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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Trout, Trout
:
Unlimited-Penns Woods West
:
Chapter, and Citizens for
:
Pennsylvania's Future,
:

Petitioners

:

:
v.

:
1033
C.D.
2004

:
Department of Environmental
: Argued: October 5, 2004
Protection and Orix-Woodmont
:
Deer Creek Venture,

:

Respondents

:
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge

HONORABLE JOSEPH F. McCLOSKEY, Senior Judge
OPINION BY JUDGE SIMPSON FILED: December 7, 2004

Pennsylvania Trout, Trout Unlimited-Penns Woods West Chapter and
Citizens for Pennsylvania's Future (collectively Objectors) appeal an order of the
Environmental Hearing Board (EHB), which upheld the Department of
Environmental Protection's (DEP) issuance of a permit to Orix-Woodmont Deer
Creek Venture (Permittee) to fill approximately six acres of wetlands so that
Permittee may construct a master planned mixed-use commercial development.
The EHB determined Permittee met its burden under 25 Pa. Code §105.18a(b)(3)
of rebutting the presumption that a practicable alternative exists to the proposed
project that would not involve a wetland or that would have less adverse wetland
impact. Because we agree Permittee rebutted the regulatory presumption that a
practicable alternative exists, we uphold issuance of the permit.

I. Statutory and Regulatory Framework

Pursuant to the provisions of the Dam Safety and Encroachments Act
(Act),1 and its attendant regulations,2 DEP is authorized to regulate the
construction, operation, modification or abandonment of any dam, water
obstruction or encroachment. See Section 6 of the Act, 32 P.S. §693.6. An
"encroachment" is any structure or activity which in any manner changes, expands
or diminishes the course of any body of water. Section 3 of the Act, 32 P.S.
§693.3. The term "body of water" includes not only lakes, ponds and reservoirs,
but also any "swamp, marsh or wetland." Id. Thus, under the Act, DEP regulates
and requires permits for any structure or activity that encroaches on a wetland.

In addition to the general criteria for permit issuance under the Act,
there are specific requirements for wetlands found in the Act's implementing
regulations. See 25 Pa. Code §§105.17105.20a. These regulations provide a
scheme for the classification of wetlands, and divide wetlands into two
categories--"exceptional value wetlands" and "other wetlands." It is undisputed
that the wetlands at issue here are "other wetlands."

Under the "Chapter 105" regulations, DEP is required to consider a
number of factors in determining whether to issue an encroachment permit. The
factors to be applied depend on whether the wetlands at issue are exceptional value

1 Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§693.1-693.27.
2 See 25 Pa. Code §§105.1-105.451.
2

or other wetlands. For "other wetlands" a project may be permitted upon a
showing that: (i) the project will not have a significant adverse impact on the
wetland; (ii) any adverse impacts are reduced to the maximum extent possible; (iii)
there is no practicable alternative to the project; (iv) the cumulative effect of the
proposed project, together with other projects, will not result in a major
impairment of the Commonwealth's wetland resources; and (v) affected wetlands
will be replaced. See 25 Pa. Code §105.18a(b).

The sole factor at issue here is the "no practicable alternatives test." It
provides, in relevant part:

(b) Other wetlands. ... [DEP] will not grant a permit
under this chapter for a ... water obstruction or
encroachment in, along, across or projecting into the
wetland ... unless the applicant affirmatively
demonstrates in writing and [DEP] issues a written
finding that the following requirements are met:

* * * *

(3) There is no practicable alternative to the proposed
project that would not involve a wetland or that would
have less adverse impact on the wetland, and that would
not have other significant adverse impacts on the
environment. An alternative is practicable if it is
available and capable of being carried out after taking
into consideration construction cost, existing technology
and logistics. An area not presently owned by the
applicant which could reasonably be obtained, utilized,
expanded or managed to fulfill the basic purpose of the
proposed project shall be considered as a practical
alternative.

(i) It shall be a rebuttable presumption that there is a
practicable alternative, not involving a wetland, to a
3

nonwater-dependent project, and that the alternative
would have less adverse impact on the wetland.

(ii) To rebut the presumption, an applicant ... shall
demonstrate with reliable and convincing evidence and
documentation and [DEP] will issue a written finding
that the following statements are true:
(A) The basic project purpose cannot be accomplished
utilizing one or more other sites that would avoid, or
result in less, adverse impact on the wetland.

(B) A reduction in the size, scope, configuration or
density of the project as proposed and alternative designs
to that of the project as proposed that would avoid, or
result in fewer or less severe, adverse impacts on a
wetland will not accomplish the basic purpose of the
project.

25 Pa. Code §105.18a(b)(3). This regulation establishes a rebuttable presumption
for DEP that, where a proposed project is not water dependent, a practicable
alternative exists. 25 Pa. Code §105.18a(b)(3)(i), (ii). To rebut the presumption,
an applicant must submit reliable and convincing evidence to DEP that no
practicable alternative is available. An alternative is "practicable" if "it is available
and capable of being carried out after taking into consideration construction cost,
existing technology and logistics." 25 Pa. Code §105.18a(b)(3).

II. Factual Background

Permittee seeks to construct a 1.2 million square foot commercial
development on 245 acres of undeveloped land in Harmar Township, Allegheny
County. The property at issue is bordered on the east by the Pennsylvania
4

Turnpike, on the south by Pennsylvania Route 28 and is bisected by Pennsylvania
Route 910.

Permittee applied to DEP for an encroachment permit to fill 6.17 acres
of wetland and to divert 2,700 feet of Deer Creek around its proposed commercial
development. DEP denied the application primarily because of stream and wetland
impacts. In addition, DEP determined Permittee did not adequately explore the
availability of off-site alternatives. After filing and withdrawing an appeal,
Permittee submitted a second application, which is the subject of this appeal.

Through its second application, Permittee sought authorization to
place fill within the flood plain of Deer Creek and to encroach on 5.96 acres of
wetland. Permittee no longer proposed to relocate Deer Creek. Notably, in its
second application, Permittee included an extensive "alternatives analysis." After
reviewing and investigating the second application, DEP issued the permit.
Objectors appealed to the EHB.

The second application was a joint application to DEP and the United
States Army Corps of Engineers. The Corps of Engineers issued its encroachment
permit for the project at about the same time as DEP.

III. EHB Hearings

During eight days of hearings before the EHB, thirteen witnesses
testified. A summary of the pertinent testimony follows. Nancy Rackham is a
water pollution biologist employed by DEP. Rackham's primary job responsibility
5

is reviewing permit applications for wetland and stream encroachments. Rackham
reviewed both permit applications submitted by Permittee. According to
Rackham, DEP denied Permittee's first application primarily because of the
proposed stream and wetland impacts. In addition, Rackham believed Permittee
did not adequately explore the availability of off-site alternatives in its first
application. In its first application, Permittee proposed filling six of the seven
wetlands on the site leaving only "wetland number 7" remaining. Permittee only
proposed to impact 5.96 acres of wetlands in its second permit application.
Another significant change in the second application was that Permittee no longer
proposed to relocate Deer Creek.

