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Perrier has a preexisting permit from PADEP (under the Safe Water Drinking Act) for bottling drinking water. Perrier's (and it predecessors) spring water collection increased over many years. It now collects about 40,000 gallons per day on an annual basis and reportedly more than twice that on a peak usage basis.

Perrier has drilled a well or "borehole" to extract up to 95,000 gallons per day on a 30-day basis and has applied to PADEP for approval for the new or modified water source and to DRBC for a groundwater withdrawal permit (since DRBC reviews groundwater withdrawal in excess of 10,000 gpd in the "Southeastern Pennsylvania groundwater protected area").

Under the existing state programs, Perrier's spring water collection for transport and bottling off-site in Scranton is not regulated as to quantity by either PADEP under the Water Rights Act or by DRBC under the Delaware River Basin Compact. Perrier operates in the Township as a nonconforming use. The Township has adopted an ordinance permitting such use in the conservation district subject to limits and controls designed to protect other water supplies and the base flow of streams, including the adjacent unnamed tributary of Pigeon Creek, a PADEP designated high quality stream. The proposed groundwater welling use for off-site transport and bottling is prohibited by the Ordinance but permitted in the C-I commercial industrial zone.

Studies of the proposed production well indicate that the proposed extraction for off-site transport and bottling will: (a) use nearly one-half of the groundwater within the recharge area available for possible municipal use on the adjoining town forest grounds, a supply which would be otherwise adequate for up to 900 single-family homes in the Township; and (b) would equal in amount the entire base flow of the adjacent Pigeon Creek tributary in a 10-year drought.

THE PRESENT QUANDARY: Under the existing framework (discussed below) note that:

1. Under common law, extraction of groundwater for use off-site is labeled "unreasonable" and "unlawful", and actionable to the extent of damages to spring or well water supplies of neighbors. Rothrauff v. Sinking Spring Water Co., 339 Pa. 129, 14 A.2d 87 (1940); Flowers v. North Hampton Bucks County Municipal Authority, 57 D.&C. 2^nd 274 (C.P. Bucks 1972); and Hatfield Township v. Lansdale Municipal Authority, 19 Pa. D.&C. 2^nd 281 (1959).

2. Yet, neither PADEP nor DRBC regulate the amount of Perrier's spring water collection operations since PADEP allocates only public suppliers of surface waters and regards the springs as "groundwater", and DRBC regulates only groundwater extraction below 10,0000 gpd in the groundwater protected area and regards the springs as "surface waters".

3. If located in an adjoining township (e.g., West Vincent) outside of Southeastern Pennsylvania groundwater protected area, Perrier's production well would not be regulated by PADEP (since not surface waters used by a public water supplier) or even by DRBC (since Perrier will stay below the 100,000 gpd limit for DRBC review).

4. In the western one-third of the Commonwealth not subject to jurisdiction of Delaware River Basin Commission or Susquehanna River Basin Commission, there exists no statewide regulation over the quantity of surface and groundwater withdrawals except for PADEP limits on public water suppliers utilizing surface water sources under the 1939 Pennsylvania Water Rights Act. 32 P.S. 631-41.

1. Federal Interstate Basin Compacts:

   Delaware River Basin Compact, 32 P.S. '815.101 et seq.; Susquehanna River Basin Compact, 32 P.S. '820.1 et seq.

   These federal compacts established Delaware River Basin Commission ("DRBC") and Susquehanna River Basin Commission ("SRBC") by federal interstate compact. DRBC and SRBC require approval of proposed surface and groundwater activities having a significant effect on the water resources of the respective basins. DRBC has recently adopted regulations quantifying limits on withdrawals in subbasins based on the 1 in 25 year average base flow rate with stricter standards for potentially stressed subbasins where withdrawals exceed that rate.

   SRBC and DRBC review only projects having relatively high threshold effects on groundwater quantity. Specifically,

   1. DRBC reviews:
      1. Surface water withdrawals greater than 100,000 gpd.

      2. Groundwater withdrawals greater than 100,000 gpd.

      3. Groundwater withdrawals greater than 10,000 gpd in Southeastern Pennsylvania groundwater protected area (only about 20 or 1/3 of municipalities in Chester County are included in this area).

         18 CFR '401.35, and 430.1 et seq.

   2. SRBC reviews:
      1. Surface water withdrawals greater than 1 million gpd (or which in conjunction with all other withdrawals exceed 25% of the 7-day, 20-year low flow of the stream).

      2. Groundwater withdrawals greater than 100,000 gpd.

      3. "Consumptive" uses of water greater than 20,000 gpd in any 30 day period.

