Opinion
EHB 2021-108-L 2021-109-L
04-01-2022
DELAWARE RIVERKEEPER NETWORK AND THE DELAWARE RIVERKEEPER, MAYA VAN ROSSUM and STEVEN GIDUMAL AND VIRTUS CAPITAL ADVISORS, LLC v. COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF ENVIRONMENTAL PROTECTION, and PENNSYLVANIA DEPARTMENT OF TRANSPORTATION, Permittee
For the Commonwealth of PA, DEP: William J. Gerlach, Esquire Jason Goodman, Esquire (via electronic filing system) For Appellants, Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum: Daryl Grable, Esquire Janine G. Bauer, Esquire (via electronic filing system) For Appellants, Steven Gidumal and Virtus Capital Advisors, LLC: Timothy Bergere, Esquire Ashley Shapiro, Esquire Bianca Valcarce, Esquire (via electronic filing system) For Permittee: Kenda Jo M. Gardner, Esquire (via electronic filing system)
For the Commonwealth of PA, DEP: William J. Gerlach, Esquire Jason Goodman, Esquire (via electronic filing system)
For Appellants, Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum: Daryl Grable, Esquire Janine G. Bauer, Esquire (via electronic filing system)
For Appellants, Steven Gidumal and Virtus Capital Advisors, LLC: Timothy Bergere, Esquire Ashley Shapiro, Esquire Bianca Valcarce, Esquire (via electronic filing system)
For Permittee: Kenda Jo M. Gardner, Esquire (via electronic filing system)
OPINION AND ORDER ON PETITIONS FOR SUPERSEDEAS
BERNARD A. LABUSKES, JR., JUDGE.
Synopsis
The Board denies petitions for supersedeas filed by appellants seeking to supersede a water obstruction and encroachment permit issued by the Department for the removal of an existing bridge and the construction of a new bridge. The existing bridge, which has been closed for more than a decade, is more than 200 years old and is at imminent risk of failure due to its deterioration. The bridge is also affecting the natural regime of the stream it crosses and causing environmental degradation. The appellants have failed to show that they have a likelihood of achieving success on the merits, and granting a supersedeas petition would likely cause more actual and potential harm than denying it.
OPINION
This case involves two consolidated appeals, one filed by Delaware Riverkeeper Network and the Delaware Riverkeeper, Maya van Rossum (hereinafter "the Riverkeeper"), and one filed by Steven Gidumal and Virtus Capital Advisors, LLC ("Gidumal") (referred to collectively as the "Appellants"). Both appeals were filed on November 15, 2021. The Riverkeeper and Gidumal are appealing Water Obstruction and Encroachment Permit No. E0901120-026 issued by the Pennsylvania Department of Environmental Protection (the "Department") to the Pennsylvania Department of Transportation ("PennDOT") on September 29, 2021. The appealed permit authorizes PennDOT to remove the Headquarters Road Bridge in Tinicum Township, Bucks County, and construct a new replacement bridge. (PennDOT Exhibit No. ("DOT Ex.") 14.)
The existing Headquarters Road Bridge was built in 1812 and has since undergone various repairs, including the replacement of the superstructure in 1919, which remains there today. (Hearing Transcript Page No. ("T.") 261, 736; DOT Ex. 15.) The bridge spans Tinicum Creek, an exceptional value water of the Commonwealth, at a point about five-and-a-half miles upstream of Tinicum Creek's confluence with the Delaware River. (T. 121, 260, 262.) Tinicum Creek has also been designated as a Wild and Scenic River by the National Park Service. (T. 185-87; DOT Ex. 15.) The bridge is approximately 78 feet long from its eastern abutment to its western abutment and it has a 16-foot-wide roadway. (T. 262, 571-72.) The bridge's substructure is comprised of two masonry abutments at either end and two masonry support piers within the Creek. (T. 571.) The bridge is a three-span structure, with each span being the distance between a support element. (T. 571.)
The superstructure of a bridge is the portion of the bridge that carries the deck and roadway surface that sits on top of the abutments and piers of the supporting substructure. (T. 261, 573-74, 599-600.)
The Headquarters Road Bridge exhibits advanced deterioration and has been closed to vehicles and pedestrians since 2011 because of safety concerns with the bridge's overall structural integrity and because of a large hole in the bridge deck. PennDOT started thinking about possibly replacing the Headquarters Road Bridge in 2002, with design for a new bridge beginning in 2005. (T. 611; DOT Ex. 10.) Extensive discussions with, among others, the Department, the National Park Service, the U.S. Army Corps of Engineers, the Pennsylvania Historical and Museum Commission, and various consultants led PennDOT to pursue a replacement bridge consisting of two spans with shifted abutments to span the natural waterway of Tinicum Creek and align with the flow of the stream. (T. 611-17, 844-45, 850; DOT Ex. 10.) The abutments will be shifted approximately 15 feet to the west, with the western abutment shifted out of the stream and into the streambank and the eastern abutment being shifted closer to the stream channel. (T. 280, 282.) The new bridge is essentially the same length as the existing bridge. (T. 280.) It will have a two-lane superstructure sitting on top of reinforced concrete abutments and a single reinforced concrete pier. (T. 573-74; DOT Ex. 9.) The width of the bridge will be 24 feet to match the width of the approach roadway and consist of two ten-foot travel lanes with two-foot shoulders. (T. 574; DOT Ex. 15.) Thus, there will be a two-lane instead of a one-lane bridge, which seems to at least partly explain the Appellants' opposition to the project. (T. 41 (project will install a "superhighway"), 81, 87 (project will allow tractor-trailer traffic), 217 (more traffic).) The concrete faces of the structure will be faced with stone salvaged from the existing bridge, to the extent that enough competent stone can be salvaged. (T. 574, 605, 740-41.)
PennDOT has already selected a contractor for the project. (T. 684-85.) It anticipates issuing a notice to proceed to its contractor for the bridge work on April 4, 2022. (T. 643.) A notice to proceed is the authorization PennDOT provides a contractor to begin construction work on the project. (T. 643.) The issuance of the notice to proceed will kick off the process of pre-construction coordination meetings, photo documentation, and vegetation clearing, as well as the mobilization of resources for the contractor. (T. 644-46.) PennDOT estimates that the new bridge will be completed in April or May 2023. (T. 646-47.)
Gidumal owns the property immediately around the bridge upstream and downstream. (T. 30-32; Gidumal Exhibit No. ("G. Ex.") 002.) The property consists of 47 acres and includes a manor house dating to 1741, a barn, horse stables, and pastures. (T. 30-31.) Gidumal purchased the property on June 30, 2020. (T. 34-35; G. Ex. 2.) He has renovated more than 130 homes. (T. 92.) Gidumal is concerned about the effect the project will have on the property, especially the portion of Headquarters Road that crosses the property and leads up to the west side of the bridge. The Riverkeeper Network is an organization with a mission to protect and restore the Delaware River, its tributaries, and the ecosystem within the Delaware River watershed, which includes Tinicum Creek. (T. 181-83.) The Riverkeeper Network and the Riverkeeper have advocated for the protection of Tinicum Creek for many years. (T. 196-203.) Neither the Department nor PennDOT have questioned the Appellants' standing in the proceedings.
The bridge project has been the subject of study and litigation for many years. Notably, among other things, in 2018 the Riverkeeper challenged PennDOT's and the Federal Highway Administration's ("FHWA's") issuance of a Final Categorical Exclusion Evaluation and a Final Individual Section 4(f) Evaluation approving the replacement bridge in federal district court. Del. Riverkeeper Network v. Pa. Dep't of Transp., No. 18-4508, 2020 U.S. Dist. LEXIS 154233 (E.D. Pa. Aug. 20, 2020). (DOT Ex. 8.) The Riverkeeper claimed that the agency defendants' determinations were arbitrary and capricious under the National Environmental Policy Act ("NEPA"), Section 4(f) of the Department of Transportation Act, and Section 106 of the National Historic Preservation Act, and they asked the Court to remand the matter for consideration of rehabilitation and repair. The Riverkeeper asked the Court to set aside the defendants' approval of a categorical exclusion for the project and the Final Section 4(f) Evaluation, claiming that both determinations were arbitrary and capricious. They contended that there were multiple circumstances present that precluded the issuance of a categorical exclusion, and that the Riverkeeper's preferred alternative of rehabilitation was both prudent and feasible and would cause the least harm to historic resources.