Rackham indicated Permittee selected the Deer Creek site because it
served its "basic project purpose," which was to construct a large commercial
mixed-use center. According to the application and Rackham's investigation and
review, Permittee chose the Deer Creek site because it identified an underserved
market area. Through a process of elimination, Permittee reviewed and rejected
other sites because they did not adequately serve the project purpose. Permittee
informed Rackham it needed to develop a one to two million square foot regional
shopping center based on the requirements necessary to obtain Tax Increment
Financing (TIF) to help finance the proposed development.

Rackham and others at DEP asked extensive questions concerning the
alternatives analysis submitted with the second application. She testified DEP did
not limit its review to sites that would support a one to two million square foot
development. In fact, Rackham explained, in performing the alternatives analysis
6

for its second application, Permittee considered sites as small as 100 acres at
DEP's request. Rackham testified Permittee evaluated 30 parcels in its alternatives
analysis. Permittee used excessive site costs as one basis for excluding a site as
being a practicable alternative to the Deer Creek site. Two other criteria were
highway visibility and major highway access. Ultimately, Rackham concluded
Permittee rebutted the presumption that there was a practicable alternative to the
selected site. She made a written finding of her conclusion.

The DEP engineer assigned to review the second permit application
was Chris Kriley, P.E. Kriley reviewed the engineering sections of the second
application, including the hydrologic and hydrology analyses, the general site plan,
and the traffic studies. Kriley noted the second application included an appendix,
entitled "Analysis of Practical Alternatives," which contained detailed information
about alternative sites, including information regarding ownership and availability
of various parcels. Also, the second application included an appendix, entitled
"Concept Plans," which set forth a summary and evaluation for "on-site
alternatives" to the proposed project.

Kriley further explained, as part of the proposed development,
Permittee would construct replacement wetlands on the project site and in an off-
site area. The proposed replacement wetlands were designed to provide filtration
of contaminants before water enters Deer Creek. Also, the proposed development
avoids substantially impacting wetland number 7, which is one of the most highly
functional wetland on the site. In addition, Permittee proposed to construct a 93-
acre conservation easement. Permittee also proposed a wetlands enhancement
7

program in which some of the invasive plant species would be eliminated and more
beneficial species would be planted. Ultimately, Kriley recommended DEP
approve Permittee's second application.

Objectors presented expert testimony by Patrick Phillips (Objector's
expert), an expert in economic, commercial and retail development. Notably, he
recently worked as a consultant for the Mills Corporation, a commercial developer
seeking to construct a retail development along the "Route 28 corridor." That
competing development is approximately 1½ miles from the Deer Creek site.
While working for the Mills Corporation, Objector's expert prepared an
alternatives analysis in which he concluded there were no practicable alternatives
to the site selected by Mills.

Objector's expert reviewed the alternatives analysis submitted by
Permittee in both its first and second applications. He indicated the criteria utilized
by Permittee in its alternatives analysis submitted with its second permit
application were "logical and rational." EHB Adj., Finding of Fact (F.F.) No. 233.

With regard to on-site alternatives, Objector's expert opined that
Permittee could construct its project solely to the west of Route 910 and still have a
viable project without adversely impacting the wetlands. However, Objector's
expert was unable to identify any viable off-site alternative for Permittee's
proposed project. F.F. No. 251.

8

Of further import here, the EHB made a specific finding that
Objectors did not present the expert testimony of Thomas Bartnik, who was listed
in Objectors' pre-hearing memorandum as an expert to testify concerning
Permittee's alternatives analysis.

Permittee presented testimony by Stephen Coslik, Chairman and CEO
of the Woodmont Company, who testified as both a fact witness and an expert in
commercial retail development. Coslik testified Woodmont first became involved
in the Pittsburgh area in 1995 and discovered the area was underserved by national
retailers. After talking to customers and investigating the Pittsburgh area,
Woodmont focused on the Upper Allegheny Valley. It saw a need to develop a
site of approximately one million square feet. Woodmont located the Deer Creek
site in 1996 though their real estate consultant. During the second application
process, Permittee searched diligently for a practicable alternative to the Deer
Creek site. Coslik indicated it was in the company's best interests to find such a
site to meet its project purpose if the site had less environmental "problems." Such
a site would allow Permittee to construct its development more quickly and more
economically. After investigating potential alternatives, Permittee ultimately
concluded no practicable alternative site existed.

In addition, Permittee presented testimony by members of the "team"
of expert consultants who performed the alternatives analysis, including a civil
engineer, a commercial real estate consultant and a biologist. Thus, Permittee
presented testimony by Greg Sheffler, P.E., a civil engineer, whose company acted
as the project coordinator for the permit application. Sheffler's company worked
9

on the off-site and on-site alternatives analysis, prepared site and grading plans,
prepared hydrologic and hydrology studies, and assisted other consultants in
preparing design plans, including wetland replacement plans.

With regard to off-site alternative areas, Sheffler indicated after
potential sites were identified a field investigation of each site was performed. As
DEP reviewed the application, Sheffler's company coordinated responses to
specific questions raised by DEP. Sheffler indicated the second permit application
provided for 107 acres of "flat pad" (building pad area and parking area), while the
first application provided for 123 acres. Sheffler disagreed with Objectors' expert
that the area to the west of Route 910 could be economically developed.
Significantly, the EHB found Sheffler more credible than Objectors' expert on that
issue. F.F. No. 302.

IV. EHB Adjudication

Before the EHB, Objectors questioned whether Permittee rebutted the
regulatory presumption that there are practicable alternatives with less adverse
wetland impact. They also argued the "basic purpose" of the project was too
narrow and specific. In addition, they asserted DEP's approval of the Permit did
not comply with applicable regulations.

The EHB issued a 67-page adjudication, consisting of 334 findings of
fact, 22 pages of discussion and 19 conclusions of law. After outlining the relevant
evidence set forth above, the EHB made the following significant findings:
10

311. [DEP] prepared a detailed permit review summary
that evaluated and reached conclusions on all essential
elements of the application and the regulations. (Ex. C-1)

* * * *

313. [Permittee's] Alternatives Analysis included the
accumulated work of engineers, [an] ecologist and real
estate professionals retained to study potential alternative
sites. (Transcript pages 773-776, 801-803, 818-825)
314. As part of its Alternatives Analysis [Permittee]
evaluated 30 different sites within a corridor one mile on
either side of Route 28 from Fox Chapel to Tarentum, a
distance of approximately 10 miles. (Joint Stipulation
#14; Ex P-3; Transcript page 661)
315. [Permittee] provided extensive documentation to
[DEP] relating to its evaluation of both the target market
Exhibit P-7, (Volume 2, "Addendum 3") ... and the
viability of potential alternative sites. (Ex. 3; Transcript
pages 819-820)
316. [DEP] sent several review letters that raised
questions regarding the Alternatives Analysis and
[Permittee] provided answers to those questions. (Joint
Stipulation #23; Ex. C-6; C-7; P-28; Transcript pages
1085-1087)
317. [Objectors] presented no evidence refuting the
conclusions drawn by [Permittee] in its Alternative
Analysis in Exhibit P-3 and P-7.
318. [Permittee] undertook appropriate and reasonable
efforts to determine whether there were available
practicable alternatives to the site in question. (Ex. P-3)
319. Environmental professionals hired by [Permittee]
spent several months of field and office time evaluating
the potential alternative sites. (Transcript pages 773-776,
801-803, 818-825)

