areas. As part of the procedure, natural flow takings frm Pine Run and frm the North Branch will be estimated on the basis of projected stream flows and climatic conditions, and any necessary releases frm Lake Galena will be set up. If the estimates show that Delaware River water will be needed, this will also be j

scl*4nl ed.

During the day adjustments will be made in the release frm Lake Galena to cmpensate for any change from antici-pated water needs. The travel tim for a release frm Lake Galena to reach the Plant is about three hours. Releases frm Bradshaw Reservoir take about five hours to reach Lake Galena.

Operations for cooling water will similarly be ad-justed on a riaily basis.

Delaware River Withdrawals A cmputer program was devuoped to determine the anount of Delaware River water needed under the proposed operating i

i' plan. This program utilizes flow records of Neshaminy

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Creek at Langhorne, Pennsylvania to develop flows of l

Pine Run at the intake and of the North Branch into l

Lake Galena and at the intake. Account is then taken

(

of Treatment Plant production, mininun flow releases l

at the intakes and fran Lake Galena, water level ele-j vation and water storage in Lake Galena, evaporation j

fran Lake Galena and cooling water needs at Limerick, in order to determine the volume of water needed daily fran the Delaware River. Three different sets of stream flow conditions were examined in this program: a wet year, an average year, and a dry year. The estimated monthly withdrawals, with average stream flow conditions, to provide for projected water needs of the years 1985, 1990, and 2000 are shown in Table 1, originally prepared by E.H. Bourquard Associates, Inc.

Table 1 PROJECTED DELAWARE RIVER WITHDRAWALS (Average Stream Flow Year)

Month Water Supply With-Cool. Water Total Withdrawals, MG of drawals in MG in:

Withdrawal from Delaware River Year 1985 1990 2000 in MG 1985 1990 2000 January u

0 0

220 220 220 220 February 0

0 0

199 199 199 199 March 0

0 10 220 220 220 230 April 0

30 90 213 213 243 303 May 101 205 370 220 321 425 500 June 203 400 740 1,205 1,408 1,605 1,945 July 289 470 685 1,265 1,554 1,735 1,950

' August 277 455 670 1,258 1,535 1,713 1,928 September 0

0 0

1,178 1,178 1,178 1,178 October 0

0 25 1,149 1,149 1,149 1,174 November 0

0 30 213 213 213 243 December 0

0 20 220 220 220 240 Annual 870 1,560 2,640 7,560 8,430 9,120 10,200 IDTE:

The above withdrawals provide for 5.3/2.73 ngd minimum flow releases in the North Branch and a 6.5 ngd minimum flow release in the East Branch, and include a 10% allowance for possible losses in transit. l

i e

The 10% allowance for possible losses in transit includes an allowance for channel storage, travel time, scheduling and evaporation. Because the natural streams being utilized during the pumping procedure are not uni-fonn tnroughout the entire systs, smo of the " released"'

water will reach the water intake ahead of tune and not be withdrawn; or sme of the water will lag behind the withdrawal period and not be needed. In either case, the water is " lost" to the public water supply syst m and will becme part of the stream flow downstream of the intake. Because of the expenses involved with pumping, the program will be refined once actual con-ditions have been observed to muumize these losses.

It should be noted that this program and the re-sults itsized in Table No. 1 are a result of a simu-lated " typical" average stream flow year. If the entire Point Pleasant Project is approved, the program will be adjusted to reflect actual conditions - not simply i

typical ones.

l The cooling water withdrawals shown in Table 1 are fr m an Environmental Report Operating License, prepared by Philadelphia Electric Cmpany (PECO) for the Limerick Station. Again, these are estimated withdrawals based on weekly mean flows of (1) daily Perkimen Creek flows at Graterford, (2) daily Schuylkill River flows and taperatures at Pottstown, and (3) hourly meterology frm the ICS tower at the Station, during the period 1974-1977.

i Emergency Operations l

During drought and other water supply mergencies, withdrawals and operations for both public water supply and cooling water purposes are subject to modification or suspension, as directed by the Delaware River Basin Ccmnission pursuant to Article 10 of the Delaware Cm-pact, or by the Pennsylvania Department of Environmental i

Resources and Pennsylvania Dnergency Manag ment Agency pursuant to state statute.

l I

i 2.

Presently Appealed Actions The appeals presently before the Board have been very briefly described i

in the Procedural Statenent opening this adjudication. Additional details of these presently appealed actions are as follows.

Applications for permits for the structures necessary to divert and release the water of the Delaware were filed by NWRA and PECO in 1981 and early I

1982. In addition, NWRA requested DER to certify to the Corps of Engineers pursuant to S401 of the Federal Clean Water Act that construction of the intake in the Delaware and reahgnment of the channel of Pine Run (a tributary to the j

Neshaminy Creek) would not permanently violate state water quality standards.

The Department conducted a very thorough and wide-ranging review and analysis of the possible environmental effects of the proposed project and its other harms and benefits.

It then sutmarized its review in DER Exhibit 2, the Environmental Assessment Report frcm which we have quoted at length innediately supm. In September 1982, DER issued the S401 certification and the following i~

permits pursuant to the Dam Safety and Encroachnents Act, 32 P.S. 5693.1 et seq.,

the Flood Plain Managenent Act, 32 P.S. S679.101 et seq. and the Clean Streams i

Law, 35 P.S. S691.1 et seq.:

Permit No. DC 09-81 to NWRA for tre water intake structure in the Delaware River, an intake conduit crossing the Delaware Canal, a water main crossing Hickory Creek and an energy dissipator and outlet channel in the North Branch;-

Permit No. ENC 09-51 to PEDO for a water main cross-ing various streams in Plumstead and Bedminister Townships, Bucks County;-

Permit No. ' DC 09-77 to PEco for an outfall struc-ture, energy dissipator and channel stabilization l

in the East Branch; and l

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Permit No. Dam 09-181 to PECO for the Bradshaw Dam and Reservoir.

I,

The certification and the permits were appealed. Besides taking these appealed-fran actions (which will be analyzed below) the Department took another action which is before us on appeal, viz., the issuance of a letter dated June 22, 1982 fran DER official Richard L. Hinkle to counsel for IMRA, and also to counsel for the instant appellants, informing NNPA that no NPDES permit would be required for the release of water by NWPA to the North Branch. This determination was appealed by Del-Aware Unlimited, Inc. and docketed at Docket No. 82-177-M.

3.

Previous Related Actions It is very important for a proper perspective to note that the above actions are only the most recent of a multitude of official actions of various administrative agencies regarding aspects of the Point Pleasant Project. We again quote fran DER E@ibit 2:

DER and DRBC Reviews The basic Point Pleasant-Neshaminy Water Supply Project resulted fran the 1966 Water Resources Study -

Neshaminy Creek Basin, Pennsylvania (Pennsylvania Water Resources Bulletin No. 2), a joint report prepared by the Pennsylvania Departnent of Forests and Waters (now Department of Environmental Resources), the Soil Con-servation Service of the U.S. Department of Agriculture, and Bucks and Montganery Counties.

The fundamental watershed project for Neshaminy Creek was approved by the Delaware River Basin Catmission and added to the Delaware River Basin Canprehensive Plan on October 26, 1966, in Neshaminy Creek Watershed Project, Bucks and Montgomery Counties, Pa. DRBC Docket No. D-65-76-CP.

This decision was supplemented by Bucks and Montgomery County Commissioners, Heshaminy

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Creek Watershed Project, Bucks and Montgomery Counties, Pa., DRBC Docket No. D-65-76 CP(2) (January 25, 1967).

The supplemental docket added the entire multipurpose project as described in the 1966 Water Resources Study to the DRBC Canprehensive Plan.

In 1970, Bucks County prepared and subnitted the Feasibility Study of Delaware River Pumping Facilities at Point Pleasant, Pennsylvania, which assessed the proposed design of the Point Pleasant diversion facili-ties to provide public water supply in Bucks and l

Montganery Counties, together with water quality l

augmentation for the Neshaminy Creek.

4 The Pennsylvania Water and Power Resources Board, on Decenber 8,1970, issued to Bucks County Water

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Allocation Permit No. WA-649, authorizing the with-drawal of Delaware River water for public water sup-ply in the following amounts:

E To To To 4

1980 1990 1995 i

i f

Average withdrawal, mJd 5

15 35 Maxinuzn withdrawal, ugd 35 60 75

'Ihe permit recognized that the county had plans to puup additional quantities of water fran the Delaware River j-at Point Pleasant for water quality augmentation in the Neshaminy Creek watershed and for industrial water supply in Montganery County via Perkianen Creek.

I On March 17, 1971, DRBC approved Comissioners of Bucks County, Point Pleasant Pumping Station, Bucks County, Pa., DRBC Docket No. D-65-76 CP(3). This docket added the proposed project to DRBC's Canprehensive Plan, but deferred approval pursuant to Section 3.8 of the Can-pact until subnission of final plans. The facilities included were a pumping station at Point; Pleasant with I

the capacity and layout to handle all the required pumpage of the Delaware River water to the Neshaminy Basin, plus the proposed pumpage into the Perkianen Creek Basin. A 66-inch transmission main, consisting of 14,000 feet of concrete pressure pipe and 5,300 feet j

of culvert pipe, would convey the total pumpage fran j

the Point Pleasant Station to the terminus of this l

main, near Bradshaw Road, where the pumpage would be l

divided. The Neshaminy pumpage would flow by gravity through a 60-inch concrete culvert into the North Branch and on to Reservoir PA 617, Lake Galena. The Perkianen pumpage would flow into a 35 ng open-storage reservoir, fran where it would be punped by means of a 46 mgd ca-pacity station through 30,300 feet of 42-inch concrete I

presure pipe to the start of the Perkianen watershed, fran which point the water would flow by gravity in 6,300 feet of 36-inch concrete culvert pipe to the East Branch of Perkianen Creek. As part of the 1971 docket review, DRBC prepared and processed an environ-mental statement for the project in accordance with j

the National Environmental Policy Act, entitled i

" Financial Statement - Environmental Impact of the i

Fivposed Point Pleasant Diversion Plan, Bucks and l

Montganery Counties, Pennsylvania".

i l

i i - _.

1 In February 1973, DRBC prepared and subnitted to the Council on Environmental Quality (CEQ) an ex-panded Final Environmental Impact Statment on the Point Pleasant Diversion Plan, Bucks and Montgmery

[

Counties, Pennsylvania. The Final EIS concluded that the proposed project would be beneficial to the Neshaminy and Perkimen watersheds and not detri-mental to the Delaware River, provided that specific, listed mitigating measures were observed.

i Meanwhile, due to the changes in growth patterns in Montgmery and Bucks Counties during the late l

sixties and continuing into the seventies, there was continued adjustment of the projected population to be served by the proposed public water supply facilities.

The population projections and predicted suppleentary surface water requirements of the Central Bucks County Service Area were updated in 1972, by a report entitled Master Plan for Water Supply - Bucks County, Pennsylvania -

1970. In 1975, further population projection adjust-ments were made resulting in amendments to the 1970 Master Plan for Water Supply. The adjustments were not of such nagnitude to require change in the design capacities of the proposed plant. The final design of the plant started in 1975.

In early 1976, it was deemed necessary to review once again the projected population and resulting water needs. As a result, the final design of the treatment plant was halted to permit the cmpletion of this re-view. During the period throughout 1976 and into early 1977, three. additional studies of the Service Area were cmpleted: The Central Bucks County Water Supply Study; the Water Supply Study for Montgmery County; and the Interim Projections Report for Bucks, Chester, Delaware, Montgcmery, Philadelphia Counties, Pennsylvania. Based on these studies, the design capacity of the treatment plant was selected to remain at 20 ngd for the initial installation; however, the ultimate capacity was reduced frm 80 to 40 ngd to meet the supplemental water needs of the service area.

In September of 1978, the Neshaminy Water Resources Authority filed with the Pennsylvania Department of Environ-mental Resources a water allocation permit application for the down-sized public water supply project. After an c

k i

o extensive evaluation, sumurized in the Report on the Application of the Neshaminy Water Resources Authority for Water Allocation fran Pine Run, North Branch Neshaminy Creek, and Delaware River (November 1,1978)

(" DER Water Allocation Report"), the Departnent approved Water Alloca-tion Permit No. WA-0978601, which superseded and replaced the permit No. WA-649 previously issued on Decmber 8, 1970, by the Pennsylvania Water and Power Resources Board.

Concurrent with review of the basic Point Pleasant project and Neshanuny water supply system, a series of reviews were conducted regarding the Limerick Nuclear Generating Station.

In nadition to providing treated water supply to Central Bucks and Montgcnery Counties, the proposed Point Pleasant Project will withdraw Delaware River water for transfer via Perkiomen Creek to be used by the Philadel-phia Electric Cm.pany (PECO) for cooling purposes at its Limerick Electric Generating Station located along the Schuylkill River near Pottstown, Pennsylvania.

DRBC Docket No. D-65-76 CP(3) (March 17,1971) (refer-enced above), added the Perkianen transfer element for Limerick to the overall Point Pleasant-Neshaminy project.

As noted above, a Final Environmental Impact Statement on the Point Pleasant Diversion Plan, covering both the public water supply and Limerick transfers, was pre' pared by DRBC and filed with the Council on Environmental Quality in February 1973. The Final EIS of 1973, after considering various alternatives, concluded that a with-drawal frca the Delaware River, subject to certain conditions, was necessary and proper to meet cooling water needs for the Limerick Station, and that such a withdrawal, if operated within the stated limitations, would not have a significant adverse effect on the environment.

The DRBC subsequently approved Philadelphia Electric Company, Limerick Nuclear Generating Station, Limerick Tounship, Montgomery County, Pennsylvania, DRBC Docket No. D-69-2ZO CP (March 29, 1973). This docket decision conditionally approved the water supply features of the project, subject to a specific list of conditions, particu-larly conditions relating to limits on diversions fran the Schuylkill, Perkicmen and Delaware during low flow periods. One of the conditions for such withdrawal was that the DRBC, at its sole discretion, would determine the adequacy of storage capacity in the basin necessary 4

to provide sufficient water _to meet PECO's consumptive water use at Limerick and to maintain a 3,000 cfs flow i

in the Delaware River at the Trenton gauge.

Approval of the water supply elements was based, at least in part, upon the previously approved Final EIS on the Point Pleasant Project. However, DRBC deferred 4

a final decision on the Limerick Station g se_ until completion of a Final EIS by the Atanic Energy Cmmission (AEC) on the nuclear power plant and related facilities.

1 In November 1973, the U.S. AtcInic Energy Ccmnission's Directorate of Licensing ccmpleted the Final Environmental Statement related to the Proposed Limerick Generating Station, Units 1 and 2, Philadelphia Electric C mpany.

l Based on this EIS, the previous EIS prepared by DRBC, and the record ccInpiled at hearings before the Atanic Safety and Licensing Board and the Appeal Board of the Nuclear Regulatory Ccmnission (NBC), the NBC issued to 4

Philadelphia Electric Ccrnpany construction permits for the Limerick plant in March 1975. An extensive (96 pages) decision was rendered by the Atcmic Safety and Licensing Appea1 Board. See In the Matter of Philadelphia Electric i

Company (Limerick Generating Station, Units i and 2),

Docket Nos. 50-352 and 50-353 (March 19,1975). The decision addressed specifically numerous contentions made by inter-4 venors in the AEC/NBC pr W ings concerning the adequacy of the Final EIS prepared in 1973 by the Atomic Energy Camission.

k The Atcmic Safety and Licensing Appeal Board's de-

]

cision, and NRC's issuance of construction permits for limerick, were appealed to the Third Circuit Federal Court of Appeals by the project's opponents. The appellants challenged the adequacy of the environmental impact statements relied on by the NBC, both the EIS prepared by the Atanic Energy Ccmnission and that prepared by DRBC in February 1973. In particularly, appellants charged l

that the previous environmental impact statements had not properly assessed the impacts of water supply ele-ments of the Limerick project, including the Point

[

Pleasant diversion.

Based on the A1E's Final EIS and DRBC's own EIS of 1973, DRBC issued notice of intention to act upon Docket

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l No. D-69-210 CP (Supplement No.1) in July 1974. Pro-ceedings to amend the Ccmnission's earlier decision on the Limerick Station, however, were deferred while objections filed by the Environmental Coalition for Nuclear Power were heani by a hearing officer appointed by DFBC.

Following hearings and argument before the Ccmnission, in November 1975, DRBC proceeded with final action on the docket concerning construction of Limerick and related water supply facilities. Philadelphia Electric Company, Limerick Nuclear Generating Station, Limerick Township, Montgomery County, Pennsylvania., DRBC Docket No.

D-69-210 CP (Final) (Novmber 5,1975) included the Limerick project in the DRBC Cmprehensive Plan. The docket further gave Cmpact Section 3.8 approval to con-struction of the Limerick Station, together with the Schuylkill River and Perkicrnen Creek intake and diversion structures. The final docket imposed a series of con-ditions limiting the diversions and requiring specific measures to mitigate potential environmental impacts.

Condition (c) required:

'If...the storage will not be adequate for all protected needs of the Basin, the applicant will build or cause to be built, at its own expense, at a location approved by the Ccmnission, a reser-voir of sufficient storage capacity to assure the water supply needed for codsumptive use by the Limerick plant, during periods when such use would reduce the flow in the Delaware River at the Trenton gage below 3,000 cfs. Storage and release of water in such facility will be under the Ccanission's regulation, at the expense of the applicant.'

This DRBC docket decision was filed with the 'Ihird Circuit of Appeals prior to its decision on the then pending appeals of the Nuclear Regulatory Ccmnission's action.

This Third Circuit's decision on the NRC appeals was rendered in Environmental Coalition of Nuclear Pouer, i

Limerick Ecology Action, and Delaware Valley Committee for Protection of the Environment v. Nuclear Regulatory Commission and Philadelphia Electric Company, No. 75-1421 (Novsber 12, 1975). The Court of Appeals rejected the challenges to the environmental impact statements and, in essence, found the previous environmental assessments prepared by DRBC and the NRC adequate to satisfy the pur-poses of NEPA. The Third CJecuit's decision and order were not appealed to the L.. Supreme Court.

A year later, on Septaber 30, 1976, DRBC adopted Resolutim No. 76-13, concerning provision of supple-mentary water supply storage for certain power projects, including both the Limerick and Hope Creek Nuclear Gen-erating Stations. The Cmmission exercised its authority under conditions set forth in earlier DRBC approval of Docket Nos. D-69-210 CP (Limerick) and D-73-193 CP (Hope Creek), and ordered the involved utility cmpanies

'to proceed to develop, or cause to be developed, an application under Section 3.8 of the Cm pact, supported by an environmental report in cmpliance with the Ccm-mission's rules and regulations, for the construction of the required supplement storage.' The resolution further required that the application and acccupanying environmental report be sutmitted by October 1,1977.

The cmbined project once again came before DRBC in proceedings ccmrencing in 1979, resulting in decisions rendered in early 1981. On January 27, 1979, PECO filed with DRBC application pursuant to Section 3.8 of the Ccm-pact for approval of the construction of its portions of the Point Pleasant pumping station, Bradshaw Reservoir, and transmission lines to the Perkicrnen Creek. On July 5, 1979, NWRA filed application pursuant to Section 3.8 of the Cmpact for approval of construction of its portions of the Point Pleasant pumping station, the water treatment plant at Chalfont and the various trans-mission lines. Both Section 3.8 applications were sup-ported by detailed ' environmental reports,' prepared by the applicants as required by the then applicable DRBC regulations, 18 C.F.R. Sections 401.51-401.53 (1977).

DRBC had available to it three final environmental impact statements, together with all the supporting data, as of the time it received the present PECO and NWRA applications. They were:

(1) ' Point Pleasant Diversion Plan, Bucks and Montgcnery Counties,' sulmitted by DRBC in 1973; (2) ' Limerick Generating Station, Units 1 and 2,'

sutnitted by the AEC in 1973; and (3) 'Neshaminy Creek Watershed,' submitted by U.S. Department of Agriculture, l u

..____.m_.

t t-Soil Conservation Service in 1976. Each of these plans 1

incorporated the concept of a withdrawal of a maxinazn 4

of 150 mgd.to the Perkicxnen Creek for use as additional 4

cooling water at Limerick, and the balance of the water to flow into the headwaters of the Neshaminy watershed j

j with a withdrawal of approximately an equal quantity of water at Chalfont for water treatment and distribution for public conseption in sections of Bucks and Montgcmery

}

Counties.

i Pursuant to DRBC's regulations on processing m =wrt j

Section 3.8 applications, DRBC prepared an environmental assessment on the projects.. '1he Executive Director of DRBC, on the basis of the envirorynental assessment, reoczn-hueed a ' negative declaration,' based on his conclusion that the proposed projects would have no significant ad-verse impacts on the environment. Public notice of intent to issue a negative declaration and of the preparation of the environmental assessment was given and a public hearing i

was held by DRBC on the Section 3.8 applications on November 18, 1980.

