PA TROUT v. DEPT. OF ENVIR. PROTECTION

• Decision Date: 07 December 2004
• Parties: PENNSYLVANIA TROUT, Trout Unlimited-Penns Woods West Chapter, and Citizens for Pennsylvania's Future, Petitioners v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Orix-Woodmont Deer Creek Venture, Respondents.
• Court: Pennsylvania Commonwealth Court

863 A.2d 93

PENNSYLVANIA TROUT, Trout Unlimited-Penns Woods West Chapter, and Citizens for Pennsylvania's Future, Petitioners v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Orix-Woodmont Deer Creek Venture, Respondents.

Commonwealth Court of Pennsylvania.

Argued October 5, 2004.

Decided December 7, 2004.

Jody L. Rosenberg, Pittsburgh, for petitioners.

Terry R. Bossert, Harrisburg, Charney Regenstein, Pittsburgh, for respondents.

BEFORE: COHN JUBELIRER, Judge, SIMPSON, Judge, and McCLOSKEY, Senior Judge.

OPINION By Judge SIMPSON.

Pennsylvania Trout, Trout Unlimited-Penns Woods West Chapter and Citizens for Pennsylvania's Future (collectively Objectors) appeal an order of the Environmental Hearing Board (EHB), which upheld the Department of Environmental Protection's (DEP) issuance of a permit to Orix-Woodmont Deer Creek Venture (Permittee) to fill approximately six acres of wetlands so that Permittee may construct a master planned mixed-use commercial development. The EHB determined Permittee met its burden under 25 Pa.Code § 105.18a(b)(3) of rebutting the presumption that a practicable alternative exists to the proposed project that would not involve a wetland or that would have less adverse wetland impact. Because we agree Permittee rebutted the regulatory presumption that a practicable alternative exists, we uphold issuance of the permit.

I. Statutory and Regulatory Framework

Pursuant to the provisions of the Dam Safety and Encroachments Act (Act),¹ and its attendant regulations,² DEP is authorized to regulate the construction, operation, modification or abandonment of any dam, water obstruction or encroachment. See Section 6 of the Act, 32 P.S. § 693.6. An "encroachment" is any structure or activity which in any manner changes, expands or diminishes the course of any body of water. Section 3 of the Act, 32 P.S. § 693.3. The term "body of water" includes not only lakes, ponds and reservoirs, but also any "swamp, marsh or wetland." Id. Thus, under the Act, DEP regulates and requires permits for any structure or activity that encroaches on a wetland.

In addition to the general criteria for permit issuance under the Act, there are specific requirements for wetlands found in the Act's implementing regulations. See 25 Pa.Code §§ 105.17-105.20a. These regulations provide a scheme for the classification of wetlands, and divide wetlands into two categories — "exceptional value wetlands" and "other wetlands." It is undisputed that the wetlands at issue here are "other wetlands."

Under the "Chapter 105" regulations, DEP is required to consider a number of factors in determining whether to issue an encroachment permit. The factors to be applied depend on whether the wetlands at issue are exceptional value or other wetlands. For "other wetlands" a project may be permitted upon a showing that: (i) the project will not have a significant adverse impact on the wetland; (ii) any adverse impacts are reduced to the maximum extent possible; (iii) there is no practicable alternative to the project; (iv) the cumulative effect of the proposed project, together with other projects, will not result in a major impairment of the Commonwealth's wetland resources; and (v) affected wetlands will be replaced. See 25 Pa.Code § 105.18a(b).

The sole factor at issue here is the "no practicable alternatives test." It provides, in relevant part:

(b) Other wetlands.... [DEP] will not grant a permit under this chapter for a ... water obstruction or encroachment in, along, across or projecting into the wetland ... unless the applicant affirmatively demonstrates in writing and [DEP] issues a written finding that the following requirements are met:

* * * *

(3) There is no practicable alternative to the proposed project that would not involve a wetland or that would have less adverse impact on the wetland, and that would not have other significant adverse impacts on the environment. An alternative is practicable if it is available and capable of being carried out after taking into consideration construction cost, existing technology and logistics. An area not presently owned by the applicant which could reasonably be obtained, utilized, expanded or managed to fulfill the basic purpose of the proposed project shall be considered as a practical alternative.

(i) It shall be a rebuttable presumption that there is a practicable alternative, not involving a wetland, to a nonwater-dependent project, and that the alternative would have less adverse impact on the wetland.