* * * *
11

324. [Permittee] used reasonable and prudent measures to
determine the availability of properties throughout the
study area. (Transcript page 1001)
325. The original application called for the encroachment
on 6.17 acres of wetland. The site plan submitted with
[the second application] called for an encroachment on
5.89 acres of wetland and the creation of 7.17 acres of
mitigation wetland. The [second] application also
eliminated any relocation of Deer Creek. (Ex. C-1; C-2)
326. The area bordering the north bank of Deer Creek
contains 4.35 acres of wetlands and the application
proposed the creation of 4.46 acres of replacement
wetlands also along the north bank of Deer Creek within
the flood plain of the creek. (Ex. P-14; P-14A;
Transcript pages 805-806)
327. On the south bank of Deer Creek Wetland # 4 is not
being impacted. The project as permitted will retain that
area and add an additional 1.03 acres of wetland in the
same area. (Ex. P-14 (Wetland Impact Summary);
Transcript pages 810-811)
328. The project was designed to minimize to the greatest
extent possible the amount of encroachment onto Deer
Creek Wetland # 7, the largest and highest quality
wetland on site. (Transcript page 355) Only 0.18 acres
out of 3.75 acres is impacted. (Transcript pages 812-813)
329. The wetlands in question on the project site are of
limited function and value, having been impacted by
activities unrelated to this project including, but not
limited to, highway construction and construction of a
municipal sewer line. (Ex. E-1; Transcript pages 169-
171, 334-335)
330. The replacement wetlands provided by [Permittee]
will provide the same or superior function and value to
those being impacted as a result of the project.

(Transcript pages 1701-171, 334, 808-810)
12

F.F. Nos. 311, 313319; 324330.

The EHB first determined that Objectors as third-party appellants bore
the burden of proving DEP abused its discretion in issuing the Permit. 25 Pa. Code
§1021.122(c)(3). The EHB next discussed the application of the regulatory
presumption to the facts presented.

The EHB noted the required "alternatives analysis" contemplates an
applicant (i) conduct a search for other locations, i.e., off-site alternatives (25 Pa.
Code §105.18a(b)(3)(ii)(A)); and (ii) determine whether changes can be made to
the project on the proposed site to eliminate or reduce the impact on the wetlands,
i.e., on-site alternatives (25 Pa. Code §105.18a(b)(3)(ii)(B)).

With regard to on-site alternatives, the EHB determined the evidence
did not show any further reduction in size to the project could reduce the
environmental impact on the site while maintaining it as a viable project. Also, the
EHB evaluated DEP's efforts. Particularly significant in this regard was DEP's
determination that Permittee minimized the adverse impacts to the maximum
extent possible; through its two applications, Permittee proposed a total of twelve
on-site alternatives in an effort to reduce the impact on the wetlands; and DEP
required numerous on-site changes to further reduce the adverse impacts, with
which Permittee complied.

With regard to off-site alternatives, the EHB began by noting, any
practicable alternatives that would rebut the regulatory presumption must meet the
13

"basic purpose" of the project. The EHB noted Permittee clearly and succinctly
articulated the project's purpose as a large master planned mixed-use commercial
development. It also justified its need for such a large site. The EHB noted
Permittee conducted an "exhaustive search" for other practicable alternatives by
performing a detailed analysis of 30 parcels. Concluding DEP properly
determined Permittee's "alternatives analysis" was sufficient, the EHB stated:

Not only did [DEP] require [Permittee] to revise its
site plans multiple times to reduce impacts on aquatic
natural resources, including the wetlands[,] but the
acreage of the impacted wetlands was actually decreased
and the largest and best functioning wetland, number 7,
was protected and enhanced. [DEP] also required
[Permittee] to conduct a thorough and complete analysis
of alternative sites that would eliminate or reduce
wetland impacts. The analysis of alternative sites
presented by [Permittee] was questioned extensively by
[DEP] and nothing was accepted at face value.

In fact, we are under [the] distinct impression that
since [DEP] had denied the first application it was not
convinced [Permittee] would undertake the near
Herculean study of alternative sites that it in fact did.
[DEP] knew that a denial of the permit application would
surely be appealed and so it made sure that every avenue
was covered. ...

EHB Adj. at 62. Consequently, the EHB upheld DEP's issuance of the Permit.
14

This appeal by Objectors followed.3 Although Objectors raise an
abundance of points, they basically assign six errors. They assert the EHB erred
in: failing to protect the wetlands by sustaining their challenge; misapplying the
burden of proof; declining to exercise its required de novo review; misinterpreting
the practicable alternatives regulation; determining Permittee rebutted the
presumption that there are practicable "off-site" alternatives; and concluding
Permittee rebutted the presumption that a practicable "on-site" alternative exists.

At the outset, we note that questions of resolving conflicts in the
evidence, witness credibility, and evidentiary weight are within the exclusive
discretion of the EHB, the fact finding agency, and are not matters for a reviewing
court. Leatherwood, Inc. v. Dep't of Envtl. Prot., 819 A.2d 604 (Pa. Cmwlth.
2003). Thus, we will examine, but not weigh evidence because the EHB, as fact-
finder, is in a better position to find facts based on the testimony and demeanor of
the witnesses. Id. In addition, we may not substitute our judgment for that of the
EHB. Id.

V. Importance of Wetlands

Preliminarily, Objectors discuss the environmental importance of
wetlands and assert the EHB's failure to sustain their challenge to the issuance of

3 Permittee initially filed a cross-appeal challenging Objectors' standing to appeal (Dkt.
No. 1045 C.D. 2004). However, Permittee subsequently discontinued that cross-appeal.
Permittee's Br. at 4.
Our review of an EHB order is limited to determining whether the EHB's findings are
supported by substantial evidence and whether constitutional violations or errors of law were
committed. Leatherwood, Inc. v. Dep't of Envtl. Prot., 819 A.2d 604 (Pa. Cmwlth. 2003).
15

the permit removes the only regulatory safeguard protecting the wetlands from
destruction. We disagree.4

This argument fails since the EHB made several findings that
undermine Objectors' assertion. Specifically, the EHB found the wetlands which
will be impacted by the proposed project are of limited function and value. F.F.
No. 329. In addition, the EHB found Permittee would take several important
measures to enhance the area by constructing replacement wetlands of function
superior to the existing wetlands. F.F. Nos. 330-31. The EHB further found
Permittee would preserve wetland number 7, the highest quality wetland on the
site. F.F. No. 328. These findings are supported by the testimony of DEP
biologist Nancy Rackham, and Permittee's ecologist, Patrick Gavaghan.

Reproduced Record (R.R.) at 454a, 499a 664-65a. Objectors presented no expert
evidence to contradict this testimony. Therefore, even if properly preserved below,
Objectors' argument fails.

