The opinion of the court was delivered by: DONALD W. VANARTSDALEN
MEMORANDUM OPINION AND ORDER
This action challenges the validity of approvals granted by the Delaware River Basin Commission (DRBC or Commission) to the Philadelphia Electric Company (PECO) and the Neshaminy Water Resources Authority (NWRA) to construct facilities for the withdrawal, diversion and use of water from the Delaware River by means of a pumping station at Point Pleasant, Bucks County, Pennsylvania. A maximum of approximately forty-six million gallons of water per day (46 mgd) would be allowed to be pumped and transported by conduits into the Perkiomen Creek watershed to provide additional cooling water for the nuclear energy electric generating station presently under construction in Limerick, Montgomery County, Pennsylvania, along the Schuylkill River. In addition, a maximum of approximately 49 mgd would be allowed to be pumped and transported into the headwaters of the Neshaminy Creek. NWRA would be allowed to withdraw a maximum of approximately 40 mgd from the Neshaminy Creek at a water treatment plant to be constructed by NWRA in Chalfont, Bucks County, Pennsylvania, for public water supplies in portions of Bucks and Montgomery Counties.
The total maximum withdrawals from the Delaware River at the Point Pleasant pumping station would be 95 mgd, which is a "down-scaled" version of previously approved plans for withdrawal of a maximum of 150 mgd.
Primarily because of the substantially reduced quantity of water permitted to be withdrawn from the Delaware River from that previously approved by DRBC for NWRA, the present applications were approved upon the basis of a "negative declaration" following the preparation of a final environmental assessment (FEA) that concluded that an environmental impact statement (EIS) need not be prepared because there would be no significant adverse impacts on the environment. The focal points of plaintiffs' challenge to the DRBC's approvals are the failure of DRBC to have a new, updated overall environmental impact statement prepared and the alleged failure to study and consider adequately various potential environmental effects of the projects.
DRBC, PECO and NWRA have each filed motions
which, in substance, seek a final determination of this lawsuit in their favor on the basis of the present record and all prior proceedings of DRBC. Defendants' motions will be granted. The actions taken by DRBC will be held valid.
Delaware River Basin Compact.
Today, even in the relatively drought-free area of the Delaware River Basin, water is a scarce essential natural resource.
No longer is water freely available for the taking from the natural streams and the ground. Great rivers such as the Delaware are subject to vast withdrawals to slake the seemingly unquenchable thirst of modern technology and mankind. Compromise between legitimately competing interests for the use and enjoyment of natural free flowing rivers and the need for additional water to meet the demands of an industrialized expanding population are inevitable.
For many years, private and public entities, including cities and municipalities located along the banks of the Delaware River and its tributaries in the States of New York, New Jersey, Pennsylvania and Delaware, appropriated the waters of the Delaware River and its tributaries at will. Following the consent decree entered by the Supreme Court of the United States in New Jersey v. New York, 347 U.S. 995, 98 L. Ed. 1127, 74 S. Ct. 860 (1954), the four states involved in that litigation and the United States on November 2, 1961, executed a compact with respect to the water resources of the entire Delaware River watershed entitled "Delaware River Basin Compact" (Compact), which created the Delaware River Basin Commission.
Article 2 of the Compact creates the Delaware River Basin Commission as "an agency and instrumentality of the governments of the respective signatory parties." Each of the four governors is an ex officio member who "shall appoint an alternate." The President appoints a representative on behalf of the United States.
The Act of Congress, Pub. L. No. 87-328, 75 Stat. 688, provides in substance that when the United States representative on the Commission concurs in any revision of the comprehensive plan, no other federal officer or agency shall take any action with regard to water and related land resources in the Delaware River basin that substantially conflicts with the Comprehensive Plan.
The United States representative affirmatively concurred in the contested DRBC actions in this case.
Article 13 of the Compact, as well as § 3.2, mandates that a comprehensive plan be adopted and reviewed and revised. Section 13.1 provides:
The commission shall develop and adopt, and may from time to time review and revise, a comprehensive plan for the immediate and long range development and use of the water resources of the basin. The plan shall include all public and private projects and facilities which are required, in the judgment of the commission, for the optimum planning, development, conservation, utilization, management and control of the water resources of the basin to meet present and future needs; provided that the plan shall include any projects required to conform with any present or future decree or judgment of any court of competent jurisdiction. The commission may adopt a comprehensive plan or any revision thereof in such part or parts as it may deem appropriate, provided that before the adoption of the plan or any part or revision thereof the commission shall consult with water users and interested public bodies and public utilities and shall consider and give due regard to the findings and recommendations of the various agencies of the signatory parties and their political subdivisions. The commission shall conduct public hearings with respect to the comprehensive plan prior to the adoption of the plan or any part of the revision thereof.
