Delaware Water Emergency Group v. Hansler

• Decision Date: 17 August 1981
• Docket Number: Civ. A. No. 80-4372.
• Citation: 536 F. Supp. 26
• Parties: DELAWARE WATER EMERGENCY GROUP, et al. v. Gerald M. HANSLER, et al. and Neshaminy Water Resources Authority and Philadelphia Electric Company.
• Court: U.S. District Court — Eastern District of Pennsylvania

536 F. Supp. 26

DELAWARE WATER EMERGENCY GROUP, et al. v. Gerald M. HANSLER, et al. and Neshaminy Water Resources Authority and Philadelphia Electric Company.

Civ. A. No. 80-4372.

United States District Court, E. D. Pennsylvania.

August 17, 1981.

Harold A. Lockwood, Jr., Lockwood, Reid & Bolger, Philadelphia, Pa., for plaintiffs.

David J. Goldberg, Trenton, N. J., for Delaware River Basin Commission.

Hershel J. Richman, Cohen, Shapiro, Polisher, Shiekman & Cohen, Philadelphia, Pa., for Neshaminy Water Resources Authority.

Bernard Chanin, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, Pa., for Philadelphia Elec. Co.

MEMORANDUM OPINION AND ORDER

VanARTSDALEN, District Judge.

This action challenges the validity of approvals granted by the Delaware River Basin Commission (DRBC or Commission) to the Philadelphia Electric Company (PECO) and the Neshaminy Water Resources Authority (NWRA) to construct facilities for the withdrawal, diversion and use of water from the Delaware River by means of a pumping station at Point Pleasant, Bucks County, Pennsylvania. A maximum of approximately forty-six million gallons of water per day (46 mgd) would be allowed to be pumped and transported by conduits into the Perkiomen Creek watershed to provide additional cooling water for the nuclear energy electric generating station presently under construction in Limerick, Montgomery County, Pennsylvania, along the Schuylkill River. In addition, a maximum of approximately 49 mgd would be allowed to be pumped and transported into the headwaters of the Neshaminy Creek. NWRA would be allowed to withdraw a maximum of approximately 40 mgd from the Neshaminy Creek at a water treatment plant to be constructed by NWRA in Chalfont, Bucks County, Pennsylvania, for public water supplies in portions of Bucks and Montgomery Counties.¹ The total maximum withdrawals from the Delaware River at the Point Pleasant pumping station would be 95 mgd, which is a "down-scaled" version of previously approved plans for withdrawal of a maximum of 150 mgd.

Primarily because of the substantially reduced quantity of water permitted to be withdrawn from the Delaware River from that previously approved by DRBC for NWRA, the present applications were approved upon the basis of a "negative declaration" following the preparation of a final environmental assessment (FEA) that concluded that an environmental impact statement (EIS) need not be prepared because there would be no significant adverse impacts on the environment. The focal points of plaintiffs' challenge to the DRBC's approvals are the failure of DRBC to have a new, updated overall environmental impact statement prepared and the alleged failure to study and consider adequately various potential environmental effects of the projects.

DRBC, PECO and NWRA have each filed motions² which, in substance, seek a final determination of this lawsuit in their favor on the basis of the present record and all prior proceedings of DRBC. Defendants' motions will be granted. The actions taken by DRBC will be held valid.

Delaware River Basin Compact.

Today, even in the relatively drought-free area of the Delaware River Basin, water is a scarce essential natural resource.³ No longer is water freely available for the taking from the natural streams and the ground. Great rivers such as the Delaware are subject to vast withdrawals to slake the seemingly unquenchable thirst of modern technology and mankind. Compromise between legitimately competing interests for the use and enjoyment of natural free flowing rivers and the need for additional water to meet the demands of an industrialized expanding population are inevitable.

