Appendix — Del-AWARE Unlimited, Inc. v. Baldwin

Supreme Court brief1984

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Text

ORL-AMARE OMLIMITED INC., et al.,

Petitioners,

ROGER MH. BALOWIN, District Engineer,

Onited States Corps of Engineers, et 41.

Respondents

ROBERT R. ELLIOTT

ELLIOT? AND BELL, P.C.

1201 PENNSYLVANIA AVE., . u.

SUITE 803

Washington, D.C. 20004

(202) 867-3836

ROBERT J. SUGARMAN

ROBIN T. LOCKE

Counsel for Plaintiffs

Philadelphia, PA 19107

(215) 546-0162

Dated: October 31, 1963

TABLE OF CONTENTS

Judgment Order and Order

Sur Petition for Rehesring............. 1

Order of the District Court

r %¶ͤ m

Bench Opinion with Correction Sheet

DUPE BUG BUEEee bdbtbebesiccceccoacce 7

Nuk Proposed Findings of Fact

(Adopted by the District Court)........ 71

Corpse of Engineers Statement of Findings

U.S. District Court November 30, 1982..114

Corps of Engineers Eaviornasental

neee eee ee eee eee 10

Tremecript, pages 1 - 8, 1003 161

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 83-1010

DEL~AWARE UNLIMITED, INC.; SIGSTEOT, VAL; WELLS, COLLEEN;

SADOUX, MARC; MASLAND, MARION W.; TOWNSHIP OF BRISTOL;

TORKELSON, NORMAN and DIANE; THE PHILADELPHIA FEDERATICN OF

SPORTSMEN'S CLOBS; LANDIS, SAMUEL; GILMORE, CHARLES;

NOBLE, MARY ELLEN; THE PENNSYLVANIA STATE FEDERATION OF

SPORTSMEN'S CLUBS; BANNING, RITA c., HOWORABLE; WATERSHED

ASSOCIATION OF THE DELAWARE RIVER; GREENWOOD, JAMES C.,

BONMORABLE; FPOWNASH, CARL, HONORASLE,

Appellants

ROGER n. BALDWIN, individually, and as District Engineer,

0.S. Acmy Corps of Engineers; ALEXANDER ALDRICH, individually,

and as Chairman of the Advisory Council on Sistoric

Preservation; WILLIAM GORDON, individually, and as

Assistant S 9. 8. Department of Commerce;

GERALD GAMSLER, individually and as Executive Director,

The Delaware River Sasin Commission; HAROLD

individually, and as Director, Division of Nuclear Reactor

Regulation, G. 8. uc! dar Regulatory Commission; THE NUCLEAR

REGULATORY COMMISSION; BOWORABLE PETER DUNCAN, as Secretary

of the Department of Environmental Resources of the

Commonwealth of Pennsylvania; NESHBAMINY WATER RESOURCES

AUTHORITY; and PHILADELPHIA ELECTRIC COMPANY

from the Onited States District Court

oc the Zastern District of Pennsylvania

(D.C. Civil Action Wo. 82-5115)

District Judge: Sonorable James Giles

Acgued June 13, 1983

ec, Onited States District Judge for

the — Distcict of Pennsylvania, sitting by designation

JUDGMENT ORDER

Appellants appeal from an interlocutory order of the district

court denying appellants’ motion for preliminary injunction.

Aftec consideration of all contentions caised by appellants, to

wit, that the court erred:

1) as a matter of law by excluding froa

evidence virtually all of appellants’

proferced testimony and documentation which

“was not included in the Corps’ administra-

tive record;

2) in holding that section 110(f) of the

National Historic Preservation Act did not

cequire the Corps to implement seasures and

consider alternatiyes which would sinn:

hare to the Pennsylvania Canal;

3) im tinding that the Corps had given

“great weight* to the views of the state and

federal fisheries ee as cequired by its

statute and regula 7

4) im finding insufficient likelihood of

success on the merits of the NEPA claias to

cequice injunctive rcelief,

Tt ig ADJUDGED AMD ORDERED that the judgment of the district

court be and is hereby affirmed.

Costs ‘tazed against sppellants.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 83-1010

DEL-AWARE UNLIMITED, INC.; SIGSTEDT, VAL; WELLS, COLEEN;

SADOUX, MARC; MASLAND, MARION W.; TOWNSHIP OF BRISTOL;

TORKELSON, NORMAN and DIANE; THE PHILADELPHIA FEDERATION OF

SPORTMEN'S CLUBS; LANDIS, SAMUEL; GILMORE, CHARLES;

WOBLE, MARY ELLEN; THE PENNSYLVANIA STATE FEDERATION OF

SPORTSMEN'S CLUBS; BANNING, RITA c., SONORABLE; WATERSHED

ASSOCIATION OF THE DELAWARE RIVER; GREENWOOD, JAMES C.,

HONORABLE; FONASH, CARL, HONORABLE,

Appellants

ROGER A. BALDWIN, individually, and as District Engineer,

0.8. Army Corps of Engineecs; ALEXANDER ALDRICH, individually,

and as Chairman of the Advisory Council on Historic

Preservation; —— ye individually, and as

Assistant ggg 9.8. tment of Commerce;

GERALD HANSLER, 1 ＋. as Executive Director, *

The Delaware 4— men 2 L. X HAROLD 5

° individually, and as Director, Division of Wuclear Reactor

Regulation, U.S. Nuclear Regulatory Commission; THE NUCLEAR

REGULATORY COMMISSION; BOWORABLE PETER DUNCAN, as Secretary

of the Department of Environmental Resources of the

Commonwealth of Pennsylvania; NESHAMINY WATER RESOURCES

AOTHORITY; and PHILADELPHIA ELECTRIC COMPANY

SUR PETITION FOR REHEARING

—

Present SEITE, ALDISERT, ADAMS, GIBBONS, HUNTER,

ls. ohana’ 1221. „ BECKER, Circuit es

wins

The petition for rehearing filed by

APPELLANTS

in the above entitled case having been submitted to the judges

who participated in tne decision of this court and to all the

other available circuit judges of the circuit in regular active

service, and no judge who concurred in the decision having asked

for cehearing, and a majority of the circuit judges of the

circuit in regular active service not having voted for rehearing

by the court in banc, the petition for rehearing is denied.

By the Court,

Judge

Dated sugust 2, 1983

“* IN TR. UNITED STATES DISTRICT co. Be 8

ron THE EASTERN DISTRICT OF PENNSYLVANIA <CEIvrsy

DEC 22 wap

SUGAR 9 DEIN

DEL-AWARE UNLIMITED, INC., et al. CIVIL ACTION

ROGER u. BALOWIN, et al. 10. 82-5115

oRDER FILED DEC 17

AND WOW, this 17th day of December, 1982, in accord-

ance with the bench opinion rendered December 15, 1982, it is

hereby ORDERED that: :

1. ‘The claims asserted by plaintiffs under the

Rivers and Sarbors Act, 33 U. 8. c. § 401, et seq., the Clean

Water Act, 33 U. 8. Cc. § 1365, et seq., the Endangered Species

Act, 16 0.8.C. § 1540, et seg., and the National Historic

Preservation Act, 16 0.8.C. § 470, et seg., are DISMISSED for

lack of jurisdiction.

. 2. Plaintiffs’ claims against the Nuclear Regulatory

Commission, and Barold Denton in his individual and official

capecity are DISHISSED for lack of jurisdiction.

3. Plaintiffs’ cleims ageinst the Departzent of

Bavironmental Resources of the Commonwealth of Pennsylvania

(PDER), and Peter Duncan in his official capacity as Secre-

tary of PODER, ace DISMISSED for lack of jurisdiction. In the

alternative, these claims are DISMISSED on the basis of con-

ity and this court's determination not to exercise pendent

ENTERED:__za- 20-2

CLERK OF COURT 4. 5

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L, Jurisdiction. See United Mine Workers v. Gibbs, 383 b. 8. 715

(1966).

4. Plaintiffs’ claims against Roger Baldwin, Dis-

trict Engineer, U.S. Army Corps of Engineers, Alexander

Aldrich, Chairman of the Advisory Council on Historic Preser-

vation, William Gordon, Assistant Secretary, 0.8. Department

of Commerce, and Gerald Hansler, Executive Director of the

Delaware River Basin Commission (DRBC), in their individual

Capacities, are DISMISSED.

3. Plaintiffs' motion for preliminary injunction as

to the remaining defendants asserted under the National En-

vironmental Policy Act (WEPA), 16 U.S.C. § 150, et seq., the

AG@ministrative Procedure Act (APA), 5 0.8.C. § 701, et seq,

and under common law with respect to the DRBC, is DENIED.

Whether singly or cumulatively, the issues raised by plain-

tiffs are insufficient on the record evidence to show that

Gefendants acted unrasonably, arbitrarily or capriciously in

Getermining that an Environmental Impact Statement was not

required and in rendering a negative declaration as to the

Planned construction of the’Point Pleasant Water Diversion

Project.

1 , ‘°N THE UNITED STATES DISTF°°T COURT

. ‘4

7 ' FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEL-AWARE UNLIMITED, INC., : CIVIL ACTION ;

VAL SIGSTEDT, COLLEEN WELLS, MARC

Te “ SADOUX, MARION W. MASLAND, Township 1 j

- 15 of Bristol, NORMAN and DIANE ,

24 _ TORKELSON, The PHILADELPHIA ,

—. FEDERATION OF SPORTSMEN'S CLUBS,

25 SAMUEL LANDIS, CHARLES GILMORE, ;

8 MARY ELLEN NOBLE, THE PENNSYLVANIA

2 STATE FEDERATION OF SPORTSMEN'S : NO. 82-S115

1 CLUBS, HONORABLE RITA c. BANNING,

WATERSHED ASSOCIATION OF THE

2 4 DELAWARE RIVER, HOWORABLE JAMES c.

GREENWOOD AND HONORABLE CARL FONASH. :

Plaintiffs

vs. 3

M. BALDWIN, individually and

as District Engineer, U.S. Army

Corps of Engineers, and :

ALEXANDER ALDRICH, individually

and as Chairman of the Advisory 1

Council on Historic Preservation,

, WILLIAM GORDON, individually and :

* as Assistant Secretary, U.S. Dept.

" of Commerce, GERALD HANSLER, 3

N ! individually and as Executive

Director, The Delaware River :

Basin Commission, HAROLD DENTON,

individually end as Director, Division :

of Wuclear Reactor Regulation, U.S.

>. THE WUCLEAR REGULATORY COMMISSION, :

24 BOWORABLE PETER DUNCAN, as Secretary

7 of the Department of Environmental :

2 Resources of the Commonwealth of .

— ‘Pennsylvania, NESHAMINY WATER :

; * PHILADELPHIA ELECTRIC COMPANY, :

4 Defendants.

—

December 15, 1982

ron. SOWORABLE JAMES T. GILES, J. f

Reported by:

Sidney Rothschild OFFICIAL COURT REPORTERS

: dom 9722

—

: US. Courthesie

+ Philadelphia. Pa. 19106 A 7 .

WAlnut 55 9%

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THE COURT: Good afternoon.

First of all, the record will be completed by

the following: By letter of submission of December 8, 1982,

DRBC sent in a copy of its Exhibit Number 15. That will be

admitted.

By letter of submission of December 13, the

plaintiffs submitted a copy of P-58, which is a memorandum

dated May 28, 1981, Archaeologist, office of Cultural Programs,

NERO, HRS to Assistant Regional Director, Office of Cultural

NERO, WS Subject: Trip Report, Point Pleasant Water Diversion

Project, Point Pleasant, Pennsylvania.

This document will be admitted.

Philadelphia Electric Company was given leave

to file certain documents pertaining to proceedings before

WRC, in response to plaintiffs’ submissions pertaining to

wac"atters. Those submissions will be admitted as PECO

exhibits, whatever the next PECO number is, according to the

record.

MR. CHANIN: If Your Ronor please, that is

Exhibit 4. ,

THE COURT: That will be admitted penne with

the certificate of service form which is attached thereto.

The hearing in this matter concluded Friday

evening, the Court has reviewed the entire administrative

record, all the exhibits introduced in this proceeding, the

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various memoranda, responses, attachments thereto, legal

authorities cited, including statutes, regulations and

legislative history.

Counsel are to be commended for doing a fine

job in pulling together, in a short time, during and after

the conclusion of the proceeding, the evidence in the case

and focusing it in a manner helpful to the Court.

I have agreed to give a bench opinion because

both parties have asserted that by today, by virtue of the

actions proposed of the NWRA to commence construction, it

would suffer or begin to suffer irreparable harm. I devoted

my time to this point in reviewing the record and making my

decision and this opinion will constitute the opinion of the

Court with respect to the plaintiffs' motion for preliminary

injunction. The Court reserves the right to supplement,

amend or edit the same.

This action was commenced by plaintiffs

substantially as citizens action against various federal

agencies, the Pennsylvania Environment Resources Department,

DER, PECO, Philadelphia Electric Company, and ma, which is

the Neshaminy Water Resources Authority.

Individuals have also been named as defendants

in their individual and official capacities, where they are

the executive directors of the various defendant agencies.

The action is commenced against all defendants,

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aed

3 ‘Le. appears under the National Environmental Pol. y Act, the

National Historic Preservation Act, the Endangered Species

Act, the Delaware River Basin Compact, the Fish and Wildlife

Coordination Act, the substantative provisions of Section 110

of the River and Harbors Act of 1899 and Section 404 of the

Water Poliution Control and Federal Water Pollution Control

Act requirements for permits under Section 402 and for best

available technology under Section 316(b) and the Atomic

Safety and Licensing Act and regulations thereunder,

referring to page 2 of the complaint.

The plaintiff either orally or in the final

briefs in this matter has asserted that it intended to file

a claim under the Administrative Procedure Act, the plaintiff

does not assert a claim under the Administrative Procedure

Act. For purposes of this bench opinion, I shall assume that

the plaintiff has standing to assert and therefore is

entitled to amend the complaint to assert a claim under the

Administrative Procedure Act against the appropriate agency

defendants.

The complaint, while it names the Delaware

River Basin Commission as a defendant and its executive

director, in the caption fails to state a cause of action in

its body against the Delaware River Basin Commission.

The plaintiff was understood by the Court to

amend orally the complaint at the time of the hearing to

wh ey Aste Ahi

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ko- ert a claim against the DRBC, that its denial of the

Delaware petition for reconsideration was arbitrary and

capricious and therefore reviewable in this Court.

Various defendants have filed motions to

dismiss, either on jurisdictional grounds with respect to

certain allegations or with respect to failure to state a

claim upon which refusal can be granted.

With respect to the claims of the plaintiffs

-seerted under the National Historic Preservation Act, the

Endangered Species Act, the Clean Water Act and the River

and Harbors Act, I find thet this Court has no jurisdiction.

Those acts of Congress have specific provisions which limit

the right of citizens to bring suits in this Court. There are

notice and time provisions which are mandatory. There is no

implied cause of action under the River and Harbors Act, in

accordance with the decision of the United States Supreme

Court and using the same rationale, there is no implied cause

of action under either of the National Historic Preservation

Act and Endangered Species Act or Clean Water Act.

Congress has acted in these areas to

circumscribe the availability of the federal court to

plaintiffs unless and until certain statutory requirements

are met. Plaintiffs appear to concede as much in that they

argue in their beliefs that they would still have a right of

action under the Administrative Procedure Act, because either

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thece is final agency action or that there is action by the

agency which is so threatening of immediate and irreparable

harm that resort to the Court is necessary to enjoin agency

action

With respect to plaintiffs’ claims against

the NRC and Harold Demton in his individual and official

capacities, I find that this Court is without jurisdiction

and it would be an abuse of discretion to exercise jurisdictian

in the context of this complaint, even assuming that the

Susquehanna case is still good lew in this circuit. First,

there is an ongoing administrative review of the „

application within the domain of the Nuclear Regulatory

Commission. Plaintiffs, through Delaware are participating

in that edministrative proceeding, which is not complete.

When completed, the plaintiffs, if agreed, will have a right

of appeal to the Third Circuit by statute.

Wumber two, the construction activity which is

the subject of this injunction action names WWRA as the

builder and constructor of the water system. NRC has no

jurisdiction to enjoin ma's construction. WAC will

determine when, if at all, the PECO water diversion to

Limerick I or II will be operational. That is not before

this Court.

Furthermore, the WRC has not refused to prepa

an environmental impect study. This situation is easily

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y ' '@istinguishable from the Susquehanna case cited by the

2] plaintiffs for the reasons just enumerated.

3 So, the claims asserted under the Atomic

4 | Safety and Licensing Act, are hereby dismissed.

5 with respect to the claims against Roger

@ | Baldwin, as an individual; Alexander Aldrich, as an individual)

7 | William Gordon, as an individual and Gerald Hansler, as an

8 | individual; I find that the plaintiffs’ complaint fails to.

8] state « cause of action and those actions will be dismissed

w | with prejudice for the following reasons. Although the

plaintiffs assert that Baldwin, Aldrich, Gordon and Hansler

are being sued in their individual capacities, a review of

the complaint discloses no action by those individuals which

amounts to individual actions, as opposed to action in their

official capacities.

Moreover, the relief sought by the plaintiffs

is egeinst the agency. If plaintiffs are asserting len

under the Administrative Procedure Act, for example, the

proper claim is ageinst the egency, not the individual.

Moreover, I would find from a review of the

record and the complaint, that each of the individuals is

entitled to qualified immunity. I might say, as well, that

the proceeding is not really as on motion to dismiss.

It's after hearing.

With respect to the Pennsylvania Departsent of

A. “7g

»sesessteseetst#etstes sa

-Environmental Resources and Peter Duncan, I f. 4 that this

Court has no jurisdiction. The claims there asserted are

under the Clean Water Act. Again, there is a jurisdictional

requirement of notice.

Moreover, I doubt that this Court would have

jurisdiction in an APA claim against federal agencies, over

state agencies, with respect to their administrative agency

compliance. Further, the plaintiffs are pursuing in the

state administrative channels, challenges to the Pennsylvania

DER Acts with respect to various certificates or decisions

not to require permits of various kinds.

