On December 1, a coalition of environmental groups announced the U.S. Environmental Protection Agency has granted a petition to begin the process of promulgating new water quality standards under Section 303(c)(4)(B) of the federal Clean Water Act for the Delaware River estuary.

This decision formally recognizes the need for greater oversight and protection of aquatic life in the Estuary, including the federally endangered and genetically unique Atlantic sturgeon population.

Click Here for a copy of EPA’s response to the petition.

Originally filed in April of 2022 by Delaware Riverkeeper Network, Clean Air Council, Environment New Jersey, PennFuture, and PennEnvironment, the petition urged the federal government to promptly initiate rulemaking necessary to protect aquatic life in the Delaware Estuary.

The petition claims that the Delaware River Basin Commission and the four watershed states have failed to recognize that the Delaware Estuary, from Trenton to the top of the Delaware Bay, is being used for maintenance and propagation of resident fish and other aquatic life, as well as for spawning and nursery habitat for anadromous fish, including the federally endangered Delaware River Atlantic sturgeon.

Similarly, the DRBC has failed to take action to institute water quality criteria essential for protecting existing uses by critical species such as the Atlantic sturgeon.

The DRBC and the four watershed states have been repeatedly and formally urged to recognize these aquatic life uses and  upgrade associated water quality protections, particularly dissolved oxygen standards.

Until now, these requests have failed to spark the necessary protective actions required under the Clean Water Act to preserve the health of the Estuary.

In the determination, the EPA stated:

“EPA’s evaluation of available information . . . indicates that “propagation of fish” is attainable in the specified zones of the Delaware River Estuary. Additionally, the currently applicable dissolved oxygen criterion for these zones is not sufficient to protect propagation throughout the specified zones.

“Accordingly, EPA is determining, pursuant to [Clean Water Act (CWA)] Section 303(c)(4)(B) and 40 CFR 131.22(b), that: 1) revised aquatic life designated uses that provide for propagation of fish, consistent with CWA Section 101(a)(2) and 40 CFR 131.20(a); and 2) corresponding dissolved oxygen criteria that protect a propagation use, consistent with 40 CFR 131.11, are necessary for zone 3, zone 4, and the upper portion of zone 5 (in total, river miles 108.4 to 70.0) of the Delaware River Estuary, to meet the requirements of the CWA.”

This decision comes on the heels of a rally to save the River’s Atlantic Sturgeon at Philadelphia City Hall, hosted earlier this month by the Delaware Riverkeeper Network and partner organizations: Green Amendments For The Generations, Waterspirit, Saddlers Woods Conservation Association, Food & Water Watch, Clean Water Action, and Brandywine River Restoration Trust.

The rally called on the DRBC, EPA, U.S. Army Corps of Engineers, and the National Marine Fisheries Service (also known as NOAA Fisheries) to take accountability for their lack of sturgeon oversight and protection.

“EPA’s decision to grant our petition is powerful and important and may be a last best hope for saving the genetically unique Atlantic Sturgeon of the Delaware River from the lack of oxygen so severely compromising their continued existence,” noted Maya van Rossum, the Delaware Riverkeeper and Leader of the Delaware Riverkeeper Network. “We have been advocating for decades that our governmental agencies, including the DRBC, have failed to prioritize water quality and river protections essential to save our genetically unique population of Atlantic sturgeon. It is extremely rare that EPA grants a petition of this kind. EPA’s agreement that the DRBC has demonstrated an unwillingness to do the job necessary is both a powerful repudiation of the failed DRBC strategy and an acknowledgement of the perilous status of our Atlantic sturgeon. Many told our coalition not to bother petitioning the federal government, but the sturgeon need champions willing to pursue every path essential to protect them, as do our human communities who depend upon a healthy Delaware River. This victory is a vindication of the power of our dedication.”

“EPA's decision to protect the lower Delaware is a long-awaited victory for Philadelphians and neighboring communities. We look forward to cleaner, safer water for the many residents who enjoy this critical waterway and the wildlife the river supports,” added Joseph Otis Minott, Executive Director and Chief Counsel, Clean Air Council.