Referral and Review. No project having a substantial effect on the water resources of the basin shall hereafter be undertaken by any person, corporation or governmental authority unless it shall have been first submitted to and approved by the commission, subject to the provisions of Sections 3.3 and 3.5. The commission shall approve a project whenever it finds and determines that such project would not substantially impair or conflict with the comprehensive plan and may modify and approve as modified, or may disapprove any such project whenever it finds and determines that the project would substantially impair or conflict with such plan. The commission shall provide by regulation for the procedure of submission, review and consideration of projects, and for its determinations pursuant to this section. Any determination of the commission hereunder shall be subject to judicial review in any court of competent jurisdiction.
Historical Summary of Proposed Projects.
The proposed projects provide for a pumping station at Point Pleasant, Pennsylvania, with a design capacity to withdraw a maximum of 95 mgd of water from an intake point located in the Delaware River. The water thus withdrawn will be pumped through a single underground transmission line approximately 2 1/2 miles to a storage reservoir to be built on approximately 28 acres of land, designated as Bradshaw Reservoir. A smaller transmission line with capability of connecting with the large main and the Bradshaw Reservoir will transport a maximum of 49 mgd, by gravity flow approximately one mile to the headwaters of the North Branch of the Neshaminy Creek, from whence the water will flow into Lake Galena, a multi-purpose dam on the North Branch. Controlled releases from Lake Galena will continue downstream to the NWRA water treatment plant at the juncture of the North Branch of the Neshaminy Creek and Pine Run at Chalfont, Pennsylvania. The treatment plant's maximum capacity for water, to be withdrawn from both the North Branch and Pine Run, will be 40 mgd. From the water treatment plant, NWRA transmission lines will extend South and West (initially) and eventually also North and East for public water supplies. Another transmission line, to be constructed by PECO, will go from the Bradshaw Reservoir by a pumping force approximately 6.7 miles along an existing public utility right-of-way to the headwaters of the East Branch of the Perkiomen Creek. This transmission line will have a permitted maximum capacity of 46 mgd. The water will flow downstream to a point where the East Branch joins the Perkiomen Creek. At this junction point, another PECO transmission line, heretofore approved, will carry water to the Limerick plant located along the Schuylkill River.
A copy of a plan contained in the final environmental assessment is attached for reference as page 9A.
[SEE ILLUSTRATION IN ORIGINAL]
In 1966 the Pennsylvania Department of Forests and Waters (now Department of Environmental Resources), the U.S. Department of Agriculture-Soil Conservation Service and the Counties of Bucks and Montgomery of Pennsylvania prepared a joint study and report on the water supply in the Neshaminy Creek basin. The report contemplated the construction of a series of ten flood-control and/or multi-purpose dams on the Neshaminy Creek and its tributaries, and two pumping station one at Point Pleasant and the other at Yardley
on the Delaware River to supplement the surface waters of the Neshaminy Creek and its tributaries. As a part of this early plan, the construction of a multi-purpose dam on the North Branch of the Neshaminy Creek creating an impoundment designated as Lake Galena was contemplated together with a "taking" of water for public use from the North Branch at or near Chalfont Bucks County, Pennsylvania, where the North Branch and Pine Run converge This fundamental concept and project was approved by DRBC and added to the Comprehensive Plan on October 26, 1966.
The present DRBC approval of NWRA's application pursuant to § 3.8 of the compact--the subject matter of this lawsuit--is basically a final approval for the construction of the pumping station, the conduits and the water-treatment facilities as originally contemplated and included in the Comprehensive Plan in 1966.
Following the 1966 addition of the Neshaminy Creek project to the Comprehensive Plan, there have been continuing studies and revisions and refinements of details of the Plan, but apparently no change in the basic concept, except for the present reduction in the quantity of water to be withdrawn from the Delaware River.