As a matter of comity, plaintiffs would be

required in this Court's estimation, to exhaust administrati s

remedies in the state procedure and seek whatever relief‘is

appropriate there.

So, even assuming that this Court has

jurisdiction with respect to the Pennsylvania DER defendants,.

it would not exercise that jurisdiction.

For those reasons, the complaint with respect

to Peter Duncan as secretary of the DER is dismissed. As a

footnote, I observe that there is no emergency situation

arising from the claimed inaction of the state official in

this instance. It is conceded that the Delaware River Water

will not in any way lower the standards of the water in the

Perkiomen Creek and that the best available technology is

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being used for the intake at Point Pleasant.

Remaining, I find are claims asserted under the

National Environmental Policy Act and the Administrative

Procedure Act. Having studied all of the relevant material,

as well as that which might be irrelevant, but admitted and

reviewable, I have concluded that the plaintiffs’ motion for

preliminary injunction will be denied under both the NEPA

and the APA against each of the remaining defendants.

First, with respect to the NEPA and the Corps

of Engineers. Plaintiffs complain that the Corps of Engineers

in rendering its environmental assessment and negative

declaration with respect to the Point Pleasant intake and

water diversion system, either acted unreasonably or

arbitrary and capriciously in failing to require or failing

to conduct an environmental impact study or statement.

The standard of reasonableness is a higher

standard of review than arbitrary and capricious, but I find

under either standard, the plaintiffs at this juncture on this

record have not shown under the standard applicable to

considering requests for preliminary injunction have

entitlement to that extreordinary relief. This Court is

limited under the reasonableness standard to a review of the

actions of the defendant agencies and cannot engage in its

own personal evaluation of the mental processes of the agency

edninistrators.

ff.

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1444

So, it's not a matter of record of what this

Court would do if it were in the agency's position; it is

what the record shows reasonably was considered, taking not

only the findings but the administrative record as a whole

and considering the administrative record as a whole, I

find that with respect to a significant number of plaintiffs’

claims, they are collaterally estopped because of the Hansler

decision.

The plaintiffs have made out a prima facie

case with respect to identifying certain changes since the

Bansler decision, which would be of significant impact, if

the plaintiff@ allegations were taken as true, but considering

the defendant agency's evidence as this Court must at this

stage, I find that the plaintiff has not shown by a

preponderance of the evidence that there was either an abuse

of discretion or a failure to give a hard look at, seriously

consider, or give great weight to other agency opinion.

The plaintiffs here are collaterally estopped

by the Hansler decision to the extent that the Hansler

decision considered or was asked to consider and decided

matters which ere raised in this complaint. A study of the b

Complaint in the Bansler case demonstrates that it was wide

ranging and touched upon almost all the issues which are

raised here as if they were new.

The plaintiffs are bound because they are in

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1445

peivity with those plaintiffs who initiated the action before

Judge VanArtsdalen in this respect: That the plaintiffs there

as the plaintiffs here represented the public interest and

their interests and injuries now rise no higher and are no

less than those asserted by the plaintiffs in Hansler for

the public interest.

Judge VanArtsdalen considered not the name of

the plaintiff but rather the issue, that is whether or not

certain actions or environmental effects were significant or

substantial so as to require of the DRBC the preparation of

an environmental impact statement as opposed to a final

environmental assessment. This Court incorporates all that

was decided and considered and therefore precluded here by

Judge VanArtsdalen in the Hansler case and as affirmed by the

Third Circuit.

What then is new?

1. Designation of the Army Corps of

Engineers as the lead agency in determining those matters,

environmentally, which were within its specific expertise:

navigation, construction in the river, and matters relating

to the construction as it would affect navigable waters.

2. A movement of the intake system away from

the shore bank and into the channel of the Delaware River.

3. A formal determination by the Advisory

Council on Historic Preservation that the village of Point

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Pleasant was eligible for and was then placed on the historic

4. An assertion that Shortnosed Sturgeon

had been seen in the area of Point Pleasant intake although

the report was unconfirmed.

A decision by the Corps of Engineers to

segment its consideration of the NWRA permits between Point

Pleasant and the Pine Run rechannelization.

A salinity study performed by the DRBC, a

ground water study done for and by the DRBC.

Next, the most current good faith negotiations

between those states who are parties to the DRC.

Next, a statutory provision change, 110(f),

I believe, which the plaintiffs assert required the Corps to

take all possible steps to maximize non-impact on national

landmarks or historical sites. In the latter category,

assert that the authority hed the obligation independently to

consider other intake sites than Point Pleasant, so as to

“avoid the historical and archaeological sites altogether.

This Court is called upon, therefore, to

interpret that provision. In the findings of facts or the

statement of findings, the Corps made specific findings that

it had considered alternative routes around Point Pleasant

but these were unreasonable for the reasons stated therein.

Moreover, in sccordancejwith 33 CFR 800, a memorandum of

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agreement was entered into between the Corps, the Advisory

Council and the State Historical Preservation officer, with

respect to procedures to minimize the impact of the historic

district, the channel, and all other areas disrupted by the

construction. The undertaking in the memorandum agreement

is to have continued monitoring by the Advisory Council,

state office, the states, Historical Preservation officer

and the Corps to insure that all possible steps are taken to

minimize the impact to the historical district canal. Indeed,

as I read the agreement, no irreversible action can be taken

out and a determination that the action is an action which

meets their requirements of 33 CPR 800. The plaintiffs argue

that Section 110(f) required the Corps to look for other

intake sites along the Pennsylvania canal, other than Point

Pleasant, once the historic district has been certified.

The Corps took the position in its findings,

that it was bound in terms of its consideration of what was

possible by the determination of the DRBC as to the appropria

point for water to be taken from the Delaware River.

In other words, it deferred to the DRBC with

respect to that judgment as to whether or not that point of

intake was most appropriate, given its other determinations

of civer resources, basin resources and the needs for water

in Bucks and Montgomery Counties, as well as for PECO at

Limerick.

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I do not find that that deference was

unreasonable or arbitrary and capricious. There is a question

as to whether or not Section 110(f) applies to other than

federal or federally assisted projects. Assuming that it

does, it is not to be given the same scope of agency

determination requirement as was given and required by

statute in the Overton Park case. In that case, the statute

required that the agency make a determination that there was

no feasible or practical route for highway, other than |

through u park and only after such determination was made,

could be administrator go on to determine what steps should

be taken to minimize the impact on the park area.

Mere, the Congress decided to delete the

requirement for determination by the agency administrator as

to feasible or practical alternatives, leaving only that

section which required the administrator to determine what

steps would maximize or diminish the impact on the historic

district.

Considering the legislative history, I do not

find that — ceqeizenent un the Geune Gh tate 6

Geterminetion independently that there was some other ple

than Point Pleasant for the intake, assuming 110(f) applied.

I find that the Corps did consider and gave great weight to

the determination by ORBC, that Point Pleasant was the proper

site for the intake to accomplish the water supply permits

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1449

nich it had issued, pursuant to the entire history of the

Point Pleasant project, including those matters which were

before Judge VanArctsdalen.

To the extent that the Corps referenced and

included all of the proceedings by reference that had gone

before, I find on this record, that the Corps did consider

that history in determining the appropriatness to defer to

the DRBC decision to Point Pleasant as the intake location

and there is evidence in the record that the Corps did review

and consider all of the documentation pertaining to the Point

Pleasant project as considered by the DRBC and the AEC and

the WWRA. So, I do not find it reasonable to construe 110(f)

as requiring an administrator to do other than take all

possible steps open and available to it at that time to

minimize the impact on the historic district or canal. The

Corps considered all of the options open to it and on this

record, acted reasonably in arriving at a memorandum of

agreement.

Under the applicable regulations, there's a

presumption that the memorandum agreement satirfies the

obligation of the Advisory Council to advise. I believe the

language of the regulation is that the entering into a

memorandum of agreement satisfies the obligations of the

A@visory count!

For that reason, I would find that as to the

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Advisory Council, that injunctive action is not appropriate

under the Administrative Procedure Act. The Advisory Council

has satisfied the requirements of the regulations. re has

not undertaken any final action with respect to any

irreversibly damaging action, with respect to the canal or

the historic district as certified.

and considered the effect of moving the intake 24S feet into

the Delaware River as it effects or is Considered in

conjunction with the black eddy, Salinity, the effect on the

oyster industry and fisheries, dissolved oxygen, shad,

at the intake, the effects of impingement and entrainment of

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that is not said nian by existing gages. Critically =

important, it appears from the record, that to the

determination of the DRBC and the Corps, that the Point

Pleasant project would not have any adverse effect on the

salinity level being placed at Point Pleasant, is that with

the water returns, 50 percent of the water will be returned

to the Delaware River above or at the Schuylkill River mouth.

The Schuylkill River mouth is stated in the

literature in the record to be important as a stream flow to

the curtailment of the salinity level.

So, all the water taken out will be put back

in, at least that which is measureable. 80, to the extent

the plaintiffs argue that the diversions will adversely

affect salinity, I find that that is not borne out by the

record. Moreover, it was considered and discussed by Judge

VanArtsdalen.

with respect to dissolved oxygen, I find from

this record, that there are studies available to the Corps

which were available to the Corps which showed that these

diversions or this diversion at Point Pleasant would have no

significant environmental impact.

Flows less than that which would be caused

by the diversions even at maximum diversion would not

significantly change the dissolved oxygen level at any point

along the river.

1432

ö ro with respect to the flow velocity at the

2 intake level, I find that the evidence is, in this record,

3 satisfies the reasonableness and the arbitrary and capricious

7 test in that there were studies to show that given the

& | placement of the intake, the kind of intake, the placement

@ | of the intake tubes close to one another and so forth, that

7 there would be no significant impact on fish.

a The studies made were put on a worse case -

9 | basis, assuming that there was a spawning ground and the

%@ | Point Pleasant eddy, that shad would be there as well as

Shortnosed Sturgeon either spawning or moving past that

point.

The size of the intake screens are two

millimeters, that size was considered in relationship to the

larva of shad and sturgeon and other fish, although no tests

were made on shad per se, there were tests made on fish eggs

smaller in size than shad eggs, leading reasonably to the

conclusion that shad eggs would not be impinged.

Moreover, the scimming ability of shad was

considered. The flow velocity is calculated to be two to

one at the intake but the intake structure as presently

designed, in cooperation with the Pennsylvania Pish Commission

and the United States Fish and Wildlife Service is a state of

the art intake, which has very little impact upon early stages

r D n „„ „ „ aes

of fish, even assuming less than 2-to-l velocity flow at —

A au

1453

The intake velocity diminishes dramatically as one moves one

foot from the intake.

There wee a netting operation in the vicinity

of the intake for Shortnosed Sturgeon, which in 1981 disclosed

no sturgeon. Wo sturgeon had been caught in the immediate

vicinity of the bnd.

The Shortnosed Sturgeon is an endangered

species, there was a determination by the U.S. Department of

Commerce that the Point Pleasant water diversion project woul

not endanger species in the river; further made determination

that the proposed operations would not constitute significant

environmental impact with respect to that endangered species.

It made a determination that its biological W not

related to river flow, rather to what was known about the

Shortnosed Sturgeon and that is, that its eggs fall to the

river bottom, attach to rocks, or fall or find their way

under rocks, and hence, are not subject to intake velocity

considerations. g

Moreover, there was a determination made but

there would be ongoing studies by the applicant, so that

monitoring would be made to insure that the project in no way

endangered Shortnosed Sturgeon.

As I id before, the intake is designed

anticipating the presence of Shortnosed Sturgeon, though the

is no evidence of Shortnosed Sturgeon in the area. 4

A as

* 7

1454

~, On the basis of this record, 1 find there is

no basis for injunctive action with respect to the Department

ot Commerce either under NEPA, under the APA.

Plaintiffs really have not offered anything to

refute the biological Opinion rendered.

MR. LERNER; Excuse me, Your Honor, can we

take a brief recess?

THE COURT: You may.

With respect to esthetics, which would include

the height of any buildings, the noise of any transformers,

including the bluff, the evidence shows that there is a

memorandum of *greement to blend the underground Piping and

buildings in the environment.

Apparently, Plaintiffs complain that the bluff

Outside of the Certified historic district is not being

considered. However, 1 understand from this record that the

Pipeline as to the bluff will be underground and covered.

in the area. meee 40 £0 evidence ot that time thet there és

Pertaining to the esthetics. and, the Pennsylvania Historica)

u |

| Preservation officer is there to approve any and all action.

1455

Plaintiff claims the Corps acted arbitrarily and

capriciously or unreasonably in failing to consult or to

consult in good faith with the Pish and Wildlife Service which

opposed the Point Pleasant diversion. I find that Corps did

consult and did consider all of the positions advanced by the

Fish and Wildlife Service as well as the Pennsylvania Fish

Commission. Simply because the Fish and Wildlife Service had

a reluctance to agree with the Corps, that the permit issue,

it was the Corps’ decision and not Fish and Wildlife's, with

respect to permit issuance. The Fish and Wildlife Service did

not elevate the matter as it had a right to do and its failure

to do so is evidence that it did not on appeal see any

significant environment impact.

Nothing new was raised by the Fish and Wildlife)

Service that had not been considered by the Corps.

Plaintiffs argue that the Corps erred in not

considering that with respect to the permit application the

Pennsylvania Utility Commission had rejected PECO's

application there for a license to commence operation ot

Limerick II. The record shows that reasonable it would have

been engineering-wise unsound to treat the application and

permit or construction as involving only water for Limerick

II. Limerick I had been authorized and encouraged by the

PUC. Moreover, NWRA, and independent water requirement and

4 27

deco possible withdrawal with respect to Limerick II, would

1456

not have greatly enlarged the project of NWRA.

Plaintiffs argue that the Corps erred in

issuing its permit while NRC or other local state agencies

had not acted with respect to their permits which might be

required. I believe counsel conceded during the hearing,

that there is no statutory or regulatory requirement in that

regard.

Plaintiff's main argument is that the Corps

erred in segmenting the Point Pleasant project from the

Pine Run rechannelization.

There is a regulation which requires W

to submit applications for an entire project as opposed to

piecemeal submission, that regulation came into effect in

1982, two years after the applications had been filed by NWRA;

that regulation does not take away the discretion of the Corps

to determine that objectively there should be a division of

the project and here there is evidence that the rechannelizatibn

though beneficial too, is not essential to the operation of

the water diversion system project. Therefore, even if there

is some environmental effects relative to the rechanellization

it is not essential to the operation of the system. With

respect to the canal, itself, Pennsylvania authorities have

review the proposed construction and have determined that

the proposed construction under the canal will benefit the

4 29

r ee

‘canal. The Commonwealth of Pennsylvania owns the canal. The

1457

kind of intrusions into the canal or under the canal, a not

uncommon along its route.

Now, with respect to the plaintiffs’ claim chad

the Corps did not consider a final level B study or a ground

water study done for the DRBC in making its determinations,

I find that again, it was reasonable for the Corps to defer

to the DRBC and this is consistent with the determination by

Judge VanArtsdalen in the Hansler case. The level B study

is not inconsistent with the management powers of the DRBC

to limit the withdrawals for PECO, if river flow is below

3000 CFS and to manage ts withdrawal of the potable water

by mn in times of drought, nor is it inconsistent with the

declared management objectives of the DRBC at Montgomery-Bucks

County or other areas having ground water, develop a better

system for utilization of ground water in conjunction with

surface water.

With respect to the ground water study

completed in September of 1982, it does appear from the

report that the rechargeable rate for wells in the kind of

rock which is prevalent in these counties is very slow and

unpredictable.

With respect to plaintiffs' contentions that

PECO or NWRA could get their water from Philadelphia or other

places, including ground water wells, I find that the

owe = 8: 8 8: s-8 6 & 8s

plaintiffs’ Claim of arbitrary and unreasonable would fail

| corps and encompassed in its findings. Perhaps not in detail,

1458

based on the Pennsylvania DER assessments and studies wn,

that possibility as being unworkable, both water-wise and

in terms of its hope for industry or population growth

patterns to diminish the effect on consumption of water.

Plaintiffs argue, as well, that the Corps or DRBC did not

consider the Schuylkill River or upstream Schuylkill River

storage as an alternative to taking out of the Delaware ares

again, the record shows that there was consideration by DRBC

and Pennsylvania DER of upstream storage possibilities, along

with PECO, as well as the availability of water at times

required by the Limerick operation from the Schuylkill and

those alternatives were rejected.

With respect to the Schuylkill in terms of

temperature of the water or low flows or adverse environmental

conditions which would arise from a diversion, now, I do not

find as a matter of law that the Corps was obligated to do

an independent study of every matter that might have been

raised by the plaintiffs. The Corps was entitled to review,

to consider the source of the liability, the ä and

its own experience in evaluating information developed by

others, whether it was the mn or the DRBC or PECO. A

review of the administrative record shows that information

from these various sources was in the file available to the

1459

but sufficiently so, as to persuade this Court that it would

be erroneous to conclude that the Corps acted unreasonably or

arbitrary and capriciously.

With respect to the DRBC, the plaintiffs’ cla

against the Corps overlap, but to the extent that they do, “|

any discussion with respect to the DRBC will be equally

applicable to the Corps. With respect to the Corps, I find

that it's actions on the state of this record satisfy the

reasonableness test. Because the DRBC entertained and

specifically treated the plaintiffs’ petition for reconsiderath«

one could analogize that to affording the plaintiffs a We

Therefore, the standard of review in that

instance would appear to be the arbitrary and capricious

standard as opposed to the reasonableness standard. The

arbitrary and capricious standard is usually accorded to a

reviewing agency in decisions where there has been an

administrative hearing. The reasonableness standard may be

more approprinte in reviewing agency action that was taken

not pursuant to a hearing or after a hearing or for

promulgation of a regulation. In reviewing the assumed

Claim against the DRBC, I must assume that the claim is

being asserted under the Administrative Procedure Act or

under — you tell me, Mr. Sugarman. Under what statute or

regulation are you proceeding as to the DRBC?