The defendant agencies responded that they took the necessary hard look at the project's environmental impacts, mitigated the project's harms, and properly determined that no significant environmental impacts would occur, thereby making their approval of a categorical exclusion in accordance with law. They also argued that the administrative record supported their conclusion that the Riverkeeper's preferred rehabilitation alternative was not prudent, and, therefore, their selection of the replacement alternative was neither arbitrary nor capricious.
The Court in an 80-page opinion concluded based on the administrative record that PennDOT and FHWA were entitled to summary judgment in their favor. Contrary to PennDOT's contention here, the Court's decision does not collaterally estop the Riverkeeper from pursuing their claims in this appeal because the statutes and regulations at issue and the standard and manner of review in the federal case were too different than the statutes, regulations, and standard and manner of review applicable here. Nevertheless, the Court's detailed treatment of the issues is certainly worthy of mention.
We are not aware that Gidumal was a party to the proceeding. Gidumal purchased the property out of foreclosure on or about June 30, 2020. (T. 34-35, 44-45.)
The Court noted that the administrative record that formed the basis for its review covered close to 15 years and filled approximately 14, 000 pages. The Court described the truly exhaustive development process that the agencies had engaged in, which included extensive public input. The Court found that the record was filled with evidence of interagency coordination, public involvement, and the study and consideration of environmental impacts that went well beyond what is usually seen or required for a categorical exclusion.
The Court found that the record was replete with evidence that PennDOT and FHWA carefully considered the replacement project's environmental impacts and performed appropriate studies and concluded that no significant environmental impacts would result. Some relevant takeaways from the agencies' studies included that the hydrologic and hydraulic analyses showed that increases to water surface elevations and velocities downstream would be insignificant and would not result in any downstream impacts, that no long-term impacts from sediment were anticipated, and that fish passage would actually be improved.
In response to the Riverkeeper's argument that rehabilitation of the existing bridge was a prudent and feasible alternative, the Court found that the agencies had provided multiple justifications, well supported by many supportive studies, for rejecting rehabilitation as an option, and their work and conclusions were neither arbitrary nor capricious. The rehabilitation option failed to meet industry standards and would not accommodate emergency vehicles or support modern loads. The Court found that the record supported the agencies' efforts to minimize the impact to historical resources to the fullest extent possible. The Court concluded,
Unfortunately for all, the Bridge is decrepit and its function severely limited. Defendants determined that a need existed and sought to develop a Project to address that need. It is clear that the process has resulted in controversy and vigorous debate. Indeed, the Bridge and the Creek have been so beset with litigation and other machinations over the many years, it is a natural wonder that words have not dammed [sic] the Creek altogether, rendering a bridge unnecessary. However, the nearly 14, 000-page record also demonstrates that Defendants have endeavored to research and respond to these areas of contention. Although the Bridge, which does have historic value as a contributing element to the Historic District, will be replaced, the agencies determined over the course of 15 years of studies, reports, comments, responses, and coordination, as well as their own expertise, that a categorical exclusion was appropriate because significant impacts to the human environment would not result. Considering the evidence presented, and emphasizing that agencies are entitled to substantial deference in interpreting their own regulations and determining the applicability of a categorical exclusion, the Court concludes that approving a categorical exclusion was not arbitrary, capricious, or otherwise not in accordance with law. The Court grants summary judgment in favor of Defendants.(DOT Ex. 8, slip op. at 64 ("[sic]" in original).)
Now, after 20 years of planning, study, design, and litigation, we are faced with the latest chapter in the Headquarters Road Bridge saga. On the same day the Riverkeeper filed their notice of appeal, they also filed a petition for supersedeas. We scheduled a conference call with the parties in the Riverkeeper appeal to discuss moving forward on the supersedeas. On November 30, 2021, the day of the scheduled call, Gidumal filed a letter in his appeal indicating that they also intended to file a petition for supersedeas and that they were available to participate in the conference call. We held the call with the parties from both appeals and discussed the consolidation of the two appeals and a timeline for proceeding toward a hearing on the supersedeas. The parties asked to begin the hearing three months later on March 2, 2022. Following the call, we issued an Order consolidating the appeals and requiring the parties to submit a joint proposed schedule regarding the supersedeas. The parties filed a joint proposed pre-hearing schedule, which we adopted in an Order, providing for Gidumal to file their petition for supersedeas by December 8, for the Department and PennDOT to file responses to the Riverkeeper's petition by December 21, and for the Department and PennDOT to file supplemental responses to address Gidumal's petition by January 7, 2022. The scheduling Order also contained dates for serving answers to discovery requests and exchanging lists of witnesses and exhibits.
On February 18, 2022, due to the ongoing Covid-19 pandemic, we issued an Order changing the format of the supersedeas hearing from an in-person hearing at the Board's Norristown offices to a virtual hearing to be conducted via WebEx. No party objected. We held a pre-hearing conference call with the parties on February 25 to discuss final logistics in advance of the hearing. The supersedeas hearing was held on four days: March 2, 3, 4, and 7. The parties agreed to brief the proceedings on the basis of expedited transcripts and filed simultaneous briefs on March 21, 2022.
Discussion
The Environmental Hearing Board Act of 1988, 35 P.S. §§ 7511 - 7514, provides adversely affected parties with the right to file an appeal from a Department action. No appeal acts as an automatic supersedeas, but the Board may grant a supersedeas upon cause shown. 35 P.S. § 7514(d)(1). The grant or denial of a supersedeas is guided by relevant judicial precedent and the Board's own precedent. 35 P.S. § 7514(d)(1); 25 Pa. Code § 1021.63(a). Among the factors to be considered are (1) irreparable harm to the petitioner, (2) the likelihood of the petitioner prevailing on the merits, and (3) the likelihood of injury to the public or other parties. 35 P.S. § 7514(d); 25 Pa. Code § 1021.63(a); Erie Coke Corp. v. DEP, 2019 EHB 481, 485.
In order for the Board to grant a supersedeas, a petitioner generally must make a credible showing on each of the three statutory criteria, with a strong showing of likelihood of success on the merits. Hudson v. DEP, 2015 EHB 719, 726; Mountain Watershed Ass'n v. DEP, 2011 EHB 689, 690-91 (citing Pa. Mining Corp. v. DEP, 1996 EHB 808, 810); Lower Providence Twp. v. DER, 1986 EHB 395, 397. In considering whether the criteria have been met we are mindful that "a supersedeas is an extraordinary remedy and will not be granted absent a clear demonstration of need." PBS Coals, Inc. v. DEP, 2021 EHB 104, 106 (citing Del. Riverkeeper Network v. DEP, 2016 EHB, 41, 43). Importantly, "[a] supersedeas shall not be issued in cases where pollution or injury to the public health, safety or welfare exists or is threatened during the period when the supersedeas would be in effect." 35 P.S. § 7514(d)(2). See also 25 Pa. Code § 1021.63(b).
The Existing Bridge is a Hazard and is Beyond Repair
The Headquarters Road Bridge is a hazard and is in danger of imminent collapse. This alone should prevent a supersedeas from being issued. 35 P.S. § 7514(d)(2); 25 Pa. Code § 1021.63(b). Regardless, the Appellants are not likely to succeed in showing that the existing bridge is anything other than an imminent hazard or that it can remain in place with any amount of repair or rehabilitation. PennDOT presented the unrebutted and highly credible testimony of Michael McAtee, P.E., an engineer with Urban Engineers whose work for more than 26 years has focused on the design and structural engineering of bridges. (T. 809-12; DOT Ex. 25.) McAtee was the project manager for the engineering team on the Headquarters Road Bridge replacement and has worked on the project since 2006. (T. 827-28.) We fully credit his opinion that the existing bridge is in a state of imminent failure. (T. 828.) Even as far back as 2006, when McAtee and his firm prepared a report evaluating the structural condition of the Headquarters Road Bridge, "every component had evidence of deterioration. Severe deterioration in certain areas." (T. 829; DOT Ex. 26.)
In the intervening years the deterioration has only worsened. (T. 887.) Indeed, the bridge has been closed since 2011 because of its poor and worsening condition. (T. 572-73, 728.) As PennDOT's engineering project manager consultant, Ryan Whittington, P.E., testified, an inspection of the bridge in 2011 found a four-foot-wide hole in the bridge deck. (T. 572-73.) Efforts to cover the hole with a steel plate were unsuccessful because there was not any sound concrete in which to anchor the plate. (T. 573, 735-36.) The bridge was determined to be unsafe for use by the public because of the risk of imminent failure of the bridge and its structural inability to safely carry vehicular traffic. (T. 573, 887.) Although the existing bridge is also theoretically closed to pedestrians, there has been concern of pedestrians, cyclists, and motorcycles going around the closure barriers and continuing to use the bridge, so stone was placed on the bridge to cordon off any gaps. (T. 664-65, 674-75.)
