IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heywood Becker, :

Petitioner :

:

v. : No. 560 C.D. 2017

: Submitted: November 3, 2017

Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: December 1, 2017

Heywood Becker (Becker) petitions for review pro se1from an order 

of the Environmental Hearing Board (Board) dismissing his appeal from the 

Commonwealth of Pennsylvania Department of Environmental Protection’s

(Department) decision that he rerouted a stream channel without a permit and 

 

1 Becker was cited as the trustee for Center Bridge Trust and in his Petition for Review 

states that he is here as a trustee of that trust. He is not represented by an attorney. We have 

already had occasion to determine whether another purported “trust” created by Becker could be 

represented by him pro se. See Straban Township v. Hanoverian Trust, (Pa. Cmwlth., No. 1935 

C.D. 2015, filed Sept. 16, 2016) 2016 WL 4937885. We determined that because Becker was 

the sole beneficiary and trustee of that purported trust, he did not create a valid trust pursuant to 

Section 7732(a)(5) of the Uniform Trust Act, 20 Pa.C.S. § 7732(a)(5), and could represent the 

purported “trust” pro se.
2

caused sediment pollution to waters of the Commonwealth in violation of the 

Clean Streams Law2 as well as the Dam Safety and Encroachments Act (DSEA).

3

On appeal, he contends the Board erred because the channel that he rerouted is not 

a “stream” as defined under those laws. For the following reasons, we affirm the 

Board’s determination that Becker unlawfully rerouted an existing stream channel 

without a permit and caused sediment pollution to waters of the Commonwealth, 

but remand the matter to the Board to fashion a more appropriate remedy.

I.

The Center Bridge Trust (Trust), whose sole trustee is Becker, is the 

former owner of property located at 7072 Upper York Road in Solebury Township, 

Bucks County, Pennsylvania (Property). It is approximately 0.13 acres and 

consists of an uninhabited house with a gravel driveway, as well as a stream that 

traverses the Property with a drainage area for over 250 acres. The stream 

eventually discharges into the Delaware Canal and River.

On June 29, 2011, and April 23, 2012, the Department, through the 

Bucks County Conservation District (Conservation District),

4 conducted

inspections of the Property, after which Earth Disturbance Inspection Reports were 

 

2 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§ 691.1–691.1001.

3 Act of November 26, 1978, P.L. 1375, as amended, 32 P.S. §§ 693.1–693.27.

4 Pursuant to 25 Pa. Code § 102.41(a), “[t]he Department may delegate by written 

agreement the administration and enforcement of this chapter to conservation districts if they 

have adequate and qualified staff, and are, or will be, implementing the program identified in the 

delegation agreement.”
3

issued alleging, inter alia, that the Trust, by depositing gravel within 50 feet of a 

stream bank, rerouted a stream channel without a permit or authorization.5 

Following those inspections, Becker submitted an erosion and sediment control 

plan application to the Conservation District for a project named “Becker Drainage 

 

5 Specifically, the June 29, 2011 Earth Disturbance Inspection Report provides:

1. EARTH DISTURBANCE ON SITE. GRAVEL DRIVEWAY 

INSTALLED THAT TAKES ACCESS OFF OF SR 263 AND 

WRAPS BEHIND HOUSE TO STREAMBANK. GRAVEL HAS 

BEEN DUMPED WITHIN 50’ OF STREAMBANK. 2. 

APPEARS THAT OTHER GRADING WORK DONE AROUND 

HOUSE AND UP TO STREAM BANK. 3. SITE 

DISTURBANCE EXCESS 1,000[SQ.] FT. NO EROSION 

CONTROL PLAN APPROVED, NO EROSION CONTROLS 

INSTALLED. 4. FAILURE TO DEVELOP, IMPLEMENT 

AND MAINTAIN AN ADEQUATE EROSION CONTROL 

PLAN. 5. FAILURE TO INSTALL AND MAINTAIN EROSION 

CONTROLS. 6. FAILURE TO OBTAIN 

APPROVALS/WAIVERS FROM [THE DEPARTMENT] FOR 

ENCROACHMENTS.

