At public forum, residents continue opposition to Broad Run well
09/10/2015 02:25PM ● Published by Richard Gaw
By Richard L. Gaw, Staff Writer
There is a sign, just to the right of the door that opens to the main hall of the Avondale Fire Company, that signifies that the capacity of the room may not exceed 120 persons.
By 6:45 p.m. last Tuesday, Sept. 8, on the occasion of a public forum that gave the general public an opportunity to address an application by Artesian Water Resources to activate a well in Landenberg, capacity in the room had already exceeded 120.
By the time the event moderator, State Sen. Andrew Dinniman, called the meeting to order fifteen minutes later, the crowd had swelled to over 200.
For the next three hours, as they spoke before a panel of representatives from the Delaware River Basin Commission [DRBC] and the Pennsylvania Department of Environmental Protection [DEP], the residents who packed the auditorium were at turns scientific, analytical and angry.
They rose from their seats. They spoke at a podium. They read from reports and pre-written statements, all in an effort to convince the panel – who may rule on the Artesian application as early as next week – that the activation of the well would have a severe, negative impact on water levels in the area and on their wells, as well as greatly damage the environment.
The issue at stake is docket D-2002-034 CP-4 -- the application of Artesian Water Pennsylvania, Inc. for a water withdrawal permit that, if approved by a five-member DRBC commission, will allow the Delaware-based water company to activate a pumping station at the corner of Broad Run and Newark roads in Landenberg. If activated, the plans call for a water withdrawal to the tune of 288,000 gallons of water per day, at a rate of 200 gallons per minute, and a total of more than 100 million gallons projected to be withdrawn over the course of one year.
Residents in southern Chester County contend that not only is the well a potential environmental hazard, the number of gallons Artesian is looking to withdraw there don't jive with the current 38 homes they service in New Garden Township -- about 16,000 gallons per day -- which have led many to believe that the remainder will be transported across state lines to Artesian customers in Delaware.
Their voices could not have come at a better time. On Sept. 15, beginning at 1:30 p.m., the DRBC Commission will convene at the Dravo Auditorium at the Chase Building on Market Street in Wilmington to discuss the Artesian request, at a formal hearing. Throughout the entirety of the Sept. 8 meeting, both DEP and PUC officials told the audience that their written comments would have an impact on the final decision-making process, and encouraged residents to attend the formal hearing, where they can provide public comment.
Panelists included DRBC Executive Director Steve Tambini; Bill Muszynski, DRBC water resources manager; David Kovach, DRBC supervisors of project review; Zahra Nucci, DEP program manager for safe drinking water; Cosmo Servidio, DEP regional director; and Kelly Heffner, DEP deputy secretary for water management.
Dinniman looked at the event as an opportunity for residents to understand more about the logistics of the vetting and approval process of the Artesian desire to activate the well, as well as promoting transparency and public participation in that process.
"The idea is to show that not only are we concerned about our natural resources, which is the essence of being a resident of Chester County, but also that we are coming here based on expertise, based on fact, in order that the Commission would consider [this information] as we move forward," he said.
'Take no action'
New Garden Township Board Chairman Steve Allaband told the panel that because the Chester Water Authority's existing system is already in place, the township believes there is no need for the Broad Run well to be activated, in order to continue water service in the township.
Supervisor Randy Geouque expressed the township's objections to the Artesian proposal, namely that the Broad Run well is in Landenberg, which if activated, will result in export of groundwater resources from Pennsylvania to Delaware "to the potential detriment of existing private water supply on Broad Run and at White Clay Creek," Geouque said.
Because the application remains before the Public Utility Commission [PUC] and remains the subject of numerous protests – and violates township ordinances – Geouque encouraged the DRBC to take no action until the PUC application is fully concluded.
"New Garden Township seeks confirmation from the DRBC that Artesian's application is compliant with township's zoning and well water exportation permits," he said.
Geouque said that while Artesian publicly states its intent to comply with all local ordinances, Artesian took the position at a private meeting that approval by the DRBC of the Broad Run well would preempt and supersede local zoning and ordinances.
"New Garden zoning ordinance does not permit the proposed use of the Wilkinson farm property [where the well is located] and the proposed structures for this additional use," Geouque said. "Compliance with local ordinances need to be resolved to the satisfaction of New Garden Township and its residents."
Geouque is not alone in his confusion. Since the first inklings of Artesian's exploration of activating the Broad Run well were heard more than a year ago, both lawmakers and residents have expressed confusion about the alphabet soup of regulatory agencies associated with the Artesian desire to set up shop in New Garden Township – most particularly, which of them is entrusted to make the final judgment on whether the well will get the approval to be activated.
Although Tambini said that there is a standard language in the DRBC docket that suggests that the application will need other approval, the DRBC board will make the final decision to grant or reject Artesian's application.
