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Delaware Water Emergency Group v. Hansler

ELR Citation: 12 ELR 20845
Nos. No. 80-4372, 536 F. Supp. 26/18 ERC 1208/(E.D. Pa., 08/17/1981)

The district court upholds the determination of the Delaware River Basin Commission (DRBC) not to prepare an environmental impact statement (EIS) prior to approving construction of a pumping station at Point Pleasant, Pennsylvania, for the withdrawal of water from the Delaware River.The DRBC's initial decision to add the diversion plan to its comprehensive plan was made in conjunction with the preparation of an EIS, which concluded that the project would not be detrimental to the river. The only major change in the project since that approval was a reduction in the quantity of water to be withdrawn. Initially, the court rules that it is required to review the DRBC's negative determination on the basis of the administrative record and to determine whether (1) the DRBC complied with all applicable statutes and regulations, (2) the DRBC carefully considered the environmental consequences based upon the information before it, and (3) the information provided to the DRBC before it acted was sufficient for it to make a well-considered decision.

Turning to the merits, the court rules that the final environmental assessment (EA) prepared by the DRBC, which concluded that an EIS was not required, satisfied the substantive requirements of §102(2)(C) of the National Environmental Policy Act. Rejecting plaintiffs' arguments that the EA failed to adequately consider the environmental effects of the overall Point Pleasant water diversion plan, the court concludes that such issues were adequately considered when the DRBC, after reviewing EISs for other projects included in the plan, added the pumping station to its comprehensive plan. The current proposal, to build the same facilities at a smaller scale with a reduction in the quantity of water to be withdrawn, neither had an additional environmental impact not previously analyzed nor constituted a changed circumstance requiring preparation of a new EIS. The court also rules that there was not insufficient public participation merely because the EA incorporated by reference other documents that were otherwise made available for public scrutiny. In addition, the DRBC adequately considered the recommendations of other agencies and the mandates of the Endangered Species Act and other statutes.

The full text of this opinion is available from ELR (24 pp. $3.50, ELR Order No. C-1285).

Counsel for Plaintiffs
Harold A. Lockwood Jr.
Lockwood, Reid & Bolger
2126 Land Title Bldg., 100 S. Broad St., Philadelphia PA 19110
(215) 563-6660

Counsel for Defendant Delaware R. Basin Comm'n
David J. Goldberg
Warren, Goldberg & Berman
P.O. Box 1354, Trenton NJ 08607
(609) 394-7141

Counsel for Defendant Neshaminy Water Resources Auth.
Hershel J. Richman
Cohen, Shapiro, Polisher, Shiekman & Cohen
22d Floor, 12 S. 12th St., Philadelphia PA 19107
(215) 922-1300

Counsel for Defendant Philadelphia Electric Co.
Bernard Chanin
Wolf, Block, Schorr & Solis-Cohen
12th Floor, Packard Bldg., Philadelphia PA 19102
(215) 569-4000

Van Artsdalen, J.