(Department Exhibit 2A) (emphasis added). The April 23, 2012 Report provides:

1. STREAM CHANNEL HAS BEEN MOVED WITH HEAVY 

EQUIPMENT. SEDIMENT, DIRT, ROCKS ARE IN STREAM 

CHANNEL. FAILURE TO OBTAIN PERMITS FROM [THE 

DEPARTMENT] AND THE BUCKS COUNTY 

CONSERVATION DISTRICT FOR EARTHMOVING 

ACTIVITIES AND DISTURBANCE OF STREAM CHANNEL. 

2. SITE IS NOT TEMPORARILY STABILIZED. FAILURE TO 

PROVIDE TEMPORARY STABILIZATION. 3. FAILURE TO 

DEVELOP, IMPLEMENT AND MAINTAIN AN 

ADEQUATE EROSION CONTORL PLAN. 4. FAILURE TO 

PREVENT SEDIMENT POLLUTION TO WATERS OF THE 

COMMONWEALTH. NOTICE OF VIOLATION.

(Department Exhibit 2B) (emphasis added).
4

Swale Improvement.” (DEP Exhibit No. 10.) However, because no erosion and 

sediment controls were contained in this application – i.e., silt fence, construction 

entrance, sediment basin, sediment traps, seeding and mulching – and because 

there was no information on how the site would be stabilized, on May 18, 2012, 

the Conservation District issued a letter disapproving the application.

In May 2012, an enforcement meeting between all interested parties 

was held to discuss how the site would be remediated as well as potential civil 

penalties. At that meeting, the parties discussed the lack of stabilization of the 

Property, the unpermitted relocation of the stream channel, and what was needed 

for the site to come back into compliance. As a result of this meeting, Becker was 

to submit an application and plans for the stabilization of the site and the 

restoration of the stream channel, and otherwise bring the site into compliance with 

the applicable statutory and regulatory requirements.

However, because the Conservation District never received an 

application or any plans following the enforcement meeting, on November 2, 2012, 

a follow-up inspection of the Property occurred after which the Trust was cited for:

1. FAILURE TO RESPOND TO PREVIOUS 

INSPECTION REPORTS AND STIPULATIONS OF 

ENFORCEMENT MEETING HELD ON 5/24/12. 2. 

CONSERVATION DISTRICT HAS NOT HAD ANY 

COMMUNICATION WITH LANDOWNER, NOR HAS 

THE CONSERVATION DISTRICT RECEIVED AN 

ADEQUATE[6] EROSION CONTROL PLAN FOR THE 

 

6 Although the Trust submitted an erosion control and sediment plan to the Department 

prior to the enforcement meeting, it was deemed “INADEQUATE for erosion and sediment 

(Footnote continued on next page...)
5

SITE. 3. HEAVY ACCUMULATIONS OF SILT STILL 

REMAIN IN STREAM CHANNEL. DAMAGED SILT 

FENCE STILL REMAINS WRAPPED AROUND 

TREES AND ACCUMULATED DEBRIS. 4. 

FAILURE TO DEVELOP AND IMPLEMENT AN 

ADEQUATE EROSION CONTROL PLAN.

(Supplemental Reproduced Record (S.R.R.) at 234b7) (footnote added).

Significantly, before the Department could issue a compliance order 

based upon the November 2012 inspection report, on December 11, 2012, the

Trust’s ownership in the Property was forfeited by upset tax sale and Peter 

Edwardson (Edwardson) became the owner of the Property.

Purportedly unaware of that upset tax sale, on February 23, 2013, the 

Department then issued a compliance order to Becker and the Trust, directing them

to: (1) stabilize disturbed areas on the Property by, inter alia, applying seed and 

mulch at three tons per acre; (2) implement Best Management Practices (BMP) 

relating to control of each disturbance runoff on the Property; (3) submit an 

application for a permit, including a stream restoration plan, to place the stream 

into its original location and restore the impacted aquatic habitat; (4) submit an 

 

(continued...)

pollution control and does not meet the minimum requirements of the [Department’s] Rules and 

Regulations, Chapter 102 Erosion Control, relating to the Pennsylvania Clean Streams Law.” 