During McAtee's most recent inspection in September 2021, following widespread flooding caused by the remnants of Hurricane Ida, he noticed that the stone at the top of the western abutment supporting the superstructure is completely fractured and "a hundred percent crushed in certain areas." (T. 835-36.) He noted a large void or localized collapse in the eastern pier that could compromise the entire bridge structure. (T. 830-31.) McAtee previously noted that one of the wing walls of the bridge (an extension of the abutment going back into the approach roadway) exhibited step cracking, a sign of imminent failure, and that a section of the wing wall has since fallen into the creek bed, failing along the step cracking line. (T. 836.) There is now a large void in the western pier close to five feet in width, two to three feet high, and a foot deep. (T. 836-37.) This void surprised McAtee because it was not an area he had identified in previous inspections as an area of main concern. (T. 837.) He also credibly opined that it appears the foundation of the abutments is being undermined, with water getting underneath the base stones, and that water is also undermining grout bags that were installed as a temporary counter measure. (T. 842.)
McAtee credibly testified that the condition of the stone of the piers is cracked and crushed and even the high-quality stone toward the base of the pillars is completely fractured, indicating that loading is now concentrated in certain areas, which could precipitate further failure. (T. 829-30.) During core drilling of the bridge piers, McAtee found that some of the base stone was in fairly good condition, but other areas had large voids and more than a foot of unsupported area from material loss over time. (T. 834.) He noted that the lime mortar that was holding the masonry together was in poor condition and the grout joints in the masonry have deteriorated. (T. 834-35, 858; DOT Ex. 28.) Further, the superstructure of the bridge has holes in the deck, including the four-foot hole that brought about the bridge's closure, and the frame is in very poor condition. (T. 829.) All of McAtee's observations were confirmed and corroborated with numerous photographs, (DOT Ex. 26, 28; G. Ex. 911, 913), and we fully credit his assessment of the bridge's condition and structural integrity.
Every indication is that the condition of the existing bridge will continue to decline. Stone from the bridge is already falling into the stream and other areas of stone and streambank are continuing to erode. (T. 862-63.) The collapse of stone near the tops of the supports could result in the loss of support in the western span, which would likely mean the superstructure would fall into the creek. (T. 887.) A collapse of the bridge would obviously result in harm to Tinicum Creek and we do not think it is in anyone's interest to allow that to happen.
It bears emphasis that the Riverkeeper and Gidumal produced nothing to contest this testimony. No one testified on behalf of the Appellants that the current bridge is not at risk of imminent collapse or that the bridge is not deteriorating and presenting an unsafe and hazardous condition. There is no evidence anywhere in the record even suggesting that the existing bridge is anything but a hazard.
The Board during the prehearing conferences suggested to the parties that environmental harm seemed to be the area of greatest concern for purposes of the supersedeas proceeding, but we also repeatedly told the parties that they were free to use their allotted time in any way they chose.
Gidumal argues without any record support that PennDOT deliberately let the bridge fall apart just so it could support its case for tearing it down, (see, e.g., Gidumal Brief at 3, 69, 72), but even if true, it does not change the fact that the bridge is, whatever the cause, (a) an imminent hazard to the public safety and the environment, and (b) beyond repair. Unfortunately, Gidumal spends much of their brief indulging in conspiracy theories, innuendo, and invective instead of the merits. In addition to claiming that PennDOT intentionally declined to make repairs to the existing bridge in 2011 as part of a nefarious plot to make its case for a bridge replacement a decade later, they accuse PennDOT of putting "political pressure" on the Department to issue the permit. They then allege PennDOT withheld witnesses that would testify on these apparently important topics. Gidumal accuses PennDOT of, among other things, being "biased," "self-serving," "shameless," "cynical," having a "lack of integrity," and exhibiting "arrogance," "hubris," and a "callous disregard" for the Commonwealth's natural resources. (Gidumal Brief at 3-5, 45, 72-73.) Gidumal inexcusably goes so far as to include innuendo about counsel for PennDOT and the Department. (Gidumal Brief at 4, 75-76.) These are distractions that unsuccessfully attempt to shift the focus from the fact that Gidumal and the Riverkeeper presented no evidence challenging the testimony of PennDOT's well-qualified expert witnesses that the existing bridge is at risk of imminent collapse and well beyond the point of any rehabilitative efforts.
The Appellants say that the existing bridge can be rehabilitated but they presented no evidence of how that would be possible. Again, there is nothing in the record to suggest that the bridge can be rehabilitated. The Riverkeeper even testified that they wanted to obtain a supersedeas in order to show later that rehabilitation is an option, all but conceding that the Riverkeeper did not have any evidence to that effect for purposes of the supersedeas. (T. 218-19.) The Appellants want the Department and PennDOT to give rehabilitation further study, but this project has been studied interminably for 20 years at this point. Gidumal, without any apparent sense of irony, calls this long, drawn-out process "racing with…break-neck speed." (Gidumal Brief at 78.)
The Appellants' allegation that the bridge could be rehabilitated goes against all of the persistent and credible testimony and photographic evidence presented at the hearing. PennDOT evaluated the possibility of rehabilitating the existing bridge and determined that it was not feasible. (DOT Ex. 7.) PennDOT evaluated two different rehabilitation options. The first was a one-lane superstructure with the replacement of the existing abutments with reinforced concrete abutments and a partial rehabilitation of the existing piers. (T. 601.) The second was a two-lane superstructure with the same work on the substructure. We credit McAtee's finding that rehabilitation is not feasible due to the significant deterioration of the Headquarters Road Bridge's substructure. (T. 921.) He credibly opined that the bridge has exceeded its intended life, poses a safety risk, and a full replacement is warranted. (Id.) (See also DOT Ex. 7 (at 47) ("The presence of significant structural deficiencies (base sliding, bulging, cracked stone courses) indicates internal distress within the substructures and overstress of the stone courses. The displacement of stone courses and cracking of stones introduces new voids, allowing for water to infiltrate into the pier section further advancing deterioration as a result of freeze-thaw cycles. Without entire reconstruction of the substructure, it is not possible to determine the exact service life due to the condition and continued deterioration."), DOT Ex. 10 (at 2) ("Urban [Engineers] performed a detailed evaluation of the structure to evaluate the feasibility of its rehabilitation as part of the alternative analysis and found that the masonry structure has experienced significant distortion and localized failure which would be nearly impossible to remedy.").)
McAtee persuasively opined that there is good reason why bridges are no longer constructed out of stone, because modern materials are more homogeneous and have better, longer lasting material properties. (T. 830.) Unlike concrete and steel, which can redistribute force if an area of the structure has been compromised, stone masonry cannot perform that function. (T. 831.) Even maintenance patches of the stone masonry simply create new stress concentrations throughout the composition that result in overloading of certain areas, which can cause the stone to crush and crack. (T. 837.)
The Appellants have also failed to produce any evidence that no bridge is needed at all at this location. Nor would such a claim have been plausible. Among other things, the closure of the bridge in 2011 has necessitated a 15.6-mile detour to be in place. (T. 639.) The legitimate purpose of this project and the need for a bridge in this location are well supported in the record.
In lieu of evidence, Gidumal says that PennDOT rehabilitated another old bridge that crosses Tinicum Creek, the Geigel Hill Road Bridge, so therefore, PennDOT can rehabilitate the Headquarters Road Bridge. There is nothing in the record that supports Gidumal's extrapolation or why this is even a relevant comparison. Indeed, Gidumal argues that the Geigel Hill Road Bridge replacement project stands for various other factual propositions as well, such as the stream protective measures built into the permit will not work for the project in this case, and that PennDOT does not care about the environment. There is no support for any of these propositions in the record either. We have no basis for making any reasoned comparisons between the engineering considerations regarding the two bridges or the environmental conditions surrounding the bridges. Comparisons to the Geigel Hill Road Bridge have not been shown to have any probative value here.
Gidumal relies in passing on our Opinion and Order in Tinicum Township v. DEP, 2008 EHB 123, which happened to involve the Geigel Hill Road Bridge. Gidumal cites the case for the proposition that PennDOT is not entitled to special treatment under the encroachment regulations, which is undoubtedly true, but there was no credible evidence of any special treatment here. Indeed, it is difficult to imagine a more painstaking review than the one PennDOT has gone through. Gidumal cites the case for the proposition that the regulations allowing for emergency permits should not be abused, but this case obviously does not involve an emergency permit. They cite the case for the proposition that historical values must be respected when considering an emergency permit application, but historical values were exhaustively considered in this case.
