20 Pa. Commw. 186 | Pa. Commw. Ct. | 1975
Opinion by
This case involves' cross appeals filed by the Department of Environmental Resources (DER), on the one side, and, on the other side, Warren Sand and Gravel
This case had its genesis when in October and November of 1971, the Gravel Companies filed applications for permits to remove sand and gravel from the bed of the Allegheny River. During February and March of 1972 DER conducted what it termed “a fact finding hearing,” which it deemed to be “not an adjudicative hearing under the Administrative Agency Law” (Act of June 4, 1945, P.L. 1388, as amended, 71 P.S. §1710.1 et seq.). At this hearing the Gravel Companies were not permitted to cross-examine, but were given the right to offer and rebut evidence. The Gravel Companies were notified that they would receive written notice of the action taken by DER on the Gravel Companies’ applications, and that they would be given a written statement of the basis for DER’s action together with a description of appeal procedures. On April 10 and 12, 1972, DER issued permits for dredging operations by the Gravel Companies which apparently consisted of the same permit issued in previous years, but, in addition, added several pages of terms and conditions specifying in considerable detail the manner in which the dredging operations were to be conducted. One effect of these terms and conditions was to limit future dredging to areas previously dredged. On May 1 and 15, 1972 the Gravel Companies filed timely notices of appeal with the Board in which they excepted to three of the terms and conditions of the permits. The terms and conditions excepted to were as follows:
*190 ‘T. Dredging shall not take place any closer than fifty (50) feet from the shore line or from islands.
“II. Dredging shall not be permitted in the period between 6:00 p.m. Friday and 7:00 a.m. Monday, nor between 6:00 p.m. on the day preceding a national holiday and 7:00 a.m. on the day following the holiday.
“III. Dredging shall not take place in any natural and untouched areas.”
Hearings were held before the Board, after which it issued an adjudication on August 8, 1978, which was deemed by a supplemental order (August 31, 1973) to be interlocutory. In its adjudication, which included extensive findings of fact and conclusions of law, the Board concluded that the first two conditions, quoted above, were arbitrary, unreasonable and not supported by the evidence. The Board decided the third condition was reasonable and supported by the evidence, but the Board remanded the matter to enable DER to consider the economic impact of the timing of such a permit condition. In response to the Board’s adjudication, DER notifield the Gravel Companies, on October 18, 1973, that their proposed dredging into natural and untouched areas would-be environmentally undesirable and that the economic impact of prohibiting same would be minimal. DER, therefore, denied the Gravel Companies’ request for extension of dredging into natural and untouched areas.
In December 1973, further hearings were conducted before the Board relative to DER’s October 18, 1973 determination, and on May 3, 1974, the Board issued its final adjudication and order affirming its interlocutory adjudication, but modifying its original adjudication by granting the extension of dredging by the Gravel Companies into specified new areas on a short-term basis. The Board concluded that the risk of severe adverse economic impact from a limitation of dredging to pre
To give some perspective to this matter, we will set forth some historical and statistical facts taken from the record. The river in question is the Allegheny River which is about 200 miles long from the Kinzua Dam running southwardly. In preglacial times, this river flowed northwardly, but as a result of the uplifting of the entire area caused by the advance of glaciers into Western Pennsylvania, the direction was- changed. As the glaciers melted, the waters- carved into the rock formations of the area, eroding the earth into steep valleys where the rock formations were hard and into wider valleys where soft. The runoff of water carried with it portions of the earth whereby the valleys became choked with alluvium. The glaciation lasted for over a million years and ended about 11,000 years ago. The glacial deposits were carried downstream and through the processes of flooding and hydraulic actions, the velocity of the water caused a scouring whereby sand and gravel were deposited in varying depths. The physiographic features of the river and terrain caused riffles and eddies permitting sediment accumulations at the slower moving places.
Because of construction and road building, this natural deposit of sand and gravel has become an important economic resource. Some sand and gravel may be found in deposits presently on land sites. The deposits here in question, however, are all located under the navigable waters of the Allegheny River. The sand and gravel run to depths of about 40 feet.
