ML20093F555

Requests Commission Address Potential for Alternative Sources for Supplemental Cooling Water,Per Del-Aware Unlimited 840523 10CFR2.206 Petition.Response to Petition Requested within 30 Days.Related Documentation Encl

ML20093F555
Person / Time
Site:	Limerick
Issue date:	07/13/1984
From:	Sugarman R SUGARMAN & ASSOCIATES
To:	Harold Denton Office of Nuclear Reactor Regulation
References
2.206, NUDOCS 8407190341
Download: ML20093F555 (164)

Text

-. .

2:

SUGARM AN, DENWORTH & H ELLEGERS ATTb!".N EYS AT L AW ROSERTJ.SUGARMAN ISTM FLOOR. CENTER PLAZA SUITE 835 i N  : JOANNE R. DENWORTH 101 NORTH BROAD STREET 1201 PENNSYLVANIA AVENUA N.W. I JOHN F. HELLEGERS PHILADELPHIA. PENNSYLVANIA 19107  : o y y so

' COSfN T. LOCKE (215)751 9733 ROBERT RAYMOND ELLK TT. P. C.*

COUNSEL

• n o eastTED IN PA.

July 13, 1984

~Mr.~ Harold Denton Director.

. Office of Nuclear Reactor Regulation

.U.S. Nuclear-Regulatory Commission Washington, DC '20555

Dear-Mr.lDenton:

'In light of your response to my letter of May 23, 1984, I would like to have -you treat. that letter and this . letter as a

. new ' petition under 10 CFR 2.206.

Accordingly, I request that you

consider my May 23, 198/ letter, as a 2.206 petition, which this

~1etter will supplement.

.On .' June' 18, 1984, the Pennsylvania Environmental Hear-

'ingEBoard held that the PECo discharge into the East Branch

Perkiomen Creek'.would require compliance with water quality standards. Bucks- County's engineers have determined that this would. require- a ! sewage treatment plant .in order to remove the heavy metals contained in- the : Delaware Rive 2 water, and other pollutants,-and-that the.timeframe to provide such~a system would be three;toLfive' years.

a; On June-22, 1984,:-the Pennsylvania PUC indefinitely

• postponed a decision on PECo's request for permiss' ion to build

~ .the-Bradshaw Reservoir and pump station, a necessary portion of the proposed, diversion, because of the EHB decision.

Copies of the-Environmental Hearing Board decision and ithe PUC order.are. enclosed.

On July ~6,.1984, the Pennsylvania PUC adopted a resolu-e . tion establishing a new! investigation into Limerick. Unit II, and

in that order, required' that the Philadelphia Electric Company show cause why the completion of Limerick Nuclear-Generating

, Station, Unit II, would be in the public interest. A copy of PUC Motion ~is enclosed.

.This combination of circumstances, along with those

. previously ' asserted by Del-AWARE in its previous 2.206 proceed-l 8407190341 840713

-t PDR ADOCK 05000352 Q PDR hCdb\ \

r -

Mr. Harold Denton 2 July 12, 1984 ings (which are incorporated as being cumulative to the present one), require, in our view, that the Commission now address the potential for alternatives, and consider the impact on the appli-

/ cant's ability to operate the plant as proposed.

In light of the circumstances, you are requested to re_spond to this 2.206 petition as quickly as possible, and your failure'to respond within thirty days, will be treated as a denial for purposes of appeal.

Sin rely,

\

\

Robert J. Sugar \ an Counsel for Del-AWARE Unlimited, et. al.

r10.rjs/sp enclosures

y y-

{ X.

-

p :;,. y p r v.' . 7 e

.V ,

C2HIMEAL'IH T PHUSYLVANIA BElmRE 'IEE DNIPOt4ENIAL HEARDG BCERD f DEZ,-AHARE (MLIMITED, DC., et al.  : E.H.B. DOCKE7f NOS. 82-177-U

82-219-11 V.  :

Dam Safety and Encroachments Act, 0390MEhL'IH T PSMSYLVANIA,  : .

32 P.S. SS693.1 et seq.

DEPAMMENf OE' DNIRCtNENTAL RESOURCES : Clean Streams Iaw, 35 P.S.

and NESHAMDE NATER RESOURCES  : SS691.1 et seq.

AITHERITY and PHIIADELPHIA ELECIRIC  : NPDES Permits -

031PANY  :

ADJUDICATION J

g,.

.By the' Board, June 18, 1984 This adjudication was drafted by Dennis Jay Harnish, Esquim, former Chairnuws of the Board, who heard this matter. The adjidimtion has been reviewed and approved with see difimtions by Edward Gerjtry, Esquire, one of the two ra==inimy nuunhars of the Board. 'Ihe other member, Anthony J. Mazullo, Jr. has recused biinaalf at the request of the appellants. Prior to g @ etion of this

. adjudication, all the parties have agreed that - under the ciretmstances -

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

.S21.86 concerning final dar f alons.

I I. PROCEDURAL STATEMENT This adjudication concerns various permit applications filed with the Pennsylvania Department of Envircrznental Resources (DER or Department) by the PM1=4=1! *tia Electric Ccxupany (PEDO) and Neshatiny Water Resources Authority s (NMRA) (collectively " Applicants") for the Point rieasant diversion project, by t-p which NNRA proposes to provide water supplies for Montgmery and Bucks Counties and PE00 proposes to obtain suppleental cooling water for the Limerick Generating l

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

L_ _

c 3

. ^ .-

\,

)

Under their agreement inter se NWRA will operate the Point Pleasant Punping Station, which will transmit water pmped from the Delaware River through

c_ jointly utilized transmission main to the Bradshaw Reservoir. From there, IMRA will divert water via the North Branch Neshaniny Creek to the North Branch Maste Treatment Plant at Chalfont. PEDO will take water frcIn 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, rew;- r 18,1981 and January 7, 1982, respectively, PEDO filed applications with the Department pursuant to the Dam Safety and Ehcroachments Act, 32 P.S. SS693.1 eC seq. , Flood Plain Management Act, 32 P.S.

GS679.101' et seq. and The Clean Streams Law, 35 P.S. SS691.1 et seq. for three permits facilitating the diversion of this water-to the Limerick facility (PKD Exhibits 8, 9 and 10). An=iingly, on Swi.=Juer 2,1982, the Department issued ,

PB00 Permit No. ENC 03-51, permitting construction and maintenance of a water

. i supply,pipalina under the bed and across the channel of various streams in

[Pltanstead and Bechtinster Townships, Bucks County (PEDO Exhibit 4); Permit No.

INC 09-77, pamitting the uvi-L1.i . Lion and maintawnee of an %M all structure, energy dissipator and channel stabilintion where diva,. Led water would enter the  !

East Branch Perkicznen Creek (PB00 Exhild.t 3); and Permit No. DAM 09-181, per-t mitting ocnstruction of the Bradshaw Reservoir (PED Exhibit 5). .

l On February 8,1982, NNRA filed an application with the Department '

l under the same statutes for a, permit to construct and maintain a water intake structure in the Delmare River, an intake conduit crossing the Delaware Canal,  !

i

0; *ater main crossing Hickory Creek and an energy dissipator and outlet enannel

~

b

.in the North Branch Neshaminy Creek. On S w ica h 2, 1982, the Department is-sued !WRA Permit No. ENC 09-81 (NWRA Exhibit 11), authorizing these construction l

p.  ;

!~and maintenance activities, i l l

t. ,

r-

Y n

. )

. s' .. / l Each of the above pemits has been appealed by at least one third party.

In addition, two DER actions connected with-but distinct fran--these permit-approvals have been pled, namely: (1) the issuance of a letter dated June 22, ,

1982, infonning NWRA that no NPDES permit would be required for the release of water by BMRA to the North Branch Neshaminy Creek; and (2) DER's issuance of a

. Water Quality Certification to NWRA, by letter dated Sepixuiar 2,1982, pursuant

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

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

II. FINDINGS OF FACT The following Findings of Fact have been adopted with substantial additions, deletions and prviifications frcxn the supwed findings of fact subnitted by DER, Friends of Branch Creek ("FBC"), NWRA and PEDO. Del-Aware has not sub-mitted any g. ,-:*1 findings. ,

. A. General Background

1. The st,-:*i Point Plamnt project will divert water fran the nal-are River at Point Pleasant, Pennsylvania to provide pihlin water supplies for Bucks and Manbpsy Counties and supplemental cooling water for the Limerick Nuclear Generating Staticri in Pottstown, Pennsylvania. The maximum ptmpage cm behalf of lMRA for water supply needs through the year 2010 would be 49 mgd. A maxinun of 46 mgd would be p5 on behalf of PEDO for Lin= rick Units 1 and 2

'(DER Exhibit 2 at 4-5; BMRA Exhibit 20 at 4-6; NRC Partial Initial Decision (March 8,1983) (NRC PID) at 51; P900 Exhibit 3 at 5; PB00 Exhibit 11 at 3) .

1. Designated as part of PEDO Exhibit 7, the Partial Initial Decision of the NRC's presiding atanic Safety and Li nsing Board in the Limerick prMing, 1-d on March 8,1983, was provided to the Board during the hearing (Tr. 3406-07).

l t

1

/. .

9. .

2. The Point Pleasant pmping station will be developed and oper-ated by IMRA on behalf of both project sponsors. NWRA is entitled to withdraw water frm the Delmare River pursuant to Pannsylvania Water Allocation Permit

-No. NA-0978601. This permit was issued in 1978 after an extensive evaluation, senarized in the Neartsnent's "Paport on the Application of Neshaminy Water Besources Authority for Water Allocation frm Pine Run, North Branch Neshaminy Creek, and Delmare River" (November 1,1978) (DER Exhibit 2 at 4,17; Board Exhibit 4 at II-6).

3. PB00 also holds a valid water a11mation frm the N1a=_r_e River awarded by the N1 mere River Basin Ocamission (DRBC), and could inplement a Point Plamaant project on its own solely as an industrial diversion facility even

.if the IMRA portion of the Point Pleasant project were not constructed (DER Exhibit 2 at 28).

4. The Point Plamaant paping station will utilize pmps with a total

~ y ity of 95 mgd and an intake located approximately.245 feet out into the

~

channel of the Delaware River (DER Exhibit 2 at 5; NBC PIO at 52).

5. The intake structure will consist of two parallel rows of cylin-drical screen sections about 70 feet lii length, located two feet fra the luliuu of the river and exWN four feet upwards at that point. Even at a tvurpam latively low flow of 3,000 cfs, the top of the intake would be aan.vaimately four feet under the water surface (DER Exhibit 2 at 82-83; NBC PID a*: 10, 53-55;

!#Eth Exhibit 14 at 1) .

6. The intake will utilize an assembly of Johnston wedgewire screens, which constitute the " state-of-the-art" ts i..clogy as canpared to vertical traveling

. screens uH1ied in shoreline intakes at other facilities (DER Exhibit 2 at 5, 84; !EIC PID at 10, 54; NNRA Exhibit 41 at 1; NHRA Exhibit 42; Kaufmann, Tr. 597) .

L .7. Three intake lines below the channel bottm will convey water fra the intake to the paping station (DER Exhibit 2 at 5).

i

[

_4_.

m a .

/.. . j B. Cooling Water for Limerick

8. Water pi==d frm the Point Planant ptroping station will be trans-mitted oppsudmately 2.4 miles through a cmbined transmission main to the Bradshaw Reservoir, which will have an operating capacity of approximately 70 millim gallons _ (DER Exhibit 2 at 6; Board Exhibit 4, Part III at 2-13; PEOO Exhibit 10).

9. Water for NWRA will be delivered by gravity flow frm 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) ign. hts DRBC's approval of the IGGRA Neshaminy Watershed Plan atxi Water Supply Project ahi.ed by DRBC cm February 18, 1981, as unanimously approved by all DRBC n ;ers (NWRA Exhibit 20; Weston, Tr. 3426) . . 'Ihe Corps of Engineers also approved the project. See Det-Amre Unlimited, Inc. v. Baldwin, Docket No. 82-5115 (Bench Opinion issued W 15, 1982, as modified by Bench Opinion Correction Sheet issued Deomber 23, 1982); (3d Circuit, ungtbli=hed order, July 5, 1983 at Docket No. 83-1010);

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

11. A Lrmn=nianim main aau.ugimately 6.7 miles long will conr.ect the i

i Bradshaw Reservoir with the East Branch Perkimen Creek, by which cooling water

, for Tin = rick will be conveyed to tihe East Branch. AieGdr outfall structure is to be located on the East Branch aan.undmately 200 feet upstream fIcm Elephant

!- Ibad, discharging cooling water to the East Branch. 1his water will then follow the East Branch for aau.ugimately 22 miles, and will ultimately be withdrawn by an intake located along the main sten of the Perkimen near Graterford (DER l Exhibit 2 at 6-7; Board Exhibit 4, Part III at 2-18 to 2-25; PB00 Exhibit 2 at I

i II-1).

l l

O W , .

,?

12. The East Branch of the Perkicmen (East Branch) is a tributary of Perkiomen Creek, originating in central Bucks County and flowing generally northwest through the boroughs of Perkasie and Sellersville. In its headwaters, for sczne 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 !brris Run.

13. In this six-mile headwaters section, the stream is largely unspoiled, flowing according to natural canditions. It is a " flashy" stream, subject to abrupt and high rates of run-off during rainfall, espeially thun&u.=Luus. 'Its flows are high in winter and low in sumner, when it is rMM to a series of pools u ..ected by riffles. (Tr. 1346).

14. 'Ihe headwaters and the stream in general have good water quality, though they are sanewhat turbid, prirv-i =11y t from erosion of farmland in the stream basin. This erosion is not a permanent or necessary feature of the basin, but due to u.u.u:da6le land managenent practices.

15. The banks of the stream are also subject to erosion. '1his occurs during cannon spring run-off rates and volunes of flow, and does not require major flood flows of the magnitude of the annual flood or mean anm=1 flood. (Tr. 701, 2846, 3215).

16. At and downstream fran 911arsville and Perkasie, the chnacter of the stream chanya=. The stream is damned at Perkasie. A public sewage treatment plant discharges wastewater to the East Branch at 911arsville. Channel size

. and flows are substantially incr==d by tributaries joining the stream.

17. Mav4== constmptive cooling water use at Limerick will be 21.3 mgd for cme unit and 42 mgd for two units (DER Exhibit 2 at 8; PEDO Exhibit 1 l at 2). .

t l

l e

+ = - - - - g. , - -- - -,-y.-e<<.p, w----m,----w-*---w.- , - , , , , , . , - , y-n r ,----g~ - -,,~,.

T

/:

18. On March 29, 1973, DRBC issued Docket No. D-69-210 CP which pre-lininarily approved the PIED portion of the Point P1paaant project and established, inter alia, the limits on withdrawals frm the Schuylkill River (Weston, Tr.

3450; PSCO Exhibit 1). Final approval for the P900 portion of the project was granted by DF3C m February 18, 1981 in Docket Ib. D-79-52 CP (PEDO Exhibit 11) .

19. Withdrawals frm the Schuylkill River pursuant to the DRBC alloca-tion are limited to the following conditions: (1) flows (s"1w14ng augmentation frm DEtBC-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 tee paratures in the Schuylkill below rimarick are above 15'C, Wi. when the flow tat the Pottstown gauge sWa 1791 cfs (DER Exhibit 2 at 8; PIED Exhibit 1 at 5).

20. As a result of the teng&ture and flow restrictims ivcM by the DRBC G x mi.s, it is estimated that Limerick will be unable to withdraw cooling water frm the Schuylkill 40 percent of the time, or 146 days a year (Runkle', Tr. 1152-53).

21. The historic re.m d of flows of the Schuylkill River demonstrates, in light of conditims 4--a upm PRD by DRBC, that if only one unit were operating at T.imarick, Schuylkill flows would be available only 7 to 12 addit-ional days of the year, i.e., roughly 3 percent nore of the time than would be the case with two units. Therefore, whether Limerick ultimately has one or two

~

units in operation utkes little difference in the av=41=h414ty of Schuylkill water (Runkle, Tr. 1154; DER Exhibit 2 at 29).

22. 'Ihus, even if construction and operation of IJmerick Unit 2 were j delayed ar-ultimately cam 11M, cooling water requirements for efficient oper-l ation of Unit 1 would still necessitate ampletion of the Point Pleacant project l

l

! in its present dimensions or the availahility of a like amount of water fran another source. (DER Exhibit 2 at 29; Boyer, Tr. 3899-C).

- . ~. _ __.._ .-____

n.

j l

23. In the course of its evaluation, the Department assuned that there may be only one unit at Limerick, but nonetheless concluded that the Point Planannt project was masary regardless of whether there were one or two units (Weston, Tr. 2366-67).

24. In approving the diversion of Lwl==re River water at Point Pleasant for Limerick, DRBC provided that natural flows of the Perkianen Creek, exclusive of any water pW fran the Pl==re River, may be used only when the flow at the Graterford gauge emaada 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 wi adrawals at Graterford for Limerick, DRBC has further required that PEKX) maintain, through aucynentation, a mini == flow of 27 cfs in the East Branca Perklanen Creek at Bucks Road (downstream fran Elephant acad) during the period l

in which Limerick is uti1494ng water p=maa fran the Bradshaw Ikaarvoir. A mini == flow of 10 cfs must be maintained the r==aintlar of the year (DE:R Exhibit 2 at,9; P900 Ehit 1 at 6; PB00 Mihit 3 at 5; PECO Exhibit 11 at 6; Boyer, Tr. 3904).

25. Under the tarm= of DRBC's a11mation for Limerick, diversions fran the nalmere River are prohibited when withdrawals would re i.w + the flow

- at the Trenton gauge below 3,000 cfs. At such times, water may be diverted at

[ Point Pleasant only if oatpensated in an equal amount by release fran an up-

[

stream storage feility (IER Exhibit 2 at 9; Pf00 Exhibit 1 at 6; P900 Exhibit

.11 at 5; Board Exhibit 4 at, IV-6; NRC PID at 72) .

C. Aquatic Life Tnpar-ts in the Delaware River

a. Entiqunent and inpingenent

! 26. The most signifinant 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)

m 2

s 6 I and impingenent (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 P1mmant 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 P1maant as ccmpared to conventicmal screening (DER Exhibit 2 at 30-31, 84; Applicant's NRC Testimony at 3-5, ff. NIC Tr. 949; Boyer, NRC.Tr. 1350;2 Kaufmann, Tr. 683) .

28. In terms of pwwdon of the fish pcpilation, it is better to have the intake screen in its g1,-ei location-245 feet out in the nalm,are channel rather than along the bank as originally planned (Kaufmann, Tr. 683) .

f

29. Shad avoid shadows so that even though they could swim below the intake structure they will probably veer towards either the Pennsylvania e

or New Jersey shores on sunny days. If they veer towards New Jersey the sport

l. fishing *cn-the Pennsylvania side of the Delaware would be diminished. However,

- in terms of any potential iwYw-t on sport fishing at Point P1maant, there is no reason to ha14 ave that shad will veer +r = vd either the New Jersey or Penn-sylvania share as a result of the intake structure (Kanhn, Tr. 585, NRC PID at 38-39, 89). There is no evidarv= that anglers vill 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 P1 m aant are mly 2 nm. wide (DER Exhibit 2 at 31; Applicant's NRC Testintmy at 4; NNRA l:

l Exhibit 41 at 10. This is am11er than the size of a water-hardened sturgeon

?-

l ce shad egg (Kaufmann, Tr. 60748) .

i

2. '!he NIC testimtmy was also a part of PEDO Exhibit 7. See footnote 1, supm.

31. 'Ihe maxinun intake velocity through the screens is .5 fps, with an average velocity of .35 fps. The average intake velocity will decrease frun about .071 fps at a distance of one foot frun the screen's surface to .011 fps at five feet frun the screen and to .0037 fps 10 feet frun the screen (DER Exhibit 2 at 04; NIC PID at 59).

~

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 see exper-ience with vertical traveling screens shows that a 2:1 ratio of bypass velocity to screen intake velocity is optimal for minimization of inpiweit and en-tralment, the passive wedegwire screen to be u+ 414=1 for the Point Plecant intake provides considerable grusction against impingement and entralment at a 1:1 bypass, or even in the abse.noe of any bypass velocity (NEC PID at 60-61).

33. Nonetheless, with a flow of 3,000 cfs the river velocity at the location and depth of the pwwsed intake has been maaan_ed r at or in excess of the 1.0 fps required to provide a 2:1 bypass to intake velocity ratio, even at the maxinun intake 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 mininun bypass velocity will be appihtely .8 fps (NRC PID at 70) .

35. 'Ihe zone of influence of the intake velocity would cmly be approxi-mately two inches (Fanfbuin, NRC Tr.1882) .

36. The Dep u.6 =it evaluated the e.,i,=it.ial impacts of the water intake structure on the shortnose sturgeon, an eM- r-god atw 4es found in see reaches of the Delaware River (DER Exhibit 2 at 31).

I

- 37. Raaarl upcm a July 19, 1982 letter frun W4114== G. Gordon, Assis-tant Mainistratnr for Fisheries, National Marine Fisheries Service to Lt. Col.

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

ra.

g .

F ,

.- s s *

. Biological opinion rendered pursuant to Section 7 of the Endangered Species Act, as amended,16 U.S.C. 51536, the Department concluded that: (1) the intake construction would cause no significant adverse effects on shortnose sturgeon present in the area; (2) the design of the water intake structure and projected schaaila 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 operation of the punping station would not likely jeopardize the continued existence of slyu. Lese sturgeon in the Delaware River (DER Exhibit 2 at 31) .

38. No shortnose sturgeon have been found at or above Point Pleasant, and there is no evidence that they spawn in or inhabit the Point Plaaunt area (NHRA Exhibit 36 at 2-13; NRC PID at 73; Kaufmann, Tr. 587-88, 594). There is nothing y tliar to the Point Plaa u nt area that makes it a particularly de-sirable spawning envirornnent for simo.Lcse sturgeon. There are many other .

sites along the nal==Lre, upstream and downstream of Point' Pleasant, that are suitable habitats as well (Kanfmann, Tr. 593, 697).

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

and the benthic orientation and swinning ability of its larvae, entrairment and impingement of shortnose sturgeon would be highly unilkely (NBC PID at 73-78; Kaufhnn, Tr. 697-98) . -

40. While most American shad spawn in the nal=ere River upstream of Ibint Pleasant and pass through the Point Pleasant area during their migra-tion, there would be no inpingenent or entrairunent of juvenile or adult shad even if they 5E.c_r.5d at Point Pleasant, because of their size and stage of '

developnent (tR3C PID at 78-80; NNRA Exhibit 36 ct 2-17). The yearly peak spawning period for American shad will have passed prior to the (sunmer) periods of the largest withdrawals at Point Plaaunt (NHRA Exhbit 41 at 7) .

g-

\

41. Nothing in the Point Plaa<: ant vicinity makes it unique as a shad ,

spawning area for shad as cmpared to the rest of the Delaware River (MBA l Exhibit 41 at 8; Kaufmann, Tr. 691) .

42. The operation of intakes utilizing less than " state-of-the-art" technology at three other power plants on the Delaware River in the traditional l

shad spawning area upstream fra Point Planctant has resulted in very little impingement or entralment 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 wouM hatch even if unaffected by the l

intake (NRC PID at 83) . The size and &=r.rsal (sinking) nature of shad eggs preclude entralment or inpingement of the vast majority of healthy eggs which l I

would otherwiie produce larvae (Kaufmann, Tr. 692-93) .  !

44. Shad eggs, even if present at Point Plaamant as a result of i I

spawning in the upstream pool where shad could conceivably spawn, will be no nore paz+4m1=ely concentrated in the area of the intake than other places in

'. hat area of the river (F=innann, Tr. 610-11) .

45. The main factors inhihiting the further growth and recovery.of the American shad in the Delaware River are the dissolved oxygen block in the Philadalphia area (upper Estuary) and the locking out of shad frm the Schuylkill

- River, Imhigh River and other tributaries by dams and other phynir-al barriers (F=iana'in, Tr. . 561, 743).

b. Dissolved oxygen and salinity

46. Historically, the dissolved oxygen block has been quite variable in terms of length. Nnmally, it extends fra the PM1adainhia area (30 miles downstream of Point Pleasant) to Chester (Fan 6 nann, Tr. 565-66) .

9

Y. .

• 8

47. The extent of the dissolved oxygen block is controlled by flow levels and water ta perature, the latter of which is affected by industrial intakes and discharges in the nal= =re 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 (Kaufr. ann, Tr. 566-67) .

49. DRBC has concluded that the najor can=a= of dissolved oxygen sags in the Delaware River are pollution lende frun sewage treatment plant dis-charge and decay of organic debris (NNRA Exhibit 25 at 26-29; Kaufmann, Tr.

710).

50. Other factces that affect the dinelved oxygen level in the naim.=re Estuary are tidal flows, towature, precipitation, wind, climate and the level of plui.usynthesis (Kaufmann, Tr. 712-13) .

51. Present data strongly suggest that dissolved oxygen levels are far m6re' sensitive to minor variations in toweture than to relatively small diversions such as that at Point Pleasant (NNRA Exhibit 25 at 34; Rehm, Tr.

1467).

52. Even under extreme canditions of low river flow, e.g., 2,780 cfs,

- the seri== diversion of 95 mgd at Point Plaaannt will result in a reduction in diaelved oxygen levels in Zone 2 (frun Trenton to Philadainhia) of awtugi-t nataly only 0.08 mg/1. Reductions of this magnitude would pream virem11y 1-We changes in Zone 2 di=anived oxygen levels (Rehn, Tr. 1451-52, 1803).

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

l.

l 53. The Department found that during nonnal periods, upper and lower l J basin reservoirs will be operated by DRBC to sustain the current mininun flow

• j objective at Trenton of no less than 3,000 cfs (DER Exhibit 2 at 34) . With-i j drawals frun the naim.=re for Limerick are prohibited below this level unless

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

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

(6. Water withdrawn at Point Pleasant for public supply try t&fRA would be substantially a non-consumptive use, with substantial return of water

. l via sewage treatment plant discharges to the N1-e River via the Neshaminy, 1 Perkimen, Pennypack and Wissahickon Creeks, and the Schuylkill River (NWRA Ex' L

hibit 5 at 6, 23; DER Exhibit 2 at 34, 36; Rehm, Tr.1747) . The anticipated consimptive use of only 10 Mc.vnt will result in a total loss to the M1==_ve River Basin of less than 5 ngd (about~ cne-fifth of one percent of a 3,000 cfs I flaw), which for practical piu.r.,ses is not significant (DER Exhibit 2 at 34-34; Board Exhibit 4 at IV-17). -

l

56. While t# IRA may withdraw water at Point Pleasant when the flow

. . at the Trentan gauge is below 3,000 cfs, DEtBC has exoressly condi+ 4emad such withdrawal upon the prohibiticm of nonessential water uses, as vifled in DEtBC Resolution No. 81-5 (to the extent applic ahla) and in "any other emergency resolu-tions or orders & hereafter". (NNRA Exhibit 20 at 16.) -

57. At a low flow of 2,500 cfs at Trenton, the meri== diversicm'of

'48.8 mgd fee the year 2010 by ISERA for Phlir' water supplies would result in a reduction of N1= ere River flows by less than 3 W a t. Even during drought conditions, it is anticipated that basin reservoirs would be operated to main-tain a flow at Trentan of at least 2,500 cfs (DER Exhibit 2 at 34; Del-Aware Exhibit 28 at 3). .

1- 58. Both the DEtBC docket dar inion and the Ccanonwealth's permits regarding the allocation of Delaware River water at Point Planmant indicate

____.__.____,__J

wr y }

V that the allevations for public water supplies are subject to modification, restriction or suspension during any emergency declared by DRB':. (NWRA Exhibit 7 at.11; Finding of Fact 56, supm) . '1his provision has been inplanented in DRBC's Ievel B planning by identifying those times which are to be autanatically considered drought warning or drought energency periods when cutbacks will be effectnd (" tani, Tr. 2681) .

59. Even ===49g.that the entire 95 ngd diverted at Point Planaant were lost to tha Est.uary under a worst case analysis (i.e., lower than 2,000 cfs flow at Trenton), the assimilative wastaltw1 cananity of the Delaware River would rot be significantly affected or require a change in water quality waste-load all'v ations (Rehn, Tr. 1438-41).

60. Examining both the Ievel B Study results and the " Good Faith" i Rectnnendations (Draft) (June.1982), the Department concluded that the interim salinity objective of 180 ng/l chloride at River Mile 98 can be met with existing }

flow management c Phility at Trenton, even during a record drought like that of the 1960's. 1he Depou.Lucut. also concluded that aalinity intrusion into the nalamare Estuary would not be ----whted by withdrawals at Point Pleasant, since malinity. control is %t upon the canbined flows entering the Estuary fran

( ' the n.1=.ivn and Schuylkill Rivers and their tributaries. Salt water frun the t

n.1muere Bay is rana 11ari by all flows which enter above River Mile 90, whether fraa the nalamare River mainsten or the Schuylkill River. Since nearly 90 per-l-

cent of the 191RA wille cl will be returned above River Mile 90, all but 5 ngd of the NNRA total all'v'ation 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; Rehn, Tr. 1690-93,'1747).

l

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

. = . _ . - . .- . -. _ _ _ _ _ ,

p . .

j l

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

62. While Del-Aware's hydraulic witness attempted-to ese ahlich that

. . the " Good Faith" criteria could be artificially manipulated by management of upstream reservoirs to the detriment of salinity objectives in the Estuary (Phillippe, Tr. 3302-04), it was not estahli=hed that any such manipulation of upstream reservoir rala==a= had ever occurred or that DRBC, as the river d

manager, would tolerate any unfair or d&wi.ive practice.

63. Because salt water intrusion will not be warhated by with-drawals at Point Plaaaant, the oyster industry in the Del ==re Bay could not _

be affected by the proposed project (Board ExhibJ.t 4 at IV-32) .

D. Aquatic Dnpacts in the East Branch Perkicznen Creek

64. The Department evaluated potential impacts upon the aquatic ecology of the East Branch Perkimen Creek resulting frm the di% of ptzupages frm the Bradshaw hvvir. In o$nducting this analysis, the Department reviewed DRBC's Emria.u mtal Ihpact Statsnent (1973) and its Final Envia.uwizatal Ama*amnant (August 1980), PE00's Envircrunental Report (July 1979) and Corps of Engineers a.wi (DER Exhibit 2 at 41-42; Ford, Tr. 2035) .

'65. The decisim about these pi.iid.ial inpacts was made by the Chief of the Planning Section in the napartment's Bureau of Water Quality Management, who testified that he relied on the exmh and knowledge of the Department's

. Regional Water Pollution Biningist, Donald Knorr. (Tr.1356; Envircrunental Assessment, p. 40)

n.

p*

3

(

i 66. The Chief of the Planning Section in fact had only a handful of informal' discusElens with Mr. Knorr, and Mr. Knorr had no direct input into the'Envis.unisital Assessment. Mr. Knorr did not make, and Mr. Knorr (and the Depiu.Mit) did not have the data adequate to make or support the conclusion in the Envis.uscital. Assessment (p. 40), that discharges 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 s.esent limitations on aquatic life in the East Branch is the lack of water during the sumer (Knorr, Tr.1346) . Currently, the stream

===riances very low stm1mertine flows (Knorr, Tr.1341; Runkle, Tr.1501) . 'Ihe Q7 -10 flow (defined at Finding of Fact 176, infra) at the mouth c.f the East' Branch is .5 cfs (Kaufmann,, Tr. 614) .

68. At the present time, aquatic life and vegetation are restricted to standing ponds during 1cw flow periods. As the ponds dry up, the aquatic ,

life and vegetation are lost (Relin, Tr. 1501-02). .

i

-69. Existing pool areas (i.e., standing water, now present in the East Branch under low or no-flow conditions) will be aliminated by the addition

.of the div=1.iei flow, and existing riffle areas will be enlarged (Hazntm, Tr.

4043-E).

70. The mini == flow requirenents established as a condition of the l DRBC pennits will ensure that fish and other aquatic life are provided with a flowing stream throughout the year (Harman, Tr. 5043-C to D) .

L

71. Essentially the same situation exists in the North Branch I

thiny Creek, as to which NNRA's expert witness on aquatic life drew similar l

ennelusions (Brundage, Tr. 3863-64).

72. Del-Aware's ichthyological witness, Mr. Kaufmann, agreed that L mininun flow aucynentation and increased flows resulting fran tie diversicm in

7--

tiie East Branch would result in an increased aquatic habitat and an inprovement ,

to the fishery (Kaufmann, Tr. 621) . His opinion as to adverse impacts of in-creased aadin=ntation was pr-iaad on the belief that substantial erosion would occur as a result of these flows (Kaufmann, Tr. 641) .

73. Tehidity tends to limit the diversity of aquatic life because primary productivity by aquatic plants is rahvwl due to the lack of sunlight

~

p Wation into the water. This results in less FWwsfnthesis and less life at the base of the food chain. Additionally, deposition of soil materials frcra turbid water into the rocky substrate of a riffle type bottom will limit'the existing habitat and life forms present (Knorr, Tr. 1339-40).

74. Predicting inpact upcm aquatic life in the East Branch or North Branch fran incraaaad M*4dity would require knowledge as to the level of j turbidity, the length of time that the streau was W to these levels of turbidity, tha type of life that initially existed in the stream and the us.u.p slogical characteristics of the stream (Knorr, Tr. 1350). Stream depth and velocity through the riffle area and pools would also be factors, since turbidity will restrict aquatic life to a certain leveu. of sunlight per==:Lation I (Ehorr, Tr.1351) .