(DEP Exhibit 11, Letter from Bucks County Conservation District dated May 18, 2012.)

7 Because the Department failed to include any form of pagination for the Supplemental 

Reproduced Record, we have assigned the pages their respective numbers.
6

erosion and sediment control plan for all work associated with the restoration plan; 

(5) implement the stream restoration plan; and (6) permanently stabilize the 

Property. Becker appealed that compliance order and a de novo hearing was held

before the Board.

II.

A.

At the hearing, the Department offered the testimony of Lisa Dziuban 

(Inspector Dziuban), who has worked as an environmental protection specialist II 

at the Conservation District since 1985. Inspector Dziuban testified that she 

inspected the Property on June 29, 2011, at the request of Solebury Township’s 

Manager. During that inspection, she observed a stream channel on the Property

with a defined bed and banks. Near that stream channel was evidence of an earth 

disturbance, including earth moving and grading around the back and to the side of 

the house, as well as the installation of a new driveway and gravel piled within 50 

feet of the stream, which could be carried downstream when there was a flood or 

major rain event. She stated that there were no erosion or sediment controls 

installed and/or approved for the earth disturbance work on the Property to prevent 

that from happening.

8 A June 29, 2011 photograph taken of the Property was 

 

8

Inspector Dziuban further explained:

[An erosion and sediment control plan] is a depiction of the site 

prior. It shows different aspects. It shows prior condition and 

what the applicant is proposing as far as grading and earth moving. 

And then it shows the specific erosion controls that are to be 

installed for whatever they’re proposing and that those controls 

meet the requirements of what they’re proposing, depending on 

how much they’re disturbing, depending on if there’s steep slopes, 

(Footnote continued on next page...)
7

entered into evidence corroborating Inspector Dziuban’s testimony that there was a

stream channel on the Property with a defined bed and banks as well as gravel 

piled within 50 feet of it.

Inspector Dziuban then testified that she also inspected the Property 

on April 23, 2012, in response to several complaints “about heavy equipment [on 

the Property] moving a stream . . . .” (N.T. 04/14/2014 at 57.) This time, Brendan 

Ryan (Officer Ryan), a conservation officer with the Pennsylvania Fish and Boat 

Commission since 2006, accompanied her. At the time of the April 2012 

inspection, no permit had been issued for relocating or rechanneling the stream and 

no plan was in place to control erosion and sediment.

During the April 2012 inspection, Inspector Dziuban and Officer 

Ryan observed that the stream channel had been recently moved via heavy 

equipment as evidenced by the presence of large tire tracks. The Property was 

extremely unstable, with mud and loose soil prevalent throughout, and turbid water 

 

(continued...)

depending on if there’s a . . . stream nearby or watercourse nearby, 

if there are wetlands nearby.

* * *

The point of the erosion control plan is to prevent undue 

sedimentation to the waters of the [C]ommonwealth. That’s the 

bottom line.

(N.T. 04/14/2014 at 39, 41.)
8

was present in the Property’s stream channel and eroded banks, which presents a 

danger of pollution to waters of the Commonwealth. Apart from an unmaintained 

silt fence wrapped around a tree, there were no erosion and sediment controls or 

BMPs in place.9

Inspector Dziuban offered testimony and corroborating photographs

demonstrating that there was ample water flowing in the rerouted stream channel

on April 23, 2012, which had a defined bed and bank. She also offered 

photographs and testimony demonstrating that a connected stream channel 25 to 30 

yards upstream from the Property had ample water that was not cloudy, turbid or 

otherwise impacted by sediment pollution. She testified that she conducted her last 

inspection of the Property on November 2, 2012, which was a week or two after

Hurricane Sandy affected the area. She stated that during that inspection, the 

Property was still highly unstable – there was loose soil throughout the site, silt and 

sediment loading in the channel, very muddy conditions, which she considered 

evidence of water in the stream, no erosion and sediment controls, and the silt 

 

9 BMPs are “[a]ctivities, facilities, measures, planning or procedures used to minimize 

accelerated erosion and sedimentation and manage stormwater to protect, maintain, reclaim, and 

restore the quality of waters and the existing and designated uses of waters within this 

Commonwealth before, during, and after earth disturbance activities.” 25 Pa. Code § 102.1. 

