EPA sides with environmental groups
It demands that the DRBC speed up the process to improve the water quality of the Delaware River.

| December 2, 2022

Delaware River at Penn's Landing
A section of the Delaware River's "problem area" (looking south from Penn's Landing in Philadelphia) where dissolved oxygen conditions are harmful to the propagation of Atlantic sturgeon, an endangered species. PHOTO BY MEG MCGUIRE

The Environmental Protection Agency has handed a surprise victory to environmental groups that were arguing for faster action to raise water quality standards in the urban sector of the Delaware River.

The agency on Thursday agreed with the environmentalists that the Delaware River Basin Commission is acting too slowly to raise those standards, effectively handing the DRBC a rebuke — not for its scientific work, which it praised — but for how slowly the commission has responded to that work.

The DRBC had extended its timeline to 2025, and possibly later. The EPA wants action within the year.

Remember, the commission is composed of the governors of the four basin states and the U.S. Army Corps of Engineers as representatives of the federal government.

And since the stretch of river the EPA is talking about runs from Trenton, N.J., to Wilmington, Del., the agency’s letter was addressed to the three states that border this stretch of the river: Pennsylvania, New Jersey and Delaware, as well as to the DRBC.

The issue here focused on the plight of the Atlantic sturgeon, an endangered species, and the difficulty that its young have thriving in that section of the river.

Read more: How the DRBC planned to address the issue of improving dissolved oxygen.

Those fish, like all fish, need oxygen in the water. In the summer months especially, the dissolved oxygen in the urban corridor of the river can drop below sustainable levels for these endangered fish.

And that’s where the EPA comes in.

In April 2022, a petition by representatives of five environmental organizations asked the EPA to step into the deepening concern that the DRBC was acting too slowly to respond to the plight of the endangered sturgeon. 

The five included: Maya van Rossum, the Delaware Riverkeeper; Joseph Minott, executive director and chief counsel for the Clean Air Council; Jacquelyn Bonomo, until recently president and CEO of PennFuture; and Doug O’Malley, director of Environment New Jersey, and David Masur, executive director of PennEnvironment.

Here’s their letter.  (Thanks to the DRBC for making all these communications available on its website.)

Here’s the DRBC’s letter to the EPA in October 2022, in which the executive director, Steven Tambini, defended the actions of the DRBC and its pace in rule-making.

Read more: The Delaware Currents series exploring how Atlantic sturgeon are affected by depressed levels of dissolved oxygen.

And here’s the EPA’s determination letter, which said, in part:

“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.”

And the group of environmental activists had this to say about that decision:

“In a rarely taken step, today the U.S. Environmental Protection Agency (EPA) granted a legal petition filed by a coalition of leading environmental organizations regarding the health of the Delaware Estuary and its aquatic life. In a landmark determination, the EPA exercised its Clean Water Act Section 303(c)(4)(B) authority to begin the process of promulgating new water quality standards for the Delaware River estuary, superseding the authority of the regional Delaware River Basin Commission (DRBC), which has thus far failed to uphold its obligation to protect the health of the Delaware River Estuary and its robust aquatic ecosystem. 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.”

And the DRBC’s statement includes this:

“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.”

That mention of stakeholders is perhaps a clue as to why this action has taken so long. Among those stakeholders are the wastewater utilities whose discharges are in large part the reason that there are dissolved oxygen problems. Fixing those discharges is expensive.

Here’s the story that Delaware Currents did on the study that the DRBC commissioned to find out how much. It’s considerable: from $1.5 million for Trenton and as high as $3 billion for Philadelphia. 

Meg McGuire

Meg McGuire

Meg McGuire has been a journalist for 30 years in New York and Connecticut. She started in weekly newspapers and moved to full-time work in dailies 25 years ago. She knows about the tectonic changes in journalism firsthand, having been part of what was euphemistically called a "reduction in force" six years ago. Now she's working to find new ways to "do" the news as an independent online publisher of news about the Delaware River, its watershed and its people.

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