75. If the *

• idity that might be caused by the project is of short duration, it will not be lethal to fish (Hamnn, Tr. 4043-C, 4069-71; Behn, Tr.

l8520.- If high levels of Heidity last for less than one full growing aaaann, l- a new halance will quickly be estahlinhed (Harnrwi, Tr. 4069-70; Rehn, Tr.

'1852-53, 1878-79; Pord, Tr.1963) . Assuning short-term huidity, any loss in aquatic life will not be significant and the overall quality of the East Branch

aquatic life will inprove with tir

n . ('Iarmon, Tr. 4043-C) .

76. maad on his f=414=rity with the East Branch and similar streams, I

the Department's Nkter Pollution Biologist concluded that a rocky-bottaned stream

, ___.a _ _ . _ _ _ _ _, _ _ . _ . . _ _ _ . _ . _ _ _ , _ _ _ _ _ _ _ _ _ . _ _ . _ . _ _ _ _ _ _ - . _ _ . . _ _

g ,

b, .

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

(Tr. 1340) .

77. For reasons daar-ribed in detail below, it is anticipated that sig-nificant erosion and.resatting Hirhidity can be aliminated if the velocity of the East Branch of Perkirnan Creek is kept below two feet per second; the same state-ment pertains to the North Branch of Neshaminy Creek.

E. Riparian Inpacts in the East Branch Perkiman Creek

a. Existing stream regime and incranaad flows

78. The East Branch Perkicmen Creek is highly eroded as a result of stczM wants and poor land managenent practices (Steacy, Tr. 3580-E; Kaufmann, Tr. Cl3, 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 erosion of stream banks and, ultimately, a large arount of siltation (Faithnn, Tr. 613, 652-53, 678-80, 740-41). Run-off is also <=aad by the roadways criss-crossing the East Branch (Faishnn, Tr.

741-42).

79. High strean velocity is the principle ratiaa of channel configur-ation (Stency, Tr. 3580-D, 3610; Ford, Tr. 2169; Harmon, Tr. 4033; W<, Tr.

4434-35, 4449). Large f1rvvla with velocities as high as 7-10 fps have caused and will otmtinue 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 icw velocities, create the channel ocmfiguration in a stream (Steacy, Tr. 377.8-79, 3839; Dresnack, Tr. 4362; Harmon, T. 4017-19).

t

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

k.

1 1

80. The dminant discharge, the 1.5 year flood (average recurrence interval of 1.5 years) which is assmed to be bank full flow, effectively de-termines the shape of the stream channel (Hamon, Tr. 4029-31, 4034, 4070, 4077-78; Dresnack, Tr.'4354).

81. While the additional ptmpages into the East Branch Perkimen l Creek and North Branch Neshaminy Creek may be large in ecur.u.i. ion,to the W ian

~ flows at the point of discharge, they are by no means large in ocmparison to the flows exhibited during storm events occurring annually or every few yrars (Dresnack, Tr. 4370); they are well within the 1.5 year flood and thus will not be % tad to substantially alter the channel configuraticn.

82. Flows stibstantially below those aawiated with 1.5 year f1mda can cause substantial erosion of stream banks and bottms and can, therefore, result in unacceptable *nrhidity in'the stream. This erosion begins above a critical or threshold velocity which depends upon the type of soils encountered by the stzeem and the type and amount of materials already being i.taiEr.,tii:=1 -

by the water enterirvt the stream.

83. The median flow at Elephant Road plus the maximtat pimpage yialde a flow of 66.4 cfs with a velocity of 3.02 fps as almlated by Mr. Steacy. A cr.; 7:::r flood at that site has a flow of 112 cfs with a velocity of 3.7 fps, while the mean annual flood has a flow of 320.0 cfs with a velocity of 5.1 fps *

(DER Exhibit 2 at p. 42; PB00 Exhibi.t 2,'Section IV at 4, Tables Nos. 2 and 3) .

i. 84. The possibility of erosive velocities downsi.& amin of an outfall would be a oansideration for any project under the general criteria of Chapter 105 Subchapter A of the Department's regulations, which require the Department

( ,

(when reviewingYthewnvim..edal impacts of a project) to review the effects of a project cr. stream regime (Weston, Tr. 2494) . Such consideration would mandate an effort to mitigate any erosive impact to the extent possible, in-

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

.2 cluding the inplanentation of necessary protective measures. If mitigative measures could not reduce the inpact to an insignificant level, the Department

- shou'

• consider whether on M1ance the need for the project outweighed the significantly adverse impact remaining after mitigation. The Department has yet to make such a M1ance since the Department feels that the erosional impacts will be insignificant. (W5s, Tr. 2495) .

85. According to a bore hole analysis czmducted by PE00's agent, the soils in the bank of the East Branch are classifiable as silty loam. According to F3CO's application the soils to be excavated for the Bradshaw Reservoir also are classifiable as silty loan. PE00's expert witness, Robert Steacy, considered the soils of the East Branch bank and bed to be ordinary fim loam, but Mr.

Stency was not qualified in the science of soils aralysis and was testifying fran his visual examinations during a single field visit. Thus, his testinony in this regard nust be annnrded little weight.

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

" Handbook of Hydrattlit-a" (E. Brater and H. King, 6th ed.) (PEDO Dchibit 12),

zwv=i w as authoritative by the Anerican Society of Civil Ergineers, and

====ing the soils of banks of the East Branch to be silty loam, the critical valnr ity is 2.0 fps for clear water (PEDO Exhibit 12 at 7-24; Steacy, Tr. 3580-E, 3746; Dresnack, Tr. 4372).

87. Water containing greater amounts of collnidal matter has less effect than clear water in remwing additional material. Cuucilingly, tur-

-- bid water is less erosive than clear water, at a given velocity. 'lhus, the range of pamiaaible channel velocities for a formed and shaped channel is 2.0 - 2425 feet per second (fps) for clear water, 2.5 fps for slightly turbid water, and 3.5 fps for highly H

• id water; the lower value of 2.0 - 2.25 fps is most repre-sentative of water Heidi yt of the discharge into the Ibrth Branch and the East

. o Branch. h is lower value takes into account the settling of aadim nts in Bradshaw aeservoir. It also takes into account the fact that Delaware River water may be substanHally < lam er than present aadimant-carrying run-off frun farmland especially in the East Branch watershed. The pamianible channel velocity of 3.5 fps relied on by the Department in pennitting the discharge was unreasonable (Tr. 3157-58, 3767, 3774).

88. Se range of pamiaaible channel velocities was developed for use in dimensionally regitlar' channels, such as canals. %e pamiasible charuval velocity must be r d M further when channels are natural and flows are turbu-lent, as.they are in the East Branch ati and below the discharge point (Tr. 3053, 3770, 3231).

89. Aged canals and natural streams resist erosion better than new canals haranaa co11mid=1 material disperses into the interstinaa of the banks of a stream and W=11y coats the sides of the stream bank. It provides a firm matting, or armor plating, which increases resistance to erosion (Steacy, Tr.

3610-11, 3761-63, 3774;-Dresnack, Tr. 4373, 4470). A stream bank - -M of a mixture of materials is more resistant to erosicn than a single matadal (Stency, Tr. 3611, 3744). Since the Brater and King Table is for aged realm, this effect has already been ocmsidered.

i l 90. If erosion should occur as a result of the diversion, the Depart-i ment has mandated that corrective action must be taken. Condition L in Permit 09-77 provides that PEKD shall nonitor the East Branch on a regular basis down-strean to the point that its papages have no further significant effect. P900 nust correct any danage caused by the diversion (PECO Exhibit 3 at 5; Ford, Tr.

I 1962-63, 2054, 2057; Weston, Tr. 2302-05). ' A similar condition is in N4RA's I

!' permit.

l l . .- -- .-.-_- .

l

91. If the diversion causes bank damage downstream of the outlet, PB00 can correct it by using riprap, gabian structures, i.e., wire baskets filled with rock, or flood walls (Ford, Tr. 2042, 2055). If s w Ly owners refuse

~to allow PB00 (or IMRA) onto their land to correct the problen, the Department nest either waive the pat +imlar candition for that swty 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 aquatic camunity of the East Branch or North Branch which might be caused by continued erosion.

. b. Avoidance of incr-ad flooding

92. As a ocridition of its allmation of water for Timarick, DRBC has required that during periods of high natural flow in the East Branch Perkicznen Creek, "ptmping frun Point Plaac: ant shall be kept at a level so as not to aggra-vate high water levels",(PE00 Exhibit 1 at 6; PECO '2xhibit 11 at p. 5) .

93. USGS will install and maintain a standard stream gauging station on the East Branch at Bucks Road, slightly downstream of the Mall. 'Ihe i

installation of this gauge will ensure that PB00 will have' the e-mMty to moni-

. tor East Branch flows contintrusly and accurately. 'I*1e same infannation will be transmitted to DRBC, for nonitoring to ensure ocupliance with the DRBC docket condition requiring that punpages shall not aggravate high water level:4 in the East Branch (Steacy, Tr. 3580-C, 3584) .

94. 'Ihe ptzuping staticn at Bradshaw will be fed flow data translated fran gauge rendirrs at Bucks Road and Graterford, the latter of which is the point in the main stan of the Perkianen Creek where water will be withdrawn for ran= rick-(Boyer, Tr. 3903-04). When the flow in the East Branch approaches

WAtial flood levels, an alarm will be autanatically activated at the ptmping

control center, and the ptznps (if operating) will be s"M (DER Exhibit 2 at 42; Pard, Tr. 2053; Boyer, Tr. 3905-06).

e '.

95. Utilizing infomation frcm the gauging station, the Bradshaw ptmps

-(if operating) therefore shall be stva ed well in advance of the point at which a.

further pumpages might cause the flow at Elephant Bmd (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; PB00 Environnental Report,Section IV, Table 3) .

-96. There would be no prnhlans of limiting cooling water flow to Limerick canaarl by shutting off the Bradshaw ptznps well before the flow at Bucks Road reaches 238 cfs. Asstning a generalized rain event, Aw the flow at Bucks Road (Station 13) is 238 cfs; then it wi ll be 1,470 cfs at Station 1 downstrean, and even significantly greater at the Graterford intake for TAmarick m the main stem of the Perkianen (Ford, Tr. 2164, 2166). Such heavy flows vastly exrmel the flow at which PED may withdraw water at Graterford ggi

• DEtBC docket conditicms (see Finding of Fact 24, supm) . Under such conditions, there would be no reason for any pumping fran Bradshaw to replace water drawn at Graterford (Boyer, Tr. 3904) .

97. Further examinaticm has indicated that the ptmp cutoff f1ct value "at Bucks Road can be rarimarl to 125 cfs (i.e., less than 112 cfs upstream at Elephant Road)' for twa units and prnhably 75 cfs for one unit (Bayer, Tr. 3906) .

'Jhe Department has' no objection if PKD sets a lower cutoff italue than presently planned for the gauge at Bucks Road (Weston, Tr. 3460-61).

4

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

. .the actual cutoff figure, will depend upon the record m=1ated fran the new gatge at Bucks Road. 'Ibe' data frcm these actual measurements will provide the most meaningful basis for selecting the aam.us.iate cutoff value (Steacy, Tr.

3842-43).

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

W

. '. . . l

^:-

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 ocuplete. PLupages fztsa the Bradshaw Reservoir will be only half of the ==vi== 65 cfs during that time. This will prtwide anple time to obtain accurate data frun the Bucks Road gauging station, and'will help season the creek to the new flow regime

- (Steacy, Tr. 3845) .

-100. Inasnuch as the Depar h t det+manad that there would be no ptmpages during flood flows, it did not find a need to analyze any Edusitial

. for flood d===a downstream through a loss of flood plain suu. age (Ford, Tr.

2051-52).

101. Since ptmping will be to-+

=cary when the natural flows in the Schuylkill River and Perkicmen Creeks are adequate to provide cooling water for Limerick and to meet the mini == flow requirements i=vwad by DRBC, PE00 will not be required to ptmp water fran the, Bradshaw Reservoin throughout the entire year.

It is anticipated that ptmpages fran the Bradshaw Reservoir will be nac===ary fran roug$Ly mid-April to mid-Nuw=W under average stream flow conditions, during which time the estimated average ptmpage rate will be 34 cfs (DER Exhibit p 2 at 42; PECO Exhibit 2 at Table No. 'l ff. 4; Runkle, Tr.1148).

102. Pipeline drainage lag-tdane will not present a pmhlan in terms of f1neriing. 'Ihe pireline 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 remain in the pipe after the ptmps are shut off (Steacy, Tr.J3844). 'Ihe water on the East Branch side of the divide will run out within L 10 minutes after the ptmps are shut off (Steacy, Tr. 3841) .

F. Water Quality Inpacts in the East Branch Perkianen Creek 103. The Dep=.L-=it's water quality review for the Point Plaaaant project was initially conducted with respect to the issuance of a water quality cereifica-

[

i-l

[. . - _ . .

V .

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

1394-97). In the spring of 1982, the Department conducted an additional review haaarl upon omunents received in response to the pihlin notice of an wt. unity for omments with respect to the request for the Section 401 certificaticn (aehm, Tr.1395) . The water quality certificaticn was is==A by letter dated Sep&amhar 2,1982 fran the Depart 2nent (Del-Aware Exhibit 39) .

104. As part of its ongoing water quality review of the Point Plaaaant project, the Depart 2nent examined the effects of the diversion on water quality in the East Branch Perkianen Creek using water quality analyses prepared by DRBC, EPA and !#BA's private consultant. The data it relied upon 1ag asant stations in the nal=mre River near Trenton and in the Tahickon below the Nockamixon Dan. The Depart 2nent also had data frau various agenci.es for the East Branch (Behn, Tr. 1454, 1506-08, 1525, 1615-16, 1807-08, 1810-12).

105. Within the Depart 2nent, water quality analysis under the pennit application was emrdinated by Charles Rehu, Chief of the Planning Section of the Bureau of Water (hk.dt.y Managanent (Tr.1393) .

106. Water quality data for Point Plamaant LFelf were not available.

She napartment therefore used water quality data fran Trenton, New Jersey, and assuned that che water withdrawn at Point Pleasant was equivalent, though

rub bly ar=4at better' quality than, the Trenton data indicated. Trenton data were ===M indicative of Point Pla== ant water quality hacattw Trenton is down-stream; haemiaa additional effluent is aMarl in the Point Planaant-Timabma reach, it was assumed Trenton water quality could only be worse than Point Plamaant quality (Tr. 1536, 1596).

107. The Department had available and considered STORETf water quality data for T=harville, New Jersey, two miles downstrean fran Point Plaamant. It chose Trenton,-New Jersey, data as "more representative" haemiaa it included a -

l 1 ".

t

~

1 1

greater number of sanples, assuned to be within the range of values or "within the window that the Trenton gauging station was reporting". D =barville data in fact shows signifimnt variation frm, and greater pollution than, Trenton data (Tr. 1608-09, 1618-19).  !

108. Data frcra emnling performed on either side of the Delaware River are indicative of the quality of water that would be withdrawn at Point Plancant.

While individual discharges may create sme locally higher concentrations, 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. Pahm tried to explain the high isvel of organics below Fieldshnro, New Jersey, as due to an industrial discharge there, but the organics were both industrial and pesticide cbmimla and Mr. Pehn's suggestion, which was itself guarded, M not credible (Tr. 1586, 1614, 1616, 1738) .

109. Water quality data frcm samples collected closer to the point of wit'drawal a're nore indicative of the quality of water to be withdrawn. More frequent samplings at a distant paint do not necessarily make those sanplings unre accurate or unre indicative (Tr. 1608-09, 1818-19).

110. The Department detamined that the discharge would have a sig-nificant inpact on the water quality of the section of the East Branch above the Penn Ridge sewage treatment plant (12 hilcmeters), where present water quality is good and the discharge would be a substantial portion of flow. '1he Departnent detemined that the discharge would not have a significant impact an the section of the creek below the sewage treatment plant. 'Ihe Departrent therefore con-cluded that there would be no significant inpact on the entire East Branch (Tr. 1426-27) .

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

)

downstream frcza the Penn Ridge sewage treatment plant. h Department did not ueek to obtain water quality data on the upper reaches, available frcm 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, incitriing the point of outfall. Measurements may be in error by as noch as a factor of 20 (Tr. 1734). w '-g 112. The Department has devalrY=d a stateside water quality standard 1 3

applicable to the East Brarih, of 40 miuwt=6 per liter of lead. The mean of 17 sanples taken near Riegelsville,18 miles upstreau from Point Pleant 1 was 311 miu wt.co per liter for lead. If water discharged to the East Branch would reflect these lead values, it w id violate the water quality standard six Hnpa over. Even the Trenton date showed, and the Department detezmined, that ,

f the mean value for lead in the M1==_re River in the vicinity of Point Pleasant /

1 was 51.4 microgr es per liter. 'Ihe statewide standard under Chapter 93 of the <

- regulations is 50 mimwt ms per liter (Del-Aware Dchibit 46; Rehm, Tr.1526) .

The value utilized for wrison, taken from sampling at Station 160 in the East Branch was'35,miuwt=6 per liter (Del-Aware Exhibit 46; Rehm, Tr. 1530-31).

~

113. Reasonably +Lible water quality in the water withdrawn at Point Pleasant, as as m.fned frun IArrbr2ville SIDEE7f data, would violate water i

quality standards for diacharges to the East Bran::h for at least tnree heavy f s

~'

metals.and.ptw.p.xus. Copper ocncentrations could'be near 9 miuwt ie per litar, or about twice the applinable standard. Iron concentrations would be near 110 miuws . per liter, or about 115% of the applicable standarfd. Zinc concentrations wenild be near 4700 miuwt.is per liter, in excess of three times the applicahle standard.< Pt.ma n axus standards also would be exc s ' '.- (Del-aware Exhibit 55; Tr. 1608-09, 3612). Fecal coliform bacteria have been observed in

- the Dalmare near Point Pleasant (DER Exhibit 2, p. 52) .

.s

.. .~

G. Archeological, Historical and Aesthetic Inpacts at Point P1maant

a. Archeology 114. The Department reviewed the Point Plaaaant project and detennined E that it i=1d not <-ama any adverse impacts upon the historical and archeological resources of the area (DER Exhibit 2 at 62) .

115. An archeolevyically stratifiad site exists in one mall section of the Point Plamaant project site, in the area between the Canal and the Dela-ware River (Landis, Tr. 385) . This area emprises wwdmately a 75 foot square (randin, Tr. 419) . Otherwise, 95 pwcuit of the total area of the Point Pleasant diversion project site is devoid of significant cultural resources (MtA Exhibit 1 at 6).

116. Stra&ificatinn is inportant harmiiaa it enables coe to deta.ruine the ciumalogy of the area's inhabitants (Landis, Tr. 347-48) . However, not all stratified sites are archeologica11y significant (Landis, Tr. 384) .

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

l 118. The Advisory Mincil en Historical Preservation, the State Historic j Preservation Officer, the Army Corps of Fagineers and NHRA have entered into a Memorandtsa of Agreement for the conduct of an archeological survey of the Point Plaamant site and preservation of any significant archeological resources (NWRA Exhibit 18; Ford, Tr. 2193; DER Exhibit 2 at 62) .

I 119. Although the Department was not a direct particimnt in the

[- negotiation of this Memorandtxt of Agreenent, the Army Corps of Ergineers pro-E L vided copies of materials pertinent to those dia<maainns to the Depart 2nent. In its consideration of appropriate mitigative measures to assure canpatibility of

• the project with the area and to protect histadcal and archeological resources, tha Department reviewed the draft Memorandum of Agrment, which it found 1

i%"- _ , . . - - , , , - - . - . , . - . - , - . - . - - , . + , . . - .-w-~-, -.-y.--...w,,-,,...,....,,,w.-- ,---w-.--.,-,_,- ---,,,.---,---~,..,,w.,<

1

• 1 i' ,

. +

sufficient to r eserve the integrity of any finds. '1he Department therefore canditioned the permit it issued to NWRA upon cmpliance with the Fammaruiun of Ap._it (Weston, Tr. 3434-38; NWRA Dchibit 18; DER Exhibit 2 at 62).

120. Pursuant to the Memorandun of Ap.=cai==it, a preliminary archeological l

~

investigation of the Point Plaaant project site was conducted by Gilhart Ccmnon-wealth A=arv intes, a professional archeological consulting firm retained by 196E (NWRT, Exhibit 18 at 7; Landis, Tr. 340-41) .

l 121. The purpose of this initial survey was to de& amine whether any archeologically significant area existed on the Point Plaaent project site and, it so, whether it should be excavated for otsplete data re.uvay or preserved in place (NHRA Exhibit 18 at 5-6; Landis, Tr. 415-16) .'

122. Del-bare's Eu.d=5clogical witness worked four days in Novenber 1982 as a field worker for Gilbert CWLEA =1th Associates, the archeological consulting firm retained by NHRA for investigaticn of the Point Pleasant site (Landis, Tr. 341-43) . He expressed his opinion that the Gilhart Cw =1th investigaticn was adequate for that purpose (Landis, Tr. 416).

123. The Memorands of Agreement also pcmides that, moe w=i.4.x: tion begins, an athleist ocupetent in the methods and re-:- kres of prehistoric archeology will be stat 1med ansite to nonitor the excavatims and any archeo-1=4< =1 remains which might be encountered during the course of construction (MER Exhibit 20 at 15; Landis, Tr. 400, 415, 430). Del-Amare's archeological witness agreed that these measures will sply preserve the historic rea d

. trdi=, Tr. 400-01) .

124. In a sec(Jure approved by the Pennsylvania State Historical Preservation Officer, the archeologically sensitive area itself will not be a- excavated at this time but will be preserved in place (NHRA Exhibit 18 at 6; Landis, Tr. 402, 415). An amaan road will pass adjacent to the archeologir-ally

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

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

-.125. The maa=wes approved by the Pennsylvania Historical Phasetan c'ramnimalen will exclude large machinery fran the archeologically sensitive area (NHRA 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-Amare's archeological witness acknowledged that the investigation of the Point Plaaaant area, undertaken as a direct result of the Point Planaant project, is a very worthy acocuplishnent (Landis, Tr. 425-27) . By ocntrast, 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 Atially 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 s vi ct. archeologically sensitive areas, which would otherwise be as subject to distw.-ix= ces and destruction as the adjacent private swi.y has been (r-lia, Tr. 428).

b. Aa.ti.5 tics 128. A full set of drawings and artistic r=mierings showing larrlar-aping -

plans for the Point Pleasant ptmping station were subnitted by NWRA; these docu-

, ments were reviewed by various DER Whusal during DER's evaluaticm of the i aesthetic inpacts of the project (Ford, Tr. 2135-38). These officials agreed that ocmstruction of the project will not harm the nat==tre division of the Pennsylvania Canal aestheHe' ally and that the project is campatible with the park 4

i.

ard its functions (Weston, Tr. 2405-14). In so. agreeing, DER officials again relied (in part) on the above Memorandtml of Agreauent, which included require-ments intended to minimize the aesthetic impact of the p aping station on Point Pleasant (See Finding of Fact 136, infra) .

129. The Historic and Museum Ce=4=sion and the Corps of Engineers also reviewed the proposed purrphouse, and fourd that it would have no adverse effect on the Point Plencant historic district. In reaching this decision, the Corps of Engineers concluded that the pumphouse will be small, quiet, inconspicuous, built of appropriate materials, and' carefully lardscaped so as to blend in with its surroundings (NWRA Exhibit 44; Tr. 2077; NWRA Exhibit 23.) On this basis, the Department concluded that the project would have at rrost a very slight aesthetic impact cn the surrounding area (DER Exhibit 2 at 45) .

130. The NBC has requi'_ul that any noise problems caused by the pump-house must be mitigated (Weston, Tr. 2420; NRC PID at 101) .

c. Historical and physical 131. Not only will the construction of the Point Pleasant intake cause no harm to the Canal (Cbm.du.fer, Tr.1662; Nuss, Tr. 2020), but construc-tion tu.h an.1 future maintenance requirements will ensure that it will be left in better shape after construction is ampleted than it is at this time (Weston, Tr. 2405; NWPA Exhibit 12 at 2; see Del-Aware Exhibits 59 and 60).

'Jhe eassnent granted NWRA simply involves minor patch-up work (Oberdorfer, Tr.

1670).

132. Breaches in the Delaware Canal have cocurred dozens and rrrrfbe hundreds of times, both man--ade and naturally as the result of floods (Oberdor-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

( -

b bridges and culverts providing access and transport (NWRA Exhibit 12 at 2) . J

l l 133. Price to the issuance of a construction permit to the NHRA, j 1

the U.S. Amy Corps of Engineers consulted with the Advisory Council on Historic Preservation and the State Historic Preservation Officer, pursuant to the Na+4emal Historic Preservatim Act of 1966,16 U.S.C. SS470(f) and 470h-2(f),

to insure the prot:ectim of the historic and archeological resources at Point

- Pleasant, Bucks County. This consultation resulted in the signing of a " Memo-randun of Ap._.t" outlining the maamires to be taken by the NHRA to rubect and preserve these resources (!# ERA Exhibit 18).

134. The " Memorandum of Ago=== t" outlines the measures to be taken to rubect the nelm.swe Canal during m-Loction of the Point Plaamant project:

Any-required blasting is to be controlled through s wtwes es+=h14ahed by the DER; during excavation, a T=14fied professional archeologist nust reim.d cross sections and other informaticn through appropriate photographs and drawings; following construction, the Canal and Canal towpath nust be restored to their original appearance in consultation with the State Historic Preservation Officer;

. following --Loction, the Canal and Canal towpath banks aust be reshaped, graded, maadad and Im d=<==d to their so--Loction contour ireliding the plarwn=rtt of an istpervious clay liner; and, during - Loctim, machinery dis-turbances in the vicinity of the canal nust be kept to a mininum (NNRA Exhibit 18,.pp. 3-4).

135 Based upcn the requirunents 4W by the Memorandum of Agree-ment, the Department, after its- own independent review, concluded that the

==Loction of the Pcint Plaamant Ptmping Station would have no adverse per-g manent inpact on the Delaware Canal (Nuss, Tr. 2020; Del-Aware E tdbits 59 and 60; NHRA Exhibit 12).

i 136. To ev6L the Point l'1aaaant Historic District, the Memorandun of Agreement required design plans and specifications for the P> int. Pleasant

- - , . - m- .----._.,,,m._,,-__._n ,,m_._,.m_.m._ _m%-,-,__,,,, . - - _ , . . . , . . , ,.,is- rm w w w --. . we-v - rem m m-

.' l 1

• l Ptauping Station and boundary fencing to be developed in consultation with the l State Historic Preservation Officer, and to be approved prior to construction.

Additionally, a lande= ping plan, consistent with the existing natural setting

'of the area, has to be devale=d to minimize the. visual impact of the ptmping station and boundary fence (NHRA Exhibit 18, pp. 4-5) .

i 137. The Department also conditioned permit approval-on NHRA land-scaping the Point Planannt site with flora indigenous to the area (NHRA i Exhibit 11, Apar'i=1 Ccmdition K) .

II. Wetlands

{

138. Only a anall area of wetlands contiguous to the nalmare River, ,

- apprordmately 0.308 acres, will be affected by the Point Pleasant project. This area is about one-third of the 0.93 acres of wetlands en the site. These wet-lands are typical of many f1rvviad plain forests in southeastern Pennsylvania i

(DER Exhibit 2 at 66).

i - 139. Ramad upcm the abundance of wetlands with similar characteristics in southeastern Pennsylvania, the Department GEh---Nad that the small wetland area involved at Point Plaamant was not an "inportant wetland" within the meaning of Section '105.17 of its r=r=*1=*4rma. Ncmetheless, efforts have been undertaken j to minimize and mitigate unavoidahla inpacts by the project, so that only 0.22 l acres of wetlands will be permanently de-Luyed by the plamnant w fill. The L remaining 0.08 acres of affected wetlands will be" restored to original grade l

9 and p.. daction conditicns (DER Exhibit 2 at 66-67) . ,

140. Mr. Harshey, as witness for Friends of Branch Creek ("FBC") arvi Del-Amare, identified at least 75 acres of wetlands cm the East Branch in or l- along the affected portion of the stream, usinJ gMdalines for identification i

prepared by tle Bucks County Planning Cr==4==ien, as well as other sources (Tr.

2895-2897).

t 1..

l 141. The Bucks County Planning Omniseion has independently identified wetland areas an the East Branch, which are indicated as existing extensively along the affected portion of the stream. (FBC Exhibit 25, with supplements require.3 by the Examiner at Tr 4182). However, since the amallants did not carry their burden of proving that the diacharge would cause the East Branch to overtop its banks or otherwise inundate any wetlands, there has been no demon-strated effect en wetlands.

I. Alternatives

a. Scope 142. Alternatives to the Point Plaa= ant project considered by the i Department included those previously studied by DRBC and the Amy Corps of 1

Engineers in 2:he issuance of their respective permits for the project. Other alternatives, suggested by ros asentatives of Del-Aware and the Applim nts, were also studied (Westm, Tr. 2452) .

143. Friends of Branch Creek took the position that pa ping the water for Limerick further downstreem, to a discharge point at h11arsville, would be an alternative to the sq- -' trar@i. system involving discharge near Elephant Road (Neill, Tr. 6) . The De .i.am:nt apparently did not ocnsider this alternative but th,re is no evidence that this alternative was presented to the Department prior to the hearing.

144. The Department cxraidered a great many alternatives to the Point Pleasant project, but did not specifically describe their various ocnbinations and pemutations in the Enviremental Assesment. Rather, the Enviramental I Amma==nent 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 otime time any particular ocabination of alternatises it wished to have considered (Weston, Tr. 2452-53).

T

. z- ,

145. The Depiu.io==st deid-1 to dc"ote a specific section in the Ehvirorunental Assessment to the discussicn 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 systems 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 (PB00 Exhibit 6 at 3; Weston, Tr. 3457-58) . Sczne of this information was updated for the specific purpose of ocupiling the Enviremental Assessment (Weston, Tr. 3641) . The State Water Plan t*ili*ad a matrix w usch for evaluating alternatives for public water supply systens and industrial consunptive uses (Weston, Tr. 3468-69).

147. In additica to reviewing the alternatives outlined in its Environ-mental Amaaaan=nt, the Department also examined the alternatives di===ad in the DEtBC Invel B Study (NWRA Exhibit 25) and in the Merrill Creek. Draft Environ-mental Dipact Statement. The latter was a report prepared by the Pl = m n River Basin Electrical Utilities Group, which ==4* alternative rcservoir sites for malosup water for various power plants, including Limerich Weston, Tr. 3457) .

148. The DRBC Invel B Study is regarded by the Depiu.im=aat as an

. official recordation of the DRBC's rules and policy regarding Basin management, which have the force and effect of a regulaticm so far as water management by

, the Dw a. is concerned. DEtBCaa n.vval of the project under application is a prerequisite to issuance of a permit by the Department (Weston, Tr. 3440-42).

149. After examining all the opticms frm the viewpoint of minimizing envirotunantal inpacts and maximizing cost effectiveness considerations under the State Water Plan, the Department determined that (frun a long 'tenn planning

+._,. ,

j ,,

i su mint) a ocnbined systen which integrated existing retail public water sup-ply systans with a wholanala public water supply systen, and also solved a major industrial user's (PECO's) water management requirements, made the most sense (Weston,- Tr. 3440, 3494-95).

150. In reviewing the PB00 permits under the Dan Safety and Encroach-monts Act, the Depart 2nent considered ccepliance not only with its own regula-tions under Chapter 105, but also with all other laws and regu.14tions ariminia-tered by the Depart 2nent and by the Delaware River Basin Ccurdssion (Mtston, 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).  !

l-(

[ 152. After reviewing all the alternatives, the Depru L ait found the Point Pleasant project to be the most reasonable pagional soluticn to meet the needs of BuckIs County, Monb -i.y County and Philalnhia Electric Ccznpany (Woston, Tr. 2604). l

b. Groundwater ,

i 153. Conjunctive managenent is a term of art used by water resource F ranagers to mean the systematic joint devalei==nt and use of ground and surface i waters. Conjunctive management has been the thrust of the policy underlying the State Water plan and the actims of the DEtBC in past years. 'Ihe Point Plaamant project is one of +5' r i.et.ypical e conjunctive water twiagement projects, because it represents a ground and surface water supply systen for the region it serves (Weston, fr. 2608).

154. Both the Ehvironnental Assessnent and the State Water Plan assume that groundwater in Bucks and Monbp=s.y Counties will continue to be used, and further assune trat in the more developed creas whose pihlie water supply systems <

i s

-now rely an groundwater, conjunctive water use management will be utilized to obtain additional water frun surface supplies (Weston, Tr. 2453-54).

155. For the service area of the NWRA project, the cmbination of )

water supply alternatives contemplated by the Enviromental Asaaawt and authorized by the pezmits cm appeal is consistent with a continuing use of I

groundwater (which most of the retail systems in that area currently rely on almost exclusively) as part of a cmjunctive managenent plan. -Under this plan, -

groundwater will be utilized with supplemental water fran surface sources, in-cluding nunerous interconnecticms'with other retail systems such as the Philadelphia Suburban Water Ccupany awl the City of Philadalnhia (Weston, Tr. 2600-01; see IMRA Exhibit 5 at 8,11, 33-34) .

156. Further devalemant of groundwater as the exclusive source of public water is not vi 21e. 'ntis source is already highly stressed and, as a result, all of Montgmery County and part of Bucks County is regulated by DRBC as a groundwater p.OUicusa area (DER Exh%i.t 2 at 25; NWRA Exhibit 5 at 4; Runkle, Tr. 1184-85; see also 29 C.F.R. 5430) . For exanple, many of the water supply systems in Cetral Bucks and MonLgucu.y Counties relying cm groundwater have Wmced difficulty in pcwiding adequal:e water supplies to their cu=Ldes

~ in recent years, even those years that were not unusually dry. 14u.=vvw. , this area is rapidly urbanizing and can expect growing water shortage problems (IMRA Exhibit 5 at 8,15).