On December 8, 1970, the Pennsylvania Water and Power Resources Board issued a water allocation permit No. WA-649 to Bucks County to withdraw up to a maximum of seventy-five (75) mgd from the Delaware River at Point Pleasant, Pennsylvania, for the Neshaminy Creek project. On January 29, 1971, the North Branch Water Treatment plant at Chalfont, Pennsylvania, was added to the Comprehensive Plan (Docket No. D-70-242 CP.) On March 17, 1971, the Point Pleasant pumping station was added to the Comprehensive Plan with a contemplated water total maximum allowable withdrawal for both Limerick and NWRA of approximately 150 mgd. Formal § 3.8 approval of the necessary construction facilities was deferred pending submission of final plans by NWRA. In connection with the 1971 amendments to the Comprehensive Plan, DRBC prepared a "Final Statement--Environmental Impact of the Proposed Pt. Pleasant Diversion Plan, Bucks and Montgomery Counties, Pennsylvania," in accordance with provisions of the then recently enacted (January 1, 1970) National Environmental Policy Act (NEPA). See 42 U.S.C. §§ 4321-4361 (1976).
The "Final Statement" was subsequently supplemented, updated and expanded and submitted in February, 1973 by DRBC as a final environmental impact statement (FEIS) entitled "Point Pleasant Diversion Plan, Bucks and Montgomery Counties." This 1973 FEIS was submitted to the Council on Environmental Quality (CEQ) in compliance with the provisions of NEPA. The FEIS concluded that the proposed projects for water withdrawal at Point Pleasant for diversion to the Neshaminy watershed for public water use, and diversion to the Perkiomen watershed for additional cooling water for Limerick would be beneficial to the watersheds of both creeks and not detrimental to the Delaware River provided various express conditions as to control and use of the water were enforced.
Because implementation of the Neshaminy Creek portion of the project through commencement of construction was not then immediately practical, continuing studies were made by various entities as to the present and contemplated future water needs, particularly in central portions of Bucks and Montgomery Counties. A Master Plan for Bucks County Water Supply completed in 1972 was updated in 1975 through the joint efforts of Bucks and Montgomery Counties, the Pennsylvania Department of Energy, the Bucks County Water and Sewer Authority, the Delaware Valley Regional Planning Commission, and an NWRA environmental report.
Design work on the proposed Chalfont water treatment plant began in 1975 but was suspended when studies including the updated "Master Plan" projected a smaller need quantitatively for present and future public water use in Central Bucks County, due primarily to lower projections as to future population growth in the area. The end result was that the water treatment plant was downscaled from a future maximum capacity of 80 mgd to 40 mgd. This, in substance, caused the total demand for water to be withdrawn from the Delaware River at Point Pleasant to be reduced from approximately 150 mgd maximum, to the present 95 mgd maximum for both the NWRA and PECO projects involved in this litigation.
In 1973 the United States Atomic Energy Commission (AEC) prepared an FEIS on "Limerick Generating Station, Units 1 and 2." This FEIS contained provision for withdrawal of water from the Delaware River at Point Pleasant, and transporting it to Limerick as additional cooling water through use of transmission lines and the natural water courses of the Perkiomen Creek watershed.
In April of 1976, the United States Department of Agriculture, Soil Conservation Service prepared an FEIS entitled "Neshaminy Creek Watershed." Again, the proposed plan provided for water withdrawal from the Delaware River at Point Pleasant for transportation to the Neshaminy watershed as additional water for public use. It encompassed the plans of Bucks County and NWRA for the entire Neshaminy watershed.
On January 27, 1979, PECO filed application pursuant to § 3.8 of the Compact for approval to commence construction of its portions of the Point Pleasant pumping station, Bradshaw Reservoir, and transmission lines to the Perkiomen Creek. On July 5, 1979, NWRA filed application pursuant to § 3.8 of the Compact for approval to commence construction of its portions of the Point Pleasant pumping station, the water treatment plant at Chalfont and the various transmission lines. Both § 3.8 applications were supported by detailed "environmental reports," prepared by the applicants as required by DRBC regulations §§ 2-4.2 and 2-4.3.
DRBC had available to it three final environmental impact statements, together with all the supporting data, as of the time it received the present PECO and NWRA applications. They were: (1) "Pt. Pleasant Diversion Plan, Bucks and Montgomery Counties," submitted by DRBC in 1973; (2) "Limerick Generating Station, Units 1 and 2," submitted by the AEC in 1973: (3) "Neshaminy Creek Watershed," submitted by U.S. Department of Agriculture, Soil and Conservation Service 1976. Each of these plans incorporated the concept of a withdrawal of a maximum of 150 mgd of water at Point Pleasant, a distribution of a maximum of 46 mgd to the Perkiomen Creek for use as additional cooling water at Limerick, and the balance of the water to flow into the headwaters of the Neshaminy watershed with a withdrawal of approximately an equal quantity of water at Chalfont for water treatment and distribution for public consumption in sections of Bucks and Montgomery Counties.