Actually, Tinicum Township was not even an appeal from a permit, it was an appeal from a letter notifying the municipality that an emergency permit would be issued. We superseded portions of the letter for procedural reasons, but specifically said that our ruling did not preclude a permit from being issued so long as proper notice was given under the regulations. Tinicum Township did not address any water quality concerns, other than a brief mention of the harm that would be caused if the bridge collapsed, which it was in danger of doing, not unlike one of the dangers presented here.
The Geigel Hill Road Bridge was a pony truss bridge built in 1887 and held up by steel trusses. In language perhaps reminiscent of this case, we said, "[a]lthough beauty is in the eye of the beholder, in its current condition, plastered as it is with warning signs, blocked by barriers, and generally falling apart, the Bridge is at least arguably detracting from, rather than contributing to, the historical ambience of the district." 2008 EHB at 124. Aesthetics are also in the eye of the beholder. (See G. Ex. 107 (pictorial comparison of old and new Headquarters Road Bridges).) The Riverkeeper's opinion that the new bridge is "ugly," (T. 195), is one person's opinion with which reasonable persons could disagree and to which we afford no weight.
If we assume for purposes of argument that the Headquarters Road Bridge is not a hazard and can be "rehabilitated," it would still not justify issuance of a supersedeas. The existing bridge is causing harm to the stream as discussed below, but even if we put that aside as well, we have absolutely no record support for the proposition that "rehabilitation," whatever that means, is somehow a better alternative than replacing the bridge given the myriad factors that go into such a complicated decision. Gidumal insinuates that PennDOT's decision was all about money, (Gidumal Brief at 69), but even if that were true, we applaud PennDOT's reasoned stewardship of taxpayer dollars.
Not only is the existing bridge a safety hazard, it is causing environmental degradation. It is causing excess erosion and sedimentation (E&S) of the stream and it is interfering with the natural regime of the stream. As to the first point, Tinicum Creek currently experiences significant erosion, at some points down to bedrock on the western side near the bridge. (T. 856.) This is perhaps nowhere as evident as in the scour hole at the western abutment. The water of Tinicum Creek flows directly into the wing wall of the western abutment, and the stream then bends around that abutment. (T. 838, 855, 861, 886-87, 942; DOT Ex. 27 (at 8), 28.) We credit the testimony of the Department's aquatic biologist and permit reviewer, Christian Vlot, that the western abutment is taking the full force of the stream, which is directing energy downward and causing the scour. (T. 1141, 1147-48, 1152, 1170-72.) There are areas near the bridge where the depth of water is only a few inches deep to the stream bottom, yet the scour hole near the western abutment is at least five feet deep and has heavily eroded the stream bank. (T. 841; DOT Ex. 15.) The Riverkeeper's hydrology expert conceded that the scour hole could be as much as six or seven feet deep. (T. 455.) Gidumal's expert, Dr. Clay Emerson, acknowledged that the scour hole is deep and has likely eroded down to bedrock. (T. 161-62.) The scour has continued to get worse, (T. 858; DOT Ex. 28), and more scour holes are developing in the middle span of the bridge, (T. 953).
The Riverkeeper's expert all but conceded that the existing bridge was having a negative impact on Tinicum Creek when she testified that she did not believe the same scouring would occur if the bridge had never been built. (T. 329-32, 339.) Although she testified that the existing abutment merely needed some "engineering interventions" to prevent the scour, (T. 467-48), she did not tell us what those successful interventions could be. We do not credit her suggestion that the scour may simply be due to poor maintenance of the existing bridge structure, (T. 489, 516-17), which nevertheless implicitly concedes that the structure is having an adverse impact on the stream.
In addition to the scour, erosion at the bridge has exposed the roots of trees in the banks, at least one tree has already fallen, and it is likely only a matter of time before more trees fall into the stream and create downstream obstructions. (T. 631-32, 858-59, 863-64, 883-84; DOT Ex. 13, 28, 36.) There is a significant amount of sediment deposition forming a point bar on the eastern side of the stream that has become vegetated and projects far into the watercourse. (T. 797, 855, 863, 938, 1142-43; DOT Ex. 9, 27 (at 8), 28.)
With respect to the bridge's infringement of the stream's natural regime, there can be no question that the goal of the Dam Safety and Encroachments Act, 32 P.S. §§ 693.1 - 693.27, and the operative regulations is to preserve and protect the natural regime of watercourses. Indeed, the Dam Safety and Encroachments Act says exactly that, with one of its stated purposes being to "[p]rotect the natural resources, environmental rights and values secured by the Pennsylvania Constitution and conserve the water quality, natural regime and carrying capacity of watercourses." 32 P.S. § 693.2(3). The regulations echo this point:
The purposes of this chapter are to: ….
(4) Protect the natural resources, environmental rights and values secured by PA. CONST. art. I, § 27 and conserve and protect the water quality, natural regime and carrying capacity of watercourses.25 Pa. Code § 105.2(4). Another example is Section 105.16(d), which provides: "In reviewing permit applications, it will be the policy of the Department to encourage activities that protect the natural condition of the watercourses or other body of water." 25 Pa. Code § 105.16(d). Section 105.161(a)(3) provides:
(a) Bridges and culverts shall be designed and constructed in accordance with the following criteria:
(3) The structure may not materially alter the natural regimen of the stream.25 Pa. Code § 105.161(a)(3).
The statute and regulations use the terms "regime," "regimen," and "condition" interchangeably. We do not detect any difference in the meaning of the terms.
The Department reasonably interprets the "natural regime" of the stream to mean its equilibrium state, a stable state without excessive erosive force. (T. 1275, 1298.) It is a kind of neutral energy state. (Id.) It is not about how the stream looked 10 years ago or 100 years ago or 200 years ago. (T. 1274-76.) (See also T. 173 (permit based on stream as it exists or should exist now).) There is no particular time in history that necessarily represents what the stream would look like in its natural state. (T. 1335.)
Much attention has been devoted in this case to comparing the environmental impact of the existing bridge with the environmental impact of the new bridge. We have searched the regulations in vain for any indication that this is the pertinent inquiry. The pertinent inquiry centers on the project as a whole's impact on the natural regime, not its impact on an unnatural regime being artificially perpetuated by previously installed man-made obstructions. The Commonwealth is crammed with old dams, millraces, bridges, and other obstructions that have outlived their usefulness and may even be causing environmental harm. When these features are removed or replaced, the goal is to return the impacted watercourse to natural conditions to the extent possible. 25 Pa. Code §§ 105.2(4), 105.16(d), 105.161(a)(3). The goal is not to merely install a new obstruction that may be slightly less unsafe or may be slightly less environmentally harmful than the obstruction being replaced.
The standard in this case is not which obstruction is worse, the old bridge or the new bridge. The question that must be answered is whether removing the old bridge and installing the new bridge will materially alter the natural regime of the stream (in addition to the other relevant regulatory criteria). What constitutes the natural regime of the stream is a matter that the experts can help us define, and here, the preponderance of the testimony, especially that of Christian Vlot, is that the existing bridge is interfering with the natural regime of the stream, and the replacement project will ensure that the stream is restored to its natural free flowing condition. We reject the Appellants' unsupported legal argument that it is not necessary to strive to return a stream to a natural free-flowing condition simply because an existing obstruction has been there a long time.
Indeed, if the Department determines that an existing obstruction or encroachment is unsafe or adversely affecting property or the environment, the regulations authorize the Department to require the owner to repair or remove the offending obstruction. 25 Pa. Code § 105.62(a).
None of this is to suggest that the historic significance of the structure should be taken lightly. Clearly, it must be factored into the analysis. See 25 Pa. Code §§ 105.14(b)(5), 105.16(a). By the same token, harm to the stream should not be ignored when considering the historic value of the obstruction. The record shows that the Department performed the proper balancing here.
To the extent that we are wrong and comparing the two bridges is the appropriate standard, the stream with the new bridge will be in better shape than the stream with the old bridge.
The existing bridge is a man-made obstruction that is not part of the stream's natural condition. Gidumal's expert acknowledged that the bridge is an unnatural alteration of Tinicum Creek's natural regime. (T. 150-52.) The stream is not flowing freely. (T. 149-55.) The Riverkeeper's expert similarly acknowledged that the western abutment cannot be considered part of the stream's natural regime. (T. 304.) It is also clear that the existing bridge is preventing Tinicum Creek from reaching its equilibrium state, i.e. its natural condition, largely because of the western abutment protruding directly into the stream channel. Rehabilitating the old bridge or otherwise leaving it in its current injurious location or perpetuating the problem by installing a new bridge in the same impeding location would not be consistent with the natural condition of the stream.