MR. SUGARMAN: It's under common law, Your

A 3,

eseosess 8 8@e8638 8&8 &© 8

1460

nonor.

MR. GOLDBERG: Your Honor, if I may, the U.S.

Administrative Procedure Act specifically of the DRBC's

compact is not applicable to it and that fact is so noted in

Judge VanArtsdalen's opinion. So, we are not governed by that

procedure specifically.

THE COURT: All right. I will look at the

claim against the DRBC in terms of whether or not the DRBC

acted ‘reasonably or arbitrarily and capriciously, because I

am satisfied that under those tests, no matter how the

plaintiffs might be proceeding, injunctive relief is not

appropriate. Judge VanArtsdalen found, and I agree, that the

DRBC has particular expertise to which the Corps could defer

to the DRBC as lead agency to determine all locations of

water, the need for water and the management of the river.

The Delaware River is a managed flow river. All agree. The

DRBC has the exclusive responsibility for the management of

this river and water in the basin. The thrust of plaintiffs’

charges as to DRBC, is that given its analysis of river flows,

that the 3000 CFS objective at Trenton is unreasonable and

known to be a mirage by the DRBC for purposes of the Point

Pleasant project.

In short, plaintiffs argue that DRBC acknowledg:

that there's not enough water in the river and that any

| diversions without augmented flows from dams or reservoirs

A 422

pt/xt

tke

wuesess3s8868e8sese see v B&B

1461

to be constructed in the future, will be detrimental to

marine life, to the fishing industry and all of the objectives

with respect to salinity control, dissolved oxygen and the

like.

The plaintiffs’ arguments on this record

overlook several important factors with respect to the level

B studies, the salinity studies and the good faith

negotiations. First, the level B study, that's not taking

into consideration in its analysis that there would be no

controls by PECO if the flows are below 3000 CFS in terms of

future projections, nor the management ability of DORBC with

respect to the withdrawal by NWRA in times of low flow, nor

is there plaintiffs’ evidence or argument which considered

the fact that the level B report states, I believe, that

given existing storage capacities, there is still 110 Crs

available for allocation, nor does the plaintiffs’ argument

take into consideration that the diversion at Point Pleasant

would result in consumptive loss of only 8 CFS. To equate

the effects of withdrawal of 95 o with a consumptive loss

of 95 MGD, is misleading. ;

DRBC has the responsibility to administer the

river flows to meet the permanent application requirements

and restrictions as well as one of the public needs served

by the river.

Mr. McCoy's presentation basically was a

My é

eeesst?8eéeezstse#@é@stesa

' 1462

challenge to DRBC or an attempted challenge to DRBC to fulfill

its commitments; that is through good faith. This Court is

not in a position from this record to place suspicion on the

the ability of DRBC to manage the river nor would it be

appropriate for this Court to in effect attempt the manage

the river for the DRBC. It's management abilities with

respect to PECO and NWRA would reasonably appear to give it

the manageability to control the withdrawal of those

applicants in accordance with the good faith negotiations

results, whatever they may be, which as I understand it from

the material reviewed will be to look at the drought of the

*60's as the drought of record as a plateau, the record

suggests that the drought of the ‘60's is recurrent on 100

to 300 years as opposed to the drought of the ‘30's, that

occurs maybe once every ten years.

Plaintiffs allege, among other things, that

the DRBC has already put into effect the recommendations

from the good faith on negotiations with respect to the

pon down of water from New York storage unit and hence,

argues the plaintiffs their must be a bad faith attempt

undertaking to ramrod- into effect all the other tea:

including a relaxation of the salinity objectives.

The record shows, however, that the good faith

negotiation recommendations are subject to public hearing and

comment and that is an ongoing process, and hence, there is

A 34

i a

“ — —_— — — — 75 — ae — — ——— 3 2 —— — — —

1463

no room for this Court to find, on this record, that there

2] has been a relaxation in fact of the salinity objective.

This Court is not the proper forum for an

attack on the proposed salinity level, if there is any change,

that should be done through the proper administrative 6

available to plaintiffs or others through the DRBC.

7 I have reviewed that the plaivtiffs' objectiong

8 | raised to the DRBC and the responses to each. In light of

® | the record before the DRBC or that as considered by the DRBC

% | through its own contractors or supplied through studies

contracted for through the m. I do not find any reason

to conclude that in denying the plaintiffs’ petition for

‘Teconsideration, the DRBC acted arbitrarily, capriciously or

unreasonably.

I could go through each of these in terms of

the objections and the responses on this record but I will

not.

I have studied the objections and I have

studied the responses and found in the record support for the

responses.

Based upon my independent findings and ‘

discussion here, the Court adopts and incorporates in this

bench opinion the following proposed findings of facts as

prepared by NWRA, because they are consistent with the Court's

foregoing findings.

A 385

——

————_

sesesszst: 8 @sesestse#eeteeteasp &

1464

The Court adopts 1 through 25; 27 through 40,

those are background historical as to which there should be

no objection.

41 through 65. 66 through 76. 77 through 82.

83 through 116. 117 through 134. 135 through 147. 148

through 150.

I find that those findings of facts are

supported by the record evidence available to the Corps and

the DRBC.

Plaintiffs final argument with respect to all

of the agency defendants and un and PECO is that there was

a commitment to the Point Pleasant location such that the

Corps merely rubber stamped the desire of the NWRA and PECO

to use the Point Pleasant site because it was titled to

WWRA and that thereafter all of the efforts of the Corps

amounted to no more than going through the motions and was

not a good faith environmental assessment.

The plaintiffs suggest that the hiring or

the contracting of Miss Mints was designed to result in a

historical district whose boundaries would not include the

bluff or the esthetic charm of the village as opposed to

selecting the Bucks County Conservancy as advisor on the

historic certification beca: se or whereas the later had a

broader sense of the boundaries of the historic district.

I find that the record shows that the Bucks

zseseesests8eeetezstse#eeerta sa

1465

County Conservancy took the position that it was unavailable

as a contractor to complete the project within 30 days, Miss

Mintz was. |

The plaintiffs argue that Miss Mintz did not

consult with the Bucks County Conservancy.

It is apparent from the record that the Bucks

County Conservancy did review and critique Mints report

evaluation. The Court submitted to the Advisory Council both

the Mintz report as well as the Bucks County Conservancy's

critique comments of the Advisory Council had both Mintz’

report and the Bucks County Conservancy's views as well as

the views of the State Historical Preservation officer in

determining the extent of the boundary of the historic :

district.

Plaintiffs argue that Colonel Baldwin refused

to meet with representatives of Delaware on sito. The

record does not support the view of Colonel Baldin as one who

took the tact of avoiding contact with the public or with

the plaintiffs; the record does show meetings with counsel

of Delaware and Colonel Baldwin and Colonel Baldwin acting as

a moderator on a public hearing of the project.

I do not regard, based upon what I reviewed

in the record, the Corps’ correspondence with the Fish and

Wildlife Service as being arbitrary and capricious.

The Wildlife Service did not specify the basas

. ’

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—_* — — — * — — — —

1466

of its objections to the project with any backup data. It's

speculative positions did not raise any concerns not already

addressed by the Corps.

Its request for information are puzzling, n

as it had as much access to the DRBC information as did the

Corps with respect to impact on biotics. Likewise, it had

access to the NWRA material. It did not conduct any

studies. The oxygen demand and segmentation appears to have

been a factor considered by the DRBC and the NWRA in the

Gissolved oxygen studies in respect to the flows in the river.

I do not observe that the Pish and Wildlife Service took the

position in the case before Judge VanArtsdalen that the

project was bad, but did not raise any issue then which was

not considered and studied to Judge VanArtsdalen's n

by the Corps.

As Judge VanArtsdalen found there, just because

one agency has a difference of mind with the permitting

agency, is not a basis for saying that an environmental

impact statement is required. In considering whether or not

the plaintiffs have borne their burden of proving entitlement

to injunctive relief, the Court must consider whether or not

the plaintiffs will suffere irreparable harm if relief is not

granted, ox whether the defendants will be harmed if relief

is granted, whether the public, generally, will be harmed if

Telief is granted and whether the plaintiffs A likely to

—

W Nane ene e sas

prevail on the merits of the clain.

| I have found that considering the evidence

Lefore me, that the plaintiffs have not shown that they are

likely to prevail on the merits of the claim. I have

considered whether or not the construction in the Delaware

River or environs should be enjoined until such time as the

WRC acts or the Corps acts upon the rechannelization project

in terms of permitting or not. The PUC has determined

Limerick I's construction is in the best interest of the

public and it has directed that PECO complete that construc-

tion at the earliest possible time consistent with public

safety. The requirements placed upon the applicant NWRA by

the Pennsylvania DER is to complete all construction by the

end of 1964. The work in the river has to take place within

a specified time during any winter, reducing the period of

time that can be devoted to construction and with construction)

with deliberateness, with a view towards public safety and

compliance with the minimization of loss of water in transport,

The DRBC has determined a need for water in Bucks and a

Montgomery Counties, based upon the experience in 1980 and

1981 of water problems in those areas with wells running dry.

Balancing the harm that would occur to the

public if the project is not available mechanically for the

supply of water to Delaware and Montgomery Counties through

men to supplement the well water and considering the harm to

A». 37

—— —

—

UFD oa

1468

the public if the Limerick I is not available for operation

on time because of the lack of completion of the mechanical

project, versus the harm to the river, to the canal, to the

environs, including the bluff, I find that on balance, the

public would suffer more harm if the project presently is

enjoined than if it continues. One, there is no harm to

the river presently if there is construction. Two, the work

under the canal will benefit the canal in terms of its

ultimate strength, according to the Pennsylvania Authorities.

Three, there is an architect available there and there are

procedures outlined for the photographing and replacement of

each aspect of the canal: dirt or stones removed. The piping

is intended to be underground. The effect on the wetlands

will be minimal and of no significant: impact and that really

has not been pressed az an issue here and the harm to the

bluff with blasting will be subject to the same conditions

as blasting in the district. The pipes will be underground

and covered. I agree with plaintiffs that if they have shown

that there was a significant environmental impact that has

been swept under the rug, then, that would be eee to

show 83 harm.

nere, it is not enough to say, well, the NRC

has not acted and Limerick might not operate. There is an

independent applicant, MWRA, whose needs have independent

justification through the DRBC.

A 00

eseeesstsee 3&8 8 F&F BSB

1469

Are there any points any counsel believe now

the Court failed to consider in its opinion?

MR. SUGARMAN: I am not able at the moment to

think of any point which the Court has failed to consider.

I did note some concerns that I had with respect to some of

the Court's statements, interpretations and so forth.

I don't know if Your Honor means to encompass

that within your question.

THE COURT: Well, concerns you can argue later.

If I misstated some fact, you should bring it to my attention.

MR. SUGARMAN: Yes, thet's what I really meant,

Your Honor.

If I may, the Court indicated that the Historic

Preservation Act has a provision for notice before suit was

filed and I don't have the statute with me, but I am not

familiar with any such provision. The same with respect to

the River and Harbors Acts. I am not familar with any

provisions in either of those statutes for public notice.

With respect to the Clean Water Act, because

I didn't ali a it for a preliminary injunction, I didn’t

put it in evidence, but we did in fact give notice to file +

a citizen’s suit action with respect to the DER actions under

the Clean Water Act. The one that we gave notice on was the

Department's determination not to require a permit for the

discharge into the Neshaminy North Branch. Your Honor stated

„„

n „neee e

1470

that we conceded that the water quality of the Delaware River

is such that it won't hurt the Perkiomen and we don't concede

that.

THE CouRT: Well, it doesn't make any

difference. I have really not assumed jurisdiction over the

clain.

MR. SUGARMAN: I understand that. The same

with respect to best applicable technology with respect to

the intake. We concede, if you will, arguendo, that the

design is BAT, but we do not concede that the location is and

the statute relates to both location and design.

THE COURT: Well, all right, I did find here

that the location, considering the design, is not unreasonable.

MR. SUGARMAN: Your Honar, also in that area,

and maybe this maybe is an area of omission, did not refer to

the fact that the documents reflect that one of the considera

in the location of the intake was to avoid crossing the state

line into New Jersey.

I don t know if Your Honor deliberately

decided — that you did not intend to refer to that.

THE COURT: Well, I read that as a possible

concern, but what was important was that the design, plus

the location had objective support for the conclusion that

there would be no significant environmental impact. in fact,

largely because of the design, the location became less «

1 | Problem.

I will not get into the NRC materials, but I

3 | am satisfied that it would be unfair to say that the location

4 | of the pipe didn't go 255, because of New Jersey. I am

e }| satisfied that the record shows it didn't go to 255 because

@ | it was thought reasonable and sufficient to have it go to

7 | 245, considering the design of the intake and the location of

8 | the intake pipes.

„ MR. SUGARMAN: Another matter that the Court

% | didn't refer to was the fact that the Corps refused to

secure or consider or to abide by and await the information

that was being developed in the preliminary hearings before

the WRC prior to issuing its permit, although we had informed

then of the intention of the NRC to hold those hearings and

they were otherwise aware of them. The Corps --

THE COURT: Well, I think I covered that by

saying there was no requirement on the Corps by the statute

of regulations to await the permit decision of any other

agency.

I might say there has been no record

determination that there has been a denial of a permit by any

permitting agency.

MR. SUGARMAN: I think there's some confusion

as to what happened with respect to the historic -- with |

respect to the national historic landmark. It is our positi

- A 43

- — 2

aie

2 landmark and not to the historic district and that it was not

1] that Section 110(f) relates only to the national historic

3] the designation of the district that created the duty to

4] minimize harm, but rather the statutory amendment.

1 N82 s 6 23 3 * 33

ivf

—

12 ö

— .

—

»eeoesstseseseeteteéeé«séé

1472

THE COURT: With respect to the canal?

MR. SUGARMAN: Yes, sir. Well, the statutory

amendment was general with respect to all landmarks

and it, of course, referred specifically to the, as we say,

I don’t think there is any dispute about it.

MS. SIEGEL: The canal is the only landmark.

MR. SUGARMAN: The statute refers only to

landmarks.

THE COURT: I understand that. I gave you

the benefit of the doubt, I suppose, since the canal had

not been crossed at any point of taking from the Delaware.

I thought you had argued here that this

particular point of the canal --

MR. SUGARMAN: Yes, sir.

THE COURT: — was so pretty but it's the

canal which is the historic landmark.

MR. SUGARMAN: That is right, sir.

THE COURT: I assumed that you were arguing

the duty really applied to the district so, I think I treated

it.

MR. SUGARMAN: The point I was getting to,

your Honor, is that the Corps, your Honor, says that the

was entitled to rely on the DRBC. I am not sure if

Honor meant in that way to dispose of our argument that

„ the DRBC specificaliy deferred on the issue ot historic

A 45

key

LaDy 28? YORES

esesesst? 8 #@e@e# tee ste & &B

1473

compliance to the Corps, and, if your Honor weant to say

that in tose circumstances the Corps was still entitled

to rely on the DRBC determination as to interpret the DRBC

determination as requiring or as determining where on the

Delaware River the water should be drawn and then relying

on that, even though a statute had been passed and if that is

the case then --

THE COURT: I don't understand what you

are saying.

The Corps, I found had a right to rely upon

the DRBC in determining by its Section 3.8 approval that

Point Pleasant was the place for the intake of water to

facilitate the delivery of water to Bucks and Montgomery

Counties and the Corps had a right to find reasonably that

that determination was conclusive.

Actually it was probably conclusive in that

there had been a long study of that project, even through a

final environmental impact statement, reviewed by the

Third Circuit with respect to the location and the location

considering that the historic landmark would have to be

crossed. And that there are archaeological sites and that

indian relics possible in the area and that practical steps

should be taken to minimize the harm to the canal, to the

historic site, including the village district.

* MR. SUGARMAN: The only point I am making,

A A

| your Honor, the DRBC made all of those decisions without

1474

taking into account, without complying with the National

Historic Policy Act, the National Historic Preservation Act,

the DRBC passed all of those issues to the Corps of Engineers,

#0, what the Court is in effect holding, therefore and I

just wanted, 1 guess to clarify that your Honor is aware that

the Court is in effect holding that the prec could make a

final decision on compliance with Section 110 which determine

compliance with Section 110(f) while at the same time passing

that responsibility to the Corps of Engineers.

THE COURT: I didn't Say that. I don't agree

with you that 110(f) requires that there be a determination

by either the Corps or by the prac of feasible and practical

alternate routes as in Placement of highways through parks.

The obligation is, once a historic landmark

is confronted, that all steps be taken to minimize the

harm and the Corps found that the canal had to be crossed.

MR. SUGARMAN: But, your Honor, what we

are talking about then is --

THE COURT: As well as the DRBC. The issue

then was how to minimize the harm to the landmark. .

MR. SUGARMAN: What we are talking about is

assuming that the landmark has to be crossed, the selection

of the location to cross the landmark that would minimize

harm.

7 17

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1475

THE COURT: To what, the canal?

MR. SUGARMAN: To the canal, right.

THE COURT: Well, the canal is important

wherever it goes.

MR. SUGARMAN: The harm might be less at

different locations.

THE COURT: I will say this. At this point

on this record, this is a preliminary injunction hearing,

not a final hearing, I have determined that considering

your concern as raised, the presumption of regularity according

to the agencies is sufficient to meet that.

MR. SUGARMAN: To meet what, your Honor?

THE COURT: Your concern, you have raised a

concern that there might be a better place along the canal

for it, there is no evidence that there is.

MR. SUGARMAN: Your Honor, there was evidence

before the Corps that there would be other locations that

would be better. There was evidence in the sense that the

— there was evidence that the point was made to the Corps.

THE COURT: The issue is not just the impact

on the canal but the impact on the delivery system of vater,

you know, it might be, you might go 57 miles north and come

back, but you still have to consider what it means in terms

of laying pipe and so forth along 57 miles to get to the

particular reservoir. As it turns out going this route is

A 4g

1476

only three-tenths of 4 mile.