         18 CFR '303.3 .803-61

   3. Generally not regulated by DRBC or SRBC:
      1. Projects outside of Susquehanna River Basin and Delaware River Basin (the entire western one-third of state).

      2. Surface water withdrawals less than 1 million gpd from Susquehanna River Basin and less than 100,000 gpd in Delaware River Basin.

      3. Groundwater withdrawals less than 100,000 gpd in Susquehanna and Delaware River Basins (except Southeastern Pennsylvania groundwater protected area or exceeding 25% of 7-20)

      4. Groundwater withdrawals less than 10,000 gpd in Southeastern Pennsylvania groundwater protected area of Delaware River Basin.

2. 1939 Water Rights Act, 32 P.S. '631
   1. This Acts Vests Authority in PADEP -- Bureau of Public Water Supply and Community Health -- to Implement the State Water Plan.

   2. PADEP sets the allocations and withdrawal limits for public water suppliers utilizing surface water sources. Allocations are not required for commercial and industrial withdrawals from surface water sources. PADEP allocates water among public water supply agencies, meaning public utility corporations, municipalities, districts and authorities vested the power to supply water to the public.

   3. PADEP reviews the application to determine whether the proposed use will conflict with rights of any other public water supply agencies.

   4. PADEP does not regulate:
      1. Amount of Commercial and industrial withdrawals or other withdrawals than public water suppliers

      2. Amount of Groundwater withdrawals. (Groundwater includes all water from dug, drilled, bored, jetted or driven wells and infiltration galleries as well as springs which emerge at the surface within the confines of a springhouse ).

3. Other State Statutes and Regulations not Directly Impacting Withdrawal Limits
   1. Pennsylvania Safe Drinking Water Act, 35 P.S. '721.1 et seq. gives PADEP jurisdiction to regulate water quality matters.

   2. Wellhead protection program mandated by Federal Safe Drinking Water Act and administered by PADEP require developers of new water supplies to take measures to protect against contamination and diminution of the supply. 25 Pa. Code Chapter 109. (See Chester County Health Department -- Well Drilling and Use Regulations and Permitting.)

1. Existing Municipal Regulatory Efforts

   Few local townships have municipal groundwater regulations in place. Such ordinances are now being studied by many townships.

   1. Per an unofficial review by Chester County Planning Commission in August of 1996, reviews by the Pa. Department of Community and Economic Development, the Pa. State Association of Township Supervisors and the Joint Planning Commission for Lehigh, Northampton Counties produced no existing ordinances currently being used.

      In Hess v. Zoning Hearing Board of Warwick Township, et al., 45 Ches. Co. Reporter 26 (1997), after upholding the Township Zoning Hearing Board's decision denying an appeal and challenge filed by a landowner seeking to conduct a bulk spring water extraction operation in an agricultural zone, Judge Wood summarized the state of things at the municipal level:

      "I note ... that the Township, in its Ordinance, had obviously not given much thought to the problems posed by extracting groundwater for purposes of large scale commercial use. Given the growing spring water industry in this region, and the increasing demands placed on groundwater supplies, municipalities should consider reviewing their current zoning regulations in order to account for their future local water needs. I venture to suggest that the proper preservation and allocation of this precious resource, water, should be at the top of the agenda of every planning commission and governing board in this county.@

   2. In Chester County, East Nantmeal and Warwick Township Zoning Ordinances contain zoning provisions incorporating standards based on low flow of streams. West Vincent Township has adopted or is studying a local ordinance to regulate individual and community well withdrawals. South Coventry Township has adopted an ordinance to permit and regulate previously nonconforming spring water collection uses incorporating standards to protect the base flow of streams in drought conditions. South Coventry Township has also studied adoption of a well withdrawal ordinance. The West Vincent and South Coventry well ordinance models classify proposed wells according to the amount to be produced and basically require simple application and recordkeeping requirements for drilling of small single-family residential dwelling wells and more sophisticated hydrologic studies and budgets for wells or series of wells having greater aggregate withdrawal capacity or where a proposed subdivision will result in the installation of a certain number of individual single residential wells.

   3. Bucks County seems to be the site of the most longstanding municipal ordinances addressing groundwater withdrawals. In 1976, Warwick, Warrington, Buckingham and Horsham Townships all had well ordinances in place requiring permitting and regulating water withdrawal conflicts.

   4. Brandywine Conservancy, Environmental Management Center, has drafted a set of planned use/water protection ordinances being reviewed by Pocopson Township and others.

2. Sources of Authority for Municipal Withdrawal Regulations
   1. The Borough Code, 53 P.S. '46202(39) specifically authorizes municipal regulation of water wells and groundwater use.

