DRBC cedes action on dissolved oxygen rules to the EPA

As of today, the U.S. Environmental Protection Agency becomes the lead agency in regard to water-quality criteria for dissolved oxygen in the Delaware River Basin.

The Delaware River Basin Commission, with its four-state watershed representation as well as its federal representative, the United State Army Corps of Engineers, has been the agency responsible for the basin’s water quality since its creation in 1961.

Today, the DRBC voted itself out of that role and relinquished at least one aspect of its role to the EPA with the passage of a resolution. The resolution passed with the states approving and the USACE abstaining.

Here’s how it was addressed in the minutes in advance of today’s meeting:

“A resolution for the minutes to support regulatory efficiency, intergovernmental coordination and clarity to the public in revising the aquatic life designated uses to provide for fish propagation and corresponding water quality criteria for dissolved oxygen in the Delaware River Estuary.”

Further exposition of the DRBC’s position is explained in its statement, reprinted below in its entirety.

In a nutshell, the resolution cedes the development of new water-quality standards in the urban corridor of the river to the EPA, despite the years-long work of DRBC scientists and engineers to develop the basis for those new standards, and the DRBC’s aim to have the new standard ready by 2025.

The DRBC started work in this direction in 2017, with the ambition of  promulgating new standards for the urban corridor in five years. Well, then there was Covid, and the most recent aim was 2025.

But all along, the Delaware Riverkeeper and others were impatient with the slow progress.

The DRBC was doing its exhaustive work to set itself up for the likely negative response from the various stakeholders, like municipal water systems, that would find that the new rules demanded significant expense to improve the condition of treated wastewater that — legally — found its way into the Delaware River.

Here’s a series of stories that explored that work. And remember, what’s good for fish is good for humans, as well. If we improve the water quality of that section of the river — the most degraded section — we can encourage more use of the river by residents.

Action back in December

This resolution comes on the heels of a letter from the EPA to the DRBC back in December, in which the EPA sided with environmentalists who complained that the DRBC’s years-long process to set new water-quality standards for urban sections of the river was too slow.

That letter suggested that there would be side-by-side work on those standards.

On Thursday, the DRBC gave the responsibility to the EPA, stating that there would likely be public confusion if two entities were developing those standards.

The petition that sparked the EPA’s letter was sent in April 2022 by representatives of five environmental organizations. They asked the EPA to step into the deepening concern that the DRBC was acting too slowly to respond to the plight of the Atlantic sturgeon, an endangered species.

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 here’s the EPA’s December 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.”

Maya van Rossum, the Delaware Riverkeeper and one of those five environmental agencies, spoke via Zoom after today’s DRBC meeting and noted that the Riverkeeper’s efforts to upgrade water quality standards for the urban section of the river date back to 2013.

“We don’t want to be too late to save the Atlantic sturgeon,” she said. “That petition (from April) was written in response to the DRBC’s failure to take action.”

She also said the DRBC was wise to step back from the possibility of paralleling the EPA’s work. (Her emailed response is printed below in its entirety.)

As promised, we’re revising this story to include EPA comment, received at 5:37 p.m.

EPA acknowledges the Delaware River Basin Commission’s (DRBC’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. Like DRBC, EPA remains committed to working collaboratively to ensure the establishment of updated water quality standards that are supported by science and law and improve protections for aquatic life in the Delaware River. Consistent with its December 2022 Administrator’s Determination, EPA is working on a rule to propose updates to the relevant water quality standards by December 2023. Upon receipt of public comments, EPA will coordinate with state and federal partners to expeditiously promulgate a final rule, consistent with Clean Water Act requirements.

Here’s the DRBC statement on its resolution:

For over 60 years, the Delaware River Basin Commission (DRBC or Commission) has worked to protect and improve water quality throughout the Delaware River Basin. The DRBC supports the “fishable” goals of the Clean Water Act and has taken numerous priority actions to advance these goals in the Estuary, the tidal reach of the Delaware River. Most recently, the DRBC developed major science, engineering, and socioeconomic studies that lay a foundation for revised aquatic life water quality standards for the Estuary and rulemaking to adopt these standards. The Commission has consistently engaged stakeholders and the public on these issues through an open and transparent process.

The DRBC supports the adoption of revised water quality standards that protect fish propagation throughout the Estuary. By a Resolution for the Minutes dated September 7, 2023, the Commission has deferred its planned rulemaking on new standards, pending completion of a separate, federal rulemaking announced by the U.S. Environmental Protection Agency on December 1, 2022. The decision to defer DRBC rulemaking is being taken to support regulatory efficiency and intergovernmental coordination. DRBC’s action will avoid concurrent notice and comment rulemaking processes to revise standards for the same water body. DRBC staff will continue to work closely with EPA and the Estuary state environmental protection agencies in Delaware, New Jersey and Pennsylvania to support vital water quality improvements.

The EPA is expected to propose a rule revising the designated uses and the water quality criteria required to protect those uses, in portions of the Estuary. The DRBC’s scientists and engineers will continue to focus on strategies for implementing the new standards to achieve the measurable water quality improvements the standards are designed to support. The Commission’s work will include identifying affected dischargers, developing wasteload allocations and effluent limitations, and considering capital improvement schedules and potential variances. The DRBC will conduct its work in close cooperation with the EPA and Estuary state co-regulators. Importantly, the DRBC will continue to engage stakeholders in the development of strategies, plans, analyses, and, if appropriate, regulations for the implementation of the new aquatic life uses and criteria, primarily through the Commission’s long-standing Water Quality Advisory Committee.

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. The agencies will work together and with stakeholders to implement the improvements we collectively envision. A single, EPA-led rulemaking process will allow for focused engagement by Estuary communities, advocates and regulated entities.

Further questions about the EPA rulemaking process to revise the aquatic life water quality standards for the Delaware River Estuary should be directed to the EPA.

Here’s the email response from Delaware Riverkeeper Maya van Rossum to today’s resolution:

It is about time that the Delaware River Basin Commission recognized it needed to step back and let the EPA lead. The Delaware Riverkeeper Network petitioned the EPA to step in and take the lead on advancing critical dissolved oxygen protections essential for many species in our River — not the least of which is our unique population of Atlantic Sturgeon that are on the brink of extinction — because the DRBC was failing to take meaningful, science driven protections and to do so in a timely fashion.

Seemingly at the behest of industry, DRBC was content to slow walk the process and misrepresent the science as it pertains to Atlantic Sturgeon and dissolved oxygen, and so Delaware Riverkeeper Network and the public were forced to bypass the DRBC and secure EPA intervention and leadership. When the EPA granted our petition, it was a landmark determination. That the DRBC has been unwilling, for nine months, to step back and allow EPA to take the lead was a waste and misuse of agency resources. It is good that the DRBC has finally recognized that it needed to step back and let EPA lead.