In August, 1980, DRBC prepared and published a ' Final

{-

Environmental Assessment for the Neshaminy Water Supply i

Systen' project sponsored by NWRA and PDJ0. This h = nt i

contained approximately 230 pages, with cross-references

[

and references by incorporation to voluminous h a nts, studies, reports and cmments by individuals and public j-

- and private organizations. On February 18, 1981, DRBC granted the Section 3.8 applications of both PECO and NWRA, subject to certain expressed conditions and limi-

~

tations. 'Ihe construction details of the project were t

j added to the Cmprehensive Plan to the extent that such i

details were contained in the applications and had not i

previously been approved and included in the prior actions j

of DRBC.

1

{

These actions by DRBC were the subject of appeals filed before the U.S. District Court, Eastern District of Pennsylvania, in the matter of Delauare Water Dner-j gency Croup, v. Gerald N. Hansler, 536 F. Supp. 26 (E.D.

Pa.,1981) aff'd No. 81-2622 (3d Cir., March 19, 1982).

l

'Ihe primary issue before the court was whether DRBC had fully and fairly considered the environmental impacts of l

the proposed project, with particular anphasis on impacts i

upon basin water resources.

+

t' In rendering its decision rejecting these challenges, I

the District Court concluded:

I 4

{=

'The record in this case makes four matters quite obvious. First, there have been at-l least three prior EIS's on the basis plan N,.

x-. - -. -.. -. ~ - - - -

-. 2

and concept, all of which were available and con-i sidered by DRBC. With the Invel B study, there have been at least four EIS's prepared. Second, the project has been under constant study and updating of factual information fr m the plan's inception to the present time, and indeed is subject to ongoing studies. Third, the only substantial change frm heretofore approved i

plans based on prior environmental inpact state-i ments and other studies, is a substantial re-duction in the quantity of water to be withdrawn i

for NWRA's water treatment plant. Fourth, the environmental assessment prepared is detailed, up-to-date and adequately considers any changed ciremstances. '

By Capact signed by the four Basin States and the Federal Government, DRBC was created as the primary and lead agency of the parties to plan, coordinate and manage the water resources of this basin.

It is DRBC's responsibility, recog-nized by Federal law, to equitably apportion the waters of the basin among the States and their respective political sub-divisions, and to adopt and impls ent policies for the develop-ment, conservation and managment cf those resources.

This project and its operating conditions were made a part of the basin's Ccrcprehensive Plan by unanimous action taken re-peatedly over the past decade, and most recently in February 4

1981. Under the terms of the Ccmpact, especially Cmpact Arti-cle 11 and Section 15.l(s) of Public Iaw 87-328, all Federal and State agencies are bound to recognize and act in a manner consis-tent with those water management policies an1 actions.

U.S. Army Corps of Engineers Review In W 2 1980, the Neshaminy Water Resources Authority applied to the U.S. Army Corps of Engineers for a permit to (1) construct a water intake structure in the Delaware River and under the Pennsylvania Canal at Point Pleasant (Applica-tion No. NAPOP-R-80-0534-3); and (2) to relocate the channel of Pine Run and reshape the channel of North Branch Neshaminy Creek at Chalfont Borough (Application No. NAEOP-R-80-0813-3).

On April 6, 1981, the Corps issued a Public Notice tint NWRA had applied for the above-mentioned permits. On August 10, 1981, the Corps issued a Notice of Public Hearing concerning i

NWRA's applications and scheduled the hearing for September 15, 1981. The hearing was held as scheduled. A supplement to the original Public Notice for the intake structure appli-cation indicated sme revisions to the project was issued February 9, 1982.

Since the original subnission, the Corps has been evalu-ating these proposals. As of this date, the Corps has not taken any final action on these applications.

i.

l The Corps has undertaken its own enviromental assessment of the proposed project, and pursued con-sultation procedures required under the Fish and Wildlife Coordination Act, the Endangered Species i

Act, and the National Historic and Preservation Act to assess potential inpacts on historical resources, fish and wildlife, and endangered species.

i i

B.

NPDES PERMIT Now that we have described the Point Pleasant Project and summarized a.

its tortured course through other administrative agencies, the stage is set to examine the issues raised by the appellants in the light of the record. We 4

{

begin this task with the legal issue raised by appellants' appeal docketed at i

}

Docket No. 82-177-G, to wit, whether DER acted arbitrarily and capriciously (or I

in violation of law) in failing to require NPDES permits for the diversion of a

f Delaware River water into the North Branch of Neshaminy Creek and East Branch of Perkimen Creek '(" North Branch" and " East Branch", respectively).

In point of fact, DER has made no explicit decision regarding the need 4

i for a' NPDES permit for the diversion of water into the East Branch (it only made an

}

explicit written decision regarding the North Branch because it was requested to I

do so by the counsel for NWRA and the appellants). Therefore, we could hold that i

j as to the East Branch there has been no final decision of DER regarding the NPDES permit such as to give this board jurisdiction. Standard Lime a Refractories Co.

j

v. DER, 2 Pa. Chwlth. Ct. 434, 279 A.2d 383 (1971);' DER v. Neu Enterprise Stone i

and Lime Co., Inc., 25 Pa. Cnwlth. Ct. 389 (1976). We shall not, however, follow such a course. Instead, we shall treat the determination regarding the North Branch as though it also applied to the East Branch. We shall do this in part i

because none of the parties has raised this jurisdictional issue in-the lengthy l

and w g tent briefs they filed in the issue; moreover, while the board does I

i have authority to consider its jurisdiction sua sponte, it should not sua sponte

. dismiss an appeal on jursidictional grounds in any but the clearest l circumstances, especially an appeal which has been before the Board as long as the instant =Imal (at Docket No. 82-177-G).

1 a

)

Besides, under the instant circumstances our lack of jurisdiction on this East Branch NPDES permit issue is not altogether clear. On the contrary we hold we do have jurisdiction, because we find that DER made an implicit decision regarding the need for a NPDES permit for the discharge to the East Branch.

As DER acknowledged in its Environmental Assessment, the above permit was issued pursuant to DER's duties as a trustee under Article I, Section 27 of the Pennsylvania Constitution, which inter alia requires "cmpliance with all applicable statutes and regulations relevant to the protection of the Camon-wealth's public natural resources..." Payne v. Kassab,11 Pa. Ccrmonwealth Ct.

14, 312 A.2d 86 (1973). This duty is repeated in 25 Pa. Code Chapter 105, which specifically governs the issuance of the above permit.

Clearly, the Federal Clean Water Act, and especially the NPDES permit program of that Act (which was delegated to the Camonwealth by virtue of an agrement dated June 1978), is a " statute relevant to the protection of Pennsyl-vania's public natural resources"; thus DER would have had to determine that this federal Act had been cmplied with prior to issuing the above Chapter 105 permit. The reasoning upon which DER relies for its North Branch decision, being primarily a legal analysis, would apply with equal force to the East Branch.

NNFA also argues that the EHB lacks jurisdiction (under the Federal Clean Water Act) because the appellants have not stated a cause of action under federal law. NWRA cites various federal cases, all of which discuss the rights of plaintiffs to begin actions in federal courts.

NWRA, however, has neglected to cite the controlling EHB decisions.

It is the duty of this board to review (properly appealed) actions of DER, not 3.

This implicit decision was not unlike DER's implicit finding of a public necessity for the right of way across the Poosevelt State Park (see discussion below). DER's decision was implicit in its issuance of Permit Ib. ENC 09-77 L

to PE O for an outfall structure in the East Branch.

l

o to review actions of any federal agency or to act as a court of original juris-diction for environmental causes of action. When DER takes an action under federal law, our jurisdiction rests not upon the federal statute but rather upon S1921A of the Achu.nistrative Code of 1929, 71 P.S. S510-21.

Latrobe Municipal Authority v. DER, 1975 EHB 422. Our jurisdiction can be neither expanded nor contracted by federal statutes.

1.

Standing Before we can proceed to the merits of the "no NPDES decision", we still must take up another jurisdictional issue, namely the appellants' standing to appeal DER's decision not to require an NPDES permit for the diversion of water frm the Delaware River to the North Branch of the Neshaminy. NWRA argues that the appellants do not have standing to appeal this decision.4 he has been no corresponding challenge to the appellants' standing to appeal DER's failure to require an NPDES permit for discharge into the East Branch of the Perkimen (see our jurisdictional discussion inmediately) supra, concerning DER's East Branch "no NPDES permit" decision).

The relevant facts concerning the appellants' standing to raise the issue of DER's "no NPDES decision" for the North Branch are as follows. During the hearing the appellants, notably Del-Aware, Inc., failed to place on the record the name of any Del-Aware m mber who reasonably believably could have had standing to raise this NPDES issue; for instance, Del-Aware failed to place on the record the name of any Del-Aware m mber residing upon the North Branch.

This failure was explained by Del-Aware's counsel as having resulted frm an NWRA law suit seeking damages against Del-Aware's members. NNPA admitted that 1

4.

Although we here (section III B of this adjudication) are concerned primarily with the "no NPDES decision", our discussion infra of the appellants' l

standing to appeal the "no NPDES decision" for the North Branch (the appeal docketed at 82-177-G) applies equally well to the appellants' standing to appeal DER's grant of Permit No. ENC 90-81 to NWRA for, inter alia. construction of an energy dissipator and outlet channel in the North Branch (the appeal docketed at 82-219-G).,

it had filed such a suit, and refused to hold harmless any Del-Aware m mber whose identity was revealed in these proceedings.

Therefore, the Board requested, and DER's counsel generously agreed, that Del-Aware would disclose the identity of relevant members to DER, who j

would undertake to verify this information on behalf of all parties. The i

information was not inmediately forthccming fra Del-Aware. On May 17, 1983, the last day of the evidentiary hearings on these appeals, DER informed the l

Board and the parties that this information had not been received, although Del-Aware's counsel stated that he thought it had been furnished (Tr. 4262-64).

WRA's counsel then renewed his previously offered motion to dismiss Del-Aware's I

4 appeals (of NWRA's construction permit and of the North Branch "no NPDES decision")

{

}

for lack of stand.ing; NWRA's counsel also argued that the facts before the j

Board concerning Del-Aware's standing should not be suppleented by any evidence f

i made available after the evidentiary hearing was closed, when NWRA would not be

{

g able to cross-examine.

[

D Nevertheless, Mr. Harnish, who at the time still was the responsible i

I

{

j Board Member in charge of these appeals, ruled that-additional information bearing B

I on Del-Aware's standing would be accepted, provided it was furnished by Del-Aware prior to subnission of its brief (Tr. 4265). On June 27 and June 29, 1983, i

Edward Gerjuoy-the Board Mernber who by then had taken over these appeals following Mr. Harnish's resignation fra the Board-issued Orders which, inter j

a Ha, informed the parties of the schedule for briefing the issues involved in the appeal docketed at 82-177-H (now 82-177-G), the appeal of DER's "no NPDE3 decision" for the North Branch. Del-Aware's brief in response to these Board i

Orders was filed July 20, 1983; this brief did not discuss Del-Aware's standing, i

and was not accmpanied by any new information bearing on Del-Aware's standing.

WRA's brief in response to the aforementioned Board Orders, filed August 8, i

f iy -

e--,

,e-

,-w

.-~.

,.,----,n--

3-c.

4.

)

J 1983, asserted that Del-Aware had not yet filed the requested additional infor-mation, and renewed its argument that Del-Aware's appeals ncw docketed at 82-177-G and 82-219-G be dismissed for lack of standing.

The Board has not yet ruled on any of the issues argued in NWRA's brief, including the standing issue; those rulings have been deferred to this adjudica-tion. In the meantime, between August 8,1983 and the date'of this adjudication, other events relevant to this standing issue did occur. ~ On October 6,1983, DER's counsel wrote the Board as follows (in pertinent part):

Investigation of the first line provided by Mr.

Sugannan proved inconclusive, so after the hearing was over, Mr. Sugarman provided me with one aMitional 4

name and address. I had an experienced msnber of DER's technical staff investigate the alleged prop-erty ownership in the Bucks County Courthouse

]

records. He found that the named individual mamM r j

of Del-ANARE does indeed own riparian property i

along the North Branch Neshaminy Creek in the area to be affected by the water supply portion of the Point Pleasant project.

i

'this' October 6,1983 letter frcm DER's counsel does not state when this aMitional.

i information was receivcf. frca Del-Aware's counsel, Mr. Sugarman. However, the Board has been informed by DER's counsel-and sees absolutely no reason to doubt-j that DER received the additional name and address on or about June 8,1983, well before Del-Aware's aforenentioned brief was sutnitted.

I On reWer 8,1983, Mr. Gerjuoy presided over a non-evidentiary 4

hearing which disposed of various pending matters in these appeals.- At this 1a hearing, the issue of Del-Aware's standing again was discussed. The Board re-fused to accept NWRA's argtrnent that Del-Aware's failure to furnish evidence i

i sufficient to confer standing before the evidentiary hearings closed was per se reason to dismiss the questioned appeals (Tr. C+_-4er 8, 1983, pp. 58-9).

i However, the Board agrees that evidence justifying standing should be on the

~

record; as the Board said, "giving a secret list to DER,...,is definitely i

I '

y

,e.-

~,- -

~

,e

I irregular." Del-Aware therefore was ordered to provide 1&Tia with a list of Del-Aware members who could confer standing on Del-Aware, including addresses, distances frm the North Branch of properties owned, etc. IMBA was given the opportunity to respond to the list, and it was understood that, if necessary, the hearings would be reopened to take evidence under oath on any of Del-Aware's factual allegations which were critical to Del-Aware's standing and were dis-puted by NWRA.

(See paragraph 5 of this Board's Order dated December 12, 1983, at Docket Nos. 82-177-G and 82-219-G.)

The list ordered on December 8, 1983 was filed by Del-Aware on Dec eber 22, 1983. In pertinent part, the list reads as follows:

The following nunbers of Del-AWARE Unlimited, Inc., who live on and near the North Branch Neshaminy Creek, and use and enjoy the creek, will be directly and substantially impacted by NWRA's use of the Creek as a faucec to carry water frm the Bradshaw Reservoir to the proposed Chalfont treatment plant:

a.

Alistair Kyle Fretz-Clinton House Fountainville, PA 18923 Alistair Kyle resides at Fretz-Clinton House, approximately two miles north of the proposed discharge point into the North Branch Neshaminy Creek in the area of the proposed discharge. He enjoys the pure and unpolluted state of the creek, and his enjoyment would be directly impacted by NWRA's proposed action.

Mr. Kyle has been a contributing merrber of Del-AWARE since April 15, 1983.

b.

John and Alice Thorpe Carverville & Street Rds.

R. D. #2 Doylestown, PA 18901 John and Alice Thorpe live and own property t

approximately two miles south of the affected portion of the North Branch Neshaminy. John Thorpe, in addition to being a m mber of Del-AWARE, is affiliated with the Paunacussing Watershed Association, and is immediately concerned with the degradation of,the water quality in the North Branch Neshaminy. Both Alice and John Thorpe enjoy the unspoiled beauty of the North Branch. They have been contributing nunbers of Del-M@@E sinc.a January 15, 1983.

i c.

Reginald and Rosalind Snyder 325 Bradford Ave.

Warrington, PA Reginald and Rosalind Snyder, who live in Warrington, own property and a hane within several hundred yards of the affected portion of the North Branch, at the intersection of Curly Hill Road and Poute 611. The hane is occupied by their son, David Snyder. Reginald and Rosalind Snyder frequently visit their son.and when they do, they enjoy hiking and walking along the North Branch and they enjoy viewing the North Branch in its present unsroiled state fran their property. Reginald and Rosalind s

Snyder first contributed to Del-A E RE Unlimited,

/

Inc. in 1981.

A-f l

[

d.

David Snyder N'

8 Poplar Lane N

RD #5 Doylestown, PA 18901 David Snyder resides in the ham owned by his parents Rosalind and Reginald Snyder, within several hundred yards and within view of the North Branch Neshaminy. He frequently takes hikes up and down the

, /,

North Branch, and enjoys the view he has of it fran his hane on a daily basis. The North Branch is a s

very small stream at that location, and Mr. Snyder fears that the flow fran NWRA's proposed discharge would radically alter its character, and that he would be adversely affected thereby. Mr. Snyder has been a contributing member of Del-AE RE Unlimited, Inc. since January, 1983.

e.

Jonathan and Mary Davenport Gardenville-Pt. Pleasant Pike Gardenville, PA 18926 Jonathan and Mary Daverr/rt liva and own property within the 1mnediate &, nie and within view of the North Branch, cl'e. 'a ', point of discharge. They have lived u.ae n...hirty years.

The Davenports regularly walk along the stream, and enjoy its unspoiled character, which they can view fran their hane, looking down across an intervening cornfield. They would be directly adversely impacted in their enjoyment of the stream by NWRA's discharge of water into the North Branch, which would substan-ially increase its flow and change its character.

[

John and Mary Davenport first contributed to Del-AERE Unlimited, Inc. approximately two years ago. ;.

l

f.

Susan Allison Pt. Pleasant Pike Gardenville, PA 18926 Susan Allison lives and owns property in the immediate vicinity of the North Branch, near the point of discharge. She often hikes along the creek, and enjoys its unspoiled character. Her use and enjoy-ment would be directly affected by NWRA's proposed discharge into the North Branch. FLs. Allison has been a contributing member of Del-AWARE Unlimited, Inc. since Novcmber, 1982.

g.

David Windhold Dave's Sporting Goods 1127 North Easton Road Doylestown, PA 18901 David Windhold owns a six acre hcmestead on North Eastern Road which abuts approximately 500 yards of the affected portion of the North Branch Neshaminy Creek. On the property is a residence occupied by Mr. Windhold's daughter Dianne and her husband. This lot fronts on approximately 400 yards of the Creek.

Also located on the property is Mr. Windhold's busi-ness, Dave's Sporting Goods, the parking lot of which abuts approximately 100 yards of the Creek.

Mr. Windhold and his family m mbers hike along the stream, use and enjoy it on a daily basis.

Scme of Mr. Windhold's custctners fish in the Creek, specifically for catfish and bass. In the past, flows frcra the North Branch have at times overflowed its banks and flooded his parking lot. Mr. Windhold fears that the hWRA discharge into the North Branch will increase the floodmg problens on his property.

Thus, Mr. Windhold and his family merrbers are exposed to intnediate potential impacts such as flooding, erosion, and interference with their daily use and enjoyment of the North Branch.

Mr. Windhold has been a supporter of Del-AWARE Unlimited, Inc. for the past two years, and has been contributions in the name of Dave's Sporting Goods.

hWPA has argued, in its response dated January 20, 1984, that the above list is insufficient to confer standing on Del-Aware. NWRA points out, first of all, that Alistair Kyle, John and Alice Thorpe, David Snyder and Susan Allison are described in the above list as having been " contributing manbers" of 96-

c Del-Aware no earlier than Nov mber, 1982. The appeal docketed at 82-177-G was filed on July 21, 1982; the appeal docketed at 82-219-G was filed on September 20, 1982. Persons who became umbers of Del-Aware after the appeals were filed I

cannot now be named as justification for granting Del-Aware standing to appeal; Del-Aware needed standing at the time it appealed. Consequently the persons named earlier in this paragraph do not confer standing on Del-Aware to prosecute i

the instant appeals.

On the other hand, it appears that the other persons named by Del-Aware, though also objected to by NWRA, can confer standing on Del-Aware.

In particular, the Board now has been informed by DER (and again sees no reason to doubt) that Reginald and Rosalind Snyder are the riparian property owners originally idenfi-fled by Del-Aware on or about June 8,1983 (see our quotation, supra, frm DER's October 6, 1983 letter to the Board). Furthernare, NWRA concedes (January 20, 1984 response, p. 9) that David Windhold owns property fronting on the North ThesepropertyinterestsoftheSnydersandWbdholdaresufficientto Branch.

confer standing on these individuals to appeal DER actions possibly affecting the North Branch, under the test of William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa.168, 346 A.2d 269 (1975).