'157. 'me Neshaniny Water Supply System area is located predcmi.antly within the grosmdwater p.vuicL=1 area designated by DRBC as a criHral water supply area (Runkle, Tr. 1184-85).

158. In naaaaaing the groundwater alternative, the Department examined the nonnal recharge rates of the femations underlying central Bucks and Mcnt-guery Counties, an the ass @on that withdrawals could be allowed up to the

= -

• .(. ,

annual recharge during a normal year (no aiw=1t for drought years was included) .

It then domined how large an area would be required for groundwater with-drawals to serve the needs identified for the water supply portion of the Point Pleasant project; the Department did not look at the future needs ol' existing users in the area. 'Ihe Department assuned that the area wherein new sells would be dev=1rmad would be restricted to its current level of groundwater withdrawal or parb=y less (Weston, Tr. 2530-31, 3444-46, 3663-64).-

159. The Department also took into account DRBC's policy of avoiding overdevelet=swit of =L.-W groundwater areas in which a regional water supply systen is available. 'Ihis policy applies whether or not a partimlar well is

' withdrawing or would withdraw in excess of the recharge rate. 'Ibe purpose of this policy is to ensure that groundwater exists not only to support the gMir-water supply, but also to m rt streams and oth2r users in the area (Weston, Tr. 3500-01) .

l'60. Even if withdrawal of groundwater does not W its repla m nt in an average recharge year or one in ten-year recharge period, cones of depression-which are a partim1=rly difficult problem in Triassic formations--will result.

'Ihere is.a likelihood that nearby &=.-stic wells or wells located alcag the same fracture traces will experience drawdown pr+1 - (Weston, Tr. 3465-66).

161. Raw on recharge rates, a groundwater system would nave to be spread over a very large region, rendering it 1 ,-ctical. An added diaadvan-I' l

tage is that a widespread systan of wells would encourage further d r:d n+rd dev=1ri - nt. (DER Exhibit 2 at 69-71; Neston, Tr. 2422-24, 2463-64, 2535-36, l Ihmkle, Tr. 1078-80).

c. Conservation 162. Water conservation is not a viable long range alternative to the j

project because even during severe drought conditions, when people are nost sensi-( l i.

a tive to shortages and the need to conserve, a savings of only 10-15% in average total public water supply use has been acAteved. 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-rarse Bucks-McnLpeuy water supply problen (DER Exhibit 2 at 68; Ford, Tr. 2205, 2265-67).

d. Iake Nockamixon 163. Lake Nockmixcn was cmsidered as an additional water supply source for Limerick (Duncan, Tr. 770) . However, Lake Nockmixon was constructed for-and is dedicated to-recreaticmal uses up to the year 2000, and nwy not be used for other purposes until that time (Runkle, Tr. 1010, 1022; DER Exhibit 2 ct 72-73).  !

164. In any event, the facility would have to be redesigned and nodified before it could be used for water supply purposes. SI w in1 legislative authority would be new1ul before water fran Lake Nockamixon could be sold (DEA Exhibit 2 at 73-74). Moreover, the use of Lake Nockamixon for water supply purposes would rerder it unavailable for eTr.a@ecy use in ocntrolling the e,alinity front during droughts (NWBA Exhibit 7) .

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

During the planning stage of this project, PKD dimmW with DRBC and the Depart 2nent the possible use of water frun existing or s.g M reservoirs on the Schuylkill and Delaware Rivers (Boyer, Tr. 3907-08). DRBC considered the use of the Schuylkill River for Limerick in its 1973 Enviru1 mental Impact Statanent and 1980 Enviromental Assesanent, but concluded that the Schuylkill could not absorb the year-round constmptive withdrawals Limerick will require (Boyer, Tr. 3899-E; Board Exhibit 4, Part III at 2-29) . In fact, the DRBC l

L

_ _. = -

t..

i- docket expressly provides that withdrawals frm the Schuylkill River itself

' are not permitted when the flow at Pottstown is less than 530 cfs for cne unit at Lbnerick and 560 cfs for two units, not counting augmentation fra storage dev=1W and sponsored by the DRBC (PEDO Exhibit 1 at 5; Weston, Tr. 2509) .

166. A PB00 request for use of an meisting reservoir on the Schnylkill River (or_ of the Schuylkill itself) as PEDO's source of cooling water for Lhnerick would require further regulatory aan.wal by DRBC. In light of DRBC's ext:ensive consideration of alternatives in its 1973 EIS and 1980 Final Enviral-mental Aaaaa=nant, and its dar iaion declining to reconsider its previous docket acders, it is unlikely that DRBC would approve any additional use of Schuylkill water for Limerick (Boyer, Tr. 3899-D) .

4 167. Assuming arguendo DRBC wouhi be willing to reconsider the Schuylkill alternatives it previously rejected as infaaaihla, the review p1.ec. ass would be time constaning and pot.istally fraught with new objectives and objectors (Boyer,

~ Tr. 3899-D). Even if DRBC approved a Schuylkill River alternative, PBOO would still have to go back to the NRC for W4 fir'ation of its present construction

! permit and, when issued, its operating license (Bayer, Tr. 3899-D) .

168. The D piu. a. likewise reviewed various alternatives in the Schuylkill River Basin fer one unit, and found that no existing reservoir in that basin has sufficient s^w :,e available for use as a water source for Timarick 08eston, Tr. 2367; Runkle, Tr. 858; PEDO Exhibit 2,Section III at 3) .

f. Blue Man.h 16S. Among the several Schuylkill River alternatives examined by the '

Department was the Blue Marsh anaervoir, which is owned and operated by the corps

of Engineers under the guidance of the DRBC. The Department does not have regu-3atory jurisdiction over Blue Marsh. Its entire operation and release schadulaa are under the jurisdiction of DRBC. Actual operation of the facility by the 4

i .

Corps of Engineers is coordinated by the DRBC. DRBC 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 storage in the reservoir,14,620 acre-feet has been antracted to DRBC and is within its con-trol. This is the total amount of water up to elevation 285 (Erickson, Tr. 1543, 1568, 1571). The Department would oppose the allocation of Blue Marsh water for Limerick (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, Ccngress allocated 8,000 acre feet in Blue Marsh for water supply storage and 6,620 acre feet of storage for water quality augmentation (Runkle, Tr. 875, 1112-13; Weston, Tr. 2518-19). An addit-icnal 4,400 acre-feet are n11 mated for recreation storage (Erickson, Tr.1543) .

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

172. Any change in the a11mation of storage at Blue Marsh would re-quire an Act of Cswess, which iniHally authorized the allocations with refer-ence to the RwL prepared by the U.S. Army Corps of Engineers (Runkla, Tr.1092, 1131; Weston, Tr. 2519).

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

1131). The required reltwi% for Western Berks Watcr Authority to the year 1989, which must be made at au times,-is 9 cfs (Runkle, Tr. 922) . Frmt 1990 through 1999 this rel== iram to 13 cfs, and frm 2000 through 2009 to 18 cfs. After 2010,~it is set at 27 cfs (Erickson, Tr. 1572-73). When the Western Berks allo-cation reaches 14 cfs, it win require about 40 percent of the 8,000 acre feet

.of water supply storage cantained in Blue Marsh (Runkle, Tr.1146).

174. Western Berks has top priority cm the Blue Marsh Reservoir water supply sL,.ge tw-=>= of its location in the Tulpd.0chu watershed, which feeds Blue Marsh (Runkle, Tr. 1141, 1146).

.175. Water allocated to Western Berks has not been r=11emted for other downstream uses, cm the theory that nancanamptive uses win return the water to the Schuylkill River. The Department has never allocated the same block of storaw for two separate purposes, not even omisidered return flows as an available block of storage (Runkle, Tr.1267). The Department does not keep records, nor is there any way it mild keep track of, the return flows of Western Berks (Runkle, Tr. 1272-73).

176. In addition to the Western Berks ral==a, another 40 cfs aust be continuany ra1==d frta the Blue Marsh Reservoir as a mininun conservation ralem for downstream aquatic life in the Tn1r=:---hn Creek (Runkle, Tr. 922-23, 1160; Erickson, Tr. 1557-58). This ra1=aa must pass throtqh the dam at an L .

l times, even during low flow canditions, but it has previously been lowered during periods of drought mergency (Runkle, Tr.1101; Erickson,1545). ' Ele 40 cfs continuous minima downstrean ral==a was developed by the Corps in coordinatiat with the Omnonwealth of Pennsylvania, M aad on the % -10 flow of Tulpehocken Creek as reflected in the State Water Plan (EriCKsan, Tr. 1552-55). A % -10 flow is a low daily flow emputed fran a seven ocnse.mtive day flow which is so j far M1rmr average that its ct.(4 recurrence interval is ten years (Erickson, Tr. 1554-55) . Section 105.113(b)(1) of the mpartment's regulations states a

I s- , .

1 fonula specifying the amount of water (in cfs per square mile of the drainage area of a dam structure) which must be released as a mininun conservation measure to p.ctsct aquatic life downstreasu (Runkle, Tr. 1102-03, H05-06, un-13) .

177. Wille the Department is consulted by DRBC with respect to changes in the conservation release, the Departsnent does not have authority to approve or rh==puve the change (Weston, Tr. 2527-28).

178. In addition to the Western Berks usage, the water supply sLu. age

!n Blue Marsh has been utilized for emergency drawoffs during drought, e.g., in the 1980-81 drought, to control salinity in the Delaware Estuary (Runkle, Tr. H32) .

179/ In 1977, Blue Marsh was considered as a source of supply for two

. units at Limerick, as part of the State Water Plan (Runkle, Tr. 861,1133, H37) .

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 expaessed by Del-Aware (PB00 Exhibit 6 at 12; Runkle, Tr.

861-62, H30-31, 1221; Weston, Tr. 2367) .

180.1he State Water Plan staff found that it would take five tims the anot.nt of water supply .Lu. age in Blue Marsh to sustain the 530 cfs flow in- the Schuylkill River one unit at Limerick would have to withdraw fran the river during the second and eighth worst years of record (Runkle, Tr. 914-15, r

1120). This calm 1ation did not include flows into the Blue Marsh Reservoir .

because evaporation, miniansa downstream ralaaaaa and the Western Berks Water

. Authority =11mation would use up the total inflow caning into the Reservoir Otunkle, Tr. 915) . Additionally, this detarmbiation was based on a 27 cfs  !

average une fa.gure for one unit and did nyt make anowances for peak use (Runkle, Tr. 938) .

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

44-

-g-- + *,y..--w-, w ., ,. ,,- ,-..,-- ,--. ,,,,-. , . . _ , - - - -w.-, e,-,--- ww, -,---en,,--,.-v.,-w,,

only 60 E=rst of the time, and that the renaining 40 percent, i.e., for 146 day;, per year, would be supplied frcm the Point Pleasant diversicn (DER Dc-hibit 2 at 28; Runkle, Tr. 1152-57). ,

182. One cfs-day is equal to 2 acre-feet (Runkle, Tr. H51) . There-fore, u+414 ming the flow value for one unit at Liinerick of 32 cfs times 146 days yialda 4,672 cfs-days, or 9,344 acre-feet of water shu. 3e n--y to meet the demands for even a single unit at Limerick (Runkle, Tr.1153) . The figure would be double for two units (Runkle, Tr. H54) .

183.)If one ignores the minimza ficw requirenents (of 530 cfs and 560 cfs) iW_ by the DRBC for withdrawals for Limerick on the Schuylkin, flows available from the storage myity at Blue Marsh would not, during the i

second worst drought year of racu.u, provide sufficient yield to meet the demands for cme unit at tin = rick at less than peak demand. 'Ibe 4,000 cfs available frun the 8,000 acrs-feet water supply storage ccmpnent of Blue Marsh would just f

barely be enough to meet the average use at Limerick during such a drought period (Runkle, Tr. !r64) . Blue Marsh would have capacity for one unit at Limerick even during wunght periods if a portion of the block of swi.3e of 6,620 acre-feet which has been daatrated for low flow water quality were used.

l 184. Although the definiticm of an interbasin or interwatershed trans-l for varies, the transfer of water at Point Plamaant frun the Delaware River to the Nasheminy and Perkicanen Creeks (both tributary to the Delaware) does not ccmstitute an interbasin transfer for purposes of the rW Water Paamroes Management Code or water managenent in the Ccmmonwealth (Weston, Tr. 3648-49);

transfer frun the Delaware to the Schuylkin is an interbasin transfer which, pursuant to DER policy, requires that the Schuylkin's resources have been thoroughly utilized. ,

^

1 l

,e . , .

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 ("dBot.c.mi, Tr. 2661-62) . Thtu., the only supply available in the future for ,

pihlic water supoliers and private users in that sub-basin is the resnainder of the Blue Marsh water supply storage (60 percent) left after the Western Berks al'ocation (minkle, Tr. H70; Westcm, Tr. 2660-61).

184 Dedication of Blue Marsh to Limerick means, as a practical

' matter, that all other area users would be restricted to their current alloca-l tions with no canacity for expansion (Westcn, Tr. 2661; Runkle, Tr.1224) . 'Ihis

~

! smid conflict with anticipated needs of public water suppliers for Philalphia, Pottstom, Phoenixville and Norristown for additional withdrawals frcm the Schuylkin Ri.ver (Runkle, Tr. H69) .

187.)A=ida frcm future anocations, allming withdrawals fran Blue Marsh for even one unit at Timarick would have an impact upon downstream Schuyl-kin River users. The distance between Blue Marsh and Timprick is one of the most herrily used stretches of the most heavily used rivers in the erwrrwealth, i .:

There are a runnbar of industrial and =mininal intakes between Phi 1*1Wa

( and Limerickr These users would be deprived of any ocmsunptive water use al- .

I lowed for r.imarick fran Blue Marsh. For exanple, 21 ngd for one unit at Limerick is roughly equivalent to 13 percent of the70 -10 fim of W Schuylkul at the Pottstown gauge; the 7Q -10 fim is the fim standard custmarily used during investigations ocncerning water quality at low fl w. Accordingly, dimin-l inhing the flow of the Schuylkin by 21 mgd belm Limerick would subtract a substantial anount of the im f1w, would inpact users along the River, and would also affect instrema uses of the River, including wastalnad assimilation (PB00 Exhibit 6 at 16-18; Westen. Tr. 2669-70).

s, 188. The Depart 2nent therefore again concluded-in the context of these arw=ala-that Blue Marsh is not a viable alternative to the Point Planaant pmping project for even one unit at rimrick, hananaa of anticipated needs for m1ation growth and industrial expansion within the Delaware River Basin (PE00 Exhibit 6 at 16-18; Runkle, Tr. 1162). ,

l' 189'. Even if there were sufficient water in Blue Marsh for cme unit at Limerick, DEtBC would have to approve PECO's use of that water (Boyer, Tr.

3910-11). The Department does not have jurisdiction over non-potable supplies of water a11mation, just =hlin water supplies. Any industrial water alloca-tion would therefore have to cane fran DRBC (Runkle, Tr. 976) .

190. Allowing PE00 to utilize water fran Blue Marsh, to provide

==h? cooling water for one unit at Limerick and to provide canpensatory re-

, laaaaa at low flow periods fran Merrill Creek into the Delaware River, would not satisfy the conditions 'of PE00's docket at the DRBC (regarding Schuylkill flows) (Weston, Tr. 2372-74). PB00's allmatial fran DRBC is cond).tioned such that it may not withdraw fran the Schuylkill River when the flow at Pottstown, not inn 1M4=3 flow fran any DEtBC memumu.ad shage, falls below 530 cfs (Weston, f'

l Tr. 2374).

191. Inbrai.ing the DRBC docket rianiaims relevant to withdrawal of Schuylkill River water by PE00 for Timrick, the Aaamiate Deputy Secretary for Rosaurces Management, who is also the Alternative nalar=te for the &n-mwealth of Pennsylvania to DRBC, concluded that CRBC prnhably would not allow Blue Marsh to bei used for Limerick under those decisions (PECO Exhibit 6 at 18; Weston, Tr. 2380) . Significantly, the Alternative Delegate stated that the Depart-ment and the Pennsylvania DFBC Cmrissioner would not support a ommitznent to a single user of a reservoir meant for an entire basin with 1.5 million people y (Westa , Tr. 3463).

I

g. Phi 1=dainhia Suburban 192. The availmhility of water frat Philadelphia S*whart Water Ccznpany for Limerick was investigated in the State Water Plan (Runkle, Tr.1141) . Phila-delphia Suburban Water Ocupany reservoirs have a mnhined 96.5 mgd yield. They are currently supplying 77.5 mgd and have a 17 ngd surplus (Runkle, Tr. 981-83) .

The fr=ym an which this yield figure is based is unknown. Therefore, Phila-d=1nhia Suburban may not ach=11y have a surplus durirq droughts (Runkle, Tr. 984) .

193. It is projected that Philadainhia 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 hvuir, its four other reservoirs and its existing wells,

~ Phi 1=d=1nhia Suburban faces a yield deficiency of 13.5 mgd in 1990 and 54 mgd in 2020. Thus it is not a long-term source of water for Limerick (Runkle, Tr.

1142-43, 1166-67).

h. City of Philadainhia ,

194. The Department also cemidared radncing the City of Philadelphia's alle-tion and having PB00 take this water out at Pottstown, but rejected this

' alternative hacan== of the nature of the use. One unit at Linwrick requires a oansumptive water une in avr=2= of 21 ngd. The City of Philadalnhia's use of its water is primarily is u mmptive. Only ten Wht is consumed; the runnin-

l. .

der is return

• flow. Also, the =L4u.h of the Schuylkill between Pottstown and

~

Phi 1=d=1nhi= oantains a rnzaber of industrial and ==ieinal intakes, and is cme of the most heavily used reaches in~ the Ocamanwealth. Those users would be deprived of water constaned at Lhnerick. 'Ihe loss of this water would have a substantial inpact on aquatic life, recreation, users alcog the river and the instrema uses of the river, including waste load assimilation (PECO Dchibit 6

. , . at 6-12; Weston, Tr. 2669-70).

.s.,,

l

i. Pipeline fr a Philadalphia 9

195.' The Department also considered diverting the Delaware River water Ct Pbilmdalphia rather than at Point Pleasant as an alternative to the project.

This alternative would only provide cooling water' for Limerick. It determined 4

that a 30-mile pipeline with papage over an elevation differential of 450 feet i

would be m aary. Installation of this pipsline, three times the ambined length of the Point Plamaant ombined tranei==icm main and Perkimen trans-i' mission main, would entail intensive construction activities through heavily pqnlated areas at a cost --w iing 52 million dollars. It was also determined that maintenance and repair would be more difficult, and that operational costs f

for transmitting the water over a greater distance would naca=aarily be sub-stantially higher. It was also determined that this alternative would not be environertally preferable, partim1=rly as regards Delaware River flow and sa-linity intrusion (DER Exhibit 2 at 79-80).

196. Detailed d4 =m==icm of the alternatives d4=manad for the NWRA portion of the project is set forth in the Discussion, infm, and inwrpadted herein by reference. In se, none of the s,-:--4 alternatives were demonstrated by the ===11 ants to be faanihla, let alone =ipariew to the Point Plaaaant project.

. J. Permitting Prma==

197. Peter Duncan was the Secretary of the Department in 1981-82. In that Pty, he was ultimately responsible for the de& amination that an Ehvirormiental Amaaa-ant should be prepared for the Point Planaant project (Duncan, I Tr. 748-49). On the basis of his belief that a single focus was W to pull .

1 all the maary information together, Duncan assigned Timothy Weston to oversee . -

the actual preparation of the Amaaaament (PEDO E::hibit 6 at 2; Duncan, Tr. 751-52) .

Duncan assigned Westm lead resporiaihility for the Enviwi i== ital Assessnent in view of his manageriti experience and onckground in the Department, particilarly in the Division of Water Quality hanagement (Duncan, Tr. 751-52) .

i. __. _ _ _ . . _ _ .

. =

, - s ,

198. Duncan instructed William Middendorf, Deputy Secretary of Environ-mental Protecticm, to provide Weston with the necessary water quality infornation (Duncan, Tr. 752) . In return, MiMandorf delegated respone:ihility for coordin-1 ation with Weston to Ieon Gonshor, Director of the Southeastern Regicnal Envir- .

I armettal Protection Office, and Icuis Bercheni, Director of the Bureau of Water  !

Quality Managenent (Middendorf, Tr. 794) .

199. Jack Ford, Chief, Eastern Section, Division of Waterways and Stornwater Management, was in charge of ocznpiling the material for the Environ-mental Assessment (Rehn, Tr.1675) . As such, he drafted many of the initial sections and prepared the final sections delirs with water conservation and -

wetlands (Ford, Tr. 2140, 2202; Westcm, Tr. 2430) . Other sections were supplied by Steve Runkle, a hydraulic engineering supervisor with the State Water Plan, and John McSparran, Director of the Water Resources Managenent Bureau (Runkle, Tr. 822-25; Ford, Tr. 1981-84; Weston Tr. 2430) .

200. In preparing the Environmental Assessment, the Department cross-checked the information supplied 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 frtra a number of DER bureaus and csffices (PECO Exhibit 6 at 2) .

202. In conducting its review of the Point Pleasant project, the Department exanined and (to some extent) relied upon ntanerous reviews, studies and analyses performed by DRBC, the Corps of Engineers and the Soil Conservaticm Service of the U.S. Department of Agriculture. In additicn to the several envirtn-mental assessments and environmental impact statanents prepared by these agencies, the Depart 2 tent also reviewed and relied upcm voltaninous h=mts, studies, re-ports and oc2tments furnished by PK:0 and NWRA, as well as by other individuals

~

, 3

.,, , i

.- 1 , .

l and organizations tvv==witing on the project (DER Exhibit 2 at 14-23; Ford, Tr.

- 2195; Weston, Tr. 2327) .

203. With regard to the instant ==,=a1_, the N T=rtment reviewed a nom-ber of K w i and other forms of uu.se.ler se furnished by ===11arits 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 Dep .L-.t was also gnidM by the decision of the United

States District Court for the Eastern District of Pennsylvania, affinning DRBC's previous approvals of the project in DelaLure Fater Energency Group v.

Hansler, 536 F. Supp. 26 (E.D. Ea.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 Timrick ww.nt of the Point Pleasant project to the Cuer.:t.iinsive Plan, as set forth in DRBC Docket Nos. D-69-210 CP (March 29, 1973) (PE00 Exhibit 1), D-69-210 CP (Final)

(November 5,1975) and in DRBC Docket No. D-79-52 CP (February 18, 1981) (PE00 Ed11 bit 11) . In this Kwd, the Department sMid DRBC's Final Envis.u-=Ral Dipact Statement en the Point Plaaaarit Diversion Plan (1973) and its Final Ewironmental Amma=== wit for the Neshaminy Water Supply System (August 1980),

which 'wvv==nied these approvals (DER Mihit 2 at 17, 21, 28) .

206. The Department also reviewed the reum.d before the ABC (which re-sulted in the i==umoe of the Final Envis.u-=>Lil Statement (November 1973) re-lated to Limerick), as t,.11 as the hearing record before the Atraic Safety and Licensing Board and the Appeal Board of the ABC on the issuance of oonstruction pennits for T.in= rick in Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), IBP-74-44, 7 AEC 1098 (1974), aff'd AIAB-262,1 NBC 163 (1975),

aff'd sub nan. Environmental Coalition of Nuclear Pover, et al. v. Nuclear ,

Regu!atory Corrmission, et al. , No. 75-1421 (November 12, 1975) (DER Exhibit 2 at 18, 19, 28).

, e. .

207. '1he Enviw .ucantal A=aaaet was the primary decision dev'= ant for all the permits on armal issued by the Department. The entire inpact cf the project was considered in w.u-et.icm with the issuance of each permit (Weston, Tr. ; 2298, 2484, 2489) .

208. The Envim _Tull Assessment prepared for the Point Plamaant

' project is the first Assessnent ocupleted for the issuance of dam and encroach-ment permits under Cryw 105 of the Department's regulations (Ford, Tr. 2200-

01) . Prior to the fall of 1982, enviwi.=adal a==aasments were done on short

. form latters with information supplied by the various Cmmonwealth agencies and departments (Ford, Tr. 2202) .

209. On April 14, 1982, Department officials met with Del-Aware repre-sentatives and technical assistants for an entire day. The purpose of the 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 Envirarsnental Amaa=== ant would fully address Del-Aware's 'ocncerns (Ford, Tr.

1924; Sigstedt, Tr.-216-17, 2.30-31; Weston, Tr. 2339, 2342-43).

210. At the April 14, 1982 meeting, Del-Aware mihnitted a otmp41=*4rwt l

of written objections to the Point Pleasant project as well as 13 hunartts setting out its position on the issues (Del-Aware Exhibit 18; Sigstedt, Tr. 215; Stipu-l lation, Tr. 212-13) .

211. Various Department offir*iala attended the April 14, 1982 meeting and noted the issues within their cogni==== as dia,iamad by Del-Aware's nwnhars.

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

=r of the Ehvirorunental Aaaaaanient (Ford, Tr. 1935-36).

mary 7 1 I 212. Del-Aware's representatives met with Department Mm4usel with regard to the project.on a number of other ev'ramions, including one e== ion in which Mr. Neston met with stata legislators fran the Point Planaant area, their t-i

', s-( ( <

OYg i

SUGARM AN, DENWORTH & HELLEGERS ATTORNEYS AT L AW

.. ROBERT J. SUG ARM An4 16TN FLOOR. CENTE R PL AZ A gu,,, ,3 3 1200 PENNSYLVANIA AVENUE, N W.

JOANNE R. DENWORTH 101 NORTH BROAD STREET JOHN 7". HELLEGERS PHILADELPHIA. PENNSYLVANIA 19107 ro , .o '

l I

COBIN T. LOCKE (215)751-9733

" "E"'"^*

• E"'o" " C *

, May 23, 1984 COUNSCL

• w onestYto in PA.

Mr. Harold Denton Director Nuclear Regulation Nuclear Regulatory Commission Re: Del-AWARE 2.206 Petition

Dear Mr. Denton:

Enclosed please find a copy of my letter of today to Ann Hodgdon of the NRC staff.

The comments in this letter are equally pertinent to your action of Del-AWARE 2.206 Petition, and I respectfully request that you imemdiately modify and reopen

-your decision in that petition and advise PECo of the need to' supplement its application to provide alternative sources

.of supplemental' cooling water, and establish procedures to

' deal with such amended application.

L This is also request that you promptly inform the Commission, which has your decision on the 2.206 Petition under advisement, regarding your action, and the necessity for reopening the 2.206 Petition under advisement, regarding your action, and the necessity for reopening the 2.206 Petition, as well as supplementing the staff briefing.

Since the staff has been so repeatedly apprised of the conditions, it is incredible that the staff could completely misstate the situation to the Commission. I request copies of all staff papers relating to this briefing to this Commission, insofar as they concern Limerick and/or the supplemental cooling water for Limerick.

In its denial of the Petition under $2.206 on April 25, as well as in its staff letter of April 25, and -

the Board decision of April 23, the NRC staff contends that if and when an application is made by PECo which reflects use of a different sources of supplemental cooling water, such amended application would be reviewed in the same manner as the original application, proposing use of Point Picasant.

M *1 # u W D I v r IM 7 T 4f

2 ( flay 23, 1984 fir. liarold Der ( n Obviously such review will tnke some amount of time. Action by the staff to cerrrence such review even if it is arguably a contingency at this point, is not only a matter within the control of the Commission, but als.o directly relevent to the Commission's expressed concern for avoidance of delays. Indeed, differing consideration of alternatives, even though they might exist in the real world, is precisely the purest case of licensing delay unrelated to progress of cuntruction. It is as directly violative of the Commission's expressed policy as any possible action could be.

That this is not merely a theoretical or speculative problem is highlight by the staff's report to the Commission that the applicant seeks low power operation in 1984, while Point Pleasant could not be available, even if reccmmenced promptly, prior to spring 1985.

In these circumstances, the staff's refusal to undertake evaluation of alternatives at this time, in order to prevent delays in the operation of Limsrick, is arbitrary and capricious in the classic sense, as well as a bias application of Commission's policies.

If not in fact designed to defer action until the point where PECo can make the claim in local court that the NRC cannot process alternatives fast enought to avoid delay, it certainly is determined upon with full knowledge of that potential effect.

In view of the seriousness of this matter, it urgency, and the staffs inconsistent statements, I am taking the liberty of bringing this letter to the attention of the Commissioners and Chairman Bevill.

p ' '

Since ely,I

) -

Robert J. S g rman

/ve. .

Enclosure

V. . .

) .

constituents and opponents of the project to die == their concerns (Sigstedt, Tr. -

217; Greenwood, Tr. 259) .

213. Additionally, kr.,.__.itative Greenwood met with Mr. Ihmkle in the amener 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).

State Representative Greenwood and Del-Aware's President, Colleen Wells, subse-quantly reviewed this matter with Mr. Westcm 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 en Unit 2 of Limerick. They also d4====d the Blue Marsh Reservoir as an alternative to using Delaware River water,'and raised various other la==a (Greenwood, Tr.

270-72, 276, 297).

214. Another meeting, held on August 17, 1982, was attended by Secre-tary Duncan, State be. .,_itative Greenwood, Del-Aware's legal counsel and another Del-Amare representative on these same subjects. They also discnaaad -

the r/wd.ial use of Lake Hockambon as a supplanental fhw augmentation source.

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

4

• K. North Branch Flows 215. While the additional puqanges into the North Branch Neshaminy

Creek may exceed the median flown at the point of discharge, they are minor in

---

'=rn to the flows exhibited during storm events occurring every few years (tdstimony of Dr. Dresnack, T 4370) .

i 216. Based on Dr. Dresnack's independent analysis of the North Branch Neeheniny 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; IGEE Exhibit 55 and 56).

1 ,

.n f

217. Flows in the North Branch Nesbaniny Creek, after the initiaticn of ptmpages from the Bradshaw Reservoir, will be confirmed to the stream bed and will not cause overbanking (testimcmy of Dr. Dresnack, Tr. 4345-4349).

.218. The ratio of peak flows to long-term-average flows is primarily a faction of drainage area; as drainage area incraaaaa, 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 (NNRA Exhibit 52, Testimony of Dr. Dresnack, 2 . 4364-69).

219. Using a worst-case scenario (no natural flow in the North Branch Nashmainy Creek), there will be ample in-bank capacity in the North Branch Nashaminy Creek to m<vv==ndate a inavi== daily discharge of 48.8 mgd in the year 2010 (NWRA Exhibits 53 and'54; testimony of Dr. Dresnack, Tr. 4377-84).

220. Depth ch:=sges of no more than 1.5 feet above natural.' canditions will occur in the North Branch Neshaminy Creek (testimtmy of Dr. Dresnack, .

Tr. 4345-49) . .

221. Findings of Fact 86 and 87 supm mean that for a bare strean chan-nel cxmposed of silty clay loma and sandy clay loam, a rs. esive diversion velocity is 2 fps or less (Wim of Dr. Dresnack, Tr. 4371-72; NNRA Exhibit 57); the x- s  ;-T ti=r figure for water trarwLing colloidal silt in a firm 1 loma channel is 3.5 fps (testimony of Dr. Dresnack, Tr. 4372; PIED Exhibit 12).

l l- 222. Using the =avi== daily discharge of 48.8 ngd in the year 2010, t

l the diverted water will exit the North Branch Trar=nimairwt Main at a velocity .

r l of 7.85 fps. However, .the n - ,-: :- 1 energy dissipator will :: educe the flow velocity and the water diverted will enter the North Branch Neshaniny Creek l

l channel at only 1.2 fps (NMRA Exhibits 31 and 55, testimony of Dr. Dresnack, i

l W . 4348-92).- In the year 2010, when conveying the average daily flow of 32.6 l  ?

agd i.2.v.$. the North Branch Nashaminy Creek, the flow velocity in the channel will be 2.2 fps and the strema depth will be 1.2 feet (testinony of Dr. .Dresnack, l

l Tr. 4392-93) . ,

~%

I  !

t,,*

223. The mean velocity in the North Branch Neshaminy Creek after the

' initiation of ptspages fran the Bradshaw Reservoir will be 1 fps; =v4== velocity will be 2.5 fps (testimony of Dr. Dresnack, Tr. 4345-49).

224. hp- te to the North Branch Nashmainy Creek win be minimal be-cause ptspeges fram the Delaware River will be inplanented grarbally during a 25 to 30-year time span. There win not be'a zero-to--4==-increase on a daily or weekly basis, and armitoring in the early stages win help to establish flow requirunants naariari for pat +4mle water demand (testimony of Dr. Dresnack, Tr.

4395-96).

225. To assure proper operation of the r=1amaan fran the Bradshaw Bemervoir to the North Branch Neshaminy Creek, NHRA's operating 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 nrmitoring of strean flows and weather conditions.

leeth win not continue pLaping during flood conditions (testimony of Dr. Dres-neck, Tr. 4492-4493; DER Exhibit 2, p. 40) .

226. The amount of flow in the North Branch Nashaminy Creek win be based on the daily water supply needs and on the desired storage and recrea-ticmal water level in Lake Galena QGEth Exhibit 13, testimony of Dr. Dresnack, Tr. 4423-24, 4427) .

l 227.1he refilling of Lake Galena for summer recreational use will t oaemence in n r=*=r or January of each year. If natural inflows fran North Brandt Nashantiny Creek to Lake Galena are considered inadequate, those inflam l

win be applemented by diversions fran the na1==re River. A plan of operation win establish Bradshaw asservoir pumpage rates, based on Iake Galena recreational and storage needs and cm drought considerations affecting the North Branch Nesham-iny Creek (testimony of Dr. Dresnack, Tr. 4444-46; DER Exhibit 2, p.10) .