The present-day dredging operations are carried out by means of ladder dredges, clamshell buckets, dragline
The Gravel Companies have maintained dredging operations in this area for about 45 years. Much of the sand and gravel removed by the Gravel Companies is purchased and used in the construction and maintenance of highways by the Pennsylvania Department of Trans
Most important to our determination is the recognition by all the parties involved that the sand and gravel contained in the bed of the Allegheny River is a natural resource owned by the people of the Commonwealth. It therefore follows that, although the Gravel Companies contend they have some sort of vested rights because of their long-time dredging operations and millions of dollars worth of investment, the property right in the sand and gravel remains with the people of the Common
“[T]he soil over which our great rivers flow... has never been granted to any one, either by William Penn, or his successors, or the state government. Care seems to have been taken, from the beginning, to preserve the waters from [sic] public uses, both of fishery and navigation. . . .”
Chief Justice Tilghman stated in that case “the entire right to the soil and water of the river remained vested in the state, for the benefit of the public. . . .” 14 S. & R. at 80. See also Illinois Central Railroad Company v. Illinois, 146 U. S. 387 (1892) and Conneaut Lake Ice Company v. Quigley, 225 Pa. 605, 74 A. 648 (1909).
Apparently for decades the Commonwealth did not specifically regulate its sand and gravel resources. The government did, however, regulate dams, bridges and other water obstructions by the Act of June 25, 1913, P.L. 555, as amended, 32 P.S. §681 et seq. (commonly called the Water Obstructions Act)-. Section 2 of the Water Obstructions Act, 32 P.S. §682, is involved in the instant case, and it reads in pertinent part as follows:
“[I]t shall be unlawful for any person... in any manner to change or diminish the course, current, or cross section of any stream or body of water, wholly or partly within, or forming a part of the boundary, of this Commonwealth ... without the consent or permit of the Water and Power Resources Board, in writing, previously obtained, upon written application to said board therefor.”
For more than 20 years after the passage of the Water Obstructions Act, no attempt was made to apply the requirements of the Act to dredging activities. When an attempt finally was made to apply the Water Obstruc
“It is the legislative intent that the provisions of this act shall Extend to and include all types of water obstructions, regardless of the date when they were constructed, and whether or not the same were constructed by permission, express or implied, of the Commonwealth, or of any authorized agency thereof, and vjhether temporary or permanent, and to all changes in the course, current or cross section of any stréam or body of water, whether such change be temporary or permanent.” (Emphasis added.)
This language, together with the other changes made by the 1937 amendment, indicates a legislative intent that the Water Obstructions Act should apply to dredging. The record in this case indicates that the Water and Power Resources Board (predecessor to DER) has required dredging companies (including the Gravel Companies involved in this case) to obtain permits pursuant to the Water Obstruction Act, since the time of the 1937 amendment.
Eventually the Legislature specifically provided for the lease or sale of sand and gravel by the Act of Sep
“The Department of Environmental Resources shall have the power and its duty shall be:
“(1) [T]o continue to exercise the powers and -perform the duties by law vested in and imposed*197 upon the... Water and Power Resources Board, or in and upon the department, with regard to:
“(d) Consents or permits for changing or diminishing the course, current, or cross section, of any stream or body of water;
“(3) To enter into agreements to sell, lease or otherwise dispose of any iron, coal, limestone, fire-clay, oil, gas and other minerals, except sand and gravel and minerals deposited as silt in pools created by dams, that may be found in or beneath the beds of navigable streams or bodies of water within the Commonwealth and non-navigable streams or bodies of water where the beds thereof are owned by the Commonwealth, on such terms and conditions as the board deems to be in the best interest of the Commonwealth: Provided, however, That any proposed contracts involving more than one thousand dollars ($1,000) shall be awarded to the highest responsible bidder after due advertisement as prescribed by the board. Nothing herein contained shall authorize anyone to interfere with the free navigation of said streams or bodies of water or to undermine the bed thereof or to interfere with the rights of any person or persons holding property on the banks thereof.” (Emphasis added.)