However, NWRA also objects that Del-Aware has not shown these just-named individuals were members of Del-Aware when the appeal was filed. We agree with this objection of NWRA's. The Snyders are said to have "first contributed" to Del-Aware in 1981; Mr. Windhold is termed "a supporter" of Del-Aware for the past two years. These phrases do not obviously make the Snyders or Windhold members of Del-Aware at the pertinent time. We realize that citizen groups like Del-Aware tend to be loose organizations, wherein the criteria for "msnbership" l

\\

l are likely to be equally loose. But Del-Aware, Inc. is incorporated, and should l

have kept " membership" lists of sme sort. In any event, NWRA is entitled to have Del-Aware prove that standing is legally deserved. ;

.1 Therefore, in view of the claimed locations of the Snyder and Windhold p w ties, we provisionally do grant Del-Aware standing in the appeals docketed at 82-177-G and 82-219-G; but under 25 Pa. Code S21.122(a) (2) we will allow NWRA (should it so request) to have the hearings reopened for reconsideration of the evidence supporting Del-Aware's standing.

If the hearings are reopened for this 1

j purpose, the evidence offered will be restricted to the issues of whether and when the Snyders and Windhold were==nhars of Del-Aware, and the locations of their properties.. At this late date, we are not going to litigate whether Jonathan 3

and Mary Davenport, who live "within the inmediate vicinity and within view of

)

the North Branch," have interests deserving standing under Wi1Ziam Penn, supm.

The time-for Del-Aare to have clearly established the persons named on i,

W r 22, 1983 (listed supra) have interests meeting the William Penn stand-t ard-is long past. 'Ihe inmediately preceding rulings in this paragraph are j

consistent with the understanding reached on D w ;_er 8, 1983, described supra.

We already have ruled in an earlier paragraph, and do not expect to reconsider, I

that Alistair Kyle, John and Alice Thorpe, David Snyder and Susan Allison cannot confer standing on Del-Aware.

f In making the rulings in the preceding paragraph, we have rejected an i

additional argument of NWRA's, to the effect that Del-Aware cannot obtain standing frm the mere fact that some of its individual==nhars might have had standing to appeal; according to NWRA, it is necessary to show--and it has not been shown-that Del-Aware itself, as a corporate entity, meets' tne Vi1Ziam Penn j

standing test. NWRA has bolstered its argument with citations to an inrming array l

of precedents. However, the Board has examined this question of so-called " rep-l resentational standing" in the recent past, and has held that the Pennsylvania

~

courts "now would rule" an association has standing to represent its members in i

an appeal if some of those==nhars themselves would have standing to appeal. :

w Concerned Citi:: ens of Rum! Ridge v. DER, Docket No. 82-100-Go 1982 DiB 522 (Opinion and Order, November 22, 1982). Although the Citizens Association in Rumt Ridge was not incorporated, we believe the logic of Rumt Ridge governs the standing issue in the instant appeal, assuming Del-Aware ilvhd can show it has m m % rs who would have had standing when Del-Aware actually filed its appeal.

In our opinion, the recent Pennsylvania Supreme Court holdings in Fmnklin Town-ship v. DER, 452 A.2d 718 (Pa.1982) and in Susquehanna County v. DER, 458 A.2d 929 (Pa.1983), though not quite on point with Ruml Ridge, supm or the instant ap=1, reinforce our reasoning in Rumt Ridge and bolster our present reliance on that Board holding.

We close this discussion of Del-Aware's standing with the observation that-as NWRA accurately points out-no evidence has been offered that the in-dividual appellants (Val Sigstedt and Colleen Wells) in the wal docketed at 82-177-G had standing; the same assertion holds for the individual appellants (James Greenwood, Colleen Wells, Richard Meyers and Marion Masland) in the appeal docketed at 82-219-G. Therefore, insofar as these just-named individuals are concerned, their respective individual appeals at 82-177-G and 82-219-G are diamimed for lack of standing, without prejudice to Del-Aware's possible standing (as discussed supra) to prosecute these same appeals.

2.

DER's Iagal Basis For Its Decision Having determined:

(1) that we do have jurisdiction under the Adminis-i trative Code; (2) that DER's "no NPDES permit" determination on the North Branch should be treated as applying also to the East Branch; and (3) that the appellants presently have personal standing to challenge this determination, let us examine l

what this determination constitutes.

l l'

The following discussion of this determination (NWRA brief in response to this Board's Order of June 27, 1983, pp. 19-22) is fair, and we adopt it:

i l

t On June 22, 1982, in c.u==ction with the Depart-ment's review of NWRA's application for -a permit under the Dam Safety and Enmena.-ats Act (NWRA Exh. 31) and incident to its Environmental Assesment on the Point Pleasant Water Supply Project (DER Exh. 2), the Depart-ment concluded that no NPDES Permit would be required to authorize the release of nalaimre River water into the North Branch Neshaminy Creek.

(Exh. A. to =mallants' I

' Notice of Appeal'). DER's rationale for its ultimate conclusion that no NPDES Permit would be required is set forth in a memorandtn fran Robert W. Adler, Assis-tant Counsel, Bureau of Regulatory Control, Maxine Woolfling, Direubu:, Bureau of Regulatory Counsel and j

Douglas Blazey, Chief Counsel to Iman Gonshor, Dir6&wr, j

Norristown Regional Office. The menorandin, included as Exhibit A to the =; = 11 ants' Notice of Appeal, states, in pertinent part:

This menorandin addresses the question whether the Point Pleasant Diversion Project requires an NPDES Permit pursuant to the recent court decision National Wildlife Fedention v. Gorauch, which I forwarded to you with my meno dated March 15, 1982. It is the opinion of this office that a permit is not required for the Point Plea-sant Project.

The National Wildlife Federat@n case did not rule that all dams were point sources per se and, there-fore, subject to the NPDES Permit requirements.

Rather, the court rules that the plaintiffs had successfully proven as a question of fact that certain dams 'a<.id pollutants' to navigable waters within the maar.ing of Section 502(12) of the Clean 1

Water Act. Since EPA has not published categorical i

standards governing which types of dams ' add pollu-tants' to navigable waters within the meaning of the l

court riacicion, the question of whether the Point Pleasant project requires a permit is a question of l

fact. The memorandtn to you fran Charles Rehn, dated April 6, 1982, entitled 'Need for Public Hearing, Point Pleasant Diversion, Nashaminy Water Resources Authority (NWRA)' indicates that there will be no additions of pollutants to the relevant waterways within the meaning of the National Wildlife Federation decision. Therefore, unless contrary information is discovered indicating that pollutants will in fact be discharged frun the Point Plaaaant facilities, no NPDES Permit is required.

The singular substantive legal issue addressed in the Department's menorandta and now presented to the Board in tha captioned appaa1 (Docket No. 82-177-H) is whether thel i

diversion of Delaware River water to the North Branch of l -

~.

the Neshaminy Creek,... constitutes the ' discharge of a pollutant' as that phrase is defined in the Clean Water Act. It is NWRA's position, based upon a review of the clean Water Act's substantive provisiont, that it does not. As a result, no NPES permit is required.

Ii Section 402 of the Clean Water Act, 33 U.S.C. S1342, esi-ah14abes the National Pollutant Discharge Elimination System (' NPDES' or "402') permit program. Section 402(a)

(1) of the Act provides in pertinent part:

...the Administrator may... issue a permit for the discharge of any pollutant, notwithstanding Section 1311 [301(a)] of this title, upon otridition the.c such discharge will meet either all implicable re-quirenents under Sections 1311 [301), 1312 [302],

1316 [306), 1317 [307], 1318 [308] and 1343 [403]

of this title, or prior to the taking of necessary inplementing actions relating to all such require-ments, such conditions as the Administrator d'ater-mines are necessary to carry cut the provision of this chapter. -(emphasis supplied).

Section 301(a) of the Act, 33 U.S.C. S1311(a) provides:

Except in ccup14a= with this section and Sections 1312 [30], 1316 (306), 1317 [307], 1318 [308], 1342

[402] and 1344 [404] of this title, the discharge of any pollutants by any person shall be unlawful (supnasis supplied).

Thus the discharge of any pollutant is unlawful unless, inter alia, one has a Section 402 perruT for same.

~

1.

What constitutes a " Discharge of a Pollutant?"

Query, how did Congress define the term discharge of any pollutant? Reference to the definitional section of the Act provides the answer.

t Discharge of any pollutant is defined at Section 502 (12), 33 U.S., 51362(12), as:

...any addition of any pollutant to navigable waters frca any point source...

Point Sotrce is defined at Section 502 (14), 33 U.S.C.

S1362 (14), as:

...any discernible, confined and discrete con-veyance, including but not limited to any pipe ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feedint.- operation or vessal or other floating craft, frun which pollutants are or may be discharged.

(emphasis supplied). -

Neither NWRA nor any other party disputed that the North Branch Neshaminy Creek or the East Branch Perkianen Creek ocnstitute " navigable waters" as that terra is defined in the Act. Also, NNRA agrees with =ppallants that "the outflw pipe into the North Branch would constitute a point source", if the Board finds l.

the Delaware River is a. " pollutant" (NNRA brief just quoted, p. 23). 'Ihus, the key questions here confronting us are the foll wing:

h l

a.

What is a " pollutant"?

i j

b.

What constitutes an " addition of any pollutant"?

l Unfortunately, no party has cited a case applying the Act's definitions i

of " pollutant" and " addition of any pollutant" to a diversion of water fr a one river to another, i.e., to a factual situation identim1 to the instant one.

However, all the parties except the ay11 ants found the hiaiem of the D.C.

i Circuit Court in National Fildlife Federation v. Corsuch, 693 F.2d 156

]

(D.C. Cir. 1982) ("NWF") to be applicable and controlling. Again we quote frm IMRA's brief in response to this Board's Order of June 27,1983 (pp. 24-25):

l

... National Wildlife Federation brought a darlaratory judcynent action against the Administrator of the Erwir-onmental FWwction Agency seeking to carpel the agency 1

to require dam operators to obtain NPDES Permits. Es-l

&ahlialdng at trial that the retention of water by large j

shu. age dams r'aitaad water quality changes having adverse inpacts on downstream water quality when ai*waquently re-l leased, National Wildlife Federation argued 'that any i

adverse change in the quality of reservoir water frun its natural state involves a ' pollutant' and that r=1aaaa of polluted water through the dam into the downstream river constitutes the ' addition' of a pollutant to navigable waters 'fr n' a point source.' 693 F.2d at i

165.

(enphasis supplied)

'the Circuit Court of Appeals for the District of Columbia ainagreed holding that water quality conditions j

do not constitute ' pollutants' within the statutory de-l finition.

nmse wind.-a changes are weeer condteions not substances addad to the water.

6

)

e 693 F.2d at 171.

The court, by holding that water quality conditions did not constitute ' pollutants,' explicitly adopted the l

test applied by the Envim==utal Protection Agency for determining when a par +4m1=r activity constitutes an addition of a pollutant from a point source:

... addition fran a point source occurs only if the point source itself phy=ically intrM-a pollu-l tant into water fran the outside world. In its view, the point or nonpoint character of pollution is,3stablished when the pollutant first enters navi-gable water, and does not change when the polluted water. later passes through the dam fran one body f

of navigable water (the reservoir) to another (the downstream river).

j 693 F.2d at 175.

The EPA ' addition of a pollutant' test e W M by the Circuit Court in National Wildlife Fedention was implicitly endorsed by the Fourth Circuit Court of Rpaale decision in State of Missouri v. Department of the Army, i

672 F.2d 1297 (4th Cir.1982).

WRA, PE00 and DER assert that the Department uu.m:tly applied this test in its analysis when it concluded that NWRA will not " add pollutants" to the North Branch or East Branch. These parties assert that diverting nalmare River water to the North Branch Neshaminy Creek will not "phyaically introduce" l

a pollutant "fran the outside world" into the withdrawn nal==re River water; they argue additionally that nal==re River water is not a pollutant.

l 4-11 ants respond to these argunents by arguing that NFF, supm is distinguishable fran the instant case; even if not distinguishable, appellants argue in the alternative, NFF achully supports the a;=11 ants' position when i

the teachings of this decision are iacu5rw=d to the instant facts.

r After a careful analysis of NVF, supm and the other cited cases, we are inclined to believe the circunstances of the instant matter are sufficiently different fran those pertaining in NWP, supm that-to the extent that NFF provides any guidance to us-it should guide us to remand this matter to DER. Our reasons for caning to this conclusion are elaborated in the two l f

L-ad_iately foHowing subsections (III B 3 and III B 4).

3.

Deference Owed DER's Decision j

As explained in the quote supm from NWRA's brief, DER's rationale for its ultimate conclusion that no NPDES pamit would be required was set forth in a maiorandun from DER attorneys Adler, Woelfling and Blazey. These DER counsel relied in large part on NFF, supm. In NFF, the Circuit Court began by examining I

i "the types of envim.ucutal inpacts ena reservoirs cause. The court acapared i

these dam-induced water quality changes-law dissolved oxygen, dissolved minerals f

arx1 nutrients (from bottcat muds), tarperature changes, Win =nt and super-l saturation-to the definition of " pollutant" in 5502(6), 33 U.S.C. 51362(6) to

wit,

...dradged spoil, solid waste, incinerator residue, my, = r+=ya, sewage sludge, munitions, cl=nimi wastes, biological materials, radi= M.ive ma&ariala, heat, wrecked or dis'W equipnent, rock, sand, i

cenar dirt and industrial, municipal and agrim1tural

)

waste discharged into water.

l Noticing that none of the dam-induced water quality changes were specificany

{

included in the' pollutant list, and that EPA had construed the Act as excluding l

these changes fran the definition of pollution, the Circuit Court held that the District Court had erred in not giving significant deference to EPA's construction of pollution. However, the Circuit Court concluded its opinion as follows:

i In closing, we emphasize the narrowness of our l

h iaion. It is not our function to decide whether j

EPA's in M s alations of the term " discharge of a l

pollutant" is the best one or'even whether it is

=

more reasonable than the Wildlife Federation's in A r -tation. We hold merely that EPA's inter-protation is reasonable, not inconsistent with congressional intent, and entitled to great deference; therefore it must be upheld.

This last quotation shows that NFF, supm scarcely was a ringing af-firmation of EPA's thesis that dan discharges do not require NPDES permits.,

.l mreover, it is clear fran the language in NFF that the Circuit Court chiefly visualized a discharge fmn a damned river or stream into the lower channel of j

the same river or stream. Genuine pollutants, such as dissolved minerals (as opposed to temperature, which is more accurately classified as a water " quality"),

would reach the downstrean channel whether or not the dam was present; the i

major function of the dam is to change the instantaneous rates-but not the l

average rate-with which pollutants flow into the downstrean channel.-

i

'1herefore it is far fran apparent that NFF should be applied to the j

instant water project, wherein N1-re River water is being directE4 to a stream channel that the Delaware River otherwise would never reach. If NNRA's l

intessutation of NFF were to be followed literally, DER would have no right l

to establish pollutant concentration limits for discharges of the Del-re into the Neshaminy or Perkianen, no matter lxw polluted the Delaware or how pristine i

i the receiving streams; we do not believe this autoone would be consistent with i

Congress' intent when it paM the Federal Clean Water Act. Nor do we believe NWRA's intespatation would be consistent with the Iegislature's intent in passing the Clean Streams Iaw, 35 P.S. SS691.1 et seq. or with the Envia.es-tal Quality Board's intent in prtmulgating the regulations in 25 Pa. Code Chapter

92. In fact, the E33 has made it explicit that the G

=1th's standards i

for svi.cting water quality may be stricter than would follow solely fran application of federal standards. 25 Pa. Code 592.17.

L 4

l Furtl=mnre, we question whether the extravagant deference (exemplified by the NFF decision) paid by federal courts to Federal adninistrative agencies should carry over to the Board's review of DER actions. This historical defer-enae of the federal courts grows out of the constitutionally mandated separation 1

l of powers between a&ninistrative agencies. (which are within the e+4ve branch l

of goverunent) and reviewing courts (which are located in the jwHMal L1mch).

l l i

[

a

+

j In sharp contradiction, the Envi m estal Hearing Board is a quasi-judicial body located, as is DER, within the executive arm of Pennsylvania's goverrsnent. 71 P.S. S510-21. Moreover, this Board is = pacifically charged with the duty to substitute its discretion for that of DER where, in the Board's opinion, DER has nWann its discretion.

Farren Sand & Gmvel Co., Inc. v. DER, 20 Pa.

J j

Oiwlth. Ct. 186, 341 A.2d 556 (1975).

i Even in the federal court system, statutory constructicm by adininis -

trative agencies is not given as much deference as questions involving questions i

c of technical or scientific expertise, E. J. duPont de Nemours A Co. v. Tmin, 430 j

U.S.112, 97 S. Ct. 965, 51 L. Ed. 2d 204 (1977). 'the D.C. Circuit distinguished the duPont case haca - it found the presence of scientific and tachnical aspects to EPA's characterization of dams as nonpoint sources, but DER's "no NPDES pennit" daciaion under review here was based upon a legal ana' ysis conducted by its l

i counsel rather than upon any substantial application of technical or scientific expertise.

(See Tr.1783 for the testimony of DER official Charles Rehn.)

In determining what deference to pay to an administrative agency's decision, the federal courts also look to whether the de& amination was consis-j tently held ar nad inportant palicy considerations or was policy free. NFF, supm, 693 F.2d 156,170. The D.C. Circuit found that EPA's C-t=wd. nations that l

dams were nonpoint sources had been W- --

-cus with the Clean Water Act and l

had been consistently applied by EPA over the years. Of course, DER's deter-I mination, being recent, has not =<=4M the right to deference enjoyed by EPA's i

i decision. Perhaps, more importantly, the court in NFF, supm, noted that EPA, faced with limited resources to carry out the NPDES permit program and faced i

j with 2,000,000 dams (50,000 large dams to be permitted) had made a policy deter-f mination to take dans out of its NPDES permit program. Since it is EPA rather i

i,

than the courts which nust process the permit applications the Courts quite rightly deferred to EPA's determination.

DER has not poi.nted us to any policy consideration supporting its in-stant determination. Instead of 2,000,000 or 50,000 similar cases it appears frun the record that its policy decision in this appeal concerning the diversion of water fran one river to another is sui generis. Reversing DER's policy here will necessitate processing but two permits; if it is correct (as DER argues) that its staff already has done the review work necessary to support an NPDES permit, the processing of these permits should impose no considerable burden.

In sun, the factors giving rise to great deference to the administra-tive decision in WF, supra simply are not present here. Although the appn11 ants have the burden of sinring that DER's decision not to require an NPDES permit was an abuse of discretion, we should examine this issue without special reliance on DER's legal analysis stcnming fran the WF holding. So doing, for reason amplified in the L- ~Hntely following subsection, we conclude that the proposed discharges into the North Branch and the East Branch are potential " additions of pollutants" to those streams, requiring NPDE permits. Therefore we are renanding the permits to DER for the addition of conditions ensuing that no dis-charges under the project will occur unless and until NPDES permits have been obtained and are cmplied with.

In so ruling we are rejecting the appn11nnts' arguments that the NPDG permits should have been secured before (or at least simultaneously with) the issuance of the permits which are the subjects of the instant appeals.

25 Pa.

l Code S92.21 r xIuires persons " wishing to cmmence discharges of pollutants" to file an NPDES application within 180 days of the date when the discharge is expected to cmmence, unless exceptional circumstances receive a longer lead term.

Even at this late date in these prolonged appeals, dischargest are not expected to i

begin within 180 days fr m now. '1he circtznstances of this controversy are exeptional, unique even, but we do not see that they demand overturning the pemit grants solely ham-NPDES pemits have not yet been secured. It can be argued that the first prong of the Payne v. Kassab test for compliance with i

Article I Section 27 of the Pennsylvania Constitution (Payne v. Kassab,11 Pa.

Omwlth. 24, 312 A.2d 86 (1973)) implies DER should have is==d the NPDES pemit i

(which we now have ruled i_s required) before the pemits ay1M-fra were issued.