   2. Second Class Township Code and other enabling statutes for various classes of municipalities authorize municipal adoption of ordinances or regulations for proper monitoring and control of the general health, safety and welfare of the municipality. See Second Class Township Code, 53 P.S. '66506, and parallel provisions of other municipal enabling acts.

   3. The Municipalities Planning Code, 53 P.S. '101 et seq., includes a variety of provisions which direct townships to plan and zone in a way to protect groundwater supplies and aquifers:
      • Section 301(b) -- The comprehensive plan for a municipality may include a plan for the reliable supply of water, considering current and future water resources, availability, uses and limitations including provisions adequate to protect water supply sources. 53 P.S. '10301(b).
      • Section 601 -- Authorizes the governing body of each municipality to enact zoning ordinance "to implement comprehensive plans" including water resource plans as above set forth. 53 P.S. '10601.
      • Section 603(b) -- Zoning ordinances may "... regulate: (1) uses of land, water courses and other bodies of water ..." and "(5) protection and preservation of natural resources ...." 53 P.S. '10603(b)(1) and (5).
      • Section 603(d) -- Zoning ordinances may include provisions regulating the siting, density and design of residential, commercial, industrial and other developments in order to assure the availability of reliable, safe and adequate water supplies to support the intended land uses within the capacity of available water resources. 53 P.S. '10603(d).
      • Section 604 -- Zoning ordinance provisions should be designed (1) to promote, protect and facilitate ... the provision of a safe, reliable and adequate water supply for domestic, commercial, agricultural or industrial use, ... as well as preservation of the natural ... values in the environment and ... wetlands, aquifers and floodplains.

3. Use of Zoning for Different Districts of Land Use is Ineffective by Itself.
   1. Case law on zoning aspects of excessive water use has focused on the type of land use, rather than the amount of water use. e.g., a Warwick Township case (and others) have focused on whether a spring water bottling use may be categorized as "agriculture" in the sense of "harvesting" groundwater as a product of the land. The cases have held that such use is not agriculture or farming but instead allowable in industrial districts that allow for "mining" or like mineral extraction uses. See Hess v. Zoning Hearing Board of Warwick Township, 45 Ches. Co. Rep. 26 (1997); Houston v. Town of Waitsfield, 648 A.2d 864 (Supreme Court of VT, 1994).

   2. However, local regulations should work to protect aquifers and streams from diminution and degradation in the same way that they are commonly designed to protect floodplains and steep slopes. I.e., they should have general application regardless of artificial zoning district lines. As Judge Wood in Hess, supra., observed: "The interesting thing to me is that whether we allow water to be extracted from Industrial or Residential Zone, the water table respects no such boundaries, and depletion of water table will eventually affect all the citizens of Warwick and surrounding Townships, not those in the same district.@

4. Limits on Municipal Groundwater Regulation through Zoning.
   1. Exclusion.
      1. General constitutional principals and Section 604(5) of the MPC operate to prohibit the exclusion of legitimate, if undesirable, land uses. Municipalities may not "zone out" highly consumptive water users altogether, notwithstanding the common law rule that extraction of groundwater for off-site use was regarded unreasonable per se. Particularly where federal or state permits are issued for a consumptive water use, the uses may have been legislatively sanctioned as "legitimate" notwithstanding the line of common law cases branding certain forms of groundwater extraction as a legal "nuisance".

      2. In State College Borough Water Authority v. Board of Supervisors of Benner Township, 165 Pa. Cmwlth. Ct. 405, 645 A.2d 394, 400 (1994), the Commonwealth Court held that the common law rules against groundwater extraction for off-site purposes are effectively modified by the MPC to the extent that municipalities are authorized (and presumably required) to zone for such uses.

      3. See Miller & Son Paving, Inc. v. Plumstead Township, 680 A.2d 5 (Pa. Cmwlth. 1996), holding that an ordinance excluding quarrying of stone is invalid as exclusionary.

      4. Note however, that only "coal" has been held a separate mineral estate in land, (McClimains v. Board of Supervisors, 107 Pa. Cmwlth. 542, 529 A 2d 562 (1987)), so that extraction of sand, gravel, and other minerals can be regulated by zoning according to districts without the "taking" analysis that has been applied to zoning ordinances that restrict access to coal. See Stabler Development Company v. Board of Supervisors of Lower Mount Bethel Township, 195 A.2d 882 (Pa. Cmwlth. Ct. 1995). Groundwater should be even less regarded as a separate estate subject to a "taking" analysis since its location is not fixed to a piece of land.