"The authority to permit the withdrawal the waters of the Commonwealth could rest with the Commonwealth, but it clearly rests through the DRBC," Tambini said.
"You can make a decision on where the water goes, but the township ordinance makes no difference, is that right?" Dinniman asked Tambini. "The DRBC is making the decision based on one set of criteria...and you're not making it in conjunction with the granting of a franchise, and you're not making it conjunction with whatever ordinance might exist in this township. In essence, the township ordinance becomes meaningless."
"I recognize that system crosses state lines and that's sensitive, but keep in mind that when we look at issues from a water resource perspective, we know that there's state lines and political boundaries," Tambini said. "We have an obligation to look at the water issue, and when water falls on the ground, it doesn't know state boundaries."
Checks and balances
Among the several representatives from the Save Our Water Committee who spoke, Dave Yake summarized the Committee's firm argument against Artesian's presence in New Garden Township. He said that while the Committee did not agree with the DRBC's conclusion that there probably won't be a negative impact on the ecosystem as a result of the well being activated, it agreed with the DRBC in its request that a monitoring program be set up at the well.
Yake said that the Committee is requesting that the monitoring program remain in place for an extended period of time, meaning that it would monitor the well not only in time of heavy rains, but in drought periods. He also called for specific triggers to be established at the well, that in the event of stressors on the environment, a supervisory agency would be able to enforce water withdrawal limitations.
Finally, Yake said that the Committee is requesting that if the well is approved, that it not only be monitored, but that the data from the well be transparent and shared with the public.
Yake said that if the Chester Water Authority is already distributing 3 million gallons of water day throughout the southern portion of Chester County, then why would an out-of-state water resource like Artesian want to establish a presence in an area where there is already ample distribution, and why would the DRBC approve Artesian's request – if not to ultimately transport the majority of the water to Delaware? According to Yake, 96 percent of the 105 million gallons estimated to be drawn from the well per year will end up being transported to Artesian customers Delaware.
"So, why is this project moving forward? It seems to me that the DRBC ought to be asking that question of Artesian," Yake said. "When we look at this project, it doesn't take a rocket scientist to figure out the economics of this."
In an evening dotted with both emotional appeals and facts, perhaps the most compelling argument made against Artesian's request for well activation was delivered by Denis Newbold, Ph.D., a retired aquatic biologist formerly with the Stroud Water Research Center. Summarizing his opposition in a few key points, Newbold's statements reiterated the same recommendations expressed in two letters he sent to Bob Damiani of the DRBC, one in February and the other in late August.
Newbold said that a 200-gallon per minute withdrawal of water from the Broad Run well will have a major impact on stream flow during the late summer and early fall, when stream flow is generally at its lowest. He estimated that pumping would take half of the minimum stream flow in an average year, and 70 percent during drought years. Severe reduction to the stream flow, he said, will impact the biology in the stream and surrounding areas, and reduce the abundance and diversity of wildlife habitat.
"We're seeing a big effort on the part of watershed organizations and municipalities to restore streams and increase the biodiversity of these streams," Newbold said. "If we permit a flow reduction that reduces biodiversity, we're being counter-productive."
He also suggested that stream flow in the Broad Run Creek be monitored at considerable distance down slope from the well, counter to Artisan's idea to monitor the stream flow upstream. Newbold also said that the pre-production baseline monitoring should include the low flow seasons, as opposed to Artesian's idea to monitor the stream flow four weeks of the year – a stipulation that Newbold added does not mention what time of the year monitoring will be conducted.
"The monitoring won't be of much use unless the permit explicitly links the monitoring to an action plan that will protect the stream flow," Newbold said.
If the grass roots opposition to Artesian has been fought by groups like the Save Our Water Committee, these voices have been galvanized by Dinniman, whose efforts to stop the activation of the well have taken him up the food chain of several regulatory agencies. Early this spring, his office issued a press release that claimed Artesian and its attorneys were trying to subvert local residents’ rights to protest its application to activate the Broad Run well. In the statement, Dinniman claimed that Artesian’s attorneys recently filed preliminary objections to the standing of Dinniman and more than 100 individuals who have filed for "official party of record" or "intervener" status in the upcoming PUC proceedings on the application. On March 13, two PUC judges approved Sen. Andy Dinniman's standing as a part of official record in the Artesian matter, as well as the standings of several other individuals and groups.
Dinniman pressed the panel all evening, most especially on the DEP's assessment -- and subsequent approval – of the 72-hour aquifer test Artesian conducted at the well site in April of 2014, one that extracted more than 600,000 gallons of water from the well at a rate of 200 gallons per minute, in order to determine its pumping capacity.
Referring to Newbold's research and findings, Dinniman asked the panel that if the DEP has knowledge that there could be a potential impact on the stream itself, does the agency have a responsibility to further look into the facts of Newbold's research, before ruling.