228. Although DER determined that the diversion of water into the receiving strema, North Branch Neshmainy Creek, would have no adverse erosive

' O

' ,'a '

impacts, DER conditioned the permit issuance on permittee's continuous monitoring for erosion in the receiving stream (testimony of Jackie Ford, Tr.1962; Dans and Ehcroachments Permit ENC 09-81, Wi=1 Condition "V") .

229. A seine sampling survey of the North Branch Neshaminy Creek, per-fr===d by m's consulting hialevyist on April 17, 1983, found a very diverse fish camamity, typical of small temperate stremos in the Mid-Atlantic region (testimony of HaroM M. Brundage, Tr. 3853-54).

230. The North Branch Nashaminy Creek fish species are very aimilar in ocuposition and relative abundance to those found in the Delm-m River near Point P1mamant; but the na1==m River also has large game species (American Shad, Blumback Harring) not found in the North Branch Nashaniny Creek, w a =

the n=1==m has a larger volume of water and more niches for fish to occupy (testimony of HaroM M. Brundage, Tr. 3855-56).

231. The North Branch Hashaminy is an intermittent stream, having dry reaches and anall stagnant pools in the suanar. The nal==m River pumpages would increase the fish habitat (testimony of HaroM M. Brundage, Tr. 3863-64; testimony of Stephen Runkle, Tr. 856-57) .

232. Aquatic life in the North Branch Nashaminy Creek currently ex-periences considerable changes in flow and ==di==nt, due to flash rainfalls (testimony of HaroM M. Brundage, Tr. 3855-57).

i 233. The water quality @--p= 93 standards r1441= to the North Branch are identical to those in the East Branch; thus the Findings above

regarding water quality impacts on the East Branch (Findings of Fact 103-113)

are incorporated herein as though set forth at langth, l

l  :

k .

r III. DmmRICH A. PRElH EE As the reader has already discerned, having weded through or skinned over the more then two hundred findings of fact, this has been a ocmplex and hotly contested ones.

In ceder to get a handle on the 1mnantably extensive di=a==ias to follow, the first ceder of business is to describe: (1) the Point Pleasant project, and (2) the acticas of DER regarding that project which gave rise to the appeals at the above docket.

1. Project Description-General The description of the project which 4===diately follows this p=. p.@

is frca DER Exhibit 2, a doctanent entitled Ehvircennental Assessaant W and Findings Point Pleasant Mater 9-ly Project, dated August 1982. It is appro-priate to quote the Ehvircruauntal Assessment har === this dan ===rit simnarines the Department's reasoning for taking each of the presently appealed actions, while sinultaneously addressing each of the envircrunental issues raised by the appellants. 'this is not a coincidence; the appellants in this case, a citizens grog known collectively as Del-Aware thlimited, Inc., have been involved in DER's

"-i% proomes to an unusal degree. napresentatives of appellants l -

participated in an April 14, 1982 scoping remeting with top-level DER personnel; i i

l during this meeting, and thtoughout doesns of other contacts with DER officials, l

appellants helped IER construct the list of envirurunental issues to be considered.

i To some settent the Ehvirtzumental Assessaunt can be cennidered the Department's-answer to appellants' concerns.

r The proposed Point P1=marit Project is an integral ocupenant of the Nashaniny Water Supply System that is being laplananted by the Nashaniny Water nemourons j

i Authority of Bucks County. '!his systen would divert wetse from the Deleuere River mainstem at Point Plaamarst to (1) styplament ;*14e water supplies in Bucks and .

lentgtsmery Counties, and (2) provide water, when needed, o to the Lbnerick Nuclear Generating Staticut in len'Wy }

County. '

O '

. e 4

4 '1ha Point Pleasant Ptsp Station would have an ulti-innta cepecity to divert 95 million gallons per day (agd) and lift water via a transnission main some 2.4 miles to the proposed Bredshaw Reservoir. W e Bradshaw Reser-voir would serve as a holding and control structure.

21s first sepent, fran the Point Pleasant Ptap Staticut to the Bredshaw Reservoir and Ptap Statice, would serve as a joint facility for Phth1(tia Electric Ompany (P500) and Nashandny hter Resources Authority (NNRA) .

It would be developed and operated by the temA on behsif of both project sponsors.

In the second sapent, the water diverted fran Bredsher Reservoir to the Nashmainy hter Resources Autharity water sigply system would be released into a transai==im main appecodmately one mile long to the North Branch Nashandny Creek, and then (would] flow by gravity into and through Iake Galena to the North Branch water treatment plant located in Om1 font, Pennsylvania. After appropriate treatment to meet Federal and Stata drinking water standards, finished water would be distributed through several trap-i==im mains to serve retail public water supply systems in Racks and entgomery counties serving over 50 namici-pclities. These trap ==i==im facilities would be con-structed and operated by NNRA.

The ==vinam amount of water to be ptsped from the -

Delaware River at Point Pla===rtt through Bredehaw Reser-voir in the year 2010 for PMic water supply would be 49 agd. Forty upd ultimately would be picked up at the Om12 ant Matar Treatment Plant. Approximately 4 and would constituta eveparative and seepage la====, and 5 ingd would serve as strean flow , 4 *im in the Hashmainy Creek to enhance fish and wildli4, in ao-cordance with release schshales requested by the Penn-sylvania Fish h==im and imposed as conditions in the Matar A11contion Penait 2. WO978601 previously issued for the project by the Department of Dwison-mental Resources.

• Se Chalfont Theatment Plant would be built in two phases. The first, with 20 and vity, would serve fasadiate star stsply needs. A second phase of 20 mgd would be added between 1990 and' 2000, as projected dauend requires.

In the third sapent, a mexinaan of 46 mgd would be played fram the Bredshaw Reservoir via a trans-udasion main same 6.7 adhes to the East Branch Perki-caen Creek. 9Bitar released to the upper reaches of the .

Rest Branch Perkicson Creek would flow by gravity in " l the streami channel [emum 22 milme) to a diversion point near Greterford en the Perklanen Creek, and hence via a tren-i==im main to the Limerick Ntaclear Generating 1

t station. This segment, including (the] Bradshaw Reser-  !

voir, transfer facilities to Perkiamen Creek, and ptsping i facilities fmn Perkicanon Creek to Limerick, would be developed and operated by the Philadelphia Electric Otso- i pony. ' (Reference should be made to Figure No.11-1 a adtematic of the pcoject also fmn the Dwircreantal i Asseemsent tenidt follows this page.)

A. Point Plassant Ptap Station  !

l The e vj.ct site is Iconted on the west bank of the '

Delaumre River at a point near the southern limits of the Village of Point Plassent in Plasmatand Township, -

Backs Oatuity, Penraylvania. As noted in material sup- -

plied by E.M. Bourquard Associates, Inc., and in the plans associated with Application No. 09-81, the sta-tien will be appresdantely 80 foot long by 45 feet wide  !

(by at lasst 15 fest] above finished grade and is to be a reinforced concrete structure with ardtitectural fan-tures... (causing it to] ...resimble a barn. The station win house pings having a total cepecity of 95 nrkt (147 cfs), together with related heating and ventilat.ng, electrical, and instrumentation and control facilities.

(The station will be visible fremt the Delaware Canal 4%/a Roosevelt State Park.)

The intake for the pimp station is to consist of an assembly of wedge wire screens Wtich will be located at a point appmdantaly 245 fust stromamard of the bank .  ;

and dddi win have an appedmata minisman 'sutmargence of  ;

4 feet during low flow s in the river. A total of i

- twenty-four (24) screens be installad in three .

groups of sid e screens each. The screens win be 40 inches in diameter and ===4== flow velocities through the screen slots win be appresdmately 0.5 feet per second. The moresne win be clanned by both hydraulic '

and air wash systmas.

^

Endi group of screens is to be ocnnected by a 42

! indi dianster reinforced concreta pipe to a gate won to be loosted along the shore line. Pacei the gate well, i a 72-indi disuuter reinforced concreta pipe will pees i inder the Delamere Canal Omoeuvelt state Park) '

carrying water futsa the well to the ptmp station.

B. Omidnad Transmission Main The ocatdnad transmission main will deliver flow I f m n the pimp station to aredshaw Ameervoir and wi n autend through a reach of apprcedmetely 2.4 miles.

ansed on the uma of reinforced ouncrete pipe, the first ,

1600 foot of main that will traverse the stasy river

! valley simpes will be 66 inches in dinneter with the J remainder being a 60 inch diameter pipe. i l  !

i i

( ._

.~

~ ~ ~ ~

, , ,  ; f Figure No. II.1 .

NESHAMINY WAT8R SUPPLY SYSTEM 1

. HEW JERSEY s

N. I

% PERKIOMEN BRADSHAW l PONT PtEASANT

\ ,

TRANSneSSION MAN - RESERVOR AND PUMP STATION STATON

\ ,

1. bocococa OMBNED C s- NORM N y TRANMSON MAN

{

TRANSMISSION MAN g d k

\- t W

8 s\s . . - oAtENA p .

g p s N- -

4 ,, PENN SYLV ANI A

\* p o

NORM sRANcN ~

. WATER TREATMENT PLANT

% town .

. \'s D N,

EtECTRib.CO. , .

TRAlp5MRSION MAN WESTERN \

Pottstown -

TRANSneSSION MAN O

gggguoOO

\ [

SOUTHERN Q.

TRANSMISSION MAN k

/ aEcTRc cO.

a s PUMPNG STATION t ecx NUctEAR ts N , 'g %

GENERATNG STATION I -

A f \s

\

9

-: 4 'N

'N

? **

^

_ s,, 1**'? .

...a m .

~

)

O C. Bradshaw Beservoir

'Ihe Bradshaw Reservoir (Application No. D09-181) will serve as the point of dischargo for the water pmpod through the cmbined transnission main. 'Iho reservoir win be structured on the drainage divide between the North Branch Neshaminy Creek and the South Branch C es Run. 'Ihe embankment will consist of conpacted earthern dikes formed fran material excavated at tha site. 'Ibeso dikes will vary in height fran 5 feet to 2) feet and will form a square reservoir about 900 feet cn a side. Operating capacity of the reservoir will be approximately 70 million gallons (215 acre-feet). Iho reservoir win have no drainage area fooding it except for the actual water surface of 18.8 asus.

D. North Branch Transnission Main

'Ihe North Branch Transnission Main win deliver a ma_vi==. of 49 mgd by gravity flow frun Bradshaw Reser-voir to the ulyer reaches of the North Branch Neshaminy

- Creek,frun which point the flow will be via the stream approximately 4 miles to Iake Galena and then on to the North Branch treatment plant. The main is to be a 42 inch diameter pipo based on the u:e of reinforced concrete pipo and win be spgvximately eno milo in length. At the point of dischargo on the North Branch, an energy dissipator and riprapped channel are to bo

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

'Iho maxinun flow eMui to the channel will bo 49 ngd or 76 cfs.

E. Perkiomen Transnissiat Main .

'Ihn Perkicmen Transmission Main which connects Bradshaw Reservoir with the East Branch Perkiomen Creek will convey water via a 42 inch diameter pipe a dis-tance of approximately 6.7 miles alay an existing gas pipeline right-of-way to the upper reaches of the East Branch Perklanen Creek. At the point of discFargo, an energy dissipator would be constructed to reduco .

erosicn of the stream bod and stream banks. A small connecting spur channel dug peq=-*1rmle to the stream channel is also included in the energy dissipator design.

'Ihe water would travel 22.2 stream miles via open chan-nel conveyance to be picked up via withdrawal facilitics located near Graterford, Pennsylvania, for oventual uso at the Limerick Nucloac Generating Plant.

F. Operating Plan This assignment is based on plans of operation for the various alements of the Point Pleasant project as outlined in the appl.icaticms and in conditions imposed on project

operations by regulatory decisions and permits issued by the Delaware River Basin Ocmenission, the Department and the Army Corps of Ilhgirmers.

Public Water Supply Operations Public Water apply withdr==1m for the Neshaminy hter supply System involve a sequence of diversions from a series of sources. 'the withdrawal plan approved by the Department as part of the Water Allocation Permit No. me-0978601 involves the following order'of operations, as needed, to serve public water supply demands in the service areas (1) Withdrawals from the natural flow of Pine Run,

@ to 10 mgd (subject to mininua flow require-monts in the North aranch Nashmainy Creek below the Chalfont Treatment Plant, described below).

(2) Withdrawals from the natural flows of the North Branch Hashmainy Creek, @ to 15 and (subject to minisasa flow requirunents in the North Branch Nashaminy Creek below the Chalfont Treatment Plant, described below).

(3) Withdraumla fran releases to the North Branch Nashaniny Creek fran storage in Iake Gahna .

(subject to the Iake Galena operating plan, described below).

(4) withdrawals from the n=1==vu River w to 49.8 med (subject to conditions lapomed in DRBC Dodest No. !>65-76 CP(0) .

'the total withdrauni of malfont, fran natural or augmented flowe, may not enomed 40 mgd. 'these withdrawals are conditioned gan maintaining a ocntinuous mininasa flow in the North Branch Nashmainy Creek below the Chalfont -

Treatment Plant of 5.3 agd fran Natch 1 to June 15 of each year, and 2.73 mgd frcm June 16 through February.

ooollag meer operations Withdraumla to serve canamptive cooling water require-menta at the Lhmerick pelaar Generating Station similarly involve a sequence of diversions. 'the average rates of

- conseptive use for cooling are 17.5 mgd for one power plant unit operating, and 35 mgd for two units. Maximaan conamp-tive use ratas are 21.3 agd for one unit operating, and 42 agd for taso mits.

Depending on actual cooling water demand at Lhnerick (based on almotric generating demand and several technical factors), withdrawals will be made in the following order:

r o- p (1) Ethdrawals facm the Sdanylkill River, (86 ject to canditions described below);

(2) E thdra mis fecm the natural flow of the Werkismen creek at Graterford (s sject to conditions described below);

(3) Ethdreunis frun the Dalmare Itiver (sd>-

ject to conditions described below).

Besh of these withdrands is subject to limitations designed to proemot water ty, in-strean aral dom-stream uses. M thdrawals the 8deqrikill River are limited by the following conditions: (i) flaws (not AW==r flow aupeantations fmn tsec-sponsored pro-jects) measured at the pettatown gauge maast amoned 342 med (530 ofs) with one power plant mit in operation and 362 med (560 ofs) with two mits in operation; and (ii) no wittubrewals may be made een water temper-atures in the Schuylkill below Limerick eenmed 15'C, except during April, Itqy and June when the flow maa-suced at the 30ttetsam gauge is in amones of 1158 med (1791 ofs).-

h tural f1cus of the Berkimmen Creek may be used for cooling water only when creek flaws measured at the

. Graterford gauge amused 116 agd (180 cfs) with one unit in operation and 136 med (210 cfs) with two units in operation. 'Ihis acaditian assures that natural flows below Graterford will not be redmond by withdrewmis

, when facue fall below the long-term median flow of 97-agd (150 ofs).

Conditions leposed by Disc further sogaire that a

minious fisw of 27 ofo (17.4 med) he maintained in the

. Best Branch 5teksamen Creek at a gauge to be loosted at l Bucks Road throudanut trem Bradshaw meservoir to the

anse aranch and.anding when semping is no langer re- .

' quired for operation of the Limerick plant. fte the remainder of the year, a minionen flow of A0 cfs (6.5 l agd) must he emineminna in'the Best Branch.

Diversians fram the Da1 mare River for -1 Lag

water purposes are prehlbited when such withdrawals

. would redman river flow measured at the Trentan gauge i balaw 3uu0 ofs (1940 myt). N un River f1 cum fall l ,below 3000 cfs at Ttenton, cooling water diversions from the Dalmaare must be cur +mitad, or arspensated l by releases made fan gistream storage for such

! purposes.

l

! Imho Galana Operations

• Iaise Galans is a analtiple purpose facility, serving water agiply, faced control and recreation purposes. Om

! 4h

operational plan for this facility was previously developed and approved at the time Lake Galena was designed and con-

. structed. In so far as !.ake Galena operations affect the operations of the Ne.diaminy Water Supply Systen, the fol-lowing operating parameters and procedures apply.

Lake Galena is and win be operated to achieve and sustain a recreation pool at elevation 321.7 feet EL thrmghout the recreation -1, between Menorial Day and Iabor Day. 'this recreation pool will be maintained, with minor fluctuations between elevations 320.7 and 321.7 feet through the recreation seaan. 'the zone of one foot at pool clavation 320.7-321.7 feet E L involves approxi-mately 60 million gallons of storage, widch may be utilized to control reservoir inflow ard releases for water supply and conservation purposes without affecting recreation uses.

During the recreation season, releases frcm the Lake to meet conservatica release requirements and water supply needs, if not funy rep 1=wi by inflow to the Lake from natural flows of the North Branch Neshaminy Creek, will be made up by diversions of water from the Delaware River.

Fcilowing the conclusion of the recreation season, starting at pool elevation 321.7 feet M L, Lake levels win be rarnwwl by conservation releases and releases for water supply needs, on an "as naariari" basis, drawing

• Lake levels down no further than the conservation pool elevation of 302.1 feet ML. 'Ine total storage between the recreation and conservation pool elevations is 1.63 M11% gallas. Because of this volume of storage, annual draudowns during nost years are not ---4-:+: tid to lower storage to the ommervation pool level.

p=1- will be made, in any event, to draw down Lake Galena by at least 10 feet below the recreation pool elevation (e.g., to elevaticm 3n.7 feet EL or Lalow) each year, and to sustain such lower elevation through one or note freezing periods, as a means of '

retarding the wwwth of algae in the Lake.

Refilling of Lake Galena win ommence in the period of mid-Decenber through January (fonowing the freeze periods rimarvibed above). Refining win rely to the maxinun extent possible on natural inflows to the Lake from the North Branch. At each point through the winter-spring refining process, natural inflows will be nonitored and evaluated. If natural inflows are projected to be inadequatelo;rmach. the recranHrvt pool elevation of 321.7 feet M L by the start of the recreation sensen, natural flows of the North Branch Nashmainy will be supplemented by punping fran the

. ., e o '

Delamre River. If such supplanental withdrawals are l required to refill Iake Galena, they will be projected as far in advance as possible and spread over the maxi-i saan rumber of days, in order to reduce the amount of the requirst daily withdrawal fra the naim.=re and  ;

admimi== flow variations in the North Branch Neshaminy Creek above the Lake. (Consistant with conditions (s) of DIWC Docket D-65-76 CP(8), ISSPL as operator of

Imho Galena will submit to DIilR for review and apptwal a proposed initial rhl and plan for projar+1_ng inflow / refill requirements, to be refined on the basis' "

of the first five years of emperience with the systma'.)

Pennsylvania Den Safety and Ilhcroachments Pennit No. 9-169 previously issued foe Iake Galena requires a adnistas conservation release of 1.5 ngd frm the dan,

or equal to the infim to the Iake if less than 1.5 agd. The conservation release is made by a fixed ceifice set in the dem, prwiding an esse.ntially uncontrolled i relan== of 1.5 mgd at all times.

Bradshaw Reservoir Operations I

Bradshaw Reservoir is designed to be operated essentially as a control structure, within the system, controlling the release and distri_h*im of water diverted fmn the I

Delaware into the .erkicman and Nashaminy watersheds. Of the reservoir's total operating ==-ity of 70 millim gallons, 46 =4114r=1 gallons will be held in reserve for -

energency storage (this storage is equivalent to one day's use or amargency shutdown requiranants at Limerick). Six milliG1 gallCms is assigned for Silt hii1% and counted -

as " dead storage". She remaining 18 =4111<= gallons, stored in the top three feet of the reservoir, will pro-vide <-- =+4_ag -- ity.

l Ptaping rates at Point Pleasant will be triggered by storage elevation changes at Bradshow. As r=laa - .

.are made to the North Branch Nasheminy for pelic water

, sigply needs, or to the East Branch Perklanen for cooling I water requirements, elevations will lower in Bradshow.

Ast storage falls within the three foot operating range, 1, 2, 3 and 4 plage at Point Pleasant will be triggered .

i in sequence, and turned off in sequence as elevations in Bradsher rise. 1his pattern ardarates flw fluctu-ations in the Delaware River and provides more efficient

• • • 1 +==+1rm of the ptags. This type of sequenced oper-ation is typical of water systems, and essentially the same as used by p *14r water supplies which trigger well operations based on water levels in a storage tank.

1 1 . ,

t I

Daily Operations Lktlike operating plans for large Federal multipurpose

, projects, or typical ficod control projects (which fonow operating curves in adjusting storage and release rates),

j the Point Pleasant operating plan is geared to daily oper-ations and constant adjustments, based on the operating parameters and conditions described above. Riis form of operating plan is typical of water supply system operations.

It is designed to make ==vi== efficient use of all sources, idtile conserving storage and flow and mitigating any ; .-;= i=1 envircrunental effects.-

Operation of tie Nashmainy hter Supply System, fol-lowing the operating plan's paranaters and ocmditions, will be conducted cm a daily basis. There win be an

instrtsnantation systma w wt.ing the Chalfont Treatment Plant with Iake Galana, Bradshaw Baservoir and Point Pleasant Ptauping Station. Data win be inmadiately 1 available to the Plant operators on flows fran Lake Galana, the water level in Iake Galeria, flows fran Bradshaw Reservoir, the water level in Bradshaw Reser-voir and the operation of the ptmps at Point Pleasant.

Treatment Plant personnel will operate the control gates whidt release water frca Lake Galena and fran Bradshaw Reservoir. 'Ib aliminate any shock effect on North Branch aquatic biota, all x=1===== win be started at a low rate and increased ge=^=11y to the schedulgt rate, and

any adjustments in daily releases win be done gr=^=11y.

The Plant pr*+imi on a partia"1=" day will be schman1=d on the prior day on the basis of the ar*ini:=ted water needs of the service areas. As part of the Whare, natural flow takings fran Pine Run and from the North Brancit will be estimated cm the basis of projected strema flows and e14==++a ocnditions, and any - ==ry r=1== - fran Iake Galena win be set 19 If the estimates show that Delanau:e River water win be needed, this win also be -

. scheduled. .

During the day adjustments win be made in the release fran Imke Galena to ocupensate for any change fram antici-pated weber needs. 1he travel time for a r=1==== fran Lake Galena to reach the Plant is about three hours. p=1a====

fran Bredshaarnoservoir take about five hours to reach Iaha Galena.

Operations for cooling water win similarly be ad-justad on a daily basis.

nelmare River Withdrawals A M*=" program was developed to determine the amount og naimare River imiter needed under the proposed operating b

o, a

plan. Wis program utilizes flow recurds of Neshaminy Creek at Laisiazue, Pennsylvania to develop flows of Pine Run at the intake and of the North Branch into Lake Galena and at the intake. Account is then taken of Treatment Plant production, minimum flow releases at the intakes and fr m Lake Galena, water level ele-ve.cion and water storage in Iake Galena, evaporation fran Lake Galena and cooling water needs at Limerick, in order to determine the volume of water naarkri daily from the Delaware River. Wree different sets of stream f1w conditions were examined in this pic.g-: a wet year, an average year, and a dry year. W e estimated monthly withdrawals, with average strean 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 1995 1990 2000 in M G $5 1990 2000 January 0 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 101 205 370 220 321 425 590 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 1,938

~

Se'p tember 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 l N7IE: W e above withdrawals provide for 5.3/2.73 mgd minimum flow releases in the North Branc:h and l a 6.5 ngd mininun flow rolosso in the East Branch, and incitrie a 10% allowence for possiblo losses in transit.

i

'Ihe 10% allowance for possibio losses in transit includes an allowance for channel storage, travel time, scheduling and evaporation. Decause the natural streams being utilized during the punping proceduro are not uni-fonn throughout the entire systs, smo of the "releasod" water will reach the water intake ahead of time and not be withdrawn; or smo of the water will lag behind the withdrawal period and not be needed. In either caso, the water is " lost" to the public water supply systan and will boome part of the stream flow downstream of the intake. Because of the expenses involved with puiping, the progem will be refined once actual con-ditions have been observed to minimize these losses.

It should be noted that this program and the re-sults itanized in Tablo No.1 are a result of a sinn-lated " typical" average stream flow year. If the entiro Point Pleasant Project is approved, the program will be adju:'~1 to reflect actual conditions - not simply typical ones.

The cooling water withdrawals shown in Tablo 1 are fra an Environmental Report Operating Licenso, prepared by Philadelphia Electric Ccmpany (PDJD) for the Limerick Station. Again, theco are estimated withdrawals based on wockly mean flows of (1) daily Perkicmen Crock flows at Graterford, (2) daily Schuylkill ,

River flows and tmperatures at Pottstam, and (3) =

hourly meterology frm the IES tower at the Station, during the period 1974-1977.

Dragercy Operations During drought and other water supply emergencies, 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 Articlo 10 of the Delawaro Ocm-pact, or by the Pennsylvania Department of Enviremental Resources and Pennsylvania Dnergency Kmagenent Agency pursuant to state statuto.

~

e k

2. Presently Appealed Actions ',

t

'the aptuals presently before the Board have been very briefly described in the Puccedural Statenant opening this adjudication. Additional details of

• these presently appealed actions are as follows.

f Applications for posits for the structures neoecsary to divert and  !

release the water of the Delaware were filed by l#EE and PECO in 1981 and early '

1982. In addition,100m requested DER to certify to the Corps of Ehgineers  ;

pursuant to $401 of the Federal Clean Natar Act that construction of tk intake in the Delaware and realigraant of the channel of Pine IWn (a tributary to the Mushaminy Creek) would not pomanently violate state water quality standards.

The Department ocmoucted a very thorough and wide-ranging zwiew and analysis of the possible envircreantal effects of the proposed project and its other hams and benefits. It then suunarised its review in DER ENhibit 2, the Ehvircreantal Assumenant Report fran which we have quoted at length inmediately supm. In Septa ber 1982, DER issued the $401 cartifloation and the following posedta pursuant to the Den Safety and Ehcroachments Act, 32 P.S. $693.1 se seq.,

the Flood Plain Management Act, 32 P.S. $679.101 e6 esq. and the Clean Streans Iaw, 35 P.S. $691.1 et seg.:

Pennit No. EBC 09-41 to 100% for the water intake structure in the Delaware River, an intake conduit '

crossing the Delaware Canal, a water main crossing Ni Creek and an energy dissipator and outlet in the North aranch Pennit No. EBC 09-51 to PROD for a water main crose-ing various otroens in Plumstead and Bedninister

'Dawnships, Bucks County; Pennit No. INC 09-77 to PEDO for an outfall struc-ture, energy dissipator and channel stabilisation in the East Branch; and Pennit No. Den 09-181 to PN00 for the Bradshaw Dam and Reservoir. '

o '

tm certification and the pemits were appeal (x1. Donides taking thoco appealal-frun actions (which will be analyzol below) the Departmmt took another action which is beforo us on appeal, viz., the instnnco of a letter dated June 22, 1982 fra DDL official Richani L. Itinklo to counsol for tMM, and also to councol for the instant appellants, informing tHW that no NIVI:S permit wxtid bo ruptired for the roloaso of w ter by tM W to tle North Branch. Udu determination wu appealed by Del-Aware Unlimitod, Inc. and dockoted at Docket No. 82-177-M.

.1. Previous Holated Actions It is very inportant for a proper pernpoetivo to noto that t!x abovo actions are only the nost recent of a nultittdo of official actions of various adninistrative agencios regarding aspects of the Point Picasant Project. Mi again quoto frcm DDI Ddtibit 2:

DER and DRDC Reviews Um basic Point Pleasant-Nonhantiny Water Supply Project ronultal frm tho 1966 Watne Honexircos Sttsly_ ,

Nenhaminy Creek _M ain,_Pnnnnylvanta_ (Pennnylvania Riter Honources Bulletin No. 2), a joint report prepared by the Pennsylvania Departmutt of Poruts an1 Watern (now Department of Diviraramtal Honourcos), tjm Soil Ccn-servation Service of tin U.S. Departsmt of Agriculture, and Ducks and Montgunary Counties.

'the fundammital waterstwx! project for Nenhminy Creek was atproved by the Dolawre River Basin Caninnion ard ackled to the Delaware River Danin Caprciennivo Plan on October 26, 1966, in Nealuminy Crack Watershed Project, Bucks and Montgome,'y Countien, IM. DRDC Doaket No. D-85-78-CP. 211s decisics) was su[pitamtal by Bucke and Nuntgomery Countj Conrriscionern, Noahaminy Creek Watershed l>cject, Bucks and Montgemory Countica, lh., DROC Dookot lio. D-65-70 cpi 2) (Jantury 25, 1967).

Um st4plesnental docket aMax! the amtiro miltipurpono project as describud in tim 1966 Water Pnnourcon attuty to tim DRtic Capro1mnsive Plan.

In 1970, Ducks Cunity pretwred and mitnittn! the Iwalbility nttsty of_ Dolnwnrn River Igirn racilitirn_

ATWEt Plaemment, PennsylItania, wttich annontual dut prwoned dentyn of the PoliiET*Teasant diversion facili-ties to provide public water supply in Ducks ard Pentgannry Countins, tolotlwr with water quality aurpnantAtlon for tjM Nontwniny Crock.

' 5 : ,- y,-

% e Pennsylvania Water and Power Resources Board, on Dw =r e 8,1970, issued to Bucks Ccunty Water Allocation Permit No. DR-649, authorizing the with-drawal of Delaware River water for public water sup-ply.in the following amounts:

^

'Ib To To 1980 1990 1995 Average withdrawal,ugd 5 15 35

- hximan withdrawal, ugd 35 60 75

- Te permit recognized that the county had plans to pmp additional quantities of water from the Delaware River

- at Point Pleasant for water quality augmentation in the

, Neshaminy Creek watershed and for industrial water supply.

, in Montg m ery County via Perkicmen Creek.

On March 17, 1971, DRBC approved Comissioners of Buckd County, Point Pleasant Pumping Station, Bucks County, Pa., DRBC Docket No. D-65-76 CP(3). This docket aMarl the p_t-M project to' DRBC's Cmprehensive Plan, but deferred amuval pursuant to Section 3.8 of the Om-pact until subnission of final plans. % e facilities

- included were a ptmping station at Point Plaaaarat with the capacity and layout to handle all the required papage of the Delaware River water to the Neshaminy Basin,,plus the w_1-M papage.into.the Perkianen Creek Basin. A 66-inch transmission main, consisting

-of 14,000 feet of concrete prersstre pipe and 5,300 feet of culvert pipe, would,. convey ,the'~ total purrpage fran the Point Pleasant Station to the te.tudnus of this main, near Bradshaw Bond; where the ptmpage would be

-divided. The NeshaniJ1y purpage woald flow by gravity through a 60-inch ockste culvert into the.NorthJu.End and on to Deservoir PA 617, Lake G11ena. The Perkianen l ptmpage would flow into a'35'mg 6pentstorage reservoir, fran where it would be pH by means of a 46'.mgd ca * .

pacity staEiDn through 30,300 feet of.42-inch chncrete- '

presure pipe %t6e' start of the Perkianen watirshed, '

fran which point ths, water would flow by gravity,3n _ <

6,300 feet of 36-inch concrete allvert pipe to the"' -

East Branch'ot)Perkianen Creek.' As part of the'1971 s dedet. reiis6 ISIOp7epared and sucessed an envit'on-mental statenentToi--the ' projectin accordance with

- the;Nationalt Dr.firormenta.14Pedicy Act, entitled ^

"Finanelai. Stitasbrit - Envirunnental Inpact of the -

Proposed Point Pleassant 6ivorsi.on

• Plan, Bucks'And~

- Montc;uney Ccunties , PenrbKaida" .1 - -

O

. g ,

s 4% \ N._ i f

. r ,

%- . s .

X

.* P

/. It%

'- +

~ [] ,

71- s

- s. s

'L '

,k _

i,

% . - , - , , . . . . , , m,r, .s-, r C . . , , , , -,,,_.__,,,,_.,,,,7 ,, ,,,,,7

. - f-In February 1973, DRBC prepared and subnitted to the Council on Enviromental Qaality (CEQ) an ex-panded Final Environmental Impact Statment on the i Point Pleasant Diversion Plan, Bucks and Montgmery Counties, Pennsylvania. The Final EIS concluded that the p,.t,-M project would be beneficial to the Neshaminy and Perkimen watersheds and not detri-mental to the Delaware River, providM that specific, listad mitigating measures were observed.

Meanwhile, due to the changes in growth patterns in Man'u p.cf and Buc'cs Counties during the late sixties and continuing into the seventies, there was continued adjustment of the projected population to be served by the p1.W public water supply facilities.

The rv=1ation 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 magnitude to require change in the design capacities of the st - W plant. The final design of the plant started in 1975.

In early 1976, it was dW neamary to review once agalp the' projected population and resulting water

• needs. As a result, the final design of the treatment plant was halted to permit the ocznpletion of this re-view. During the period throughout 1976 and into early 1977,-three additional studies of the Service Area were ocupleted: The Central Bucks County Water Supply Study; the Water Supply Study for Mon ^u yi. .y a County; and the

f. Interim Projections Report for Bucks, Chester, N1 mere,

- Manby.dy, Phi 1*1r*na Counties, Pennsylvania. Based

on these studies, the design capacity of the treatment

plant was selected to remin at 20 mgd for the initial s

~ installation; however, the ultimate capacity was reduced frun 80 to 40 mgd to meet the suppleental water needs of the service area.