   2. Preemption of Certain Areas of Local Regulation.
      1. A line of recent cases has held that the municipal power to zone does not extend to allow municipal regulation over groundwater withdrawal matters regulated by DRBC and SRBC under the Delaware and Susquehanna River Basin Compacts:
         1. North Penn Water Authority v. Zoning Hearing Board of Worcester Township, 24 Pa. D.&C. 3^rd 357 (1981), affirmed 71 Pa. Cmwlth. Ct. 575, 454 A.2d 699 (1983). In this case, the Commonwealth Court upheld a lower court opinion to the effect that the municipal zoning hearing board could not deny a special exception for a water authority's well project where DRBC had issued a withdrawal permit and DER had issued a water supply permit, holding that the amount of well water withdrawn by the authority was within the exclusive power of DER and the DRBC.

         2. State College Borough Water Authority v. Board of Supervisors of Halfmoon Township, 659 A.2d 640 (Pa. Cmwlth. Ct. 1995). The conditions placed on a conditional use zoning permit by the governing body of a local municipality were preempted by the regulatory authority of the SRBC. The fact that certain amounts of withdrawal are not the subject of the Commission's review cannot be used to reject preemption when the Compact and the regulations show a clear intention to regulate over a certain volume. Id., at 644.

         3. Levin v. Board of Supervisors of Benner Township, 669 A.2d 1063 (Pa. Cmwlth. Ct. 1995). The Commonwealth Court, relying on Halfmoon, supra, held that various conditions attached to a conditional use permit granted to a borough water authority were preempted by the regulatory authority of the Susquehanna River Basin Commission where the conditions related to the same matters as were governed by the SRBC's own regulations (e.g., conditions as to monitoring of surrounding wells, draw down monitoring required, providing water in the event of well failure, and installation of metered water stations).

      2. Not Preempted:
         1. Power to designate the location of various water withdrawal uses (e.g., Benner, supra., involved grant of conditional use for "facilities for distribution of utility services including ... water ...." Such facilities were allowed by conditional use only in the CA district).

         2. (Presumably) ordinance provisions limiting quantities of withdrawal where less than, or not made the subject of DRBC or SRBC regulation -- i.e., groundwater withdrawals in the western one-third of the state, as well as those in the eastern two-thirds that are less than the respective thresholds for SRBC and DRBC review.

            Note that the cases addressing the preemption issues have involved public water supply authorities whose uses have entailed upwards of 4 million gallons per day. These are the magnitude of users that have been the focus of DRBC and SRBC review. Townships may presumably still regulate extraction of spring water and groundwater for commercial sale, as well as all forms of residential, commercial and industrial groundwater extraction as long as it is less than the DRBC and SRBC thresholds for review. (These may be very significant where, for example, spring water bottlers may take up to 100,000 gallons per day without DRBC review locally and may even extract groundwater (to be bottled as "spring water" under FDA criteria) through a well up to the same threshold if they happen to lie just outside of the groundwater protected area. Ground/Spring water bottlers outside of DRBC or SRBC jurisdiction would appear to be wholly unregulated at the state level.

      3. Preemption of State Legislation.

         These remains the questions of whether the Delaware River Basin Compact and/or Susquehanna River Basin Compact preempt state legislation itself over groundwater withdrawals that are subject to DRBC and SRBC review and permitting. The state Constitution and Compacts themselves indicate that such state regulation is not preempted:

         1. Pennsylvania Constitution prohibits the delegation of sovereign powers. Constitution Article II, Section 1; see also Constitution Article III, Section 31.

         2. Susquehanna River Basin Compact, at Section 3.6(b) provides that nothing in the Compact shall be construed to repeal, modify or qualify the authority of any signatory party to enact any legislation or enforce any conditions and restrictions within its jurisdiction.

         3. Delaware River Basin Compact:
            • Section 1.5 "Existing Agencies; Construction" -- This section indicates that the signatory parties intend to preserve and utilize the functions, powers and duties of existing offices and agencies of government to the extent not inconsistent with the Compact.
            • Section 10.8 indicates that, where the Commission finds it necessary or desirable to exercise powers conferred by this article (regulation of withdrawals and diversions), any diversion or withdrawal permits authorized or issued under the laws of any of the signatory states shall be superseded to the extent of any conflict with the control and regulation exercised by the Commission.

            In stating that the withdrawal permits issued by signatory states are superseded to the extent of any conflict, the Compact implicitly recognizes that states will regulate withdrawals independently. (Note, in this regard, the authority of PADEP under the 1939 Water Rights Act to regulate allocations of water among competing public water suppliers using surface waters. Consider, also, the MPC references to water resource protection).