However, the EQB prestraably was aware of Payns v. Kassab when it promulgated 25 Pa. Code S92.21. The ICB oculd have required that an NPDES permit for a dis-charge be obtained before the construction pemits which would produce the dis-i 1

charge are granted; instead the EHB merely required that an NPDES pemit be obtained within 180 days of the date when the discharge is exp.cted to ocusnence. We agree with the EQB that 25 Pa. Code S92.21 suffices to protect the environment in a j

fashion fully consistent with the requirements of Article I Section 27 and the i

intent of Payne v. Kassab. Article I Section 27 does not force us to overturn f

the appealai-frczn permits, provided we can ensure (as we have) that the NPDES requirements of the applicable Federal Clean Water Act will be ocxuplied with before any discharges occur.

i 4.

Why An NPDES Permit Is Needed j

Once we have concluded that we need not defer to DER's lecjal analysis in this matter (including DER's reliance on WF, supra), the further conclusion that we must require an NPDES permit under the facts of this m& seems un-1 avoidable. The record denonstrates that the >1 aware River water which would be l

diverted into the East Branch and the North Branch contains heavy metals (in-cluding lead), neoperus, nitrates and fecal colifom. Clearly, these sub-stances oczne under same (or all) of the phrases "cba=4_m1 wastes", " biological._

~ _ _ _ _ _. _ - _ _

+

t

(

l i

l wastes", " industrial, nunicipal and agricultural wastes" which are " pollutants" r

as defined by the Clean Water Act.

j, of course, it may be these substances occur in such small amounts in l

the Delaware River water that no treatment will be required before discharging into the East Branch or North tranch, but this is the very question which the f

i I

NPDES permit process is designed to answer. Horeover, it is already apparent, i

4 fran the evidence at hand, that.the levels of lead in the nal==re singly cannot j

l be d4==i==ad as "very amall" without further careful examination. To ascertain the Delaware River's water quality, Charles Rehn, Chief of the Water Quality i

j Planning Section of DER's Norristown Office, reviewed water quality data sub-

~

a 3

mitted by IMRA's consultants as well as certain SICEtET data (oczuputer print-cuts i

i j

of water quality analyses conducted in the nala-re by various water quality control agencies in the ordinary course of their duties).

k. Rehm chose to 1

rely upon data gathered at the Morrisville (PA) gauge (which being essentially I

i

[

across the Delaware fran Trenton (1U) is located about fifteen miles downstream

)I fran Point Pleasant) because there had been substantial sanpling at this location I

and he assuned that Morrisville water quality was representative of Point Pleasant f

I!b water quality. In a chart prepared by W. Rahm and introduced as a Del-Aware t

j.

exhibit, Mr. Rehm ocupared the long-term average concentrations of various water l

4

[

quality p=_-

h e at m rrisville to these same permesters in inter alla the North f

Branch and the East Branch. Mr. Rehm de amined that the long-term average con-l-

lf centration for the heavy metal lead in the Delaware was 51.4 mg/l (micrograms per liter).

1 Mr. Rehn acknow19 that this number --d=d the instroen water quality standard of 50 mg/l set in 25 Pa. Code C-n.E 93 of DER's regulations, a

but he felt that introduction of this water into the East Branch and the North Branch was nevertheless permitted because this lead value represented only a "seall increase" over the Chapter 93 standard. However, Mr. Rehn's position i '

r-3 i

ignores the plain mandate of law. Where a regulation establishes a definite nunerical standard, DER may not decide that sane violations of that standard are so small as to be "de minimis". Commonocatch v. Pa. Liquor Control Board, 471 A.2d 941 (Pa. Orwlth. 1984). 'Ihe principle that DER has a mandatory duty not to allow water qualitt standards to be e# is =hrvHed, e.g., in 25 Pa. Code 595.l(a).

Admittedly, if the East Branch had sufficient.flw at the point of discharge, a discharge of 51.4 mg/l of lead might not cause a violation of Chapter 93 standards (after dilution by the receiving stream), but this record dernonstrates that during low flow periods the Delaware Diversion will constitute virtually the entire flow of the East Branch and North Branch at the points of discharge. In any event, if DER chose to rely on the diluting capabilities of the receiving stream, it should have carried through a load analysis similar to the waste load allocation process set forth in 25 Pa. Code S95.3. Because DER determined no NPDES pemit was necessary for the diversions (and because Mr.

~

Pehm was not perturbed by a "little" excess above water quality standards) it did not go through this process.

While we have ernphasized Delaware River lead we note that Mr. Behm's analysis as presented in Del-Aware Exhibit 52 also shows that the average water quality of the Delaware at )brrisville exceeds Chapter 93 standards for aluninum, bacteria, copper and phenol. Furthermore, Mr. Rehm admitted the SIORET data showed that water quality in the Delaware at Dnbrville (IU), only two miles downstream fran Point Pleasant, manifested the presence of: copper at 9 mg/1--ocropared to a 5.6 nrJ/1 standard; zinc at 110 mg/1-otmpared to a 95 mg/l standard; iron at 4700 mg/1--canpared to 1500 mg/l and total phosphorus exeeding the chapter 93 standard by 3 times. It is true that Mr. Rehn discounted

-100-t

the Lumberville data, due to the relatively small ntnber of sanples there re-ported and due to his inpression that the D=*=rville data could have been influenced by a discharge frun a plater on the RT side. Nevertheless, the to-tality of Mr. Rehm's testimony hardly can be said to justify Mr. Rehm's con-clusion---arrived at without quantitative analysis of present North Branch and East Branch polluted loads and flow rates-that the effects on water quality in the receiving stream would.be inmusequential.

Apparently, Mr. Rehm also was influenced by his opinion that the overall water quality in the Delaware equaled or exW the present water quality in the receiving streams. However, even assuning arguendo that the present water quality of the East Branch (and/or the North Branch) is poorer than the Delaware River, we do not believe this is relevant to the issue of 4

whether DER may peImit Chapter 93 water quality numbers to be eW. This battle was fought long ago in Pennsylvania, and long ago it was determined a polluted receiving stream deserved protection so that polluted streams could be reclaimed and restored to an unpolluted condition, 35 P.S. S691.4(3);

Comonosatch of PA v. Gilpin Tounship, 52 Pa. Carmonwealth Ct. 414, 415 A.2d 1002 (1980); Comonosalth v. Barnes A Tucker Company, 9 Pa. Catsonwealth Ct.1, 303 A.2d 544 (1973); rev'd 455 Pa. 392, 319 A.2d 871 (1974).

In other words, the record indicates that the Delaware may be capable of transferring significant concentrations of pollutants to the receiving i

streams. 'Ihus the only question renaining, before we legitimately can conclude that NPDES permits should be required, is whether the diversion of Delaware River pollutants to the North Branch or East Branch constitutes "an addition of a pollutant" under the Federal Clean Water Act. In view of considerations discussed supra, we are to deme this question without particular deference to i

l DER's legal analysis or to the holding of the NVF Court, althotrJh we certainly I

-101-

i should pay careful attention to the reasoning of DER and the NUT Court. We have paid such attention, and sinply cannot agree with DER or the NWF Court under the i

facts of the instant arm al.

In parH & ar, as we have stresssed earlier, we l

a f

cannot agree congress and the Pennsylvania Iegislature intended that DER would have no right to establish pollutant concentration limits for discharges of

^

the naim. rare into the Neshaminy or the Perklanen, no matter how polluted the -

Delaware or how pristine the receiving streams. Therefore we hold that the diversions presently appaalafrom do constitute additions of pollutants under the Clean Water Act.

i NWRA and PECO argue that any pollutants which may have entered the nal==re River were not intrrvhvwl by their activities, so that under the

{

Federal Clean Water Act they should not be held responsible for these pollu-tants. In this regard, NWRA cites Appalachian Power Company v. Train, 545 Fed.

2d 1351 (4th Cir.1976), which held that utilities which renove water fran a river for cooling may return the water to the river without removing the pollu-4 l

tants originally present. Appalachian Pouer, supm is distinguishable, however, hacanaa it (as did NFF, supm) dealt with the. return to the same waterway of pollutants removed therefrom; the instant appaal riaala with transfer of pollutants l

fran one river into tm) other rivers. In Appatachian Power, supm even more than in NFF, supm. it could be (and was) argued that the activity of the would-be permittee did not cause the pollution, so that the permittee should not be re-sponsible for this pollution.

j That a different situation pertains where man made activities cause pollution occurring in one body of water to reach another body of water is l

made clear by two Pennsylvania cases which, albeit they arose under state l

statutes, nevertheless addressed this very issue. In Harmar Coal Co. v. DER, 306 A.2d 308, 452 Pa. 77 (1973), a mine operator argued that since he didn't

-102-l

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q cause the acid pollution of the water he was pumping frm his mine, he didn't have to treat the ptmped water when he discharged it into the adjacent surface waters. The Pennsylvania Suprene Court, though willing to concede that Hamar Coal Ca pany had not caused the pollution to the groundwater, held that "but for" the ocmpany's activities the pollution would not have reached the surface waters.

The same Court utilized similar reasoning in Commonwealth v. Barnes a Tucker Coal Company, 455 Pa. 392, 319 A.2d 871 (1974), which involved the breakout of acid mine drainage frm an abandoned coal mine. 'Ihe trial court in Barnes &

Tucker, supra had found that much of the acid mine drainage enanating frm the closed mine originated in adjacent coal mines, and ran through insufficient inter-ior barriers into the Barnes and Tucker mine before discharging; nevertheless, the Supreme Court had little trouble in assigning liability to treat all the discharged water upon Barnes and Tucker Coal C apany. Again, there was no doubt in Barnes & Tucker, supra, as there had been none in Harmar, supra, that the cmpany held responsible had not caused the pollution of the waters in question; what each cmpany did was cause or pezmit the transfer of this polluted water to another body of water. That is exactly what PECO and NNRA propose to do in the instant case.

DER and NWRA also argue that DER conducted an analysis and review "as if" a NPDES permit was to Le required. Frankly, the Board is at a loss as to how to consider this argunent. Certainly, no party has cited any authority for the proposition that DER's efforts constitute substantial otmpliance with the Federal Clean Water Act; as explained above we feel that full ocmpliance with this Act is mandated by applicable state law, including Article I Section 27 of the Pennsylvania Constitution.

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'Ib sum it up, it was an abuse of discretion for DfR to have issued the appealed-fran permits without requiring that discharges into the receiving streams emply with NPDES permits. This deficiency of DER's actions in issuing the ap-pealed-fran permits readily can be readied by rmand to DER, as per our Order infm, without any need to wholly overturn the permits already granted.

We add that the conclusion we have reached concerning the need for NPDES pemits causes us to wonder about the relevance of the standing ' issue discussed so extensively cupm (subsection III B 1).

In the past the Board has not been willing to allow an appellant to "act as a private or Ccrmanwealth attorney general, looking over DER's shoulders" as DER enforces its governing statutes and regulations. Pennsylvania Gama Commiacion v. DER and Ganzer Sand and Gmvel, Docket No. 82-784-G (Opinion and Order, February 3,1984). For instance, in Cancer we wrote:

Every allowable Camtission claim of procedural or substantive error by DER in granting Ganser its permit must be related to the Camtission's alleged injuries under the Villiam Ponn standard.

Although we certainly do not disavow this holding frcm Gancor, we question our discretion-in the large and cmplex water diversion project presently before us-to ignore, solely on grounds of standing, our conclusion frcm a fully litigated record that an NPDES permit is needed to ensure protection of the North Branch (as explained earlier, standing to appeal the "no NPDES per-mit" decision for the East Branch has not been challenged). We see no need to rule on this question at thin time; the issue will be nooted unless our provisional ruling that Del-Aware has standing to appeal the "no t@ DES permit" decision for the North Branch is reversed after reconsideration of this adjudication. The i

issue will becure crucial, however, if our grant of standing to Del-Aware is reversed.

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o C.

DNIIONENIAL IMPACTS W RECEIVDG STRFAE Having decided that the presently appealed permits must be rcmanded to DER in orde.r that the "no NPDES decision" be reedied, we next turn to the host of additional issues the appellants have raised concerning environmental impacts on the receiving streams. The following discussion of these environ-mental issues is organized under a set of reasonably sensible and comprehensive subbondings; these subN ndings do not include " Water Quality", however, because that subject already has been examined during our analysis of the need for NPDES permits (subsection III B 4).

1.

Erosion One of the most hotly contended itcms in this cunplex case was the accelerated erosion which the appellants (under which appellation it now is convenient to include the intervenors, Friends of Branch Creek) asserted would be caused in the headwaters of the East Branch by the diversion of up to 46 mil-lion gallons of Delaware River water per day (65 cfs) into that stream. Similar claims of accelerated crosion pertain to the Ibrth Branch.

The East Branch of the Perkicnen is a small stream, virtually a rivulet, at the point of discharge.5 In its median flow of 1.5 cgs, a person could jump across it. The stream channel, carved by higher flows, is itself only 16 foot wide at this point.

Frtm this point near the El'phant Road bridge, the stream meanders e

ncrthwestward towards the main stcm of the Perkicmen. In its upper reaches, the stream is, during normal low flows, a series of pools and riffics. The bottcm is loose rock. We banks are cut through silty loam and clay loam soils.

The East Branch is a flashy stream. The large anount of land cleared for farming and the high amount of clay in the soils contribute to rapid run-off after rainfall or thaws of snowfall, causing stream flows to increase quickly a

5.-

21s description is taken in large measure frca the post-hearing brief filed by FDC.

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after precipitation and then subside. Sheet and gully erosion frm famland make the high flows fairly turbid. These turbid flows are, in the creek, less erosive than clear water flows, due to the reduced aad h nt carrying capacity of the water

$ttich is already silt-laden.

Erosion does occur, however, at levels of flow that are below floodstage.

PhoW1.anAis prr*M during the hearings showed bank sitmping and slope failure during spring run-off.

(Del-Aware Exhibits 98A-C)

Portions of the bank collapse into the stream in blocks, or are eroded gradually. Mr. Hershey testified that, j

in measuring the creek, flows frcm a single thaw reroved a foot of soil frm the bank.

Aside frm the effects of erosion, which can be corrected by inproved land managment practices, the water quality of the East Branch headwaters is good.

In the Sellersville-Perkasie area, sme six miles downstream frm the point of discharge, the East Branch is pooled behind a series of low dams. Below this point, the Sellersville sewage treatment plant discharges wastewater to the stream. Water quality in general is raatM, as other sources add pollutants.

The stream is much larger, with incrm and flows of n e erous tributaries. A lar-ger channel and larger flows c m bine with lower velocities to make this lower section of the East Branch a distinguishably different stream.

Since the maxinsu diverted flow of 65 cfs is approximately 50 times the median flow of the East Branch at Elephant Road, one's intuitive response is that this diversion nust have see substantial inpacts on the East Branch. Indeed, theru seens to be no real dispute anong the parties to the proposition that if one tries to force too much water through a small stream, the course and cross section of that stream will be changed by the retoval of erodible materials frm the streanbanks and bottm. '1here also is no real dispute that in situations where stra=had and bank erosion exceed normal levels, there will be increased

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l

~

)

l turbidity in the stream, increased deposition of aedimant on the stream bottan and negative inpacts on the aquatic commanity in the stream. 'Ihe North Branch too is a tiny stream at the point of the outlet. It too is a flashy stream l

a I

maandering through an erodible area, so the discussion relating to the East Branch holds with equal rigor to the North Branch.

'Ihe battle is joined, however, as to exactly when soil erosion be-I gins to take place and even (though to a lesser degree) as to the mechanism which

}

causes this problen.

DER's findings and conclusions on this issue, as contained on page 41 of a

its Envise.. ital Assessment, are as follows:

I Incranaad Flows i

'Ihe major effects on the stream flows and stream i

channel of the East Branch Perkianen Creek resulting i

fran the addition of waters diverted from the Delaware were investigated in the 1970 report by E. H. Bourquard 1

Associates, Inc. Because of sc,-:M punping rata i

changes, another review was made by Philadelphia Electric i

Ocupany in its Environnental Epcit (July 1979).

i i

To briefly stamarize the findings of these shrHaa, a total of 15 locations were investigated a.leng the i

117,000-foot reach between the mouth of the East Branch and Elephant Road bridge. Iow, median and flood flows were established at each of these locations for both j

existing and p._,-:M conditions. In Bourquard's orig-inal wL,'the average rate of ptmping Delaware River water into the East Branch was estimated to be l

54 cfs. 'Ihe average rate of ptmping in PE00's updatcd j

<= M dations is estimated to be 34 cfs, not including I

water losses in transmit. The maxinant ptmping rate used in both s w is was 65 cfs.

i j

For purposes of ocuparison, the channel section closest to the point of in-flow will be discussed.

t

'Ittis section is considered the most critical since the & w tional area of the channel is the smallest at this point.

During low-flow periods, only a small low-flow channel is required to convey the entire stream flow of approximately 0.05 cfs. Depths of flow are calcu-lated to be 0.02 feet and velocities are 0.17 fps.

I During maxinman ptspage, the flow increases to 65 cfs,

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depths to 1.28 feet and velocities approach 3.0 fps.

This rate of flow is not considered to be erosive i

and flows should be contained within existing stream channels.

During periods of nwlian stream flow, existing conditions are such that flows are 1.4 cfs, depths aan.vech 0.15 feet and velocities are calm 1ated at i

0.61 fps. With the==v4== incraaaad flow of 65 cfs, the depths would increase to 1.3 fu t and velocities

{

to 3.02 fps. Again, there should not be any noticable erosion on existing stream banks.

(fcs.,tretes mitted)

Not surprisingly, appellants and intervenors challenge both IER's findings and the "no erosion" conclusion it draws therefran. The record in-dicates that the Bourquard study upon which DER relied was the work product of a civil engineer named Robert Steacy. Although Mr. Steacy, a 1939 graduate of l

CmY, has had a long engineering career (which was mostly spent with the U.S.G.S.)

and certainly inpressed the presiding officer as a canpetent and honest wit-3 ness, until the present case Mr. Steacy had not proffered an opinion on expected erosion nor had he predicted future flows in a stream. In the instant matter, Mr. Steacy's predictions were based upon a si.ngle site visit to the East Branch, during which Mr. Steacy observed this stream at various points fran highway l

- bridges.

Instead of field measurements, Mr. Steacy relied upon calculations of stream velocity using Manning's formula, and ccupared these calm 1ated values to l

a table. Both the fm-la and the table appear in the Handbook of Hydraulics by 1

l Brater and King, Sixth Edition.

Manning's forunla (V= 1.486 r /3 l/2 2

.q flowing past a point in a pipe, channel or stream, as being w ri.ional to posi-tive powers of the sideslope (S) and hydraulic radius (r) of the pipe channel. and/or i

stream, and as inversely p1.crtional to the roughness (n) of the conveying device.

l The hydraulic radius (r) is a measure of the curvature of the conveying mediun, 1

l and thus 44s upon the manner in which a given flow fits the conveying mediun, i

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1

/

y 1.e., the cross-sectional area over the wetted perimeter equals r.

To calculate or measure r, therefore, one must calculato or estimte the average depth of flow and the effective slope of the stream banks. At each of the points where ho calculated velocitics, Mr. Steacy measured neither the depth nor the slopes of the banks, but rather estimated these dimensions. The expert witnesses proffered I

by appellants and intervenors challenged Mr. Steacy on both these estimtes.

Morcover, they challenged the n or roughness value chosen by Mr. Stcacy. As to the lack-of-measurment arguments raised by appellants' cxperts, we agrco that it would have been desirable for Mr. Steacy to have measured depth and sido slopes for at least one point, and we note with approval that appellants' witness John T. IIershey and his helpers did measure the depth and slopes of the East Branch at certain points; but we must note that these masurments did not take place when the flow in the East Branch was at or near 65 cfs, i.e., during con-ditions approxincting the conditions applicabic in the East Branch during mximum I

diversions.

It sems to us that if one really wants to know how a flow of 65 cfs I

fits the East Branch channel, one has to measure the channel at that flow.

Falling that, the applicants, DER, the appellants, the intervenors arid this Doard are relegated to discussing theoretical calculations.

The nest relevant of such calculations was the 3.02 foot por second velocity calculated by Mr. Steacy for the flow of the East Branch at Elephant Road with a 65 cfs diversion. DEtt relied on this calculation. Therefore, we will assume for the rest of this discussion that the upper reaches of the East Branch will be subjected to a velocity of 3.02 fps fr m the proposed diversion. So i

assuning, the crux question becmes whether this velocity will causo substantial i

crosion in the East Branch. Several of the witnescos, including Mr. Stency, testified that there is no sharp lino between those velocitics which no longer

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. 'can nitintain silt in tuotion and thus will lead to sediment settling on the bottcm of the East Branch, and those velocities which will scour the banks and bed of I

the East Branch. Both of these velocities are considered critical velocities.

