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NESHAMINY WATER RESOURCES AUTHORITY v. COMMONWEALTH PENNSYLVANIA (09/26/85)

decided: September 26, 1985.

NESHAMINY WATER RESOURCES AUTHORITY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL RESOURCES, AND COMMONWEALTH OF PENNSYLVANIA, ENVIRONMENTAL QUALITY BOARD, RESPONDENTS



Original jurisdiction in case of Neshaminy Water Resources Authority v. Commonwealth of Pennsylvania, Department of Environmental Resources, and Commonwealth of Pennsylvania, Environmental Quality Board.

COUNSEL

John E. Flaherty, Jr., with him, George J. Miller, Lois Reznick, and Judy Yun, Dechert, Price & Rhoads, for petitioner.

Ellis M. Saull, Deputy Attorney General, with him, Allen C. Warshaw, Chief Deputy Attorney General, Chief, Litigation Section, and LeRoy S. Zimmerman, Attorney General, for respondents.

President Judge Crumlish, Jr., and Judges Rogers, Craig, MacPhail, Barry, Colins and Palladino. Opinion by Judge Palladino.

Author: Palladino

[ 92 Pa. Commw. Page 109]

This case is before the Court upon the preliminary objections of the Respondent, Department of Environmental Resources (DER), to the Petition for Review filed by Neshaminy Water Resources Authority (Petitioner). The Petition for Review is addressed to this Court's original jurisdiction pursuant to 42 Pa. C.S. § 761(a)*fn1 and seeks a declaratory judgment invalidating amendments to water quality regulations*fn2 adopted by the Environmental Quality Board (EQB) on December 18, 1984 pursuant to Section 5(b)(1) of

[ 92 Pa. Commw. Page 110]

    the Clean Streams Law.*fn3 Petitioner also seeks injunctive relief which would prevent DER from implementing the amended regulations.

Petitioner is a municipal authority organized to manage the water resources of the Neshaminy watershed, including the Neshaminy and Core Creeks, located in Bucks County, Pennsylvania. Petitioner has constructed dams on the Neshaminy and Core Creeks to provide reservoirs for recreational and flood control purposes. The Petition for Review alleges that the amended regulations remove the in-stream water quality standard for phosphorus which will result in a degradation of the water quality of the Neshaminy and Core Creeks and the reservoirs located thereon. Petitioner alleges that this degradation of the water quality will thwart its objective of increasing the water quality in the reservoirs to the point that the reservoirs can be used for contact recreation. Petitioner challenges the amended regulations on the ground that they constitute an evasion of the Clean Water Act, 33 U.S.C. § 1313, and the Clean Streams Law, 35 P.S. §§ 691.1-691.1001. Petitioner also asserts that the degradation of the water quality which it fears will occur constitutes a deprivation of its property without due process of law.

DER's preliminary objections assert that this Court does not have original jurisdiction to consider Petitioner's challenge to the regulations because the regulations do not have a direct and immediate impact on Petitioner. We agree.

In the case of Arsenal Coal Company v. Department of Environmental Resources, 505 Pa. 198, 477 A.2d 1333 (1984), reversing 71 Pa. Commonwealth Ct. 187, 454 A.2d 658 (1983), the Pennsylvania Supreme

[ 92 Pa. Commw. Page 111]

Court held that "the original equitable jurisdiction of the Commonwealth Court in a case seeking pre-enforcement review of a substantial challenge to the validity of regulations promulgated by an administrative agency is clear." Id. at 208, 477 A.2d at 1338. The Arsenal Coal Court also stated, however that "[a] court of equity . . . must ...


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