dissenting.
I dissent. Although there is some emotional appeal to Mr. Justice Flaherty’s majority opinion in this case, there is absolutely no legal basis for the Court’s reversal of Commonwealth Court.
The Pennsylvania Municipalities Planning Code, Section 11005-A provides in relevant part:
... If the record below includes findings of fact made by the governing body, board or agency whose decision or action is brought up for review and the court does not take additional evidence or appoint a referee to take additional evidence, the findings of the governing body, board or agency shall not be disturbed by the court if supported by substantial evidence----
*61253 P.S. § 11005-A. There is no evidence of record that the unnamed tributary of the Lehigh River into which appellee, Pocono Green, Inc., planned to discharge treated effluent runs dry occasionally or that it flows into a pond with no outlet. The record herein reveals that appellee, during the public hearing on its application for preliminary approval of a planned residential development, produced 1) the sworn testimony of a registered professional engineer stating that appellee’s plans for central sewage treatment and disposal were feasible, and 2) a letter from the Department of Environmental Resources (DER) giving preliminary approval to those plans. The residents who spoke at the public hearing regarding the condition of the Lehigh River tributary into which appellee proposed discharging treated effluent were not sworn in as witnesses and were not subject to cross-examination during the proceedings. Thus, it is clear that the determination of the Board of Supervisors, i.e., that the sewage treatment proposal was not feasible because the tributary ran dry at times and ended in a pond with no outlet, was not supported by substantial evidence.1
Additionally, a stream that flows intermittently can indeed serve as a recipient of treated waste, as can a pond with a “detention time of 14 days or more.” See 25 Pa.Code § 95.6(a) Discharges to lakes, ponds, and impoundments; Abraham v. Commonwealth of Pennsylvania, Department of Environmental Resources, 1980 EHB 146 (DER can require “very high degree of treatment” to sewage where receiving stream does not flow year round).
As appellee met its burden of proving that the proposed sewage treatment and disposal system was feasible, appellant, the Board of Supervisors of Kidder Township, abused its discretion in denying preliminary approval to appellee’s application. The DER has the expertise to determine whether or not a permit can be issued to appellee based upon the conditions existing at the site. And, indeed, a *613permit will not issue and the planned residential development will not be constructed if appellee’s plans are in any way inadequate or constitute a threat to the environment. It is not for the Board of Supervisors or for this Court to determine, on the basis of the unsworn statements of lay persons, that a particular sewage treatment and disposal system is not feasible.
Accordingly, I would affirm the decision of Commonwealth Court.
ZAPPALA, J., joins in this dissenting opinion.. A court may take judicial notice of geographical facts; however, the extent of flow or navigability of a given watercourse must "be established by proof." See Brush v. Lehigh Valley Coal Co., 290 Pa. 322, 328, 138 A. 860 (1927).