Persons proposing or conducting earth disturbance activity must develop, implement, and 

maintain BMPs. 25 Pa. Code § 102.2. These BMPs are required regardless of the size of the 

earth disturbance. 25 Pa. Code § 102.4(b)(1). In addition, measures must be undertaken to 

stabilize the site once earth disturbance activity is completed or when it temporarily ceases. 25 

Pa. Code § 102.22. This involves the restoration or replacement of topsoil or the implementation 

of other measures to amend, seed or mulch the soil to protect it from accelerated erosion and 

sedimentation. Id.
9

fence first observed during the April 2012 inspection was still wrapped around the 

same tree.

B.

The Department also offered the testimony of Frank DeFrancesco 

(DeFrancesco), a compliance specialist in the Waterways and Wetlands program at 

the Department’s Southeast Regional Office. DeFrancesco testified that on March 

19, 2013, he inspected the Property to see if Becker complied with the compliance 

order. During that inspection, he observed that the Property was generally in a 

disturbed state; no erosion and sediment controls or BMPs were in place to 

stabilize the banks of the stream channel. He testified that the relocated stream 

channel on the Property contained water at the time of the inspection, and that 

water was undercutting the bank of the stream channel causing erosion. In some 

areas, the water appeared to be following the path of the original channel instead of 

the path of the relocated channel. During his most recent inspection of the 

Property on April 9, 2014, he observed that there had been some stabilization, but 

it was still inadequate. The Property was generally unstable; all stream channel 

embankments were undercut from water hitting the base of the unstable stream 

channel, causing erosion. The relocated stream channel was being recut by water 

flowing in the path of the original stream channel.

C.

Finally, the Department offered the testimony of Officer Ryan who

testified that he visited the Property with Inspector Dziuban on April 23, 2012, as 
10

well as the next day with a Department biologist by the name of Randy Brown. 

Less formally, he also observed the Property from afar while driving on Route 263.

Officer Ryan testified that when visiting the Property, he observed

that the onsite watercourse had been diverted. He also observed freshly disturbed 

soils immediately adjacent to the channel, which could cause accelerated erosion 

during a rain event and, in turn, turbidity in the water. He explained that 

accelerated erosion is problematic to aquatic life in a watercourse because it 

“causes turbidity in the water[,] which certainly would affect fish life. . . . 

[S]ediment is a pollutant, and sediment as a pollutant is deleterious to fish life.” 

(N.T. 05/08/2014 at 400-401, 407.)

D.

Following the Department’s case-in-chief, Becker then testified about 

the current state of the channel on the Property and the reasons for its relocation. 

As pertinent, Becker testified that the channel was “almost always dry,” and he 

“never believed [it] to be a stream.” (N.T. 05/08/2014 at 488-90.) In support of 

that testimony, Becker presented a calendar at the hearing that he purportedly 

maintained during 2013, which indicates that the channel had water flowing in it 

only six days in 2013. (Id. at 543, 550.) However, when pressed on crossexamination, Becker conceded that he did not visit the site every single day, but 

instead every Saturday, Sunday and Wednesday, as well as “most other days,” and 

any day that it was raining. (Id. at 569-70.)
11

Significantly, while photos taken during the March 19, 2013 

inspection show water flowing in a defined channel on the Property, Becker’s 

calendar does not reflect water being observed on this date, although it does reflect 

water was observed on the following day, March 20, 2013.

Regarding the relocation of the channel, Becker explained that 

although the channel previously had stonewalls on both sides, they were washed 

away by Hurricane Irene in 2011. Because he needed to re-route the channel, he 

engaged

an excavation contractor [to] come on to the property to 

dig a new storm channel because I knew that, when more 

rains came now that the defined channel that had been 

there historically, this stone-laid channel that made these 

two right bends was gone, that water would go anywhere 

seeking its own course.