In Sond _. M 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 l

l l t l

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

7 .._

extensive evaluation, stmmarized in the Report on the Application of the Neshaminy Water Resources Authority for Water Allocation frm Pine Run, North Branch Neshaminy Creek, and Delaware River (November 1,1978). (" DER Water Allocation Report"), the Depart 2nent approved Water Alloca- .-

tion Permit No. E -0978601, which superseded and replaced the permit No. NA-649 previously issued on Decenber 8, 1970, by the Pennsylvania Water and Power Resources Board. *

. Concurrent with review of the basic Point P1munt project and'Neshaminy water supply systen, a series of reviews were conducted regarding the Limerick Nuclear Generating Station.

In addition to providing treated water supply to Central Bucks and Montg m ery Counties, the proposed Point Pleasant Project will withdraw Delaware River water for transfer via Perkimen Creek to be used by the Philal-phia Electric Company (PECO) for cooling purposes at its i Limerick Electric Generating Station located along the Schuylkill River near Pottstown, Pennsylvania.

l DRBC Docket No. D-65-76 CP(3) (March 17,1971) (refer-enced above), aMad the Perkiomen transfer elenent for Limerick to the overall Point Piment-Neshaminy project.

As noted above, a Final Envirorsnental Inpact Statement

.on the Point Plaa e nt Diversion Plan, covering both the public water supply and Lunerick transfers, was prepared 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 from the Delaware River, subject to certain conditions, was m aary and proper to meet cooling water needs for

, the rh = rick Station, and that such a withdrawal, if i operated within the stated limitations, would not have a l' significant adverse effect on the enviu .e:=it.

l The DRBC anhaaquently awwved Philadelphia Electrio l Company, Limerick Nuclear Generating Station, Limerick Township, Montgomery County, Pennsylvania, DRBC Docket I #o. D-69-210 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 r Schuylkill, Perkianen and Delaware during low flow

[ , periods. One of the conditions for such withdrawal was 1

t

e s .

that the DRBC, at its sole discretion, would determine the adequacy of storage capacity in the basin necessary to provide sufficient water to meet PECO's consumptive water use at Limerick and to maintain a 3,000 cfs flow in the Delaware River at the Trenton gauge.

Approval of the water supply el m ents was based, at least in part, upon the previously approved Final EIS on the Point Pleasant Project. However, DRBC deferred a final decision on the Limerick Station per se until ompletion of a Final EIS by the Atmic Energy Ccmnission (AEC) on the nuclear power plant and related facilities.

In November 1973, . the U.S. Atmic Energy Ccmnission's

- Directorate of Licensing cmpleted the Final Environmental

.Statment related to the Proposed Limerick Generating Station, Units 1 and 2, Philadelphia Electric Cmpany.

' Based on this EIS, the previous EIS prepared by DRBC, and the record cmpiled at hearings before the Atcmic Safety and Licensing Board and the Appeal Board of the Nuclear Regulatory Comission (NBC), the NBC issued to Philadelphia Electric Cmpany construction permits for

.the Limerick plant in March 1975. An extensive (96 pages) decision was rendered by the Atcmic Safety and Licensing Appeal Board. See In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units i and 2),

Docket Nos. 50-352 and 50-353 (March 19,1975) . The decision addressed specifically numrous contentions made by inter-venors in the AEC/NBC proceedings concerning the adequacy

, of the Final EIS prepared in 1973 by the Atcmic Energy Ccmnission.

The Atcmic Safety 'and Licensing Appeal Board's de-cision, and NRC's issuance ,of construction permits for limerick, were appealed to the Tlurd 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 Atmic Energy Ccmnission and that prepared by DRBC in February 1973. In particularly, appellants charged that the previous environmental impact statements had

.not properly assessed the imppcts of water supply ele-ments of the Limerick project, including the Point Pleasant diversion.

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

+p - . . _ - ,

y ye 7 .,

~

E _.

e_,

No. D-69-210 CP (Supplanent No.1) in July 1974. Pro-

~

Mings to amend the ccanission's earlier decision on the Limerick Station, however, were deferred while objections

. filed by the Environmental Coalition for Nuclear Power were heard by a hearing officer appointed by DRBC.

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

~D-69-210 CP (Final) (Noveuber 5,1975) included the Limerick project in the DRBC Ccznprehensive Plan. . '1he docket further gave Ccanpact Section 3.8 approval to con-struction of the Limerick Station, together with the Schuylkill River and Perkicznen 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 corisumptive 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 l; the Ccanission's regulation, at the expense of the~ applicant.'

'Ihis DRBC docket decision was filed with the Third Circuit of Appeals prior to its decision on the then

. pending appeals of the Nuclear Regulatory Omniasion's action.

l i,

1 i

l

3 '. .

,. _q .

This Third Circuit's decision on the NRC appeals was rendered in Environmental Coalition of Nuclear Power, Limerick Ecology Action, and Delavare Valley Committee for Protection of the Environment v. Nuclear Regulatory Comiaston and Philadelphia Electric Company, No. 75-1421 (Noverb r 12,1975) . ~ The Court of Appeals rejected the challi ages to the environmental impact statements and, in' essence, found the previous environmental' assessments prepared by DRBC and the NBC adequate to satisfy the pur-poaes of NEPA. The 'Ihird Circuit's decision and order were not appealed to the U.S. Supreme Court.

A year later, on Septaber 30,.'1976, DRBC adopted Resolutiou 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 Ccanission exercised its authority r under conditions set forth in earlier DRBC approval of g

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 Campact, supported by an environmental report in empliance with the Om-

-mission's rules and regulations, for the construction of the required supplement storage. ' : The resolution further required that the application and w r - nying.

environmental report be subnitted by October 1, ~1977.

The cabined project once again came before DRBC in

.prw = lings _ca mencing-in 1979, resulting in decisions rendered in early 1981. On January 27,L1979, PECD filed with DRBC application pursuant to Section 3.8 of the Ccan-pact for approval of the construction of its portions of the Point' Pleasant pmping station, Bradshaw Reservoir, and transmission lines to the Perkimen Creek. On July

"' 5, 1979, NWRA' filed application pursuant to Section 3.8 of the capact for approval of constructicn of its portions of the Point Pleasant paping station, the water treatment plant at Chalfont and the various trans-

, -mission lines. Both Section 3.8 applications were sup-

. ported by detailed 'enviromental reports,' preoared 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 enviromental inpact statements, together with all the supporting data,

.as of.the time it received the present PB00 and W RA

, applications. They were: (1) ' Point Pleasant Diversion Plan, Bucks and Mntgmery Counties,' subnitted by DRBC in 1973; (2)' ' Limerick Generating Station, Units 1 and 2,'

_' subnitted by the ABC in 1973; and (3) 'Neshaminy Creek

. Watershed,' .subnitted by U.S. Department of Agriculture,

{1

+

, .' ^

• a Soil Conservation Service in 1976. Each of these plans incorporated the concept of a withdrawal of a maximum of 150 mgd to the Perkimen Creek for use as additional cooling water at Limerick, and the balance of the water to flow into the headwaters of the Neshaminy watershed with a withdrawal of approximately an equal quantity of water at Chalfont for water treatment and distribution for public consumption in sections of Bucks and Ibntgmery Counties.

Pursuant to DRBC's regulations on processing Cmpact Section 3.8 applications, DRBC prepared an environmental assessment on the projects. The Executive Director of DRBC, on the basis of the environmental assessment, recan-mended 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 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 Systen' project sponsored by hWRA and PECO. This document contained approximately 230 pages, with cross-references

- and references by incorporation to voluminous documents, studies, reports and cmments by individuals and public and private organizations. On February 18, 1981, DRBC granted the Section 3.8 applications of both PDCO and NNRA, subject to certain expressed conditions and limi-tations. % e construction details of the project were added to the Cmprehensive Plan to the extent that such details were contained in the applications and had not previously been approved and included in the prior actions of DRBC.

These actions by DRBC were the subject of appeals filed before the U.S. District Court, Eastern District of Pennsylvania, in the matter of Delaware Water Emer-gency Group, v. Gerald M. Hansler, 536 F. Supp. 26 (E.D.

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

We primary issue before the court was whether DRBC had fully and fairly considered the environmental impacts of the proposed project, with particular emphasis on impacts upon basin water resources.

In rendering its decision rejecting these challenges, the District Court concluded:

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

e .  ;- ,

and concept, all of which were available and con-sidered by DRBC. With the Ievel B study, there have been at.least four EIS's prepared. Second,

-the project has been under constant study and updating of factual infomation frcxn the plan's inception to the present time, and indeed is

, subject to ongoing studies. Third, the only substantial change fran heretofore approved plans based on prior environmental inpact state-ments and other studies, is a substantial re-duction in the quantity of water to be withdrawn for W RA's water treatment plant. Fourth, the enviromental assessment prepared is detailed, up-tcxlate and adequately considers any changed ciremstances. '

, By O mpact signed by the four Basin States and the Federal Government, DRBC was' created as the primary and lead agency

'of the parties to plan,1 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 implement policies for the develop-ment, conservation and management of tlose resources.

This project and its operating conditions were made a part of the basin's Cmprehensive Plan by unanimous action taken re-

~

peatedly over the past d e M a, and most recently in February 1981. Under the terms of the Cr - et, especially c a pact Arti-

.. , cle 11~ and Section 15.l(s) of Public Law 87-328, all Federal and State agencies are bound to recognize and act in a manner consis-tent with those water management policies and actions.

U.S. Army Corps of Engineers Review.

In C+ M er 1980, the Neshaminy Water Resources Authority F . applied to the U.S. Armf Corps of Engineers for a permit to 1

(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. NAPOP-R-80-0813-3) .

On April 6, 1981, the Corps issued a Public Notice that NWRA

'had applied for the above-mentioned permits. On August 10,

' 1981, the Corps issued a Notice of Public Hearing concerning 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 sane revisions to the project was issued February 9, 1982.

Since the original sul: mission, the Corps has been evalu-

~ ating these proposals. . As of this date, the Corps has not taken-any final action on these applications.

-- e s

4

&M

p,

+

g.. .  ;- .

1 1-- *,, .',, ,

'Ihe Cc,rps has undertaken its own envirorrnental assessment of the p1.vrrmd project, and pursued con-

.sultation procedures required under the Fish and Wildlife Coordination Act, the Endangered Species Act, and the National Hist.oric and Preservation Act to assess potential impacts on historical resources, fish'and wildlife, and endarmered species.

B. NPDES PERMIT Now that we have described the Point Plemnt Project and summarized 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 begin this task with the legal issue raised by appellants' appeal docketed at Docket No. 82-177-G, to wit, whether DER acted arbitrarily and capriciously (or

in violation of law) in failing to require NPDES permits-for the diversicm of Delaware River water into the North Branch of Neshaminy Creek and East Branch of

- . Perkicmen Creek '(" North Branch" and " East Branch", respectively) .

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

~

do so by the counsel for NWRA and the appellants). Therefore, we could hold that 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 Lims a Refractories Co.

11.. DER, 2 Pa. Orwlth. Ct. 434, 279 A.2d 383 (1971); DER v. #eu Enterprise Stone and Lime Co.,- Inc. , 25 Pa. Otwlth. 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 because none of the parties has raised this jurisdictional issue in the lengthy and conpetent briefs they filed in-the issue; moreover, while the board does have authority to consider its jurisdiction sua sponte, it should not sua sponte dismiss an appeal on jursidictional grounds in any but the clearest circumstances, -

especially an appeal which has been before the Board as long as the instant appeal (at Docket No. 82-177-G) .

i 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 pennit 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 "ccmpliance with all applicable statutes and regulations relevant to the protection of the Camon-wealth's public natural resources..." Payne v. Kassab,11 Pa. Ccmnonwealth 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 p%uu of that Act (which was delegated to the Camonwealth by virtue of an agreement 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 canplied 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.

NWRA 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. NWPA 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 Roosevelt State Park (see discussion below) . DER's decision was implicit in its issuance of Permit Ib. EtC 09-77 to PIEO for an outfall structure in the East Branch.

f

• ~, - ,-

to review actions of any federal agency or to act as a court of original juris-diction for envirarsnental 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 Administrative Code of 1929, 71 P.S. S510-21. Iatrobe

- Municipal Authority v. DER,1975 EHB 422. Our jurisdiction can be neither

+ -ded 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 frca the Delaware River to the North Branch of the Neshaminy. NWRA argues that the~ appellants do not have standing to appeal this decision.4 hew 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

Perkicznen (see our jurisdictional discussion iMiately) 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 =nhar 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 msnber residing upon the North Branch.

This failure was explained by Del-Aware's counsel as having resulted frcm an BMRA law suit seeking damages against Del-Aware's mnhars. NWRA admitted that

4. Although we here (section III B of this adjudication) are concerned primarily with the "no NPDES decision", our discussion infra of the appellants' 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 i

. an energy dissipator and outlet channel in the North Branch (the appeal docketed at 82-219-G),

-n3-L.

o- ;,

it had filed such a suit, and refused to hold hannless any Del-Aware nunber 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 nenbers to DER, who ,

would undertake to verify this information on behalf of all parties. The information was not-inmediately forthcaning fran Del-Aware. On May 17, 1983, the last day of the evidentiary hearings on these appeals, DER' informed the 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).

NWRA's counsel then renewed his previously offered motion to dismiss Del-Aware's appeals (of NWRA's construction permit and of the North Branch "no NPDES decision")

-for lack of standing; NWRA's counsel also argued that the facts before the Board concerning Del-Aware's standing should not be supplemented by any evidence made available after the evidentiary hearing was closed, when NWRA muld not be able to cross-examine.

Nevertheless, Mr. Harnish, who at the time still was the responsible

. Board Member in charge of these appeals, ruled that additional information bearing 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, Edward Gerjuoy-the Board Manber who by then had taken over these appeals following Mr. Harnish's resignation fran the Board-issued Orders which, inter alia, 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 NPDES decision" for the North Branch. Del-Aware's brief in response to these Board Orders was filed July 20, 1983; this brief did not discuss Del-Aware's standing, and was not accanpanied by any new information bearing on Del-Aware's standing.

!WRA's brief in response to the aforanentioned Board Orders, filed August 8,

3,, a :. .

l 1983,f asserted that Del-Aware had not yet filed the requested additional infor-mation, 'and renewed its 'argtnent that Del-Aware's appeals now docketed at 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.

Sugazman proved inconclusive, so after the hearing was over, Mr. Sugarman provided me with one additional name and address. I had an experienced member of DER's technical staff investigate the alleged prop-

erty ownership in the Bucks County Courthouse records. He found that the named individual = =har of Del-ANME does indeed own riparian property

+ along the North Branch Neshaminy Creek in the area to be affected by the water supply portion of the Point Pleasant project.

This'OcMhar 6,1983 letter frm DER's counsel does not state when this additional information was received from Del-Aware's causel, Mr. Sugarman. However, the Board ies been informed by DER's counsel-and sees absolutely no reason-to doubt-that DER received the additional name and address on or about June 8,1983, well Ibefore Del-Aware's aforementioned brief was subnitted.

On December 8, 1983, Mr. Gerjuoy presided over a non-evidentiary hearing which disposed of various pending matters in these appeals. At this hearing, the issue of Del-Aware's standing again was discussed. The Board re-fused to accept NWRA's argtnent that Del-Aware's failure to furnish evidence i sufficient to confer standing before the evidentiary hearings closed was per sa reason to dismiss the questioned appeals (Tr. Decuaser 8, 1983, pp. 58-9).

r 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.

- irregular." Del-Aware therefore was ordered to provide WRA with a list of Del-Aware members who could confer standing on Del-Aware, including addresses, distances fram the North Branch of properties owned, etc. NWRA 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 D=mh=r 12, 1983, at Docket Nos. 82-177-G and 82-219-G.)

The list ordered on D er 8, 1983 was filed by Del-Aware on Du = N=r 22, 1983. In pertinent part, the list reads as follows:

The following =nh=rs of Del-AHARE 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 faucet to carry water frcm 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 1 ERA's proposed action.

Mr. Kyle has been a contributing mehsr of, Del-AWARE since April 15, 1983. .

, i

b. John and A1. ice Thorpe Carverville & Street Rds.

R. D. #2 Doylestown, PA 19901 John and Alice Thorpe live and own property approximately two miles south of the affected. portion of the North Branch Neshaminy. John Thorpe, in addition to being a msnber of Del-AHARE, is affiliated with the Paunacussing Watershed Association, and is innediately 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 menbers of Del-ANARE 'since i

January 15, .983.

i l-

r1

, q- ,,

. . ;r , . - -

c. Reginald and Rosalind Snyder 325 Bradford Ave.

Warrington, PA Reginald and Rosalind Snyder,.who live in Warrington, own property and a home within several hundred yards of the affected portion of the North Branch, at the intersection of curly Hill Road and Ibute 611. The hme 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 unspoiled state fran their property. Reginald and Rosalind Snyder first contributed to Del-AHARE Unlimited, Inc. in 1981.

d. David Snyder 8 Poplar Iane RD #5 Doylestown, PA 18901 David Snyder resides in the home owned by his parents Rosalir.1 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 home on a daily basis. The North Branch is a very small stream at that location, and Mr. Snyder fears that the flow fran NWRA's pwrmied discharge would radically alter its character, and that he would be adversely affected thereby. Mr. Snyder has been a contributing member of Del-AHARE Unlimited, Inc. since January, 1983.

e. Jonathan and Mary Davenport

, Gardenville-Pt. Pleasant Pike Gardenville, PA 18926 Jonathan and Mary Davenport live and own property within the in==liate vicinity and within view of the North Branch, close to the point of discharge. They have lived there for thirty years.

The Davenpw.i.s regularly walk along the stream, and enjoy its unspoiled character, which they can view fran their hae, 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 substen-ially increase its flow and change its character.

4 John and Mary Davenport first contributed to Del-ANARE Unlimited, Inc. approximately two yecrs ago.

1 e.'. 'o,. g' ' . . i

,'; . l-

f. Susan Allison

. Pt. Pleasant Pike Gardenville, PA 18926 Susan Allison lives and owns property in the inmediate 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 psupOsed discharge into the North Branch. Ms. Allison has been a contributing menber of Del-AHARE Unlimited, -

Inc. since November,1982.

g. David Windhold Dave's Sporting Goods 1127 North Easton Road Doylestown, PA 18901 David Windhold owns a six acre homestead on North Eastern Road which abuts approximately 500 yards of the affected portion of the Noa..htBranch Neshaminy Creek. On the pauport.y is a residence occupied by Mr. Windhold's daughter Dianne and her husband. This lot fronts on appsvaimately 400_ yards of the Creek.

Also located on the vivpart.y is Mr. Windhold's busi-ness,- Dave's Sporting ra da, the parking lot of which abuts approximately 100 yards of the Creek.

Mr[Windhold and his family menbers hike along the stream, use and enjoy it on a daily basis.

Sczne of Mr. Windhold's custcznars fish in the Creek, specifically for catfish and bass. In the past, flows frun the North Branch have at times overflowed its banks and flevvbd his parking lot. Mr. Windhold

-fears that the mRA discharge into the North Branch

'will increase the flooding problens on his pavearty.

Thus, Mr. Windhold and his family members are E-T-:*1 to inmediate evi. erd.ial 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-ANhRE Unlimited, Inc. for the past two years, and has been contributions in the name of Dave's

. . Sporting Goods. ,

IMRA has argued, in its response dated January 20, 1984, that the e 7, above list is insufficient to confer standing on Del-Aware.- NWRA points out, first of all, that Alistair Kyle,' John and Alice 'Ihorpe, David Snyder and Susan

Allison are described in the above list as having been " contributing msnbers" of i

- r, . . - - - . - .., . . _ , . , . , , , . , . . .

V , .

Del-Aware no earlier than Novanber,1982. The appeal docketed at 82-177-G was filed on July 21, 1982; the appeal docketed at 82-219-G was filed on Septetter 20, 1982. Persons who M c = members of Del-Aware after the appeals were filed 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 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 30ard now has been info-1 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, frcm DER's October 6, 1983 letter to the Board). Furthermore, NWRA concedes (January 20, 1984 response, p. 9) that David Windhold owns property fronting on the North Branch. These property interests of the Snyders and Windhold are sufficient to confer standing on these individuals to appeal DER actions possibly affecting the l North Branch, under the test of William Penn Parking Garage, Inc. v. City of' l

! Pittsburgh, 464 Pa.168, 346 A.2d 269 (1975) .

However, NWRA also objects that Del-Aware has not shown these just-named individuals were msnbers 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 stq;raLer" of Del-Aware for the Inst two years. These phrases do not obvictuly 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 " membership" are likely to be equally loose. But Del-Aware, Inc. is incorporated, and should have kept " membership" lists of sone sort. In any event, NWRA is entitled to have Del-Aware prove that standing is legally deserved.

L. -a--_ _ --_ _ _ _ _ _ _ _

M

4

\ l- ., v, Therefore, in view of the claimed locations of the Snyder and Windhold properties, 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 purpose, the evidence offered will be restricted to the issues of whether and when the Snyders and Windhold were members of Del-Aware, and the locations of their g w iies. At this late date, we are not going to litigate whether Jonathan and Mary Davenport, who live "within the inmaMate vicinity and within view of the North Branch," have interests deserving standing under William Penn, supra.

The-time-for Del-Aware to have clearly established the persons named on December 22, 1983 (listed supra) have interests meeting the William Penn stand-ard-is long past. '1he innediately preceding rulings in this paragraph are consistent with the understanding reached on re w.2er 8, 1983, described supra.

We already have ruled in an earlier paragraph, and do not expect to reconsider, that Alistair Kyle,' John and Alice Thorpe, David Snyder and Susan Allison cannot confer standing on Del-Aware.

In making the rulings in the preceding paragraph, we have rejected an additional argunent of NWRA's, to the effect that Del . Ware cannot obtain standing

~

from the mere fact that same of its individual members might have had standing t:o ar - al; according to NWRA, it is necessary to show--and it has not been shown-that Del-Aware itself, as a corporate entity, meets the William Penn standing test. NWRA has bolstered its argument with citations to an inposing array of precedents. However, the Board has examined this qmstion of so-called " rep-resentational standing" in the recent past, and has held that the Pennsylvania courts "now would rule" an association has' standing to represent its m =hars in an appeal if same of those msnbers thenselves would have standing to appeal.

Y -

_ J

l

1. .; : I

. : r. .

g ,' f .* , ' 'T. * .

Concerned Citizens of Rumi Ridge v. DER, Docket No. 82-100-G,1982 DIB 522 ,

1 (Opinion and Order, Novunber 22, 1982). Although the citizens Association in Rumt Ridge was not incorporated, we believe the logic of RumI Ridge governs

.the' standing issue in the instant agaal, assuming Del-Aware indeed can show it

~

has numbers who would have had standing when Del-Aware actually filed its appeal.

In our opinion, the recent Penncylvania Supreme Court holdings in Franklin 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 Rural Ridge, supra or the instant appeal, reinforce our reasoning in Rural Ridge and bolster our present reliance en 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 =:;=al docketed at 82-177-G had stazding; 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. 'Iberefore, insofar as these just-named individuals are '

concerned, their respective individual appeals at 82-177-G and 82-219-G are dismissed for lack of standing, without prejudice to Del-Aware's possible standing (as

, discitanad supra) to r ussrate these same appeals.

2. EER's Iegal Basis For Its Decision Having determined: (1) that we do have jurisdiction under the Adminis-i trativu 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 what this determination constitutes.

'Itn 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:

r ,

.- T .

On June 22, 1982, in u. uni:ction with the Depart-ment's review of NWIR's application for a pemit under the Dam Safety and Encroachnents Act (NWPA Exh. 31) and incident to its Enviremental Assesment on the Point Plamaant Water Supply Project (DER Exh. 2), the Depart-ment concluded that no NPDES Pemit would be required to authorize the release of Delaware Riv3r water into the North Branch Neshaminy Creek. (Exh. A. to appellants'

' Notice of Appeal') . DER's rationale for its ultimate conclusion that no NPDES Pemit would be required is set forth in a memorande fra Robert W. Adler, Assis-tant Counsel, Bureau of Regulatory Control, Maxine Woolfling, Diri:du.i, Bureau of Regulatory Counsel and Douglas nla my, Chief Counsel to Leon Gonshor, Director, Norristown Regional Office. The memorands, included as Exhibit A to the ===11 ants' Notice of Appeal, states,

-in pertinent part:

i This memorande addresses the question whether the Point Pleasant Diversion Project requires an NPDES Pemit pursuant to the recent court Waion National Wildlife Federation v. Goveuch, which I forwarded to you with my memo dated -

i March 15, 1982. It is the opinion of this office that a permit is not required for the Point Plea-santProject.

- The National Wildlife Federatipn case did not rule that all dans were point sources per se and, there-fore, subject to the NPDES Permit requirenents.

. Rather, the court rules that the plaintiffs had sw m == fully pror n as a question of fact that certain dams ' add Allutants' to navigable waters within the meaning of Section 502(12) of the Clean Water Act. Since EPA has not published categorical standards governing which types of dams ' add pollu-tants' to navigable waters within the meaning of the court decision, the question of whether the Point

-a Plaamant project requires a pemit is a question of i ,

fact. The memoranda to you fra Charles Pehm, dated

[j April 6,1982, entitled 'Need for Public Hearing, i Point Pleasant Diversion, Neshaminy Water Resources Authority (NNRA)' 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 infomation is discovered indicating that pollutants will in fact be discharged fra the Point Plan = ant facilities, no NPDES Permit is required.

i. The singular substantive legal issue addressed in the L

Department's memorandum and now presented to the Board in the captioned arr=a1- - (Docket No. 82-177-H) is whether the?

diversion of Delaware River water to the North Branch of L. J

I

• 5 a .

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 provisions, that it does not. As a result, no NPDES permit is required.

Section 402 of the clean Water Act, 33 U.S.C. S1342, astablishes the National Pollutant Discharge Elimination Systen (' NPDES' or "402') permit progran. Section 402(a)

. (1) of the Act provides in pertinent part:

...the Adninistrator may... issue a permit for the discharge of any pollutant, notwithstanding Section 1311 [301(a)] of this title, upon condition that such discharge will meet either all applicable re-quirements 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 implementing actions relating to all such require-ments, such conditions as the Adninistrator deter-mines are necessary to carry out the provision of this chapter. -(stphasis supplied) .

Section 301(a) of the Act, 33 U.S.C. S1311(a) provides:

E td. in empliance 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 beiunlawful

- (enphasis supplied) . ,

Thus the discharge of any pollutant is unlawful unless, intez' alia, one has a Section 402 permit 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.

4 Discharge of any pollutant is defined at Section 502 (12) , 33 U.S. , 51362(12) , as:

...any addition of any pollutant to navigable waters frun any point source...

I Point Source 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 feeding operation or vessal or other

. floating craft, frun which pollutants are or may be discharged. (mphasis supplied) .

P l Neither NHRA nor any other party disputed that the North Branch Neshaminy Creek or the East Branch Perkicnen Creek constitute " navigable waters" as that term is defined in the Act. Also, NWRA agrees with appellants that "the outflow pipe into the North Branch would constitute a point source", if the Board finds the Delaware River is a. " pollutant" (NHRA brief just quoted, p. 23). Thus, the key questions here confronting us are the following:

a. E at is a " pollutant"?

b. What constitutes an " addition of any pollutant"?

Unfortunately, no party has cited a case applying the Act's definitions of " pollutant" and " addition of any pollutant" to a diversion of water frm one river to Eu Aler, i.e., to a factual situation identical to the instant one.

However,-_all the parties except the appellants found the decision of the D.C.

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 fr m NNRA's brief in response to this Board's Order of June 27,1983 (pp. 24-25): .

... National Wildlife Federation brought a declaratory j#===nt action against the Administrator of the Envir-onmental PWstion Agency seeking to ompel the agency to require dam operators to obtain NPDES Permits. Es-tablishing at trial that the retenticm of water by large

. storage dams ranaarl water quality changes having adverse i impacts on downstream water quality when ehtly re-leased, National Wilellife Federation argued 'that any adverse change in the quality of resencir water frm its

[ natural state involves a ' pollutant' and that release of polluted water through the dam into the downstream river constitutes the ' addition' of a pollutant to l navigable waters 'frm' a point source.' 693 F.2d at

165. (enphasis supplied) l- -u .

The Circuit Court of Appeals for the District of Colunbia disagreed holding that water quality conditions do'not constitute ' pollutants' within the statutory de-l finition.

t These dan-incliM changes are water conditions not substances added to the water.

I N a

Y

. s

693 F.2d at 171.

The court, by holding that water quality conditions did not constitute ' pollutants,' explicitly adopted the test applied by the Environmental Protection Agency for determining when a partimlar activity constitutes an addition of a pollutant fran a point source:

... addition fran a point source occurs only if the point source itself physically introduces a pollu-tant into water fran the outside world. In its view, the point or nonpoint character of pollution is established when the pollutant first enters navi--

gable water, and does not change when the polluted water later passes through the dam fran one body of navigable water (the reservoir) to another (the downstream river).

693 F.2d at 175.

The EPA ' addition of a pollutant' test ermir=6d by the Circuit Court in National Wildlife Federation was iniplicitly endorsed by the Fourth Circuit Court of Arpaa1=

decision in State of Missouri v. Department of the Army, 672 F.2d 1297 (4th Cir. 1982).

. NNRA, PS:0 and DER assert that the Department correctly 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 Delaware River water to the North Branch Neshaminy Creek will not " physically introduce" a pollutant "fran the outside world" into the withdrawn Delaware River water; j they argue additionally that Delaware River water is not a pollutant.

Appellants resf-- i to these argtunents by arguing that NWF, supra is distinguishable from the instant case; even if not distinguishable, appellants argue in the alternative, NFF actmily steils the appellants' position when the teachings of this decision are transposed to the instant facts.

After a careful analysis of NVP, supra and the other cited cases, we i are inclined to believe the circtznstances of the instant matter are sufficiently different fran those pertaining in NVF, supra that-to the extent that NWF provides any guidance to us-it should guide us to remand this matter to IER. Our reasons for caning to this conclusion are elaborated in the two E _ - - _ . _ _ _ _ _ _ _ _ __ _ .. a

T )

1 a - 1, 4-adiately following subsections (III B 3 and III B 4) . l 1

3. Deference Owed DER's Decision As explained in the quote supm fra NWRA's brief, DER's rationale for its ultimate conclusion that no NPDES permit would be required was set forth in a memorandlmt fra DER attorneys Adler, Woelfling and Blazey. '1hese DER counsel relied in large part on NFF, supm. In NVF, the Circuit Court began by examining

• the types of envia.um-dal inpacts see reservoirs causa. The court ocznpared these damirvhvwl water quality changes-low dissolved oxygen, dissolved minerals and nutrients (fra bottm muds), tanperature changes, aadi-rit and super-saturation-to the definition of " pollutant" in S502(6), 33 U.S.C. 51362(6) to wit,

...Cu.odgad spoil, solid waste, incinerator residue, sewage, Pr+==, sewage sludge, nunitions, chemical wastes, biological materials, radioactive materials, heat, wredad or discarded equignent, rock, sand, cellar dirt and industrial, nunicipal and agricultural waste discharged into water. .

l Noticing that none of the dam-irawwi water quality changes were specifically included in the' pollutant list, and.that EPA had construed the Pet as excluding these changes frm the definition of pollution, the Circuit Court held that the

- District Court had erred in not giving significant deference to EPA's construction

' of polluticn. However, the Circuit Court concluded its opinion as follows

l

, In closing, we emphasize the narrowness of our i decision. It is not our function to d eida whether EPA's inta.91.atations of the term " discharge of a .

pollutant" is the best one or even whether it is more reasonable than the Wildlife Federation's

, interpretation. We hold merely that EPA's inter-l~ pretation is reasonable, not inconsistent with congressional intent, and entitled to great deference; therefore it must be upheld.

This last quotation chows that NFF, supm scarcely was a ringing af-firmation of EPA's thesis that dan discharges do not require NPDES permits.

i J

i 1

t l

Moreover, it is clear frm the language in NFF that the Circuit Court chiefly

- visualized a discharge frm a ^=nad river or stream into the lower channel of the see river or stream. Genuine pollutants, such as dissolved minerals (as

,,-M to +===rature, which is more accurately classified as a water " quality") ,

would reach the downstream channel whether or not the dam was present; the

. major function of the dam is to change the instantaneous rates-but not the i

average rate d th which pollutants flow into the downstre e channel.-

'therefore it is far frm apparent that NFF should be applied to the instant water project, wherein Delaware River water is being directed to a stree channel that the M1==re River otherwise would never reach. If NNRA's int =ratation of NWF were to be followed literally, DER would have no right to establish pollutant concentration limits for discharges of the Delaware into the Neshaminy or Perkimen, no matter how polluted the Delaware or how pristine the receiving streams; we do not believe this autome would be cmsistent with Cchgass' intent when it pa=M 'the Federal Clean Water Act. Nor do we believe NNRA's intagatation would be consistent with the Legislature's intent in passing the Clean Streams Law, 35 P.S. 55691.1 et seq. or with the Envimm :ut.al Quality Board's intent in pr m ulgating the regulations in 25 Pa. Code Chapter

92. In fact, the EQB has made it explicit that the Ca monwealth's standards

'for McLecting water quality may be stricter than would follow solely frm i

l application of federal standards. 25 Pa. Code S92.17.

L Furtlmum.u.w, we question whether the extravagant deference (exemplified I

by the NWF decision) paid by federal courts to Federal adninistrative agencies

~

L should carry over to the Board's review of DER actions. This historical defer-ence of the federal courts grows out of the constitutionally mandated separation of powers between ad'ninistrative agencies (which are within the executive branch )

I I of goverment) and reviewing courts (which are located in the judicial branch).

i I

i _ .- -_ __ ..___. _ _ , _ _ . . _ __ _ ________._ _ __.-..- _ ___ -

1 e i o .,'

In sharp contradiction, the Environmental Hearing Board is a quasi-judicial body located, as is DEP, within the executive arm of Pennsylvania's goverment. 71 P.S. 5510-21. Moreover, this Board is specifically charged with the duty to

. . substitute its discretion for that of DER where, in the Board's opinion, DER has abw.ad its discretion. Farren Sand & Cravel Co., Inc. v. DER, 20 Pa.  !

