Anatomy of a Stream Upgrade

Déjà Vu All Over Again

The following is a synopsis of a stream upgrade application submitted to the Pennsylvania Environmental Quality Board, provided by Dr. Martie Kyde. The Tohickon Creek flows through the Ralph Stover State Park, Tohickon Valley County Park, the Stover-Myer Historic site,  and several communities in northern Bucks County in Pennsylvania. 

November 8, 1999. A letter was received from Sharon Freeman of the Pennsylvania Environmental Quality Board (EQB) announcing that there would be no creek evaluations until at least the spring of 2000 (due, she said, to the drought). This will make exactly six years that the Tohickon has been waiting for a determination on its Exceptional Value petition.

Late summer, 1993. A committee of citizen volunteers chaired by Neil Kyde began work on a petition to re-designate the Tohickon Creek in Bucks County, Pennsylvania, to EV (Exceptional Value). The completed petition was submitted May 6, 1995. It was 38 pages long, and documented species of special concern, historic, scenic and recreational attributes of the Tohickon Creek, municipal protective legislation, etc.; in short, it addressed all of the possible reasons for declaring a stream EV, and the Tohickon Creek had them all.

May 16, 1995. We received a letter from Sharon Fisher, EQB, Acting Regulatory Coordinator saying Pennsylvania had received our petition. (We were told by telephone that it was the finest, most complete application the state had ever gotten.)

June 26, 1995. We received a letter from EQB Regulatory Coordinator Barbara Sexton, that said our petition would be forwarded to the EQB for consideration at its August, 1995 meeting.

September 21, 1995. We were informed by letter from Ms. Sexton that the petition had been accepted for study. The letter also said that a status report would go to the Board from DEP following a 60 day review, they would at that time determine the priority of the application and give an anticipated date for submission of the proposed rulemaking. Soon thereafter we received notice that, due to a citizen suit brought against the EPA to force them to make the state comply with federal water quality regulations, all pending applications were on hold.

We heard no more -- despite numerous phone calls to Sharon Fisher of EQB, to find out the status of our petition-- until January 7, 1997. The state did nothing during this time.

January 7, 1997. Tinicum Township received notification that the stream was being considered for re-designation from Stuart Gansell. We did not receive notice as petitioners.

January 10 or 11, 1997. Tohickon Creek was sampled, using a modified method that was not set out in the state's own official handbook. Due to extreme cold and ice, the stream was sampled from right next to roads, resulting in what we are certain were tainted data. This violated the state's own procedures, which call for sampling several hundred feet above or below a road crossing. No municipalities were interviewed or asked for a list of their protective legislation.

February, 1997. Neil and Martie Kyde, petitioners, received a special protection evaluation report which stated that DEP would not recommend EV and in fact would downgrade the stream to TSF (Trout Stocked Fishery). A number of statements in this report were excluded from the final report which came in October. Among the most important of these was: "results indicate that with the noted exceptions water quality of the Tohickon Creek Basin is generally better than applicable standards."

October 1997. The final report was received downgrading the stream. Among the statements made in the report were the following:

"No portion of the Tohickon Creek Basin possesses attributes of an outstanding national, state, or local resource." (How about High Rocks?)

"No regional or local protective mechanisms have been adopted which afford an exceptional level of protection to the stream." (A lie...all bordering municipalities have very strong protective mechanisms in their laws, and the county, too.)

" No portion of the T.C. watershed possesses attributes that qualify for Special Protection Watershed Program on the basis of threatened or endangered aquatic or semi-aquatic species." (A lie...we sent them evidence of species of special concern in our original application.)

"No portion of the T.C. basin possesses attributes indicative of ecological or recreational significance." (We told about High Rocks and the other parks, camping, hiking, fishing etc., not to mention the rare plant and animal life in and along the basin)

At this time, the state gave us less than three weeks to respond with reasons why we thought we ought to get EV. The proposed rulemaking was to be November 18, 1997.

October 22, 1997. We asked for an extension and gave as reasons that they had changed the rules (as a result of the Raymond Proffitt Foundation's law suit against EPA), and that we disagreed completely with their findings.

DEP had failed to give proper notice of proposed stream designation to the surrounding townships in a timely fashion, and they got complaints from Bedminster and Tinicum. So they gave us until November 12 to submit our comments.

October 26, 1997. Bedminster Township officially objected to the downgrading of the creek. Bedminster Conservancy also sent a strong letter of protest at our behest.

November 3, 1997. We asked for the revised copy of the study. (which we never got).

November 9, 1997. We responded to PA DEP, refuting all of the state's reasons for the refusal of EV. We cited municipal protective laws, presence of endangered species, recreational opportunities, historically important sites, parkland, scenic views, and Delaware Riverkeeper records of better water chemistry and biota than the state had found.

November 17, 1997. Coastal Environmental (hired by the Tinicum Township to do a study of the creek) submitted a preliminary report which refuted the state's findings. They found better water quality than the state, more benthic organisms including some of special concern, they found fault with the methodology used and the choice of reference stream. Coastal scientists determined that the creek warranted EV status under the rules of Special Protection Waters.

November 18, 1997. We met with Bob Frey and Hugh Archer of PA DEP and some Tinicum Township officials to present Coastal's report and show them the creek in person. We were given a stay of action as a result. At that meeting Archer said that the state was not allowed  to base EV on anything except water quality because of the EPA lawsuit. It was not allowed to consider historic, scenic, recreational etc etc. (This I believe was a deliberate red herring.... We spent some time chasing down and refuting this assertion. Our information came from Richard McNutt, The Raymond Proffitt Foundation, Congressman Jim Greenwood and PA Fish and Wildlife.)