I For our purposes we will examine only the upper critical velocity, the velocity at which scouring begins. In this regard, Dr. Robert Dresnack, a well qualified civil and sanitary engineer proffered by hWRA, agreed that a valid approach for J

determining critical velocity was to refer to a table appearing on page 7-24 of Brater and King.

It is important to note that this table sets forth permissible velocities in canals after aging. The textual material preceding this table sphasizes that the process of aging--especially by the deposition of a variety of materials frcm i

fine to coarse on the sides and bed of a stream, and most especially by the deposition of colloidal materials-tends to cement the clay, silt, sand and gravel along the sides and bed in such a manner as to resist erosive effects.

Thus, permissible velocities in aged canals are greater than in newly rolled canals. Several witnesses testified that the East Branch, as a natural st. ream which already has received substantial runoff fran adjacent farmer's fields, ressbles an aged canal rather than a new one. We shall make that assumption, but in doing so we note that the Brater and King Table already assumes an aged canal.

The table in question provides as follows:

~ferrai M. cannt velodtte arter Aging n...ewa i. me b, s,.a c iu t,s..ite. n.e..tcb. ASCE

=

w.i., i,.

ci,

a, -.

o,..i.a - i. u.a.a...d

. - g, 3,d;i,-Ag l

d.stisus t.o.r.e..c.k ro

,,gg, n e.a....

u.w a...........

i.M

.M i.80

a. a r: - suow a..........

i.78 3.M

.00 0a i ue.d.i.............

3.0a 3.00 3.00 Auwu ea eu.u..........

s.00

Sa 3.00 Dedianey 8a m l..es...............

3.80 2.80 2.28 Y.le.al.enh......................

3.80 3.80 3.00 n s. sr. vel.......................

2.80 8.00 3.78 St&S ela r, very e.u.id.I............

3.78 8.00 8.00 Oraded, l a 6. e.bblem.

.-een.

3.idet..........................

3.78 8.00 8.00 Aus viel ailta, eeW.4d.i..............

3.78 8.00

.i.00 Gaed.d. silt le e.bbt e.II.8da!.....

4.00 8.M 8.00 C.eae. sa. vel.

-sulleidet.........

4.00 0.00 eM Cobbies and ableele..............

8.00 8.M 8.80 Snele..ed baadenas...............

e.00 8.00 8.00 l

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f a

We rmark that although the table's recmmendations are nearly 50 years old, the possibility that the table now is outdated was not raised during the hearings.

Mr. Steacy selected the value of 3.5 fps as the critical velocity frm this table because he assuned that the banks and bed of the East Branch were errmnmd of ordinary firm loam, and because he also assumed that the Delaware River water transferred to the East Branch would be transporting colloidal silts but not sands, gravels or rock fragnents.

Both of Mr. Steacy's assumptions were hotly challenged by the appellants and intervenors. As to the type of soil in the banks and bed, the challengers noted that Mr. Steacy's assumption was based upon a visual investigation at cer-tain locations along the East Branch, conducted during his single visit to the site. In spite of the fact that Brater and King noted the importance of properly defining the soil along the line of the waterway before applying the table, neither Mr. Steacy nor anyone else on behalf of PEOD, MGA or DER tested the soils in the vicinity of the East Branch or examined the available literature on this subject.

DER's aquatic' biologist,who has exantined the entire East Branch nere than once, did have an opinion on the type of soil materials adjacent thereto based on visual examination; his opinion, that the substrate was cmposed of small rocks, boulders, rubble, a lot of silt and a lot of clay sems to be at variance with Mr. Steacy's observations (of ordinary firm loam).

A similar analysis of the North Branch substrate was supplied by Paul llarnon--MGA's aquatic biolo-gist.

The appellants' hydrological witness, Jonathan T. Phillippe, did attmpt to objectively determine soil types in and adjacent to the East Branch. One source of the information he used was the soil analysis performed on behalf of MGA for construction of the Bradshaw Poservoir. This analysis showed the soils at the Bradshaw site to be predmtinately silty or sandy clay loams.

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[. c.1 ;*

The _ Applicants' experts disparaged this analysis, and pointed out ac-curately'enough that the proposed Bradshaw Reservoirwas at least 6 miles t.way fran the outlet on the East Branch. However, Mr. Steacy also didn't like the results of an analysis of borehole materials even though the borehole in question was in the bank of the East Branch.6 j

l m

Mr. Steacy also rejected the analysis of soils contained in the Bucks q

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County soils Conservation Map for the East Branch area. This analysis, like the Bradshaw Reservoir and borehole analysis, s w b3d the appellants' view that soils in and near the East Branch are more s w ly grouped in the silt loam, non-colloidal category than in the firm loam category. h Soils Conser-vation Map is a carefully prepared docunent. All in all, therefore, though recog-nizing that the appellants have the burden of proof, we find, for purposes of this Adjudication, that the soils in the vicinity of the East Branch fall under the i!

it silt loam non-colloidal category. Both' Dr. Dresnack and Mr. Steacy admitted that I

i if the soils were of the latter type the critical velocity would be 3.00 fps l

even assuning that the Delaware River water transported mainly colloidal silts, I

and would be 2.00 fps if this diverted water were censidered to be either clear 4

iil cr containing silts, sands, gravels and rock fragments.

{

On the crucial issue of the quality of the diverted Delaware River water, there is again, not surprisingly, a split of opinion between 5=1lants and Ap-plicants' experts. Again the opinions are mostly subjective. Appellants' experts suggest that the Delaware at Point Pleasant is nk greatly silt laden in the first instance, and that storage in Bradshaw Reservoir will cause nuch of the

- silt in the telaware to settle out, h Applicarita' experts argue that the i

Delaware River water is laden with colloidal solids, and also argue that these l

s i

6.

This analysis showed the presence of hard silt, little shale or gravel, I

g and little clay.

1 t

c1J

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q

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solids will not settle out during the two days the Delaware water will be stored in the Bradshaw Reservoir before being released to the East Branch.

4

'Ihe only scientific attmpt to predict the amount and nature of solids to be expected in Delaware River water was conducted by Dr. Dresnack. Dr. Dresnack reviewed water quality analyses of Delaware River water; he inferred that a large percentage of the solids in the Delaware must be colloidal because they are not suspended solids. Accepting this inference, which was contested by appellants' counsel but not contradicted by evidence, Dr. Dresnack's further analysis soms 1~

) :s to undercut his ultimate conclusion. Essentially, Dr. Dresnack's further analysis

~

of the Delaware River's behavior over 6 calendar years dmonstrated that most of the sediment carried by the Delaware is associated with high water levels; for instance, 50% of the yearly sediment load is transported during only six days. The corollary of this analysis, as is plain frun Dr. Dresnack's exhibits, i

is that during the warm weather-lower flow periods when the highest diversions ue contsplated, little sediment (colloidal or othen '.se) will be transported i

by the Dela<are. 'Iherefore, we find that the water to be diverted to the East

{.,

Branch will be clear water. Accordingly, along with our finding on soils types, I.g we find fran the above Table and in accordance with the testimony of appellants' a

experts that the critical velocity in the East Branch will be 2.0 fps.

, et We note that Applicants' experts expounded an alternative theory to FM dmonstrate that erosion in the East Branch will be minimal. They testified

'Njt

/

that since even the maximtzn diversion will not approxilnate the 1.5 year flow of the 4

East Branch, and since the 1.5 year flow (the so called " bank full" flow) is

,a

^

the daninant' flow for cutting the channel, no excessive erosion can be expected.

. +.

While this _ testimony does alleviate the Board's concerns about possibic flooding v

fran the diversion, neither the Brater and King text nor the ASCE Manual of f

l, Practice No. 54--which r:ets forth a similar table (Table 5.2)-requires bank full

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o conditions as a precondition to crosion; critical velocity alone is the mechanism discussed in these sources (which sources were authenticated and used by all parties' experts). Thus the Doard concludes that if and when flows in the East I

Branch exceed 2.0 fps in its upper reaches, substantial crosion of the bed and

{

bank facing the wetted perimeter of the stream occuru.

f 2c above discussion has been restricted to the East Dranch.

It holds i

1 with equal force to the North Branch of the tienhaminy. % c same clear Delawaro River water in proposed to be discharged into each stream. %e North Branch is much closer to the Dradshaw site than is the East Branch, so tlut the Bradshaw soil analysis applies with even more force to the North Branch. IMRA's own expert, Paul llarmon, on the basis of considerable on-site observation, concluded that this stream's substrate was a " fairly erodible" mixture of " gravel, rubble and Dowmansville silt".

Consequently for the North Branch as for the East Branch we conclude that 2.0 fps is the critical velocity.

Since tMRA's own engineering expert, Dr. Dresnack, has calculated a muimum velocity at full diversion of 2.2 fps in the North Branch, here too the Applicants' own expert has predicted an instream flow which exceeds the velocity we've found to be critical.

What to do about this situation? DER's response to the potential for crosion in each creek was to condition each permit, so that each permittee Imd to: (1) monitor and inspect the portion of its respective creek adjacent to and below the outlet structure on a regular basis; (2) correct any observed crosion '

on the bed; and (3) stabilize and revegetato any exposed portion of the stream bank.

%e appellants are not natisfied with these conditions anck rightfully The permit conditions, described above, at best address the crosion problem so.

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I L

after it is created. It is the genius of the permitting process to anticipate and prevent environmental problans before they arise. Moreover, the above conditions provide neither the permittees, nor DER nor interested third parties with any verifiable standard.

The DER official in charge of this project, R. Timothy Weston, albeit by way of a legal opinion, admitted that erosive velocities caused by an outlet permitted under 25 Pa. Code Chapter 105 would have to be mitigated in order to ccrnply with 25 Pa. Code SS105.14-16 (as well as with Article I, Section 27 of the Pennsylvania Constitution). We agree with Mr. Weston's legal analysis in this regard. In Paync v. Kassah,11 Pa. Camonwealth Ct.14, 312 A.2d 86 (1973),

the Ccamenwealth Court pronulgated a three prong test to review the acunpliance of an agency or instrumentability of the Ccrmonwealth with its duties as a trustee of Pennsylvania's Public Natural Resources as per Article I, Section 27 of Pennsyl?

vania's Constitution. This threefold standard is:

(1) Was there ccznpliance with all applicable statutes and regulatiens relevant to the protection of the Camon-wealth's public natural resources?

(2) Does the record demonstrate a reasonable effort to reduce Se environ-mental incursion to a minimum?

(3) Does the environ-mental harm which will result frcm the challenged de-cision or. action so clearly outweigh the benefits to be derived therefrun that to proceed further would be an abuse of discretion?

i' This standard has been uniformly applied by this Board and Camonwealb

~

r Court when reviewing actions of DER, Conecrned Citizens for OrderQ ltogress v.

DER, 36 Pa. Camonwealth Ct. 192, 387 A.2d 989 (1978).

Part-imluly relevant to DER's obligations under the second prong of the Ptrync test is 25 Pa. Code S105.16(a) of DER's regulations, which provides:

'Ihe determination of whether the potential for sig-nificant environmental harm exists will be made by the Department after consultation with the applicant and other concerned governmental agencies.

If the Department determines that there may be a significant inpact on natural, scenic, historic, or aesthetic

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o

• o values of the environment, the Departznent will con-sult with the applicant to examine ways to reduce the envirorsnental harm to a minimum.

We are not unmindful that it might be impossible for PDCO or NWRA to achieve the critical velocity of 2.0 fps into the East Branch and North Branch, respectively, i.e., to reduce the impact on these streams to an insignificant level. In this event, we believe that under the third prong of the Payne v.

i Kascab test it is incumbent upon DER to balance the need for the project against the impact of erosion on the receiving streams, after all possible mitigation of the crosive inpacts. Indeed, this conclusion is merely a paraphrase of the testimony of R. Timothy Weston, Esquire (Tr. p. 2495), the DER official nost intimately connected with the Point Pleasant project.

Since, as per our earlier discussion, we already are rananding this matter to DER, it will have the wru.tanity to conduct this balancing analysis during rcmand.

2.

Flooding The appellants also raised concerns about the possibility of flooding in the East Branch caused by the discharge. On this point DER, at page 42 of its Environmental Assessment, set forth the following:

To analyze the effects on flood flows, the following table was prepared for this inflow point utilizing data fran Tables 2 and 3 in FECO's 1979 Environmental Report.-

Table 4 Q(cfs)

Depth (feet)

Velocity (fps)

Median Flow 1.4 0.15 0.61 Median Flow + Point Pleasant Diversion 66.4 1.30 3.02 Mean Annual Flood 320.0 2.6 5.1 5 - Year Flood 467.0 3.2 5.7 50 - Year Flood 960.0 4.1 6.6 As noted above, the addition of the 65 cfs to the median flows does not place the stream in a mean~ annual flood condition.

nonito s f ows East B and 1

advent of a flood on that stream, reduce or tenninate ptsupages frm Bradshaw Reservoir. When the stream f1w of the East Branch approaches potential flood levels (238 cfs at the Bucks Road Gaging Station which is the peak f1w of a one-year flood), an alann is autm atically activated at the pumping control cen-ter and the Bradshaw pe ps, if operating, shall be sr.opped.

Tne data in this table were sponsored by several of the applicants' witnesses and were subject only to a narrw attack by the appellants.

Essentially, the appellar.ts admitted that during steady state conditions the addition of 65 cfs to the East Branch would not cause this stream to overtop its banks. However, the appellants demonstrated that because the Bucks Road Gauging Station will be downstream fr m the diversion point at Elephant Road, a heavy localized rainstorm could cause the East Branch to be overtopped bel m Elephant Road before the Bucks Road Station read 238 cfs.

Applicants counter this argument not by denying its factunhsis, but by asserting that the diversion system can be operated satisfactorily if the f1w frm Bradshaw Reservoir is shut off when the Bucks Road Gauge reads 125 cfs rather than 238 cfs. Applicants point out that, due to the topography of the Bradshaw to East Branch diversion pipeline, only about half of the water in this pipeline will reach the East Branch after the reservoir discharge is terminated (half of the pipeline runs up-hill). Applicants further assert that this cutoff can be effected in 10 minutes. Neither of these msertions were contradicted by the challengers.

We therefore conclude that if PECO's permit is conditioned to call forth a cutoff if and when the Bucks Road gauge reads 125 cfs, no flooding of the East Branch will be expected.

With regard to the North Branch, here too the undisputed evidence dmonstrated that the addition of even a full diversion (of 160 cfs) to the

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median flow of 1.34 would not cause flow therein to exceed the mean annual flow in the North Branch of 280 cfs. Challengers did not dispute this evidence and, unlike the situation on the East Branch, offered no evidence of even short-term flooding probims which would be exacerbated by the diversion.

3.

Wetlands Appellants raised an issue conccrning the adverse impact on wetlands adjacent to the East Branch caused by the diversion. Appellants' evidence on this issue consisted in large part of testimony based upon a poorly scaled Bucks County map and other unidentified maps, frm which challengers' witness John Hershey calculated that as much as 100 acres of wetland would be affected.

Setting aside the question of whether the wetlands identified in this map are "important wetlands" as used in 25 Pa. Code S105.17 (see section III D 2 infra),

there is no evidence that the diversion would cause any wetlands to te inundated.

Absent such evidence we cannot call DER reniss in failing to additionally con-dition the permits in question to protect these wetlands. The small amount of wetlands adjacent the Delaware which would be affected by the project are dis-cussed below.

4.

Aquatic Biota Considerable testimony in this matter addressed the present state of the aquatic comunities in tlie East Branch and the North Branch as well as the projected impacts on these coumunities frm. the proposed diversions. DER's aquatic biologist, Donald Knorr, testified that the aquatic cmmunity in the upper reaches of the East Branch, just below the proposed discharge point, was typical of streams that experience dry periods and also experience agricultural

[-

runoff. He adrtitted, in response to a hypothetical question, that if the East Branch were subject to continued high levels of turbidity over a long period of time (as throughout a smmer), the aquatic camnunity therein could be damaged.

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However, absent excessive and long lasting erosion, Mr. Knorr predicted that the diversion would actually improve the environment for the aquatic ccumunity in the East Branch by increasing the habitat available to this ommunity. Whereas without the diversion the upper reach of the East Branch " dries up" in the sunmer leaving only isolated pool areas, the diversion would insure a year round supply of moving and oxygenated water.

Applicants' aquatic biologist, Paul Harmon, who has studied the aquatic biology in the East Branch for the last 12 years, agreed with Mr. Knorr on both of the above points. The appellants did not introduce any evidence to contra-dict the above witnesses, and in general narrowed their concerns on aquatic biology to the erosional effects discussed above. Since we have found that imposing a 2.0 fps limit on velocity in the East Branch will reduce accelerated erosion caused by the diversion to, minimal levels, we also find that imposing this velocity limit will climinate any undue stress on the East Branch aquatic ccm-munity.

Although it is not so clear frcm the record that the appellants even questioned the impacts of diversion upon the aquatic cmmunity in the North Branch, we find that since the same limitation will appear in NWIM's permit as in PDCO's, the North Branch's aquatic cmmunity should be equally protected.

D.

DEI 1MSE RIVER IMPPCTS As described in more detail above, the intake structure for the Point Pleasant Project is to be located on the west bank of the Delaware River near the southern boundary of the Village of Point Pleasant, Plunstead Township, Bucks County. The intake structure itself will consist of an assably of 24 Johnston wedge wire screens which are to be located approximately 245 feet streamward of the Pennsylvania bank of the Delaware River. The screens, each of which is 40 inches in diameter, will be grouped in 3 groups of 8 each and L

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)

will be connected by a 72-inch diameter reinforced concrete pipe to a gate well located along the bank. Each grouping of screens and connecting pipe cm-prises a cylinder, whose long axis is aligned with the Delaware River's main h

axis.

These cylinders are to be supported sme two feet above the Delaware's floor and some four feet below the river surface at low flows. Prm the gate well, a buried 72-inch diameter reinforced concrete pipe will pass under the Delaware Canal to a pump station located on the Delaware's bank cast of the Delaware Canal (Roosevelt State Park).

The pump station is to be 80 feet long and will stand 45 feet above finished grade. The grade of the station is below that of the tow path along the Delaware Canal, but the roof of the station will be at least 15 feet above the Delaware Canal. The station, which is to be constructed of reinforced con-crete, is designed to resmble a barn. Behind the pump station (facing the canal) an electric substation protected by a chain fence is to be located, the fence approaching within 30 feet of the canal, and the substation and fence being clearly visible therefrm.

1.

Impacts on Incal Fishing Appellants raised concerns about the effects of installat. ion and oper-ation of the intake on the local aquatic ecology. The only effects of the intake to be considered here are the operational impacts.

For purposes of this section of this Adjudication the inquiry will be further limited to the impact of the structure on local fishing. In this regard, appellants raised concerns that the intake structure could pose a physical hazard to fishermen fish'.ng in this area frm boats or inner tubes, that its presence could cause the shad to "cer away frm the Pennsylvania shore, and that it would adversely impact local fish populations through the entrainment and impingment of fish eggs and larvae.

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i In order to better emprehend each of these issues it is desirable to know that the proposed intake structure is to be located approximately 800 feet downstream frm the point where the Tohickon Creek enters the Delaware. Over the years the Tohickon has created a bar or thunb of land which is about 800 feet in length and extends perhaps 100 feet streanward fran the Pennsylvania shore.

At Delaware River flows of 6000 cfs this bar becmes overww d and no longer e

influences the surface flow of the Delaware, but at lower flows the bar begins to emerge tran the Delaware and its mergence causes an eddy to form downstream.

The size and shape of this eddy changes with changes in Delaware River flow.

Iower flows cause the edtr M lose strength, but also to extend further out into j

the Delaware River.

The testinony in this matter and even the exhibits introduced by Del-Aware (see especially Del-Aware Exhibit 23C) dmonstrate that the intake structure is usually located out of the eddy and to the New Jersey side of the eddy wall.

htcertainflows,however,itappearsthattheintakestructuremay be in contact with the eddy wall.

(The record dmonstrates that the eddy is a favored fishing spot for typical warm water fish such as bass, as well as a popu-lar fishing spot during the annual run of the American Shad.)