MR. SUGARMAN: We are not arguing, your

Honor, that the --

THE COURT: 2.3 miles, whatever it is.

MR. SUGARMAN: We are not arguing that the

consideration of minimizing impact to the landmark is the

only consideration that the agency is allowed to take into

account.

We recognize that there can be other con-

siderations under that statute and as your Honor indicated,

that your Honor is interpreting the statute.

What we are Saying, there is no evidence that

any other locations along the route were ever considered in

order to determine whether they would minimize harm to the

landmark and whether they would be otherwise acceptable.

There is no -- and, your Honor, t just want to make sure that

your Honor was intending to hold that didn't have to be done,

Alen de what I understood your Honor to say.

THE COURT: I am holding there does not have

to be a determination in the findings that there was some

other feasible or practical route; that once the bistorica!

landmark is confronted, the agency must consider all

Possible means of minimizing the hare to the landmark.

MR. SUGARMAN: Does that include other

locations, other ways to cross the canal, other Places along

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1477

the 57 miles?

THE COURT: It could, but in my opinion

it doesn't have to.

MR. SUGARMAN: And, your Honor, further holdi

that the Corps can rely on the DRBC on that point, even thoug

the DRBC did not take into account minimizing harm to the

landmark under that statute? ;

THE COURT: I will find that the DRBC did

take into consideration minimization of harm to the canal

at that point, even before there was a deferral to the

Corps.

There is record evidence showing there were

plans minimizing the harm and determination and findings

that no significant hare would occur to the canal from the

procedures proposed by um were carried out.

So, I cannot say that the DRBC deferred.

Moreover, Section 111(f) was not in effect.

MR. SUGARMAN: Exactly.

THE COURT: But, nevertheless, I am satisfied

in this record that the DRBC treated the canal as a historic

landmark.

T am also satisfied on the record that the

DRBC choice of location was entitled to great deference for

the intake, considering the plan for the Overall project.

Por example, the Plan for the water to reenter the Perkiomen

1478

Creek, so as to enter into the Delaware River at important

points for control of salinity.

So, that's what I meant by saying there is a

Presumption of regularity with respect to DRBC's consideration

of the point of location of the intake.

There's also the consideration of where

Shortnosed Sturgeon are located in the river.

MR. SUGARMAN: By the DRBC, your Honor?

THE COURT: Mo, I am just Saying generally.

I mean, the Corps was aware that Shortnosed

Sturgeon had been Caught ten miles up river and when I say

to you that environmentally and need-wise, the DRBC determina-

tion of intake is entitled to great deference, such that

the Corps was entitled to conclude that the intake had to be

in the Point Pleasant area and was not at liberty to in

effect assume the role of DRBC in Getermining the wuter

intake location.

MR. SUGARMAN: Is your Honor then making

any holding concerning the responsibility of DRBC to review

its prior determination in the light of the statutory change?

THE COURT: The DRBC deferred to the Corps 5

to make sure that it complied, the Corps complied, to be the

lead agency on historical landmark impact minimization and

I am finding that based upon the Corps’ determination of

minimization, there was no need for the DRBC to reconsider

Poke Nee 0

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1479

its grant.

MR. SUGARMAN: Thank you, your Honor. That

Clarifies it.

| with respect to the bluff, your Honor, I

believe --

THE COURT: I got a lot of bluffs out of

your brief, that's why I referred to the brief, I mean the

bluff, I am not saying that you are bluffing, but you made

a big point in your brief that the bluff is somehow outside

of the district and is going to be harmed.

MR. SUGARMAN: Yes, sir.

Well, yes and no. We did talk a lot about

the bluff or a fair amount about it, but I believe we

said in our brief and incidentally that the record shows that

the bluff is in the historic district, and not outside of it.

THE COURT: Outside or inside, the Memorandum

of Agreement accords it the same protection as it was inside.

MR. SUGARMAN: Sir, I think I explained and

I offered testimony to the Court, to have Miss Auerbach

ob tae ese that I was present at a meeting and she was

present at a meeting where the Corps of Engineers specifically

they would not consider the bluff, would not define the

project as including the bluff and would not address then

selves to any impact on the bluff and they would not and did

not.

9 5d

n M * 2 „ 3 33 „* 38 8

1480

THE COURT: My reading of the agreement is

that the bluff is to be accorded protection as though it

were in the district, is consistent with the representations

of PECO and NWRA and the Corps here at this hearing and that

is, that the pipes will be underground and covered and subject

to the review of the powers that be to that agreement to make

sure there is conformity with the aesthetic objections and

landscaping objectives to blend as much as possible into the

existing environment.

MR. SUGARMAN: Well, I think, your Honor, I

needn't belabor the point, since your Honor has made his

determination on it.

I just wanted to call the Court's attention

to that specific fact, on that point, that the historic

district, I believe does include the bluff, and that the

Corps in its documents, to my understanding of those

Gocuments, did not afford any protection to the areas across

River Road, which means, including the bluff. They defined

their area of jurisdiction as running only to River Road.

THE COURT: Well, the Memeorandum of Agreement

though places the Advisory Council in a position, as well

as the State Historical Preservation Officer, in a position

to review all of the construction impacts affecting the

district, as well as the canal.

MR. SUGARMAN: I think, your Honor, that the

~*~

—

Anevitably as a result of the construction, and we have taken

agreement and other counsel, I don't have the agreement with

me, and I haven't looked at it -- I have looked at it from

that point of view, but I don't want to say, in response to

the Court's expression --

THE COURT: Again, I have given you what

appears to be a reasonable interpretation.

MR. SUGARMAN: Right. ‘

THE COURT: Based upon my reading and the

representation of the applicants and the permitting party.

MR. SUGARMAN: Ag I Say, there is no reason

in belaboring the point,

not failed to act or failed to carry out some non-discretionary

function and, , it seems to me, that it may be appropriate,

if in effect the Pipes are put above ground, or not covered,

to complain, but right now, it sens to me that no one is

taking the Position that you are taking except you.

MR. SUGARMAN: Well, your Honor, we take the

position that having -- the Scaring of that bluff, by clear

it and keeping it Cleared, and blasting through the bluff,

to put — they will never be able to restore the rock base,

they will not revegetate it the way it is, and it will not

be a natural rock face, as it is now, and that will occur

A $4

a ae ee ee ee ee ee ee ee.

1482

that position all along and I agree with you. And, it is

true that the other agencies haven « -- were hot and it’s

true, that the agencies have not taken the position that we

have, and that's why we are here.

Well, the only other point I would make, in

response to your Honor's question is that I am not sure as

I listen to your Honor, whether you are aware that the DER

assessment is under appeal as part of the permit appeals that

we have filed with the state.

THE COURT: I am.

MR. SUGARMAN: I wasn't sure about that.

THE COURT: That's why you shouldn't be here

on that clain.

MR. SUGARMAM: Well, your Honor, we are only

trying to maintain the status quo until these things can be

resolved and we did not select the dates for these things to

happen, and the WWRA and PECO could have applied for the

permits a long time ago and by doing it in the way that they

did, the permits came out after they had already advertised

for bids in the case of the Corps permit, the DER permits

out just about the date that they went to bid, by waiting

that log, and by shortening the time that we could obtain

final adjudications, they have put us and the Court in this

short time frame situation. So, to say we shouldn't be here,

your Honor when --

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reer eee es ee.

14 A

-HE COURT: That's an opera..onal consequence,

and the facility is not operating, I mean, so you have plenty

of time to have review before the --

2 ——«W* — —

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8 MR. SUGARMAN: That is correct, ar Honor,

and the only problem is that some of the harms due in our

view result from the inception of construction and we also

are concerned that it would be too late to have an open-minded

reassessment once construction is far advanced and they

certainly --

THE COURT: Open-minded by whou?

MR. SUGARMAN: By the agencies involved.

THE COURT: Well, the harm that the

environment faces presently is a disruption of the canal,

the filling in of some areas and scarring for purposes of

constructing, but even the construction plans are being held

in terms of adverse impact to a minimua.

MR. SUGARMAN: Your Honor, that's their

contention.

THE COURT: Well, the permit, for example, has

a requirement that the dredging equipment be barged. 80,

I agree with you that there is a risk to the environment that

there will be some temporary scarring and some of which may

not be put back in perfect order, but on balance, the risk

of harm to the environment where there is no significant --

no projection of significant, permanent disfigurement to the

canal or to the surrounding environment or to the esthetics

of the area, do not outweigh the risk of great public

inconvenience if by virtue of delay, the project is not

A s

5 2

—

} 1484

ready for operation to supply water to various sources.

MR. SUGARMAN: On that point, Your Honor,

there is no evidence in the record of any date of inception

of mn service, that is, public water supply service and

there is no -- and the PECO witness on irreparable harm

admitted that PECO has not even looked at alternative water

supply sources that would enable them to operate Limerick

unit one.

THE COURT: My understanding is that the

water need in Bucks and Montgomery Counties is ASP and that

while there has been no sale of water by contract, no water

can be sold until other permits are obtained by the NWRA.

MR. SUGARMAN: My point, Your Honor, is that

they have not -- the record is silent as to when they can --

when they can institute service and -- but the record does not

show that they need a water treatment plant in order to do

that.

THE COURT: Well, that may be so, but still --

MR. SUGARMAN: What I am saying, Your Honor --

THE COURT: tn terns of belensing the here to

the environment, based upon the record, versus the risk of

harm to the completed objectives of the bc in terms of

supplying adequate water to the basin, I find that injunctive

relief is not appropriate.

MR. SUGARMAN: My point, Your Honor, on that,

A sg

and I think it 90 to the -- the DRBC desire. to provide

water to Bucks and Montgomery Counties. That‘s not controlled

by the approval of this project. It's controlled as well

independently by NWRA's ability to complete and get permitted

and get into Operation and water treatment plant and Your

Honor may recall that NWRA provided no testimony that

indicated in any way that it would be able to institute

service upon completion of this project or put the other way,

that any delay in the construction in Point Pleasant would

delay them in instituting public water supply service. They

provided no testimony to that effect, whatsoever.

THE COURT: I am satisfied on the record that

I have balanced the equities.

I considered the prco equities and the a

loss there as Projected is credible in terms of delay costs.

MR. SUGARMAN: But, they provided no evidence

that they could not get water from another source.

THE COURT: I an satisfied that given the

state of the record that the irreparable harm issue has to be

measured from what the expectation of PECO is and that is for

the completion of this Project by the particular date and we.

are not in any NEPA considerations, but rather, in irreparable

Rem considerations end those are measured by vhat the

“pplicant has reason to expect, given the permits that have

beer issued.

u r D ts ees ste BSE GBB

s400

Do you have anything else?

MR. SUGARMAN: No, sir; only -- may I get

Clarification on Your Honor's disposition of the -- of our

Claims against the agencies? For example, under the River and

Harbors Act, joined with the Administrative Procedure Act,

Your Honor's indication that the Court has no jurisdiction,

was that intended to relate to our claims against the Corps

of Engineers for issuing the permit in which we say that they

acted arbitrarily and capriciously in violation of the River

and Harbors Acts under the standards of the APA?

Is the Court meaning --

THE COURT: There's no implied right of action.

MR. SUGARMAN: We agree there's no implied

right of action.

° THE COURT: That's what I intended to say.

MR. SUGARMAN: Insofar as they come in under

the APA, Your Honor is saying there is a cause of action?

THE COURT: Yes, and with respect to that, I

do not see that you made out a prima facie case of violation

of procedure by the Corps with respect to the Rarbors Act.

You are really claiming that the Pennsylvania authorit! <<

dida‘'t get the right permits.

MR. SUGARMAN: Pennsylvania authorities?

THE COURT: What do you claim the Corps didn't

do with respect to Section 10?

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1487

Me MR. SUGARMAN: They didn't give great views

to the Fish and Wildlife Service as required by their

regulations.

THE COURT: 1 found that they did.

MR. SUGARMAN: I meant in terms of a cause of

action.

THE COURT: That's satisfies that. What other

agenc, claim wre you concerned about -- substantive clain,

APA claim?

MR. SUGARMAN: Each of the federal agencies,

the Historic -- the Advisory Council --

THE COURT: with respect to the Advisory Council,

I found they entered an MOA and that satisfied that advice

obligation under the regulations and under case law.

Further, there is no filed action by the

Mivisory Council. They have an ongoing administrative monitorin

role. With respect to the National Marine Fishery Service,

I found that they did take final action, to be sure, they

found there would be no endangerment of the species in the

river and no basis to say that the decision was ä

and capricious and moreover, there's continuing monitoring

action by the agency. It has not abandoned and taken final

action and say they will just write it off.

MR. SUGARMAN: One other question.

Under the archaeological work that was

7 0

* *

—

u r D eee & BB

“gontinuing and Your donor was informed of last week and the

week before, the on-site work has concluded. I am informed

that the archaeologists under contract to the NWRA have given

their -- it is their opinion that there is no need to hold up

construction because of the archaeology, although, they found

some sigificant archaeological material. They found there

is a remains of an Indian house which is a rare fine, but

all that's going to be reported --

to think that you are testifying.

THE COURT: Just a minute. I do not want you

MR. SUGARMAN: Wo.

THE COURT: If you have something that you

want the Court to consider, you should submit it by way of

evidence or affidavit in a final bearing.

MR. SUGARMAN: What I was going to ask Your

Honor is, you indicated you would entertain a motion when the

archaeological findings were complete and the findings have

been made by the respective agencies, the state office and

the federal office. I just wanted to clarify that that is

still the case and that issue as Your Honor, I think said,

was not ripe at the time we brought it out on this motion. 1

don t know if we would want to be filing a motion.

THE COURT: What I said just about an hour

ago — if you want to file an amended document or another

claim, that is your right, but based upon this record, based

ow *

“oF

are Pre” rn

1489

‘ don these contentions, I have made my findings and es

MR. SUGARMAN: I just wanted to clarify that.

Thank you. .

THE COURT: I recognize, certainly, that each

of the agencies has undertaken by virtue of the limitations

on their permits or the memoranda agreements, enforceable

undertakings and they can't act arbitrarily and capriciously

with respect to the decisions on those agreements, but right

now, until there is an assertion in a proper way, that there

is an improper action, what has been done, satisfie: the

requirements of agency action.

MR. SUGARMAN: Thank you very much, sir.

MR. GOLDBERG: Your Honor, just one brief

coqment. Your Honor indicated that you were reserving the

right to amend or extend your marks and in addition, that

apparently, there will be some further proceedings before

there is a final determination on the merits of this suit

and you asked counsel about whether there were any factual

materials or corrections to be made. I took notes, but I am

not in a position to suggest to the Court any corrections or

changes at this point, but after the transcript is available,

if it appears that there are any factual points for the

assistance of the Court that we could call to your attention,

we would like to feel free to do that, so that can be

incorporated into any final statement of the Court on this

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1499

‘matter. ;

THE COURT: Anything that you find to be

significant, you should bring it to my attention now. I

will certainly correct anything that is obvious, whether it

is legal or factual, because I do not know the intent of any

party here.

There is a right of appeal from my decision

and I do not want to take the position that while I am not

enjoining construction, for example, the plaintiffs have to

wait until I have entered a final order before considering

appellate review. If you do have something in terms -- if

you feel I have made a misstatement of the law, straighten me

out my tomorrow and I will incorporate it and so there will

be a final order, but I am sdtisfied that however the Court

of Appeals looks at it, if it looks at it under whatever

theory, it has to look at the factual review of the evidence

submitted and the standard of review applied.

All right, anything else?

(Wo response.)

THE COURT: Thank you.

(Whereupon, Court was adjourned at 6:20 p.m.) ,

Ker

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT or PENNSYLVANIA

DEL-AWARE UNLIMITED, INC., et al. : CIVIL ACTION

1 .

Vv. *

ROGER M. BALDWIN, et al. : WO. 82-5115 :

BENCH OPINION CORRECTION SHEET

AND NOW, this 23rd day of December, 1982, it is here-

by ORDERED that the following correction sheet shall be in-

corporated into the court's bench opinion rendered in. this

matter on December 15, 1982.

1. P. 1438, line 4 - change “Section 110" to

"Section 10°.

2. P. 1439, line 7 - change “refusal" te “relief.

3. p. 1439, lines 9-11 - delete “the National His-

toric Preservation Act," and “and the River and Harbors

Act,". Insert and“ after et“ on line 10.

4. „. 1439, line 15 - after “Harbors Act," add “see

California v. Sierra Club, 451 0.8. 287 (1981), na,“.

3. p. 1439, line'17 - after “Court add “in 11212

sex City Sewarace Authority v. National Sea Clammers

Association, 453 U. 8. 1. (1561)...

6. p. 1439, line 24 - change “beliefs* to

"briefs".

ENTERED: ee to

CLERX OF COURT Ar

rit

—

7. v. 1440, line 10 - after ease add 619 F.24

231 (34 Cir. 1980), cert. genigd, 449 U.S. 1096 (1581).

8. . 1440, line 15 - change “agreed” ‘to “aggriev-

ed". |

9. P. 1440, line 25 - change study.“ to “state-

nent.

10. P. 1443, line 20 - delete deve“

11. P. 1443, line 22 - change “the reasonableness*

to either“ 3

12. P. 1444, line 1 - delete “a matter of record

ot“.

13. P. 1444, line 8 - after decision,“ add, 536 r.

Supp. 26 (. Dp. Pa. 1981), aff'd, 681 r. 24 805 (34 Cir.

1982).°

14. v. 1445, line 24-25 - change “Advisory Council

on Historic Preservation" to “Keeper of the National Regis-

try*.

13. P. 1446, line 1 - add after was“, “determined

to be.* <

16. P. 1446, line 9 - substitute “Corps,” for

Duc,

17. r. 1446, line 13 - after “110(f)," add “of the

Wational distoric Preservation et,

4 16e

18. P. 1446, delete lines 15-16 - add “undertake to

the maximum extent possible, such planning and actions as may

be necessary to minimize the harm to national landmarks."