The western abutment is creating a shadow effect for a short distance on the western bank downstream of the bridge, (T. 163-64, 1080), meaning the projection of the western abutment into the stream channel is artificially protecting the western bank from natural erosion. This is the area where the Appellants have expressed their greatest concern. The shadow effect is not natural; it is caused by the man-made structure that is the bridge. It is preventing Tinicum Creek from reestablishing a natural condition.
We do not find the Riverkeeper's expert's contention that the effect extends for nearly 1, 000 feet to be credible.
So at some risk of oversimplification, the dispute in this appeal boils down to the extent to which removing the old bridge will adversely affect the western shoreline below where the existing western abutment currently is located, and whether that will result in excess sedimentation of the stream or will increase velocity or direct flow in a manner which results in erosion of stream beds and banks over and above what occurs when the stream is flowing in accordance with its natural regime. 25 Pa. Code § 105.161(a)(3) and (4). There might be some effect; the question is how much. This turns on an analysis of the hydraulics and hydrology (H&H) of the Tinicum Creek.
Several highly qualified experts provided their opinions in this case regarding hydrology and hydraulics, with the Appellants' experts opining that the bridge will increase excess sedimentation from erosion in the stream and the agencies' experts saying the exact opposite. Weighing competing expert testimony is one of the Board's core functions. Gerhart v. DEP, 2019 EHB 534, 558. See also DEP v. EQT, 2017 EHB 439, 497, aff'd, 193 A.3d 1137 (Pa. Cmwlth. 2018). The weight given an expert's opinion depends upon factors such as the expert's qualifications, presentation and demeanor, preparation, knowledge of the field in general and the facts and circumstances of the case in particular, and the quality of the expert's data and other sources. Crum Creek Neighbors v. DEP, 2009 EHB 548, 561. "We also look to the opinion itself to assess the extent to which it is coherent, cohesive, objective, persuasive, and well grounded in the relevant facts of the case." EQT, 2017 EHB at 497. "Resolution of evidentiary conflict, witness credibility, and evidentiary weight are matters committed to the discretion of the Board." EQT Prod. Co. v. Dep't of Envtl. Prot., 193 A.3d 1137, 1149 (Pa. Cmwlth. 2018) (citing Kiskadden v. Dep't of Envtl. Prot., 149 A.3d 380, 387 (Pa. Cmwlth. 2016)).
We were treated to a surfeit of testimony based on H&H model results at the hearing. However, as we recently stated in New Hanover Twp. v. DEP, 2020 EHB 124, 179, rev'd, 258 A.3d 572 (Pa. Cmwlth. 2021), allocator accepted, No. 78 M.A.P. 2021, 266 A.3d 442 (Pa. 2021), the importance of modeling should not be exaggerated. "Modeling is obviously a valuable tool, but as a computer-generated prediction based on many input decisions, there is plenty of opportunity for manipulation designed to achieve a desired result. Proper calibration of the model with actual field measurements… operates as a check on manipulation, but it cannot eliminate the possibility for mischief entirely." 2020 EHB at 179. Despite the use of sophisticated modeling, we must leave room for some common sense in the analysis. Id. at 182. See also Solebury School v. DEP, 2014 EHB 482 (model results not credited because model predicted wildly crenellated contour lines and lines that depicted "crazy flow paths" of groundwater); M & M Stone Co. v. DEP, 2008 EHB 24, aff'd, No. 383 C.D. 2008 (Pa. Cmwlth. Oct. 17, 2008) (model results rejected because they did not calibrate well with field results).
We tend to agree with the testimony of Dr. Clay Emerson that one does not need a "fancy model" to predict how removing the old bridge will affect flow. (T. 141-42.) We did not necessarily need a modeling expert to tell us that moving the western abutment out of the stream channel where it is now will eliminate the unnatural shadow effect it has been having on the western bank downstream of the current bridge. We credit the testimony of Christian Vlot that, based on his valuable and extensive real world experience in evaluating encroachments (as opposed to computer simulations), the removal of the western abutment is not going to result in any significant increased erosion of the downstream western bank over and above what would occur in the stream's natural condition. (T. 1323.)
Of course, modeling is helpful, especially where, as here, it confirms predictions based on real world experience. Although we do not doubt the sincerity of all of the experts and we appreciate their contributions to the debate, we find the opinions of PennDOT's witness, Benjamin Israel-Devadason, P.E., to be by far the most credible. Without intending to minimize the excellent qualifications of the other experts, we find Israel-Devadason to be exceptionally well qualified and by far the most knowledgeable and experienced expert. He is recognized as a national authority on the precise issues that are the subject of our inquiries in this case. (T. 971-80, 1041; DOT Ex. 37.) He has conducted about 500 two-dimensional H&H analyses ("2D analyses") (as compared to the Riverkeeper's expert's five). (T. 250, 974-76.) Israel-Devadason is a Professional Engineer and a Certified Floodplain Manager and a recognized and award-winning expert in hydraulic and hydrologic engineering, including H&H modeling.
Israel-Devadason brought his outstanding qualifications to bear in presenting clear, well-organized opinions based on extensive preparation and state-of-the-art tools. We found his opinions to be coherent, cohesive, objective, persuasive, and well grounded in the relevant facts of the case. We detected no tendency toward exaggeration, alarmism, or result-oriented conclusions in his presentation. And having viewed dozens of photographs, videos, and drawings of the site in various flow conditions, his opinions, frankly, make the most sense.
Israel-Devadason's bottom line, which we fully credit, is that the new bridge will be better for the natural regime of the stream than if the existing bridge were to remain in place. (T. 1037, 1040-41.) Removing the old bridge and replacing it with the new bridge is going to improve the condition of the stream. (T. 1041.) Hydraulics will improve both within the stream channel and in the floodplain as well. (T. 1041.) Israel-Devadason's analysis was consistent with Vlot's opinion that, even in the area along the downstream western bank that is of the greatest concern to the Appellants, there will be no significant increase in velocities. (T. 992-97, 1001-14, 1035-36, 1037, 1040-41; DOT Ex. 38, 57.) This means that there will be no new increase or excess sedimentation of the stream as a result of erosive forces. See 25 Pa. Code § 105.161(a)(4).
There was a tremendous amount of debate in this case about whether a two-dimensional model ("2D model") as opposed to a one-dimensional model ("1D model") was necessary and appropriate for the project for the hydrologic and hydraulics analysis. Indeed, it was a primary, if not the primary, focus of the Appellants' cases, with Gidumal's expert testifying extensively on why he thought a 2D model was necessary for this project. A 1D model measures stream flow in a single direction as the water moves downstream. It relies on cross-sections taken at various points along the stream, running from bank to bank, that are intended to be representative of the geometry of the local terrain and the model averages the recorded flow velocity across the cross-section. In contrast, in a 2D model the modeler lays out a mesh of cells that account for the elevation and topography of the stream channel and surrounding features. (T. 981-82.)
In its permit application, PennDOT used a 1D model for its H&H analysis after consulting with an outside firm on whether its 1D analysis was appropriate for this project as opposed to a 2D analysis. (T. 853-54; DOT Ex. 27.) PennDOT's 1D analysis showed no real appreciable increase in flow velocity from what is happening now in Tinicum Creek. (T. 879-80, 890-91; DOT Ex. 32, 33.)
The debate whether a 2D model was necessary for this project seems largely academic because PennDOT, in an apparent response to the current appeals, performed a 2D analysis to see whether or not its 1D modeling held up. PennDOT engaged Israel-Devadason to perform the 2D modeling, which confirmed the conclusion of the 1D modeling that the bridge replacement would overall slightly reduce flow velocity, or at most result in a negligible increase at some points during some storm events. (DOT Ex. 38, 39.) There is no evidence that E&S over and above what occurs under natural conditions is threatened. Our review is de novo, "and we can admit and consider evidence that was not before the Department when it made its initial decision, including evidence developed since the filing of the appeal." Telegraphis v. DEP, 2021 EHB 279, 288. See also Pequea Twp. v. Herr, 716 A.2d 678, 686-87 (Pa. Cmwlth. 1998); Warren Sand & Gravel Co. v. Dep't of Envtl. Res., 341 A.2d 556, 565 (Pa. Cmwlth. 1975). The record that forms the basis of our analysis includes the 2D analysis performed by PennDOT's highly credible expert.
To the extent that the debate remains something other than academic, we credit Israel-Devadason's expert opinion that a 2D study was not necessary for the project. (T. 982-83, 1090-91, 1103-04.)