Section 1908-A(1) (d) of the Code merely notes that DER shall exercise the authority previously vested in the Water Power and Resources Board with regard to permits under section 2 of the Water Obstructions Act (quoted above)', while section 1908-A(3) replaces the provisions of section 1808(d) regarding agreements to sell and lease sand and gravel. Certain of the words of section 1908-A(3) of the Code, as emphasized immediately above (“... except sand and gravel and minerals deposited as silt in pools created by dams ...”) have
This particular determination is not necessarily controlling in the result of the case, however, for, as the
The Gravel Companies have presented several issues. They contend that the findings of the Board were not supported by substantial evidence. They contend that the Board did not give sufficient weight to the economic impact of its order. They question the power of DER to require a permit for dredging, and contend that the conditions imposed upon the Gravel Companies with the permits were subject to the Commonwealth Documents Law, Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §1101 et seq. (Supp. 1974-1975), because they were in effect rules and regulations. The Gravel Companies also contend that the Board improperly placed the burden of proof upon them. In the cross appeal DER contends that the Board committed an error of law by extending the area into which the Gravel Companies could dredge, as provided in the Board’s order. DER also contends that the Board was without power to change the permit issued by DER.
Our scope of review in these cases is governed by section 44 of the Administrative Agency Law, 71 P.S. §1710.44, which provides that:
“[T]he court shall affirm the adjudication unless it shall find that the same is in violation of the constitutional rights of the appellant, or is not in accordance with law ... or that any finding of fact made by the agency and necessary to support its adjudication is not supported by substantial evidence. If the adjudication is not affirmed, the court may set aside or modify it, in whole, or in part, or may remand the proceeding to the agency for further disposition in accordance with the order of the court.”
Section 1908-A(1) (d) of the Code and section 2 of the Water Obstructions Act show a legislative intent to regulate any change in the course, current or cross sec
The Gravel Companies initiated this matter by the filing of applications for permits and, therefore, they were the moving parties with the burden to prove that
The Board stated in its adjudication that the permits which were issued by DER serve a dual purpose as (1). leases for the Commonwealth’s proprietory interest in minerals in the stream bed pursuant to section 1908-A(3) of the Code, 71 P.S. §510-8(3), and (2) permits regulating the activity of dredging pursuant to section 2 of the Water Obstructions Act, 32 P.S. §682. We have some difficulty with the contention that these permits serve as leases pursuant to section 1908-A (3) of the Code.
As we noted above, section 1908-A of the Code (added by Act No. 275), 71 P.S. §510.8 (Supp. 1974-1975), which was in effect on the date of the filing of the applications for permits in this case, provides that DER may enter into agreements for the sale, lease or disposal of sand and gravel found in the beds of navigable streams on such terms and conditions as it deems to be in the best interest of the Commonwealth. However, there is a proviso in section 1908-A (3), providing that any proposed contract which involves more than $1,000 shall be awarded only to the highest bidder after public notice. There is nothing in this record to indicate that the legislative requirement of public bidding was ever initiated or carried out by DER. The permits involved in this case
We affirm the Board’s order to the extent that it approves the issuance of dredging permits subject to specified terms and conditions because we can find specific statutory authority for DER to issue permits regulating changes in the course, current or cross section of streams in the Commonwealth. See section 1908-A (1) (d) of the Code, 71 P.S. §510-8(1) (d) (Supp. 1974-1975) and section 2 of the Water Obstructions Act, 32 P.S. §682.
DER has raised some questions on whether the Board can review DER’s actions in granting leases or bills of sale for such sand and gravel. We resolve this issue by reference to section 1921-A (c) of the Administrative Code of 1929 (added by Act No. 275), 71 P.S. §510-21(c) (Supp. 1974-1975) which provides that:
“(c) Anything in any law to the contrary notwithstanding, any action of the Department of Environmental Resources may be taken initially without regard to the Administrative Agency Law, but no*203 such action of the department adversely affecting any person shall be final as to such person until such person has had the opportunity to appeal such action to the Environmental Hearing Board; provided, however, that any such action shall be final as to any person who has not perfected his appeal in the manner hereinafter specified.”