Due to the uncontradicted facts:

(1) that the intake structure will be located at least four feet below the Delaware River's surface. and (2) that even at full diversion the intake velocity will be very low (.011 fps) at a distance i

of even one foot fran the intake's screen, so as to be imperceptible at the Delaware's surface, we can find no physical danger posed to fishermen passing even directly over the screen in a boat or inner tube. Certainly, the appellants introduced no evidence which even began to indicate any such danger. Our finding mercifully makes it unnecessary to examine the appellants' standing to raise this " danger to fishernun" issue.

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As to the impact on shad fishing, Mr. Kaufmann of the Pennsylvania Fish Camission did testify that American Shad, being shy of shadows, would not pass under the intake structure on sunny days when the structure cast a shadow on the Delaware's bed. Further, Mr. Kaufmann expressed concern that in veering away frmt the shadow the shad could veer towards the New Jersey shore, and thus diminish fishing frat the Pennsylvania shore. On the other hand, Mr. Kaufmann cdmitted that it was just as likely that the shad would veer towards Pennsylvania and thus improve Pennsylvania fishing. The possibility of a split flow of shad was not discussed nor was the question of how seriously a structure located 245 feet frcm shore would affect a fisherman casting frmt the shore.

In short, Mr.

Kaufmann's testimony, while crulible, does not support a finding that the intake structure will harm fishing by its mere existence.

The appM'.cs also expressed concern that the eggs and larvae of American shad and the shortnose sturgeon could be sucked through the screening (en* trained) or held fast thereto (entrapped) by the suction through the intake screens. The record again does not validate this concern. Even the appellants' witnesses agree that the proposed Johnston wedgewire screen is the state of the I

art in water intake technology. This screening, with its 2 imt. openings, is smaller than the size of a water-hardened sturgeon or shad egg, and thus cannot entrain either of these. Moreover, the zone of influence of these screens even at maximum intake velocity is very small. The maximtzn intake velocity at the screen is only.5 fps and this velocity drops to.011 fps at five feet frmt the screen; even Del-Aware's ichthyological witness agreed that the influence of the intake velocity would extend only 2 inches fran the screen.

When we further consider that a single shad female lays an estimated 100,000 to 500,000 eggs, that less than 1 percent of these eggs would hatch I

even under normal circumstances, that these eggs will be no more likely to pass i

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L..

Om intako utneturo tJmn any other point of tJe Dolaware, umt there in in evi-donco the.t the nhortnonal nLurtpon oven inhabita tin Point Pleanant area, and tlnt to inoro tinn 2 porcent of ulwl ejgu panning Point Picanant could conceivably in affectal by the intake, wu cannot help but concitxle tjmt tho intako'n operation will not advernoly inpact tho aquatic comunity of the Delawaro River at Point Picanant.

2.

Archeology arxl Wotlarxla Turning to the pmphouno, hero tho innuen rained concern tJe alleged inpactn of thin pmphouno on:(1) tho historic arvi ncenic integr'ty of the Roonovolt Stato Park; and (2) a valuablo archeoloJ cal nito located on the land i

I acquiral for the ptmphouno. '1ho appo11anta alno exprenned concern about tho i

effectn of the ptstphouno constniction on wotlanda adjacent to the Dolaware.

According to the tentinony of Dol-Awaro'n witnenn, Sanuel Iarxlin, tjm entiro Point Plennant area, and onpocially tJmt Imrtion of thin area contiguoun to the Dolawaro River, was a gathering place for Irxliann.

It in not nurprining, tiviroforo, that an archeolojically otratifial uito oxinta in that portion of O.o Point Pleanant project nito lying botwen the canal and the Dolawaro River.

l Thin archeologic nito, which Inn'a surface area of approxinntaly 75 sqturo foot, was dincovered by a team of archeoloJical connultantn hiral by tHm, including Dol-Awaro'n archeological wittenu. Thin witneca had no ocmplaintn about the notinin unod by the nald connultantn in nurveying nrul identifying the nito in quantion for nignificant archeological renourcos, nor did im dinagree that the rmn11 nito identifial wan the only nuch nito on the project property.

Ito even wJreal, in general, with the nutinin uned by tMW to protect thin area, o.g.,

avoiding tho archn>1oyter.1 nito durirvJ construction, covering it with carth and coverirvj the area with plantic.

It in true that Mr. Larxlin also would invo the arclxx)1ojically nennitivo area fencal off, but when tim neanuron urxlertaken to

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4 1

protect this area are cmpared to the cmplete lack of safeguards on adjacent private property, it cannot be denied that NWRA has taken all reasonable measures to protect this site. Finally, in this regard, it should be noted that the above-described archeological survey and preservation techniques were required by a Memorandum of Agrement between NWRA, the Advisory Council on Historic f

Preservation, the Pennsylvania IListoric Preservation Officer and the Army Corps of Engineers. The relevant DER personnel had knowledge of this agreement, and relied upon it in concluding that the Point Pleasant Project would not significantly e

affect any archeologically sensitive resources. Beside the above protections, this agrement requires NWRA to station a cmpetent archeologist on site to monitor the excavations during construction. In the absence of any countervailing argument or evidence we find these protections to be adequate.

The appellants admitted that the Point Pleasant Project would affect

.30 acres of wetlands, and agreed that while.22 acres of wetlands would be permanently lost, the remning.08 acres would be restored to their original grade and pre-construction condition. Even the appellants didn't seriously question the removal of this small amount of wetlands, but rather directed their attention to the wetlands located adjacent to the East Branch. Those wetlands have been discussed above (section III C 3).

In the absence of any countervailing evidence (or even argument) 'frm the appellants, and in the presence of testi-many that the affected wetlands are typical of the adjacent flood plain forests along the Delaware which will not be affected, the Board can find no fault with DER's determination that the wetlands in question are not "important wetlands" within the meaning of 25 Pa. Code S105.17.

3.

Historic, Aesthetic and Scenic Impact Point Pleasant Village is a very pretty collection of attractive resi-dences set in a scenic area hard adjacent to the Delaware River. Its historic

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significance is reflected by its registration as a National Landmark. Moreover, the Delaware Canal, which parallels the Delaware, is one of Pennsylvania's Public Natural Resources, being in fact Pennsylvania's Roosevelt State Park.

'1he pumphouse of tle Point Pleasant project, which is described in more detail above, is within plain view frm the Delaware Canal and is visible frm at least sm e of the Point Pleasant residences. Further, in order to transport water fr m the pumphouse to the Bradshaw Peservoir a 72-inch diameter reinforced concrete pipe must cross the Delaware Canal, which will necessitate the t mporary closing of a section of the Canal and a right-of-way across state land.

l l'

The appellants assert that DER violated its fiduciary duties as a trustee I

of the Roosevelt State Park by granting a right-of-way across the Canal, and that DER violated the spirit (at least!) of the applicable statute allowing DER to grant rights-of-way across state land.

We were initially perplexed with DER's treatment of the impacts of the pumphouse. It is true that certain officials of DER examined a full set of drawings and artistic renderings showing elevations and landscaping plans for the Point Pleasant pumphouse. But the only reviewing official with any trace of expertise in this area, Mr. John Nuss, asserted that he had not considered the aesthetic or scenic impact of this pumphouse on users of the Roosevelt State Park, because the ptrophouse was locatied outside of the State Park (Tr. 2010-11).

' Further testimony, however, d m onstrated that DER officials also relied upon reviews of the ptunphouse by officials of the Pennsylvania IListoric and Museum Cmmission and the Corps of Engineers and the NRC. We think that it is appro-priate for an agency to rely upon the expertise of its sister agencies where they are functioning within the scope of their inplmenting legislation.

Indeed, this sees to be the holding of such cases as Delaware County Comunity College

v. Fox,. 20 Pa. Cmunonwealth Ct. 335, 342 A.2d 468 (1975). Here, as with regard

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T to archeological resources, DER relied upon the above-referenced Mmorandum of Agrement, which bound NWRA to protect the Point Pleasant IIistoric District by:

(1) subnitting designs, plans and specifications for the Point Pleasant Pmping Station and its boundary fencing to the State IIistoric Preservation Officer; and (2) developing a landscaping plan to minimize the visual impact of the pumping station and the boundary fence, consistent with the area's natural setting.

I Again the appellants intMW no evidence, let alone expert evidence, -

I that the above measures are inadequate to minimize the archeological, scenic and historic impacts of the pumphouse. We find, therefore, that they are adequate.

4.

Grant of the Right-of-way i

Appellants also attack DER's grant of a right-of-way across the canal I

pursuant to the Administrative Code of 1929, as amended, Section 1926-A. DER agrees with the appellants that S1926-A requires that the cass ent is not only in the public interest, but that this public interest outweigh any permanent i

~

i deleterious effect on State land. DER does not agree, however, that DER must l

l make an explicit, prior, finding of paramount public interest before granting I

l an casement. Instead, DER's officials maintained that any necessary findings I

were made implicitly by the grant of the easment in question. Moreover, DER asserts, and the uncontradicted evidence shows, that the right-of-way will cause f

no permanent deleterious effect on State land. DER's Wilson Oberdorfer pointed i

out that there have been dozens, if not hundreds, of breaches in the 60-mile long Delaware Canal, and that neither the historical nor physical integrity of the canal has been undermined by the 127 plus utility crossings.

Again, in the cmplete absence of any testimony challenging the precautions described by DER's officials, we cannot help but find that DER has mandated all actions necessary to minimize the inpact of NWRA's proposed pipeline crossing on the Delaware Canal.

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5.

Downstream Water Quality Impacts At its maximum rate of withdrawal, the Point Pleasant ptmpstation is f

projected to withdraw 95 million gallons (agd) a day of water frm the Delaware 1

River at Point Pleasant. Of this total withdrawal, 48.8 mgd is targeted for the NWRA, the reainder being targeted for PED. While 95 mgd of water sems (and is) a substantial amount of water, this withdrawal represents no more than 5% of the normal low flow of the Delaware at Trenton (3,000 cfs).

'1he amount of Delaware River flow reaching the Delaware Estuary has 4

important water quality impacts on the Estuary. Because of population density and industrial activity, the Delaware Estuary receives a substantial load of I

pollutants, which tends to deplete the dissolved oxygen in the Estuary. Historically, as warm weather arises the dissolved oxygen level in the Upper Estuary falls l

below the level of 4 mg/1; at this point the American Shad no longer will migrate L

upstream pas,t Philadelphia to their spawning grounds in the Delaware Water Gap

'Ntis dissolved oxygen block is controlled by flow ' levels and water tsper-area.

i ature and is therefore quite variable, both in terms of leg th along the river and durational extent. 7d1 parties agree that the oxygenated Delaware River water reaching the Estuary helps to raise and maintain the dissolved oxygen level 4

in the Estuary, so that the removal of a significant amount of Delaware River water would exacerbate the dissolved oxygen proble.

Fresh Delaware River water also is necessary to keep the tide-affected Delaware Estuary (which is the site of the water intakes of the City of Phila-delphia) frm beaming too salty.

(This latter pheram= ion is called salinity intrusion.)

i l

According to the Delaware River Basin Crnmission (DRBC) the 3,000 cfs l-l flow objective can be maintained by releases frm upstream reservoirs during almost all conditions, including drought conditions equal to those prevalent

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1 in the 1930's, but not in a 1960's drought (which has an estimated recurrence of once in 100 to 300 years). If and when the Delaware River flow at Trenton falls below 3,000 cfs, PDOO's DRDC Docket precludes PIID frm withdrawing water unless an equal amount of water is released frm the (yet unbuilt) Merrill Creek Reser-voir which is to be located upstream from Point Pleasant on the RT side. As to the NWRA withdrawal, up to 90% of this water, which will be used as a public water supply in the watersheds of the Delaware and its tributaries, will-be returned to the Delaware tributaries (such as the Neshaminy, Pennypack and Wissahickon Creeks and Schuylkill River) as discharge frm various sewage treat 2nent plants, and will thus return to the Delaware Estuary.

The impacts on dissolved oxygen levels and salinity intrusion at a l

3,000 cfs level (at Trenton) or at any other leve], and the likelihood that these other levels will occur, are matters which require scientific analysis, including water quality nodelling. The Delaware River Basin Ccmnission has the legal j

authority, the expertise, and the resources to perform such analysis, and it is custmary for DER to rely upon the DRFC to conduct such analysis. The DRBC has studica the impact of the Point Pleasant withdrawal-upon the dissolved oxygen level in, and salinity intrusion into, the Delaware Estuary-in its Ievel B study (May 1981), as well as in the Final Environmental Assessment (August 1980) for the Point Pleasant Project.

After giving detailed consideration to salinity intrusion and low dissolved oxygen levels associated with low flow periods, DRBC concluded in its Icvol B Study that "[d]ownstream low flows on the Delaware River would not be significantly affected" by withdrawals at Pcint Pleasant. Moreover, the DRBC i

concluded as a result of modelling that even under extreme low flow in the Delaware River (2,780 cfs at Trenton) the dissolved oxygen in zone 2 (frm l

Trenton to Philadelphia) would be reduced by no more than.08 un/1, and that I

l l

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further downriver the reduction would be less than.08 m7/1. These reductions were characterized by DER's water quality planning chief, Charles Rehm, as being virtually imperceptible.

Similarly, DRBC and DER concluded that salinity control in the Delaware Estuary would not be exacerbated by withdrawals at Point Pleasant because:

(l; salt water frm the Delaware Bay is repelled by all flows of fresh water entering the Estuary above River Mile 90; (2) the Schuylkill~ enters the Delaware Estuary above River Mile 90; (3) 90% of the NWRA withdrawal at Point Pleasant will be returned to the Delaware; (4) PECO withdrawals at Point Pleasant pose no signifi-cant concern for salinity when the Delaware flo c at Trenton equal or exceed 3,000 cfs; and (5) PECO cannot withdraw water at Point Pleasant below the 3,000 cfs i

flow level without discharging an equal amount of water into the Delas;are (frm the Merrill Creek Reservoir). Indeed, DRBC detennined and DER acluded that i

salinity objectives can be met in the Delaware Estuary with releases frm existing reservoirs, even during a record drought like that of the mid-1960's, so that even at flows well below 3,000 cfs no substantial saltwater intrusion problems are anticipated.

The appellants' counsel clearly disagreed with scme (if not all) of the above conclusions by DER and DRDC, but on this issue, as on others above, the i

arguments and objections of counsel are not legally sufficient substitutes for evidence. The appellants presented no numerical or scientific evidence on either the dissolved oxygen or the salinity issue (as opposed to the expression of concerns). They, as third party appellants of a permit issuance, bear the burden of proof, 25 Pa. Code S21.101(c) (3); C::ambel, Sr. v. DER, EHB Docket No.

80-152-G,1981 DIB 88; Doris J. Baughman v. DER, Docket No. 77-180-B,1979 DIB 1.

Thus, in the absence of any evidence on the part of third party appellants, and in view of the presumption of regularity which pertains to actions of admin-

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istrative agencies like DER and DRDC (Uarren Sand a CraucI u. DER, 20 Pa.

Ccmmonwealth Ct. 186, 341 A.2d 556 (1975)), we accept the above conclusions of DER and DRDC that the proposed withdrawal will not significantly affect either the dissolved oxygen or salinity levels in the Delaware Estuary.

E.

ALTERNATIVES 1.

NWRA Alternatives A considerable portion of the record in this matter was addressed to the discussion of various alternatives to the Point Pleasant Project. DER's discussion of these alternatives is given in its Environmental Assessment, be-ginning on page 67. We found this discussion of DER's useful, and quote heavily fran it in the following pages. We start, as does the Enviuwuiental Assessment, r

with an examination of the water conservation alternatives to the NWRA project.

la. Water Conservation The appellants assert that there is no need (or at leasb no need greater,

than that which can be addressed by water conservation) for the NhPA part of the proje-t. In this regard DER found that (Environmental Assessment, pp. 23ff):

Bucks and Montgmery Counties face together a regional water supply proble. For the past three decades, the people of this region have relied on increasingly intense developnent of groundwater to provide both public and private water sup-plies. 'Ihe Department's and the Delaware River Basin Comnis-sion's studies in recent years document growing problems created by over-reliance on groundwater in the region. The Pennsylvania State Water Plan, Canprehensive Water Quality Managment Plan (COWAMP/208), and DRBC Level B Study, as well as several recent water supply cases in Montgmery and Bucks Counties, strongly indicate that intensive public and private groundwater withdrawals in substantial portions of Bucks and Montganery Counties have oversubscribed or threaten to oversubscribe the resource.

The most recent study of groundwater conditions in the region was canpleted in 1982. This report, prepared by R. E.

Wright Associates, Inc. as part of DRBC's emprehensive groundwater study, refines and confirms the assessments of

(

withdrawal rates and densities, cmpared to recharge rates l

for the Triassic aquifers serving the populated areas of i

Montgmery and Bucks Counties.

l

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Current groundwater withdrawals, especially in the Triassic rock fonnations, exceed, or threaten soon to ex-ceed,.the recharge and safe yield of the groundwater basins upon which a majority of the population relies for supply.

Calculations by DER and DFBC indicate that in the Brunswick, Inckatong, and Stockton formations of the Triassic Iowlands, the normal year recharge rates average sme 300,000 - 600,000 gallons per day per square mile. However, the region cannot count on every year being " normal". Yet, public and private water supplies must be capable of providing reliable service in all kinds of years.

i As noted by R. E. Wright Associates, like annual precipi-tation, the annual groundwater recharge for a watershed varies from year to year. Using a " normal" year recharge rate as a withdrawal limit for groundwater-managenent purposes may leave open the possibility that, in a fully developed area, annual groundwater production would exceed annual recharge 50 per-cent of the time. This could lead to the long-term depletion of the resource, with resulting conflicts among its users.

Groundwater may justifiably be more conservatively managed using a lower rate of annual recharge as a guideline for withdrawal.

Frm a water supply perspective, this area must b' e especially concerned with dry year recharge rates, rat.'er than normal rates, because of the relatively quick reaction of Triassic formation groundwater to low precipitation.

In i

1976, for example, a short period of low recharge resulted in substantial drops in groundwater levels, dim 1.nishing public water well yields by 30 to 40 percent, while leaving sme hmeowner wells high and dry.

If previous dry periods were not enough, the drought of 1980-81 clearly dramatized to the people of Bucks and Mont-gmery Counties the insecurity and vulnerability of their water supply systas.

Rainfall ueficiencies began in February and March of 1980 in many areas of eastern Pennsylvania. Problens mounted steadily throughout the year and by February of 1981, 85 public water systens faced severe shortages. Under Energency Proclamations and Executive Orders issued by the Governor, 44 systens serving over 120 municipalities adopted full ra-tioning plans - mandating cuts in water use by 25 percent or more, and reducing residential allot 2nents to a mere 40 gallons per person per day. Other water systems were forced to turn to emergency supplies, such as quarries, strip mine pits and overland lines frm distant streams and lakes, to meet essential needs.

Bucks and Montgmery Counties were among the most severely affected. Eleven public water suppliers in the tm county region were forced to impose restrictions on all nonessential

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water use. Several municipalities lost wells because of

'IG contamination and others faced greatly reduced water levels in their wells.

Dry periods of varying degrees of severity are not an i

infrequent occurrence in eastern Pennsylvania, and in an area serviced only by a highly subscribed groundwater table the result.can be debilitating. In the Triassic formations dry year annual recharge rates are nuch lower than average year rates. For typical water sheds in the Triassic forma-tions, based on the water budget for.the dry year 1966, R. E.

Wright Associates cal <mlated annual baseflow/ groundwater recharge rates of 146,000 - 331,000 gpd/sq. mi. '1he R. E.

Wright Associates study, confirming the observations of prior

(

reports, found that groundwater production rates exceed 100,000 gpd/sq. mi. throughout much of the Monbpirry and Bucks County Area. The Wright study further found that the 1-year-in-10 annual recharge rates to the affected aquifers is ewwvi=1 by current groundwater withdrawals over a relatively large portion of Montgmery County, and is generally pervasive throughout the DRBC designated Groundwater Protected Areas.

'Ihese withdrawals in excess of recharge result in l

lowered water tables and groundwater mining, laarH ng to periodic water supply crises, interference with private heeowner wells, and depleted stream flows.

In-deed, the imhalanced conditions of groundwater use and reliable supply have led DRBC to designate major por-tions of Bucks, Itabgir.ry, and Ches' er Counties as a t

Groundwater Protected Area, 29 C.F.R., Part 430. Under the Southeastern Pennsylvania Groundwater Protected Area regulations all new or expanded groundwater withdrawals exceeding an average of 10,000 gpd in any 30 day period are subject to permit approval. More careful review is h m a=1 on all applications, requiring detailed pmp tests to assess potential impacts on other uses, stream flows and the environment. Conservation programs are required of all groundwater uses. Most important, no new or expanded withdrawals will be permitted by DRBC if,

)

as the result, the total of all withdrawals in a ground-water basin or snhhaain would avM the " withdrawal limit" of the basin or subbasin, based on'the recharge

{

rates available during drought years.