The experts tell us that 1D models are used in 95 percent of the cases. There is nothing particularly unique about the project in this case from an H&H perspective, a relatively small bridge in a relatively straight stream with a generous floodplain nearby. We would be hesitant to rule in the context of a supersedeas petition that a widely accepted practice used in the vast majority of cases is inadequate absent a more convincing case than the one presented here by the Appellants. The high regulatory protection afforded to Tinicum Creek does not in and of itself suggest that 2D modeling is necessary when 1D modeling accurately predicts flow.
The Appellants offer little critique of Israel-Devadason's work, other than saying he used a different 2D model than their own experts used and that, for some reason, is a "big red flag." (Gidumal Brief at 63, 71. See also DRN Brief at 30-31.) We credit Israel-Devadason's opinion that he used a model that is preferred over the ones used by the Appellants' experts. (T. 983-85.) Gidumal faults PennDOT and Israel-Devadason for not including the guardrails that will be added to a relatively limited part of Headquarters Road as it raises toward the new bridge. Gidumal contends that guardrails can collect debris during floods and impede the downstream flow of water. Gidumal showed photos of unknown locations (including a watermarked stock photo from Getty Images (G. Ex. 927)) with apparent flood and storm events where guardrails had collected debris. To put this concern in context, Tinicum Creek would need to completely overflow its banks for water to reach the guardrails. At that point it would seem that water would already be flooding Gidumal's property, with or without any guardrails.
Gidumal's expert, Dr. Emerson, did not review Israel-Devadason's model before the hearing. (T. 140-41.) We are told that Israel-Devadason likewise did not have access to Dr. Emerson's model before the hearing, (PennDOT Brief at 13 n.3), only the Riverkeeper's expert's model.
Although Gidumal's expert modeled the guardrails as impenetrable obstructions that redirect flow back into the stream channel at increased velocities, (T. 124-28, 131-32; G. Ex. 104), we credit Israel-Devadason's testimony that it was not necessary or appropriate to include the guardrails in order to accurately predict flow conditions. (T. 986-87, 1096-98.) He said there is no standard way to model them right now, and in most cases water can still pass through. (T. 986-87.) Independent of modeling, he credibly opined that the guardrails are at least as likely to be a good thing, slowing down velocities and thereby reducing erosion. (T. 1100.) We are struggling to see why the altered flow paths modeled by Dr. Emerson as a result of the guardrails, even if they come to pass, would increase flooding or cause excess E&S.
We likewise credit the testimony of McAtee, who, based on his real world experience at the site, also did not believe the guardrails needed to be modeled. McAtee has been to the site during flood conditions and he has not observed any extensive drift accumulating outside of the banks of the stream. (T. 877-78, 901, 902-03.) He has also seen water flowing through the posts of the fencing along the banks, which have a narrower opening than the proposed guardrails. (T. 901.) We also credit McAtee's opinion that, even if the guardrails did accumulate debris, it would not increase any contraction scouring around the bridge supports because the water would be conveyed to the floodplain. (T. 893-93.) The Appellants did not present any evidence that the guardrails would extend the limits of flooding beyond the existing floodplain or any convincing evidence that we are able to credit that the guardrails or any other activities associated with Headquarters Road itself will increase damage to the floodplain. It is important not to lose sight of the fact that floodplains by definition are supposed to flood during high flow periods. They are an invaluable part of a stream's natural regime.
The culvert under the road that also commanded a great deal of Gidumal's attention will have a negligible impact on flow conditions. (T. 987, 1098-1101.) Running the model with and without the culvert factored in showed a negligible difference. (T. 987, 1104-05.) We credit Israel-Devadason's opinion that the benefits related to removing the existing pier in the middle of the stream significantly overshadow any effect related to the guardrails, the culvert, or indeed any of the alleged project impacts in the floodplain in the modeled analysis. (T. 1101.) Further, any issues with the guardrails, culvert, or the work on Headquarters Road (which have not been proven) do not rise to the level of providing cause for superseding the permit or stopping the entire project.
We also credit Israel-Devadason's opinion that the modeling results of the Riverkeeper's expert had several serious telltale signs or anomalies that should have raised questions that were not adequately addressed. (T. 1015-21.) These anomalies are not unlike the anomalies that we found in New Hanover Township, Solebury School, and M & M Stone, that reduced the credibility of the sponsoring expert's opinions. Among other things, the Riverkeeper's expert's results showed an abrupt flow velocity change in the channel that simply cannot occur in nature. (T. 1015-21; DOT Ex. 40.) There were also unnatural boundaries indicative of improperly constricted modeling, (T. 1020, 1023, 1073-75; DOT Ex. 40), and an unexplained increase in velocity in the floodplain that does not make sense, (T. 1022-23). The analysis inaccurately predicted that the roadway would be overtopped in a two-year storm. (T. 1024.) Further, the Riverkeeper's expert's velocity trends also do not hold up to close review. Water cannot behave in the ways shown, which were like a rollercoaster. (T. 1030-32, 1084; DOT Ex. 58.) Israel-Devadason's model used 5-by-5-foot cells, compared to the Riverkeeper's expert's 15-by-15 cells, which better matches the raw data available in Pennsylvania. (T. 1026.) Using the larger cells effectively dumbs down the data, meaning the modeler loses details that otherwise can be captured through the model. (T. 1026.) These are all serious problems that distort the whole analysis conducted by the Riverkeeper's expert. (T. 1074-75.)
The Riverkeeper's counsel attempted at length on cross-examination and in their brief to show that Israel-Devadason's model also showed an abrupt, unexplained change of velocity in the stream channel, but examination of Israel-Devadason's printed results clearly shows that that is simply not the case. (See T. 1042-55, 1076-78; DOT Ex. 38.)
Putting these difficulties with the Riverkeeper's expert's work product aside, even taking the Riverkeeper's model at face value, Israel-Devadason credibly opined that it does not show that velocities in the stream will materially increase with the construction of the new bridge. (T. 1027-29.) The velocities involved are not cause for concern vis-à-vis erosion and excessive sedimentation. (T. 1032-35, 1037; DOT Ex. 56-58.)
We were also impressed with the expert testimony of Tiffany Landis, P.E., which, although brief, fully corroborated many of the credible opinions of Israel-Devadason. Although the issue is somewhat academic at this point given the fact that PennDOT performed a 2D analysis and our review is de novo, Landis credibly opined that 1D modeling was appropriate for this project. We credit her testimony that a 1D analysis remains the standard, accepted practice in the industry and there was no reason to diverge from that practice for this project. (T. 1465-66.)
Interestingly, this is consistent with the Riverkeeper's expert's testimony that Tinicum Creek is relatively straight. (T. 1465-67, 1469, 1471.)
Landis credibly opined to a reasonable degree of professional certainty that, based on her independent review of Israel-Devadason's model results, as well as the results of the previous 1D studies and her own observations, installing the new bridge will actually reduce scour and erosion and return Tinicum Creek to a more natural free-flowing state. (T. 1468-72, 1479-80, 1500.) Among other things, the new bridge will not have the western abutment that is currently interfering with natural flow, and it will have a larger waterway opening, which will convey the flow a lot smoother. (T. 1468-69, 1480.) The western abutment constitutes an obstruction that is interfering with stream flow. (T. 1484.) Additionally, PennDOT within the bridge structure has angled riprap up along the sides to help to slow down the velocity and direct water toward the center of the channel, which again, will help improve downstream conditions. (T. 1468.) Minimizing interference by piers in the stream to the extent possible is very important in mimicking natural conditions and preventing debris and ice jams. (T. 1478.)
Landis also corroborated Israel-Devadason's testimony that including the guardrails on a limited portion of Headquarters Road in the modeling inputs was unnecessary. (T. 1469-70, 1494, 1497-98.) This issue amounts to a red herring. The new bridge will not increase the risk of flooding or the damage caused by inevitable flooding within the area studied. (T. 1461, 1472, 1473, 1480, 1493.) The majority of flow is contained within the stream channel and the flow that goes into the floodplain is relatively insignificant. (1497-98.) Landis's testimony shows that, despite any new points raised by the Appellants, the Department remains satisfied that the regulatory criteria for the replacement project have been met.
Let us assume that all of the compelling evidence above is wrong and there will be some additional significant erosion of the western bank as a result of the bridge removal. We would still not issue a supersedeas. First, we have no convincing evidence that any sedimentation caused by such erosion will result in any degradation of the stream over and above the erosion that naturally occurs to streambanks. Indeed, some erosion is part of the natural condition of a stream. (T. 149-50, 164, 488, 1080, 1170, 1227, 1236-37.) There is simply no convincing evidence that any E&S that might occur is inconsistent with the natural condition of Tinicum Creek. The assumed erosion is what would have been occurring all along had there not been a man-made impediment in place creating unnatural flow conditions, so the assumed erosion is a necessary short-term correction that will allow a return to the equilibrium state reflective of a natural regime.