Qadith. Ct. 186, 341 A.2d 556 (1975) .

Even in the federal court systs, statutory construction by achinis-trative agencies is not given as nuch deference as questions involving questions of technical or scientific expertise, E. J. duPont de Nemours & Co. v. Train, 430 I

U.S.112, 97 S. Ct. 965, 51 L. Ed. 2d 204 (1977) . The D.C. Circuit distinguished I .the duPbnt case femiaa it found the presence of scientific and technical aspects to EPA's characterization of dans as nonpoint sources, but DER's "no NPDES permit" 4

decision under review here was based upon a legal ana'ysis l conducted by its

, counsel rather than upon any substantial application of technical or scientific wi.ise.- (See Tr.1783 for the testimony

• of DER official Charles Rein.)

In 4 : - .'ning what deference to pay to an adninistrative agency's decision, the federal courts also look to whether the determination was consis-tently held and had important policy considerations or was policy free. NFF, supm, 693 F.2d 156,170. The D.C. Circuit found athat' EPA's .hW.uuinations that dans were nonpoint sources had been contaporaneous with the Clean Water Act and

'had been consistently applied by EPA over the years. Of course, DER's deter-mination, being recent, has not = @ red,.the right to deference enjoyed by EPA's decision. Perhaps, more importantly, the' court ih'NFF, supra, notedithat EPA, y . -

faced with limitad resources to carry out the NPDES permit program and faced F. ,

with 2,000,000 dams (50,000 large dams .to in. permitted) had made a policy deter-

^ j s ...

mination to take dams out of its NPDESp.rmit mop.mu. Since it is EPA rather

.s 4

e e

D then the courts which naast process the permit applications the courts quite rightly deferred to EPA's detamination.

DER has not pointed us to any policy consideration supporting its in-si: ant detemination. Instand of 2,000,000 or 50,000 similar cases it appears frem the record that i.ts policy decision in this appeal u.-r.erning the diversion

- of water fran one river to another is auf generfs. Psversing DER's policy imre will necessitata processing but two pemits; if it is correct (as EER argues) that

' its staff already has done the zwiew work paavy to support an NPDES per: nit,

- the processing of these permits should impose no considerable burden.

In se, the factors giving rise to great. deference to the meninistra-tive decision in WF, supm singly are not present here. Although the appellants

have the burden of showing that DER's decision not to require an NPDES permit

-was an abuse of discretion, we should enemine this issue without Wm1 reliance

~ cn DER's legal analysis stemning fran the WF holding. So doing, for reason amplified in the lamediately following subsection, we conclude that the preposed M * *ges into the North Branch and the East Branch are Ew w.tial " additions of pollutants" to those stresas, requiring IFjES permits. Therefore we are rummading 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 ocuplied with.

In so ruljag we are rejecting the ==11mnts' arguents t!at the NPDES perMts should have been secured before (or at least simultanomaly with) the issuance of the po sits which are the subjects of the instant appeals. 25 Pa.

code 592.21 requires persons " wishing to cemence discharges of pollutants" to file an 19DE5 application within 180 days of the data when the discharge is J

expected to cassence, unless exceptional ciremstances receive a longer lead tem.

! Even at this lata date in these prolonged appeals, discharges are not expected to

. .o : i. .

begin within 180 days from now. 'Ihe circumstances of this controversy are omeptional, unique even, but we do not see that they demand overturning the permit grants solely har=n== NPDES permits have not yet been secured. It can be argued that the first prong of the Payne v. Kassab test for ocupliance with Article I Section 27 of the Pennsylvania Constitution (Payne v. Kassab,11 Pa.

Omelth.- 24, 312 A.2d 86 (1973)) inplies DER should have issued the NPDES permit (which we now have ruled is required) before the permits appealed-fran were issued.

However, the E@ g_r *-ly was aware of Payne v. Kassab when it pronulgated 25 -

Pa. Code $92.21. '!he E3 could have required that an NPDES permit for a dis-cinerge be obtained before the construction permits which would produce the dis-cfiarge are granted; instead the EMB merely required that an NPDES permit be obtained within 180 days of the date when the discharge is expected to cxamence. We agree with the E3 that 25 Pa. Code $92.21 suffices to gem the envizcoment in a fashion fully consistent with the requirements of Article I Section 27 and the intent of Phryne v. Kassab.- Article I Section 27 does not force us to overturn the appealed-frtal pensits, provided we can ensure (as we have) that the leDES requirements of the applicable Federal Clean Water Act will be ocuplied with before any discharges occur.

4. Mty An NPDES Permit Is Needed Once we have cancluded that we need not defer to DER's legal analysis in this matter (i=1* dig DER's relianos on #FF, supra), the further conclusion that we must require an Istsl8 pennit meer the facts of this appeal seems un-evoidable. 'the record demonstrates that the n=1==vu River water which would be diverted into the East Branch and the North Branch contains heavy metals (in-cladig lead), phosphzus, nitrates and focal coliform. Clearly, these sub-stanone one under some (or all) of the phrenes " chemical westes", " biological 7 .,

~ ~ . ..

, ~ , . . 7, ., - . ;

e .. w- ,

' i,.

Q

~

m ...-

, s

m , ._., . m- - .- s -

<g"

,g ^. W \

. -[ ,

p-m ,- ,

- s

\

,7 ,. ., W . p s q ' ._ .

..e 3 _

3

- x s --

m m% -

m

. + y. 3 .

N, waster,", " ira 1ctrial,' namiicipal and agricultural; wastes" which are " pollutants" 1:s '

as defined by the Chen Water Act..

7

Of_ corse,itar7 ._h3se substances occur in such mall c.:nounts in e ~ .

3 y s.. ., ,

. the'Delc'abe River wa'ter Ehat rh;tmatment will be required before discharging e

~

w . . . .

intotheEastBranchorlNorthBranen,butthisistheveryquestionwhichthe

-g -. p NPEES permit prchess Ndesignedbhnswer.' 1Moreover,'it-is already apparent, fran the evidence n at handy ~thdt the levels of lead in the Delamre simply cannot .

be A4miase{asl"very ma]1"?without .~. +

furtMr careful examiiation. To ascertain the Delamre River's water, quality, Charles Rehm,' Chief of the veter Quality _

Planning Section of DER's,Norristown Office, reviewed water quality data sub- ,

mitted by NWRA's consultants as well'as certain STORET data (canputer print-outs of' water quality arialyses corductal ~in the Delaware by various water quality control agencies in the ordinary coarse of their duties) . Mr. Rehm chose to

. rely upon data gathered at the Forrisville (PA) gauge (which being essentially across the Delaware fran Trenton (NJ) is located about fifteen miles downstream fran Point Pleasant) W=a there had been substantial sanpling at this location

. and he assuned that Morrisville water quality was ragasentative of Point Pleasant water quality. In a chart prepared by Mr. Rehm and intrrdw=d cs a Del-Aware exhibit, Mr. Rehm carpared the long-term average concentrations of various water quality parameters at Morrinville to these same parameters in inter alia the Ibrth Branch and the East Branch. Mr. Rerun determined that the long-tarm average con-centration for the heavy metal lead in the rolmm was 51.4 ng/l (micrograms per liter).

Mr.,khn acknowledged that this number exceeded the instream water quality standard of 50 ng/l set in 25 Pa. Codo Chapter 93 of DER's regulations, but he felt that iritroduction of thic water into the East Branch and the North Branch was nevertheless pe.nnitted because this lead value represented only a g ,

"strall ircrende" over tib Chapter 93 eh. Hcwever, Mr. Rehm's position 4

,. e"

m. s 49-i ,

a O -

u

ignores the plain mandate of law. Where a regulation establishes a definite

. nunerical standard, DE:R may not decide that see violations of that standard are so small as to be "de minimis". Commanuealth v. Pa. Liquor Control Board, 471 A.2d 941 (Pa. Orwlth.1984) . The principle that DER has a mandatory duty not to allow water quality standards to be e>W is Mied, e.g., in 25-Pa. Code 595.l(a) .

Admittedly, if the. East Branch had sufficient.flcw at the point of discharge, a discharge of 51.4 mg/l of lead might not cause a violation of Ompter 93 standards (after dilution by the receiving stream), but this remrd demonstrates that during low flow periods the Delaware Diversion will constitute e 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 precess set forth in 25 Pa. Code S95.3. Because DER a

4 detemined no NPIES pezmit was necessary for the diversions (and because Mr.

Rehm was not perturbed by a "little" excess above water quality standards) it did not go through this sucess.

14 tile we have arphasized Delaware River lead we note that Mr. Rehn's i-analysis as presented in Del-Aware Exhibit 52 clso shows that the average water i

i quality of the Delaware at Morrisville eWa Chapter 93 standards for aluninum, f

[ bacteria, copper and phenol. Furthennore, Mr. Rehm admitted the S'lDRET data

(

b showed that water quality in the Delaware at Un*=rville (RT), only two miles

-. - downstream from Point Pleasant, manifested the presence of: copper at 9 ng/1--ompared to a 5.6 mg/l standard; zinc at 110 ng/1-ompared to a 95 ng/l standard; iron at 4700 mg/1--cmpared to 1500 mg/l and total phosphorus "

.= =ading the chapter 93 standard by 3 times. It is true that Mr. Behm dismunted

-100-l l

f the ra=harville data, due to the relatively small nmber of sanples there re-r i.=d and due to his inpression that the im=harville data could have been influenced by a discharge fran a plater on the NJ side. Nevertheless, the to-tality of Mr. Rehn's testimony hardly can be said to justify Mr. Rehm's con-clusion---arrived at without quantitative analysis cf present North Branch and East Branch polluted loads and flow rates-that the effects on water quality in the receiving stream would.be. inconsequential.-

Apparently, Mr. Rehn also was influenced by his opinion that the overall water quality in the na1=.=re equaled or emaadad the r asent 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 nal==re River, we do not believe this is relevant to the issue of whether DER may pemit Chapter 93 water quality nunbers to be aceW. 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 reclaimad and restored to an unpolluted condition, 35 P.S. S691.4(3);

Comon9ealth of PA v. Gilpin Tounship, 52 Pa. Ccmnonwealth Ct. 414, 415 A.2d i

1002 (1980); Comonwealth v. Barnes & Tucker Company, 9 Pa. Ccunonwealth Ct.1, f 303 A.2d 544 (1973); rev'd 455 Pa. 392, 319 A.2d 871 (1974) .

l

! In other words, the record indicates that the Delaware may be capable l

of transferring significant concentrations of pollutants to the receiving i-streams. Thus the only question remaining, before we legitimately can conclude t

- that NPDES permits should be required, is whether the diversion of Delaware l

L River pollutants to the North Branch or East Branch constitutes "an addition 1

of a pollutant" under the rederal Clean Water Act. In view of considerations i'

L discussed supm, we are to decide this question without particular deference to DER's legal analysia or to the holding of the NVF Court, although we certainly

-101-I

i should pay careful attention to the reasoning of DER and the NFF Court. We have paid such attention, and sinply cannot agree with DER or the NVF Court under the facts of the instant graal. In parti m1 w , as we have stran==M earlier, we cannot agree Congress and the Pennsylvania Iegislature intended that DER would have no right to establish pollutant concentration limits for discharges of the Delaware into the Neshaminy or the Perkimen, no. matter how polluted the Delaware or how pristine the receiving streams. Therefore we hold-that the diversions presently appaalM-frun do constitute additions of pollutants under the Clean Water Act.

NBA and PB00 argue that any pollutants which may have entered the Delaware River were not intrr*M by their activities, so that under the Federal Clean Water Act they should not be held responsible for these pollu-tants. In this regard,!WRA cites Appalachian Power Company v. Train, 545 Fed.

2d 1351. (4th Cir.1976), which held that utilities which renove water frcm a .

river for cooling may return the water to'the river without removing the pollu-tants originally present. Appatachian Power, supm is distinguishable, however, because it (as did NFF, supra) dealt with the. return to the same waterway of pollutants removed therefran; the instant ay1 rkh with transfer of pollutants i.

fran one river into two other rivers. In Appalachian Power, supra even more than

- in'NFF, supraJit could be (and was) argued that the activity of the would-be' i

L pamittee did not cause the pollution, so that the permittee should not be re-l sponsible for this pollution.

'1 hat a different situation pertains where man made activities cause l pollution occurring in one body of water to reach another body of water is made clear by two Pennsylvania cases which, albeit they arose under state

. statutes, nevertheless addressed this very issue. In Harmar Coat Co. v. DER, 306'A.2d 308, 452 Pa. 77 (1973), a mine operator argued that since he didn't

! -102-4

% ~ ~e-,- , ..,,r. , - - ,,-,,-.,,,,,,.,,,,,----,-----,,,-,-w------ ,,,,,,,,e, . n,

- , , , ,,,,,-g - , -. ,

b t.; .

=, .

canaa the acid pollution of the water he was ptznping frm his mine, he didn't have to treat the pH water when he discharged it into the adjacent surface waters. The Pennsylvania Supreme Court, though willing to concede that Harmar I- Coal Ocupany had not caused the pollution to the groundwater, held that "but

for" the ocupany's activities the pollution would not have reached the surface l -

L waters.

l The sane Court utilized similar reasoning in ~Conmonwealth v. Barnes a Tucker Coal Company, 455 Pa. 392, 319 A.2d 871 (1974), which involved the breakout

+ of acid mine drainage fr m an abandoned coal mine. The trial court in Barnes a

[

Tucker, supra had found that much of the acid mine drainage emanating fran the

( c1naarl mine originated in adjacent coal mines, and ran through insufficient inter-ior hawiam 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 Ccmpany. Again, there was no doubt '

I L

in Barnes d Tucker, supra, as there had been none in Harmar, supra, that the l

ca pany held responsible had not caused the pollution of the waters in question; what each e-eny did was cause or permit the transfer of this polluted water to l another body of water. '1 hat is exactly what P900 and NNRA propose to do in the l

' instant case.

DER and !@ IRA also argue that DER conducted an analysis and review "as if" a NPDES permit was to be required. Frankly, the Board is at a loss as j' to how to consider this argunent. Certainly, no party has cited any authority

= for the proposition that DER's efforts constitute substantial canpliance with

. the Federal Clean Water Act; as explained above we feel that full compliance with this Act is mandated by applicable state law, including Article I section 27 of the Pennsylvania Constitution.

i

! -103-L- _ _ _ . ~ _ _ _ _ . - . -_ _ ____-__________._ _ _ _ . __

'Ib sun it up, it was an abuse of discretion for DER to have issued the eled-fmn pemits without requiring that discharges into the receiving streams otmply with NPDES pemits. '1his deficiency of DER's actions in issuing the ap-paalarl-fra pemits readily can be rMM by renand 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 supm (subsection III B 1). In the past the Board has not been willing to allow an appellant to "act as a private or Ccrmonwealth attorney y:=i:ral, looking over DER's shmlelars" as DER enforces its governing statutes and regulations. Pennsylvania Game Commission v. DER and Ganaer Sand and Gmvet, Docket No. 82-284-G (Opinion and Order, February 3,1984) . For instance, in Canaer we wrote:

Every allowable Ccanission claim of sucsiural or ,

substantive error by DER in granting Canaer its pemit must be related to the Cmmission's alleged L injuries under the Wittiam Penn standard. -

Although we certainly do not disavow this holding fran Canaer, we question our discretion-in the large and omplex water diversion project t

.susently before us-to ignore, solely on grounds of standing, our conclusion fran a fully litigated record that an NPDES pemit is needed to ensure protection of the North Branch (as explained earlier, standing to appeal the "no NPDES per-t mit" decision for the East Branch has not been challenged). We see no need to i

rule on this question at this time; the issue will be nooted unless our provisional

ruling that Del-Aware has standing to appeal the "no NPDES permit" decision for the O rth Branch is reversed after reconsideration of this adjudication. 'Ihe

issue will 1+3 + crucial, however, if our grant of standing to Del-Aware is reversed.

-104-C^ i.

is',, ~ ~ ~ . - . , - , _ _ _ _ . . _ _ _ _ . , - - - _ . - - - . _ _ _ . - _ , . . _ _ _ . - ~ . . - _ . - - - _ _ _ - - - _ - , - - - _ - - . . -- --- ---- -.

C. ENVIB0tNENTAL IMPACTS ON RE'EIVING STREAMS Having decided that the presently Amaal_ed permits must be remanded to DER in order that the "no NPDES decision" be renedied, we next turn to the host of additional issues-the appellants have raised concerning enviromental inpacts on the receiving streams. The following di=<'insion of these environ-mental issues is organized under a set of reasonably sensible and omprehensive subheadings; these subheadings do not inclu:le " Water Quality", however, because that subject already has been exanined during our analysis of the need for NPDES permits (subsection III B 4) .

1. Erosion One of the most hotly contended itans in this otmplex case was the

=malavated erosion which the appellants (under which appellation it now is convenient to include the intervenors, Friends of Branch Creek) asserted would

. be canaad in the headwaters of the East Branch by the diversion of up to 46 mil-i lion gallons of Delaware River water per day (65 cfs) into that stream. Similar claims of accelerated erosion pertain to the North Branch.

The East Branch of the Perkicmen is a small stream, virtually a rivulet, at the point of discharge.5 In its madian flow of 1.5 ogs, a person cxxild jtmp across it. The stream channel, carved by higher flows, is itself only 16 feet wide at this point.

, Frur. this point near the Elet ant t Road bridge, the stream meanders northwestward towards the main stem of the Perkiomen. In its upper reaches, the stream is, during normal low flows, a series of pools and riffles. N bottcm is loose rock. The banks are cut through silty loam and clay loam soils.

The East Branch is a flashy stru m. The large mount 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 5.- This description is taken in large measure frcxn the post-hearing brief filed by FBC.

T after precipitation and then subside. Sheet ard 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 r d = 1 =~Hmant carri ing capacity of the water which is already silt-laden.

Erosion does occur, however, at levels of flow that are below floodstage. .

Pis,tcy- 's prMM during the hearings showed bank sltsping and slope failure during spring run-off. (Del-Aware Exhibits 98A-C) Portions of the bank collama ,

into the stream in blocks, or are eroded grd=11y. Mr. Hershey testified that, in measuring the creek, flows frm a single thaw removed a foot of soil fra the bank.

- Aside fra the effects of erosion, which can be coric:cted by inproved land management practices, the water quality of the East Branch headwaters is good.

In the Sellersville-Perkasie area, see 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 r d M , as other sources add pollutants.

The stream is noch larger, with incraaawl flows of nunerous tributaries. A lar-

!L l ger channel and larger flows cm bina with lower velocities to make this lower i section of the East Branch a distinguishably different stream.

Since the maxinun diverted flow of 65 cfs is awwaimately 50 tines

-the nwHan flow of the East-Branch at Elephant Road, one's intuitive response is that this diversion must have see substantial inpacts on the East Branch. Indeed, there seems to be no real dispute among the parties to the proposition that if one tries to force too nuch water through a small stream, the course and cross section of that stream will be changed by the runwal of erodible materials frm the sti ;4nks and bottm. '1here also is no real dispute that in situations where streambed and bank erosion eyrwvi normal levels, there will be increased

-106-l I

~

--m-.---,...w, em-~ ww-- -.n- - , - - w.. ,-a,a_-__, , , , , , , , , , - - , , , - -w..m--.- , , - -

. ~ . . _ . .- . __ -

4 turbidity in the stream, increased deposition of aadi=nt on the stream bottcm and negative hupacts on the aquatic otzemunity in the stream. The North Branch

. -too is a tiny stream at the point of the outlet. It too is a flashy stream meandering through an erodible area, so the discussion relating to the East Branch holds with equal rigor to the North Branch.

The battle is joined, however, as to exactly when soil erosion be-gins to take place and even (though to a laaaar %ioe) as to the mechanism which causes this probl e.

DER's findings and conclusions on this issue, as contained on page 41 of its Envisu.=aital Aaaaamnant, are as follows:

Incranaad Flows The major effects on the stream flows and stream +

channel of the East Branch Perkicnen Creek resulting fra the addition of waters. diverted frm the Delaware were investigated in the 1970 report by E. H. Bourquard Associates, Inc. Because of pu_f:* 1 ptmping rate changes, another review was made by Philadelphia Electric Ocupany in its Envitu.-= ital Report (July 1979) . -

To briefly stamarize the findings of these shrlina, a total of 15 locations were investigated along the 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 l existing and er f:* i conditions. In Bourquard's orig-i inal mapw.i.,'the average rate of ptmping Delaware River water into the East Branch was estimated to be 54 cfs. The average rate of ptmping in PE00's updated L ralm1=tions is estimated to be 34 cfs, not including

water 1manaa in L -='t. The ==v4== ptmping rate used in both .ym.us was 65 cfs.

For purposes of otmparison, the channel section

' closest to the point of in-flow will be discussed.

This section is considered the most critical since the cross-sectional area of the channel is the smallest at this point.

l 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.

During ==vi== ptmpage, the flow increases to 65 cfs,

-107-

I l

depths to 1.28 feet and velocities approach 3.0 fps.

H is rate of flow is not considered to be erosive and flows should be contained within existing stream channels. i During periods of median stream flow, existing

. conditions are such that flows are 1.4 cfs, depths F aws4 0.15 feet and velocities are almlated at 0.61 fps. With the ==vi== incraaaarl flow of 65 cfs, the depths would increase to 1.3 feet and velocities to 3.02 fps. Again, there should not be any noticable 4

erosion on existing stream banks. (footnotes anitted) 1 Not surprisingly, appellants and intervenors challarxJe both DER's findings and the "no erosion" conclusion it draws therefran. %e record in-1 dicates that the Bourquard study upon which DER relied was the work product of a civil engineer pamael Robert Steacy. Although Mr. Stancy, a 1939 graduate of COE, has had a long engineering career (which was mostly spent with the U.S.G.S.)

and certainly impressed the presiding officer as a canpetent and honest wit-ness, until the present case Mr. Steacy had not proffered an opinion on expected 4

erosion nor had he predicted future flows in a stream. In the instant matter, Mr. Stancy's predictions were based upon a single site visit to the East Branch, during which Mr. Steacy oboened this stream at various points fran highway bridges.

i Instead of field measurements, Mr. Steacy relied upon m1m1=tions of stream velocity using Mannizq's fmmila, and empered these calculated values to a .

, a table. Both the frw=sla and the table appear in the Handbook of HyrLran14cs by

.Brater and King, Sixth Edition.

2 Manning's foruala (Va 1*486 r /3g W '

a } estimates the velocity of water flowing past a point in a pipe, channel or stream, as being p&wLional to posi-tive powers of the sideslope (S) and hydraulic radius (r) of the pipe channel and/or

[ stresn, and as inversely pawlional to the roughness (n) of the conveying device.

i

! %e hydraulic radius (r) is a measure of the curvature of the conveying mediun,

( and thus depends upon the manner in which a given flow fits the conveying medlun, I

-108- '

c i.e., the cross-sectional area over the wetted perimeter equals r. To enlmlate or measure r, therefore, one nust calculate or estimate the average depth of flow and the effective slope of the stream banks. At each of the points where he calculated velocities, Mr. Steacy measured neither the depth nor the slopes of the banks, but rather estimated these dimensions. h expert witnesses proffered by appellants and intervenors challenged Mr. Steacy on both these estimates.  ;

bbreover, they challenged the n or roughness value chosen by Mr. Steacy. As to j l

the lack-of-measurenent argunents raised by appellants' experts, we agree that l

itMd have been desirable for Mr." Steacy to have measured depth and side j i

slopes for at least one point, and we note with approval that appellants' witness John T. Hershey and his helpers did measure the depth and slopes of the East Branch at certain points; but we must note that these measarements did not take place when the flow in the East Branch was at or near 65 cfs, i.e., during con- f ditions approximating the conditions applicable in the East Branch during maximum diversions.

~

It seems to us that if one really wants to know how a flow of 65 cfs l fits the East Branch channel, one has to measure the channel at that flow. f Failing that, the applicants, DER, the appellants, the intervenors and this Board are relegated to discussing theoretical calculations.

h most relevant of such calculations was the 3.02 feet per second velocity calculated by Mr. Steacy for the flow of the East Branch at Elephant Road with a 65 cfs diversion. DER relied on this calculation. 'Iherefore, we will assune for the rest of this discussion that the upper reaches of the East Branch will be subjected to a velocity of 3.02 fps fra the prv==1 diversion. So assuning, the crux question becmes whether this velocity 5dll cause substantial erosion in the East Branch. Several of the witnesses, including Mr. Steacy, testified that there is no sharp line between those velocities which no longer

-109-e

.' o

. carf maintain silt in motion and thus will lead to sediment settling on the bottm of the East Branch, and those velocities which will scour the banks and bed of the East Branch. Both of these velocities are considered critical velocities.

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 NWRA, agreed that a valid approach for dih.unining critical velocity was to refer to a table appearing on page 7-24 of Brater and King.

It is inportant to note that this table sets forth permissible velocities in canals after aging. The textual material preceding this table erphasizes that the process of aging--especially by the deposition of a variety of materials frm fine to ooarse on the sides and bed of a stream, and rtost especially by the deposition of colloidal materials-tends to canent the clay, silt, sand and ,

gravel along the sides and bed in such a manner as to resist erosive effecta.

Thus, permissible velocities in aged canals are greater than in newly rolled canals. Several witnesses testified that the East Branch, as a natural stream

• I which already has received substantial runoff fr m adjacent farmer's fields,  !

resembles 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 assunes an aged canal.

Ttiktableinquestionprovidesasfollows: .

~

$semleeMe Canal Velocities ofter Aging

. mese. sedes is love by Sesenal co 6 ies en I,,ie.is.e nes ,eb. Ascu

,,,,, wei.e i ees.

N *****8 ****'***d '

dos.e. ,,,,e e. ,eet Grees.eece .

M eesmed. see eelle3 del............ l.M 3.80 1.40 Seedy leem esewalloidal . . . . . . . . . . 1.fo 3.88 3.00 Sitt leem. eengellendel.......... .. . 3.00 3.00 3.00 Alleveal eden, ese eellendel.......... 3.08 8M 8.00 Oedenery are loses.... . . . . . . . . . . . . 8.00 3.M 3,30 Veleendesah...................... 3.se 3.m 3.co hoe erovel. . . . . . . . . . . . . . . . . . . . . . . 8.00 8.Se 8.74 l 848 eley. vs.y sellsidel. . . . . . . . . . . . 3.78 8.00 8.00 Oraded, leen to embhlen, see ee6 Beidel.......................... 8.70 8.8e 8.80 Asev6el se6s esile4 del.. . .. . . . . . . . . . 8.te 0.8e 3.08 Goeded, eut to eebblem, eellendet..... 4.ee e.es 4.00 Ceases erovel. -m.a ,,,,,,,, e,te e.te e.as Osettee and ehemelse............... 8.8e 8.88 0.80

• h eed beedemne............... e es e.8e 8.8e

-110-

r l

We remark that although the table's re --. -Ations are nearly 50 years old, the possibility that the table now is outdated was not raised during the hearings.

Mr. Stency selected the value of 3.5 fps as the critical velocity fran this table because he assuned that the banks and bed of the East Branch were ocuposed of ordinary firm loam, and because he also assuned that the Delaware River water transferred to the East Branch would be transporting colloidal silts but not sands, gravels or rock fragments.

Both of Mr. Steacy's assurptions 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 assuiption was based upon a visual inves,tigation 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 inportance of properly defining the soil along the line of the waterway before applying the table, neither Mr. Steacy nor anyone else on behalf of PECO, NWRA 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 examined the entire East Branch trore than once, did have an opinion on the type of soil materials adjacent thereto based on visual examination; his opinion, that the substrate was e--ced of small rocks, boulders, rubble, a lot of silt and a lot of clay seens to be at varianm with Mr. Steacy's observations (of ordinary firm loam) . A similar analysis of the North Branch substrate was supplied by Paul Harmon-NWRA's aquatic biolo-gist.

The appellants' hydrological witness, Jonathan T. Phillippe, did attempt 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 NWRA for construction of the Bradshaw Resentir. This analysis showed the soils at the Bradshaw site to be predominately silty or sandy clay loams.

-111-l.

The Applicants' experts disparaged this analysis, and pointed out ac-

. curately enough that the proposed Bradshaw Reservoir was a't least 6 miles away fran the outl'et on the East Branch. Ilowever, 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 Mr. Steacy also rejected the analysis of soils contained in the Bucks County Soils Conservation Map for the East Branch area. This analysis, like the Bradshaw Reservoir and borehole analysis, supported the appellants' view that soils in and near the East Branch are nore properly grouped in the silt loam, non-colloidal category than in the firm loam category. The Soils Conser-vation Map is a carefully prepared document. 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 silt loam non-colloidal category. Both Dr. Dresnack and Mr. Steacy admitted that if the soils were of the latter type the critical velocity would be 3.00 fps even assuning that the Delaware River water transported mainly colloidal silts, and would be 2.00 fps if this diverted water were considered to be either clear or 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 appellants and Ap-plicants' experts. Again the opinions are nostly subjective. Appellants' experts suggest that the Delaware at Point Pleasant is not greatly silt laden in the first instance, and that storage in Bradshaw Reservoir will cause nuch of $he silt in the Delaware to settle out. The Applicants' experts argue that the Delaware River water is laden with colloidal solids, and also argue that these

6. 'Ihis analysis showed the presence of hard silt, little shale or gravel, and little clay.

-112- '

l.

solids'will'not settle out during the two days the Delaware water will be stored in the Bradshaw Baservoir before being released to the East Breach.

The only scientific attm pt to predict the amount and nature of solids to be @ tad 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 sees 4

to undercut his ultimate cmclusion. EssenHally, Dr. Dresnack's further analysis of the Delaware River's behavior over 6 calendar years deanstrated that nost of the sawHmant carried by the Delaware is associated with high water levels; for' instance, 50% of the ' yearly sediment load is E-6purt.ed during cnly six days. The corollary of this analysis, as is plain fran Dr. Dresnack's exhibits, is that during the warm weather-lower flow periods when the highest diversions are contemplated, little aadia=nt (colloidal or otherwise) will be transported I by the Delaware. Therefore, we find that.the water to be diverted to the East Branch will be clear water. Accordingly, along with our finding on soils types, we find frun the above Table and in accordance with the testimony of appellants' experts that ther critical velocity in the East Branch will be 2.0 fps.

We note that Applicants' experts expounded an alternative theory to demonstrate that erosion in the East Branch will be minimal. They testified that since even the ==vi== diversion will not approximate the 1.5 year flow of the East Branch, and since the 1.5 year flow (the so called " bank full" flow) is the dcminant flow for cutting the channel, no excessive erosion can be expected.

Msile this testimony does alleviate the Board's concerns about possible flooding fran the diversion, neither the Brater and King text nor the ASCE Manual of Practice No. 54--which sets forth a similar table (Table 5.2)-requires bank full

-113-

conditions as a precondition to erosion; critical velocity alone is the mechanism

' discussed in these sources (which sources were authenticated and used by all parties' experts). Thus the Board concludes that if and when flows in the East Branch exceed 2.0 fps in its upper reaches, substantial erosion of the bed and bank facing the wetted perimetsr of the stream occurs.

h above discussion has been restricted to the East Branch. It holds with equal force to the North Branch of the Neshaniny. The same clear Delaware River water is p1.vr xied to be discharged into each stream. The North Branch is much closer to the Bradshaw site than is the East Branch, so that the Bradshaw soil analysis applies with even more force to the North Branch. IMRA's own i

expert, Paul Harmon, on the basis of considerable on-site observation, concluded that this stream's substrate was a " fairly erodible" mixture of " gravel, rubble and Bounansville silt".

t Consequently for the North Branch as for the East Branch we conclude

. that 2.0 fps is the critical velocity.

Since IMRA's own engineering expert, Dr. Dresnack, has calculated a

-v4== 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 erosion in each creek was to condition each permit, so that each permittee had 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 erosion '

on the bed; and (3) stabilize and revegetate any exposed portion of the stream bank.

'Ihe appellants are not satisfied with these conditions and rightfully so. 'Ihe permit conditions, described above, at best address the crosion problen

-114-E a

after it is created. It is the genius of the permitting process to anticipate and prevent environmental probims before they arise. Moreover, the above conditions provide neither the permittees, nor DER nor interested third parties with any verifiable standard. -

l 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 cmply 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 Payne v. Kascab,11 Pa. Ccmronwealth Ct.14, 312 A.2d 86 (1973),

the Cmmonwealth Court prmulgated a three prong tert to review the ampliance of an agency or instrumentability of the Canonwealth with its duties as a trustee of Pennsylvania's Public Natural Pesources as per Article I, Section 27 of Pennsyl-vania's Constitution. This threefold standard is:

(1) Was there cmpliance with all applicable statutes and regulations relevant to the protection of the Cmmon-wealth's public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the 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 therefrmt that to proceed further would be an abuse of discretion?

This standard has been uniformly applied by this Board and Canonwealth Court when reviewing actions of DER, Concerned Citizens for Orderly Progreco v.

DER, 36 Pa. Cmmonwealth Ct. 192, 387 A.2d 989 (1978).

Particilm-ly relevant to DER's obligations under the second prong of the Payna test is 25 Pa. Code S105.16(a) of DER's regulations, which provides:

'1ho determination of whether the potential for sig-nificant environmental harm exists will be rude by the Department after censultation with the applicant and other concerned governnental agencies. If the Department detemtines that there may be a significant Jmpact on natural, scenic, historic, or aesthetic

-115-

. f- ,

~

values of the environnent, the Department will con-

~

sult with the applicant to examine ways to reduce the envirornental harm to a minimtan.