VI. Burden of Proof/De Novo Review
A.

Objectors next argue the EHB erred by misapplying the burden of
proof. Despite acknowledging that, as third-party appellants, they bore the burden
of proving DEP erred, Objectors assert Permittee also bore the burden before the

4 Chapter 105 regulations contain several provisions that relate to the protection of
wetland resources, including water quality and environmental issues. See 25 Pa. Code
105.18a(b)(1), (2), (4), (5). Objectors did not challenge Permittee's compliance with any of
these regulatory provisions before the EHB. Therefore, Objectors waived this issue. Tri-State
Transfer Co., Inc., v. Dep't of Envtl. Prot., 722 A.2d 1129 (Pa. Cmwlth. 1999). Moreover, as
discussed, this argument lacks merit.
16

EHB since there is a regulatory presumption that a practicable alternative exists.
Objectors contend, unlike third party appeals where no such presumption exists,
any uncertainty here weighs against the permittee, not the challenger.

The applicable burden of proof is set forth in the EHB's regulations,
which state, in relevant part:

In proceedings before the EHB, the burden of
proceeding and the burden of proof shall be the same as
at common law in that the burden shall normally rest
with the party asserting the affirmative of an issue. It
shall generally be the burden of the party asserting the
affirmative of the issue to establish it by a preponderance
of the evidence. ...

25 Pa. Code §1021.122(a). Further, "[a] party appealing an action of [DEP] shall
have the burden of proof ... [w]hen a party who is not the recipient of an action by
[DEP] protests the action." 25 Pa. Code §1021.122(c)(2). Thus, a party protesting
DEP's issuance of a permit has the burden to show, on the record produced before
the EHB, issuance of the permit was arbitrary or was an abuse of discretion.
Concerned Residents of the Yough (CRY), Inc. v. Dep't of Envtl. Res., 639 A.2d
1265 (Pa. Cmwlth. 1994).

After the protesting party produces evidence that issuance of the
permit was erroneous, the burden of production shifts to DEP to justify issuance of
the permit, but only after the protesting party presents evidence showing a
likelihood of environmental harm. However, the ultimate burden of proof remains
at all times with the protesting party. Pennsylvania Game Comm'n v. Dep't of
Envtl. Res., 509 A.2d 877 (Pa. Cmwlth. 1986).
17

Contrary to Objectors' assertion, the regulation creates a rebuttable
presumption that operates at the administrative level, that is, in the proceedings
with DEP to obtain a permit. See 25 Pa. Code §105.18a(b)(3). No language in the
regulation addresses proceedings beyond issuance of a permit by DEP. Id.
Therefore, the regulation does not modify the burden of proof before the EHB.

On appeal to the regulatory tribunal, the EHB, its regulation applies to
place the burden on third-party appellants. See 25 Pa. Code §1021.122(c)(2).
Thus, as the party protesting issuance of the permit, Objectors were required to
come forward with evidence to show, on the record before the EHB, issuance of
the permit was arbitrary or amounted to an abuse of discretion. Leatherwood;
Concerned Residents of the Yough, Inc. The EHB correctly applied that burden
here, and we reject Objectors' arguments to the contrary.

B.

Objectors further assert the EHB erred in failing to conduct de novo
review. Objectors contend the EHB should conduct an extensive review as was
done in Leatherwood after DEP granted a landfill permit. Here, they contend, the
EHB failed to thoroughly evaluate DEP's action.

Objectors correctly assert that, when an appeal is taken from DEP to
the EHB, the EHB is required to conduct a hearing de novo. Warren Sand &
Gravel Co., Inc. v. Dep't of Envtl. Res., 341 A.2d 556 (1975). The EHB is not an
appellate body with a limited scope of review attempting to determine if DEP's
action can be supported by the evidence received at DEP's fact-finding hearing.
18

Id. Rather, the EHB's duty is to determine if DEP's action can be sustained or
supported by the evidence taken by the EHB. Dep't of Envtl. Prot. v. N. Am.
Refractories Co., 791 A.2d 461 (Pa. Cmwlth. 2002) (EHB adjudicates matters in
the first instance; it does not function as an appellate body).

Contrary to Objectors' assertions, however, the EHB properly
exercised its required de novo review here by considering the case anew, and
rendering its decision based upon the evidence it received. Specifically, the EHB
based its decision on the permit application materials submitted to DEP, the
testimony of DEP personnel who reviewed the application, the testimony of
Permittee's team of experts who performed the alternatives analysis, and the
evidence submitted by Objectors. By considering the case anew based upon the
evidence it received, the EHB conducted the required de novo review.

Moreover,
Leatherwood does not support relief here. In that case,
DEP issued a permit to construct and operate a landfill near an airport. Following
an appeal by objectors, the EHB revoked the permit because it was issued without
an analysis of and remedy for a known risk to aircraft in the vicinity of the landfill.
The objectors presented credible expert evidence on the issue, and DEP
acknowledged its fault. We affirmed revocation of the permit.

Here, unlike in Leatherwood, Permittee submitted an extensive
alternatives analysis, which was carefully evaluated by DEP. Based upon its
independent consideration of the evidence, the EHB determined DEP did not abuse
its discretion. Further, unlike the objectors in Leatherwood, the Objectors here
19

failed to produce any credible expert evidence to prove DEP error. F.F. Nos. 251,
317. Finally, DEP does not acknowledge an inadequate review.

VII. Interpretation of the Alternatives Analysis Regulation
A.

Objectors also argue the EHB's interpretation of the alternatives
analysis regulation is flawed because it is inconsistent with prior EHB precedent.
Specifically, Objectors maintain the EHB's adjudication conflicts with its prior
decision in N. Pocono Taxpayers' Ass'n v. Dep't of Envtl. Res., 1994 EHB 449
(1994). This argument fails.

First, N. Pocono Taxpayers' Ass'n, a decision of the EHB, is not
binding on this Court. See, e.g., Dep't of Envtl. Res. v. Pennsylvania Mines Corp.,
519 A.2d 522 (Pa. Cmwlth. 1986) (EHB decisions have no precedential value in
this Court).5

Second, N. Pocono Taxpayers' Ass'n is factually distinguishable.
There, the EHB determined DEP's predecessor agency, the Department of
Environmental Resources (DER), erred in determining an applicant's alternatives
analysis was adequate. The analysis was inadequate because the applicant could
not substantiate its elimination of alternative parcels with supporting data.
Specifically, the EHB stated:

5 We are mindful, however, that while an administrative agency is not bound by its prior
precedent, it must render consistent opinions and should either follow, distinguish or overrule its
own precedent. See Bell Atl. v. Pub. Util. Comm'n, 672 A.2d 352 (Pa. Cmwlth. 1995).
20

For DER to be satisfied that the practicable
alternative site elimination process has been properly
carried out requires the submission of this data to DER
for its review. According to the [applicant's] own
witness who helped it in site selection, that was not done.
On the basis of the failure to submit such data to DER,
we must conclude any decision by DER to issue this
permit was based on an inadequate justification of use of
the site.

1994 WL 131561 at *23 (emphasis added).

Unlike the applicant in N. Pocono Taxpayers' Ass'n, here Permittee
provided DEP with a thorough alternatives analysis in which it evaluated 30
potential sites. Permittee supplied data necessary to determine why it eliminated
alternative sites. Further, DEP questioned Permittee extensively concerning the
adequacy of its alternatives analysis, and Permittee responded in a manner which
satisfied DEP that no practicable alternative existed. Finally, before the EHB,
Permittee presented testimony by its team of experts who performed the
alternatives analysis. These witnesses explained the detailed process to exclude
alternative parcels as impracticable. Because it is factually distinguishable, N.
Pocono Taxpayers' Ass'n is not in conflict with the EHB's decision here.