{

The Department in its State Water. Plan has ream-mended that the water suppliers in Bucks and Monbpirry Counties that show an existing or projected yield deficit encourage and support water conservation prograns among their custm ers. Even with water conservation, however, j

supplan. ental and repla<=nt supplies of water are needed to serve current and future demand in the service area of the Neshaminy Water Supply Syst s.

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As part of its evaluation of NNRA's water allocation permit application, DER conducted a detailed review of the public wat.cr supply needs in the projected area.

In that assessment, the Department found that projections by the State Water Plan, the Delaware Valley Regional Planning Ccumission, and NWRA all agreed that there is a clear and pressing need for additional and supplcmental water in the project area.

Presently, the planned service area of the Neshanuny Water Supply System is served by twenty or more public watcr systms which depend alnest cmpletely on wells as their source of water supply. Many peoole still depend on private wells. The result of the developnent of the area is a growing demand for nore water just at the tine when the existing wells are drying up or losing yield because of declining groundwater tables caused by over-pumping, paving over recharge areas, and the installation of storm and sanitary sewers.

Within the proposed NWRA service area, the State Water Plan projects a drought period yield deficiency by 1990 of 27.5 mgd, which will have to be made up with supplemental water developed frm ground or surface water sources. NWRA's projections of yield deficiencies, sub-mitted as part of its water allocation permit request in 1978, are actually slightly lower, projecting a 1990 supplemental water need of 23.1 ngd. By the year 2010, NhTA projects a supplemental or replaccment water need of 39.1 mgd. State Water Plan projects indicate this estinnte may be conservative.

The Department concurs with the DRBC forecast of supplmental water r.eeds for the Neshaminy Water Supply System, included as part of DRBC Docket No. D-65-76 CP (8)

(Figure B).

DER finds that the supplemental water needs for the NWRA service area, shown in Table 2, are reasonable in light of current information and plans. The Dt W -

ment reconfirms its conclusion, made as part of the ap-proval of Water Allocation Permit No. WA-0978601, that the allocation of 40 ngd for public water supply needs, for withdrawal at the Chalfont Treatnent Plant, is rea-sonably necessary to provide suppleental and replaccment supplies adequate to serve present purposes and future needs in the NWRA service area.

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J Table 2 Forecast Supplemental Water Needs Neshaminy Water Supply System Average Daily, mgd Maximum Daily, mgd S.rvice Area or Agency 1981 1990 2000 2010 1981 1990 2000 2ul0

(

C ntral Bucks County 2.7 4.9 5.9 7.3 2.7 7.3 8.9 10.9 Central Montgomery Coynty 7.3 10.5 15.7 18.8 7.3 15.8 23.5 28.2 Minimum Flow Releases 3.5 3.5 3.5 3.5 5.3 5.3 5.3 5.3 Wcter Supply Needs T3'.T TC9 25 T

'FJ 6 ICI 2T'T TC7 44.4 2

Water Supply Withdrawal 14.9 20.8 27.6 32.6 16.8 31.2 41.5 48.8 (1)

Minimum release of 5.3 mgd shall be maintained from 3/1 to 6/15 and 2.73 mgd shall be maintained during the remainder of the year in the Neshaminy Creek.

(2)

Includes 10% for water losses in transit.

The Departnient is convinced that the citizens of

\\

bbntgmery and Bucks Counties cannot continue to rely ahrest exclusively on groundwater for private and public water supplies. A balanced use of surface and growxl water sources (otherwise known as " con-junctive management") is necessary to protect all water users in the region. After smie 15 years of study by the counties, the Deoartnient and the Dela-ware River Basin Cm mission, DER has concluded that the Neshaminy Water Supply System including the Point Pleasant Diversion-Chalfont Water Treatment Plant Project is the most viable solution to provide conjunctive managmient of ground and surface waters capable of serving the citizens of the region.

tbre detailed information on these needs can be found in the report prepared in conjunction with MBA's Water Allocation Pennit m-0978601 and the Statie Water Plan reports for this portion of the i

State.

The apoellants did disclose smn inconsistencies in yield deficiencies reported to Da by certain public water supply cmpanies including those relied upon in the developr,mt of Table 2 above, and appellants did raise smie questions I

regarding population projections upon which future need wus based, but overall the challengers completely failed to negate the weight of the evidence, which

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clearly supports a finding that before 1990 (let alone 2010!) there will be a need to supplcment groundwater withdrawals as a public water supply source in central Bucks and central Montgm ery Counties.

As to the efficiency of water conservation, we rpte that DER assuned that reasonable water conservation measures would be followed, but that an additional source of public water would still be needed.

Water Allocation Pemit No. m-0978601 and the Policy and Guidelines for subsidiary allocations require both NWIM and any retail water system receiving water fran the Point Pleasant Project to implement conservation masures on a continuous basis. NWPA and the retail systms must sutrait and implement an adequate program to encourage water conservation by residential, otmmercial, and indus-trial custcmcrs; and further must implement an adequate, systmatic program of nonitoring, repair, and preventive maintenance to detect, correct, and where possible, pre-vent leakage in transmission and distribution lines.

In assessing the need for the project, both DER and DRDC have considered that reasonable water conservation measures and practices will be followed. Without a con-tinuing conservation program, demand in the area to be,

served would be even higher.

Water conservation is a necessary part of the solution to problems in central Bucks and central MonWwery Counties, but it is not a panacca. The effectiveness of water conservation is limited by the type of residential and ommercial uses served by the public water systes in the area. Cmpared to residential per capita uses in the western United States, which often exceed 300-400 gallons per day per person, total per capita use in the NWRA service area is relatively low (100-130 gped).

Discretionary water uses, such as lawn watering, are not predaninant.

4

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In order to effect conservation savings, basic changes in water-using appliances, processes and habits must be evolved. Because of water pollution control costs and regulatory requirments, many businesses have already inpleented changes in their processes to mini-mize water use, and further reductions are'likely to be more difficult and expensive. Residential uses may be 4

r<vi vw1 by utilization of low-flow pitnbing (toilets, t

shower heads and faucets). While such conservation pltabing may be inpleented readily on new construction, retrofitting of existing h mes will take many years.

The net conservation effect will not be instantaneous, i

but will evolve over time.

i Finally, the volume of water to be saved via con-servation should not be overestimated. Even during severe drought conditions, such as occurred during 1980-81, when people are nost sensitive to shortages and the need to conserve, a savings of only 10-15% in average total public water supply use may be achieved.

This alone is not enough to solve the Ducks-Montgomery water supply proble.

The appellants int 2xvhvwl s ee evidence that in individual residences water conservation in excess of 10-15% can be achieved.

Indeed, one of appellants' witnesses testified about a cxnpletely recycled systs which eliminates sewage outflow and drastically reduces water usage. However, ay11 ants intrev1 vwi no t

r evidence disputing DER's findings which are based upon the aggregate of existing and proposed custmers.

DER ~has sw marized its own position on water conservation as follows (Environmental Assessment, p. 67):

l DER has gone on record many times in support of water conservation. Conservation is considered as the first priority alternative'for satisfying an existing or projected water supply deficit for all water cm panies in its State Water Plan. However, the Department realizes that, at best, this alter-native offers only a short-term partial' solution to the problem.

i

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r-We believe this statament of DER's reprecents an accurate evaluation of the actual facts about water needs in the Bucks and Montgcmery Counties area. The appellants have not cme close to meeting their burden of showing water conservation could be a feasible alternative to NWRA's proposed use of Delaware River water. The Board rejects the suggestion that water conservation,is a basis for holding DER abused its discretion in awarding NWPA its permits.

Ib.

Further Develognent of Groundwater t

Appellants next contended that any ndaitional public water needs could be met by further exploiting groundwater in the area. DER's position on this issue is (Environmental Assessment, p. 69):

In the absence of a concerted regional effort to develop and distribute surface water supplies, and to effect conjunctive water management, the nest d

likely structural alternative to racet public water I

supply deands would involve further developnent of already stressed groundwater resources.

As akeady noted, DER '- along with most of the other agencies responsible for water managanent in this region -

believes that this area is already overdependent on ground-water. Clearly, the problens associated with the recent I

drought illustrate the validity of these concerns.

If groundwater is to be managed as a replenishable resource, withdrawals must be brought in line with groundwater re-charge. We cannot continue to overdraw this region's ground-water basins without facing the inevitable consequences:

lowered water tables, depletion of private residential wells, diminished stream flows (especially 'in sunmer), and, in turn, ruimmi assimilative capacity, higher wastewater treatment requiranents and costs, and adverse impacts on aquatic ecosystms.

If anyone doubts the problans associated with over--

reliance upon, and cmpetition in, developnent of ground-water, the experience of the past year of drought should be sobering. In 1980 and early 1981, the region endured a period of moderate to serious rainfall shortages, but far less than a record drought condition. Nevertheless,

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by March 1981, over 4,000 d mestic wells in eastern Penn-sylvania had gone dry as a result of this drought event.

Fcur thousand f ailies found th mselves without water for i

essential drinking, sanitation and other domestic uses.

The costs of replacing these supplies represented an eco-i namic loss of over $6.7 million, borne primarily by these hameowners. The area surely does not need a record drought to make the point nore clearly.

Theoretically, it might be possible to serve the more develop:xl portions.of Bucks and Montgmery Counties by in-stalling a wide ranging syste of wells in the rural areas, l-with water lines conveying groundwater to the already over-pW cannunities. Even if econmirally feasible (which is open to see doubt), for envire.icutal reasons the De-l partment would express serious reservations regarding such a sch me.

4 In order to develop a well syst s, yielding 40.mgd public water supply capacity equivalent to the Point Pleasant

i Project, a large neber of wells u

Jald have to be dispersed in a pattern which extracts water efficiently, but avoids i_

s= ding the recharge rates of the involved aquifers. Even l-assuming that normal year recharge ratea of 300,000 - 600,000 gallons per day per square mile are the limiting factor, and that no other users were in the area, such a groundwater i

develognent project would involve a minimtsn of one or more l

wells in each of over 65-130 square miles. Based on water budgets in a dry year, as calculated by R. E. Wright Associ-ates, s ee 120 to-274 square miles would be required.

(To l

serve the cooling water needs of the Limerick plcat, an equivalent well project would be involved.)

Unless such a well syst s were dispersed far from the i

existing areas of heavy groundwater use, it. oculd lead merely to further exacerbation of the groundwater mining problem.

Groundwater mining can occur whether the withdrawals are made by a few wells, or many dispersed wells; the problem 4

j arises whenever the total amount of groundwater withdrawals in an area exceeds the recharge in the area.

In portions i

of the lentwiery and Bucks County region, groundwater withdrawals already approach or exceed recharge rates. The comunities 4-adiately adjacent to these areas are developed in large part, and also primarily rely on groundwater through.

haneowner or public water syste. wells. Placing additional walls in these nearby comunities to serve the existing " ground-

" water mining" areas is likely to cambine with local uses to sinply spread the " mining" areas.

[

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t The R. E. Wright Associates groundwater study plotted the density of current groundwater uses in the area. Based 1

i on the use densities and recharge rates of local aquifers,

)

in order to avoid interference with neighboring uses, a supplemental well system to serve the needs of the Iansdale, Hatfield, Warrington and Warminister areas would have to be 1

sited at least 6 to 10 miles fran those camunities, in undevalmael areas or in less developed portions of other nunicipalities and other water ccupanies.

i Placing a syste of wells in more raicte rural areas would naturally involve installing an extensive series of water transmission lines through now undevaW lands. But placing a widespread network of water lines in rural areas i

would provide an attraction for suburban developnent in those rural areas, most likely leading to the same ground-water overuse problems now being experienced.

Even if a dispersed well system did not lead to ground-water mining, it is likely to create probles of local in-l terference with haneowner wells. Most haneowner and farm wells in rural areas of this region are relatively shallow i

(fran 50 to around 200 feet deep). New wells developed to serve subdivisions or comunity water supply systes are likely to be deeper and more powerful _than the typical i) haneowner well. As seen in a series of recent cases in Montganery, Bucks, Chester and Imhigh Counties, such t

developnent may create cones of influence which draw down water tables in nearby shallow wells, causing interference and/or total depletion. The more ground-1 water is relied upon as the abnost sole source of supply, the more prevalent these problens are likely to becane.

I The Department is equally disturbed by the g vo g t i

that dispersed well developnent would tend to attract and encourage a checkarhami of subdivision develognents, j

' with attendant adverse environmental, social and m. sid.c j

impacts. The most likely sites for supplemental well fields-to serve central Bucks and Montganery Counties fall within 1

areas of prime farm lands. Both counties and the Cu...

.. :r.lth have expressed policies to protect and conserve these valuable i

soil and land resources. Encouraging more groundwater develop-t-

-ment in rural areas as a solution to water-shortage problens would tend to undermine these prime farmland gvuiction policies.

j-2 L

Thus, as an alternative solution, further developnent of j

. the groundwater is unsatisfactory fran many pm..gtives, and the Department finds it an unacceptable option for this region.

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i h only issue raised by appellants regarding this alternative was the possibility of locating public water supply wells in rmote rural areas to supple-ment existing groundwater witixlrawals. DER, in the section of the Envirorvrental Assessment quoted above, has addressed this concern' In the opinion of this Board DER has satisfactorily explained why the rural W11 solution is not an appropriate alternative.;

ic. Utilization of Lake Galena S

The next alternative to be analyzed is the use of Iake Galena. DER's assessment of this alternative follows (Enviromental Assessment, p. 71):

Proposals 1.have been made that the storage of Lake Galena (PA-617) alone be used to supply public water supply needs, without augmentation by waters diverted fran the Delaware River.

Iake Galena was designed incorporating a long term water supply storage capacity of 5000 acre feet (1.63 billion gallons). ' The gross yield of this storage in a drought of record would be 9 mgd. Accounting for the minimum continuous conservation release'of 1.5 rigd re-quired to protect downstream areas on the North Branch Neshminy, the net yield of Lake Galena is 7.5 mgd.

It is assmed this water would be picked up at Chalfont, treated arx1 distributed under arrangements and conditions similar to those contmplated by the proposed Point Pleasant-Chalfont project. Reservoir storage cambined with the natural flow of Pine Ant and the North Branch Neshaminy, would yield approxin:ately 8.5 mgd at Chalfont.

.s i

As noted previously in part 3.A. of this report, the supple ental average daily water needs in Central Bucks and Central Montgmery Count.tes totalled 14.9 rigd in 1981, and are expected to rise to 20.8 ngd by 1990.

i Lake Galena alone could not serve the public water supply d e ands contm plated within_the service area of the Neshminy Water Supply Systm.

'Ihe storage yield of Lake Galena might serve a portion of the NWRA service area, or- (as contemplated by the proposed project) serve a portion of netxin in the entire service area. Considering the mininun flow requirements in the North Branch Neshaminy below Chalfont (averaging 3.5 nyd), Lake Galena alone would barely meet the 1981 needs~of Central Bucks County (2.7 ngd + 3.5 mgd, or h total of 6.2 mgd). By 1990, the projected average daily supp1 mental water supply denand of 4.9 mgd in just Central Bucks County, coupled t

y s

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with the required flow rates below Chalfont - totalling 8.4 mdg - would exaced the net yield of Lake Galena and just barely te covered by the canbined yield of the reservoir storage and natural stream flows. The combined yield of L

Pine Run and the North Branch Neshaminy watersheds (in-

)

cluding Lake Galana storage) would clearly be inadequate to serve Central Bucks County needs beyond the year 2000.

Use of Lake Galena alone, without the Point Pleaeant Project, would engineer addtional drawocms of lake levels

", i and fluctuations of pool elevations, e w ially through suttner months. Certain recreation uses at Peace Valley e

,v#

Park would be sacrificed to meet water supply demands, and fish spawning areas in Lake. Galena would be eliminated.

C I

(

Because of the inadequacy of Lake Galena to meet the

. f, public water supply denands of the Heshaminy Water Supply M

Systan service area, the inpacts and costs of this alter-av F,,

native must be considered in conjunction with one or more other projects required to address the entire regional water supply problen.

The appellants did not deny the inadequacy of Iake Galena, alone, to supply even the near future needs of Central Bucks and Montganery Counties.

Pgpellants did urge that Lake Galena should be used along with other sources of water to supply these needs. As NWBA points out, however, L E Galena's capacity along with that of Pine Run will be utilized in the presently designed project. We cannot agree that the possibility of using Lake Galena's water shows DER's issuance of the WRA permits was an abuse of discretion.

<g; Id. Utilization of Lake Nockamixon 6

/

Use of Lake Nockamixon as an alternaitve to the instant NWRA project

/

j > also has been proposed. On this subject DER writes:

i Suggestions have been made that a direct withdrawal fran the State-owned Lake Nockamixon be used in lieu of a

. p' diversion at Point Pleasant, as the source for the NWRA

,/

water supply.systen. Since the Depart 2nent of Envim-ital

'3 Resources constructed and operates this facility, it has A~

sane knowledge and views regarding this option.

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When the Department constructed Nockamixon Reservoir, storage was included in the reservoir for lorg-tem future water supply needs. However, DER developed the project with the understanding and plan that it would be operated as a single purp recreation facility until at least the year 2000, before any water supply would be utilized. Under this asstmption, the recreational. facilities along the lake were designed to a "- - hte a five-foot drawdown, which is only slightly greater than the normal drawdown resulting frun low flow releases and evaporation. Any water supply usage would cause much greater drawdowns, necessitating the redesign and modification of these facilities, in aMition to substantially reducing the recreatinna11 usefulness of the lake. In light of the fact that Lake Ibckamixon and the i

surrounding State park provide a major regional recreational resource, which is heavily used by citizens of the five-county metropolitan area, DER would be extremely reluctant to reduce its recreational capacity at this time in order to allow water supply usage, unless no other feasible, cost-effective alternative for public water supply were available.

Even if Lake Nockamixon were to be uH1iM for public water supply, a direct diversion frun the reservoir would not be the most efficient node of operation.

It would be preferable to use Lake Nockamixon in conjunction with a downstream diversion on the Delaware, such as the proposed Point Pleasant withdrawal. In this mode, moderate to high flows on the Delaware could support public water supply for most.of the year, while the available storage in Nockamixon is saved to augment available flows during dry periods. In contrast with a direct reservoir tap, which draws cn storage all the time, a river withdrawal-reservoir augmentation arrangenent would greatly enhance the yield frun Lake Nocka-mixon and allow more water to be made available when it is most needed.

There is an additional disadvantage to a direct tap-off of Lake Nockamixon. Such a withdrawal would make the NWRA systan heavily reliant on continuous operation of the Lake.

However, it is probable that at several points over the life of the facility, the Lake will have to be drawndown for in-spection and perhaps maintenance and repairs. It would be extremely hard to take the. reservoir out of service for maintenance if it were to 1==

the direct and sole, or primary, water source for the entire NWRA system.

In stmmary, DER cannot endorse the use of Nockomixon Reservoir for public water supply at this time. It is serving a large public demand for recreation, while providing same backup insurance for drought protection to the Delaware Estuary.

In addition, the Department notes that swial legislative authority would be needed for DER to sell water frun Nockamixon or any other State-owned reservoirs.

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'Ihe appellants argued that if Lake Nockamixon can be used during drought to augment Delaware River flow, why can it not be nw as a water supply source.

DER answered this argunent, to the satisfaction of the Board, in the above quoted I

section of the Environmental Assessment. Ama11 ants also attasyted to show that l

l DER had been considering certain releases for Iake Nock =4vra to support recrea-tional boating on the Tohickon River. However,.the only thing clear about these negotiations is that they did not conclude in any agreement. Also, appellants intrnhw1 no testinony shouing that Lake Nockamixon could supply all of the water supply needs of Central Bucks and Montgomery Counties. '1he Lake Nockamixon alternative is rejected.

le. Withdrawals Frcm the Schuylkill River

'1he withdrawals discussed supra were concerned mainly with the water i

needs of the central Bucks area. The appellants also raised a number of alter-j natives relating mostly to Montgcmery County needs. The first of this,latter set of alternativ's, namely the use 'of Schuylkill River water, has been addressed e

by DER as follows (Environmental Assessment, p. 74):

Cmments have been received suggesting that Montgcmery County utilize withdrawals fr m the Schuylkill River for public water supply, rather than interconnect with the IMRA system.