19. P. 1446, line 17 - delete “assert”.

20. P. 1447, line 4 - change channel, to

anal.

21. P. 1447, line 11 — change “out” to without“.

22. . 1447, line 24 - add » ter“ before for“.

23. P. 1448, line 7 - after “case,” add 401 U. 8.

402 (1971.7

24. P. 1448, line 11 - change de to che:

23. P. 1448, delete line 17-18 and substitute “steps

would minimize the harm to the historic landsmark.*

26. . 1449, line 7 - change “appropriatness” to

“appropriateness”.

27. Ps 1450, line 25 - after "consumption,"

“assuming that the River flow is less than 3000 cfs."

28. P. 1451, line 1 - change “gages.” to "guages."

29. BP. 1451, line 2 - delete “that*.

30. P. 1451, line 7 - delete “or at* and “mouth".

Adé after above“, “Philadelphia and 50 percent through".

31. P. 1451, line 18 - delete “available to the

Corps.*. N :

32. v. 1452, line 2 - delete “is"; line 13, substi-

‘tute *is* for “are*. ; *

* A 67

33. P. 1452, lines 14 and 15 - end sentences with

“millimeters.” and fish.“ : .

34. P. 1453, line 8 = end sentence with species.

35. v. 1453, line 9 = after “Commerce” add *(Nation-

al Marine Fisheries Service)".

36. P. 1453, line 10 - substitute line 10 with “not :

endanger the species in the river. Further, it made a deter-

mination".

37. P. 1453, line 11 - add “a" after constitute“.

38. P. 1453, line 14 - end sentence with 10.“

Substitue “to what" with “it was based on what". “e”

39. . 1455, line 21 - change “reasonable” to

“reasonably*.

41. P. 1455, line 22 - reverse order of words

"“engineering-wise". and “unsound".

42. P. 1455, line 25 - after mn“ substitute “has

an“ for and“.

43. P. 1456, line 14 - end sentence with “submsis-

sion".

44. P. 1456, line 19 - delete “too”.

45. P. 1456, line 24 ~- change “review” to “review-

ed".

46. P. 1457, line 14 = change t- to chat

47. . 1458, line 8 - add “water* after “taking”.

48. P. 1458, line 12 - delete “and"; place period

after “Schuykill"; line 13 - start next sentence "Those

+ + + * and connect with sentence in line 14, stopping at

“diversion” on line 16; start next sentence “Now,” line 16;

p. 1458, line 20 - substitute “and the reliability ot“ for

"of the liability,*.

49. P. 1461, line 8 - end sentence after study“ and

substitute “that's not taking® with “They do not take".

$0. P. 1461, line 9 - substitute “in its" with

“DRBC's".

51. P. 1461, line 10 - change “controls* ts “with

drawals".

32. . 1461, lines 12 and 16 - end sentences with

*flow.” and "allocation." respectively.

33. v. 1461, line 18 - adé after “CPS,” “assuming

that the River flow is less than 3000 cfs.*

34. . 1462, line 12 - end sentence with “plateau.”

33. P. 1462, line 18 - delete on“.

36. P. 1462, line 20 - change their“ to “there” and

or“ after “attempt’.

37. . 1464, line 23 - change “later” to letter.“

$8. . 1466, line 11 - delete “do not".

39. BP. 1466, line 22 - change “suffere" to “suf-

ter".

stitute “to

61.

„14“. Line

62.

162117.

$3.

ring“.

64.

65.

66.

67.

68.

The

be".

1472, line 11 delete “not deen“ and sub-

1477, line 14 = delete “from and substitute

change “Section 111(f)"- to “Section 110(f)*.

1479, line 21 - add “stated after “specif-

1481, line 20 = change “scaring” to “scar-

1482, line 22 = change 109, to “long,".

1487, line 7 = change "That's" to "That".

1487, line 18 = change “filed* to “tinal*.

1468, line 7 = change “fine,” to ta, “.

1490, line 13 — change “my” to “by”.

standard of review, scope of hearing and evident

iary rulings made during the course of the preliminary bear-

ing, are incorporated herein by reference. The administra-

tive record of the Corps, all of which was reviewed, is here-

by marked and made “Court Exhibit 1.“

~ 9 915 S

. in THE UNITED STATES DISTRICT court 1

. cht

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 19 N.

DEL-AWARE UNLIMITED, INC., et al., 7 a

Plaintiffs .

v. Dkt. No. 82-5115

ROGER M. BALDWIN, et al.,

Defendants

NESHAMINY WATER RESOURCES AUTHORITY'S

PROPOSED FINDINGS OF FACT

Of Counsel:

COHEN, SHAPIRO, POLISHER, WILLIAM J. CARLIN 0

SHIEKMAN AND’ COHEN N.

12 South 12th Street HERSHEL J. RICHMAN

Philadelphia, PA 19107 DAVID J. BROOMAN

BEGLEY, CARLIN & MANDIO

120 Miil Street

Bristol, PA 19007

TABLE OF CONTENTS

HISTORY OF PRIOR ACTIONS, mn REVIEWS

AMD APPROVALS: ccccccccccccccescevesereeeccseveceeesecceons 1

THERE HAVE BEEN NO SIGNIFICANT CHANGES IN THE

POINT PLEASANT PROJECT OR SURROUNDING ENVIRON-

MENTAL CIRCUMSTANCES 2 Tae VABARTSOALEN *6

DECISION IN DELAWARE 1. - 6—＋*¾2ẽà 4444 ee 2 ** * 12

10 8 car pact u > assed on th

Dissolved Oxygen Leveis or on the Salinit

veveis in the Delaware River as a Result

THE U.S. ARMY CORPS OF ENGINEERS FULLY COMPLIED

WITH THE MANDATES OF SECTIONS 106 ens 110(f) oF

THE MATIOWAL HISTORIC PRESERVATION rr 22

COORDINATION Dee eee eee eee ee

THE BIOLOGICAL OPINION OF THE roam MARINE FISHERIES

SERVICE, DETERMINING WO SIGNIFICANT ADVERSE IMPACT ON

THE ENDANGERED SHORTWOSED STURGEON, EVIDENCES FULL

COMPLIANCE WITH THE ENDANGERED SPECIES ACT BY THE U.S.

ARMY CORPS OF Wim 95

ALL OF THE ADMINISTRATIVE AGENCIES CARRIED OUT THEIR

an AND DECISION MAKING RESPONSIBILITIES IN GOOD 39

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DEL-AWARE UNLIMITED, IWC.

Plaintif *

CIVIL ACTION

WO. 82-5115

BALDWIN, et al.,

Defendants.

WESHAMINY WATER RESOURCES AUTHORITY'S

Pp PROPOSED _PIMD I NGS OF FACT

I, MISTORY OF PRIOR ACTIONS, ENVIRONMENTAL REVIEWS AND

APPROVALS ee

O A water study of the Neshaminy Creek Basin was

undertaken under the co-sponsorship of the predecessor to

Pennsylvania Department of Environmental Resources, the 0.8.

9011 Conservation Service, Bucks County and Montgomery County.

As a result, the Neshaminy Creek resource plan wes developed.

Thies study included recommendations to construct, inter alias, «a

Point Pleasant Pumping Station, a taking point for water supply

purposes at Chalfont, and ten dam structures along the

Weshaminy Creek, including the dam that has created Lake Galina,

(WWRA Exhibit 13, p. 14).

2. on October 26, 1966, the Watershed Project for

Neshaminy Creek was approved by the Delaware River Basin

Commission and was added to the Delaware River Basin

Comprehensive Plan. The decision was supplemented on January

25, 1967, by adding the entire multi-purpose project as

Gescribed in the 1966 Water Resources Study to the DRBC

Comprehensive Plan. (Neshaminy Creek Watershed Project, Bucks

and Montgomery County, Pennsylvania, DRBC Docket No. D-65-76CP

DRBC Docket No. D-65-76CP(2), mn Exhibit 13, pp. 14-15).

J. On December 8, 1970, the Pennsylvania Water and

Power Resources Board issued to Bucks County Water Allocation

Permit o. WA-649 authorising the withdrawal of Delaware River

water for public water supply purposes. (NWRA Exhibit 13, p.

15). 4

4. On March 17, 1971, the DRBC amended its

Comprehensive Plan to include an enlarged Point Pleasant

Pumping Station to supply additional amounts of water for

public water supply and, in addition, to provide water to PECO

for Limerick. ‘This amendment was as a result of a feasibility

Study prepared in 1970 at the request of DRBC. (NWRA Exhibit

13, pp. 15-16). 5

3. In February, 1973, DRBC completed and submitted to

the counsel on Environmental Quality the Environmental Impact

Statement on the Point Pleasant Diversion Plan, a project which

included the withdrawal of up to 150 million gallons per day

wie A 2

(mgd) of water from the Delaware River at Point Pleasant to be

conveyed to the Chalfont Water Treatment Plant and to

Limerick. (Pinal Environmental Impact Statement on the Point

Pleasant Diversion Plan, Bucks and Montgomery Countys,

Pennsylvania, mn Exhibit 13, p. 16).

6. DRBC concluded in its Final Environmental Impact

Statement that the proposed project would be beneficial to the

Neshaminy and Perkiomen Watersheds and not detrimental to the

Delaware River Basin. (ma Exhibit 13, p. 16).

7. %In January, 1977, Bucks County completed a study

of water supply needs of Central Bucks County and the

alternatives for meeting those needs. The study concluded that

the Neshaminy Water Supply System was the best overall.

(Central Bucks County Water Supply Study, WWRA Exhibit 13, p.

16).

8. In February, 1977, Montgomery County completed a

study of the water supply needs in Central Montgomery County

and the alternatives for meeting those needs. Said study

concluded that the Neshaminy Water Supply System was the best

overall. (Water Supply Study for Montgomery County, MWRA

Exhibit 13, p. 16).

9. In March, 1977, the Delaware Valley Regional

Planning Commission completed its Interia Population Projection

Report including, therein, projections for the population by

the year 2000 in Central Bucks and Central Montgomery Countys.

Montgomery, Philadelphia Countys, Pennsylvania, NWRA Exhibit

13, p. 16).

10. In conjunction with the results of the three

last-referenced reports, NWRA initiated the preparation of its

Environmental Report which included re-evaluation of the

Weshaminy Water Supply Project as described in the DRBC

Comprehensive Plan and an evaluation of the information

contained in the DRBC Environmental Impact Statement on the

Point Pleasant Diversion Plan. In conjunction with the

preparation of this Report, mn drew on the expertise of

acquatic biologists, environmental engineers, archeologists and

other consultants. (mn Exhibit 13, p. 17).

11. On the basis of the above-referenced studies and

reports, the designed capacity of the Treatment Plant at

Chalfont was selected to remain at 20 mgd for the initial

installation; however, the ultimate capacity of the Treatsent

Plant was reduced from 80 to 40 mgd to meet the supplemental

water needs of the service area of Central Bucks and Montgomery

Countys. (WWRA Exhibit 13, p. 16). :

12. In September of 1978, mn submitted to the

Department of Environmental Resources an application for a

modification to the Water Allocation Permit along with an

updated report. The report concleded that there is a need for

less supplemental water supply then originally projected in

1970. (MMA Exhibit 13, p. 17).

13. ta Bovember, 1978, the Department of

Bnvironmental Resources issued Water Allocation Permit Ho.

i %

0978601 to NWRA, superseding the originally issued Water

Allocation Permit. This Permit was issued together with an

exhaustive report prepared by the Department of Environmental

Resources supporting and justifying the issuance of the new

permit. The new permit granted um, under certain conditions,

the right to withdraw water from the Delaware River at Point

Pleasant as well as from Pine Run and Worth Branch of Neshaminy

Creek to provide up to 40 mgd of potable water to Central Bucks

and Central Montgomery Countys. This potable water would

supplement the existing limited groundwater supplies. (DER

Water Allocation Report, November 1, 1978, MWRA Exhibit 13, p.

17).

14. Concurrent with all of the above-mentioned

reviews of the basic Point Pleasant ®roject and Neshaminy Water

Supply Systen, the Atomic Energy Commission completed the

preparation of its Pinal Environmental Impact Statement on the

Limerick Generating Station which incorporates, by reference,

the Environmental Impact Statement prepared by the DRBC. 8

Electric Company, MWRA Exhibit 13, pp. 17-18).

15. Based-on the Final Environmental Impact Statement

prepared by the Atomic Energy Commission, the previous

BEnviconmental Impact Statement prepared by the bc, and the

records compiled at public hearings held before the Atomic

Safety and Licensing Board and the Appeal Board of the Nuclear

Regulatory Commission, the Muclear Regulatory Commission issued

gs Ae 2

to Philadelphia Electric Company construction permits for the

Limerick Plant in March, 1975. (In the Matter of Philadelphia

Blectric Company (Limerick Generating Station, Units I and If),

Docket Nos. 50-352 and 50-353 (March 19, 1975), mm Exhibit

13, p. 18).

16. An appeal was taken to the Third Circuit Court of

Appeals and they decided, inter alia, that the Environmental

Impact Statement prepared by the Atomic Energy Commission and

DRBC met the requirements of the National Environmental Policy

Act. ( L AL ’

Docket Ho. 75-1421 (November 12, 1975), mm Exhibit 13, pp.

18-19).

17. In February 1979, mum issued its draft

Environmental Report. (mmm Exhibit 14).

18. on May 30, 1979, WWRA held public hearings on its

Graft Environmental Report. (lum Exhibit 14).

19. on July 5, 1979, m filed its application for

Section 3.8 approval under the Delaware River Basin Interstate

Compact with DRBC which was accompanied by its Environmental

Report, the transcript of the Public Hearing of May 30, 1979,

and a report prepared by NWRA responding to the comments

received at the May 30, 1979 Public Hearing. (mm Exhibit 13,

p. 20).

20. When WWRA filed its application for Section 3.8

approval with DRBC, DRBC had available to it three Pinal

Zavironmental Impact Statements, together with all the

supporting data. They were: (1) “Point Pleasant Diversion

-6- A 78

Bar.

Plan, Bucks and Montgomery Countys,” prepared by DRBC in 1973;

(2) “Limerick Generating Station, Units I and 11, prepared by

the Atomic Energy Commission in 1973; and (3) “Neshaminy Creek

Water Shed," prepared by the U. 8. Department of Agricultural,

Soil Conservation Service in 1976. (NWRA Exhibit 13, p. 20).

21. In February, 1980, pursuant to the Rules of

Practice and Procedure §2-4.3, DRBC issued its Environmental

Assessment of the Neshaminy Water Supply System and related

components and, at the same time, the Executive Director issued

a notice of his intent to issue a “Negative Declaration." DRBC

invited public comment to these documents. lot ee of the

Executive Director's intent was forwarded to all relevant

federal and state agencies; also notice of the Executive

Director's action was given at the DRBC public meeting of March

10, 1980. (MWWRA Exhibit 13, pp. 20-21).

22. In August, 1960, pursuant to DRBC's Rules of

Practice and Procedure, §2-4.4, DRBC issued its Final

Bnvironmental Assessment for the Neshaminy Water Supply Systes

including the issuance by the Executive Director of a “Negative

Declaration.” Public notice of his recommendation to issue a

“Negative Declaration® was sent to all the relevant state and

federal agencies; also, said action was announced at the DRBC

public meeting of August 27, 1960. (m Exhibit 13, pp.

20-21).

23. on Movember 18, 1980, pursuant to public notice

and DRBC's Rules of Practice and Procedure, §2-1.5, a public

hearing was held on DRBC's proposal to amend its Comprehensive

855 Bow

Plan and to grant Section 3.8 approval under the Interstate

Compact to NWRA and PECO to construct the components of the

Neshaminy Water Supply System. (m Exhibit 13, p. 21).

24. On February 18, 1981, DRBC authorized an

amendment to the Comprehensive Plan and granted the Section 3.8

applications of both PECO and mn, subject to certain

expressed conditions and limitations. (NWRA Exhibits 2 and 3).

25. The actions taken by DRBC in February, 1981 were

reviewed by the 0.8. District Court, Eastern District of |

Pennsylvania, in the matter of Delaware Water Emergency Group,

ot al., v. Gerald M. Hansler, et al., 536 F. Supp. 26(E.D. Pa.

1981). The primary issue before the court was whether the DRBC

had fully and fairly considered the environmental impact of the

proposed project in conformity with the National Environmental

Policy Act of 1969. 75

26. In rendering his decision rejecting the

challenges that the DRBC Environmental Assessment failed to

comply with the National Environmental Policy Act, Judge

VanArtsdalen concluded:

The record in this case makes four

matters quite obvious. First, there

have been at least three prior EBISs on

the basic plan and concept, all of

which were available and considered by

Doc. With the Level B Study, there

have been at least four BISs prepared.

approved the plans based on pr ſor

Bnvironmental Impect Statements and

other studies, is a substantial

* Not adopted by the Court re A 90

reduction in the quantity of water to

be withdrawn from NWRA's Water

Treatment Plant. Fourth, the

Environmental Assessment prepared is

Getailed, up-to-date and adequately

considers any changed circumstances.

27. On Appeal to the Third Circuit Court of Appeals,

the Third Circuit affirsed, without opinion, Judge

VanArtsdalen's decision. (Delaware Water Emergency Group, et

al, v. Gerald M. Bansler, et al., 681 7. 26 805 (3d Cir. 1982).

28. Following a preliminary meeting among PECO, NWRA

and the 0.8. Army Corps of Engineers Staff (Corps), by letter

Gated September 8, 1980, PECO and m provided to the Corps a

joint submission describing the Point Pleasant Pumping

Facilities and Associated Systems. Said submission provided

Getailed information of all facilities including the treatment

plant and all transaission mains. „ (Plaintites® Exhibit 15 and

60). 5

29. By letter dated October 28, 1980, after review of

all material submitted by PECO and WWRA, the Corps advised PECO

and WWRA that it had determined that two (2) permit

applications were to be submitted; one (1) for the Pine Run

rechannelizetion and one (1) for the Point Pleasant intake

structure. All other facilities were covered by the

*nationwide* permit progras. , ;

30. As a result of the Corps directive, in December,

1980, n applied to the 0.8. Army Corps of Engineers for a

permit (Application Bo. MAPOP-R-800534-3) to construct a water

intake structure in the Delaware River and under the

Pennsylvania Canal at Point Pleasant and for a permit

(Application No. NAPOP-R-80-813-3) to rechannel a portion of

Pine Run adjacent to the site for the water treatment plant.