(ii) To rebut the presumption, an applicant ... shall demonstrate with reliable and convincing evidence and documentation and [DEP] will issue a written finding that the following statements are true:

(A) The basic project purpose cannot be accomplished utilizing one or more other sites that would avoid, or result in less, adverse impact on the wetland.

(B) A reduction in the size, scope, configuration or density of the project as proposed and alternative designs to that of the project as proposed that would avoid, or result in fewer or less severe, adverse impacts on a wetland will not accomplish the basic purpose of the project.

25 Pa.Code § 105.18a(b)(3). This regulation establishes a rebuttable presumption for DEP that, where a proposed project is not water dependent, a practicable alternative exists. 25 Pa.Code § 105.18a(b)(3)(i), (ii). To rebut the presumption, an applicant must submit reliable and convincing evidence to DEP that no practicable alternative is available. An alternative is "practicable" if "it is available and capable of being carried out after taking into consideration construction cost, existing technology and logistics." 25 Pa.Code § 105.18a(b)(3).

II. Factual Background

Permittee seeks to construct a 1.2 million square foot commercial development on 245 acres of undeveloped land in Harmar Township, Allegheny County. The property at issue is bordered on the east by the Pennsylvania Turnpike, on the south by Pennsylvania Route 28 and is bisected by Pennsylvania Route 910.

Permittee applied to DEP for an encroachment permit to fill 6.17 acres of wetland and to divert 2,700 feet of Deer Creek around its proposed commercial development. DEP denied the application primarily because of stream and wetland impacts. In addition, DEP determined Permittee did not adequately explore the availability of off-site alternatives. After filing and withdrawing an appeal, Permittee submitted a second application, which is the subject of this appeal.

Through its second application, Permittee sought authorization to place fill within the flood plain of Deer Creek and to encroach on 5.96 acres of wetland. Permittee no longer proposed to relocate Deer Creek. Notably, in its second application, Permittee included an extensive "alternatives analysis." After reviewing and investigating the second application, DEP issued the permit. Objectors appealed to the EHB.

The second application was a joint application to DEP and the United States Army Corps of Engineers. The Corps of Engineers issued its encroachment permit for the project at about the same time as DEP.

III. EHB Hearings

During eight days of hearings before the EHB, thirteen witnesses testified. A summary of the pertinent testimony follows. Nancy Rackham is a water pollution biologist employed by DEP. Rackham's primary job responsibility is reviewing permit applications for wetland and stream encroachments. Rackham reviewed both permit applications submitted by Permittee. According to Rackham, DEP denied Permittee's first application primarily because of the proposed stream and wetland impacts. In addition, Rackham believed Permittee did not adequately explore the availability of off-site alternatives in its first application. In its first application, Permittee proposed filling six of the seven wetlands on the site leaving only "wetland number 7" remaining. Permittee only proposed to impact 5.96 acres of wetlands in its second permit application. Another significant change in the second application was that Permittee no longer proposed to relocate Deer Creek.

Rackham indicated Permittee selected the Deer Creek site because it served its "basic project purpose," which was to construct a large commercial mixed- use center. According to the application and Rackham's investigation and review, Permittee chose the Deer Creek site because it identified an underserved market area. Through a process of elimination, Permittee reviewed and rejected other sites because they did not adequately serve the project purpose. Permittee informed Rackham it needed to develop a one to two million square foot regional shopping center based on the requirements necessary to obtain Tax Increment Financing (TIF) to help finance the proposed development.

Rackham and others at DEP asked extensive questions concerning the alternatives analysis submitted with the second application. She testified DEP did not limit its review to sites that would support a one to two million square foot development. In fact, Rackham explained, in performing the alternatives analysis for its second application, Permittee considered sites as small as 100 acres at DEP's request. Rackham testified Permittee evaluated 30 parcels in its alternatives analysis. Permittee used excessive site costs as one basis for excluding a site as being a practicable alternative to the Deer Creek site. Two other criteria were highway visibility and major highway access. Ultimately, Rackham concluded Permittee rebutted the presumption that there was a practicable alternative to the selected site. She made a written finding of her conclusion.

The DEP engineer assigned to review the second permit application was Chris Kriley, P.E. Kriley reviewed the engineering sections of the second application, including the hydrologic and hydrology analyses, the general site plan, and the traffic studies. Kriley noted the second application included an appendix, entitled "Analysis of Practical...