(Id. at 491.) He further admitted on cross-examination, “the only time. . . I had any 

piece of what might be called machinery on the site was on September 10th when I 

had an ordinary sized backhoe begin to dig a channel.” (Id. at 540.)

III.

Following the hearing, the Department requested from the Board a 

stay because it was in discussions with the current owner of the Property, Peter 

Edwardson, who had also been cited and also filed an appeal with the Board. See 

Edwardson v. Department of Environmental Protection, EHB Docket No. 2014-

029-M (Dec. 7, 2015). The Department stated that these discussions might open a 

path to settlement of both Becker’s appeal and Edwardson’s appeal. For more than 
12

a year, the Board continuously granted extensions to the Department based upon 

the representation that progress was being made on a settlement that would resolve 

both of the appeals. However, this long-promised settlement never materialized.

Finally, on December 7, 2015, the Board dismissed Edwardson’s 

appeal because it was untimely filed. See Edwardson v. Department of 

Environmental Protection, EHB Docket No. 2014-029-M (Opinion, Dec. 7, 2015). 

In that decision, the Board made the following relevant observations:

The Appellant, Mr. Peter Edwardson, filed an appeal of 

the Department’s February 11, 2014 Order, which 

directed Mr. Edwardson to undertake certain restoration 

measures concerning realignment of a stream channel 

located on Mr. Edwardson’s property in Solebury 

Township, Pennsylvania. . . .

Notwithstanding his appeal, Mr. Edwardson complied 

with certain portions of the Department’s Order. On 

January 8, 2015, Mr. Edwardson obtained coverage 

under a [National Pollution Discharge Elimination 

System] general permit for restoration of the stream 

channel, and on April 17, 2015, the Bucks County 

Conservation District approved Mr. Edwardson’s 

Erosion and Sedimentation Control Plan for 

restoration work related to the stream channel.

The Parties subsequently executed a Consent Order and 

Agreement on May 22, 2015 (“CO&A”) to attempt to 

resolve the appeal without further litigation. The CO&A 

set a June 30, 2015 deadline for completion of the stream 

channel restoration. On September 4, 2015, the 

Department inspected the site in question and determined 

that Mr. Edwardson had not completed the work to 

restore the stream channel in accordance with the terms 

of the CO&A.
13

[Mr. Edwardson’s] inability to complete the stream 

restoration work under the CO&A prompted the Parties 

to return to litigation. . . .

The Department did not contest Mr. Edwardson’s 

assertion that he had no legal interest in the property in 

question prior to his purchase of the property in 2013 in a 

tax sale. The Department, in fact, pursued an 

enforcement action against the prior owner of the 

property. According to the Department, prior to the tax 

sale, Heywood Becker, doing business on behalf of the 

Center Bridge Trust, owned the site. In 2011 and 2012 

the Bucks County Conservation District allegedly 

observed Mr. Becker placing gravel in the stream bank 

adjacent to the site as well as his alleged unpermitted 

rerouting of the stream adjacent to the site. These 

activities, according to the Department, constitute an 

encroachment, as defined in 25 Pa. Code § 105.1, and 

were supposedly conducted without a permit required by 

25 Pa. Code § 105.11(a). As a result of these statements 

of the Bucks County Conservation District, the 

Department issued Mr. Becker an Order which he 

appealed to the Board. This appeal is also pending 

before the Board.

The Department believes that Mr. Edwardson’s 

acquisition and ownership of the property in question is 

sufficient to create liability because []Mr. Edwardson has 

not obtained a permit for the operation and maintenance 

of the existing onsite encroachment [on the property he 

acquired in the tax sale in 2013] in violation of 25 Pa. 

Code § 105.11(a) and Section 693.6(a) [sic] of the 

[DSEA], 32 P.S. § 693.6(a).[] Mr. Becker allegedly 

rerouted the stream prior to Mr. Edwardson’s acquisition 

of the property, and this activity, according to the 

Department, constitutes the “existing onsite 

encroachment.”
14

Edwardson v. DEP, EHB Docket No. 2014-029-M (Opinion, Dec. 7, 2015) 

(citations omitted, emphasis added). The Board’s dismissal of Edwardson’s appeal 

meant that the Department’s compliance order was final.