B.

Objectors further contend the EHB erred in considering Permittee's
alternatives analysis because it was conducted more than five years after the
project site was selected. This argument lacks merit.

21

In
Leatherwood, we addressed a similar timing argument challenging
the competency of evidence supporting the EHB's decision. The applicant
assigned error to consideration of a hazard remedy plan that became available after
DEP issued the initial permit but before the landfill was allowed to open. We
disagreed, stating:

[T]he
EHB
determines from the evidence it
receives whether DEP's action can be sustained. Where
the EHB finds DEP abused its discretion, it may
substitute its discretion for that of DEP and order the
relief requested. ...
Here, information relating to the bird hazard
generated any time before action on Leatherwood's Bird
Control Plan was relevant to the Plan's efficacy.
Because the evidence was relevant, the EHB did not
exceed the scope of its de novo review by considering
evidence which became available after DEP issued the
executory [p]ermit, but before approval of the Bird
Control Plan.

Leatherwood, 819 A.2d at 611-12 (emphasis added) (citations omitted). See also
Pequea Township v. Herr, 716 A.2d 678 (Pa. Cmwlth. 1998) (holding the EHB
may substitute its discretion for that of DEP, and modify DEP's action based on
the evidence before it); Warren Sand & Gravel (affirming the EHB's modification
of permit conditions imposed by DER based on evidence submitted to the EHB).

Based on Leatherwood, in order to raise an objection to the
competency of the evidence, it should appear the information was not available and
used during the permit process before DEP. Id. Here, however, information
concerning the alternatives analysis was available and used during the permit
22

process before DEP. Indeed, Permittee submitted the identical alternatives
analysis to DEP as it did to the EHB. Consequently, Objectors' claim that the
alternatives analysis should be disregarded because it was undertaken after site
selection lacks merit. Moreover, Objectors' additional arguments arising from the
timing of the alternatives analysis address the weight rather than the competency of
the evidence, a matter reserved solely for the EHB as fact-finder. Leatherwood.
For these reasons, we discern no error.6

VIII. "Off-Site" Alternatives

Objectors next contend the EHB erred in determining Permittee
rebutted the presumption that a practicable "off-site" alternative exists. See 25 Pa.
Code §105.18a(B)(3)(ii)(A) (applicant must prove it cannot accomplish its basic
project purpose by utilizing one or more sites that would result in less wetland
impact). Specifically, they assert the EHB erred in: (a) declining to question the
"basic project purpose"; (b) determining the geographic range for off-site
alternatives was not arbitrarily drawn; (c) determining the 100-acre minimum
parcel size requirement was an appropriate screening criteria; (d) failing to
evaluate Permittee's site selection criterion; and, (e) failing to independently

6 Objectors rely on Bersani v. Robichaud, 850 F.2d 36 (2d Cir. 1988), in which the
Second Circuit Court of Appeals upheld the Environmental Protection Agency's (EPA)
application of the "market entry" theory of alternative site availability. However, Bersani does
not compel a different result here. In that case, the EPA found an alternative site was available
when the applicant entered the market, but it became unavailable by the time of permit
application. Id. at 38. In contrast, here the EHB found no alternative site available at any time,
and it therefore was not required to consider a universal rule on the timing of alternative site
availability. Moreover, the Court of Appeals referenced several cases similar to the present
controversy where EPA took a different approach. Id. at 44-45.
23

evaluate the availability of a nearby site currently utilized by one of Permittee's
competitors as a mixed-use commercial development.

A.

Objectors argue the EHB erred in declining to question Permittee's
"basic project purpose," which was necessary to define the realm of alternatives to
be considered. They assert DEP and the EHB afforded Permittee unbridled
discretion in defining the project's purpose, thereby allowing Permittee to exclude
practicable off-site alternatives.

DEP responds the practicable alternatives regulation does not vest it
with authority to review and modify an applicant's basic project purpose; rather, its
power is limited to determining whether an applicant satisfies the regulatory
review criteria. DEP contends, consistent with the plain language of the
regulation, it is the applicant who identifies the project it wishes to build, not DEP.

The "basic project purpose" language is found in both the "off-site"
and "on-site" components of the alternatives analysis regulation. The "off-site"
component states "[t]o rebut the presumption [that a practicable alternative exists],
an applicant ... shall demonstrate ... the basic project purpose cannot be
accomplished utilizing one or more other sites that would avoid, or result in less,
adverse impact on the wetland." 25 Pa. Code §105.18a(b)(3)(ii)(A) (emphasis
added). This regulation requires an applicant demonstrate that its basic project
purpose cannot be accomplished utilizing one or more other sites that would result
in less adverse wetland impact. Because it is the applicant who proposes the
project, it is the applicant who defines its purpose. Although the project purpose
24

cannot be a pretext to exclude undesirable site alternatives, an applicant may
pursue any reasonable definition of project purpose, subject to robust inquiry by
DEP.

While our research reveals no Pennsylvania cases interpreting the
"basic project purpose" language, our interpretation is consistent with federal case
law interpreting the Clean Water Act (CWA)7 and its attendant regulations, which
contain similar permitting requirements for the filling of wetlands.

Federal cases interpreting the "overall project purpose" language8 hold
that the Corps may not manipulate a project's purpose so as to exclude alternative
sites. Rather, the Corps has a duty to take into account the objectives of the
applicant's project. See Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257
(10th Cir. 2004); Sylvester v. United States Army Corps of Eng'rs, 882 F.2d 407
(9th Cir. 1989); Friends of the Earth v. Hintz, 800 F.2d 822 (9th Cir. 1986);
Northwest Envtl. Defense Ctr. v. Wood, 947 F. Supp. 1371 (D. Or. 1996).
"Indeed, it would be bizarre if the Corps were to ignore the purpose for which

7 See 33 U.S.C. §§12511387.

8 Specifically, Section 404 of the CWA, 33 U.S.C. §1344, prohibits filling waters of the
United States, including wetlands, without a permit from the United States Army Corps of
Engineers (Corps) authorizing the fill activity. 33 U.S.C. §1344(a), (d). The Corps may not
issue a fill permit "if there is a practicable alternative to the proposed discharge which would
have less adverse impact on the aquatic ecosystem." 40 C.F.R. §230.10(a). A "practicable"
alternative is one that is "available and capable of being done after taking into consideration cost,
existing technology, and logistics in light of overall project purposes." 40 C.F.R. §230.10(a)(2)
(emphasis added).
Thus, under the federal "practicable alternative" regulation, when investigating
practicable alternatives, the Corps must first determine the "overall project purposes." 40 C.F.R.
§230.10(a)(2); Northwest Envtl. Defense Ctr. v. Wood, 947 F. Supp. 1371 (D. Or. 1996).
25

applicant seeks a permit and to substitute a purpose it deems more suitable."
Louisiana Wildlife Fed'n, Inc. v. York, 761 F.2d 1044, 1048 (5th Cir. 1985).