“The EPA made the right decision by recognizing that improvements to the lower Delaware River’s water quality supports all stages of aquatic life—not only for sensitive wildlife populations like the Atlantic Sturgeon, but also for our communities that enjoy the river,” stated Jessica O’Neill, Senior Attorney, PennFuture. “By granting our petition, EPA is following both the letter and the spirit of the Clean Water Act to protect and maintain our nation’s waters.”

“The Delaware River is undoubtedly one of the region’s greatest outdoor resources and natural places, and Delaware Valley residents from all walks of life want it protected and restored,” noted David Masur, Executive Director, PennEnvironment. “PennEnvironment applauds the EPA because our nation’s environmental cops are doing whatever it takes to protect this beloved waterway and the wildlife that make the Delaware River their home.”

Click Here for a copy of EPA’s response to rulemaking petition.

Click Here for a copy of EPA’s determination to DRBC, DEP, Others.

To learn more about ongoing efforts to protect the Atlantic Sturgeon, please visit the Save The Atlantic Sturgeon website.

Delaware River Basin Commission Reaction

The Delaware River Basin Commission issued this response to EPA granting the rulemaking petition--

“The Delaware River Basin Commission (DRBC) has received a copy of EPA's determination in response to a Petition filed by a group of non-governmental organizations. Staff is reviewing the EPA response with the Commission members and counsel.  

“The Petition sought to bypass ongoing DRBC processes and compel EPA to commence a separate action to revise water quality standards for the protection of aquatic life in a portion of the Delaware River Estuary.

“Because of the significant progress DRBC has already made – working in close collaboration with EPA and state co-regulators – to update the Estuary aquatic life use standards, the Commission viewed the Petition as unnecessary. (See DRBC letter to EPA, October 2022; pdf)

“Nevertheless, DRBC respects the Administrator's determination and welcomes EPA's continued engagement with DRBC in this effort. 

“EPA's response commends DRBC and its member state agencies for the significant water quality improvements realized in the Estuary. 

“EPA also recognizes the value of foundational science performed by DRBC, including to demonstrate that propagation throughout the Estuary is attainable, and the commitment by DRBC and the Estuary states to update the standards.

“EPA acknowledges that the timeline for establishing new standards will be accelerated by the "readily available information that DRBC and other stakeholders have generated."

“The EPA also makes clear it, "acknowledges and appreciates DRBC's and your states' commitment to updating the WQS for the specified zones of the Delaware River Estuary."

“Priority actions by the DRBC to revise the Estuary water quality standards to meet Clean Water Act goals are well underway.

“By resolutions adopted unanimously by the Commission's member states and the United States, the Commission has committed substantial resources over several years to establish the scientific foundation and conduct rulemaking for new standards through a transparent and collaborative process.

“The body of scientific work that DRBC has delivered supports the inclusion of fish propagation (by multiple species, including the endangered Atlantic Sturgeon) as a designated aquatic life use throughout the Estuary.

“DRBC-led science also has established the foundation for the development of new dissolved oxygen criteria to support this use.

“A summary of DRBC's plan for revising the Estuary water quality standards, along with key technical support documents and procedural records, are available on this webpage.

“While EPA's decision has the potential to create a duplicative regulatory process, the DRBC is committed to continuing to work jointly with EPA and state co-regulator agencies in Delaware, New Jersey and Pennsylvania to develop water quality standards using sound science to meet the goals of the Clean Water Act and the Delaware River Basin Comprehensive Plan.

“DRBC is equally committed to doing so through a transparent process that engages all concerned stakeholders.

“The Commission has a successful 61-year history of working collaboratively and delivering regulatory policy to protect and significantly improve water quality in the interstate waters of the Delaware River Estuary and is committed to continuing this critical work.”  

Click Here for more information from DRBC on this issue.

NewsClip:

-- WHYY: EPA Pushes For More Pollution Controls In Delaware River To Protect Endangered Atlantic Sturgeon

[Posted: December 1, 2022]

12/5/2022