Furthermore, and perhaps most importantly, focusing only on a short section of the downstream western bank is like the blind man who feels the tail of an elephant and thinks he has found a snake. Removing the old bridge will significantly improve erosive conditions now occurring at, and immediately upstream from, the bridge. It should not be forgotten that, among other things, the project will result in the removal of the existing wide pier within the stream, which is substantially interfering with natural flow right in the middle of the stream channel. (T. 1037.) The stream channel matters much more than the flow in the floodplain because that is where the most flow and the highest velocities occur. (T. 1037-40.) By way of illustration, picture an object thrown into a stream's main flow channel versus one thrown into flow out in the floodplain. Even a child knows that a toy sailboat will flow faster in the main stream channel. Building the new bridge will increase flow conveyance in the channel by about 20 percent. (T. 1040.) This will benefit the entire natural regime of the stream in the bridge's locale. Any speculative harms associated with increased sedimentation that occurs to the western bank are outweighed by the dramatic improvement to the overall condition of the stream in the vicinity of the project.
In sum, the unrebutted evidence before us establishes that the risk of bridge collapse is real and imminent, the bridge is beyond repair, and the environmental degradation it is causing is persistent. The Appellants have fallen far short of showing that this hazardous condition should remain in place pursuant to a supersedeas. To the contrary, the evidence developed to date convinces us that more actual and potential harm actually results from issuing a supersedeas than from denying a supersedeas. Given the environmental degradation the Headquarters Road Bridge is causing to Tinicum Creek, coupled with the advanced and progressive deterioration of the bridge, the only realistic option is that the existing bridge should be taken down.
The New Bridge Will Preserve the Natural Regime of Tinicum Creek
The bulk of the parties' cases and arguments as a factual matter tend to relate more to the removal of the old bridge than the installation of the new bridge. Although the distinction is admittedly somewhat artificial, if we imagine that no bridge was currently in place, the Appellants have not provided much in the way of objections to the new bridge per se (putting aside their concerns regarding increased traffic, supra, which have not been shown to be pertinent concerns in the immediate context). It is not the new bridge that will impede flow or interfere with the stream's natural condition. The Appellants did argue that the new bridge fails to comply with applicable regulations with respect to its design vis-à-vis the stream, but they are unlikely to succeed on the merits of that argument.
A person may not construct, operate, maintain, modify, enlarge, or abandon a dam, water obstruction, or encroachment without first obtaining a permit. 32 P.S. § 693.6(a); 25 Pa. Code § 105.11(a). A water obstruction is a structure located in, along, across, or projecting into a watercourse, floodway, or body of water. 32 P.S. § 693.3; 25 Pa. Code § 105.1. An encroachment is any structure or activity that changes, expands, or diminishes the course, current, or cross section of a watercourse, floodway, or body of water. Id. A watercourse is a channel or conveyance of surface water having a defined bed and banks. Id.
Ordinarily the location of a watercourse's regulatory bed and banks comes up if there is a dispute over whether a particular structure or activity is an "encroachment" that needs a permit, see, e.g., DEP v. Seligman, 2014 EHB 755, or whether a particular feature is a regulated watercourse at all, see, e.g., Becker v. DEP, 2017 EHB 227. Here, there is obviously no question that PennDOT needed a permit. However, the issue still has relevance because, for example, 25 Pa. Code § 105.161 refers to the natural regimen of the "stream" and a stream is a watercourse, 32 P.S. § 693.3; 25 Pa. Code § 105.1, and a watercourse is defined by its bed and banks, id.
The regulations require that a bridge's abutments be aligned with the flow of the stream channel and that they be well set into the stream banks in such a manner as to assure minimal increase in flood elevations. 25 Pa. Code § 105.164. The Riverkeeper argues at length and unsuccessfully that the 15-foot shift of the eastern abutment will put it within the regulated streambanks of Tinicum Creek. The Department reasonably interprets the "banks" to be the ordinary water line of a watercourse. (T. 1179-81, 1183; Department Exhibit No. ("DEP Ex.") 55.) The ordinary water line tends to be where the vegetation lines the banks of a stream. (T. 1180, 1183-84, 1325.) The Riverkeeper's expert appears to have incorrectly delineated the stream banks as that term is used in the regulations. (T. 1182.) Among other things, there is a relatively large tree growing on the dry land within the eastern banks as mistakenly identified by the Riverkeeper. (DOT Ex. 13, 28.) Thus, we credit the testimony of Vlot and Whittington that the shifted eastern abutment will remain outside of the regulated stream. (T. 751-52, 761-64, 1209; DOT Ex. 13, 28; Riverkeeper Exhibit No. ("DRN Ex.") 3.)
Assuming arguendo that the abutment will extend past the stream's east bank, there was no convincing evidence showing that the new location would interfere with stream flow or a stream's return to a natural condition.
In any event, we find that the new bridge needs to be shifted exactly as proposed by PennDOT and approved by the Department. To have left the new bridge in the same location as the existing bridge would have failed to satisfy the regulatory criteria because the western abutment would have remained within the stream channel. As discussed above, the existing western abutment is clearly within the banks of Tinicum Creek. (T. 576, 1181, 1205; DEP Ex. 55.) This is obvious in some of the Riverkeeper's own photographs, where the western abutment is surrounded by the flow of the stream. (DRN Ex. 6.) The western abutment of the replacement bridge will be shifted back 15 feet west to better align with the channel of Tinicum Creek as it exists now. (T. 575-76.) Moving the eastern abutment over is necessary in order to move the offending western abutment and keep the support pier in the same location as the existing western pier, (DOT Ex. 7 (at 61, 63)), and still keep the abutment as far as possible outside the eastern side of the stream. With the stream in its current condition, the existing bridge is very poorly placed not only from an engineering perspective but relative to environmental degradation as well. The new bridge will eliminate this serious ongoing problem by aligning the bridge structure where the stream is now.
The shifted western abutment also has the ancillary benefit of accommodating the turning radius of emergency vehicles at the intersection of Headquarters Road and Sheep Hole road. (T. 848-49.)
The regulations require bridges to be designed with the minimum number of piers and obstructions as possible. 25 Pa. Code § 105.163. The new bridge accomplishes that by utilizing only one pier within Tinicum Creek, as opposed to two piers with the existing bridge. PennDOT evaluated the option of constructing a bridge with a single span, meaning no support piers within Tinicum Creek, but it was determined to be unfeasible. (T. 766-67, 852.) A single span bridge would have required a deeper superstructure, the roadway would need to be elevated, and greater portions of the western floodplain would need to be filled in. (T. 955-57, 963-64.) The Appellants did not rebut this testimony. The single pier within the stream will be smaller than the existing piers, approximately three-and-a-half feet wide at the base, which will lessen the potential for debris accumulation during flood events. (T. 845, 852.) McAtee opined that, by only having a single obstruction, the bridge will have improved flow characteristics during flood events and less potential for the displacement of streambed material that could create new gravel bars and downstream sediment deposits. (T. 846.) The new bridge is designed to improve the flow characteristics of Tinicum Creek and more closely mimic its natural free flow. (T. 850, 852, 888-89.) By having an increased hydraulic area and fewer obstructions, the potential for debris accumulation, erosion, and scour are all reduced. (T. 887-90.) Gidumal's expert agreed that the removal of one of the piers would create a more natural flow regime, (T. 167-68), and the Riverkeeper's expert said it would improve the conveyance capacity of water through the bridge, (T. 469).
The closest we come to believing there may have been an error in the permit is the requirement to place rip rap on the western bank downstream of the western abutment. The new western abutment will have a slope wall in front of it comprised of rip rap to absorb the flow energy coming into the newly exposed area, prevent bank erosion, protect the riparian buffer, and redirect the flow downstream. (T. 850-51, 865-66, 868; DOT Ex. 29.) The Department did not insist on this requirement and doing so adds what is, at least arguably, an unnecessary and unnatural obstruction. (T. 1332.) PennDOT has maintained throughout this litigation, including in its brief, that the rip rap was only added to "address public comments." (See DOT Brief at 19.) This is not by itself a reason to disregard substantial environmental concerns. Nevertheless, the Appellants have not argued that the rip rap should be deleted from the permit, merely that the rip rap does not justify an otherwise unworthy project. Accordingly, we will not supersede that permit requirement.
