Home Builders Asso. of Chester, et al. v. Comm. PA, DEP et al., 828 A.2d 446 (Pa. Cmwlth. 2003), 7/9/03:
Note: Affirmed 844 A.2d 1227
The Home Builders Association of Chester and Delaware Counties (Association) is a not-for-profit trade association that represents the interests of homebuilders and contractors who are located primarily in Chester and Delaware Counties. The Association filed suit seeking a permanent injunction and a declaratory judgment against the Department of Environmental Protection (DEP). The Association alleged that it would be harmed by the application of a settlement agreement between the DEP and various parties and a Comprehensive Stormwater Management Policy (Stormwater Policy) issued by the DEP on September 28, 2000.
The Commonwealth Court rejected each of the challenges to Stormwater Policy of the DEP, including a claim that the Policy exceeded any mandates previously established by federal or state law and is in the nature of a regulation that was not properly promulgated. The Court commented that the fact that the Policy now requires a permit where one was not previously required does not make the Policy a regulation and noted that DEP is able to exercise discretion to follow the Policy in an individual case. The Court concluded that the Policy “merely describes a recommended approach for achieving compliance with the existing requirements” and held that the Policy was not a regulation.
The Commonwealth Court also rejected the challenge to a Settlement Agreement to an appeal of an NPDES (National Pollutant Discharge Elimination System) permit for a particular development as binding on unrelated third parties. The Court held that the Settlement Agreement is not subject to the Commonwealth Document Laws and opined that due process rights would only be implicated when and if DEP attempts to impose the terms of settlement on a third party.
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