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decided: November 10, 1982.


Appeal from the Order of the Environmental Hearing Board in the case of Charles J. Bonzer v. Commonwealth of Pennsylvania, Docket No. 80-033-B.


John George Shorall, II, with him George Shorall, Shorall and Shorall, for petitioner.

Michele Straube, for respondent.

Judges Rogers, Williams, Jr. and MacPhail, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 69 Pa. Commw. Page 634]

Charles J. Bonzer seeks review of an order of the Environmental Hearing Board affirming an order of the Department of Environmental Resources (DER) requiring him at his expense to make repairs to a system of storm water culverts and a watercourse located on property he owns in Baldwin Borough, Allegheny County.

At a hearing conducted on October 2, 1980, DER's witnesses established that Bonzer's property is located at the confluence of an intermittent stream denominated by Baldwin Borough as Tributary Number 1 and a watercourse known as Streets Run; that the origin or headwaters of Tributary Number 1 is located on higher ground approximately one mile to the west of Streets Run and Bonzer's property; that the course of Tributary Number 1 from its origin to Streets Run consists in part of open channel and in part of structures including culverts and stream enclosures; that the culverts and enclosures located on Bonzer's property as well as those located on the adjacent property of the Baltimore & Ohio railroad and

[ 69 Pa. Commw. Page 635]

    those located below the right-of-way of Streets Run Road (a Commonwealth highway) are inadequate to accommodate Tributary Number 1 following heavy rains; that as a result of the inadequacy of these structures flooding has occurred on Streets Run Road, the property of the railroad, and on Bonzer's property at least semi-annually since the early 1960's; that the culverts and stream enclosures located on Bonzer's property include a sixty-foot section of steel culvert approximately four and one-half feet in diameter which has collapsed or partially collapsed throughout its length; and that in the opinion of Lawrence D. Busack, a hydraulic engineer for the DER's Bureau of Dams and Waterways, replacement or repair of the collapsed steel culvert just described is necessary to prevent future flooding.

On the basis of this evidence the DER, affirmed by the Environmental Hearing Board found that Bonzer had violated regulations of the Environmental Quality Board promulgated pursuant to Section 5 of the Dam Safety and Encroachments Act, Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. ยง 693.5 and by Order dated January 31, 1980, ordered him, within thirty days, to remove the inadequate culverts, to construct an adequate open channel for Tributary Number 1 between Streets Run and Streets Run Road, to "stabilize" the banks of this open channel, and, by May 31, 1980, to "revegetate" a portion of the western bank of Streets Run and all areas disturbed by the removal of the old culverts and construction of the new channel.

By its decision and order DER thereby rejected Bonzer's arguments that he is not the owner of the existing culverts and enclosures on his land but that they are owned by the County of Allegheny and that it is fundamentally unfair and improper to place on him the cost of correcting a condition hazardous to the

[ 69 Pa. Commw. Page 636]

    public generally and created by circumstances involving no fault or affirmative conduct on his part. With respect to this latter point, Bonzer argued that the cause of the flooding is the mismanagement of lands at the headwaters in combination with the inadequacy of structures located within the course of Tributary Number 1 on lands of others including the railroad, a soft drink manufacturer, and Streets Run Road. On this appeal Bonzer renews these arguments and contends that the agencies' determinations are, in these respects, "against the weight of the evidence."

Our scope of review with respect to decisions of the Environmental Hearing Board is limited to a determination of whether constitutional rights have been violated, an error of law committed, and whether each necessary factual finding is supported by substantial evidence. Lucas v. Department of Environmental Resources, 53 Pa. Commonwealth Ct. 598, 420 A.2d 1 (1980); Summerhill Borough v. Department of Environmental Resources, 34 Pa. Commonwealth Ct. 574, 383 A.2d 1320 (1978).

Bonzer's evidence of the county's ownership of the culverts and stream enclosures consisted of the testimony of Raymond D. Locke, a retired engineer formerly of the Commonwealth Department of Labor and Industry and of the Department of Transportation, speaking of a time prior to Bonzer's ownership of the property, to the effect that the structures were installed by unidentified workers operating equipment emblazoned with the county's insignia; and of a plat prepared by Bonzer in applying for the approval of the Borough of Baldwin for a subdivision of the property here at issue showing an easement, fifteen feet in width, in the approximate location of the culverts. The grantee of the purported easement is not indicated on the subdivision plat, no other documentary evidence of the grant or reservation of an easement was produced,

[ 69 Pa. Commw. Page 637]

    and Mr. Locke further testified that although he believed the county to have been responsible for the construction, some twenty years earlier, of the culverts he did not believe the county to have taken or received at that time any interest in the lands now owned by Bonzer. Factual determinations and the assessment of conflicting evidence are within the province of the Environmental Hearing Board. We see no reason to disturb its finding that no easement was shown to exist.*fn1

From the decision below, it appears that the Environmental Hearing Board treated Bonzer's second contention as raising three issues: whether substantial evidence supported the DER's determination that the condition of the culvert's underlying Bonzer's property was the cause of the flooding; whether culpability of a landowner is a necessary prerequisite to the governmental exercise of its police power directed toward compelling the landowner to rectify a hazardous condition on his property; and whether the regulations promulgated pursuant to the Dam Safety and Encroachments Act empower the DER to issue the order here challenged.

The causal link between the culverts on Bonzer's property and the flooding of his and adjacent properties is supported by the following testimony of ...

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