For many years, private and public entities, including cities and municipalities located along the banks of the Delaware River and its tributaries in the States of New York, New Jersey, Pennsylvania and Delaware, appropriated the waters of the Delaware River and its tributaries at will. Following the consent decree entered by the Supreme Court of the United States in New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 861, 98 L.Ed. 1127 (1954), the four states involved in that litigation and the United States on November 2, 1961, executed a compact with respect to the water resources of the entire Delaware River watershed entitled "Delaware River Basin Compact" (Compact), which created the Delaware River Basin Commission.⁴

The preamble of the Compact grants DRBC broad responsibility and control over planning and allocating the water resources of the entire Delaware River Basin, including both surface and ground waters. The "heart" of the Compact is the mandate that DRBC initially prepare and thereafter from time to time review and revise a comprehensive plan for the immediate and long range development and use of the water resources of the Delaware River basin, including both surface and ground waters. Sections 3.2 and 13.1 of the Compact. It is apparent from the wording of the Compact that the contracting parties contemplated that DRBC would constantly and continuously study and monitor the water resources and water needs and that the comprehensive plan, including water allocations and approval of projects utilizing water, would be in a status of unceasing up-dating and change.⁵

Article 2 of the Compact creates the Delaware River Basin Commission as "an agency and instrumentality of the governments of the respective signatory parties." Each of the four governors is an ex officio member who "shall appoint an alternate." The President appoints a representative on behalf of the United States.⁶ The Act of Congress, Pub.L.No.87-328, 75 Stat. 688, provides in substance that when the United States representative on the Commission concurs in any revision of the comprehensive plan, no other federal officer or agency shall take any action with regard to water and related land resources in the Delaware River basin that substantially conflicts with the Comprehensive Plan.⁷ The United States representative affirmatively concurred in the contested DRBC actions in this case.

Article 13 of the Compact, as well as § 3.2, mandates that a comprehensive plan be adopted and reviewed and revised. Section 13.1 provides:

The commission shall develop and adopt, and may from time to time review and revise, a comprehensive plan for the immediate and long range development and use of the water resources of the basin. The plan shall include all public and private projects and facilities which are required, in the judgment of the commission, for the optimum planning, development, conservation, utilization, management and control of the water resources of the basin to meet present and future needs; provided that the plan shall include any projects required to conform with any present or future decree or judgment of any court of competent jurisdiction. The commission may adopt a comprehensive plan or any revision thereof in such part or parts as it may deem appropriate, provided that before the adoption of the plan or any part or revision thereof the commission shall consult with water users and interested public bodies and public utilities and shall consider and give due regard to the findings and recommendations of the various agencies of the signatory parties and their political subdivisions. The commission shall conduct public hearings with respect to the comprehensive plan prior to the adoption of the plan or any part of the revision thereof.

Article 3 contains the Commission's powers and duties. Section 3.8 contains the provision under which PECO and NWRA sought to have the necessary facilities and the accompanying water allocations approved. Section 3.8 entitled "Referral and Review" requires that no project having a substantial effect on the water resources of the basin shall be undertaken unless the project is first submitted to and approved by the Commission. In so doing, the Commission may allocate water, in accordance with the doctrine of equitable apportionment (§ 3.3), subject however to the consent decree of the United States Supreme Court in New Jersey v. New York, 347 U.S. 995, 74 S.Ct. 861, 98 L.Ed. 1127 (1954) (§ 3.5). Section 3.8, in its entirety, is as follows:

Referral and Review. No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the commission, subject to the provisions of Sections 3.3 and 3.5. The commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the comprehensive plan and may modify and approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such plan. The commission shall provide by regulation for the procedure of submission, review and consideration of projects, and for its determinations pursuant to this section. Any determination of the commission hereunder shall be subject to judicial review in any court of competent jurisdiction.

Historical Summary of Proposed Projects.

The proposed projects provide for a pumping station at Point Pleasant, Pennsylvania, with a design capacity to withdraw a maximum of 95 mgd of water from an intake point located in the Delaware River. The water thus withdrawn will be pumped through a single underground transmission line approximately 2½ miles to a storage reservoir to be built on approximately 28 acres of land, designated as Bradshaw Reservoir. A smaller transmission line with capability of connecting with the large main and the Bradshaw Reservoir will transport a maximum of 49 mgd, by gravity flow approximately one mile to the headwaters of the North Branch of the Neshaminy Creek, from whence the water will flow into Lake Galena, a multi-purpose dam on the North Branch. Controlled releases from Lake Galena will...