A permit application will not be approved by the Department for an exceptional value stream or designated Wild and Scenic River like Tinicum Creek unless the applicant demonstrates and the Department finds that the project will not have an adverse impact upon the public natural resources. 25 Pa. Code § 105.16(c). The Department correctly analyzed the effect of the water obstructions of the replacement bridge on the natural regime and ecology of Tinicum Creek. (T. 1301.) The Department reasonably concluded that the project would have very little impact on the public natural resources. To the contrary, this project is highly beneficial to the public natural resources and will not itself cause any environmental harm. The new bridge has been designed to meet the regulatory criteria relative to Tinicum Creek in terms of preserving the natural regime, controlling flow velocity with respect to erosion of the stream bed and banks, reducing the number of piers within the stream, and aligning the abutments with the flow of the stream channel. The new bridge also comports with modern safety standards for motorists, improving site distances and the ability to see oncoming traffic as a driver approaches the bridge. (T. 881-82; DOT Ex. 34.) The Appellants, at this juncture, have failed to convince us that this is anything but a well-designed project that meets and satisfies the applicable legal requirements. Without repeating all of the reasons discussed above, it is unlikely the Appellants will prevail on the merits of their claims that the project will degrade the waters of the exceptional value Tinicum Creek or have any adverse impact upon the natural resources. All of the statutory and regulatory criteria that apply to the project have been satisfied.
Historical Values
The Headquarters Road Bridge is within the Ridge Valley Rural Historic District. (DOT Ex. 15.) The Appellants assert in general terms that removing the existing bridge will harm the historic value of the area. There are portions of the regulations that require the Department to assess an obstruction or encroachment's impact on cultural, archaeological, and historical landmarks. 25 Pa. Code § 105.14(b)(5). See also 25 Pa. Code §§ 105.13(x), 105.16(a). The Appellants in their briefs never really say that the Department violated the law in issuing the permit due to the historic nature of the bridge. That may be because the issue has truly been exhaustively evaluated. The Department's environmental assessment documented that several alternatives were evaluated to avoid or minimize the impact to the historic district, but the chosen replacement bridge was determined to cause the least overall harm. (DOT Ex. 15 (at 3).) (See also DOT Ex. 7, 10.) Further, although it is not binding on us, in Delaware Riverkeeper Network v. Pa. Department of Transportation, supra, the federal district court extensively discussed the effects of the project on the area's historic resources, including the bridge itself, the historic district as a whole, and Tinicum Creek as it relates to the historic district, and concluded that PennDOT had demonstrated appropriate sensitivity to historical values. (DOT Ex. 8, slip op. at 50-60.)
PennDOT entered into a Memorandum of Agreement with the Federal Highway Administration, the Pennsylvania State Historic Preservation Officer, and the Advisory Council on Historic Preservation to ensure that the project's impacts to the historic resources of the area were mitigated to the greatest extent possible. (DOT Ex. 49.) The Memorandum also established a nine-member Design Advisory Committee consisting of people from the National Park Service, the Advisory Council on Historic Preservation, the Pennsylvania State Historic Preservation Office, Bucks County officials, and Tinicum Township supervisors, who would be involved during project development and also engaged towards the beginning of the construction process. (Id.) One of the permit's special conditions requires PennDOT to abide by the Memorandum. (DOT Ex. 14 (at 4).)
Having seen all of the photographs of the bridge in its highly dilapidated state, it is hard to understand how the bridge is still meaningfully contributing to the historic value of the area. Indeed, no one has argued that keeping the bridge in its current condition is an option. The Appellants are unlikely to be successful in showing that the historical considerations justify saving the existing bridge, if that were even possible given the extensive testimony that the bridge is not able to be rehabilitated. The agencies have appropriately mitigated the historical impact of the project to the fullest extent possible.
Gidumal's Property Concerns
Gidumal criticizes the Department for issuing a permit that Gidumal contends takes sections of their property without PennDOT having secured appropriate deeds or easements. Gidumal contends that the Department erred in issuing the permit in the face of an unresolved property dispute between Gidumal and PennDOT. In their brief, Gidumal accuses PennDOT of committing fraud by not recording its deed for the right of way within 90 days of it being negotiated and acquired.
Gidumal cites Rausch Creek Land, LP v. DEP, 2013 EHB 587, for the prospect that the Department has a duty to look beyond the face of a permit application to determine whether an applicant has a right of entry to property. But in Rausch Creek there were statutory and regulatory provisions requiring an applicant for a coal mining permit to demonstrate the legal right to enter the property to be mined. 52 P.S. § 1396.4(a)(2)(F); 25 Pa. Code § 86.64. There is nothing comparable in the Dam Safety and Encroachments Act or the regulations governing obstruction and encroachment permits for bridges. Gidumal cites 25 Pa. Code § 105.161(a)(2), which provides that a bridge shall be designed so that the structure does not "create or constitute a hazard to life or property, or both," but the Department does not need to know who owns property in order to assess whether it will be damaged by a project.
Proof of title or adequate flowage easements for land below the top of a dam elevation that is subject to inundation is necessary for dam permits, 25 Pa. Code § 105.81(a)(10), but Gidumal does not direct us to any similar requirement for bridges.
Christian Vlot testified that the Department does not review property issues during its analysis of a permit application for a bridge. (T. 1268-70, 1337-38, 1340.) He testified that the Department is concerned with who owns the obstruction itself so it can assure that it has the proper permittee, but not with any property disputes that may arise out of the construction of the project. (T. 1337.) Indeed, an application may be submitted by the person who owns or has primary responsibility for the encroachment, so long as the owner understands that the owner retains legal responsibility for the encroachment. 25 Pa. Code § 105.13(h). Unlike in the case of mining that we addressed in Rausch Creek, supra, there are undoubtedly many dozens or hundreds of encroachment permits issued every year. We cannot conclude on the existing record that the Department's practice of not examining property disputes in connection with its issuance of most encroachment permits is unreasonable or in derogation of any statutory or regulatory requirement.
We also note that the permit explicitly states that it does not confer any property rights:
This permit does not give any property rights, either in real estate or material, nor any exclusive privileges, nor shall it be construed to grant or confer any right, title, easement, or interest in, to, or over any land belonging to the Commonwealth of Pennsylvania; neither does it authorize any injury to private property or invasion of private rights, nor any infringement of Federal, State, or Local laws or regulations; nor does it obviate the necessity of obtaining Federal assent when necessary.(DOT Ex. 14.) Absent any legal basis for the proposition that the Department improperly issued the permit for the bridge project because it failed to investigate a property dispute between Gidumal and PennDOT, we detect no likelihood of success on this issue. Gidumal is not likely to succeed in showing that the Department needed to get into the ownership interests of the property around the bridge.
Article I, Section 27
Both the Appellants argue in the briefest of terms that the Department and PennDOT have not fulfilled their responsibilities under Article I, Section 27 of the Pennsylvania Constitution.Although it is true that the agencies' duties under Article I, Section 27 are not necessarily coextensive with or limited to ensuring compliance with applicable statutes and regulations, Friends of Lackawanna v. DEP, 2017 EHB 1123, 1161, neither of the Appellants say anything new in their Article I, Section 27 arguments. Rather, they merely restate their other arguments in the case and frame them as constitutional values-for example, that the Department failed in its obligations under Article I, Section 27 because it did not conduct a thorough enough review of the permit application. For all of the reasons discussed above, it is unlikely that the Appellants will convince us that any of the agencies' alleged shortcomings amounted to constitutional violations.
Article I, Section 27 of the Pennsylvania Constitution provides:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all people.Pa. Const. art I, § 27.
For all the reasons stated above, the Appellants have not prevailed in showing that a supersedeas is warranted here. The overwhelming evidence adduced over four days of hearing demonstrates that the existing Headquarters Road Bridge is both a safety hazard and an active cause of environmental degradation to Tinicum Creek. A supersedeas would only allow these conditions to persist. Any harm to the Appellants from the new bridge is highly speculative given the harm that currently is being caused by the existing bridge. Further, the Appellants have not shown a likelihood of succeeding in showing that the new bridge has not satisfied the applicable regulatory criteria as it relates to Tinicum Creek. To the contrary, 20 years of work have yielded a project that removes a hazardous condition, provides benefit to the environment and the natural regime of Tinicum Creek, and will give the community and emergency vehicles safe passage after more than a decade.
Accordingly, we issue the Order that follows.
ORDER
AND NOW, this 1st day of April, 2022, it is hereby ordered that the Appellants' petitions for supersedeas are denied.