THE FACTS OF
THE PA ENVIRONMENTAL HEARING BOARD DECISION IN

OLEY TOWNSHIP, ET AL. V. PADEP & WISSAHICKON SPRING WATER, INC.

(1996 EHB 1098)

Regulated as a food product by the Federal Food & Drug Administration

• Must use an "approved" source
• Must meet Federal Safe Drinking Water Act primary standards

Regulated as drinking water under PA Safe Drinking Water Act

• "System" must be permitted

• Wissahickon Spring Water, Inc. – bottled water plant in Kutztown, Berks County, PA
• Proposal to remove up to 288,000 GPD from new well in Pike Twp., Berks, County, PA
• Well located in Pine Creek watershed, Berks County, PA
• Pine Creek is designated as Exceptional Value (EV) Stream

• Oley Township, Berks County – national historic designation
• Pine Creek Watershed Association
• Oley Valley Youth League, Inc.
• Pike Oley District Preservation Coalition
• Individuals who were neighbors

• 65 acres of wetlands within 3,000 foot radius of well
• 30 acres of wetlands within identified recharge area
• Wetlands exist within 150 feet of well
• Biologically connected, one ecological "system"
• Diversity of plant and animal species
• Some rare and endangered plant & animal species (Bog Turtle)
• Large areas that are wet all year round
• Albright College has 23-acre easement on adjacent property

1. Habitat for threatened and endangered species.
2. Wetlands are hydrogeologically connected to and within ½ mile of wetlands that serve as habitat for threatened and endangered species.
3. Located in or along floodplain of Class A wild trout stream and "exceptional value" waters

• Well is located in Leithsville formation, water drawn form permeable dolomite
• Site is bordered by Hardyston formation (impermeable)
• Pine Creek is 1,000 feet west of the well
• Groundwater drains toward well, discharge to Pine Creek
• Numerous seeps, high volume, feed wetlands
• Aquifer is confined to semi-confined
• Leaky areas connect the pump zone to wetlands
• Groundwater discharges to wetlands that are source of water for seeps are in same hydrologic zone as pump zone for well
• Wetlands are/are not fed by perched water seeps

• Pumping will have only "small effect on source of water for wetlands
• Pumping will have an impact on wetlands (hydrogeologic connection)

Hydrogeologists agreed:

• Pump test did not quantify impact of project on water resources
• Pump test could be designed to quantify drawdown affects in wetlands

PADEP’s authority to issue a
permit under PA Safe Drinking
Water Act is defined by
Section 7(j) of the Act:

• not prejudicial to the public health; and
• complies with the provisions of the act and regulations; and
• complies with all other applicable laws administered by PADEP
  35 P.S. § 721.7(j))

• Did not adequately determine compliance with other laws (such as the Clean Streams Law)
• Did not consider the effect of the project on wetlands
• Did not determine impact on stream uses
• Did not determine there would be no encroachment (Chapter 105 permit)

EHB remanded the matter to DEP for reconsideration

• Project might affect adjacent water resources such that many plant and animal species would be unable to survive
• Ability of wetlands to serve their ecological functions might be compromised by the project

"Accordingly, any degradation which would adversely affect the existing uses of these water resources would violate the Clean Streams Law."

1. Designated Uses and
2. Water quality criteria

Clean Water Act’s Anti-Degradation policy:

1. Existing stream uses and level of water quality necessary to protect those uses shall be maintained and protected.
2. Beneficial uses of water resources must be preserved.

Clean Streams Law definition:

"Pollution" shall be construed to mean contamination of any waters of the Commonwealth such as will create or is likely to create a nuisance or to render such waters harmful, detrimental or injurious to public health, safety or welfare, or to domestic, municipal, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life, including but not limited to such contamination by alteration of the physical, chemical or biological properties of such waters, or change in temperature, taste, color or odor . . . .
(35 P.S. § 691.1)

"Thus any physical or biological alteration of the wetlands or other water resources as a result of the proposed project would constitute pollution under Section 611, and thereby violate the Clean Streams Law."

"Since the Department has a clear mandate to protect waters of the Commonwealth from degradation, the affects of the proposed project on the wetlands must be considered."

Diminishment of water quantity can constitute water pollution.

Federal definition of "pollution" similar to PA’s: "the man-made or man-induced alteration of the chemical, physical, biological, and radiological integrity of water."

 The U.S. Supreme Court upheld the State of Washington’s authority to include minimum stream flow requirements in its water quality certification under Section 401 of the Clean Water Act in connection with a project needing a federal license or permit.

The Court said the state’s conditions were proper under both federal and state antidegradation regulations.

The Court rejected the assertion that the Clean Water Act is only concerned with water "quality" and does not allow regulation of water "quantity."

The Environmental Protection Agency has not yet directed states to regulate water quantity as a component of a state water quality standards program.