An issue similar to that raised by Objectors here faced the Ninth
Circuit Court of Appeals in Sylvester. There, the Ninth Circuit responded to an
objector's claim that the Corps impermissibly accepted a developer's defined
purpose for its resort complex as necessitating an on-site golf course. By accepting
the developer's project purpose, the objector argued, the Corps' evaluation of
practicable alternatives was improperly skewed in favor of the developer. The
Court of Appeals rejected the claim, stating:

Obviously, an applicant cannot define a project in
order to preclude the existence of any alternative sites
and thus make what is practicable appear impracticable.
This court in Hintz quite properly suggested that the
applicant's purpose must be `legitimate.' Yet, in
determining whether an alternate site is practicable, the
Corps is not entitled to reject [the developer's] genuine
and legitimate conclusion that the type of golf course it
wishes to construct is economically advantageous to its
resort development. ...

Sylvester, 882 F.2d at 409 (emphasis added). Because the applicant's project
purpose was legitimately drawn, the Court determined the Corps did not have
authority to reject it.

Here, as in Sylvester, we believe Permittee set forth a legitimate
project purpose which was not drawn to exclude practicable alternatives.
Permittee's basic project purpose was to construct a large commercial mixed use
26

center. F.F. No. 122. The EHB determined Permittee adequately explained its
rationale for constructing a large commercial development, stating:

[Permittee] entered Western Pennsylvania at the
request of one its retail clients. It discovered that the
Pittsburgh area was relatively underserved and there were
several national retailers who were either not present or
had a minimal presence. It proceeded to investigate the
market and eventually developed several retail
developments.
At the same time it became convinced that the
Allegheny Valley portion of the market was vastly
underserved from a retail perspective. This is exactly the
same conclusion reached by it[s] competitor ... and
[Objector's expert]. It envisioned a mixed use, master
planned commercial development, of approximately one
million square feet. [Permittee] ... subscribe[s] to the
retail theory that combining different uses, such as retail,
office, and entertainment, in a single commercial center
creates `synergy' between the uses and a successful
development. ...

EHB Adj. at 60. Further, DEP "pushed, prodded, cajoled and otherwise forced"
Permittee to articulate its basic project purpose and justify the size of the
development, and Permittee did so "clearly and succinctly." Id. In contrast,
Objectors failed to prove the project purpose was unreasonably narrow. Because
Permittee set forth and defended a legitimate project purpose, there was no error in
DEP's acceptance of it.

Moreover, Objectors' assignment of error misperceives both the
nature of the inquiry and the process by which issues are resolved. The "basic
purpose" of a project will vary in each case. It is, therefore, a question of fact.
27

These facts are resolved in the first instance by the administrative
agency having expertise in the subject matter, here DEP. On appeal, the facts are
found by a regulatory tribunal which also enjoys expertise in the subject matter.
The fact-finding process before the tribunal embraces the "testing" procedures
commonly found in litigation. These include opportunities for objectors to
confront and cross-examine evidence concerning the criteria used in an alternatives
analysis. Further, objectors may introduce conflicting evidence. All these facets
of the fact-finding process occurred here.

Ultimately, the fact-finding tribunal must decide which evidence to
accept. As here, a determination supported by substantial evidence will not be
disturbed.

B.

Objectors further assert the EHB erred in failing to determine the
geographic range of Permittee's off-site alternatives analysis was arbitrarily drawn.
They argue that, because Permittee could satisfy its project purpose by building its
development within a wider region than that considered in the alternatives analysis,
the "off-site" alternatives analysis is inadequate.

Contrary to Objectors' assertions, the record contains detailed
explanations for Permittee's decision to select northeastern Allegheny County for
its commercial retail development. These include: (i) the area is underserved with
retailers; (ii) consumer demand exists in the area; (iii) national retailers expressed
significant interest in locating stores in the area; (iv) the availability of financial
28

and tax incentives; (v) visibility from major highways; and (vi) proper zoning
conditions for commercial development. R.R. at 611a614a. In light of the
substantial evidence supporting Permittee's legitimate reasons for choosing to
locate its project in northeastern Allegheny County, we discern no error in this
regard.9
C.

Objectors also contend the EHB erred in determining Permittee's use
of a 100-acre minimum size requirement was a reasonable screening criterion.
They argue the existence of demand in the area and the need of a certain size to
obtain Tax Increment Financing (TIF) do not justify use of the minimum size
requirement. This argument overlooks the EHB's findings.

First and foremost, the EHB did not determine the existence of
demand and the TIF justified the 100-acre screening criterion. Rather, the EHB
determined:

The applicant used a minimum 100-acre parcel
size as a screening criterion since it was determined that
it could not develop a large mixed-use, master-planned
commercial development on a smaller-sized parcel given
the topography through the market area, the standard
municipal development requirements and the need for
sufficient leaseable space to pay for normal and routine

9 With regard to the geographic scope of Permittee's off-site alternatives analysis,
Objectors also argue the analysis is flawed because it fails to consider alternatives Permittee
considered in its actual search for development sites. To the contrary, although Permittee
initially examined a wider range of sites throughout Allegheny County, it excluded other areas
based upon its conclusion that northeastern Allegheny County was the most viable because the
market was vastly underserved, and its retail clients expressed interest in the area. See F.F. Nos.
262, 264-65, 275.
29

infrastructure improvements. (Ex. P-3; Transcript page
238)

F.F. No. 322 (emphasis added). Thus, the EHB determined the 100-acre screening
criterion was reasonable based on the topography of the market area, standard
municipal development requirements; and the need for sufficient leaseable space to
pay for routine infrastructure improvements. This determination is directly
supported by the alternatives analysis. R.R. at 1276a-1277a.

In addition, Objectors offered no evidence that a viable retail
development could be accomplished on a smaller parcel in the Upper Allegheny
Valley. Objectors' expert did not identify any specific alternative site he believed
could accommodate Permittee's project. F.F. No. 251. Moreover, Objectors'
expert participated in an alternatives analysis for a competing development located
approximately 1½ miles from Permittee's project site and concluded there were no
practicable alternatives. F.F. No. 242. Also, Objectors' expert opined the
screening criteria Permittee used were "logical and rational." F.F. No. 233.10
Finally, the evidence submitted by Objectors' expert supports the inference that the
100-acre size requirement was a reasonable screening criterion. See F.F. No.
321.11

10 Further, we reject Objectors' argument that, because Permittee constructed retail
developments on smaller parcels in other areas, a smaller project would be viable in the Upper
Allegheny Valley area. This argument overlooks the specific topographic challenges which are
unique to the area. See R.R. at 654; 948a.

11 Objectors also argue the EHB erred in accepting the alternatives analysis because
Permittee eliminated off-site alternatives based upon a perceived risk of mine subsidence. This
argument fails for several reasons. First, no off-site alternative was excluded solely on the basis
of a perceived risk of mine subsidence. Rather, alternative parcels with a risk of mine
(Footnote continued on next page...)
30

D.

Objectors next argue the EHB erred in failing to scrutinize the "raw
data" Permittee utilized to exclude alternative parcels. Based on Permittee's site
selection criteria, Objectors contend, the record does not contain substantial
evidence to support a determination that no practicable off-site alternative existed.
The record refutes this assertion.

