The validity of the permit, which is required under the Clean Water Act, was to be the subject of a highly unusual “en banc” hearing by The Environmental Hearing Board (EHB) in Harrisburg next week. Buckingham and Solebury Townships as well as the Delaware Riverkeeper, as Plaintiffs, have challenged the permit, which was issued in 1999. By having the permit rescinded, PennDOT maintains that a continuation of the legal proceedings is unnecessary as the outcome would be moot. In effect, they argue that the result would be the same as if they had lost the case and have asked the townships and the Riverkeeper to withdraw the complaint.

For months, the plaintiffs had maintained that they had both a strong cause of action and the backing of previous decisions of the EHB to support their position. The plaintiffs contended that the “401” permit had been issued incorrectly and should be voided. Despite their extensive attempts to convince the EHB otherwise, it is apparent that PennDOT felt that they could not win and, facing a loss that would have deeply embarrassed both PennDOT and DEP, abandoned the efforts to defend their actions. It has been speculated that the decision to rescind the permit was in large measure a result of the current leadership not being willing (nor should they be) to take the blame and responsibility for the errors in process and judgment of their predecessors.

Although “401” permits are but one step in the permitting process required by The Clean Water Act (CWA), they are among the most important. Section 401 of the CWA is designed to protect and enforce water quality standards and requires that "any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities, which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate". Thus “401 permits” are required before the requisite “105 permits” (for water obstructions and/or changes to the natural flow of a waterway) and “404 permits” (for wetland disturbances) may be considered.

During the conversation informing Buckingham Township’s attorney, Robert Sugarman, that they intended to vacate their permit, PennDOT’s representative once again asserted that they are prepared to do a full evaluation of the Alternative Plan for US 202. Secretary of Transportation, Allen D. Biehler, P.E. had previously indicated that the plan, which was prepared by SmartMobility of Vermont for Bucks County Neighbors for Preservation, would receive proper consideration. At the State Transportation Committee Hearings on September 26, 2003, Secretary Biehler indicated that he was aware that the Alternative Plan represented a conceptual effort and that it should not be considered as a fully engineered study.

The willingness of PennDOT to evaluate and compare the Alternative Plan is a very positive sign for those seeking rational solutions to the region’s transportation problems. It also raises a number of interesting issues. Foremost, it will obviously be impossible to properly compare the Alternative Plan and the expressway because of the differing time periods in which the traffic counts for the two proposals were done. For such a comparison to have any weight will require that the expressway projections be recalculated using both new traffic counts and modern modeling tools. Given that there were significant manual modifications to the output of the original model the new expressway projections should prove to be most interesting.

In addition, the Executive Director of the Delaware Valley Regional Planning Commission (DVRPC) has publicly acknowledged that the expressway will have, at best, a short term impact on congestion along the 202 corridor. In fact, DVRPC no longer lists the project as a congestion relief project but rather has listed it on the Transportation Improvement Plan (TIP) under the category of “Fuels Growth”. With the acknowledgement that the expressway will “fuel growth”, the induced traffic that it generates will now have to be included for the first time and is likely to severely alter the original projections. DVRPC, PennDOT and the Federal Highway Administration had all discounted and ignored the potential growth impacts of the expressway during the original study. That is no longer possible if the promised evaluation is to be unbiased.

Other factors that were brought to the attention of the authors of the original study, but ignored, will have to be properly considered if the evaluation is to have merit. These include, but are not limited to, the gross manual manipulation of the study data, the underestimation of the impact of the commercial growth of the PA 611 and PA 309 corridors, and the residential growth influencing PA 313 and PA 152. When these items are included, rather than avoided, the secondary impacts to surrounding communities will become as obvious as they are severe.

As positive as recent events have been for those opposing the expressway, guarded optimism is in order rather than celebration. PennDOT retains the right to refile for the needed permits and has indicated that they intend to proceed with final design and property acquisition for the expressway. How they can move forward with one plan while claiming to study alternatives in an unbiased manner is a mystery to those prone to rational thought and it may take months for the situation to become clear. In the meantime, those who oppose the construction of the expressway would do well to maintain their diligence.

It is the ICP’s belief that it is now more important than ever to work with our elected officials and our neighbors to develop real solutions to real traffic problems. We are hopeful that all sides can come together to thoughtfully and thoroughly consider the options that are available. To do anything less would be to abdicate a very real responsibility to the future generations that will come to call the Central Bucks County region their home.