In June of 1974, the Nuclear Regulatory Commission (NRC) granted a construction permit to PECO for the Limerick plant. This was subsequent to the completion of the FEIS prepared by DRBC in 1973 and the FEIS prepared by the AEC in 1973. The validity of the construction permit was challenged through court proceedings where specific objections were raised as to the adequacy of the two mentioned FEIS's in relation to the water supply aspects of the Limerick project. The Court of Appeals for the Third Circuit, in an unpublished judgment order affirmed the issuance of the construction license. Environmental Coalition of Nuclear Power et al. v. Nuclear Regulatory Commission and Philadelphia Electric Co., No. 75-1421 (3d Cir. Nov. 12, 1975).
Pursuant to DRBC's regulations on processing § 3.8 applications, DRBC prepared for the present applications an environmental assessment on the projects. The Executive Director of DRBC, on the basis of the environmental assessment, recommended a "negative declaration," based on his conclusion that the proposed projects would have no significant adverse impacts on the environment. A "negative declaration" would, if valid, do away with the necessity of preparing another FEIS on the projects, and submitting the same to the CEQ. Public notice of intent to issue a negative declaration and of the preparation of the environmental assessment was given and public hearings were held by DRBC on the § 3.8 applications on November 18, 1980 and on December 1, 1980.
In August, 1980, DRBC prepared and published a "Final Environmental Assessment For the Neshaminy Water Supply System" project sponsored by NWRA and PECO. This document contained approximately 230 pages, with cross-references and references by incorporation to voluminous documents, studies, reports and comments by individuals and public and private organizations. On February 18, 1981, DRBC granted the § 3.8 applications of both PECO and NWRA, subject to certain express conditions and limitations.
The construction details of the projects were added to the Comprehensive Plan to the extent that such details were contained in the applications and had not previously been approved and included in the prior actions of DRBC.
The foregoing is a very brief outline of some of the significant prior procedures. A study of the record and admitted factual background of this case makes abundantly certain that the final plan that has now been granted approval by DRBC for construction has been (1) subject to almost constant study by many public and private entities for at least fifteen years last past; (2) approved and included in the DRBC Comprehensive Plan in substantial concept for many years; (3) the subject of at least three FEIS's by three different agencies.
The primary issue raised in this litigation is the plaintiffs' contention that before DRBC could validly approve the § 3.8 applications of either or both PECO and NWRA, a new and full environmental impact statement must be prepared with the attendant procedures mandated by NEPA. Subsidiary to this issue is the validity of the "negative declaration" of DRBC. The position of DRBC and of the intervenor defendants, in substance, is that all environmental issues were fully considered in prior environmental impact statements, and that the present facilities authorized by the § 3.8 approvals merely downscale the size of previously approved projects. Because the smaller size will have less adverse impacts on the environment, defendants assert that the negative declaration is fully justified. In addition, defendants contend that every conceivable environmental impact has been fully studied and was carefully considered by DRBC in the environmental assessment prepared for the present applications and in the prior FEIS's. Defendants contend that there has been more than adequate public notice and participation and that all appropriate governmental agencies have been notified and the responses of such agencies were carefully considered prior to the approvals granted on February 18, 1981. Finally, defendants contend all requirements of the law have been met and that DRBC in good faith objectively took a "hard look" at the environmental consequences and alternatives.
Application of NEPA to Actions by DRBC.
Plaintiffs contend that for purposes of this litigation, all of the provisions of NEPA apply to DRBC's approvals of the PECO and NWRA § 3.8 applications. The defendants, including intervenor-defendants PECO and NWRA, do not dispute this contention apparently because the regulations of DRBC applicable to processing § 3.8 applications provide all of the procedural safeguards of NEPA.
In Borough of Morrisville v. Delaware River Basin Commission, 399 F. Supp. 469 (E.D. Pa. 1975), aff'd, 532 F.2d 745 (3d Cir. 1976), Judge Newcomer of this Court, without expressly ruling on the applicability of NEPA, determined that DRBC's resolution imposing a charge for use of surface water was adopted after full compliance with NEPA. Judge Newcomer thereby suggested, at least, that DRBC is subject to the provisions of NEPA.
Because DRBC regulations in substance adopt all NEPA requirements, and possibly some additional procedural steps, the issue as to whether NEPA is applicable to DRBC need not be presently decided. In addition, defendants apparently concede that if the ...