STOPPER
Raymond Proffitt Foundation
July 2004
VALLEY CREEK COALITION STORM WATER LEGAL UPDATE
by John Wilmer, Esq.
The Raymond Proffitt Foundation is a member of the Valley Creek Coalition (VCC) whose purpose is the protection and improvement of Valley Creek, a Chester County Exceptional Value (EV) stream of 14 miles, which flows through Valley Forge National Historical Park. Other members of the coalition include the Valley Forge Chapter of Trout Unlimited, West Chester Fish, Game & Wildlife Association., Green Valleys, Open Lands Conservancy, Schuylkill RiverKeeper, and Penna. Environmental Defense Fund.
In 1999, VCC appealed the issuance of a DEP storm water permit to PennDOT for the discharge of storm water from Section 400 of its Route 202 improvement project. VCC was concerned that the continual uses of lined detention basins were causing both the drying up of the watershed and the erosion and scour of the stream banks through the volume of the cumulative discharges of all such detention basins. Infiltration of storm water was seen as the only practice that would stop the continued degradation of this EV watershed, The case was settled when PennDOT agreed to mitigation measures that would put the same amount of storm water back in the ground that would be removed by the project.
VCC appealed the issuance of an identical storm water permit in 2000, only this time it was to Vanguard, Inc. The issues in this permit were identical to the PennDOT permit, and VCC was determined to fight this appeal to the end in order to stop the poor water quality practices of DEP in issuing these destructive permits.
In September 2001, DEP signed a settlement agreement with VCC in which DEP agreed
to change its practices and only issue permits in the Valley Creek Watershed that provided for infiltration of storm water. DEP admitted, in the agreement, that past practices had severely degraded Valley Creek.
One year later, DEP published a statewide Comprehensive Storm Water Policy in September 2002 containing many of the same elements found in its agreement with VCC. This policy contained a new interpretation of existing storm water law and required infiltration practices for new construction. DEP was now actually setting forth all the arguments made by VCC and others over the years of litigation.
In February 2002, the Homebuilders Association of Chester and Delaware Counties filed a Petition for Review in Commonwealth Court asking the court to overturn both the statewide policy and the VCC settlement agreement. The Homebuilders Association argued that both the policy and the agreement were new law and had to be published for public comment before they could be implemented.
Ironically, DEP reported that they had issued many permits since our agreement, and no one complained about being required to perform infiltration. In fact, all the permittees and their engineers embraced the new practices.
In July 2003, Commonwealth Court dismissed the Homebuilders’ lawsuit. The court held that the statewide storm water policy was not new law, but only a policy that reflected a change in interpretation of existing law. In looking at the settlement agreement, the court dismissed the claim because it was not ripe. The Homebuilders could not point to one permit that had been denied pursuant to the agreement. Since there was no harm, there was no case.
The court noted a new case holding that where there is an agreement between private entities and the Commonwealth then parties not part of that agreement may not be bound by the terms of that agreement. Thus, if DEP denied a permit solely because of the VCC agreement, then the permittee might have a valid appeal. If DEP denied a permit because of its new interpretation of existing law, however, then the denial would be appropriate.
The VCC agreement represented an understanding between DEP and VCC over the interpretation of current storm water law, not a document requiring DEP to take any specific action. If DEP failed to follow the promises made in its agreement with VCC, then VCC could file an appeal of that permit and use the agreement to show inconsistencies in DEP’s interpretation of its own laws. DEP would then have to explain how it could issue a permit using practices that DEP had publicly admitted would cause environmental harm and which would be in violation of current DEP legal interpretations.
On March 29, 2004, the Supreme Court denied the Homebuilders’ appeal of Commonwealth Court’s dismissal of its lawsuit. There was no opinion, only a dismissal.
The efforts by VCC and their members once again show how dedicated people can make changes in the way our government interprets and enforces its environmental laws. It took many years and several lawsuits to convince DEP that VCC would pursue this issue to the ends of the judicial system. The health and viability of the Valley Creek Watershed was in danger because DEP had a narrow view of its mission and only looked at the effects of each discharge and not the cumulative effects of these discharges. DEP’s current interpretation of the storm water laws now takes the broader viewpoint advocated by VCC, and others. Now, VCC can fully support the efforts of DEP to fulfill its duty to protect and preserve all the waters of our Commonwealth.