(Corps of Engineers, Exhibit 5).

31. on April 6, 1981, the Corps issued a public

notice that mm had applied for the above-referenced permit.

(Corps of Engineers Exhibit 3, p. 1).

32. On August 10, 1981, the Corps issued a notice of

public hearing concerning NWRA's application for permits and

scheduled said hearing for September 15, 1981. (Corps of

Engineers Exhibit 2, p. 8).

33. On September 15, 1981, a public hearing was held

on the mmm applications at the Bucks County Community College,

Newtown Township, Pennsylvania. The public hearing was

attended by approximately 1000 concerned persons. (Corps of

Engineers Exhibit 2, p. 8).

34. A record of the public hearing was prepared and

notice of its availability was published on January 11, 1982.

(Corps of Engineers Exhibit 2, p. 8).

35. The Commonwealth of Pennsylvanis, Department of

Environmental Resources, in conjunction with its evaluation of

N applications for, inter alia, the water intake structure,

prepared an “Environmental Assessment." (NWRA Exhibit 13).

36. Said Environmental Assessment was issued in

August of 1982 contemporaneously with the issuance of permits

to m and PECO. m Exhibit 13).

37. Said Environmental Assessment was forwarded to

the Corps and reviewed by the Corps. (Corps of Engineers

Bxhibit 2).

38. on October 14, 1982, the Corps of Engineers

issued an Environmental Assessment in conformity with the

Wational Environmental Policy Act of 1969. (Neshaminy Water

Resources Authority, Point Pleasant Diversion Project, Point

Pleasant, Bucks County, Pennsylvania, a ssmen

Corps of Engineers Exhibit 3).

39. The Environmental Assessment prepared by the

Corps concluded, inter alia, that the issuance of a §10/404

permit did not constitute “major federal action" and that the

installation of the water intake, conduit and pumphouse will

not “significantly effect the environment." (Corps of

Engineers Exhibit 3, pp. 17-18.) 85

40. on October 25, 1982, the U. 8. Corps of Engineers

issued permit Ho. BAPOP-R-80-534-3 to m permitting un to

construct a water intake structure in the Delaware River/

Delaware Canal at Point Pleasant, Bucks County, Pennsylvania.

(Corps of Engineers Exhibit 2).

11. THERE HAVE BEEN NO SIGNIFICANT CHANGES IN THE POINT

PLEASANT PROJECT OR SURROUNDING ENVIRONMENTAL CIRCUMSTANCES

SINCE JUDGE VANARTSDALEN'S DECISION IN DELAWARE I.

* * be No Ad se Impact c h_ and Aq

Hota Prom The Change In the Location of the Ini

41. A 1978 Report prepared by RMC Corporation and the

WWRA Environmental Report prepared in 1979 evaluated the effect

that a shoreline intake would have on the aquatic life in the

Delaware River. (H.T. 206, mmm Exhibit 14).

42. The Environmental Assessment prepared by DRBC in

February of 1980 concluded that such a shoreline intake would

not cause a significant impingement or entrainment of aquatic

life and as a result there would be no significant adverse

effects. (DRBC Exhibit 3, page 2-37, 2-38).

43. During the pendancy of the DRBC evaluation of

WWRA's pending 3.8 application, a report was submitted by NWRA

to DRBC entitled "Biological Evaluation of the Proposed Water

Intake in the Delaware River at Point Pleasant, Pennsylvania.”

Said report was prepared by P. L. Harmon of the Pottstown

Boological Laboratories. (Harmon, 1980 Report, WWRA Exhibit

35).

44. ‘The Harmon 1980 Report evaluated the effects of a

wedge-wire intake structue located 200 feet from the

Pennsylvania shore on 91] forms and stages of aquatic life ;

located in the area of Point Pleasant; the evaluation included

an analysis of the impacts on all stages of American Shad, from

the larvae stage up to adult. For purposes of his evaluation,

he assumed it was a nursery and spawning area for shad. (NWRA

Exhibit 35 pp 8-12).

45. The Harmon 1980 report concluded that the

wedge-wire intake will effect a marked reduction in potential

entrainment and impingement losses of aquatic life when

compared to a conventional travelling screen design (shoreline

intake). The operation of the proposed intake will not result

in biologically significant impacts of the resident or

migratory fish populations (NWRA Exhibit 35 p. 1).

Nen 46. At the time of the approval of the Docket

Decision D-65-76 CP (8) by DRBC in February 18, 1981, DRBC

engineering division and environmental unit staff had already

reviewed the intake des{gn change. (mn Exhibit 34; NWRA

Exhibit 3, p. 8).

46. The only environmental impact not considered by

DRBC of the intake structure on aquatic life was the effect

said intake structure would have on shortnosed sturgeon. The

existence of shor tnosed sturgeon eight miles downstream from

Point Pleasant was not determined until after the completion of

the DRBC Environmental Evaluation. (Delaware I p. 46).

48. Subsequent to the DRBC Environmental Evaluation,

mm proposed to extend the intake structure further into the

river where velocities are greater. It was proposed to extend

the intake an additional 45 feet into the river. (WWRA Exhibit

5).

A 85

49. The flow velocities of the river 245 feet from

shore are greater than those velocities 200 feet from shore

(NWRA Exhibit 6; NWRA Exhibit 35 p. 15).

30. Based upon a review of velocity measurements and

the river contours, the back eddy in the river extends out

150-160 feet from the west bank. (NWRA Exhibit 4, Exhibit 6

and Exhibit 35).

$1. ‘The Fish and Wildlife Service concluded, in a

letter dated March 26, 19862, that the location of the intake 45

feet farther out into the Delaware River and use of Johnson

wedge-wire screens with a maximum inflow velocity of .5 feet

per second and 2mm spacing will reduce localized adverse affect

on the fishery. If a flow greater than 2,000 cfs can be

maintained in the river at Point Pleasant, Fish and Wildlife

Service expects very little negative effect on flow patterns in

the back eddy caused by the change in the location of the

intake structure (uma Exhibit 4 and DEBC Exhibit 16).

52. Wen under the worst possible case conditions,

the effect on aquatic life of a maximum withdrawal of 95 mgd,

at a river flow of 2,500 cfs, will be practically nil. (NWRA

Exhibit 7). . |

33. The eddy area is located at least 62 feet

shoreward of the intake structure, at least 62 feet away from

the intake location. (WWRA Exhibit 10).

54. Upon the completion of review by the Corps’

Bydrology-flydraulics Branch of materials submitted by Del-Aware

and by GKY and Associates, Inc., it concluded that the subject

1 doe

report does not provide any substantive or significant

arguments for requiring additional investigation. Further, it

was concluded that said reports tended to reveal a bias. (NWRA

Exhibits 8, 9 and 10).

33. There is substantial and reasonable evidence in

the record to support the Corp's conclusion that the proposed

intake alignment intercepts the actual river channel and thus

the main river at about a right angle and approximately 800

feet downstream of the mouth of the Tobickon Creek. (Corps of

Bngineers Exhibit 2 p. 20).

36. The maximum intake velocity of the intake

structure will be .5 feet per second only when the maximum 95

mgd is being withdrawn. The average intake velocity, at that

time, is .35 feet per second, and as the amount of water

withdrawn reduces, the intake velocity reduces in a linear

relationship. (am Exhibit 7 and Plaintiff Exhibit 66).

37. The average flow velocity toward the screens, at

1 foot away from the screens, at the maximus rate of

withdrawal, will only be approximately .1 feet per second.

(Plaintiffs' Bxhibit 66 p. 3).

$8. When DRBC is not able to achieve a flow of

Trenton of 3,900 cfs through the management of water stored

within the Basin complementing natural flows, only water for

public water supply purposes will be able to be withdrawn at

Point Pleasant until PECO is able to provide its own storage

facilities. (DRBC Exhibit 1 and 9, mm Exhibits 1, 2 and 3).

59. When flows are below 3,000 cfs, it is highly

unlikely that NWRA will be able to withdraw the maximum amount

it is allowed to withdraw for public water supply, 49 mgd, due

to numerous factors, including DRBC Regulations and Conditions

included in Docket Decision No. D-65-76CP(8), ( Exhibit 3,

Conditions T and 1, WWRA Exhibit 7, DRBC Exhibit 9, DRBC

Exhibit 1).

60. mn will not be able to withdraw the maximus

amount for public water supply purposes unless such withdrawals

are subsequently approved by DER through subsidiary water

allocation permits (WWRA Exhibit 13, p. 65).

61. There was substantial evidence in the Corps

record for it to conclude that the withdrawal of water as

permitted and regulated by the DRBC will have no significant

adverse impact on the Delaware River System. Withdrawal of

water, even during low flow conditions, will result in no

significant adverse impact on acquatic organisms due to

entrainment and inpingement; such intake represents the “State

of the Act" technology with respect to intake structure

design. (Corps of Engineers Exhibit 2 p. 15).

62. If, under unforeseen circumstances, an adverse

impact upon acquatic life is noted, both DRBC and DER will 1

require such corrective action as appropriate to mitigate such

impact. (MWWRA Exhibit 13, p. 32, m Exhibit 3, Condition M).

63. Wo significant dangers are anticipated as a

result of the backwashing of the intake structure (ma Exhibit

1l).

64. The minimum surface elevation at a flow of 3,000

cfs is in excess of 70 feet and thus there will be at least a

minimum of 4 feet of water between the top of the intake and

the surface of the river at 3,000 cfs (mn Exhibit 5,

Plaintiffs’ Exhibit 66).

463. There is substantial evidence in the record to

support DRBC conclusion that the design changes to the intake

structure should reduce the degree of adverse biological impact

from that already approved as of February, 1981. (p. 11, Staff

Response, DRBC Exhibit 1).

— Lt ~an mpact — — :

Duygen Leveis Or On The Salinity Levels in The

57. aware River As A Result Of The Withdrawa!

66. There have not been any substantial changes in

circumstances from February 18, 1981, that would cause any

Gifference in the impacts caused by the withdrawal of water

from Point Pleasant upon the dissolved oxygen and salinity

levels in the Delaware River. (DRBC Exhibit 1: DRBC Resolution

$82-22 and Staff Response to Petitioners’ Factual Allegations

of 9/24/82). 88 b - .

67. DRBC concluded in February, 1981, based upon its

analysis of the affects of withdrawals, including materials

contained in the Level B Study, that the effects of withdrawal

at Point Pleasant when flows at Trenton are 3,000 cfs or lower,

on salinity levels would be virtually immeasurable. (DRBC

Exhibit 3, p. IV-16, DRBC Exhibit 1, p. 3 of Staff Response,

MWRA Exhibit 13, p. 84).

68. Because there is no change in the rate of

withdrawal projected by NWRA or the use of the water as

projected by NWRA from that which was proposed in 1981 and,

further, in light of the fact that there is no change in the

circumstances concerning the flow of Delaware River water, the

impacts on salinity, as evaluated in 1981, are unchanged.

(DRBC Exhibit 1).

69. The withdrawal of water at Point Pleasant will

have an insignificant impact upon dissolved oxygen levels in

the Delaware River even at flows as low as 2,000 cfs. (DRBC

Exhibit 2, pp. 26-28, n Exhibit 13, pp. 84, 88 and de

Bzhibit 3).

70. The withdrawal of water at Point Pleasant will

not affect the shad runs because the dissolved oxygen levels

are substantially reduced at approximately river mile 93 based

upon pollution discharges to the Deleware River which have a

significant impact on the dissolved oxygen levels. (DRBC

Bxhibit 2).

71. The dissolved oxygen model used by DRBC did

consider the effects of accumulated sediment deposits. (DRBC

Exhibit 2, p. 26

72. It is not possible to significantly ameliorate

the impacts of pollution ‘cads upon dissolved oxygen

concentration throughout the estuary by releasing stored water,

ar A 7⁰

because of the vast amounts required to have a significant

impact. (DRBC Exhibit 2, p. 76).

73. Only 3% of the time, since 1971, has the flows in

the Delaware River been below 3,000 cfs. (Staff Response, p.

3, doc Exhibit 1).

74. There has been no change in the amounts of water

to be withdrawn at Point Pleasant, the use of the water to be

withdrawn, or the flows in the Delaware River from those

considered in 1981. (DRBC Exhibit 1).

75. There is substantial evidence in the record to

support the Corp's conclusion that the withdrawal of water as

permitted and regulataed by the Delaware River Basin Commission

will have no significant adverse impact on the Delaware River

Systen. The project, with conditions imposed by the DRBC, will

have no significant affect on salinity intrusion of well fields

and surface water users of the Delaware River. Withdrawal of

water, even during low flow conditions, will have a

biologically insignificant effect on downstream dissolved

Oxygen concentrations. (Findings of Fact p. 15, Corps Exhibit

2).

76. Flows in the East Branch Perkiomen Creek and

north Branch Neshaminy Creek will be augmented by the project

releases and minimum flows will be maintained under the project

operating plan. The natural flow of the streams will not be

Giminished but will be augmented and enhanced, especially

dur Ing low flow periods. (NWRA Exhibit 14, pp V-26-V-23; DRBC

Bzhibit 3, pp. 2-39-2-43; 2-51-2-53; IV-39; and appendix B;

ae 1

ea. |

* *

mmm Exhibit 13, pp. 46-59, 89; DRBC Exhibit 1, Staff Response,

77. In studies undertaken prior to February, 1979, it

vas found that groundwater was inadequate to meet all of the

future public water supply needs of Central Bucks and

Montgomery Counties. The “no-action alternative* would deprive

the residents of these counties of a safe, adequate water

supply system and adverse economic and environmental conditions

could be anticipated. The most prominent adverse conditions

would be the lack of water for domestic, commercial and

industrial needs, the drying up of surface water streams of the

areas, and the contamination of the groundwater aquifer by over

pumping of wells in an attempt to meet the water demands.

(Environmental Report on the Neshaminy Water ·

Beshaniny Water Resources Authority, February 1979, p. VII-7,

WWRA Exhibit 14). 5

78. In August 1980, the Delaware River Basin

Commission concluded that further development of groundwater

was considered the “least desirable water supply alternative®

for Central Bucks nd Montgomery Countys. (Final Environmental

Assessment for the Neshaminy Water Supply System, Delaware

River Basin Commission, August 1980, pp. 2-28, DRBC Exhibit 3).

79. In 1980 and early 1981, the Eastern Pennsylvania

Region endured a period of moderate to serious rainfall

A 4

shortages. By March 1981, over 4,000 domestic wells in this

region had gone dry as a result of this drought. Four thousand

families found themselves without water for essential drinking,

sanitation and other domestic uses; costs of replacing these

supplies represented an economic loss of over $6.7 million.

* ntal Assessment R ings, Point

Pleasant Water Supply Project, August 1982, p. 69, mn Exhibit

13).

p 80. In a special groundwater study of the Middle

Delaware River Basin prepared by R. . Wright Associates, Inc.

for the Delaware River Basin Commission, Wright Associates

concluded that groundwater withdrawals exceed dry year recharge

in large areas of Bucks and Montgomery Counties. (Special

Groundwater Study of the Middle Delaware River Basin, x. E.

Wright Associates, Inc., July 1982, Vol. III, Chapter XIII,

Plaintiffs’ Bxhibit 14).

61. Based on the information contained in the R. B.

Weight Associates Groundwater Study prepared for the Delaware

River Basin Commission, the Department of Environmental

Resources Getermined in August, 1982, that further development

of groundwater, as an alternative to a supplemental surface

water supply, was an unacceptable option for the Central Bucks

and Montgomery County Region. (Environmental Assessment,

Report and Pindings, Point Pleasant Water Supply Project,

Department of Environmental Resources, August 1962, p. 71, na

Bzhibit 13).

- 21 -

- “ey

82. In September 1982, the Delaware River Basin

re-evaluated the groundwater alternative to the Neshaminy Water

Resources Authority Water Supply Project. The DRBC concluded,

inter alia, that further development of the groundwater is an

unacceptable option for the Central Bucks and Montgomery

Counties. (Staff R a tioners' Factual Allegations

of September 24, 1982, Allegation 4-H, pp. 17-19, DRBC Exhibit

1).

III. THE U.S. ARMY CORPS OF ENGINEERS FULLY COMPLIED WITH THE

MANDATES OF SECTIONS 106 and 110(F) OF THE NATIONAL

HISTORIC PRESERVATION ACT.

63. A 1978 report, commissioned by mn and written

by two University of Pennsylvania Archeologists, Urban and

Schortman, concluded that the Point Pleasant Pumping Station

would not adversely effect potential archeological resources or

historical resources, including the Delaware Division of the

Pennsylvania Canal ("Canal") and the Village of Point Pleasant,

if mitigation procedures as outlined in the report are

followed. (Plaintiffs' Exhibit 44, pp. 35-37).

64. WWRA, based upon the Urban and Schortman Report,

set forth in its 1979 Environmental Report procedures to be

followed for placing of the intake conduit under the Canal,

including the on-site presence of an archeologist. mn also

proposed to design the Pump Station Building in a manner to

conform with its surroundings. (m Exhibit 14, Appendix C).

85 AW

8S. ORBC evaluated the Urban and Schortman Report and

WWRA's Environmental Report and concluded that the Point

Pleasant Pumping Station would result in no adverse impact upon

nearby cultural resources, including the Canal. (DRBC Exhibit

3, pp. 340).

866. The Gesignated State Historic Preservation

Officer ("SHPO") in Pennsylvania is the Pennsylvania Historical

and Museum Commission.

