Federal agency takes over Delaware estuary water-quality upgrade
JON HURDLE, CONTRIBUTING WRITER | SEPTEMBER 12, 2023 | ENERGY & ENVIRONMENT, WATER
Green groups welcome transfer of authority to Environmental Protection Agency
Credit: (AP Photo/Ted Shaffrey)
File photo: A new rule from EPA is expected to raise the required level of dissolved oxygen in a 38-mile stretch of the river between Trenton and Wilmington, Delaware.
Water quality standards in the Delaware River Estuary, long a source of concern for environmental groups, have formally become a federal responsibility.
Nine months after effectively losing its authority over upgrading water-quality standards in the estuary to the federal government, the Delaware River Basin Commission deferred the process to the Environmental Protection Agency. The delay frustrated the commission’s critics.
The commission, which regulates water supplies for the basin portions of New Jersey, Pennsylvania, New York and Delaware, approved a resolution on Sept. 7 that ends its long-running review of dissolved oxygen standards in the river’s tidal section, handing off that responsibility to the federal agency.
The EPA will now propose a new rule that is expected to raise the required level of dissolved oxygen — a crucial indicator of ecological health — in a 38-mile stretch of the river between Trenton and Wilmington, Delaware, above 3.5 milligrams per liter. That standard has been in effect since 1967, and environmentalists say it is far too lax to fully support the river’s growing fish populations.
Advocates for a higher standard say the current requirement allows some fish to migrate and breed, while others struggle to survive in the estuary, especially during the summer when warmer water contain less oxygen than at other times of year.
The EPA’s new rule is also expected to change the estuary’s “designated use” to the propagation of fish rather than merely the “maintenance” of fish populations — a description that has been in force for more than 50 years.
“EPA acknowledges the Delaware River Basin Commission’s decision to suspend its own rulemaking to update the aquatic life uses and dissolved oxygen criteria for the tidal reach of the Delaware River,” the federal agency said in a statement on Friday.
Maya van Rossum of Delaware Riverkeeper Network accused the Delaware River Basin Commission of wasting time and taxpayers’ money by conducting a parallel process for the water review.
The Commission said the resolution “withdraws the DRBC’s scheduled commitment to adopt revised DRBC water quality standards for the Delaware River Estuary by March 2025” and that the EPA will now “lead the rulemaking process.”
The statement ends a period that began on Dec. 1, 2022 when the EPA unexpectedly granted a petition by five environmental groups for the federal agency to take over the water-quality review because of what critics said was an unacceptably slow process by the regional commission.
Meeting federal requirements
The EPA said last December that the concentration of oxygen in the water must be increased to comply with the federal Clean Water Act, a landmark law underpinning the cleanup of rivers like the Delaware since it was passed in 1972.
The EPA aims to propose its rule by the end of this year; the DRBC previously said it wouldn’t issue a final rule until the spring of 2025.
Despite formally deferring to the EPA, the Trenton-based DRBC said it will continue to provide scientific, engineering and technical assistance to the federal agency in its review, but DRBC’s Sept. 7 decision immediately withdraws its plans to write regulations for a water-quality upgrade in zones 3, 4 and the upper part of zone 5 in the estuary.
Hurry up and wait
Maya van Rossum of Delaware Riverkeeper Network, one of the groups that petitioned the EPA last year, welcomed the DRBC’s decision but said it should have come as soon as the EPA accepted the petition, and not nine months later.
She accused the DRBC of wasting time and taxpayers’ money by conducting a parallel process for the water review.
In a statement accompanying its resolution, the DRBC said it was deferring to the EPA to promote ‘regulatory efficiency’ but will continue to work with the federal agency in its efforts to raise water-quality standards.
“They took the ridiculous position that they were going to continue to spend time, money and resources on their own standards process — not just wasting time and money and creating confusion for the public, but setting up the very real likelihood that they would advance standards different than EPA and create a legal conflict,” van Rossum said in a statement.
She said the DRBC had “misrepresented the science” and was influenced by industry to keep the current water standard in place for longer than it should have.
And she predicted that the federal agency will do a better job of setting a standard that protects fish than the DRBC would have.
“The landmark decision by EPA to grant our petition was strong confirmation that they too saw the DRBC failing to advance protective, science-driven standards in a timely fashion,” she said. “I will be more confident in what EPA proposes.”
Kate Schmidt, a spokeswoman for the DRBC, declined to say why it had taken the agency nine months to formally hand the rulemaking process to the EPA, but said a federally led process will now be easier for the public to understand.
“A single, EPA-led rulemaking process will provide clarity to the public and will allow for focused engagement by estuary communities, advocates and regulated entities,” she said.
Discharging less ammonia
The DRBC began its review of whether to raise the dissolved oxygen standard in 2017, and delivered its long-awaited conclusions in September last year. It made no specific recommendation on a new dissolved oxygen standard but concluded that it would be possible to achieve both a higher oxygen content and an upgraded designated use by requiring more restrictions on the discharge of ammonia from water treatment plants.
Those measures are expected to cost hundreds of millions of dollars, but the sticker shock would be eased by spreading the cost among the millions of people who use water taken from the river’s tidal stretch, water experts say.
Doug O’Malley, director of Environment New Jersey, one of the groups that petitioned the EPA, said there was a risk of duplication of the rulemaking efforts, and so it was a “good decision” to allow the federal agency to lead the process. “It doesn’t make sense to have the DRBC and the EPA work on the same thing at the same time,” he said. “The resolution gives the impression that there was double-track work going on.”
In a statement accompanying its resolution, the DRBC said it was deferring to the EPA to promote “regulatory efficiency” but will continue to work with the federal agency in its efforts to raise water-quality standards.
DRBC officials will work on ways to implement a new water-quality standard. The commission’s activities will include identifying effluent dischargers and considering capital improvement schedules.
“The commission will continue to support and provide resources to the EPA and the estuary states to meet the shared goal of updated water-quality standards that improve protections for aquatic life,” it said.
