# Appendix — Del-AWARE Unlimited, Inc. v. Baldwin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0896%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1022 ## Text ORL-AMARE OMLIMITED INC., et al., Petitioners, ve 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 v. 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. 0 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 . 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 I 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% elende 1436 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 A 8 — —— oe Ss 8 6-8 8 8: 80828877 6@8 8 8 1437 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, A 1 — — n U neee eee BB 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 — = 1439 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 A il 1440 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 A 74 r 1441 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 1 A... — — r hne eee se a 1443 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. n n D „ „ „ 3 „ 38 = 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 3 seses#sk#sts8 883 8&8 B&F BB 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 * si * 22 e a — — Ä totem, he n atm Ta * - —— — — * 5 f . a ' 1446 Pleasant was eligible for and was then placed on the historic register. 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 A 1 xte — ~ 1447 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. A 1% — ea 335 a. «i reer — u r U u A u 3 2 * 3 & = * 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 A 20 seeeses3ts8éeesesteast@és 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 feo gf 1450 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 qi q j 4 — — — 0 we eseesst:s8e#8eese#ast@s°s : 1451 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) 13 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 7 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 8 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, i 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 uw 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 As My é ie 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 24 i a “ — —_— — — — 75 — ae — — ——— 3 2 —— — — — 1 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 1 a 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 1 . ’ et, 2 ec/kt 3 in * a L * * 7 1 [Fe * 1 bad 0 * ee % 2 8 „ * „ * 1 18 * * 1 5 - — . —— her . NZ 2 . 22 W 7 * r * n — — Ä— ~y. . —_* — — — * — — — — 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 „„ 2 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 « Au 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 1 * *. 3 1 — 12 ö 15 — . 42 — »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 9 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 ee e od WE! tr atta od mr Be r n W ²¾ 2 2 12 8 „n. * : 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 A 49 rs ay se ya vet ry N > or AAD TM, ” gC Me 18 * ‘ — eA ory ty * rer n wrest, te 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 1 7 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 he Poke Nee 0 iy * n 29 . zur. 5 1 Rhee, PR ce * ae ee ee Se Bg ee ee. 6. 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 i ~*~ 4 — — — * * ~ =~ 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 -- ft S * 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* — — r nen ee 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 A — ~ } 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 n! 1 * + 7 * J. . 3 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! Torres 4 VIL Oe AL YF ES 785 j „ 1 * i >>? VALOR SY AIT N Aen? FA *> 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.) , BS L 3 Ker 8 a 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.* assed on th Dissolved Oxygen Leveis or on the Salinit veveis in the Delaware River as a Result c. 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 33 (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. A. * * 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 ay 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). &7 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 2 45 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. | eS * * g 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 - 2g - “ey 1 2 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 Register. (NWWRA Exhibit 29-1). 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 at 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0896%3A2. Public record. Not legal advice.