It must be recognized that Montgcnery County has made a good faith effort to develop the resources of the Schuylkill River. Several cmmunities, incluiing Norris-town and environs, derive their water supplies directly frca the Schuylkill, and others are now using groundwaters of the Schuylkill Basin. Philarlalphia Suburban Water Ccmpany has intensively developed the Perkicnen Creek watershed, via its Green Lane Reservoir and intakes near the confluence with.the Schuylkill River.

In fact, the Schuylkill River is the most intensively used watershed in the entire Ccumanwealth, and its resources

~

are already used and reused to close to their practical limits. '1he City of Philadelphia now withdraws an average of 180 mgd frum the Schuylkill for municipal water supply.

However, the Schuylkill's reum.d seven day average low flow is 200 mgd. The lower Schuylkill is heavily indus-

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. trialized, while the uprer reaches sustain considerable agricultural production. According to State Water Plan assessments, withdrawals in the Schuylkill River watershed today total over 950 mgd. During low flow periods, every drop of water flowing in the Schuylkill River is used five to six times over. Even with modest increases in use, the potential conflicts among agricultural, power, nunici-pal, industrial, and other uses during drought conditions are obvious.

J l

Unfortunately, e i.anities for developing further storage in the Schuylkill watershed are ext. rain.ly limited, due to geology, past mining activities in upper reaches, and the location of comunities in several of the tech-

{

nically viable reservoir sites. Both the State Water Plan i

and the DRBC Ievel B Study indicate that technical, environ-mental, s.uu-nic.or social conditions virem11y preclude developnent of significant new surface water storage fa-cilities in the Schuylkill Basin in the foracamble future.

[

Because of the already intensive use of the Schuylkill, we must conclude that.further significant withdrawals for i

public water supply would not be the optimal choice to serve regional needs. Such increased use on the Schuylkill would likely lead to further quantity conflicts, and be--

cause of the increasing factors of reuse, a further bdlam l

of total dissolved solids and deteriorated water quality.

Little more needs be said concerning this Schuylkill alternative.

The appellants ccmpletely failed to rebut DER's findings with any testimony.

'Ihe Board adopts DER's findings (and rejects the appa11 ants' contentions) on i

1 this alternative.

If. Other NWRA Alternatives Other alternatives-to NWRA use of Delaware waterMch have been advanced but have not yet been discussed in this Adjudication. include:

(1) develognent of Evansburg Reservoir; -(2) import of Susquehanna River water; (3) construction of an'irdopodent MonWw&y County water supply; and (4) use of the City of Philadalphia's water supply. We see no reason to burden this al -

ready excessively long Adjudication with quotations fran DER's Enviu.a.i mt.al Assessment of thee:s alternatives, which bear primarily on MonWeimy County needs.

Suffice it to say that DER gave serious consideration to these alternatives, and that the appellants offered no credible reasons to disagree with DER's rejections of these alternatives.

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Indeed, DER's analysis of the NWRA alternatives went well beyond the legal requirements 4W by DER's regulations and/or Article I Section 27 of the Pennsylvania Constitution. The Board has stated recently (CooZspring Township U. DER, Docket No. 81-134-G (Adjudication, August 8,1983) at 47):

The Township appears to challenge this conclusion

[that there has been canpliance with the second 4

prong of the Payne v. Kassab test] with the con-tention that DER could have found 'other more suitable sites renoved fran the public'. But the Township cites no authority holding that under the -,md prong of the Payne v. Kassab standard it is DER's affirmative duty to seek out alternative possibly nere suitable sites than the site Higbee originally proposed. Al-though the holdings of the Pennsylvania courts l

on this issue are not cczupletely clear, it does seem that DER only has the duty to minimize the

'imnediate' envim.-uital incursion, i.e., the environmental incursion pr @ v wl by the 4 - adt-ate project DER is evaluating. Swartwood v. DER, 56 Pa. Orwlth. 298, 424 A.2d 993 (1981); Mignatti j

v. DER, 49 Pa. Otwlth. 497, 411 A.2d 860 (1980);

Delaware County Ccmnunity College v. Fox, 20 Pa. Onwlth. 335, 342 A.2d 468 (1975). Iri fact, requiring DER to perform its own search for alternative sites every time it receives a per-j mit application would put an almost impossibly heavy burden on DER. As the Township rightly argues, if DER had the affirmative duty of finding alternative sites, it hardly could rely on the applicant's assurances that there are no superior alternatives;-such assurances actually were re-ceived fran Higbee. A search for alternative sites might be DER's duty when the pu.q-M i

operation.is e-poete:d to produce serious environ-mental incursions, but no such =>@ucted incursions have been shown in the instant ag = al.

NNRA's post-hearing brief, noting this language fran Coolspring, supra, argues (att 271:

~

_~

It is apparent that 'the Department fully can-plied with the requirements set forth in Section 105.15(b)(2) of its regulations relating to con-sideration of alternatives. The Department fully assessed, and in sane cases reassessed, all viable alternatives, including all alternatives posited by

[

appellants. 7 hat alternatiives other than the al--

ternatives considered by DER could possibly'have L

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been considered is not cause for reversal, especially

.in light of this Board's recent pronounement in Coolspring Township, supra.-

NWRA's cite to Coolspring is not empletely apposite, because in the instant appeals (unlike the situation in CooZspring) possible serious enviremental 1

incursions have been identified, and have been the basis for the r eand to DER we are ordering. On the other hand, the above quotation from NWRA's post-hearing brief correctly points out that DER did affirmatively examine a very wide variety of suggested alternatives to the sq_-:*i project, despite the very heavy burden this examination 45-:*3 on DER. The a p ilants have not shown that DER overlooked alternatives which reasonably might have been expecuad i

to mitigate the aforesaid enviromental incursions requiring remand. For the one possible exception to this last assertion, namely the possible erosive I

impacts on the receiving streams, we have ordered DER either to rMw the erosion to insignificance or to balance the need for the project against the minimized erosive impact (subsection III C 1 supra).

l-In short, excavi. possibly for deficiencies involving erosive effects l

on the receiving streams (which deficiencies will be r-MM on reand), there has been no showing-in the light of Article I Section 27-that DER's issuance of the permits was an abuse of discretion for failure to adequately examine alternatives to the IMRA portion of the Point Pleasant project. The same con-clusion holds for 25 Pa. Code SS105.14-105.16 which-in an apparent attengt to i

guarantee DER ompliance with Article I Section 27--do require that DER take affirmative steps:

(1) to minimize the enviremental incursion; and (2) to

. balance the residual minimized incursion, if still significant, against the i

j-expected benefits of-the project.

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j 2.

PIDO Alternatives A very considerable portion of the record in this matter deals with the possibility of using the Blue Marsh Reservoir which is located upstream frm Limerick on Tulpehocken Creek, a tributary of the Schuylkill, as a source for cooling water for Limerick. We are convinced frm a careful revies of this record that Blue Marsh would not be even a technically feasible alternative to provide cooling water to both Limerick units.

Whether Blue Marsh is a technically feasible source of cooling water for one unit of Limerick is a closer question. For starters, the parties argue vigorously as to whether the 41 cfs which must be released at all times fr a Blue Marsh-to preserve the aquatic ommunity downstream therefrm on the Tulpehocken Creek--could be counted as a release usable by Limerick. See of this water would reach Limerick. However, this release constitutes the Q(7-10) low flow in Tulpehocken Creek.

In other words, it is the lowest consecutive 7-day flow occurring (statistically) once in ten years; it does'not represent water which was added to the Schuylkill Basin by creation of the Blue Marsh Reservoir, but rather the pre-reservoir flow of the Tulpehocken under low flow conditions.

Thus, we think that DER was right to not count this flow in ascertaining the f

l technical feasibility of Blue Marsh.

j i

he next issue regarding Blue Marsh was whether DER should look -}ust I-at the 8,000 acre-feet reserved in Blue Marsh for water supply, or whether it should also look at the 6,620 acre-feet of storage in Blue Marsh reserved for water quality augmentation. This is important because in an average year Limerick would need a cooling water supplenent on 146 days, which equates to a need for i

9,344 acre-feet. m us, the 8,000 acre-feet alone-clearly would be insufficient even in an average year (and this doesn't count. the 8 mgd of the 8,000 acre-feet i

which is reserved for the Western Berks Municipal Authority). If, on the other

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hand, the entire 14,620 acre-feet were available, Blue Marsh might be sufficient to satisfy Limerick's naada.

If the Blue Marsh release were given to Limerick, however, up to 21 ngd of this flow would be 4-adiately constmptively used at Liwrick (asstaning full operation of one unit); thus these 21 ngd would not be avni1ahle for main-taining flow in that portion of the Schuylkill downstream fr a Pottstown.

t Although we clearly understand the desire of the ama11 ants to avoid the Point Pleasant project, we very nuch appreciate that it is DER's duty to protect the lower reaches of the Schuylkill. % erefore, we agree with DER that even tech-nically the Blue March Reservoir is not a viable alternative to PfI:O's pr-1s for Limerick cooling water.

Further, there are many legal imad4=nts to the use of Blue Marsh.

Blue Marsh is owned by the Army Corps of Engineers, which operates the Reser-voir in cooperation with the DRBC. h us the DRBC would have to authorize the useofBlueMarshforidmerick. The reasons why such authorization is most unlikely are succinctly described by Mr. Weston, who is not only a DER official but also is Pennsylvania's alternate ccanissioner on the DRBC.

In addition, even if the DRBC permitted Limerick to use Blue Marsh, f

and even if this were a technically viable solution, it would still not be an i

acceptable alternative given the requirenent in PE00's DRBC Docket that PECO cannot withdraw water fran the Schuylkill for cooling water purm when the Schuylkill's f1"' at Pottstown falls below 530 cfs (for one unit or 580 cfs for both units). Se testimony of DER's witness, Stephen Runkle, that Blue Marsh l'

(even all 14,000 acre-feet of it) could not sustain a flow of 530 cfs in the Schuylkill during the second and eighth worst drotmht years was not cxmtradicted.

Indeed, 5 times as nuch water would be naadad.

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Finally, we note that recreation is one of the prin1e purposes of Blue Marsh, that Blue Marsh has a beach and a boat launching area, that Blue Marsh is used continuously for recreation during the sunner months, that the recreational use of Blue Marsh depends upon maintaining a permanent pool level in the Reservoir and, finally, that withdrawals fran Blue Marsh for Limerick would lower this pool and interfere with the recreational use of Blue Marsh.

In fact, the use of Blue Marsh has been thoroughly studied by DRBC and Blue Marsh has been identified as the sole substantial reservoir on the Schuylkill through the year 2000. Its future has been ccmnitted to all would-be users of water downstream fran Tulpehocken Creek. Giving all of this water supply to one consumptive user is not just poor water planning, it is sinply unfair.

Also suggested as alternate sources for Limerick are proposed Red Creek and Mill Creek Reservoirs. These proposed sites have been discussed

.as alternatives *to the unbuilt Merrill Creek Reservoir, but neither site is approved by the DRBC ncr under construction.

'Ihe appellants also suggested that it would be a viable alternative for the City of Philadelphia to transfer its allocation fran the Schuylkill to PECO. In the first place, DER countered, this alternative would deprive the lower Schuylkill of the water consumed at Limerick, whereas withdrawal by Philadelphia at the nouth of the Schuylkill would not have this effect.

In addition, Mr. Weston testified that Philadelphia's allocation is not trans-ferable and thus could not be transferred to P900. Ilis testimony is uncontra-dicted.

In sumnary, there also has been no showing that issuance of the per-mits was an abuse of DER's discretion for failure to adequately consider alter-j natives to PECO's part of the Point Pleasant project.

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a e

Before leaving the subject of alternatives to the project, we feel ocupelled to state our view that appallants' attacks-whether on the NWRA or -

the PEDO portions of the project-display a disregard for the orderly sucess whereby public projects are planned, designed and constructed.

The testbnony of several witnaaaaa concerning wa*.cr quality planning, e' specially of the extranely well-qualified R. Timothy Westcan, shows clearly that the consideration of needs for alternatives to water supply projects is best addressed in the planning s uca s.

'Ihe Point Pleasant project has been W_ to intensive planning since 1966-a detailed history of DER and DRBC reviews appears above. DER, especially in the State Water Plan, and DRBC, aWally in its Ievel B study, reviewed the need for the Point Plaamant project and each of the alternatives discussed above. 'Ihis Board and the courts of this Ccmnonwealth in the related field of sewage facilities planning have nede it abundantly clear that the time to challenge the planning sucess is when the plan is being formulated, not-later (and collaterally) when it is being inplemented. Kidder Township v.

Commorusalth, Department of Environmental Resources,'399 A.2d 799 (Pa. Otwith.

1979).

ittile we r%uize that, unlike planning and permitting in the sewage facility arena, the present planning and permitting prmaaaas are not explicitly bound together by court decision or statutory language, we agree that DER need not " reinvent the wheel" with each permit application. At the very least, the Na~ct that DEF. followed the reocumendations of the State Water Plan and DRBC's Ievel B study in approving the Point Pleasant project is strong evidence that DER'.s decisions to permit.the project were reasonable.

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IRO USE Appellants also challenge the secondary inpacts of the Point P. wsant project. 'Ihey argue that by providing abundant supplies of public water 1 areas where water is scarce today, undesirable growth would result. 'Ihis argu-ment fails to find either factual stpport in this record or support in the law.

As to the lack of factual support, it is noted there is not a scintilla of evi-dence in this record that the Point Pleasant project would induce undesirable (or even desirable) growth in Bucks and Montgmery Counties.

Perhaps nore importantly, under Pennsylvania law, local governments-not the state-are assigned the right and power to determine the type and rate of growth to occur within their jurisdictions.

They, and not the state, are considered to be the trustees of Pennsyl-vania's public natural resources in this regard. Cyrit Fox, supm.

G.

(I:NCLUDING IEMARKS Even with this lengthy Adjudication, we have not dealt bth all of the appellants' myriad of contentions and charges. However, we believe we have dealt with any grounds raised by the appellants which conceivably oculd be of me'rit in these appeals. We therefore state categorically that any of appellants' contentions which have not been specifically ruled on supm have been rejected as wholly without merit.

In particular, we have been given no urgent reasons to overturn DER's issuance of a water quality certification to the Corps of Engineers, pursuant to S401 of the Federal Clean Water Act (see substetion III A 2). 'Ihat appeal, which has not been specifically discussed supm, is unequivocally dismissed, irak-peident of our ultimate resolution of the ' standing issue discussed in sub-i section III B 1 supm.

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We also observe that all our rejections of appellants' contentions have been based on the merits of those contentions. By so doing, we have avoided reliance on principles of issue preclusion, which for many of appellants' conten-tians well might have been applicable; as our review of previous related actions in mMon III A 3 has indicated, the envircrmental 12rg:ts of the Point Plaanant project have been litigated M relitigated in agency decisions and court rulings alike. As we have proceeded,.however,. there has been no-need to rule on the difficult issue of whether other agency rulings would be as preclusive as rulings by courts of record, nor have we had to decide whether the subjects on which we have ruled really were adequately litigated in previous hearings.

We add, importantly, that insofar as we can judge there have been no previous litigations-by which we should feel boundkf any of the issues which we hold require renand, namely:

(1) the need for NPDES permits; (2) the requirement that the need for the project be balanced against the impact of erosion on the receiving streams, if the velocities in the East Branch or the North Branch cannot be radW to 2.O fps; and (3) the requirement that PEE)'s permit be conditioned to call forth a cutoff when the Bucks Road gauge reads 125 cfs.

Except for our rulings that the permits are renanded to be conditioned in conformity with the requirements (1) - (3) just suimarized, the appealed-fran permits are upheld, as not having been shown to be an abuse of DER's discretion.'

7.

This assertion explicitly applies to the " Initial Decision" of PUC Adninistrative Iaw Judge Isadore Kranzel, Docket No. A-00103956 (pr 12, 1983).

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i CONCUJSIMS CF IAW 4

1.

'Ihe Enviru_.tal Hearing Board has jurisdiction over the parties

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i and subject matter of the consolidated =,===1.

l 2.

'Ihe Environmental Hearing Board's scope of review in this consoli-dated===al is to determine whether the Department of Envisu imaital Resources

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has ocenited an abuse of discretion or an arbitrary exercise of its duties and powers.

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3.

Ag =11mnts Del-Aware Unlimited, Inc., et al. and intervenors i

i Friends of Branch Creek have the burden of proof in this appeal.

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j 4.

A National Pollutant Discharge Elimination Systan Permit is re-quired for the diversion of water fran the Delaware River to the North Branch Neshaminy Creek and to the East Branch of Perkianen Creek.

l 5.

'Ihe Department cosoct.ly applied Subchapter G as opposed to Sub-chapter F of the Department's Chapter 105 regulations in rev'iewing NWRA's and 4.

PE00's applications to construct outfall structures in the North Branch i

Neshaminy Creek and the East Branch of Perkiomen Creek. 'Ihis Subchapter re-I 4

quired the Department to consider the erosive inpacts of these outfalls.

6.

DER's analysis of alternatives to the Point Plaamant project, 4

l as presented in its Envirersnental Amaan=nent, nore than satisfied the require-j ments of Article I Section 27.

7.

'Ihe Department emplied with its Chapter 105 regulations in

{

preparing the Envisui _ iial Assesment, including its consideration of alter-natives.

j 8.

Under Article I, Section 27 of the Pennsylvania Constitution the Department's actions naast asset the three-fold standard Wi.d by the court in i

Payne u. Kassah,11 Pa. Omrlth.14, 312 A.2d 86 (1973), A dismissed, i

l 4

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14 Pa. Orwlth. 491, 323 A.2d 407 (1974), aff'd, 486 Pa. 226, 361 A.2d 263 (1976),

for empliance with Article I, Section 27 of the Constitution.

9.

Because it did not require NWRA and PECO to obtain IPDES pemits, DER did not omply with the first of the three Payne standards, i.e., DER did not ensure canpliance with one of the statutes relevant to the protection of the l

Ccmnonwealth's public natural resources; however, the requirenents of Article I Section 27 will be satisfied.by conditioning the appealed-frun permits so as to forbid actual discharges into the receiving streams before these NPDES permits are received and canplied with.

10.

In order to cmply with the second and third of the three Payne standards, DER should have required NWRA and PECO to cease discharges if and when the flow velocities of the respective creeks below their outfalls exceed 2.0 fps, or, in the alternative, DER should have quantified the damage to the receiving streams caused by velocities above 2.0 fps and detennined that the benefits to,be derived fran the project would clearly outweigh this environmental i

harm.

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11. DER has met the expressions of the Payne standards contained in l

25 Pa. Code Chapter 105, particularly at SS105.14(6) (7) and (d),105.15(b) (2) and I

(3), and 105.16 (a) and (d), except possibly for erosive effects on the receiving streams (see Conclusion of Law 10 supm).

12. The present deficiencies of the permits vis-a-vis the second and third prongs of the Payne standard can be corrected by remand as per conclusion of Law 10 supm.

13. DER did not abuse its discretion in reaching the conclusions of no significant envim xntal impact regarding the following issues which were l

addressed in the Envim.=utal Assessment:

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A.

Operational inpacts of intake structure on the Delaware River (1) aquatic ecology (2) low flows (3) salinity (4) water quality (all aspects)

B.

Delaware Canal (1)

Installation Procedure (2) Aesthetic, Scenic and Historic-Considerations (3) Archaeological Impacts C.

Land Use D.

Wetlands along East Branch Perkicanen Creek E.

Alternatives

14. The property interests of riparian landowners on the North Branch are sufficient to confer' standing to appeal DER actions affecting the North Branch.

15. Del-Aware has representational standing to appeal, if at the time it filed its a'ppeal there were members of Del-Aware who had standing to appeal.

16. Though Del-Aware has been granted provisional standing, NWRA retains the right to danand proof of the facts on which Del-Aware relies for its repre-sentational standing.

ORDER WHEREEORE, this 18th day of June, 1984, the Board r eands all the outfall permits to DER for actions--on (1) NPDES permits; (2) erosional impacts; and (3) Bucks Road gauge determination of PB00's flow cutoff--oonsistent with the acompanying Opinion; the Board retains jurisdiction. 'Ibe appeal of DER's water quality certification is dismissed.

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y IDARD GE20UOY, ManDer

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