In its alternatives analysis, Permittee identified the following site
selection criteria to evaluate alternative sites: major highway proximity, visibility,
feasibility and accessibility, existing land use/human impacts, parcel size and
physical and environmental constraints. R.R. at 1277a-78a.

In conducting its alternatives analysis, Permittee considered 30 sites in
northeastern Allegheny County. F.F. No. 17. It eliminated 16 of the 30 sites on
the ground they were less than 100 acres. R.R. at 1279a. It performed a detailed
analysis of the remaining 14 properties, and determined, with the exception of the
Deer Creek site, each of the parcels failed under one or more of its site selection

(continued...)

subsidence were also excluded because the parcels were not for sale, were not accessible without
land condemnation or were burdened by greater wetland impacts than the chosen site. R.R. at
1279a, 1280a, 1282a.

In addition, in considering whether an alternative is practicable, an applicant may take
into account "costs and logistics." See 25 Pa. Code §105.18a(b)(3). In this regard, Richard
Machak, Woodmont's President of Development Services, testified the costs associated with
mine stabilization are prohibitive. R.R. at 1038a-1042a. Therefore, we discern no error from the
elimination of parcels based upon the risk of mine subsidence.
31

criteria. See R.R. at 1278a-1284a. Permittee concluded the Deer Creek site was
the only practicable alternative. R.R. at 1284a.

Based upon Permittee's "off-site" alternatives analysis, the DEP
biologist who reviewed the analysis opined:

[Permittee] has submitted alternatives analyses that
consider both off-site and on-site alternatives to the
proposed project. ... In response to [our] comments,
[Permittee] expanded the property search to include an
evaluation of smaller parcels, and parcels comprised of
several smaller properties. They have still concluded that
no other suitable properties are available to meet the
project purpose. ... [Permittee] has met the requirements
for the off-site alternatives analysis.

R.R. at 296a. Based upon its review of the off-site alternatives analysis, the EHB
agreed no practicable off-site alternative site existed, stating:

As part of its off-site alternative analysis,
[Permittee] conducted an exhaustive search for other
practicable alternatives that [DEP] just as exhaustively
questioned. [Permittee's] lead real estate consultant ...
who has many years of experience in the Pittsburgh real
estate market, personally identified the 30 parcels
considered in the Alternatives Analysis. As part of its
second application [Permittee] provided an extensive and
detailed analysis of the off-site alternatives. [DEP]
reviewed this analysis and asked follow up questions,
both in various meetings, phone conversations, and
writing.
A group of consultants both compiled and
investigated the Alternatives sites. This group included
the commercial real estate broker, Mr. Edwards; an[]
engineer and expert in transportation, Mr. Raymond
Caruso; a biologist, Mr. Patrick Gavaghan; a construction
32

engineer, Mr. Richard Machak; and a civil engineer, Mr.
Gary Scheffler. Together these consultants spent
hundreds of hours in the field and analyzing the data to
determine, for one reason or another, that none of the
alternatives would satisfy the basic project purpose.

Mr. Edwards personally determined each
property's availability. Since many of the properties
were not on the real estate market Mr. Edwards contacted
the owners directly. Even though the minimum site size
was 100 acres, Mr. Edwards contacted owners of
properties as small as 20 acres to attempt to cobble
several parcels together to create a parcel of sufficient
size. [Permittee] performed a detailed analysis of all 30
parcels. However, it then whittled the list down to
thirteen properties and explored these in even greater
detail. Each failed under or one or more of the site
selection criteria. At the end of the day and after still
more investigation by [DEP] only the [Deer Creek] site
was found to be suitable for the project.

EHB Adj. at 61. The EHB's determination that Permittee conducted an
"exhaustive" search for a practicable off-site alternative is directly supported by
Permittee's off-site alternatives analysis, R.R. at 1278a-1292a, 1297a-99a, 1339a-
1378a, 1453a-1464a, 1519a-1520a, 1545a-46a, and the testimony of its "team" of
experts. R.R. at 648a-49a, 660a-62a., 668a-672a. Accordingly, the EHB properly
examined Permittee's "raw data," and substantial evidence supports its
determination that no practicable off-site alternatives exist.

E.

Objectors also contend the EHB erred in failing to find the "Zamias
site," a nearby site now under construction by one of Permittee's competitors, the
Mills Corporation, is a practicable alternative. Because the Mills Corporation is
33

developing the site as a commercial property, they assert, such a project was
clearly feasible on that site. For several reasons, we disagree.

First, the EHB specifically found Objectors failed to prove any
practicable alternative existed. As noted, the EHB determined Objectors' expert
presented no evidence that any alternative sites were available. F.F. No. 251. In
addition, the EHB found Objectors failed to present testimony by another expert
listed in their pre-hearing memorandum as an expert to testify concerning
Permittee's alternatives analysis. F.F. No. 256. Thus, Objectors produced no
evidence that any site, including the Zamias site, was a practicable alternative.

Further, there is ample record evidence which indicates Permittee
considered the Zamias site, and concluded it was not a viable alternative.
Specifically, Permittee's alternatives analysis indicates Zamias, the owner of the
parcel, was looking for an investor in its project, not to sell the land for another
project. R.R. at 1281-82. Stephen Coslik, Chairman and CEO of the Woodmont
Company, testified Permittee evaluated the Zamias site in 1996, and was advised it
was not available because the owners intended to construct their own mall on the
property. R.R. at 1016-18a. Further, in its alternatives analysis, Permittee
determined a larger section of Deer Creek would be impacted at the Zamias site
than at its chosen site. R.R. at 1282a. Accordingly, there is substantial evidence
that the Zamias site was not available for this project and not a practicable
alternative.12

12 Objectors also challenge the EHB's finding that the proposed project "would have to
be roughly the size it is to successfully compete with the Mills Corporation Project." F.F. No.
(Footnote continued on next page...)
34

IX. "On-Site" Alternatives

Objectors next assert the EHB erred in determining Permittee
presented sufficient evidence to rebut the presumption that "on-site" alternatives
exist that would have less adverse wetland impact. See 25 Pa. Code
§105.18a(B)(3)(ii)(B) (applicant must prove that a reduction in the size and scope
of its proposed project that would result in less adverse wetland impact will not
accomplish basic project purpose). Specifically, they argue the EHB failed to
address whether the scope of the project could be reduced through elimination of
some of its components. Further, Objectors contend the project could be reduced
in size, allowing for consideration of a wider range of alternatives. They rely on
Mock v. Dep't of Envtl. Res.,13 as an example of a more vigorous on-site
alternatives analysis.

Through its two applications, Permittee considered a total of 12
alternative "concept plans" or on-site designs in an effort to minimize the wetland
impact while preserving the project purpose. R.R. at 1324-1335. Permittee used
seven criteria to evaluate alternative on-site designs: (i) highway access and

(continued...)

253. They argue this finding does not justify setting a 100-acre minimum size for potential
alternatives. The EHB, however, did not rely upon this finding in determining the 100-acre
screening criterion was appropriate. Rather, this finding is merely a summary of opinion
testimony offered by Objectors' expert. As noted above, Permittee's minimum acreage criterion
was based upon other factors.
13 623 A.2d 940 (Pa. Cmwlth. 1993) (en banc), aff'd, 542 Pa. 357, 667 A.2d 212 (1995),
cert. denied, 517 U.S. 1216 (1996).
35

visibility; (ii) compliance with requirements of prospective retail tenants such as
adequate parking area; (iii) compliance with municipal regulations; (iv)
compliance with flood plain regulations; (v) economic practicability; (vi)
construction requirements; and (vii) total buildable area. R.R. at 1327a, 1334a.