Soon thereafter, the Board lifted the stay in Becker’s appeal and once 

again set a schedule for the filing of post-hearing briefs. While the Department 

filed its brief on January 13, 2016, the day prior, Becker filed a motion to reopen 

the record to introduce what he argued was newly discovered evidence that would 

moot the allegations in the Department’s compliance order. Specifically, Becker

claimed that Edwardson had told him that a staff person of the Department had 

been on the site recently, and had stated to Edwardson that the stream channel at 

issue had been stabilized and there appeared to have been no man-made changes to 

the channel. Ultimately, on January 21, 2016, the Board denied the motion, after 

which Becker filed a motion for reconsideration, which was also denied.

On February 11, 2016, Becker filed a request to certify those two 

orders for interlocutory appeal as well as a continuance request for filing his posthearing brief. The Board denied both requests. (See R. Item Nos. 21 & 22.) 

Becker then filed a petition for review with this Court, which was quashed on 

December 19, 2016, because it was not taken from a final, appealable order and the 

Trust did not satisfy the requirements for an appealable collateral order. See 

Becker v. Department of Environmental Protection, (Pa. Cmwlth., No. 401 C.D. 

2016, filed Dec. 19, 2016) 2016 WL 7335827.
15

Finally, on April 10, 2017, the Board issued a decision and order 

dismissing Becker’s appeal, concluding that a regulated stream exists on the 

Property as the term “stream” is defined under Pennsylvania law, and that the 

alleged violations were committed. Notwithstanding Becker’s continuous 

objection that the Trust was not, in fact, the present owner of the Property, the 

Board concluded that “[t]he Department has the authority to order him to abate the 

nuisance regardless of his relationship to the property.” (Board’s Decision at 31.) 

This appeal followed.10

IV.

On appeal, Becker does not dispute the alleged violations cited in the

Department’s compliance order, per se. Rather, he only contends that the Board 

erred when determining that the Department had authority to regulate his alleged 

conduct with regard to the channel on the Property because the channel is not a 

“stream” as defined under Pennsylvania law.

Under the Clean Streams Law and its regulations promulgated at 

Chapter 102 of Title 25 of the Pennsylvania Code, the Department has the 

authority to issue orders to prevent the pollution of waters of the Commonwealth, 

which are defined very broadly to include, among other things, “any and all rivers, 

streams . . . or parts thereof.” Section 1 of the Clean Streams Law, 35 P.S. § 691.1; 

 

10 “Our scope of review of an order of the Board is whether the Board committed an error 

of law or a constitutional violation, or whether any necessary findings of fact are not supported 

by substantial evidence.” The Ainjar Trust v. Department of Environmental Protection, 806 

A.2d 482, 487 (Pa. Cmwlth. 2002).
16

see also 25 Pa. Code § 102.1 (defining “Waters of this Commonwealth” as 

“Rivers, streams, creeks, rivulets, impoundments, ditches, watercourses, storm 

sewers, lakes, dammed water, wetlands, ponds, springs and other bodies or 

channels of conveyance of surface and underground water, or parts thereof, 

whether natural or artificial, within or on the boundaries of this Commonwealth.”).

Section 401 of the Clean Streams Law further provides:

It shall be unlawful for any person or municipality to put 

or place into any of the waters of the Commonwealth, or 

allow or permit to be discharged from property owned or 

occupied by such person or municipality into any of the 

waters of the Commonwealth, any substance of any kind 

or character resulting in pollution as herein defined. Any 

such discharge is hereby declared to be a nuisance.

35 P.S. § 691.401. Pollution under the Clean Streams Law includes sediment 

pollution. See Leeward Construction v. Department of Environmental Protection, 

821 A.2d 145, 147 (Pa. Cmwlth. 2003) (“Sediment-laden runoff is defined as 

pollution in Section 1 of The Clean Streams Law. . . .”).

