THE FACTS OF
THE PA ENVIRONMENTAL HEARING BOARD DECISION IN
OLEY TOWNSHIP, ET AL. V. PADEP & WISSAHICKON SPRING WATER, INC.
(1996 EHB 1098)
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Bottled Water: 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
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Background information:
- 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
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Plaintiffs:
- 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
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Wetlands:
- 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
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Wetlands are "Exceptional Value" because:
- Habitat for threatened and endangered species.
- Wetlands are hydrogeologically connected to and within ½ mile of wetlands that serve as
habitat for threatened and endangered species.
- Located in or along floodplain of Class A wild trout stream and "exceptional
value" waters
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Hydrogeology:
- 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
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Hydrogeologists disagreed:
- 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
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PADEPs authority to issue a
permit under PA Safe Drinking
Water Act is defined by
Section 7(j) of the Act: |
The department shall have the power to grant a permit if it
determines that the proposed water system is
- 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))
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EHB held that DEP abused its discretion
- 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 |
Examples of possible Clean Streams Law violation:
- 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
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EHB said:
"Accordingly, any degradation which would adversely affect the existing uses of
these water resources would violate the Clean Streams Law."
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Clean Water Acts Water Quality Standards have two components:
- Designated Uses and
- Water quality criteria
Clean Water Acts Anti-Degradation policy:
- Existing stream uses and level of water quality necessary to protect those uses shall be
maintained and protected.
- Beneficial uses of water resources must be preserved.
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EHB said Section 611 of Clean Streams Law makes it unlawful to cause
pollution of waters of the Commonwealth.
35 P.S. § 691.611.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)
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EHB stated:
"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."
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EHB cited the United States Supreme Court in PUD No. 1
of Jefferson County and City of Tacoma v. Washington Department of Ecology,
511 U.S. 700, 114 S.Ct. 1900 (1994).
Diminishment of water quantity can constitute water pollution.
Federal definition of "pollution" similar to PAs: "the man-made or
man-induced alteration of the chemical, physical, biological, and radiological integrity
of water."
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In PUD No. 1:
The U.S. Supreme Court upheld the State of Washingtons 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 states 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."
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PUD No. 1 was the first case in which the
U.S. Supreme Court linked water quantity and quality as part of a states water
quality standards program under the Clean Water Act. The Environmental Protection Agency
has not yet directed states to regulate water quantity as a component of a state water
quality standards program. |
Oley Twp. is the first case in which the
EHB applied the principles of PUD No. 1 to surface water
(including wetlands) impacts resulting from groundwater withdrawal. |