Permittee evaluated the overall environmental impact of each of the
12 alternatives, with regard to: (i) wetland impact, (ii) stream relocation, (iii)
replacement wetlands, (iv) stream mitigation and (v) culvert length. R.R. at 1335.
Ultimately, Permittee determined its on-site alternatives analysis demonstrated its
chosen concept plan was the least environmentally damaging while still
accomplishing its basic project purpose. Id.

Of further note, Permittee directly responded to DEP's requests after
it deemed Permittee's first on-site alternatives analysis inadequate. The EHB
explained the significant on-site design changes between the first and second
applications, stating:

In its first application, [Permittee's] analysis of
practicable on site alternatives assessed seven conceptual
plans. The evidence shows that [Permittee] was not able
to develop a plan that would not impact some wetland
acreage and still achieve its basic purpose. It proposed
Conceptual Plan No. 7, which would impact a total of
6.10 acres of wetlands.
Following its review of Conceptual Plan No. 7,
[DEP] was not satisfied and required further work on the
part of [Permittee]. In its second application, [Permittee]
proposed five additional conceptual plans. A major
difference in the additional proposals is that they do not
call for the relocation of Deer Creek. [Permittee]
36

proposed Conceptual Plan 8D, which reduced wetland
impacts to 5.89 acres. [Permittee] was also required to
provide 7.16 acres of replacement wetlands, which
exceeds the minimum regulatory replacement rate of 1:1.
25 Pa. Code §105.20a(a)(1).

Even with this submission, [DEP] still required
more on site changes. It required [Permittee] to eliminate
nearly all impacts to Wetland No. 7, the best functioning
wetland on the site. [Permittee] was also required to
provide a wildlife buffer around the largest replacement
wetland. Finally, after [DEP's] central staff became
involved in the permit review, [Permittee] was required
to upgrade its stormwater management plan and to install
infiltration trenches, an additional stormwater control.
Since the flat pad area was reduced from 123 to 107
acres, this should result in less total runoff.
EHB Adj. at 58.

Notably, in its second application Permittee scaled back the size of its
development significantly. In its first application Permittee indicated 123 acres of
buildable area were required to carry out its project. However, in its second
application, Permittee proposed 114 acres, which it ultimately reduced to 107 acres
to incorporate DEP's requests for, among other things, additional riparian buffer
areas, implementation of water quality control facilities and access road revisions.
See F.F. No. 298. In contrast, Objectors produced no credible evidence that a
practicable on-site alternative existed. F.F. No. 317.

Based upon the evidence it received, the EHB agreed that there were
no practicable alternative designs that would eliminate or reduce wetland impacts.
See EHB Op., Conclusion of Law (C.L.) No. 17. The EHB determined, based on
the evidence before it, Permittee rebutted the presumption that a practicable on-site
37

alternative existed. C.L. No. 18. Substantial evidence supports these
determinations. R.R. at 1326a-1335a, 1381a-1389a, 1466a-1492a, 1546a-1550a.

Mock, relied upon by Objectors, does not compel a different result.
There, DER denied the Mocks' application for a permit to fill .87 acres of wetlands
to construct an auto maintenance facility. The denial was based, in part, on the
Mocks failure to minimize negative impact by considering reducing the size of the
project or changing its proposed use. The Mocks appealed, arguing denial
constituted an unconstitutional taking of their property. With regard to on-site
alternatives, the EHB determined nothing in the record suggested the Mocks
considered reducing the size of the project or changing it to a different use. The
EHB further determined the Mocks' proposal to create .38 acres of replacement
wetlands did not compensate for the environmental harm caused by the loss of .87
acres of wetlands. Thus, the EHB upheld denial of the permit. On appeal to this
Court, the sole issue was whether DER's permit denial accomplished a taking. We
held it did not.

Unlike the Mocks, Permittee carefully considered numerous
alternative on-site designs to reduce the wetland impact while still accomplishing
its basic project purpose. Indeed, Permittee considered 12 alternative on-site plans,
which incorporated specific development scenarios suggested by DEP, as well as
scenarios it derived on its own. R.R. at 1334. As recognized by the EHB,

the facts of the present case are a textbook example of
how an applicant should proceed when applying for a
permit under which wetlands will be impacted.

[Permittee's] application underwent intense scrutiny by
the [DEP] and where problems in the application were
38

encountered, [Permittee] proposed and adopted measures
to reduce the environmental incursion to a minimum. ...

EHB Adj. at 59.

Further, unlike the Mocks, Permittee undertook substantial measures
to reduce the overall environmental impact of its proposed project. Specifically,
Permittee proposes to: construct 7.17 acres of replacement wetlands to compensate
for the 5.89 acres being impacted; avoid substantially impacting the most highly
functional wetland on the site; construct a 93-acre conservation easement; create a
wetlands enhancement program to eliminate invasive plant species and plant more
beneficial species; and provide a system to filter out contaminants of water flowing
into Deer Creek. See F.F. Nos. 160, 166, 325, 328, 330, 334.

The EHB determined Objectors failed to produce evidence that any
reduction in size or scope that would still result in a viable project would reduce
impact to the wetlands. As with numerous other assertions advanced by Objectors,
their contentions to the contrary improperly invite a re-weighing of the evidence.
Based upon the evidence presented, Permittee convinced both DEP and the EHB
no practicable on-site alternative existed. Because Objectors' failed to produce
any credible evidence that an on-site alternative existed that would reduce the
impact to the wetlands while still accomplishing the basic project purpose, their
arguments fail.14

14 Objectors also contend the EHB erred in failing to address a "briefing paper" generated
approximately two months before issuance of the permit in which Tim Dreier, Regional Water
Manager of DEP's Southwest Regional Office, stated the project could be reduced in scope.
This argument overlooks the fact that, in the months after the briefing paper was generated,
(Footnote continued on next page...)
39

For the foregoing reasons, we affirm.

ROBERT
SIMPSON,
Judge

(continued...)

Permittee submitted additional information which was sufficient to satisfy DEP's remaining
concerns. F.F. Nos. 309-310; R.R. at 918a-919a. In addition, before the EHB, Dreier testified
he did not personally review Permittee's alternatives analysis; rather, he relied on the opinions of
his staff, including biologist Nancy Rackham, who determined Permittee adequately explored
possible on-site alternatives. R.R. at 503a-504a, 506a, 521a.
40

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Pennsylvania Trout, Trout
:
Unlimited-Penns Woods West
:
Chapter, and Citizens for
:
Pennsylvania's Future,
:

Petitioners

:

:
v.

:
1033
C.D.
2004

:
Department of Environmental
:
Protection and Orix-Woodmont
:
Deer Creek Venture,

:

Respondents

:

O R D E R

AND NOW, this 7th day of December, 2004, the order of the
Environmental Hearing Board is AFFIRMED.

ROBERT
SIMPSON,
Judge