This particular section permits DER to hold an initial fact finding hearing without permitting cross-examination, but after such fact finding hearing, any action taken by DER is reviewable by the Environmental Hearing Board under subsection (c) quoted above. In other words, the Legislature wisely provided that DER shall not have unrestrained or arbitrary power to enter into agreements or issue permits, but rather has provided that such actions are reviewable by the Board under the Administrative Agency Law.
We should also highlight at this point another incorrect contention of DER. DER seems to argue that this Court should review DER’s actions for abuse of discretion or error of law rather than review the adjudication of the Board. This is incorrect. The Administrative Agency Law clearly indicates that we must review the adjudication of the Board rather than the administrative action which was reviewed by the Board. See section 44 of the Administrative Agency Law, 71 P.S. §1710.44. In cases such as this, we are not required to review an administrative decision by DER which was rendered without a due process hearing, because as we view the Administrative Agency Law and section 1921-A of the Code, when an appeal is taken from DER to the Board, the Board is required to conduct a hearing de novo in accordance with the provisions of the Administrative Agency Law. In cases such as this, the Board is not an appellate body with a limited scope of review attempting to determine if DER’s action can be supported by the evidence received at DER’s factfinding hearing. The
In closing, we admonish DER and the Environmental Quality Board to amend the rules and regulations so as to specifically provide for the requirements, restrictions and conditions which any citizen desiring to dredge may have to follow in order to obtain the necessary permit. The present system requires a citizen to guess what requirements he may be subjected to upon the filing of an application for a dredging permit, and allows DER, on an ad hoc basis, to subject such citizens to whatever
In summary, we hold that DER has authority to sell the sand and gravel in question pursuant to Section 1908-A(3). of the Code. We also hold that DER has authority to regulate dredging activities pursuant to section 1908-A(1) (d) of the code, and section 2 of the Water Obstructions Act, and that the permits involved in the instant case, including the approved terms and conditions, are a valid exercise of that authority. In this case the Board quite properly reviewed the exercise of authority by DER and properly considered all of the factors involved, including both environmental harm and economic impact. As noted above, all of the findings of fact necessary to support the Board’s adjudication are supported by substantial evidence.
In accordance with the above we therefore
Order
And Now, this 9th day of July, 1975, the order of the Environmental Hearing Board, dated May 3, 1974, which provides for the issuance of dredging permits
. The three corporate appellants will be referred to collectively as Gravel Companies, unless otherwise restricted to one of the three, in which case, they will be referred to by individual company names.
. We note that DER appears to apply a double standard in its regulation of water quality. In two very recent cases before this Court, PennDOT rendered useless pure waters of the Commonwealth used for public water supplies so as to permit the construction of public highways. See Keystone Water Company v. Pennsylvania Public Utility Commission, 19 Pa. Commonwealth Ct. 292, 339 A.2d 873 (1975); Pennsylvania Public Utility Commission v. Pennsylvania Gas and Water Company. 19 Pa. Commonwealth Ct. 214, 341 A.2d 239 (1975). In those cases DER made no movement whatsoever to carry out what it believes to be its trustee duties under Article I, Section 27 of the Pennsylvania Constitution of 1968. Rather, it permitted PennDOT to completely destroy those extensive water rights. If those cases are any criteria, then it would appear that if PennDOT decides to dredge the sand and gravel in the Allegheny River at the same places where DER opposes the dredging in this case (calling to mind that PennDOT receives much of the sand and gravel here in question) DER will make no move to restrict PennDOT’s dredging. If previous cases are any criteria, DER will permit PennDOT to proceed uninhibited and place the burden of correcting any resultant pollution problem upon water utilities and riparian owners downstream. This apparent double standard is becoming more troublesome to this Court as we continue to review environmental cases.
. The wording of this section 1808(d), now repealed, is exactly the same as the present section 1908-A(3) of the Code, quoted infra.