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Sentinel Ridge Development, LLC v. Dep't of Environmental Protection

July 21, 2010

SENTINEL RIDGE DEVELOPMENT, LLC, AS ASSIGNEE OF THE INTEREST OF PULTE HOMES OF PA, L.P. PETITIONER
v.
DEPARTMENT OF ENVIRONMENTAL PROTECTION, RESPONDENT



The opinion of the court was delivered by: Judge Simpson

Argued: June 21, 2010

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge.

OPINION

This case involves a storm water permit the Department of Environmental Protection (DEP) issued to Pulte Homes of PA, L.P. the predecessor in interest of Petitioner Sentinel Ridge Development, LLC (Sentinel Ridge). A local community organization appealed the permit issuance to the Environmental Hearing Board (EHB). The EHB conducted hearings and received expert testimony. It issued an order "suspending the permit" and remanding the matter to DEP for further factual inquiry. Sentinel Ridge appeals the EHB's order to this Court, essentially arguing the EHB's decision was not supported by scientific evidence. DEP argues, among other things, that the EHB's order is not a final order, and that the appeal should be quashed. For the reasons discussed below, we agree with DEP and we quash the appeal.

Sentinel Ridge prepared plans to construct a residential development on a 34.88 acre site in Marple Township, Delaware County. The site is largely wooded and sits on top of a ridge bounded on the south, west and east by steep slopes of approximately 100 feet.

The base of the site is framed by surface streams. Holland Run, on the east side, flows into Crum Creek, which is on the west side. Approximately half of the runoff water from the site flows downhill to the east. Various springs and drainage paths on the eastern slope of the site drain into Holland Run.

Portions of both Crum Creek and Holland Run are classified as warm water fisheries. A portion of Holland Run is classified as an exceptional value (EV) stream.

Sentinel Ridge applied for a permit for storm water discharges associated with construction of the development. In conjunction with the permitting process, Sentinel Ridge prepared a Post-Construction Storm Water Management Plan (Plan). Sentinel Ridge designed the Plan to protect the structural integrity of the surrounding watershed, to preserve it from degradation, and to maintain its existing uses. The Plan called for construction of five recharge basins, two detention basins, three rain gardens, seven water quality structures, six vegetated swales, porous pavement, parking stalls and dry wells.

DEP examined the Plan, concluding that it would not result in the direct discharge of storm water into the EV portion of Holland Run. Accordingly,

DEP issued a permit.

A local community organization, Crum Creek Neighbors (CCN), which is dedicated to protecting Crum Creek and its tributaries, appealed DEP's issuance of the permit. CCN argued the permit violated the Clean Streams Law and DEP regulations.*fn1 The EHB conducted hearings on the appeal.

CCN presented the expert testimony of civil engineer Michele C. Adams. Adams' expertise is in storm water management and site design. She wrote significant portions of DEP's best management practices manual (BMP Manual). Adams questioned the methodology used by Sentinel Ridge's experts in designing the system. She challenged Sentinel Ridge's use of differing modeling methodologies for different types of storms, instead of using the same methodology across the storms. Adams testified this use of multiple methodologies distorted data as to the actual ability of these basins to handle larger storms. Adams testified that the system would not be able to handle the rain volume and rate of larger size storms (5 year/24 hour and 100 year/24 hour storms). Consequently, water would discharge from the basins, cascading down slope into Holland Run. She testified that this would result in down gradient and downstream harm to Holland Run.

CCN also presented the testimony of James Schmid, Ph.D., an ecologist specializing in wetlands and habitat evaluation. Schmid testified that he examined the site and its trees, wetlands and vegetation. He also testified that he performed a study of life in the EV portion of Holland Run, as well as in the finger tributary, which revealed diverse and extensive organisms consistent with its high quality classification.

Schmid opined, based in part on Adams' evaluation, that the A-1 infiltration system would inhibit the flow of water to the tributary. In particular, he noted that an underground, perforated pipe, in the vicinity of A-1, would likely intercept ground water recharge water that would otherwise flow to the finger tributary. He opined that a decrease in the flow of water to the tributary would ...


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