"Here is information, based on research," Dinniman said. "What responsibility does the DEP have to at least acknowledge or look at what Denis [Newbold] has presented? You have said that there are no red flags to the DRBC, but if there are red flags, you have responsibility to examine those red flags before a vote is taken."
"We [the DRBC] can modify the monitoring program, or temporarily suspend or modify the docket at any time," Tambini said. "We are going to be focused on the resources. If there are impacts on the resources, then we will deal with it. We have some science at this point-- it's not a complete science, but a snapshot -- and there needs to be more, and it could potentially show issues or not show issues."
If there was a red flag detected by anyone in the audience, it was the fact that Artesian's testing in he spring of 2014 was done at a time of the year when rainfall is generally heavy, resulting in high water levels at the aquifer that some commented may have skewed the results in Artesian's favor. Many audience members suggested that testing be done not only during heavy rainfall periods, but during typical drought months of the year.
Jane Waggoner of the Save Our Water Committee said that when she and her husband Marion visited the well site during the testing, she saw that the surrounding field was covered with two inches of water.
"The snow had just ended, and there was water everywhere," she said. "Those were the red flags that you missed."
"The elephant in the room" on the proposed well, as Lisa Lutwyche of London Britain Township referred to it, deals less with the proposed activation of the Broad Run well and more with a having a solid mitigation plan in place, should the well begin to be pumped..
"Whose authority protects people if down the road, if we run into a situation where the wells are depleted?" Lutwyche asked. "How are we protected?"
Muszynski said that in the event of dry wells, the DRBC executive director has the authority to suspend use of the well.
"Mitigation could take many forms," Tambini said. "If there is an impact, [the well] needs to mitigated. We will investigate to make sure what's really going on. The applicant has an obligation to notify the DRBC that an investigation needs to be done, and we'll look at ways to make sure that these issues get mitigated."
"During that period of time, what happens to the person who owns the well, who is out of water?" Dinniman said. "How fast does that water company have to provide the water to the owner, and why isn't there a specific mitigation program that goes with the docket? In other words, can I go without water for two or three weeks while you finish your investigation?"
David J. Bartlett, Sr., a 30-year resident of New Garden Township, took the panel back to the evening of Dec. 1, 2014, when John M. Thaeder, senior vice president of operations with Artesian Water Resources, introduced himself to local residents at the fire hall to discuss Artesian's desired presence in New Garden Township.
"One of the questions asked was, 'Are there any regulations to protect homeowners if [Artesian's activation of the Broad Run well] would impact their water levels?' Artesian's answer was, 'Any ground water user who is substantially affected, rendered dry or otherwise diminished as a result of the docket holder's project withdrawal, shall be repaired, replaced and otherwise mitigated at the expense of the docket holder.'"
"Artesian reported revenues to the SEC last year averaging $70 million," Bartlett added. "Is there any one in this room who is naive enough to think that if any of our wells were to be affected in any way or run dry, that Artesian would immediately meet the needs of restoring water to our homes, versus giving the typical corporate run-around or better yet, turning that matter over to its attorneys they have on retainer?"
Bartlett then asked the panel if there was a method of holding Artesian to an obligation to restore water to affected homes within 24 hours, should an emergency exist.
Tambini said that Bartlett's questions need to be directed to Artesian, not the DRBC.
"Those solutions can be worked out," he said.
As the volume in the hall began to rise well into the meeting's second hour, the tone of many in the audience suggested that there were far too many unanswered questions related to the Artesian application -- as well as further testing that many agreed still needs to be conducted – before the DRBC can come to any kind of final ruling.
Heffner told the audience that she will speak with the DRBC commissioners about the content of the meeting, before the Sept. 15 formal hearing.
"There have been some excellent comments and suggestions," said Helling, who encouraged residents to attend the public hearing. "We very rarely get folks to come in and testify about projects, but this is important to you, and its important all of us. If you have the opportunity to make it that day, I think it's important for the other commissioners to hear the passion you have, the research you've done and the suggestions you've made."
Heffner said that because the commission meets quarterly, there are only quarterly opportunities to act on any docket.
"There has not been a single decision made on how things will go next week," she said. "If there is no action in September, then the next DRBC commissioners meeting will be held in December."
While Thaeder sat quiet and anonymous in the back of the room on Sept. 8, taking notes on a notepad, the flip-flop of facts and volatility at the meeting may have reminded him of his presentation at the fire hall nine months earlier, when he formally introduced Artesian's plans to a harsh audience of approximately the same size.
"People have a concern over the wells, but the DEP and DRBC experts are very good at looking at the data, and they will look at the monitoring plan and the results, and they'll come to the proper conclusions," he said. "This science is not as complicated, as compared with the way that experts look at it.
"Many people had their own opinion, and no matter what I say, it still won't make a difference," Thaeder added. "You deal in factual data from what's there, and we have no interest in anything else."
To contact Staff Writer Richard L. Gaw, e-mail firstname.lastname@example.org .