A cre not unmindful that it might be inpossible for PE:0 or NWRA to achieve the critical velocity of 2.0 fps into the Eut Branch and North Branch, l l

rwtively, i.e., to reduce the inpact on these streams to an insignificant level. In this event, we believe that under the third prong of the Payne v.

Kassab test it is incabent upon DER to M1ance the need for the project against  !

l the impact of erosion on the receiving streans, after all possible mitigation of the erosive inpacts. Indeed, this conclusion is merely a paraphrase of the testimony of R. Timothy Weston, Esquire (Tr. p. 2495), the DER official most intimately cue s ted with the Point Pleasant project.

I since, as per our earlier discussion, we already are renanding this

matter to DER, 'it will have the Wi.anity to conduct this M1ancing analysis 1-

. during IEEnand. '

2. Flooding he appellants also raised cxmoerns about the possibility of flooding in the East Branch caused by the discharge. On this point DER, at page 42 of its Envircr1 mental Assessnent, set forth the following:

~

To analyze the effects an flood flows, the following table was prepared for this inflow point-utilizing data fran Tables 2 and 3 in PE00's 1979 Envin. .tal Report.

Table 4 Q(cfs) Depth (feet) Velocity (fps)

~ '

Median Flow 1.4 0.15 'O.61 Median Flow + Point i Pleasant Diversion 66.4 1.30 3.02 Moan Annual Flood 320.0 2.6 5.1

-- ?:-  : 5 - Year Flood 467.0 3.2 5.7 4

50 - Year Flood ~ 960.0 4.1 6.6 i.

As noted above, the addition of the 65 cfs to the median flows does not place the strean in a mean annual flood condition.

- The operating plan for the project requires PEIJO to monitor stream flows of the East Branch and, with the d '

e

14, 13 advent' of a flood on that stream, rabrw or terminate pumpages from Bradshaw Reservoir. When the stream flow of the East Branch approaches potential flood levels (238 cfs at the Buc.ks Road Gaging Station which is the peak flow of a onw flood), an alarm

.is automatically activated at the pa ping control cen-ter and the Bradshaw pups, if operating, shall be 7 The data in this table were sponsored by several of the applicants' witnesses and were subject only to a narrow attack by the appellants.

Essentially, the appellants 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 ===11 ants riennstrated that because the Bucks Road Gauging Station will be downstream fran the diversion point at Elephant Boad, a heavy innalized rainstorm could cause the East Branch to be overt m +1 below Elephant Road before the Bucks Road Station read 238 cfs.

Applicants counter this argtunent not by denying its factual basis, but

. ~ by asserting that-the diversion system can be operated satisfactorily if the flow fran Bradshaw Reservoir is shut off when the Bucks Road Gauge reads 125 cfs rather than 238 cfs. ~ Applicants point out that, due to the % @ y 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 assertions were contradicted by.the challengers.

l 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

denonstrated that che addition of even a full diversion (of 160 cfs) to the

. -117-( ,

1 Y .,

. =.

A median flw of 1.34 would not cause flw therein to exceed the mean annual flw 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 problems which would be &:+ dated by the diversion.

3. Wetlands Appellants raised an issue concerning the adverse inpact on wetlands adjacent to the East Branch mid 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, fran which challengers' witness John Hershey micMated that an much as 100 vres of wetland would be affected.

Setting a=Ma the question of whether the wetlands identified in this map are "important wetlands" as used in 25 Pa. Code $105.17 (see section III D 2 infra),

there'is no evidence that the diversion would cause any wetlands to be inundated.

Absent such evidence we cannot call DER remiss in failing to additionally con- .

dition the permits in questian to protect these wetlands. The small anount of .

wetlands adjacent the Delaware which would be affected by the project are dis-cussed belw.

4. Aquatic Biota considerable testimony in this matter addressed the present state of the' aquatic comunities in the East Branch and the North Branch as_well as the

. projected inpacts on these comunities fran the e.q-:M diversions. DER's aquatic biologist, Donald Enorr, testified that the aquatic comunity in the upper reaches of the East Branch, just belw the pwrised discharge point, was typicalofstreamsthatexperh.encedryperiodsandalsoexperienceagricultural runoff. He a&nitted, 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 sts:mer), the aquatic comunity therein could be damaged.

-118-(

However, absent excessive and long lasting erosion, Mr. Knorr predicted that the diversion would actually improve the environment for the aquatic cmmunity in the East Branch by increasing the habitat available to this ommunity. hhereas without the diversion the upper reach of the East Branch " dries up" in the surrmer leaving only isolated pool areas, the diversion would insure a year round supply of noving and oxygenated water.

Applicants' aquatic biologist, Paul Harmon, who has studied the aquatic biology in the East Branch icr the last 12 years, agreed with Mr. Knorr on both of the above points. The appellants did not introduce any evidencc 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 eliminate 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 ccmnunity in the tbrth Branch, we find that since the same limitation will appear in IMRA's permit as in PD::O's, the North Branch's aquatic ccrmunity should be equally protected.

D. DELAM\RE RIVER IMP 1CfS 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, Plumstead Township, Bucks County. The intake structure itself will consist of an assembly of 24 Johnston wedge wire screens which are to be located apprcximately 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 cach and

-119-

[

y will be vuiis:ted by a 72-inch diameter reinforced concrete pipe to a gate well located along the bank. Each grouping of screens and connecting pipe ocm-prises a cylinder, whose long axis is aligned with the Delaware River's main axis.

These cylinders are to be supported see two feet above the Delaware's floor and se e four feet below the river surface at low flows. Frm the gate well, a buried 72-inch diameter reinforced concrete pipe will pass under the Delaware Canal to a p m p station located on the Delaware's bank east of the nelaware Canal (Boosevelt State Park) .

The ptmp 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 resemble a barn. Behind the pm p station (facing the canal) an electric substation r utected 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.- Inpacts on Incal Fishing a

Appellants raised concerns about the effects of installation 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.

Ibr pta g e,es of this section of this Adjudication the inquiry will be further limited to the inpact of the structure on local fishing. In this regard, appellants raised concerns that the intake structure could pose a physical hazard to fishemen fishing in this area frm boats or inner tubes, that its presence could L cause.the shad to veer away fra the Pennsylvania shore, and that it would adversely inpact local fish prm1ations through the entrahinent and impingment of fish eggs and larvae.

-120-

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 thumb of land which is about 800 feet in length and extends perhaps 100 feet streanward frm the Pennsylvania shore.

At Delaware River flows of 6000 cfs this bar becmes overtopped and no longer influences the surface flow of the Delaware, but at lower flows the bar begins to merge frcm 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 eddy to lose strength, but also to extend further out into the Delaware River.

The testimony in this matter and even the exhibits introduced by Del-I Aware (see especially Del-Aware Exhibit 23C) dmonstrate that the intake structure la 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 l 1

favored fishing spot for typical warm water fish such as bass, as well as a popu- l l

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 -

ct full diversion the intake velocity will be very low (.011 fps) at a distance of even one foot frm the intake's screen, so as to be imperceptible at the Delaware's surface, we can find no physical danger posed to fishenren 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 nercifully makes it unnecessary to examine the epliants' standing to raise this " danger to fishermen" issue.

-121-

As to the impact on shad fishing, Mr. Kaufmann of the Pennsylvania Fish Cmmission 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 from the shadow the shad could veer towards the New Jersey shore, and thus diminisn fishing fran the Pennsylvania shore. - On the other hand, Mr. Kaufmann admitted that it was just as likely that the shad would veer towards Pennsylvania and thus inprove Pennsylvania fishing. h possibility of a split flow of shad was not discussed nor was the question of how seriously a stm. located 245 feet frm shore would affect a fisherman casting frm the shore. In short, Mr.

Kaufmann's testimony, while credible, does not support a finding that the intake structure will harm fishing by its mere existence.

~

The appellants 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. h record again does not validate this concern. Even the appellants' witnesses agree that the proposed Johnston wedgewire screen is the state of the art in water intake technology. This screening, with its 2 mn. openings, is analler than the size of a water-hardened sturgeon or shad egg, and thus cannot entrain either of these. Mo. w , the zone of influence of these screens even at maxim m intake velocity is very small. The maxim a intake velocity at the screen is only .5 fps and this velocity drops to .011 fps at five feet fran the screen; even Del-Aware's ichthyological witness agreed that the influence of the intake velocity would extend only 2 inches frm the screen.

When we further consider that a single shad feale lays an estimated 100,000 to 500,000 eggs, that less than 1 percent of these eggs m uld hatch even under normal ciremstances, that these eggs will be no nore likely to pass

-122-

?y .

. S

• the intake structure than any other point of the Delaware, that there is no evi-dance that the shortnosed sturgeon even inhabits the Point Pleasant area, and that no rore than 2 percent of shad eggs passing Point Pleasant could conceivably be iffected by the intake, we cannot help but conclude that the intake's operation will not adversely impact the aquatic ocusamity of the h)elaware River at Point

~ m A Pleasant.

2. Archeology and Wetlands Turning to the paphouse, here the issues r=M concern the alleged ispects of this paphouse on:(1) 'the historic and scenic integrity of the Roosevelt State Park; and (2) a valuable archeological site located on the land acquired for the paphouse. The appellants also expressed concern about the effects of the paphouse construction on wetlands adjacent to the Delaware.

According to the testimony of Del-Aware's witness, Samuel Landis, the entire Point Plaamant area, and especially that portion of this area contiguous

^

to the Delaware River, was a gathering place for Indians. It is not surprising, therefore, that an archeologically stratified site exists in that portion of the Point Pleasant project site lying between the canal and the Delaware River.

This archeologic site, which has'a surface area of approximately 75 .w feet, was discovered by a teen of archeological consultants hired by NWRA, including Del-Aware's archeological witness. This witness had no amplaints about the methods used by the said consultants in surveying and identifying the site in question for significant archeological resources, nor did he disagree that the small site identified was the only such site on the project property. He even agreed, in general, with the methods used by NWRA to protect this area, e.g.,

i avoiding the archeological site during construction, covering it with earth and covering the area with plastic. It is true that Mr. Iandis also would have the o

archeologically sensitive area fenced off, but when the measures undertaken to i

-123-

.~ __ _-

J

. t .

protect this area are cmpared to the emplete lack of safeguards on adjacent private property, it cannot be denied that NWPA 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 Menorandun of Agreenent between NWRA, the Advisory Council on Historic Preservation, the Pennsylvania Historic Preservation Officer and the Army Corps of Engineers. The relevant DER personnel had knowledge of this agreenent, and relied upon it in concluding that the Point Pleasant Project would not significantly e

affect any archeologicelly sensitive resources. Beside the above protections, this agreement requires NWRA to station a cmpetent archeologist on site to monitor the excavations during construction. In the absence ot any countervailing argunent

~

or evidence we find these protections to be adequate.

'Ihe appellants adnitted that the Point Pleasant Project would affect s

.30 acres of wetlands, and agreed that while .22 acres of wetlands would be ,

permanently lost, the renaining .08 acres would be res'tored to their original grade and pre-construction condition. Even the appellants didn't seriously question the retoval of this small amount of wetlands, but rather directed their attention to the wetlands located adjacent to the East Branch. 'Ihose wetlands have been discussed above (section III C 3) . In the absence of any countervalling evidence (or even argunent) 'fran 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 cu find no fault with f DER's determination that the wetlands in question are not "inportant wetlands" f within the meaning of 25 Pa. Code $105.17.

3. Historic, Aesthetic and Scenic Inpact Point Pleasant Village is a very pretty collection of attractive resi-dances set in a scenic area hard adjacent to the Delaware River. Its historic

-124-t L

o significance .it reflected by its registration as a National Iandmrk. Marcover, the Delaware Canal, whlr.h parallels the Delaware, is one of Pennsylvania's Public Natural Resources, Ming in fact Pennsylvania's Roosevelt State Park.

'Ihe purphouse of the Point Pleasant project, which is described in nero detail

' above, is hithin plain vin.fraa the Delaware Canal and is visible fran at least some of- the Point Pleasant residences. hirther, in order to transport water frun the purphouse to the BradeAw Peservoir a 72-inch diameter reinforood concreta pipe.must. crusantho Ibl.ma Canal, which will necessitato the tanporary closing of a secticn of the Canal and a right.-of-way across stato land.

The appellants ass 6rt that Dat violated its fiduciary duties as a trustco

. . t s of the Roosovolt Stato Park by granting a right-of-way across the Canal, and that DER violatrd the spilt (at least!) of the applicablo statuto allowing DER

.to grant rights <>f-wny acrosa stato land.

We woro initiall'y forplaxed with DUI's treatmmt of tho impacts of the pumphouse. It is truo that ced.ain officiuln'of DER cxamined a full not of drawingsandartisticrende.rIngashowinfolovationaandlandscapingplansfor

'the Poirm pleasant purphmlo. But the onlyyeviewim official with any traco ,

cf expertico ,in this arca, M:. John Nuns, annarted that ho had not considered j i

tho aesthetic or scenic impact of this pm@so on uncra of the Roccovolt Stato Park, becateo the pumphouso was located outsido of the Stato Park (Tr. 2010-11).

' ?urther testimaiy, however, danenstrated that DER officials also rolled upon reviews of the pumphouso by officials of the Pmnsylvania !!1storic and Muscun Camission and the Corps of Enginocra and tho itC. Wo think that it is appro-priato for an agency to roly upon the expertino of its sister agencies whero thr) aro functioning within the recpo of tJmir implecenting legislat. ion. Indcal, thAs ceans to be tho !ciding c,{ nuch cases an Dolcurro Conty Comudty Collvp

p. Tom, 20 Pa. Commcnntith Ct. 335, 342 A.2d 450 (1975) . !!cro, as wl&h reprd

-125-

. - - _ _ _ _ _ -__ _ - _____ __ __ _ _____ _ _ - _ _ _ _a

to archeological resources, DG relied upon the above-referenced Fisnarandtzn of Agrconent, which bound IMA to protect the Point Picasent Itistoric District by:

(1) autznitting designs, plans and specifications for the Point Pleasant Ptraping Station and its boundary fencing to the Stato IIIstoric Preservation Officer; and (2) developing a landscaping plan to minimizo the visual impact of the planping station and the boundary fence, consistent with the arca's natural cetting.

Again the appellants introduced no evidenco, let alono expert evidence, that the above neasures are inadequato to minimize the archeological, scenic and historic impacts of the pt T house. Wo find, thereforo, that they are adequato.

4. Grant of the Right-of-way Appellants also attack Dm's grant of a right-of-way across the canal pursuant to tho Adninistrativo codo of 1929, as amended, Section 1926-A. Da agrees with the appellants that S1926-A requires that the casement in not only in the public interont, but that this public interest outuolgh any permnent

~

dolotorious offect on Stato land. DG does not agroo, however, that DG must make an explicit, prior, finding of paramount public interest beforo granting an ossement. Instead, Dm's officials maintained that any necconary findings were made inplicitly by the grrat of the casment in question. Marcover, D m asserts, and the uncontradicted evidenco shows, that tho right-of-way will causo no Imrmanent doloterious offect on Stato land. Dm's Wilson Oberdorfor pointed out that thoro have been dozona, if not hundredn, of breachos in tho 60-milo long Delaware Canal, and that neither tho historical nor physical intnJrity of t!m canal han been undonnined by the 127 plun utility cronnings.

Again, in the crrmleto abacnco of any tontinony challenging the precautions described by Dm'n officiala, wo cannot holp but find that Da han nondated all act. ions noconnary to minimiro the inpact. of twA'n preponed pipolino cronalng on tho Dolawaro com11.

-126-

. .y, j.

y. >.r: s 3 ~

9 . l*' .

.'x_r ., .

.~ . .  ; ,, , , ,

s s ,

, (L Dowristream Miter Quality LTpacts

.. 'N s ,,

At its maxinua rate of yrlthdrawal, the Point Pleasant punpstation is projected to withdraw 35 bdlNon gallons (ngd)'a day of water frcm the Delaware River at Point'P16asant. Of "tnis total:withdr wal, 48.8 agd is targeted for the m .

s e , .

NWRA, the remaicder being targeted'for PECO. Msile 95 ngd of water ceans (and

, =

Lis) a substantial amount of water, this withdrawal represents -no more than 5% of T

the normal low flow of the Delewara at Treatan (3,000 cfs) .

'1he amount of Dc3 mare River ficw reaching the Delaware Estuary has inwrLint water' quality impacts on the Estuary. Because of population density -

' and industrial activity, tiie DelewareEEsimary receives a substantial load of pollutants, which tends to cleplete thre dissol[ed' oxygen in Ehe Estuary. Historically, as warm weather arises thesdissolved oxygeNlev:21 in the Upper Estuary falls s e below the level of 4 ng/1; atithis ;cint the American Shad no longer will inigrate upstream past Philadelpitia to their i % y grouniis in,the Delm e Water Gap

- - ~~

, area. This dissolsed oxygen blocit is controlled b'f flow 1evels alii veter tsuper-  ;

ature and is therefSre ltite variabie, both in te2ms of length alcng the river ~

~

i and duraticnal exfend. Ail partied dires that the orfgenated Delaware River water reaching the Estuary' helps,to raise and maintain the dissclved oxygen level in the Estuary,Jso th$t the removal of a~significant amount of Delaware River

. water would exacerbate' the~ diccolved 'axyyh?problrin. -

Fresh'Dalaware River water'also is necessary to kcep#the tide-affected Delaware Estuary (which.is the. site of the water intakes of the City of Phila-delphia) frcm beamting too salty. ('Ihis. latter phencnenon is caHed salinity '

intrusion.)

According to the Delaware River Basin Ccmnission (DRBC) the 3,000 cfs

, flow objective can hx: maintained by ralaws frx1 upstream reservoirs during almost all conditions, includin2f drought conditions equal to those prevalent 121 '

. s .

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, PECO's DRBC Docket preclud3s PECO frm withdrawing water unless an equal anount of water is released frm the (yet unbuilt) Merrill Creek Reser-voir which is to be located upstream frm Point Pleasant on the NI side. As to the NWPA 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 frmi various sewage treatment plants, and will thus return to the Delaware Estuary.

'Ibe impacts on dissolved oxygen levels and salinity intrusion at a 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' =vb114ng. 'Ihe Delaware River Basin Cmmission has the legal authority, the expertise, and the resources to perform such analysis, and it is custmary for DER to rely upon the DRBC to conduct such analysis. The DRBC has studied 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 l

dissolved oxygen levels associated with low flow periods, DRBC concluded in its Ievel B Study that "[d]ownstream low flows on the Delaware River would not be significantly affected" by withdrawals at Point Pleasant. Moreover, the DRBC concluded as a result of =vb11ing that even under extreme low flow in the Delaware River (2,780 cfs at Trenton) the dissolved oxygen in zone 2 (frm Trenton to Philadelphia) would be reduced by no more than .08 ng/l', and that

-128-

.s

, *1

. a.. .

further downriver the reduction would be less than .08 ng/1. These reductions were characterized by DER's water quality planning chief, Charles Rehn, as ,

~ being'virhm11y liipercmptible.

Similarly, DRBC and DER concluded that salinity control in the Delaware

' Estuary would not be exacerbated by withdrawals at Point Pleasant because: (1)

salt water from the Delaware Bay is repelled by all flows of fresh water entering

i. the Estuary above River Mile 90; (2)- the Schuylkill enters the Delaware Estuary i

above River Mile 90; (3) 90% of the NWRA withdrawal at Point Pleasant will be returned to the nalmm_re; (4) PECO withdrawals at Point Pleasant pose no signifi-

^

' cant ooncern for salinity when the Delaware flows at Tredu c equal or exceed 3,000 cfs; and (5) PECO ciuawi withdraw water at Point Pleasant below the 3,000 cfs i

flow level without discharging an equal amount of water into the nal==re (frun the Merrill Creek Reservoir) . Indeed, DRBC determined and DER concluded that salinity objectives can be met in the Delaware Estuary with releases frun 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 scue (if not all) of the above conclusions by DER and DRBC, but on this issue, as on others above, the argssnents and objections of counsel are not larpily sufficient substitutes for evidence. The appellants presetux! no ntraerical or scientific evidence on either the dissolved oxygen or the salinity issue (as W to the expression Jof concerns). They, as third party appellants of a permit issuance, bear the burden of proof, 25 Pa. Code S21.101(c) (3); Czambel, Sr. v. DER, EHB Docket No. i 152-G,1981 EHB 88; Doris J. Baughnan v. DER, Docket No. 77-180-B,1979 EHB

-1.- Thus, in the absence of any evidence on the part of third party appellants, and in view of the prestaption of regularity which pertains to actions of adttun-I \

-129-

n-istrat*ive agencies like DER and DRBC (Varren Sand & Cravel u. DER, 20 Pa.

Ccmmonwealth Ct. 186, 341 A.2d 556 (1975)), we accept the above conclusions of DER and DRBC that the proposed withdrawal will not significantly affect either the dissolved oxygen or salinity levels in the Delaware Estuary.

E. ALTERRTIVES

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 frcm it in the following pages. We start, as does the Environmental Assessment, 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 least no need greater .

than that which can be addressed by water conservation) for the NWRA part of the

, project. In this regard DER found that (Environmental Assessment, pp. 23ff):

Bucks and Entgcznery Counties face together a regional water supply problem. For the past three W as, the people of this region have relied on increasingly intense develognent of groundwater to provide both public and private water sup-plies. 'Ihe Department's and the Delaware River Basin &mic-sion's studies in recent years dev -nt growing probleus created by over-reliance on grourdwater in the region. The Pennsylvania State Water Plan, Ccmprehensive Water Quality Managenent Plan (CONAMP/208), and DRBC Ievel B Study, as well as several recent water supply cases in Montgcmery and Bucks Counties, strongly indicate that intensive public and private groundwater withdrawals in substantial portions of Bucks and &ntgcmery Counties have oversubscribed or threaten to oversubscribe the resource.

The most recent study of groundwater conditions in the region was ccupleted in 1982. This report, prepared by R. E.

Wright Associates, Inc. as part of DRBC's cxxuprehensive groundwater study, refines ard confirms the assessments of

, withdrawal rates and densities, ccmpared to recharge rates for the Triassic aquifers serving the populated areas of Montgcmery and Bucks Counties.

-130-L

y Current groundwater withdrawals, especially in the Triassic rock formations, 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.

Palmlations by DER and DRBC indicate that in the Brunswick, Inckatong, and Stockton formations of the Triassic Iowlands, the normal year recharge rates average sane 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 nust' be capable of providing reliable service in all kinds of years.

As noted by R. E. Wright Associates, like annual precipi-

,tation, the annual groundwater recharge for a wat&shed varies p

_ frun 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 anong its users.

Groundwater may justifiably be more conservatively managed using a lower rate of annual recharge as a guideline for withdrawal.

Fran a water supply perspective, this area must b'e ewially concerned with dry year recharge rates, rather than normal rates, because of the relatively quick reaction of Triassic formation groundwater to low precipitation.- In -

1976, for exartple, a short period of low recharge resulted

! in substantial drops in groundwater levels, diminishing i public water well yields by 30 to 40 percent, while leaving

sane haneowner wells high and dry.

L If previous dry periods were not enough, the drought of-

.1980-81 clearly dramatized to the people of Bucks and Mont-gamery Counties the insecurity and vulnerability of their water supply systems.

i L Rainfall deficiencies began in February and March of' 1980 in many areas of eastern Pennsylvania. Problems mounted

' shwlily throughout the year and by February of 1981, 85 public water systems. faced severe shortages. Under h .ymcy

Proclamations and Executive Orders issued by the Governor,

44 systems serving over 120 municipalities adopted full ra-

,- <tioning plans - mandating cuts in water use by 25 percent-

[ or more, and reducing residential allotments to a mere 40 gallons per p& acn per day. Other water systems were forced

~

to turn to energency supplies, such as quarries, strip mine pits and overland lines fran distant streams and lakes, to meet essential needs.

Bucks and Monlywrzy Counties were among the nest severely affected. Eleven public water suppliers in the two county region wer forced to impose restrictions on all nonessential

-131-l L-

> =

water use. Several municipalities lost wells because of

' ICE contamination and others faced greatly reduced water levels in their wells.

Dry periods of varying degrees of severity are not an infrequent occurrence in eastern Pennsylvania, and in an area serviced only by a highly subscribed groundwater table the result can be clohilitating. In the Triassic formations dry year annual recharge rates are much lower than average year rates. For typical water sheds in the Triassic forma-tions, based on the water budcjet for the dry year 1966, R. E.

Wright Associates calenlated annual baseflow/ groundwater recharge rates of 146,000 - 321,000 gpd/sq. mi. The 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 Montgmery and Bucks County Area. The Wright study further found that the 1-year-in-10 annual recharge rates to the affected aquifers is excaulul by current groundwater withdrawals over a relatively large portion of Montswery County, and is generally pervasive throughout the DRBC designated Groundwater Protected Areas.

'1hese witheirwala in excess of recharge result in lowered water tables and groundwater mining, learling to periodic water supply crises, interference with private hmeowner wells, and depleted stream flows. In-deed, the imhalanced conditions of groundwater use and .

relinhle supply have led DRBC to designate major por-tions of Bucks, ItnLywr.:ry, and Chester Counties as a 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. !bre careful review is imposed on all applications, requiring detailed pump tests to assess potential impacts on other uses, stream flows and the enviro m t. Conservation programs are required of all groundwater uses. Most important, no new cr expanded withdrawals will be permitted by DRBC if, as the result, the total of all withdrawals in a ground-water basin or snhhn=in would exceed the " withdrawal limit" of the basin or suhhnmin, based on the recharge rates available during drought years.

'1he Department in its State Water Plan has reccm-mended that the water suppliers in Bucks and Montgmery Counties that show an existing or projected yield deficit encourage and support water conservation programs among their custmers. Even with water conservation, however, supplemental and replacement supplies _of water are needed to serve current and future demand in the service area of the Neshaminy Water Supply System.

-132-t

p'~

he.: T As part of its evaluation of NWRA's water allocation pemit' application, DER condJCted a detailed review of

~the public water supply needs in the projected area. In ,

, that assessment, the Department found that projections by the State Water Plan, the Delaware Valley Regional

- Planning Cr==iasion, and NWRA all agreed that there is a clear and pressing need for additional and supplemental water in the project area.

Presently,.the planned service area of the Neshaminy Water Supply System is served by twenty or more public

- water systems which depend alnost canpletely on wells as their source of water supply. Many people still depend on private wells. The result of the developnent of the area is a growing demand for more water just at the time when the existing wells are drying up or losing yield because of declining groundwater tables caused by over-ptmping, paving over recharge areas, and the installation of storm and sanitary sewers.

Within the pt W NWRA service area, the State

i. 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 fran 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 '

. supplanental. water need of 23.1 mgd. By the year 2010, W RA projects a supplemental or replacement water need

( of.39.1 mgd. State Water Plan projects indicate this

'~

estimate may be conservative.-

The Department concurs with the DRBC forecast of supplanental water rwwk for the Neshaminy Water Supply

. System,. included as part of DRBC Docket No. D-65-76 CP (8) l (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 Depart-nent reconfirms its conclusion, made as part of the ap-l, preval of Water Allocation Permit No. NA-0978601, that i the allocation of 40 mgd for public water supply needs,

[ for withdrawal at the Chalfont Treatment Plant, is rea-l sonably necessary to provide supplanental and replacement supplies adequate to serve present purposes and future needs in the NWRA service area.

p, L

L e

i:

l -133-c

[-

u-

. . - , - - - - - - . . ,.n.+,, -n, - , , - -n n-n,-,-_,--,,r--,-,--+--., ,,, ,,, ,, -- ,-,-ea, ,, v,,n------- ,

)

Table 2 Forecast Supplemental Water Needs Neshaminy Water Supply System

~

Average Daily, mgd Maximum Daily, mgd Service Area or Agency 1981 1990 2000 2010 1981 1990 2000 2010 Central Bucks County 2.7 4.9 5.9 7.3 2.7 7.3 8.9 10.9 C:ntral 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 Water Supply Needs I3 5 TC9 ET HH T5 3 B .T TI 7 44.4 2-Water Supply Withdrawa1 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 Department is convinced that the citizens of Montgcmery and Bucks Counties cannot continue to rely almost exclusively on groundwater for private and public water supplies. A balanced use of surface and ground water sources (otherwise known as " con-junctive management") is necessary to protect all water users in the region.- After some 15 years of study by the counties, the Department and the Dela- -

ware River Basin Carmission, DER has concluded that the Heshaminy Water Supply System including the Point Pleasant Diversion-Chalfont Water Treatment Plant Project is the most viable solution to provide conjunctive management of ground and surface waters capable of serving the citizens of the region.

More detailed information on these needs can be found in the report prepared in conjunction with NWRA's Water Allocation Permit PA-0978601 and the Statie Water Plan reports for this portion of the State.

The appellants did disclose sane inconsistencies in yield deficiencies reported to DER by certain public water supply canpanies including those relied upon in the development of Table 2 above, and appellants did raise sane questions regarding population projections upon which future need was based, but overall the challengers canpletely failed to negate the weight of the evidence, vkiich

-134-

l

. w

. o. . .

clearly supports a finding that before 1990 (let alone 20101) there will be a .

need to supplement groundwater withdrawals as a public water supply source in I.

central Bucks and central Montganery Counties.

As to the eft'iciency of water conservation, we yte that DER assuned that reasonable water conservation measures would be followed, but that an additional source of public water would still be W .

I Water Allocation Permit No. NA-0978601 and the Policy arsl Melalines for subsidiary allocations require both ,

NWRA and any retail water system receiving water frcm t'.e Point Piment Project to implement conservation measures on a continuous basis. NWRA and the retail systems HUst (

subnit and inplement an adequate program to encourage water conservation by residential, ccmnercial, and indus-trial custaners; and further must implement an adequate, systenatic program of monitoring, repair, and preventive I 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 DRBC have considered that reasonable water conservation measures and practices will be followed. Without a con-tinuing conservation program, denand in the area to be ,

served would be even higher.

Water conservation is a necessary part of the solution to problens in central Bucks and central Montganery Counties, but it is not a panacea. 'Ihe effectiveness of water conservation is limited by the type of residential and cannercial uses served by the public water systens in the area. Ccmpared to residential per capita uses in i

the mstern United States, which often exceed 300-400 gallons per day per person, total per capita use in the IWRA service area is relatively low (100-130 gpod) .

Discretionary water uses, such as lawn watering, are not getuninant.

i

-135-

In order to effect conservation savings, basic changes in water-using appliances, processes and habits must be evolved. Because of water pollutica control costs and regulatory requir ments, many businesses have already impleented changes in their processes to mini-mize water use, and further reductions are likely to be more difficult and expensive. Residential uses may be rdM by utilization of low-flow plmbing (toilets, shower heads and faucets). While such conservation plmbing may be inplemented readily on new construction, retrofitting of existing h mes will take many years.

The net conservation effect will not be instantaneous, but will evolve over time.

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 most sensitive to shortages and the need to conse;;;ve, a savings of only 10-15% in average total public water supply use may be achieved.

This alone is not enough to solve the Bucks-MonWwery water supply probl e.

'Ihe appellants intrMiM sme evidence that in individual residences water conservation in excess of 10-15% can be achieved. Indeed, one of appellants' witnesses testified about a cmpletely recycled systs which eliminates sewage outflow and drasf.ically reduces water usage. However, appellants intrM M no t evidence disputing DER's findings.which are based upon the aggregate of existing and pwevsed custmers.

DER-has sunmarized its own position on water conservation as follows (Environmental Assessment, p. 67):

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 c mpanies in its State Water Plan. However, the Department realizes that, at best, this alter-native offers only a short-term partial solution to the proble.

-136-

We believe 'this statenent of DER's represents an accurate evaluation of the actual facts about water needs in the Bucks and Mon %sy Counties area. '1he appellants have not cane close to meeting their burden of showing water conservation could be~a feasible alternative to NHRA'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 MBA its permits.

I- lb. Further Develognent of Groundwater Amallarits next contended that any additional public water needs could be met by further exploiting groundwater in the area. DER's position on this p

9 issue is -(Envim eital Assessment, p. 69):

In the ahaarice of a concerted regional effort to develop and distribute surface water supplies, and to effect conjunctive water management, the most

, likely structural alternative to meet public water supply denands would involve further develognent of already stressed groundwater resources.

As a} ready noted, DER ~- along with nost of the other

• agencies responsible for water managenent in this region -

believes that this area is already overdependent on ground-water. Clearly, the problens associated with the recent drought illustrate the valiriity 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 stener) , and, in turn, reduced assimilative capacity, higher wastewater treatment

. requirements and costs, and adverse impacts on aquatic p ecosystans.

t-i

If anyone doubts the problens associated with over-L , reliance upon, and empetition in, deval frmar t 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 Kadcu

ate to serious rainfall shortages, but far less than a record drought condition. Nevertheless,

-137-

by March 1981, over 4,000 dmestic wells in eastern Penn-sylvania had gone dry as a result of this drought event.

Four thousand families found thmselves without water for essential drinking, sanitation and other dmestic uses.

'Ihe costs of replacing these supplies represented an eco-nmic loss of over $6.7 million, borne primarily by these h meowners. 'Ihe area surely does not need a record drought to make the point more clearly. -

Theoretically, it might be possible to serve the nore developed portions of Bucks and Montgmery Counties by in-stalling a wide ranging system of wells in the rural areas, with water lines conveying groundwater to the already over-pW cmmunities. Even if econmically feasible (which is open to sme doubt), for enviromental reasons the De-partment would express serious reservations regarding such a schene.

