The federal government may take over an upgrade of water-quality standards in the Delaware River estuary after accusing an interstate commission and three of its member states – including Delaware – of moving too slowly to protect fish in the river.
The U.S. Environmental Protection Agency surprised and delighted environmentalists on Dec. 1 when it said it will begin the process of raising the “designated use” of a 38-mile stretch of the urban river between Wilmington and Palmyra, NJ, and of increasing the concentration of oxygen in the water so that fish are better able to migrate and breed.
The agency issued a “determination” that the current designated use of the “maintenance” of fish populations does not do enough to protect fish as required in the federal Clean Water Act of 1972. It also said that the existing requirement for dissolved oxygen, a standard that has been in place since 1967, isn’t high enough to allow for the propagation of all fish species, especially the critically endangered local population of the Atlantic sturgeon.
The EPA’s action was in response to a legal petition in April by five environmental groups which urged the agency to begin its own rulemaking on the grounds that the Delaware River Basin Commission was taking far too long to study the issue and issue recommendations.
“It is extremely rare that EPA grants a petition of this kind,” said Maya van Rossum, leader of Delaware Riverkeeper Network, a nonprofit that was one of the petitioners. “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 acknowledgment of the perilous status of our Atlantic sturgeon.”
In September, the DRBC released long-awaited results of a five-year study into how the dissolved oxygen standard in the estuary could be raised to allow for an upgrade in its designated use. The interstate regulator – which represents the water interests of Delaware, New Jersey, Pennsylvania and New York plus the federal government – concluded that the improvements would be achievable if nine wastewater treatment plants along the urban river were required to reduce their discharges of oxygen-depleting ammonia – which is left over when the plants process human waste.
Environmentalists have long accused the DRBC of dragging its feet in studying how or whether to raise the designated use of the river’s urban section. They argue that persistently high discharges of ammonia by the plants represent unfinished business in the decades-long cleanup of the river.
“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 acknowledgment of the perilous status of our Atlantic sturgeon.”Maya van Rossum, leader of Delaware Riverkeeper Network
The DRBC said in September it would begin rulemaking to implement the upgrades, and predicted that process would be finished by March 2025. But that was too late for EPA, which said it would propose its own rule over the next 12 months, calling that period a “reasonable timeframe.”
In a letter to DNREC Secretary Shawn Garvin, the heads of the New Jersey and Pennsylvania environment agencies, and the DRBC's executive director, Steve Tambini, the EPA recognized “significant” water-quality improvements resulting from work by the commission and its state partners over the last half-century.
But it said the current standards for designated use and dissolved oxygen don’t recognize the reality that the river has been used for some fish propagation for some 20 years.
“The applicable aquatic life designated uses and corresponding dissolved oxygen criterion in the specified zones of the Delaware River estuary must be revised to protect propagation of resident and migratory fish species,” the EPA letter said.
Garvin said in a statement on Tuesday that he hopes the two agencies will collaborate in setting a new water-quality standard.
“The Delaware River Basin Commission – of which Delaware is a member – has taken leadership of the critical issue of upgrading the designated use of the Delaware River estuary from the beginning, but has seen the process delayed along the way,” he said.
“Now, the DRBC is back on track for finalizing the designated use upgrade with member states’ support, very much including Delaware’s commitment to improving water quality in all the state’s waterways. But we also look forward to partnering with the EPA and want to avoid duplicative work. Knowing EPA feels the same way, my hope is this will be done collaboratively, so that we can come to a conclusion that benefits the resource and the citizens who rely on it in a reasonable timeframe,” Garvin said.
On Wednesday, the DRBC’s Tambini denied his agency was at odds with the EPA on raising the water-quality standard, and said the two would continue to work together on the issue.
“DRBC respects the EPA’s administrative determination that was issued last week,” he said at the agency’s quarterly business meeting. He said the EPA’s document had been “misrepresented” by petitioners’ talking points and some media coverage.
Tambini said EPA’s statement that 12 months would be a “reasonable timeframe” for proposing its own regulations did not apply to adoption or promulgation, which would add to the time needed for a federal regulation to become effective.
“The commission has no significant objection to the administrative determination, and welcomes EPA’s continued deeper engagement in this effort,” he said. “DRBC is committed to continuing to work jointly with EPA, stakeholders, and 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.”
In a statement responding to the EPA’s notice, the DRBC said it has invested substantial resources in the designated-use study. It also noted the EPA’s recognition of its “foundational science”, and said it would continue to work with federal and state partners to meet legal requirements.
“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,” the DRBC said.
“The commission has no significant objection to the administrative determination, and welcomes EPA’s continued deeper engagement in this effort."Steve Tambini, Executive Director of the Delaware River Basin Commission
DRBC spokeswoman Kate Schmidt denied that the EPA had “superseded” the DRBC, as suggested by the environmental groups. And she said the multi-year study that led to the DRBC’s report in September was still valid despite the federal action.
Jerry Kauffman, director of the University of Delaware’s Water Resources Center, and a longtime advocate for more cleanup of the river, said he wondered whether the EPA’s action was needed, given the outcome of DRBC’s study and the complexity of the subject which helps to explain the time taken by the local agency.
Kauffman, who wrote his PhD on dissolved oxygen levels in the river, said DRBC had been “steadfast” in its work on the issue. “That’s taken time,” he said. “It’s been going on since the late ‘60s. Did EPA need to step in? They were petitioned by Riverkeeper to step in.”
With its report, the DRBC has delivered the scientific basis for an upgrade in the dissolved oxygen standard, including hydrodynamic modeling, a cost-benefit analysis, and the results of fisheries surveys, Kauffman said. Now, it has begun a regulatory process that it says will take two years or more, in contrast to the EPA’s timeline which promises a new rule in 12 months’ time.
Whenever the agencies complete their rulemaking, the question will be what level of dissolved oxygen (DO) each chooses to underpin the new designated use, Kauffman said. He predicted that the EPA will make its recommendation in consultation with the DRBC even though the federal agency promises to deliver its rule first.
When all is said and done, the public will benefit from a cleaner river even though its wildlife will be the immediate beneficiaries, Kauffman said.
“Sentinel species” like the Atlantic sturgeon and the American shad will have better conditions to migrate and breed, and the cleaner, more oxygen-rich water that they live in will also help the region’s human population which will have cleaner water to drink, he said.
A cleaner river is already helping an economic rebound in poor cities like Camden, NJ because it is attracting employers like American Water, and at nearby Petty’s Island, a former oil terminal that now hosts nesting bald eagles that are supported by fish that can live in the river that is cleaner than it was a generation or two ago, Kauffman argued.
Even the river’s smell, a notorious problem that drove many people away when oxygen levels were low, has improved, and will improve further when DO makes further gains, he predicted.
“That money is sitting there, waiting to be used for exactly this purpose."Jerry Kauffman, director of the University of Delaware’s Water Resources Center
Meanwhile, the focus will shift to how to pay the high cost of installing nitrification technology to reduce ammonia discharges from treatment plants. That cost has been estimated by a DRBC consultant at $150 million a year for about a dozen plants on the estuary, he said.
Despite the eye-popping number, it is more manageable when spread among water ratepayers, he said. A June 2021 report by Kauffman and his UD colleagues estimated that the highest standard of ammonia reduction from the Wilmington treatment plant would cost the average person $66 a year when spread across everyone served by that plant.
And the federal government’s recent infusion of infrastructure dollars provide a once-in-a-generation opportunity to make the investments that are needed to finish the river’s cleanup, he said.
“That money is sitting there, waiting to be used for exactly this purpose,” he said.