87. After reviewing DRBC's Final Environmental

Assessment, the SHPO advised DRBC that the SHPO agreed that the

Point Pleasant Pumping Station would have no adverse impact

upon archeological resources in the area. The SHPO further

said that the Point Pleasant Pumping Station would have «

technical adverse impact upon the Canal which could be

adequately mitigated by archeological monitoring of the project

excavation as proposed. (MWRA Exhibit 16).

88. DRBC's approval under Section 3.8 of its Compact

was conditioned upon adoption of the measures in Appendix C of

WMRA's Environmental Report. (MWRA Exhibit 3).

89. OMBC was advised that consultation with the

A@visory Counsel on Historic Preservation ("ACHP") under the

nat tonal Historic Preservation Act of 1966 would be required in

conjunction with review of the Point Pleasant Pumping Station.

(WA Exhibit 16, Plaintiffs’ Exhibit 45).

90. DRBC deferred to the Army Corps of Engineers in

conjunction with the latter agency's review of m' permit

pplication for the N ot the intake structure, to

—

A 45

act as lead agency for the purpose of consultation with ACHP.

(Plaintiffs' Exhibit 45).

91. Upon the recommendation of the SHPO, the Corps

commissioned Ms. Elizabeth Mints to prepace a@ report on the

proposed Point Pleasant Historic District to be submitted to

the Keeper of the National Register in support of a request by

the Corps for a determination of eligibility of the Point

Pleasant Historic District for inclusion in the National

92. on December 15, 1981 the Corps submitted to the

keeper of the National Register said report along with its

request for determination of eligibility and comments on the

report prepared by the Bucks County Conservancy, n and the

Pennsylvania Historical and Museum Commission ("PHMC*).

(Plaintiffs' Rxhibit 48).

93. on December 29, 1961, the Point Pleasant Historic

District was determined eligible for the National Register of

Bistoric Places by the Keeper of the Register. Upon receipt of

the Determination of Eligibility, the Corps began its

tation with ACHP in fulfillment of the responsibilities

imposed by the National Historic Preservation Act of 1966 and

its implementing regulations. (Plaintiffs' Exhibit 49).

94. In the meantime, there was an on-going

consultation among the SHPO, n, the Corps and the Heritage

Conservation and Recreation Service (*SCRS*) to develop plans

for the aboveground elements of the Point Pleasant Pumping

Station which — either avoid or mitigate any potential

adverse effects upon the Village of Point Pleasant.

95. On May 27, 1981, representatives of NWRA, the

Corps, SHPO, and the BCRS attended a meeting at the site of the

proposed Point Pleasant Pumping Station at which NWRA's plans

for the design of the Pump Station Building and its attendant

landscaping were reviewed and approved. (mm Exhibit 18).

96. On September 28, 1981, the SHPO formally approved

WWRA's plans for the design of the Pump Station Building and

its attendant landscaping and advised the Corps that, in the

opinion of the SHPO, the proposed structure would not have an

adverse impact upon the Village of Point Pleasant should it be

Getermined eligible as an historic district. (am Exhibit 19,

Appendix Y).

97. WWRA's plans for the design of the Pump Station

Building and its attendant landscaping were also subaitted to

the ACHP. (Letter dated January 19, 1962 from . . Bouquard

to Charlene [sic] Dwin, attached to letter dated March 18, 1962

from Ann A. Wevel to Richard Hassel, Army Corps of Engineers.

(Certified Record, Part 8B).

98. The Corps commissioned Ms. Elizabeth Mintz to

prepare a Preliminary Case Report which, when completed, was

circulated, inter alia, to the SHPO, the ACHP and the Bucks

County Conservancy. (NWRA Exhibit 19).

99. The Preliminary Case Report included the opinions

of the Bucks County Conservancy and of Del-AMARE, Unlimited,

Inc. as representative of the views of others who had expressed

concern about the potential affect of the proposed water intake

facilities on historical and archeological resources in the

vicinity and stated that those opinions had been noted by the

Corps. (WWRA Exhibit 19, p. 15).

100. The Preliminary Case Report was submitted to the

ACHP with a determination by the Corps that the Point Pleasant

Pumping Station would have no adverse impact upon the Point

Pleasant Historic District but would have a technical adverse

effect upon the Canal which would be adequately mitigated if

. u. A. A. 6 proposed construction procedures were implemented.

(WWRA Exhibit 20).

101. The SHPO praised the Preliminary Case Report,

however, reversed its earlier approvals and called for

Pre-Construction Archeolog!i«»l Testing and Evaluation at the

site. m Exhibit 21).

102. ‘The ACEP, in conjunction with the Corps and the

SHPO, with input from the Bucks County Conservancy and the

BCRS, developed e Memorandum of Agreement designed to mitigate

oc avoid any potential adverse affects that may be caused by

the Point Pleasant Pumping Station. The development process

included a meeting attended by representatives of Del-AWARE

Unlimited, Inc., the Bucks County Conservancy, the Corps, the

ACEP, the SHPO and the SCRS.

103. The Memorandusm of Agreement was signed by

representatives of the Corps, the SHPO, and the ACHP. The

Memorandum of Agreement is an attachment to and a condition of,

WWRA's Permit from the Corps. (Corps of Engineers Exhibit 5).

7 A 98

104. In its Preliminary Case Report, the Corps noted

that “every effort has been made to minimise harm to the Canal

which may result from the present proposal for the location,

design and construction of the_water intake facilities. In

light of the alternatives discussed and mitigation procedures

outlined, the present proposal represents the most feasible and

prudent course of action." (NWRA Exhibit 19, p. 14).

108. There has been and will be no Federal Funding

for the Point Pleasant Pumping Station. (mm Exhibit 19, p.

17). 4 1 0% vrtee or «48. re

106. The Canal is neither federally owned nor

federally controlled. (WWRA Exhibit 22).

107. Alternatives to the Neshaminy Water Supply

System as a whole as well as to the Point Pleasant Pumping

Station were evaluated and rejected as infeasible by MHRA in

the 1979 Environmental Report and by DRBC in its Final

Bavironmental Assesement of 1960. (WWRA Exhibit 19, Appendix

Dd).

108. On June 14, 1982, in response to « report

written by Del-AMARE Unlimited, Inc. outlining proposed

alternatives to the Point Pleasant Water Diversion Project,

WWRA advised the Corps that m and the expert regulatory

agencies in their respective reviews and evaluation of the

Weshaminy Water Supply Systen, have long been aware of, have

fully studied and evaluated, and have rejected as infeasible,

all the alternatives specifically suggested by Del-AWARE

Unlimited, Inc. nn Exhibit 23).

sabe i

109. On August 13, 1982, the Secretary of the

Pennsylvania Departrent of Environmental Resources ("DER")

advised the ACHP that DER, in the process of preparing its

Environmental Assessment in conjunction with the issuance of a

Dams and Encroachment Permit to un for the Point Pleasant

Pumping Station, considered every alternative raised by

Del-AWARE Unlimited, Inc. and other opponents of the project

and that “none of the alternatives, or combinations of

alternatives, was found to be more cost-effective or involved

substantially less environmental impacts" than the proposed

project. (MWRA Exhitit 13, pp 67-80; WWRA Exhibit 22).

110. The Corpse was provided with the results of the

Department of Environmental Resources 1982 evaluation of

alternatives. (WWRA Exhibit 22; m Exhibit 13). ;

lll. The Corps’ Preliminary Case Report concludes

that the specific site selected for the Point Pleasant Pumping

Station is virtually the only feasible one. (WWRA Exhibit 19,

p- 12).

112. Om September 9, 1962, the Corps advised the ACHP

of the Corps confidence that there is no alternative but to

cross the Canal for which planning steps had been taken to

minimize any potential hare. (WWRA Exhibit 24). 3

113. ‘The bepertsest of Enviromental Resources, the

owner of the Canal, after its review and analysis of the

construction procedures to be utilised in conjunction with the

Canal crossing, granted approval of said procedures and

concluded “that construction of the Point Pleasant project,

A 70

followed by restoration in accordance with the specifications

approved by this agency, will leave the Delaware Canal in the

vicinity of Point Pleasant in better shape than it is today.

(WWRA Exhibit 13, pp. 43-46; WWRA Exhibit 22).

114. The Memorandum of Agreement requires NWRA to

undertake an extensive archeological testing program prior to

commencement of construction. (Corps of Engineers, Exhibit 5).

115. ‘The Memorandum of Agreement requires man to

utilise specific construction and restoration procedures

incident to the pipeline crossing under the Delaware Canal.

(Corps of Engineers, Exhibit 5).

116. ‘The Memorandum of Agreement requires NWRA to

Gesign the above ground facilities in consultation with the

SHPO, landscape the area in a manner to minimize the visual

impacts of the pumping station and boundary fence in the

surrounding area. (Corps of Engineers Exhibit 5).

117. Im December, 1980, the U.S. ten and Wildlife

Service submitted substantive comments to the Delaware River

Basin Comission for review in conjunction with the Delaware

River Basin Commission's processing of WWRA's application for

Section 3.8 approval. (Letter dated December 16, 1980 from

Borman R. Chupp, Area Manager, 0.8. Department of Interior,

7 A lol

Fish and Wildlife Service to the Delaware River Basin

Commission, Corps of Engineers Exhibit 1).

118. From December 1980, to February 1981, the

technical staff of the Delaware River Basin Commission reviewed

and assessed the substantive concerns expressed by the Fisch and

Wildlife Service in their correspondence of December, 1980.

(Staff Response to Chupp, December 16, 1980, statement in

regard to the Neshaminy Water Resources Authority Project,

Corps of Engineers Exhibit 1).

119. Ta February 1981, the Executive Director of the

Delaware River Basin Commission notified the Honorable Sherman

Tribbet, the Federal Representative on the DRBC, of the

Delaware River Basin Commission's staff evaluation of the

concerns expressed by the Fish od Wildlife Service. Contained

therein was a detailed response to each and every issue raised

by the Fish and Wildlife Service. (Letter dated February 4,

1961, from Gerald u. Hansler, Executive Director of the

Delaware River Basin Commission to the Honorable Sherman *.

Tribbet, Department of the Interior, with attachments, Corp of

Bngineers Exhibit 1). .

120. ‘The February 18, 1981 Docket Decision of the

Delaware River Basin Commission clearly evidences DRBC's

sensitivity to the issues that had been raised by the Fish and

Wildlife Service. (WWRA Exhibit 3).

121. Condition “7 of the DRBC Docket Decision

requires WWRA to cooperate with the Fish and Wildlife Service

in the choice of an intake structure design. (NWRA Docket

Decision Wo. D-65-76CP(8), February 18, 1981, MWRA Exhibit 3).

122. Condition 1 of the bc Docket Decision

requires m to construct the intake structure in the river

dur ing the per ſod between November through March “to reduce the

potential for impact on mitigrating juveniles and adult shad."

(WWRA Docket Decision D-65-76CP(8) February 18, 1981, NWRA

Exhibit 3).

123. Condition d of the DRBC Docket Decision

requires construction of the Delaware River intake and intake

conduit to be controlled to minimize any and all impacts on

existing wetland areas. (NWRA Docket Decision §D-65-76CP(8),

February 18, 1981, m Exhibit 3).

124. The Delaware River Basin Comission

consultation, review and conclusions with respect to the

substantive concerns raised by the Fish and Wildlife Service

were judicially approved by the United States District Court

for the Eastern District of Pennsylvania and the Third Circuit

Court of Appeals, (Del-Aware Water Emergency Group, et al. v.

Gerald HM. Bansler, et al., $36 . Supp, 26 (B.D. Pa. 1981)

aH d., 661 7.24 805 (34 Cir. 1982).

125. In June 1981, the 0.8. Fish and Wildlife Service

submitted to the 0.8. Army Corps of Engineers substantive

comments for consideration in the Corp processing of NWRA's

permit application to build a water intake structure in the

Delaware River at Point Pleasant. (Letter dated June 19, 1981,

from the 0.8. Department of the Interior, Fish and Wildlife

* A 19s

Service, to Colonel Ton, U.S. Army Corp of Engineers,

Plaintiffs’ Exhibit 65).

126. In July 1981, the Army Corp of Engineers

requested the applicant, NWRA, to respond to the substantive

comments raised by the 0.8. Department of Interior, Fish and

Wildlife Service. (Letter dated July 2, 1981, from Roy

Dermark, Jr., Chief of the Corps, Permits Branch, to E. l.

Bourquard, Engineer for Neshaminy Water Resources Authority,

Corps of Engineers Exhibit 1).

127. By letter dated January 22, 1982, the applicant,

WWRA, provided detailed substantive responses to the concerns

expressed by the Fish and Wildlife Service in June 1981. The

issues raised related to secondary impacts which have been

fully evaluated by the DRBC when DRBC authorized NWRA to

withdraw up to @ e ot 95 mgd from the Delaware River from

Point Pleasant. Purthermore, the Fish and Wildlife Service's

concerns regarding dissolved oxygen, diadromous fish, salinity

intrusion in the Delaware Bay, effects of more “skimming

reservoirs", and the effects of the diversion on the North

Branch of the Neshaminy Creek and Bast Branch of the Perkiomen

Creek were merely reiterations of the same concerns that had

been raised by the Fish and Wildlife Service with the DRBC, all

of which had been considered and addressed by the DRBC in

Docket Decision Ho. D-65-76CP(8). (Letter dated January 22,

19862, to Lt. Col. Roger L. Baldwin, Army Corp of Engineers f ren

Hershel J. Richman, attorney for Neshaminy Water Resources

Authority, Corps of Engineers Exhibit 1).

128. In February 1982, the substantive comments and

responses from Hershel J. Richman, attorney for Neshaminy Water

Resources Authority, and BE. . Bouquard Associates, engineer

for Neshaminy Water Resources Authority, were forwarded to

Fish and Wildlife Service by the Corps of Engineers for further

evaluation and consultation. (Letter dated February 18, 1982

to Norman R. Chupp, U. s. Department of the Interior, Fish and

Wildlife Service, from Roy E. Denmark, Jc., Chief, Permits.

Branch of the Corps of Engineers, Corps of Engineers Exhibit 1).

129. In March 1982, the Pennsylvania Fish Commission

notified the United States Army Corps of Engineers indicating

their opposition to the Point Pleasant Water Diversion

Project. The Pennsylvania Fish Commission did not, however,

state their reasons for such opposition nor did they indicate

to the Corp what areas, if any, should be further: evaluated in

the permit application process. (Letter ted March 24, 1982,

from Jack G. Miller, Chief, Fisheries Environmental Services,

Pennsylvania Fish Commission, to Col. Roger L. Baldwin,

District Engineer, Corp of Engineers, Corps of Engineers

Bzhibit 1).

130. In June, 1982, the Corp of Engineers responded

to all of the substantive comments previously raised by Fish

and Wildlife Service during the consultation process; —

specifically, “cumulative effects", “dissolved oxygen", and

“salinity intrusion." (Letter dated June 1, 1982, from Col.

Roger L. Baldwin, Corp of Engineers, to Norman R. Chupp, Area

0 ia

Manager, U.S. Department of Interior, Fish and Wildlife

Service, Corps of Engineers Exhibit 1).

131. In July, 1982, a new Memorandum of Agreement was

entered into between the Department of Interior and the

Department of the Army. Said Agreement adopted general

policies and consultation procedures to be implemented by the

two agencies in the Corp's processing of permit applications

under 310 of the Rivers and Harbors Act, and §404 of the Clean

Water Act. Additionally, the Memorandum of Agreement contained

extensive procedures for review by a higher authority

("Elevation") in the event the Corps desired to issue a permit

over outstanding objections by the Fish and Wildlife Service.

(Memorandum of Agreement between the Departement of Interior and

the Department of the Army dated July 6, 1982, Corps Exhibit 4).

132. Prom July, 1982 to October, 1982, the Department

of Interior, Fish and Wildlife Service and the 0.8. Army Corps

of Engineers continued consultation as required by the Fish and

Wildlife Coordination Act; evidenced by approximately 15 pieces

of correspondences between the two agencies. (Corps of

Bngineers Exhibit 1).

133. In September, 1962, in conformity with the

Memorandum of Agreement entered into between the Department of

the Army and the Departwent of the Interior, the Corgm notified

the Fish and Wildlife Service of their intent to issue a permit

to WWRA. (Letter dated September 24, 19862 from Col. Roger L.

Baldwin, Corp of Engincers, to Howard . Larson, Regional

A je

_ ne

Director, U.S. Fish and Wildlife Service, Corps of Engineers

Bxhibit 1).

134. In October, 1982, the Fish and Wildlife Service

responded to the Corps notice of intent to issue a permit to

ma. Although expressing general opposition to the Point

Pleasant project, the Fish and Wildlife Service notified the

Corps that Elevation“ would not be sought. (Let er dated

October 18, 1962, from Howard . Larson, Regional bir tot of

Fish and Wildlife Service to Col. Roger L. Baldwin, U.S. Army

Corp of Engineers, Corps of Engineers Exhibit 1).

135. Pursuant to the request of es and the Corps, a

biological assessment of the impacts of the Point Pleasant

Pumping Station and associated intake structure on the

endangered species of shortnosed sturgeon, Acipenser

Brevirostrum, was undertaken in 1981 by Harold u. Brundage of 4

Ichthyological Associates, Inc. m Exhibit 36, p. 1).

136. Based on incidental capture records covering

periods 1817 through 1981, the January 1962 biological n

assessment report states: “There is essentially no empirical

information regarding utilization of the Delaware River near

"Pr A 107

Point Pleasant by shortnosed sturgeon." (mm Exbibit 36, pp.

70 and 51-67).

136. During Ichthyological Associates, Inc.'s

intensive gill net sampling program, conducted from October

through December 1981, no shortnose sturgeon were collected at

the three sampling zones (1) upstream at Prahls Island, {2)

Point Pleasant site or (3) downstream at Lumberville Wing Dan.

tm Exhibit 36, pp. 57-59).

