OPINION CONCURRING IN PART AND DISSENTING IN PART
COHEN, Member, and BROUGHTON, Chairman,May 24, 1974 — I concur with the order in this matter, but do not agree with the reasoning supporting it. The relevant principles of administrative law require this board to uphold the regulation *147under attack in this case, 25 Pa. Code §109.51, which reads, in pertinent part, as follows:
“(c) All new sources using surface water, and existing sources used for recreational purpose, shall be provided with filtration and disinfection facilities.”
Under section 3 of the Act of April 22, 1905, P. L. 260, as amended, 35 P.S. §711, et seq., a permit from the Department of Environmental Resources is necessary for, inter alia, additional sources of public water supply. Under the provisions of section 1918-A of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. §510-18, the Department of Environmental Resources is given the authority, previously held by the Department of Health, to issue water works permits and stipulate therein the conditions under which water may be served to the public. Under its authority to issue water works permits and stipulate therein the conditions under which water could be served to the public, the department adopted the regulation above referred to.
It is clear from the foregoing that the department has the authority to adopt such a rule and regulation and to require that permits issued for water works be so conditioned. The record indicates that there is a reasonable relationship between the requirement of filtration and the protection of public health in regard to public water supplies. Water of high turbidity reduces the effectiveness of disinfection, thereby increasing the likelihood that pathogenic organisms may escape the disinfection process. This, alone, is a valid reason for adopting the regulation under challenge in this case. The board should not lightly rule a regu*148lation of the Department of Environmental Resources clearly authorized under relevant legislation to be unconstitutional except for compelling reasons. Furthermore, inasmuch as the underlying legislation, supra, clearly authorizes this regulation, it would be necessary to hold such legislation unconstitutional before holding the regulation unconstitutional. The burden is on appellant in this case to establish by clear and convincing evidence that the regulation is unconstitutional. This they have not done.
However, I am persuaded that under the unique circumstances of this case, the impoundment contemplated to be constructed is not a “new source” as that term is used in section 109.1 of the regulation. Section 109.1 of the regulation defines source as “[a] well, spring, cistern, infiltration gallery, stream, reservoir, pond or lake from which, by any means, water is taken either intermittently or continuously for use by the public.” Clearly the stream in this case which supplies the existing impoundment with water for the water supply is a source under this definition. Whether the new impoundment is a new source, given the fact that it is on the same stream, and unlikely to affect in any way the existing quality of the water being now served to the borough, is a highly debatable point. The unique facts of this case impel me to the conclusion that the existing stream is the source of supply in this case and not the proposed impoundment. Had the department exercised its discretion rather than blindly applying the definition in this case, it is clear that the permit would have been granted without the need for filtration. The stream is of low turbidity within the accepted limits of public health authorities in existence at the time the application was made, and the impoundment *149will not increase the turbidity of the water being supplied to the borough. For these reasons, it was incumbent upon the department to look at the definition of source, and decide realistically whether in this case the stream or the impoundment was the source. It is clear to me that had they done so and had they examined the ramifications of the appellant’s application, the department would have concluded that the permit should have been granted. I believe, therefore, that the proposed impoundment is not a new source using surface water, but that the stream in question is the source. I would therefore grant the permit on the basis that it is not a new source contemplated by the regulation. It is emphasized that we are not saying that the same conclusion relative to the application of what constitutes a “source” to be applicable in all cases. This decision relates to the exercise of departmental discretion in applying the definition of “source” and is limited to the unique circumstances of this case.