The DSEA, similar to the Clean Streams Law, provides the 

Department’s statutory authority for Chapter 105 regulations governing water 

obstructions and encroachments, the scope of which is broadly delineated to 

include “[a]ll water obstructions and encroachments . . . located in, along, across or 

projecting into any watercourse, floodway or body of water, whether temporary 

or permanent.” Section 4 of the DSEA, 32 P.S. § 693.4 (emphasis added). The 

DSEA defines a “Watercourse” or “stream” as “[a]ny channel of conveyance of 

surface water having a defined bed and banks, whether natural or artificial, with 
17

perennial or intermittent flow.” Section 3 of the DSEA, 32 P.S. § 693.3 

(emphasis added). The DSEA’s state-level permitting requirements apply in an 

equally comprehensive fashion. See id. at § 693.6(a) (“No person shall construct, 

operate, maintain, modify, enlarge or abandon any dam, water obstruction or 

encroachment without the prior written permit of the [Pennsylvania Department of 

Environmental Protection].”); id. at § 693.3 (defining “water obstruction” to 

include any pier, wharf, abutment or any other structure located in, along, across, 

or projecting into any watercourse).

Focusing on the clause “with perennial or intermittent flow” contained 

in the DSEA’s definition for “stream,” Becker contends that the channel on the 

Property does not fall within the Department’s regulatory authority. According to 

Becker, this is because evidence and testimony offered by him to the Board, which 

it allegedly “disregarded,” demonstrates that “[n]o flowing water was observed in 

the subject swale except immediately after a very large rain event. It was an 

extraordinary event when water was flowing. Otherwise, there was no flowing 

water.” (Becker’s Brief at 12.)11

Contrary to his assertion, the Board’s decision demonstrates that it did 

not disregard Becker’s testimony or the calendar he submitted, but rather its

determination was grounded in witness credibility, weight of the evidence, and the 

 

11 In support of this contention, Becker reasserts that the Board should have excluded

certain photographs because they were acquired through an unconstitutional search of the 

Property. However, that contention must fail because our Supreme Court has refused to apply 

the exclusionary rule in the civil context. See Kerr v. Pennsylvania State Board of Dentistry, 960 

A.2d 427 (Pa. 2008).
18

resolution of evidentiary conflicts. Such determinations are within the Board’s 

sole discretion. Brockway Borough Municipal Authority v. Department of 

Environmental Protection, 131 A.3d 578, 587 (Pa. Cmwlth. 2016). Moreover, as 

the Board thoroughly and cogently explained:

Becker vigorously contends in his post-hearing brief that 

the channel on his property is at most an ephemeral 

stream. He argues that unless a stream is intermittent or 

perennial it is not regulated by the Department. To 

Becker, this means that there must be observable water in 

the channel for certain threshold numbers of days per 

year. Becker has not offered any legal argument on the 

ways in which ephemeral streams differ from intermittent 

or any other streams under Pennsylvania law. Instead, he 

cites to various pieces of scientific literature and offers 

that ephemeral streams flow even more infrequently than 

intermittent streams – having “measurable discharges” 

less than 10% of the time. Those features possessing 

measurable discharges 10% to 80% of the time are 

intermittent streams, according to Becker, and those 

possessing measurable discharges more than 80% of the 

time are perennial.

After viewing the evidence presented at the hearing on 

the merits, we agree with the Department that an 

intermittent stream regulated under the laws of this 

Commonwealth exists on the site. Evidence derived 

from the Department and Conservation District 

inspections, including photographs and the testimony of 

the inspectors, shows a channel of conveyance of surface 

water with a defined bed and banks and intermittent flow.

[Inspector] Dziuban of the Conservation District 

observed a channel with defined bed and banks, albeit 

without flow, during her June 2011 inspection before the 

site was disturbed. Subsequent inspections reveal 

observable water flowing in the stream channel on April 

23, 2012, March 19, 2013, and April 9, 2014. During the 

April 23, 2012 inspection, both [Inspector] Dziuban and 
19

Officer Brendan Ryan of the Fish and Boat Commission 

observed ample water flowing in a channel with a 

defined bed and bank on the site. In addition, there was 

water flowing in the connected stream channel 25 to 30 

yards upstream on the adjacent property. There was also 

evidence of water having flowed in the stream channel at 

the time of the November 2, 2012 inspection due to the 

presence of sediment load in the channel and overall 

muddy conditions. There was also ample water flowing 

in the defined bed and banks of the stream channel 

during the Department’s inspection on March 19, 2013. 