138. All life cycles of the shortnose sturgeon

including egg, larvae, juvenile, and adult stages, were

portrayed in extensive detail in the January 1982 biological

assesment and it concluded that “the Delaware River does not

represent habitat unique or essential to shortnose sturgeon"

and that “no critical habitat for the shortnose’ sturgeon has

been designated.” (WWRA Exhibit 36, pp. 72 and 35-50).

139. Construction of the intake structure will occur

only from November through March; it is uncommon for shortnosed

sturgeon to be in the upriver areas after August and is absent

dur ing mid-December through May. nm Exhibit 36, p. 72).

140. Wo shortnose sturgeon should be present near the

site during the construction — however, assuming this

species did occur at the site, a special submarine blasting

peocedure (designed to reduce concussion and minimize blasting

vibrations) bas been developed to minimize potential impact to

aquatic life. Such procedure is based on considerable

literature regarding physical properties of an underwater blast

as related to the effect A (WWRA Exhibit 36, p. 74).

-%- bos 4

141. Although there was no indication that the Point

Pleasant area of the Delaware River is utilised by shortnose

sturgeon, the January 1962 biclogical assesament assuming the

“worst case" situation evaluated all potential impacts that the

construction and operation of the Point Pleasant Pumping

Station and intake structure could have on all life cycle

st -s of this species. (WWRA Exhibit 36, pp. 1 and 70-94).

142. The conclusions stated in the January 1962

biological assessment prepared by Ichthyological Associates,

Inc. were: (1) no critical habitat for the shortnose sturgeon

has been designated at Point Pleasant; (2) no shortnose

sturgeor have been taken from such location either historically

oc during intensive net sampling program; (3) based on known

seasonal movements and results of sampling, it is unlikely that

shortnose sturgeon will occur in the vicinity of Point Pleasant

dur lug the construction periods November through March; (4) in

the unlikely event that shortnose sturgeon did occur in the

construction area, they would not be adversely affected by the

construction because the increased turbidity is well within the

species’ tolerance range; (5) the Point Pleasant intake

struct ure represents the state-of-the-art technology for

mitigating entrainment/ impingement of equatic organisms and

shortnose sturgeon during egg, larvee, juvenile, and adult life

cycles; and (6) the project will have a biologically

insignificant effect on downstream dissolved oxygen

concentrations. (WWRA Exhibit 36, pp. 1-3).

143. Pursuant to Section 7(b) of the Endangered

Species , MMPS reviewed the January 1982 biological

assessm..< and all other available data concerning the

potential impacts on the shortnose sturgeon and NMFS sent the

Corps a Biological Opinion on July 19, 1962. (Corps of

Engineers Exhibit 12).

144. wers Biological Opinion dated July 19, 1982,

concluded that “construction and operation of the Point

Pleasant Pumping Station is not likely to jeopardize the

continued existence of the endangered shortnose sturgeon in the

Delaware River." (Corps of Engineers Exhibit 12, Biological

Opin‘on, p. 16).

145. In its July 19, 1982 tranemittal letter, mrs

advised the Corps that the Point Pleasant “project construction

dur ing the period Hovember-March should cause no significant

adverse effects on shortnose sturgeon present in the

area....{end]) the proposed state-of-the-art design of the water

intake structure and projected schedule of withdrawals are

adequate to ensure that juvenile and adult shortnose sturgeon

as well as stucgeon eggs and larvee present in the project area

will not be significantly affected." (Corps of Engineers

Exhibit 12, p. 1).

146. MMPS advised Robert Sugarman (counsel to

plaintiffs, Del-AWARE Unlimited, Inc.) by letter dated

September 30, 1962, that the possibility of reduced by-pass

welocities did not change the HMFS Biological Opiaion which

stated that “the operation of the Point Pleasant Pumping

7 Ho

Station would not be likely to jeopardize the continued

existence of shortnose sturgeon in the Delaware River. (NWRA

Bxhibit 12, p. 1).

147. Wars' “gave due consideration to the hydraulics

of the proposed intake structure in the [biological] opinion,

however, maintenance of river flow above 3,000 cfs throughout

the year, was not a basis for our conclusion ....Sturgeon

movement patters from other river systems show that these life

stages [larvae and juvenile) are not likely to stay in the

upper reaches of the river for very long....Delaware River

water flows peak in March and April, therefore, adequate water

velocity should be maintained past the intake structures in the

early Spring when shortnose sturgeon are likely to be in the

vicinity." (WWRA Exhibit 12, p. 1). .

VI. All of the Adainistrative ies Carried Out Their Review

and Decision Making Pa bilities in Good Faith.

148. At the outset of their involvement in this

matter, the Corps advised WWRA that it wanted to examine the

entirety of MWRA's planned activities in connection with the

Point Pleasant Water Diversion Project to ascertain what was

involved, the extent of the Corps’ jurisdiction and the permits

which would eventually be required by WWRA and PECO to complete

the project. To this end, the Corps required submission of

extensive detailed data from WWRA, (Plaintiffs' Exhibit 15).

A ul

149. By letter dated September 8, 1980 mm and PECO

provided the information requested. (Corps of Engineers

Bxhibit 9).

150. Thereafter, the Corps processed NWRA's

application for permits for the Point Pleasant intake and

pumping station and for the Pine Run rechannelization together,

including holding public hearings on the two permit

applications together. The processing of the application on

the Point Pleasant intake and pumping station was completed

before completion of the application on Pine Run and it was

issued. (Corpse of Engineers Exhibit 5).

151. Given the limitations on construction applicable

to the intake, the length of time projected for completion of

the intake and pumping station, the projected date by which

PECO may need water from the Delaware, and the fact that the

approval of the Pine Run rechanneliszation is not essential for

the completion and use of the Point Pleasant diversion, it was

reasonable for the Corps to issue the permit for Point Pleasant

before completion of review of Pine Run.

152. ‘The Corpse’ attempt to pursuade the Fish and

Wildlife Service not to “elevate” its objections to the project

was not, sor is it evidence of, an abuse of discretion.

153. The Corps’ determination, on or about June 8,

1901, that the Bucks County Conservancy was not a viable

prospective contractor to perform historical and urcheological

reviews of the area including the Village of Point Pleasant,

was proper in light of the letter of March 29, 1981 from the

＋

Conservancy to the Corps apologizing for previously sending the

Corps certain incomplete and incorrect information and

explaining that they 414 not have the resources or staff to

perform detailed reviews, even on a contract basis. (NWRA

Exhibit 17).

154. WWRA's suggestion that the action be taken under

nat tonal Historical Preservation Act prior to the determination

of whether the Village of Point Pleasant was eligible for

inclusion on the National Register of Historical Places was not

improper, because they offered to be bound by the requirements

of the Act upon the assumption that Point Pleasant was

eligible. Moreover, the Corps refused to permit such action

until the determination was formally made, which only caused

further delay in the processing of the pernit.

155. Colonel Baldwin's refusal to meet, or to senda *

representative to meet, with respresentatives of Del-AWARE

on-site in December 1981 or to attend a conference sponsored by

Del-AMARE and apparently focused on opposing the project, was

mot an abuse of discretion, nor was it unreasonable.

156. ‘There is no evidence of record frém which it

could reasonably be inferred that the Corps, or any other

reviewing agency, acted other than in the good faith desire to

carry out their responsibilities under the law. zs

A 1B

"al," -80- 54-3

“esheriny Sater Reso.rc.s winor ity

STATEY. "OF 2

Mir ue eR

SUBJECT: Application ty Nesnaminy weter Resuurces Authority, 2875 Old York

Road, P. 0. Bux 378, Jamison, Pennsylvania for a Department of the

Aray permit to construct 4 water intake structure in the Delaware

River /Dele-are canal at Point Pleasant, Buchs County, Pennsylvania,

1, “awe Of Split: ‘esnaminy Sater -. sours «thority

2875 Old Yori. fue:

P. O0. Sox 37€

Jamison, Penntyly..ta

7. Project Gescriptivr, Locetion, Character ani Frost cof tre dressed

Activity:

“sare! Nerve of the Overall fciat Pleasant Water Diversion

Tet it.gete@ "ort e et ster r is an integral compcnent of the

„ fy ter Supply nen thet is being implemented by the Neshaminy

ter tente “thority uf Sucks ent. This system would divert water

froa toe vele ore iver cainstet st ec int Pleasant to (1) supplezent public

watcr pes im Fucks ond Montgerery Counties, and (2) provide water, when

aeeced, to the Livari.e Senerating Station im Montgomery County.

Tue Point Plea.cot Merging Station would have an ultimate cepecity to ai. rt

re ate ly 95 million gallons per day (mga) cf water and lift the water

vis @ transtission ain some 2.4 miles to the proposed 3racshte F. rv.

Tie i actes Recervoir would serve as a elected control: ec ure,

in the SeCond segnent, tie water diverted from Lrudstaw Fucar.c'r to the

“snorting hater Fescurces Authority ster supply sysioms . 14463

into 2 tremsmission “elm apsroxi otely one wil: leng to tie “orth etch

Insta” ty Creek, and ten flow by qr vity into ond throvor Loin ere to

“AG Norte rech water testet p. t located n Chaifcat, i wisylventa,

Itter trectrent to meet Feccral ing State drinking water standards, water

+o. 14 be distributed through several transmission mains to serve public

seter supply systems in Bucks and Montgunery Counties serving over 50

ruticipalities. These transmission facilities would be constructed and

operated by KARA. A maximum of pro teste 49 mgd of water will be

diverted for potable water sugmentation.

ecc of 5 Df Erm 1

> c

aisle e

ig Acting Chief, Purmits Branch

A. 1/4

s 4 : re

KAP OP -R

SUBJECT: Application by ‘weshominy Water Resources Authority, 2875 Old York

Road, P. 0. Box 378, Jamison, Pennsylvania for a Separtment of the

Army permit to construct „ster intake structure in the Delaware

River/Delaware Canal at Point Pleasant, Sucks County, Pennsylvania,

In the third segment, a maximum of 46 would be pumped from the Bradshaw

Reservoir via a transmission line sore 6.7 miles to the East Eranch

Perkiomen Creek. Water released to the upper reaches of the East Branch

bert teren Creek wduld flow by yravity in the stream channel te a diversion

point near Graterford on the Perkiomen Creek, and therce via a transmission

main to the Limerick Generating Station. This se nent, including Eredshaw

Reservoir, transfer facilities to Perkiomen Creek, and pumping facilities

from Perkiomen Creek to Limerick, would be developed and oper tte by the

Philadelphia Electric Company.

The extent of the Corps of Engineers regulatory Jurisoictisn/evaluetion

over pipeline projects is limitec to those portions of the overall project

involving stream crossings, fate structures anc/or adjacent e

crossings. Accordingly, Pniladelphia District has reviewed the overall

water diversion syste: „ deterzinec that the proposed intel

str.cture/pipeline in ze Delaware s er and under the de leite Canal

(KAPOP-R-80-534-3), „ the proposed ve location of Pine dun Creek at the

‘wrth Branch trestrent stant ( WCF -R-s9-513-2), requires processing of

individual Departent of the d per it applicetions, 41! other streas

crossings and other construction :ssuctated with the Project are either rot

within the Corps recgulstory Jaristiccion, or are sudject to existing

Cepartment of the ur sationwide peo rits. ind therefcre.J> ac. require

processing of individusi Department of the Army pers.it a>plicatisns (see

Inc? 1).

zus Statenent of Findines encompasses the Prop. sed construction of the

intake structure/pipeline in the Delaware River and under the Sslasare

Carel, hereafter referred to as proposed work NAPOP-R-20-£34-3 (lc 2).

The proposed relocation of Pine Run Creek will be adcressed in a serrate

Statement of Findings ( NAPOP -R-80-313~3).

The Foint Pleasant weter Diversion Project ss within the jurf,ciction of the

Scleware River Basin Comatssion, a Feceral/interstate a h icv!

respensibility pursuant to the Kational Environmental Policy zet of 1969.

Accordingly, the Delaware River Basin Com! 8 ſon OREC) has per om ed an

extensive evaluation of the proposed water diversion System. As the lead

Fedcral permitting er. the Delaware River Basin Commiss‘on has prepared

a Final Environmental Impact Statenent (1973) and an updated Environaental

Assessment (August 1930). The Delaware River Basin Commission is an agency

represent ing views of the Commonwealth of Pennsylvania, the State of

Delaware, the State of New Jersey, the State of New York, and the Federal

SUBJECT: Application by Neshaminy Water Resources Authority, 2875 01d York

Road, P. 0. Box 378, Jamison, Pennsylvania for a Department of the

Army permit to construct a water intake structure in the Delaware

River/Delaware Cana! at Point Pleasant, Bucks County, Pennsylvania.

government. The Corps of Engineers in making its evaluation of the

Department of the Army permit application has relied, in part, on the

information, data and conclusions of the Delaware River Basin Commission.

b. Location: The project site is located on the west bank of the

Delaware River approximately 0.3 mile downstream of the village of Point

Pleasant in Plumstead Township, Sucks County, Pennsylvania.

c. Character: The project plans. provide for constructing a water

intake structure consisting of 40" diameter cylindrical wedge wire screens

and support piping that would be located off the bottom of the Delaware

River, r 245 feet channelward from the River bank at normal

water level. The plans provide for placement of about 240 square yards of

riprap at the base of the intake screens to prevent scouring. The plans

also provide for constructing three conduits, esch measuring 42 inches in

diameter and about 300 feet in length that would be buried celow the bed of

the River and would connect to the proposed water intake structure. The

plans also provide for excavating approximately 4000 cubic yerds of

mat er e ls by draglhine method — the excavation opere t ion: . After the

three conduits and support piping foundations are ſnstz! led, the excavated

area would be backfilled with suitable material to pre-existing bottom

elevations. The plans also provide for installing about 390 linear feet of

72° diameter conduit at a minimum depth of 24 feet below the bed of the

Pennsylvania Canal. Temporary earthen cofferdan would be utilized across

the canal during the construction and trenching of the proposed 72" diameter

conduit crossing under the canal. After the conduit is installed, the

trench would be backfilled with suitable material to pre-existing canal

bottom contours.

4. Purpose: The applicant's stated purpose for the proposed project

1s to supply treated potable water serving central. portions of Bucks and

Montgomery Counties, Pennsylvania, and to provide water, when needed, to the

Limerick Generating Station in Montgonery County, Pennsylvania.

3. Corps of 1 2 Regulatory Authority: Section 10 of the River and

Harbor Act of 1899 and Section 404 of the Clean Water Act (33 USC 403 and

33 USC 1344).

— — — +

SUBJECT: Application by Neshaminy hater kesources 4utnority, 2875 Old York

Road, P. O. Box 378, Jamison, Pennsylvania for a Department of the

Army permit to construct a water intake structure in the Celaware

River /Delaware Canal at Point Pleasant, Sucks County, Pennsylvania.

4. Summary of Prior Reviews and Evaluations of the Entire Point Pleasant

Water Diversion System:

The information containted in this section was obtained, in part, from the

Pennsylvania Department of Environmental Resources. The purpose of this

section is to provide a brief history and indicate the extent of prior

reviews and evaluation of the overall Soint Pleasant water Diversion

System.

The Point Pleasant Water Diversion Project has been the subject of many

reviews, evaluations, studies and assessments over a period of nearly twenty

years. The following is @ partial listing of prior reviews, evaluations and

approvals by the Delaware River Basin Coamission, State anc County

authorities and Federal Courts.

The basic Point Pleasant Water Supply System resulted from the 1966 Water

Resources S 1 Penns wens (Penrtytvania Water

„ . y the Pennsylvania

Department of 35 end Waters (now Lear tnent af Environsental

Resources), the Soil Conservation Service of the U. 5. Departimnt of

*. and Cucks and Montgomery Counties,

—

me fundacental watersned system for Neshaminy Creek was prove ty the

De lasare River Basin Connission and added to the Delaware “iver Bas in

Comprehensive Plan on 26 October 1966, in ‘wshaminy Creex Watershed Project

Bucks and Mont Counties, Pa. ORBC Docket W pt ee

Gectston was 2285 rte by tucks 2

: ct, Bucks a 2 Font 12 ries F base

"corporatec entire multipurpose project as described in the 1966 Water

Resources Study to the DRBC Comrehensive Plan.

In 1270, Bucks unr prepared and suvnitted the Feasibility Stuc

Delawsre River P Facilities at Point Pleesant, Penns, 1 4 och

assessed the 2 5 destgn of the Fotnt Pleasant utversion “Tiattities to

provide public water supply in Sucks and Montgomery Counties, together with

water quality augmentation for the Neshaminy Creek.

NAPOP-R

SUBJECT: Application by Neshaminy Water Resources Authority, 2875 Old York

Road, P. 0. Box 378, Jamison, Pennsylvania for a Department of the

Army permit to construct a water intake structure in the Delaware

River/Delaware Canal at Point Pleasant, Bucks County, Pennsylvania.

The. Pennsylvania Water and Power Resources Board, on 8 December 1970, issued

to Bucks County a Water Allocation Permit No. WA-649, authorizing the

withdrawal of Delaware River water for public water supply.

5. On 17 March 1971, the Delaware River Basin Commission approved the plan

in 2 document labeled Comnissioners of Bucks County, Point Pleasant Pumpi

Station, Bucks County, Pa., DABL Docket No. 5-85-75 (ad 7 xe

Se ee L St. ea oe rae ut es eee

approval pursuant to Section 3.8 of the Mac Compact until submission of

final plans. The facilities included were a pumping station at Point

Pleasant with the capacity and layout to handle 211 the required puxpage of

the Delaware River water to the Neshaminy Basin, plus the proposed purgage

into the Perkiomen Creek Basin. AS part of the 1971 docket review, Delaware

River Basin Coamisson prepared and processed a craft Environmental Impact

Statement for the system in accordance with the National Environzental

Policy Act, entitled “Financial Statement - Environmental Impact of the

vania Ty

prepared and “Submitted to the Council on — Quality an expanded

— Environmental Impact Statement on the Point Pleasant Water Diversion

ystem,

In September of 1978, the Neshaminy Water Resources Authority f

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