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OLEY TWP. v. DELAWARE RIVER BASIN COMMN.

December 4, 1995

OLEY TOWNSHIP, PINE CREEK VALLEY WATERSHED ASSOC., INC., OLEY VALLEY YOUTH LEAGUE, INC., PIKE OLEY DISTRICT PRESERVATION COALITION, J. SCOT WILLIAMS, and BRUCE LITTLEFIELD, Plaintiffs,
v.
DELAWARE RIVER BASIN COMMISSION, and GERALD HANSLER, EXECUTIVE DIRECTOR; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; and WISSAHICKON SPRING WATER, INC., Defendants.



The opinion of the court was delivered by: VAN ANTWERPEN

 VAN ANTWERPEN, J.

 December 4, 1995

 On September 18, 1995, Plaintiffs instituted this action in federal court against Defendants Delaware River Basin Commission ("DRBC"), Mr. Gerald Hansler, the executive director of the DRBC, Wissahickon Water Supply, Inc. ("Wissahickon"), and the Pennsylvania Department of Environmental Protection ("DEP"). Plaintiffs challenge the DRBC's and Mr. Hansler's approval of a proposed groundwater withdrawal in Pike Township, Pennsylvania. Plaintiffs have also requested that this Court exercise supplemental jurisdiction over Plaintiffs' state law claims against DEP currently pending in another tribunal.

 Defendant DEP has moved to dismiss the complaint against it pursuant to Fed. R. Civ. P. 12(b)(1). For the reasons stated below, we grant DEP's motion because the Eleventh Amendment bars Plaintiffs from proceeding against DEP in federal court.

 I. BACKGROUND

 In stating the facts, we are mindful that all allegations in the Complaint and all reasonable inferences that can be drawn therefrom must be accepted as true and viewed in the light most favorable to the non-moving party. Sturm v. Clark, 835 F.2d 1009, 1011 (3d. Cir. 1987).

 On April 26, 1995, Defendant DRBC approved Defendant Wissahickon Water Supply, Inc.'s ("Wissahickon") application for a groundwater withdrawal project. See Complaint at PP 42-43. DRBC authorized Wissahickon's withdrawal or removal of groundwater from the Sterling Spring Well in Pike Township, Berks County, Pennsylvania. *fn1" Id. at PP 1, 25, 47, 67; DRBC Docket No. 95-D-11. Wissahickon will draw the water into a bulk water loading facility for later delivery to its water bottling facility in Kutztown. Id.

 Wissahickon also applied for a permit from DEP in a concurrent proceeding pursuant to Pennsylvania's Safe Drinking Water Act ("SDWA") which requires a preconstruction permit for facilities providing public water for human consumption. See Complaint at P 25; 35 P.S. § 721.7; 25 Pa. Code § 109.1005. *fn2" DEP issued the requested Public Water Supply Permit to Wissahickon on April 26, 1995. See Complaint at P 27; DEP Public Water Supply Permit No. 0695501. The permit approved the construction, but not the operation, of facilities for use in Wissahickon's water bottling operation including the Sterling Spring Well for use as a source supply. Id.

 On June 12, 1995, Plaintiffs in the case at bar appealed DEP's issuance of this permit to the Pennsylvania Environmental Hearing Board ("EHB"). See Complaint at P 28; Notice of Appeal, EHB Docket No. 95-101-MG. They allege that DEP violated various state laws in granting the SDWA permit. See Notice of Appeal, EHB Docket No. 95-101-MG at PP 21-29. The Notice of Appeal does not allege that DEP violated federal law. That appeal is presently pending.

 DEP now moves to dismiss Plaintiffs' complaint asserting that the Eleventh Amendment bars suit against DEP in federal court, that Plaintiffs are improperly attempting to remove a state administrative proceeding to federal court, and that the doctrine of abstention mandates our non-involvement in the EHB appeal. We grant DEP's motion on Eleventh Amendment grounds and dismiss DEP as a defendant and dismiss Count 11 of Plaintiffs' complaint.

 II. DISCUSSION

 The Eleventh Amendment of the United States ...


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