The only issue presented by PennFuture's June 8, 2007 Motion for Summary Judgment and supporting brief was whether DEP was obligated to treat the Broad-leaved Water-milfoil (Myriophyllum heterophyllum) as an endangered plant species because it is listed as “Pennsylvania Endangered" in the regulations promulgated under the Wild Resource Conservation Act. DEP filed a Response to PennFuture's Motion for Summary Judgment on August 8, 2007, which was joined by the Permittee, Marina Commons at Harveys Lake, LLC. DEP argued that it had properly relied on a determination of the Department of Conservation and Natural Resources, transmitted by electronic mail to DEP, that the Broad-leaved Water-milfoil should not be considered endangered in Harveys Lake. PennFuture filed its Reply Brief on August 10, 2007.
The EHB ruled that DEP "acted unlawfully as a matter of law" by failing to consider the Broad-leaved Water-milfoil as an endangered species when applying the state's water quality antidegradation regulations. Finding "little justification for ignoring the administrative process and conducting regulatory duties via e-mails from one employee to another" the Board held that DEP had no authority to rely on a recommended reclassification of the plant in preference to the classification codified in the governing regulations: “The regulation which is currently the law of the Commonwealth defines the Broad-leaved Water milfoil as 'Pennsylvania Endangered.' Unless and until that definition changes, [DEP] is required to treat it as such."
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