In order to develop a well system, yieldinc 40 ngd public water supply capacity equivalent to the Ibint Pleasant Project, a large nunber of wells would have to be dispersed in a pattern which extracts water efficiently, but avoids aveaading the recharge rates of the involved aquifers. Even assuning that normal year recharge rates 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 developnent project would involve a minimum of one or more wells in each of over 65-130 square miles. Based on water budgets in a dry year, as calenlated by R. E. Wright Associ-ates, sme 120 to 274 square miles would be required. (To serve the cooling water needs of the Linerick plant, an equivalent well project would be involved.)

Unless such a well systen were dispersed far frm the existing areas of heavy groundwater use, it could lead merely to further exacarhation of the groundwater mining problen.

Groundwater mining can occur whether the withdrawals are made by a few wells, or many dispersed wells; the problen arises whenever the total amount of groundwater withdrawals in an area exceeds the recharge in the area. In portions of the Monbjway and Bucks County region, groundwater withdrawals already approach or exceed recharge rates. 'Ibe cmmunities 4-diately adjacent to these areas are developed in large part, and also primarily rely on groundwater through h e eowner or public water system. wells. Placing additional wells in these nearby cmuunities to serve the existing " ground-water mining" areas is likely to cmbine with local uses to sinply spread the " mining" areas.

-138-

. . _ . = . . - -- - - . . - . - . - . - - - . - . .. _ .. -

Je '

g

-e The R. E. Wright Associates groundwater study plotted the density of current groundwater uses in the area. Based on the use densities and recharge rates of local aquifers,

• in order to avoid interference with neighboring uses, a supplanantal well systen to serve the needs of the Lansdale, ,

Hatfield, Warrington and Wa m %ister areas would have to be  !

sited at least 6 to 10 miles fran those ocmnunities, in undev=1 W areas or in.less developed portions of'other nunicipalities and other water outpanies.

Placing a system of wells in more remote rural areas would naturally involve install Mg an extensive series of water transmission lines through now undeveloped lands. But placing a wideoroad network of water lines in rural areas would provida an attraction for suburban developnent in those rural areas, nost likely leading to the same ground-water overuse problens now being experienced.

En if a dispersed well systen did not lead to ground-water mining, it is likely to create problems of local in-terference with haneowner wells. Most haneowner and farm wells in rural areas of this region are relatively shallow (fran 50 to around 200 feet deep). New wells developed to serve subdivisions or comunity water supply systems are likely to be M and more powerful than the typical

haneowner well. As'saen in a series of recent cases in Montgau.y, Bucks, Chester and Iehigh Counties, such developnent may create cones of influence which draw .

down water tables in nearby shallow wells, causing interference and/or total depletion. The more ground-water is relied upon as the almost sole source of supply, the more prevalent these problems are likely to 6- .

The Department is equally dis + W by the suspect that dispersed well develognent would tend to attract L and encourage a checkar+nani of subdivision developnents, with attendant. adverse environmental, social and economic

. i w ts. '1he nest likely sites for supplemental well fields to serve central Bucks and MonLgingy Counties fall within areas of prime farm lands. Both counties and the Ccunanwealth -

p have expressed policies to protect and conserve these valuable L soil and land resources. Encouraging more groundwater develop-ment in rural areas as a solution to water shortage problens would tend to undermine these prime farmland protection policies.

4 Thus, as an alternative solution, further devalq--nt. of

~ the groundweter is unsatisfactory fran many perspectives, and the Department finds it an unacceptable option for this region.

i

. ' 139-t

'Ihe only issue raised by appellants regarding this alternative was the possibili_ty of locating public water supply wells in rm ote rural areas to supple-ment existing groundwater withdrawals. DER, in the section of the Enviromental Assessment quoted above, has addressed this concern. In the opinion of this Board DER has satisfactorily explained why the rural well solution is not an oppsve r late alternative, lc. Utilization of Lake Galena

'Ihe next alternative to be analyzed is the use of Lake Galena. DER's  !

assessment of this alternative follows (Envirewental Assessment, p. 71):

Pr-la Juve 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.

Lake Galena was designcd 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 recoul would be 9 mgd. Accounting for the mininun continuous conservation release of 1.5 mgd re-quired to protect downstream areas on the North Branch Neshaminy, the net yield of Lake Galena is 7.5 mgd. It

, is assumed this water would be picked up at Chalfont, treated and distributed under arrang m ents and conditions similar to those contenplated by the pivpused Point Pleasant-Chalfont project. Reservoir.si.utage etabined with the natural flow of Pine Run and the North Branch Neshaminy, would yield appumimately 8.5 ngd at Chalfont.

As noted previously in part 3.A..of this repusi.,

the supplemental average daily water needs in Central Bucks and Central Moni;gi=sy Counties totalled 14.9 mgd in 1981,. and are expected to rise to 20.8 ngd by 1990. -

Lake Galena alone could not serve the public water supply demands contenplated within the service area of the Neshaminy Water Supply Systen.

The eb.K=ge yield of Lake Galena might serve a portion of the NNRA service area, or (as contenplated by the erveused project) serve a portion of needs in the entire service area. Considering the mininun flow requirements in the North Branch Neshianiny below Chalfont (averaging 3.5 mgd), Lake Galena alone would barely meet the 1981 needs of Central Bucks County (2.7 mgd + 3.5 mgd, or h total of 6.2 mgd). By l 1990, the projected average daily supplemental water supply demand of 4.9 mgd in just Central Bucks County, coupled ,

-140-E _ _ . _ . - _ _ _ _ _ . _ _ . _ . _ _ . _ _ _ _ - . _ . . _ . _ __

with the required flow rates below Chalfont - totalling 8.4 mdg - would avnaarl the net yield of Lake Galena and just barely be uive,.ad by the cambined yield of the reservoir

. storage and natural stream flows. '1he canbined yield of Pine Run and the North BI.anch Neshaminy watersheds (in-cluding Lake calana storage) would clearly be inarl=Iuate to serve Central Bucks County needs beyond the year 2000.

Use of Lake Galena alone, without the Point Plaaaant i Project, would engineer addtional drawdowns of lake levels and fluctuations of pool elevations, eapacially through suttner months. Certain recreation uses at Peace Valley Park would be sacrificed to meet water supply dernands, and fish spawning areas in Lake Galena would be eliminated.

. naranaa of the inadequacy of Lake Galena to meet the mhlin water supply demands of the Neshaminy Water Supply System service area, the inpacts and costs of this alter-native naast be considered in conjunction with one or more other projects required to address the entire regional water supply problen.

The ===11 ants did not deny the inadequacy of Lake Galena, alone, to supply even the near future needs of Central Bucks and MonWwsy Counties.

Appa11 ants did urge that Lake Galena should be used along with other sources of water to supply these needs. As NWRA points out, however, Ibke 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 IER's issuance of the 140RA permits was an abuse of discretion.

, Id. ' Utilization of Iake NOdamixon Use of Iake Nockamixon as an alternaitve to the instant NWRA project L also has been y1.vycsed. On this subject DER writes:

l ~

Suggestions have been made that a direct withdrawal I fran the State-owned Lake Nockarnixon be used in lieu of a i- diversion at Point Plaaaant, as the source for the NWRA i

water supply system. Since the Department of Environmental Resources constructed and operates this facility, it has same knowledge and views regarding this option.

l 141-

.ww w y-. e- -- ----. -.-------mw -ww---,w-, -e-~vy e -,W--w aw-, ,,, e-9--c--p.- .-,.-.,,.r-c,eoy,--.g.e-me. e--g.--+---,-a---- .

. gig,-g--,,q--.---.+<+,-p-p--,-y

When the Department constructed Nockamixon Reservoir, storage was included in the reservoir for long-term future water supply needs. However, DER developed the project  !

with the understanding and plan that it would be operated i as a single purpose recreation facility until at least the year 2000, before any water supply would be utilized. Under this === tion, the recreational _. facilities along the lake were designed to =---- Ste a five-foot drawdown, which is only slightly greater than the normal drawdown resulting frun low flow releases and evaporation. Any water supply l' usage would cause nuch greater &=*wis, necessitating the

, redesign and modification of these facilities, in addition i to substani-ially reducing the recreational ~ usefulness of

- the lake. In light of the fact that Lake Nockamixon u d 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 ut-ilimi for public

-water supply, a direct diversion frun the reservoir would not be the most efficient mode of operation. It would be preferable to use Lake Nod aulxon in conjunction with a

! downstream diversion on the Delaware, such as the p.vgi:,ed 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 on 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 rmiarl.

I' .

There is an additional disadvantage to a direct tap-off of Iake NocP= min. 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 rapairs. It would be extranely hard to take the. reservoir out of service for maintenance if it were to t+,--- the direct and sole, or

. primary, water source for the entire NNRA systen.

In stmmary, DER'cannot erdu. e the use of Nockamixon e asservoir for public water supp]y at this time. It is serving i:

'a large p1blie denand for recreation, while providing sczne backup insurance for drought protection to the Delaware

. Estuary. In addition, the Department notes that.special L legislative authority would be needed for DER to sell water frun Nockamixon or any other State-owned reservoirs.

. -142-

I a: . l i

The appellants argued that if Lake Nodmui.xon can be used during drought to' augment Delaware River flow, why can it not be used as a water supply source.

. DER answered this argunent, to the satisfaction of the Board, in the above quoted section of the Envimmeuull Assessment. Apiy11 ants also atts pted to show that DER had been considering certain releases for Iake Nockamixon to support recrea-tional boating on the Tohickcn River. However,.the only thing clear about these negotiations is that they did not conclude in any agreement. Also, a y 11 ants intrMM no testimony showing that Lake Nockamixon could supply all of the water supply needs of Central Bucks and Montgomery Counties. The Lake Nockamimon alternative is rejected.

le. Withdrawals From the Schuylkill River The withdrawals discussed supra were concerned mainly with the water  ;

needs of the central Bucks area. The appellants also raised a nunber of alter-

< natives relating.mostly to MonWundy County Wm. The first of this,latter

• ~

r set of alternatives, namely the use of Schuylkill River water, has been addressed

, .-by DER as follows (Envirannental Assessment, p. 74):

Casnents have been received maggesting that McnWm.Ey County utilize withdrawals fran the Schuylkill River for

public water supply, rather than interconnect with the

NWRA system.

1 It must be recognized that Montgomery County has made a good faith effort to develop the resources of the Schuylkin River. Several comunities, including Norris-town and environs, derive their water supplies directly fran the Schuylkill, and others are now using groundwaters of the Schuylkill Basin. Philadelphia Snt=whnn Water Capany has intensively developed the Perkianen Creek ,

J watershed, via its Green Lane Panarvoir and' intakes near

[ the confluence with the Schuylkill River.

l In fact, the Schuylkill River is the most intensively used wabwsis:d in the entire Cmmonwealth, and its resources are already used and reused to close to their practical limits. The City of Philadal;tia now withdraws an average of 180 mgd fran the Schuylkill for municipal water supply.

_ However, the Schuylkill's record seven day average low 1 j flow is .200 ngd. The lower Schuylkill is heavily indus-  ;

l

-143-

_ .- - = . - . . _--

7 trialized, while the upper 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 ec Adi:ntial conflicts among agricultural, power, nunici-pal, industrial, and other uses during drought oorditions .

are obvious.

Unfortunately, vygw.i. unities for developing further storage in the Schuylkill. watershed are extr eely 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 and the DRBC Ievel B Study indicate that technical, environ-

' mental, economic or social conditions virh=11y preclude developnent of significant new surface water storage fa-g cilities in the Schuylkill Basin in the foracaaahle future.

Because of the already intensive use of the Schuylkill, we nust conclude that further significant withdrawals for 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 Nild =

of total diaanived solids and deteriorated water quality.

Little more needs be said cu h eing this Schuylkill alternative.

The appellants empletely failed to rebut DER's findings with any testimcny.

The Board adopts DER's findings (and rejects the appellants' contentions) on this alternative.-

If. Other NWRA Alternatives ,

h other alternatives-to NWRA use of Delaware water--which have been l

m advanced but'have not yet been diamased in this Adjudication include:

(1)

L L develognent of Evansburg Reservoir; (2) import of Susquehanna River water; (3) construction.of. an independent ManWemu.y County water supply; and (4) use of ~

the' City of Ph41mdalphia's water supply.- We see no reason to burden this al-L L ready excessively Icmg Adjudication with quotations frcm DER's Environnental-Amaaaan=nt 'of these alternativeg which bear primarily on MonWomry County needs.

l' u

Suffice it to'say that DER gave serious consideration to these alternatives, and that the =p =11 ants offered no credible reasons to disagree with DER's rejections of these alternatives.

-144-

]

f Indeed, DER's analysis of the NWRA alternatives went well beyond the i

legal requirments 4= mal by DER's regulations and/or Article I Section 27 of the Pennsylvania Constitution. The Board has stated recently (CooZsp-'ing Township

- v. DER, Docket No. 81-134-G (Adjudication, Atgust 8,1983) at 47):

The Tbwnship appears to challenge this conclusion

[that there has been cmpliance with the second prong of the Payne v. Kassab test] with the con-tention that DER could have found 'other more '

suitable sites removed fra the public'. But the Tbwnship cites no authority holding that i under the second prong of the Payne v. Kassab

• standard it is DER's affizEative duty to seek -

out alternative possibly more suitable sites than the site Higbee~ originally proposed. Al- l though the holdings of the Pennsylvania courts i on this issue are not empletely clear, it does '

see that DER mly has the duty to minimize the l

'irmediate' enviromental incursion, i.e., the i environmental incursion prr*M by the innadi- l ate project DER is evaluating. Swartwood v. DER, 56 Pa. Orwlth. 298, 424 A.2d 993 (1981); Mignatti

v. DER, 49 Pa, Orwlth. 497, 411 A.2d 860 (1980); '

-Delaware County Comunity College v. Fox, 20 ~

Pa. Orwlth. 33S, 342 A.2d 468 (1975) . Iri fact, . l requiring DER to perform its own search for  :

alternative sites every time it receives a per-mit application would put an almost impossibly l heavy burden on DER. As the Township rightly l argues, if DER had the affirmative duty of finding  :

alternative sites, it hardly could rely on the  ;

l applicant's assurances that there are no superior  !

alternatives; such assurances actually were re- i l ceived fr a Higbee. A search for alternative  !

. sites might be DER's duty when the pv -Mi j operation is expected to produce serious environ- l mental incursions, but no such expected incursions  !

l have been shown in the instant amaal .

l  !# IRA's post-hearing brief, noting this language frm Coo 7 spring, supra, l argues (_at 271:

i It is apparent that the Department fully om-  !

plied with the requir ments set forth in Section 105.15(b)(2) of its regulations relating to con-  ;

sideration of alternatives. The Department fully i assessed, and in see cases reassessed, all viable

! alternatives, including all alternatives posited by l mpp=11 ants. That alternatives other than the al-

[ ternatives considered by DER could possibly have "

l i

-145-

v.

been considered is not cause for reversal, especially l in' light of this Board's recent pronouncement in Coolspring Township, supra.

!# IRA's cite to Coolspring is not canpletely apposite, because in the instant

==ala '(unlike the situation in Coolspring) possible serious envirorsnental incursions have been identified, and have been the basis for the renand to TJR we are ordering. On the other hand, the above quotation frcm NWRA's post-hearing brief correctly points out that DER did affinnatively examine a very wide variety of suggested alternatives to the N--:*3 project, despite the

} very heavy burden this examination 45-:*1 on DER. The appellants have not shown that DER overlooked alternatives which reasonably might have been expected

.to' mitigate the aforesaid enviivmeital incursions requiring remand. For the

- one possible % Lion to this last assertion, namely the possible erosive impacts on the receiving streams,~we have ur. h ad DER either to reduce the erosion f to insignificance or to halance' the need for the project against the minimized erosive inpact (mih aation III C 1 supm) . 7 I

In short, er.u.=pt possibly for deficiencies involving erosive effects  :

i on the receiving streams (which deficiencies will be renedied on remand), there  ;

has been no showing-in the light of Article I Section 27-that DER's issuance l

[ of the permits was an abuse of discretion for failure to adequately examine alter 1atives to the !#fRA portion of the Point Pleasant project. The same con-1 clusion holds for 25 Pa. Code SS105.14-105.16 which-in an apparent atternpt to guarantee CER ocupliance with Article I Section 27--do requL.e that DER take j

. affirmative steps: (1) to minimize the enviteseital incursion; and (2) to balance the res h 1 minimized incursion, if still significant, against the  !

expected benefits of the project. )

-146- * '

4 i-OE --

l 0 .

2. PB00 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 frun Limerick on Tulpehocken Creek, a tributary of the Schuylkill, as a source

for cooling water-for Limerick. We are convinced frm a careful review of this record that Blue Marsh would'not. be even a technically feasible alternative to prwide cooling water to 1 th Limerick units.

thether 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 nust be released at all times frm Blue Marsh-to h= serve the aquatic canunity downstream therefrm on the Tuhum-d=1 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) 4 low flow in Tulpeim:d=1 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 technical feasibility of Blue Marsh.

The next issue regarding Blue Marsh was whether DER should look just at the 8,000 acre-feet reserved in Blue Marsh for water supply, or whether it 4

should also look at the 6,620 acre-feet of storage in Blue Marsh reserved for

water quality augmentation. This is in1portant because in an average year Limerick would need a cooling water supplement on 146 days, which equates to a need for 9,344 acre-feet. Thus, 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 which is reserved for the Western Berks Municipal Authority). If, on the other

-147-

.~

hand, the entire 14,620 acre-feet were available, Blue Marsh might be sufficient to satisfy Limerick's needs.

If the Blue Marsh release were given to Limerick, however, up to 21 mgd of this flow would be i==diately consunptively used at Limerick (assuning full operation of one unit); thus these 21 mgd would not be available for main-taining flow in that portion of the Schuylkill downstream frczn Pot':stown.

- Although we clearly urdeu:st.and the. desire of the appellants to avoid the Point

. Plamaant project, we very nuch aanaciate that it is DER's duty to protect the lower reaches of the Schuylkill. Therefore, we agree with DER that even tech-nically the Blue March Reservoir is not a viable alternative to PICO's premaala for Limerick cooling water.

Further, there are many legal i=w14mants to the use of Blue Marsh.

Blue Marsh is owned by the Army Corps of Engineers, which operates the Reser-t

- voir in cucparation with the DRBC. Thus the DRBC would have to authorize the useof'BlueMarshforkdmerick. The reasons why such authorization is most unlikely are succinctly da w ibed by Mr. Weston, who is not only a DER official but also is Pennsylvania's alternate maniasioner on the DRBC.

In addition, even if the DRBC permitted Limerick to use Blue Marsh, and even if this were a technically viable solution, it would still not be an acceptable alternative given the requirenent in PEOO's DRBC Docket that PECO

. cannot withdraw water frczn the Schuylkill for cooling water purycses when the Schuylkill.'s flow at Pottstown falls below 530 cfs (for one unit or 580 cfs for both units). The testimony of DER's witness, Stephen Runkle, that Blue Marsh (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 drought years was not contradicted.

Indeed, 5 times as much water would be naadar1

-148-

Finally, we note that recreation is one of the prime purposes of Blue Marsh, that Blue Marsh has'a beach and a boat launching area, that Blue 4

Marsh is' used continuously for recreation during the stumer months, that the recreational use of Blue Marsh depends upon maintaining a permanent pool level in the Reservoir and, finally, that withdrawals from 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 en the Schuylkill through the year 2000. Its future has been cmmitted to all would-be users of water downstream frm Tulpehocken Creek. Giving all of this water u

i supply to one r===tive user is not just poor water planning, it is sinply 2

unfair.

, Also suggested as alternate sources for Limerick are pwr,sei Red Creek and Mill Creek Reservoirs. 'Ihese puipwi sites have been r14='m==1

,as alternatives *to the unbuilt Merrill Creek Reservoir, but neither site is approved by the DRBC nor under construction.

'the appellants also suggested that it would be a viable alternative for the City of Phi 1=9alphia to transfer its allocation frm the Schuylkill to PB00. 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 mouth of the Schuylkill would not have this effect. In 4

addition, Mr. Weston testified that Philadalphia's allocation is not trans- -

-ferable and thus could not be transferred to PECO. His testimony is uncontra-dicted.

In stamary, 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-natives to PE00's part of the Point Pleasant project. -

-149-

- . , . ,m. .- , _ - . _ - . - _ _ _ - . . , . . - . . . - - _ . - , , , , . - . ,..,-.,,_.w.. ,,..,.,,ey_,,._-.--.-..,m.,-.,,,,,~....r,-m -

l J >

Before leaving the subject of alternatives to the project, we feel empelled to state our view that appellants' attacks--whether on the NWRA or the PEDO portiors of the project--display a disregard for the orderly process whereby public projects are planned, designed and constructed.

'Ihe testimony of several witnesses concerning water quality planning, e'speially of the extremely well-qualified R. Timothy Weston, shows clearly that the consideration of needs for alternatives to water supply projects is best -

addressed in the planning process.

'Ihe Point Plaamant project has been exposed to intensive planning since 1966-a detailed history of DER and DRBC reviews appears above. DER, especially in the State Water Plan, and DRBC, especially in its Ievel B study, reviewed the need for the Point Pleasant 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 made it abundantly clear that the time to challenge the planning process is when the plan is being formulated, not later (and collaterally) when it is being inplanented. Kidder Tounship v.

Conmonusalth, Department of Environmental Resources, 399 A.2d 799 (Pa. Otwlth.

1979).

Nhile we recognize that, unlike planning and permitting in the sewage facility arena, the present planning and permitting processes 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 fact that DER followed the r+3_----dations of the State Water Plan and DRBC's Level B study in approving the Point Pleasant project is strong evidence that DER'.s decisions to permit the project were reasonable.

l

-150-

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

l 1 .-

F. IAND USE 4-11=nts also challenge the secondary inpacts of the Point Pleasant 4

project. They argue that by providing abundant supplies of public water in areas where water is scarce today, undesirable growth would result. '1his argu-ment fails to find either factual support 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- -

dance in this rwa that the Point Pleasant project would induce undesirable (or even desirable) growth in Bucks and Mon % -xy Counties. .

{

Perhaps more IEWurmtly, under Pennsylvania law, local goverrnents-4 not the state-are assigned the right and power to determine the type and rate of growth to occur within their juricrif r-tions.

They, and not the state, are considered to be the trustees of Pennsyl-vania's p Alie natural resources in this regard. Cyril Fox, supm.

G. CINCwDDG REMMES Even with this lengthy Adjudication, we have not dealt kth all of the appellants' myriad of contentions and charges. However, we believe we have

j. dealt with any grounds raised by the a:=11=nts which conceivably could be of merit- in these ===1 a. - We therefore state categorically that any of appellants' l contentions which have not been specifically ruled on supm have been rejected l as wholly without merit.

• 1

t. In pahl=e, we have been given no urgent reasons to overturn DER's I

j issuance of a water quality certification to the Corps of Engineers, pursuant to 5401 of the Federal Clean Water Act (see subsection III A 2). That a p 1, which has not been specifically discussed supm, is unequivocally dismissed,  !

[.

independent of our ultimate resolution of the ' standing issue eliar'm=~1 in sub-I i section III B 1 supm.

-151-i l

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

[ )

h >

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-tions well might have beer. applicable; as our review of previous related actions in si*=artion III A 3 has indicated, the envirersnental inpacts-of the Point Plaaaarit project have been litigated..and relitigated in agency decisions and court rulings alike. As we have pre ,.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, inportantly, 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 inpact of erosion on the receiving streams, if the velocities in the East Branch or the North Branch cannot be IMM to 2.O fps; and (3) the requirement that PE00's permit be conditioned to call forth a cutoff when the Bucks Road gauge reads 125 cfs.

Except for our rulings that the pennits are remanded to be conditioned l in conformity with the requirements (1) - (3) just stenarized, the appealed-fran permits are upheld, as not- having been shown to be an abuse of DER's discretion."

7. 'Ihis assertion explicitly applies to the " Initial Decision" of PUC Mainistrative Law Judge Isadore Kranzel, Docket No. A-00103956 (Wr 12, 1983).

-152-

~

- .~

f/ 6 j

f' ,,- f

'j ,

, n, 's-

, j '

n.. .-

R *: }t  ;. .

.e

~

i CWCIDSICMS CF ixi -

~

.e ~ F. .. . .

p+ 'l - ;s fl . _ / ~

~. . . . ,

/- 1. 'Dwe EnvironmsitaLHearing Board has 'jurirdiction over the parties and subject matter of the consolidated =:==1 1^p,j_. , 2.

The Envim.._.tal Hearing Board's scope of review in this consoli-i.. .

s- ,.

dated appeal,i.s to deEendne whether the Depart 2nent of Envisu..s.tal Resources j

has coepited an abuse of Meretion or an arbitrary exercise of its duties and y

powers. . u

.+ .

x i( _ 3. Appellants Del-Aware Unihnited, Inc.,'et al. and intervenors

. Friends of Branch Creek bva the burden of proof in this =:==1-

4. A National Pollutant Discharge Elimination Systen Permit is M-quired for the divercion of water fran the Delaware River to the North Branch

'- Nashaminy Creek and to the East Branch of Perkiomen Creek.

5. TheLDepartsnent c.udoctly applied Subchapter G as q--Mi to Sub-

. chapter F of the Departraent's diapter 105 ' regulations in rev'iewing NWRA's and

- Pi!l00's applications to construct outt'all structures in the North Franch

-, Nahshaniny Creek' and the East _ Branch of Perkianen Creek. This Subchapter re-quired the Depart 2nent to ocnsider the erosive impects of these outfalls, t

6. DER's analysis of alternatives to the Point Plamaant project, as passentM in its Envb.u Stal As Assment, more than satisfied the require-ments of' Article I'Section 27.

.7. . The Departsnmt ocuplied' wit.h its Chapter 105 regulations in preparing the Envirersnental Assessment, itcluaing its consideration of alter-natives.

8. Under Article I, Section 27 of the Pennsylvania Ccmstitution the P- ,--h_.t's actions must meet the 'three-fold standard adopted by the court in Pt:yne v. Kascab,11 Pa. Otulth.14, 312 A.2d 86 (1973) , exceptions dismissed,

, -153-

-i

. I 14 Pa. Omlth. 491, 323 A.2d 407 (1974), aff'd, 486 Pa. 226, 361 A.2d 263 (1976),

for catpliance with Article I, Section 27 of the Constitution.

9. Because it did not require NWRA and PECO to obtain NPDES permits, DER did not cmply with the first of the three Payne standards, i.e., DER did not ensure cmpliance with one of the statutes relevant to the protection of the Cannonwealth's public natural resources; however, the requirements of Article I '

Section 27 will be satisfied.by conditioning the appealed-frtm permits so as to forbid actual discharges into the receiving streams before these NPDES permits are received and c m plied with.

10. In order to cmply with the second and third of the three Payne standards, DER should have required NWRA and PIDO to cease discharges if and when the flow velocities of the respective creeka 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 determined that the benefits to be derived fran the project would clearly outweigh this environmental l

harm.

11. DER has met the expressions of the Payne standards contained in 25 Pa. Code Chapter 105, particularly at SS105.14(6) (7) and (d),105.15(b) (2) and (3), and 105.16 (a) and (d), except possibly for erosive effects on the receiving stress (see Conclusion of Law 10 supra) . -

12. The present deficiencies of the permits vis-a-vis the second and third prongs of the Payne standard can be corrected by r mand as per Conclusion of Law 10 supra.

13. DER did not abuse its discretion in reaching the conclusions of no significant environmental impact regarding the following issues which were addressed in the Envi - s tal Assessment:

-154-

7 e .x

! ~

' I

=

,. >,' *:. 'A. Operational 1:Picts of intake stractuiu on the Delaware River

,3 j

s; (1) aquatic ecology .

~~ (2) Ilow flows -

A (3) [dalinity ' e (4) $ rater quality (all aspects)

) =B. Del $wareCanal (1)' Installation'.PAYredure (2) Aesthetic, Scenic'nd' a Historic Considerations (3) Archaeological Impacts C. Land Use '- -

D. Wetlands along East Branch Perkimen Creek E. Alternativec '

t

14. The property interests of riparian land mners on the North Branch aresufficienttoconfer[ standing'oappealDE2actionsaffectingtheNorthBranch.

t

15. Del-Aware has representational standing to appeal, if at the time it filed its a*ppeal there' were .wnbers of Del-Aware who had standing to appeal.

16. Though" Del-Aware has been granted provisional standing, NWRA retains the right to dmard hcoof of the facts on which Del-Aware relies for its repre- .

- sentational standingi.

ORDER MIEREEORE, this. 18th day of June , 1984, the Board reands all the outfall pemits to DER for act' ions--on (1) NPDES pemits; (2) erosional impacts; and (3) Bucks Road ~ gauge detencinati.on of Pm0's flow cutoff-consistent with the ammying Opiniat; the' Bovd retairm jurisdiction. 'Ite appeal of DER's I

water quality certificatiorcis dismissed.

ENVIBCtNEtfmL 'M BAT y A' mmo acauu, muser

- -155- '

i x A _ _m

COMMONWEALTH OF PENNSYLVANIA ~]

." j2- g- g ,

PENNSYLVANIA PUBLIC UTILITY COMMISSION -

P.O. BOX 3285, HARRISGiJRG, Po.17120  : k- l June 26 , 1984 hhh ,

1 N AERY NEASE

. fITrn10r3sergf

, A-001039.56 ALL PARTIES OF RECORD '

Application of Philadelphia Electric Company for a finding of necessity for the situation of a pumphouse to contain pumping and accessory equipment on a site located at the intersection of Bradshaw and Moyer Roads, in Plumstead Township, Bucks County To Whom It May Concern:

Please be advised that at Public Meeting held 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 June 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 matters to the Depart-

~

ment of Environmental Resources and has granted the parties $',' [ ,

30 days within which to file comments. 2

. 4 Please filc any comments within 30 day's of the I dato of this letter.

Sincerely, '

~

.t o

Jerry 'ch j

L Secr ry

{

6 0

l I .-- - _-

m Q. ._

L,

.m. .g.

I Public Meeting July 6.-1984 MOTION RE: ORDER TO SHOW CAUSE WHY THE CONSTRUCTION OF LIMERICK UNIT II IS IN THE PUBLIC INTEREST On October 10,' 1980, this Commission entered an Order a::

docket number I-80100341 initiating an Investigation into the need for, and economy of,:the Limerick Nuclear Generating Station of Philadelphia

-Electric Company (PECO). At the end of the Investigation, the Commis-sion concluded that the simultaneous construction of Limerick Units I and II would not be in the public interest because of PECO's precarious financial' condition and the effect that the continued construction of .

both units would have upon PECO's ability to provide safe and reliable service. PECO was given the option of either cancelling Unit II, or suspending Unit II until Unit I wa completed; however, if PECO refused .

to suspend or cancel Unit II, the Commission would not approve any

. future securities issuances to raise capital for construction of Unit II.

The Commission's Order was reversed by the Commo'nwealth Court but was upheld by the Supreme Court of Pennsylvania. Pennsylvania Public Utility Commission v. Philadelphia Electric Co., 501 Pa. 153, 460 A.2d 734

'(1983). Af ter the Supreme Court decision, PECO indicated that it in-tended to suspend Unit II until Unit I was completed, and then resume 4

construction. N ~

Recent developments have raised anew grave concerns regarding PECO's ability to provide adequate service at reasonable rates. PECO

- filed for a general rate increase on April 27, 1984, and has already announced its intention to file for another increase af ter Unit I

f .

comes on lins in 1985. The amount of human suffering that these in-creases could cause is deplorable. The spectre of these rate increases also threatens to further undermine the economic climate in Southeastern Pennsylvania. Indeed, recent attempts by the Scott Paper Co. to generate its own power and sell the excess to PECO, and by Luken's Steel Co. to obtain power from Pennsylvania Power & Light Co, are both attributable in part to the high level of PECO's current rates. Future rate increases can only accelerate the efforts of industrial customers to;either seek alternative sources of power or to move out of PECO's service territory.

Unit I is scheduled to be completed in April 1985. At that time, PECO could resume construction of Unit II. In light of recent

-developments, however, we are concerned that the impending construction of Unit II might not be in the best interest of PECO's ratepayers.l.l Therefore, we should order PECO to show cause why the construction of Unit II is in the public interest. Specifically, this proceeding should address the following issues:

1. Is construction of Unit II necessary for PECO to maintain adequate reserve margins? ,

t

,2. Are there less costly alternatives - such as cogeneration, additional conserva-tion measures, or purchasing power -

from neighboring utilities or the P.J.M. ,

interchange - for PECO to obtain power l or decrease consumption?

3. How will the large capital requirements necessary to complete Unit II affect PECO's financial health and its ability to provide adequate service? .

~1/ We are also concerned whether PECO's current bond rating of BAA3, which means that PECO's bonds have speculative characteristics, might drop further if PECO resumes construction of Unit II when Unit I is completed.

2-

't 4. Should the Commission reject any securities filings, or impose any other appropriate remedy, to guarantee the cancellation of Unit II?

5. If Unit II is cancelled, what, if any, percentage of the sunk costs should PECO be permitted to recover from its rate-payers?

6. If construction of Unit II is found to be in the public interest, should the Com-mission adopt an " Incentive / Penalty Plan" as an inducement to cost efficient and timely construction? -

We believe that our duty to guarantee just and reasonable rates and to maintain adequate service require that the above issues be addressed by all affected parties and resolved by the Commission prior toApri}1985,thedateuponwhichconstructionofUnitIIcouldresume; THEREFORE, '

WE MOVE:

1. That the Philadelphia _ Electric Company be ordered to show cause why the completion of Limerick Nuclear Generating Station, Unit II, would be in the public interest.

2. That the Law Bureau prepare the necessary Order to'Show Cause.

/ DffE kL$[87

/ DA'fE f ' ,

_ te.

\

i x -

b 7.h

/ 1) ATE '

DATE DATE

-. .-