Water was undercutting the banks of the relocated 

channel causing erosion. The water in some areas 

appeared to be following the path of the original stream 

channel instead of the path of the relocated channel. 

Water can also be observed in the defined stream channel 

during the Department's April 9, 2014 inspection and 

there was also evidence at that time of water having recut 

the channel.

Becker asserts that the Department and Conservation 

District just happened by coincidence to observe the 

channel soon after rain events. Becker counters that he 

observed the property continuously in 2013 to document 

the days on which the channel had water flowing in it. 

He presented a calendar at the hearing that he maintained 

during 2013 where he has indicated the days on which he 

observed flow. He testified that the channel had water 

flowing in it only six days in 2013. However, when 

pressed on cross-examination Becker conceded that he 

did not visit the site every single day. He stated he 

visited the site every Saturday, Sunday, and Wednesday, 

as well as “most other days,” and any day that it was 

raining. However, we are not convinced of the 

calendar’s accuracy. For instance, photos taken during 

the Department’s inspection on March 19, 2013 show 

water flowing in a defined channel on the property. 

Notably, Becker’s calendar does not reflect water being 

observed on this date, although it does reflect observed 

water on the following day, March 20. Accordingly, we 

cannot view Becker’s calendar as an accurate 

representation of when water was present in the channel 

during 2013.
20

Based on the evidence presented, we conclude that the 

channel at issue on Becker’s property satisfies the 

definitions of a regulated stream under the Clean Streams 

Law and the Dam Safety and Encroachments Act. The 

stream on Becker’s property is a channel of conveyance 

of surface water with defined bed and banks and 

intermittent flow.

(R. Item No. 26, Board’s April 10, 2017 Opinion at 16-18) (citations omitted).

Accordingly, it is clear that substantial evidence supports the Board’s 

determination that the channel on the Property constitutes a “stream” under the 

Clean Streams Law and the DSEA.

V.

Finally, Becker contends that the Board cannot require him to make 

corrections on the Property because it is undisputed that the Trust was no longer

the Property’s owner when the compliance order was issued. To this, the 

Department cites to numerous cases supporting the proposition that a subsequent 

transfer of property does not eliminate the liability of the person who creates a 

nuisance on the property. See, e.g., Ryan v. Department of Environmental 

Resources, 373 A.2d 475, 476 (Pa. Cmwlth. 1977) (requiring a former tenant of a 

property to abate a nuisance condition when there was a negotiated consent order 

with the owner of the property to allow him to enter that property and perform the 

work). While that may be so, that does not mean that an agency – or court for that 

matter – can effectively force a party to trespass when that property’s owner has 

not given consent and/or has not participated in the proceedings.
21

Accordingly, because the record demonstrates that separate 

compliance orders have been issued against Becker, as sole trustee of the Trust, 

and Edwardson, and it is unclear what corrections have already been made by 

Edwardson, the Board’s order is affirmed but we remand the matter to the Board 

for the limited purpose of either imposing on Becker an alternative remedy – e.g.,

imposing on him the cost of remediation – or obtaining permission from 

Edwardson to permit the work to be done, as well as coordinating enforcement of 

the two separate, final orders.

__________________________________

DAN PELLEGRINI, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Heywood Becker, :

Petitioner :

:

v. : No. 560 C.D. 2017

:

Department of Environmental :

Protection, :

Respondent :

O R D E R

AND NOW, this 1

st day of December , 2017, it is hereby ordered that 

the order of the Environmental Hearing Board dated April 10, 2017, is affirmed and 

the matter is remanded for further proceedings consistent with this opinion.

Jurisdiction relinquished.

__________________________________

DAN PELLEGRINI, Senior Judge