Congressman Greenwood wrote a letter refuting Archer's assertion.

November 21, 1997 the Bucks County Chamber of Commerce supported EV for the Tohickon!!

December, 1997. We got letters of support for the Tohickon from Richard McNutt, Delaware Riverkeeper, Plumstead and Tinicum supervisors.

December 3, 1997. Richard McNutt, Delaware River Greenway Partnership, wrote to the DEP citing the Lower Delaware River management Plan (of which the Tohickon is a part), one goal of which is to protect current water quality and even improve it. McNutt questioned whether downgrading the designation of the Tohickon was consistent with that goal.

January, 1998. Bedminster supervisors sent strong letter of support. We think Nockamixon did, too, but we do not have a copy of that letter.

March 16, 1998. The final copy of Coastal's report went in to PA DEP.

April 8, 1998. Bruce Wallace Tinicum Supervisor, sent a letter summing up all the arguments against Archer's assertion that the state was not allowed to use any standards other than chemical ones to determine EV.

April 9, 1998. Congressman Jim Greenwood wrote PA DEP and asked that a second study be done since the first study done by Pennsylvania was deficient.

September, 1998. Dr. Ann Rhoads, of the Morris Arboretum wrote a letter to Ms. Linda Wieand, Tinicum Township Manager, about endangered species she had found in the Tohickon valley during the course of her study of Natural Areas for the County. This was later passed on to the state. (Remember the state study said there weren't any.)

May 20, 1999. PA DEP's Director of the Bureau of Watershed Conservation, Stuart Gansell, asked for a copy of Coastal's study. DEP claimed the study had not been sent to them. (This was untrue...see above. Also we had given a copy of the preliminary study to Hugh Archer at the time of our meeting here in the township...back in November, 1997. All this time we thought the state was re-examining the data for the creek. They would not tell us how they were going to re-evaluate it.)

June 24, 1999. Township Secretary Linda Wieand sent a copy of Coastal's report to the PA DEP. She enclosed Ann Rhoad's letter about endangered species and the exceptional water quality of the Tohickon, a letter from the township solicitor concerning the legality of using additional factors other than chemistry in determining EV, and a compilation of protective mechanisms enacted by the four bordering townships.

June 29, 1999. State Senator Joe Conti asked again for EV in a strongly supportive letter to the PA DEP.

July 2, 1999. We got a letter from PA EQB's Sharon Freeman enclosing a copy of the new antidegradation regulations and setting a date of September 19, 2000 for a final rulemaking on the Tohickon. We were told the stream would be re-examined in October of 1999. Exactly what that meant we did not know: consideration of our documents? a new on-site examination?

July 7 1999. We sent a letter summing up our support for the Tohickon to Ed Brezina., Water Quality Assessment Chief for PA DEP. We enclosed another copy of our original petition, the Coastal consultant's report, copies of the protective legislation from all four townships, lists of species of special concern, and the Bucks County study naming Tohickon Creek as one of the 19 most important natural areas to protect in all of Bucks County. So that this information would not be "lost", we sent copies of our letter to numerous civic, municipal and environmental organizations.

August 3, 1999. We sent a letter to Edward Brezina citing the concern of Tinicum Township citizens for the Tohickon. Some 80 % had chosen the Tohickon as urgently important to protect in a township wide questionnaire. We included letters from Bedminster Conservancy and the Plumstead Supervisors urging EV. Alan Fetterman sent a letter of support for EV, citing the Bucks County natural areas study (Alan serves on the Bucks County Planning Commission).

October 19, 1999. Tinicum Township supervisors passed a resolution requesting interim protection for the Tohickon Creek. The other townships are expected to follow suit.

November 8 1999. We received a letter from Sharon Freeman (EQB) announcing that there would be no evaluations until at least the spring of 2000 (due, she said, to the drought). (This is now 5 and 1/2 years since we applied! May of 2000 will make it a full six years.)

November 8, 1999. We sent a letter to State Senator Conti asking for interim EV for the Tohickon. Damon Aherne of Tinicum's Planning Commission had previously approached him to ask for interim EV.

November 8, 1999. Township Manager Linda Wieand sent a formal letter to Senator Conti, enclosing the township resolution and asking for his help in securing interim protection for the Tohickon.

We think we have been put off long enough. We think our application should probably be judged under the rules that were in place when we applied, but we think it should merit EV no matter what, and no matter which rules they are using. The state insists that no one has spoken against the designation. We asked for copies of all letters for or against the petition. First we were told there were none. When we maintained that we knew of at least one letter in favor, it was mysteriously found, but no others. Our original application appears to have been lost, all three copies of it. No one that I talked to had seen it, and the scientist who looked at the creek for the state had obviously never seen it, or she would have addressed the statements we made about historic, scenic, recreational, etc. factors in favor of the creek. At least two copies of the consultant's study were lost or misplaced by the state. We don't know whether or not DEP's Edward Brezina has lost the additional copy we sent him of the original application. We had no acknowledgment from him or his staff about receiving it or the corroborating documentation we sent with it. At best the DEP has been inefficient. At worst, this entire process has been handled deliberately to make certain that Tohickon Creek never gets the EV designation. We have been treated like enemies at every stage of the process. We were even excoriated in the newspaper by a spokesman for DEP who questioned our motives for sponsoring Tohickon Creek. It is unconscionable for them first to delay so long on an application for protective designation for one of the commonwealth's loveliest streams, and second, to do so poor a job in studying the creek that all of the qualities that speak to the value of the creek were missed.

When we applied, there was no development pressure in this area. Even Plumstead Township was not under pressure as it is now. We in Tinicum are now just beginning to get some development pressure, and it is important that development be done in such a way as to protect the integrity of the creek.

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