Hearing on Artesian well application postponed until Sept. 15, maybe later
By Richard Gaw
Right now, a docket that could determine the future of water distribution in southern Chester County lay tucked in a drawer in the office of the Delaware River Basin Commission, waiting to be opened, discussed and ruled on.
The docket, numbered D-2002-034 CP-4, concerns the application of Artesian Water Pennsylvania, Inc. for a water withdrawal permit that, if approved by the Commission [DRBC], will allow the Delaware-based water company to activate a pumping station that is expected to withdraw as much as 288,000 gallons of water per day, at a rate of 200 gallons per minute, and over 100 million gallons projected over the course of one year.
For now, though, everyone with a stake in this still-undecided issue will have to wait until Sept. 15, when the final ruling is expected to be handed down by five DRBC commissioners, each representing Pennsylvania, New Jersey, Delaware, New York and the federal government.
However, David Kovach, a DRBC geologist and project review section supervisor, said that given a backlog of other applications that he and the DRBC commissioners are scheduled to review at the Commission's September meeting, a final decision may not be reached until it meets again in December.
In the mean time, those opposed to Artesian's presence in southern Chester County are not sitting idle. Rather, citizen action groups like the Save Our Water Committee have taken to a letter-writing campaign to state officials, in an attempt to hammer home their opposition. Leading that charge, to no one's great surprise, has been Sen. Andy Dinniman who, in a May 20 letter sent to The Hon. John Quigley, acting secretary of the Pennsylvania Department of Environmental Protection [DEP], raised a number of questions about Artesian's application.
Since the first trumpet horn of Artesian's application was heard well over a year ago, it has been shuffled through an alphabet soup of regional and state agencies, each of whom have added its own layer of authority on the application's way to eventual approval or rejection.
So, who is in charge?
In his letter, Dinniman asked Quigley to explain, based on press reports at the time, what changes have been made in the approval process between Artesian's current application and the one it submitted back in 2002 -- the year that Artesian first applied for the right to activate the Broad Run Well -- that now might relinquish the DEP from its responsibility to give Artesian the permission to activate the well.
"It appears from press reports that in 2002, the Department took into consideration the potential environmental impact that withdraw from this aquifer would have on surface waterways, including the Broad Run [well] which, as I understand, is classified by Pennsylvania Code Chapter 93 for Cold Water and Migratory Fishes as protected uses," he wrote.
"The first question is, 'Did [Artesian] or did they not need a permit in 2002?'" Dinniman said in an exclusive interview with the Chester County Press. "They were denied and hence, never submitted a request. If so, why wouldn't they need a request in 2015? What's different?"
The ball on this issue, Dinniman wrote, is still in the hands of the Pennsylvania Public Utility Commission [PUC], who he said is ultimately responsible for giving Artesian "franchise" approval on its application. Dinniman requested that Quigley encourage the state representative on the DRBC to temporarily suspend approval for the well until the PUC grants Artesian franchise approval.
"How can you determine the appropriate water withdrawal before knowing if the franchise is even granted by the PUC?" Dinniman wrote.
The PUC is currently reviewing the letters and reports of the more than 100 individuals and groups -- classified as "intervener" or "party of record" -- who submitted their protests earlier in the year. During that time, Artesian's attorneys filed objections to their standing, but on March 13, PUC Administrative Law Judges Cynthia Williams Fordham and Darlene Heep approved the standing of some individuals as part of the official record.
"How can we make any decision until the questions are raised, and the residents get their answers?" Diniman said in an exclusive interview with the Chester County Press. " The PUC is really representing the affected citizens of Chester County. They're doing their due diligence to answer the questions, properly. Until those questions are answered, it is important that a number of matters be explained until a hearing takes place."
In the case of Artesian's application, Dinniman said that being able to navigate these bureaucratic waters are to the water company's advantage.
"The cards are stacked against the representatives and their constituents regarding environmental issues, because the [Artesian] attorneys know which places to stop," he said. "It's very hard for an individual citizens to understand and meet the deadlines, and do what needs to be done. Company lawyers are handed that card that moves from from A to Z, and they have the advantage from day one.
"The utility companies [like Artesian] know all the rules and how it operates, while citizens groups have to either pay big buck for a lawyer, or have their senator help them."
One of the major points of contention with those who oppose the activation of the Broad Run Well is summarized in two words: Supply and Demand. Artesian currently has 38 homes it delivers water to in the vicinity of the well, but in its application, has requested to expand its service territory to include service to an additional 14 large-parcel properties that take up 172 acres in Landenberg, of which nine properties have been filed by developer Charles Wilkinson. To date, no homes have been built on the acreage, which was once owned by the Wilkinson family, but Artesian's application states that an estimated 200 customers are expected to live in the area.
In his letter to Quigley, Dinniman requested that the state representative on the DRBC put forth a motion to limit Artesian's withdraw from the Broad Run aquifer "to an amount more in line with the 38 homes that currently exist in the service area."
"Artesian is arguing that they need additional water (as much as 288,000 gallons per day) to serve homes that, to my knowledge, are not even permitted or planned for construction," he wrote. "I question the logic of such a request and would be grateful if the DRBC would reevaluate the present need for such a significant withdrawal."
Dinniman said that the final arbiter on the Artesian application will rule one of three ways: to give the "thumbs up" to Artesian to begin drilling the well at their desired rates of water withdrawal; rule against Artesian, or to make a ruling that aims to compromise -- to give Artesian the rights to activate the well, but at a lesser withdrawal rate, and with additional restrictions.
While both Artesian and those opposed to the company's presence in southern Chester County await the final DRBC decision, Dinniman said that the largest issue at stake here is not with whether Artesian will be ultimately be given the green light or some modified form of it to activate the Broad Run well, but the wish for local residents to limit the interference of an out-of-state entity -- one that they feel could potentially leave the rural landscape a little less bucolic.
"The issue of water is connected to a larger issue in southern Chester County," he said. "It's the desire of the residents to keep the land rural and agricultural, as much as possible. It's among the last bastions of the part of Chester County that we are trying to preserve. All of these issues are interconnected, and my constituents are saying that we have something of great value. We don't want to lose it.
"You'd have to be very thick-skulled not to hear this voice in Chester County."
To contact Staff Writer Richard L. Gaw, e-mail email@example.com.