STOPPER Raymond Proffitt Foundation P.O. Box - 723, Langhorne, Pa. 19047-0723 gateway@rayproffitt.org
SUMMER/FALL   2000	http://www.rayproffitt.org	Margaret Spanier, President

UPDATE ON LEGAL MATTERS

1. VALLEY CREEK WATERSHED

The Raymond Proffitt Foundation is currently involved in several lawsuits to protect our water quality. In the first matter, we are a member of a coalition of seven environmental groups (Valley Creek Coalition) that protect the Valley Creek Watershed, in Chester County, from harmful stormwater discharges. We recently settled one case, but are now involved in a similar lawsuit in front of the Pennsylvania Environmental Hearing Board.

The Valley Creek Coalition settled its lawsuit against DEP and PennDOT over storm water controls from Route 202, Section 400 that would adversely affect the Valley Creek Watershed, an Exceptional Value Watershed. This section of the highway runs from King of Prussia to Swedesford Road. The Coalition is composed of seven environmental groups formed to protect and enhance the Valley Creek Watershed, which flows through the Valley Forge National Historical Park.

The Coalition had appealed a fall 1998 storm water discharge permit issued to PennDOT by DEP. The Coalition had argued that the approved storm water controls would reduce the amount of base flow in the Valley Creek Watershed, would increase the volume of storm water runoff, thereby increasing erosion of the creek, and that the controls would add pollutants to the creek.

In the settlement agreement, PennDOT has agreed to include measures in its highway construction that will address the Coalition's concerns. These measures will compensate for the lost discharge from the new parts of the highway.

The Coalition has attempted to convince PennDOT and others that traditional storm water controls harm the Valley Creek Watershed. These old and tired controls seek to get the water away from newly constructed impervious surfaces as quickly as possible. Large detention basins empty the storm water into Valley Creek which flows into the Schuylkill River. The Coalition advocates infiltration methods that puts the water back into the ground, and ultimately provides for slow underground releases to the creek. It is these slow releases that provide flowing water during droughts and dry conditions.

Considering the rapid growth rate along the Valley Creek Watershed, all of this storm water accumulates into sizable amounts. There have been forty such permits issued since Valley Creek was designated as an Exceptional Value Watershed in 1993. These amounts of rainwater are lost by the old storm water methods and have caused several smaller tributaries to Valley Creek to dry up. If we keep this water from reaching the groundwater then our streams will eventually disappear.

The Valley Creek Coalition is currently in litigation with the Vanguard Group concerning the same issues. Once again, it is the Valley Forge National Park that will suffer from flooding problems.

The Valley Creek Coalition is composed of the Green Valleys Association of Southeastern Pennsylvania, Open Land Conservancy of Chester County, Pennsylvania Environmental Defense Fund, Raymond Proffitt Foundation, Schuylkill River Keeper, Valley Forge Chapter of Trout Unlimited, and West Chester Fish, Game & Wildlife Association. 

2. LEHIGH RIVER

The Raymond Proffitt Foundation is working with the Lehigh River Stocking Association to change the U.S. Army Corps of Engineers' release policy at the F.E. Walter Dam on the Lehigh River. This case is in the U.S. District Court for the Eastern District of Pennsylvania. 

Many years ago, this country embarked on an incredible endeavor of building dams primarily for flood control. Secondary purposes included water supply, hydroelectric power and sometimes recreation in the dam reservoir.

Dams were rarely built to help the downstream aquatic environment. In fact, experts agree that dams harm downstream life by changing the natural ebbs and flows of the rivers. Currently, there is a movement to eliminate many of our nation's dams.

The Corps built, maintains and operates the F.E. Walter Dam which controls all the water going into the upper portions of the Lehigh River. The Dam can hold 36 billion gallons, but the Corps keeps the levels at approximately « billion gallons. To accomplish this low level, the Corps releases large amounts of water during the winter and spring, when rain fall is high. This practice results in extremely low flows during drier summer months. The summer flows are typically at Q7-10. This is the lowest continuous seven-day flow in ten years. The U.S. Fish & Wildlife Service considers this rate to be at drought conditions.

The lawsuit is to force the Corps to change its release policy to store more water during wetter periods and release more water when the River needs it most. The primary legal theory behind this lawsuit is a statute that is part of the Water Resources Law of 1990. This statute requires that the Corps shall include environmental protection as one of its primary missions when building, operating or maintaining any of its projects, including dams.

Recently, the Corps filed a Motion to Dismiss arguing that the above law does not enumerate specific requirements for the Corps to provide environmental protection. The Corps claims that it has discretion to choose how it will implement its environmental mission.

The Court ruled against the Corps on this argument saying that, first, the Plaintiffs made a cognizable claim that the Corps has not applied this law at all to the F.E. Walter Dam. So that while the Corps may have discretion to decide how to carry out its mission of environmental protection, the statute does not permit the Corps to ignore its mission completely. Second, the Plaintiffs made a cognizable claim that any Corps activity pursuant to the above statute may be inadequate, as well as possibly violating the Clean Water Act.

The Second part of the above Memorandum & Order was based on the legal rationale from a Supreme Court decision that reduction in water quality may constitute harm to water quality and thus violate antidegradation provisions. The Court said that if this violation of laws can be proven, then the Corps' release policy would itself violate the Administrative Procedure Act's' prohibition against agency action considered arbitrary and capricious or not in accordance with law.

The Corps must now prepare an Administrative Record to justify its harmful release policy. Once that record is complete, then the parties will file cross legal motions to be decided by the judge.

 return