5. PENDING LEGISLATION
   1. Gerlach Package -- Senate Bill Nos. 1157 and 1177 Amending the MPC and the Conservation of Natural Resources Act
      1. The proposed legislation places additional references in the MPC (proposed Section 603g) to authorize zoning ordinances for protection, conservation and development of water resources. This aspect of the proposed amendment appears redundant given the variety of enabling provisions in the MPC already speaking to municipal authority to zone for the protection of water resources.

      2. The proposed amendments to the Conservation and Natural Resources Act, at proposed Sections 806-b and 807-b, appear to require both the unanimous adoption of a "integrated water resources plan" ("IWRP") by all municipalities in a 25 square mile (min.) watershed and state designation by the DEP as a "special management area" before a township may, as part of a group of subbasin townships adopting the plan, regulate ground and surface water withdrawals, and then only within the special management area.

      3. The amendments to the Conservation and Natural Resource Act at Section 811-b require that the legislation be construed, "in pari materia" with the Delaware River Basin Compact (among other statutes)

      4. Recommendations -- It is strongly recommended that the proposed bills be amended to make clear that municipal zoning powers under the existing MPC are not being curtailed by the proposed legislation and that preexisting zoning ordinances enacted pursuant to the authority of the MPC are not invalidated by the proposed legislation. The benefits to be obtained by a IWRP should be available to municipalities who choose to implement one, even if the IWRP is not unanimously approved (where, for example, 75% of participating municipalities approve). Further, the IWRP, if approved by the State DEP, should be effective without a finding by the state that the watershed being regulated in a "special management area". To require such an initial finding by the state would vastly curtail the benefits that could be obtained by watershed joint municipal planning on a watershed basis. The bill should clearly state that it is the intent of the legislation that neither Delaware River Basin Compacts preempts water resource regulation through ordinances implementer on approval IWRP.

   2. Schroeder Proposal -- Municipal Groundwater Resource Planning Act
      1. Allows for an IWRP to be prepared by a joint planning commission in the same fashion as a joint municipal zoning ordinance under the existing MPC. Once prepared, the IWRP may be submitted for approval by the Department whereupon, if approved, participating municipalities within the watershed will have the power to regulate withdrawal limits and uses to implement the provisions of the plan. The plan will also be considered by DEP and issuing permits under the Water Rights Act and the Pennsylvania Safe Drinking Water Act. The proposal allows for the benefits of an IWRP without imposing the preconditions of unanimous approval by all municipalities in the watershed and state designation as a special management area. To that extent, it would be of much more practical benefit to municipalities seeking to effectively adopt sustainable watershed regulations on a joint watershed basis. The proposal clearly states that regulations implement an IWRP are not preempted by the River Compacts.

      2. Recommendations -- Move forward with the basic concept of the IWRP under the Schroeder proposal to allow for a bottom-up basis for watershed regulation on a joint municipal basis by the affected municipalities.

   3. Conclusion

      The concept of an IWRP being promoted by both Congressman Schroeder and Senator Gerlach is one which recognizes the benefit of joint municipal planning on a watershed basis for protection of groundwater resources. To that end, the proposed legislation can be a great benefit to those watersheds seeking to adopt meaningful local regulation of groundwater withdrawals. However, great care must be taken to assure that the legislation, as drafted, does not curtail municipal zoning power which already exists to protect groundwater resources and that, subject to approval at the state level, an IWRP can independently function to protect local watersheds without a requirement for an initial finding by the state that the watershed is deserving of "special" protection. With respect to the bulk of groundwater use and consumption tied to land uses that are not subject to DEP and DRBC/SRBC regulation, municipal control over local watershed protection should be bolstered, rather than hampered by a top down approach to groundwater management. The legislature should clearly state its intent to remove the preemption question as an obstacle to local watershed protection that is not more permissive than allowed by the Basin Commissions.

Boucher and James, Inc., South Coventry Township Well Feasibility Study.

Cahill Associates, Pigeon Creek Sustainable Watershed Management Study.

R.T. Weston, M.J. Heilman and R.S. Cusano, Water Supply Replacement, the Environmental Law Colloquium, 1995, at pp. 569-591 (Pennsylvania Bar Institute, 1995).

R.T. Weston and M.W. Gang, Law of Groundwater in Pennsylvania, 81 Dickinson L. Rev. 11 (1976).

R.T. Weston and J.R. Burcat, Legal Aspects of Pennsylvania Water Management, in Water Resources in Pennsylvania: Availability, Quality and Management (the Pennsylvania Academy of Science, 1990).