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EPA Proposes Water Quality Standards To Protect Aquatic Life In 3 Sections Of The Delaware River Upstream, Downstream Of Chester, Marcus Hook

On December 14, the U.S. Environmental Protection Agency announced a proposed rule to establish federal water quality standards (WQS) for certain zones of the Delaware River under the jurisdictions of Delaware, New Jersey, and Pennsylvania.

The EPA’s proposed rule includes a designated use that would support the protection and propagation of aquatic life as well as dissolved oxygen water quality criteria to protect that use.

The proposed WQS reflect the latest scientific knowledge on the dissolved oxygen requirements of sensitive aquatic species in the Delaware River, including the federally endangered Atlantic Sturgeon and Shortnose Sturgeon.

“The EPA continues to take strong action to ensure that our Nation’s waters provide suitable habitat for aquatic life,” said EPA Administrator Michael S. Regan. “This proposed rule takes an important step toward protecting endangered species and promoting healthy water ways for the aquatic life that depend on them.”

“The DRBC appreciates the EPA’s partnership in applying world-class science to the complex challenge of improving Delaware River Estuary dissolved oxygen levels,” said Steve Tambini, Executive Director of the Delaware River Basin Commission. “As waterbodies around the country struggle to achieve and maintain measurable water quality improvements that balance ecological needs with economic growth and water affordability, the Delaware River Estuary is a model for federal and interstate collaboration on shared clean water goals. The DRBC will continue to work with the EPA, our state environmental agencies, and stakeholders to plan for the implementation of revised aquatic life use standards proposed in this rulemaking to improve water quality in the Delaware River Estuary.”

WQS are provisions of state, territorial, or authorized tribal law approved by the EPA, or established in federal law by the EPA, that describe the desired uses of a water body and the criteria necessary to achieve and protect those uses.

At their core, WQS form a legal basis for controlling pollutants entering the waters of the United States.

On December 1, 2022, the EPA issued an Administrator’s Determination finding that the current aquatic life designated uses and associated dissolved oxygen criteria in Zone 3, Zone 4, and the upper portion of Zone 5 of the Delaware River (in total, river miles 108.4 to 70.0; approximately from Philadelphia, PA to Wilmington, DE) – last updated in 1967 – do not meet the goals of the Clean Water Act.

The EPA is taking action to correct the deficiencies it has identified and has coordinated closely with the Delaware River Basin Commission and the states of Delaware, New Jersey, and Pennsylvania in the development of today’s proposed rule.

The EPA will accept comments on this proposal for 60 days upon publication in the Federal Register. The Agency will also hold two online public hearings on this proposal.

Click Here to learn more about the proposed rule, public hearings and how to comment.

Background

In April, 2022, the Delaware Riverkeeper Network, joined by Environment New Jersey, PennFuture , Clean Air Council and PennEnvironment, filed a legal petition pursuant to the Federal Clean Water Act urging the federal government to promptly initiate rulemaking necessary to protect aquatic life in the Delaware Estuary.

According to the petition and multiple supporting letters and documents, the DRBC and the four watershed states have failed to recognize that the Delaware Estuary, from Trenton to the top of the Delaware Bay, is supporting maintenance and propagation of resident fish and other aquatic life, as well as spawning and nursery habitat for migratory fish, including the federally endangered Delaware River Atlantic sturgeon.

Similarly, according to the petition and supporting documentation, 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.

Reaction

“Today we thank the U.S. EPA and the Biden Administration for giving priority to the rule of law, the importance of data-driven science, the needs of our communities and River, and the need to take urgent action to help protect the Atlantic Sturgeon of the Delaware River from extinction. Unfortunately, while the EPA took an important step forward, they did not set the numbers as high as the science dictates and the Sturgeon of the Delaware River need,” said Maya van Rossum, the Delaware Riverkeeper and Leader of the Delaware Riverkeeper Network. “The current oxygen standards were written over 55 years ago and while the 3.5 mg/l dissolved oxygen standard helped spur needed river protection progress when it was passed way back in 1967, for decades this standard has been recognized as outdated and un-protective.”

“With today’s announcement, EPA has taken an important first step to intervene where the states and, most critically, the Delaware River Basin Commission (DRBC) have failed to act by requiring essential pollution reductions,” said van Rossum. “Rather than require protective and achievable pollution reduction, the DRBC and its member states succumbed to industry pressure and maintained the outdated dissolved oxygen standard, hoping for river dilution as the solution to pollution rather than cost-effective implementation of known treatment technologies.

“Today, with the leadership of the EPA, we begin the process of considering meaningful oxygen restoration for the Delaware River. It is essential that over the course of the next 2 months, during the public comment period, the EPA take full stock of the science and lifts their standards to the degree necessary to ensure future generations are able to enjoy witnessing a live, healthy and free-swimming Delaware River Atlantic Sturgeon.”

“We are pleased that the US EPA promulgated these new, more protective standards to safeguard sensitive aquatic wildlife in the Delaware Estuary, such as the endangered Atlantic sturgeon,” said Emma Bast, Staff Attorney for petitioner PennFuture. “This is an extraordinary move by the federal agency to step in where regional and state agencies have failed. We are hopeful that during the public comment period the EPA will be open to strengthening these standards in order to fully reflect the science.”

"The Delaware River is arguably the region's best known, most beloved natural resource. Local residents and visitors to the Delaware River want it to be clean and safe for swimming, fishing and the animals that call the river home," added David Masur, Executive Director for the statewide environmental group PennEnvironment. "Today's announcement from the EPA is an important first step towards making that vision a reality."

“The science has been clear since 1967: excess ammonia dumped into the Delaware River causes severe reductions in dissolved oxygen,” said Erik L Silldorff, PhD, the Restoration Director at the Delaware Riverkeeper Network. “Despite renewed efforts in the 1980s and 1990s to reduce these ammonia inputs, it has taken decades to convince politicians and government agencies to require the conventional wastewater treatment process called ‘nitrification’ at the major wastewater facilities in the Delaware Estuary. Today, the EPA finally ends making excuses for industry and commits to greater environmental protection for our River and our communities.”

“Today’s action by the EPA reaffirms the goal of the federal Clean Water Act to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. By proposing these criteria, a course has been charted for a healthier Delaware River, increasing support for a signature species, the Atlantic sturgeon, which has been decimated by human activity. Now we just need EPA to go all the way to ensure full protection of our unique sturgeon.” said Kacy Manahan, Senior Attorney for Delaware Riverkeeper Network.

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