Report: Clean Water for America

Rulemaking Petition to Revise the Designated Uses and Dissolved Oxygen Criteria for Three Zones of the Delaware Estuary

Released by: Environment New Jersey

Pursuant to the Administrative Procedure Act and Clean Water Act,  the Delaware Riverkeeper Network, PennFuture, Clean Air Council, Environment New Jersey, and PennEnvironment petition the U.S. EPA to engage in rulemaking to revise the water quality standards for Zones 3, 4, and River Miles 78.8 to 70.0 of Zone 5 of the Delaware River Estuary. Petitioners request EPA to issue a rule that revises the designated uses for the subject zones to include: 1) maintenance and propagation of resident fish and other aquatic life; and 2) spawning and nursery habitat for anadromous fish (collectively “propagation”). To protect the “propagation” use, the EPA must also upgrade the dissolved oxygen (“D.O.”) criteria for the subject zones to at least 6.3 mg/L.

Petitioners and their members have a substantial interest in the health of the Delaware River watershed and, specifically, the Delaware River Estuary. The Delaware River Estuary is where members of our organization regularly recreate and enjoy the aesthetic values of the Delaware River Basin. Given that Petitioners and their members have a demonstrated interest in preserving the health of the Delaware River Estuary, we are troubled by the Delaware River Basin Commission’s (“DRBC”)—the “regional body with the force of law to oversee a unified approach to managing [] [the Delaware] [R]iver system without regard to political boundaries”1—patterned refusal to upgrade the designated uses of and D.O. criteria for the subject zones of the Delaware River Estuary despite the evidence, scientific data, and vulnerable species documented.

The states of Delaware, New Jersey, and the Commonwealth of Pennsylvania fulfill their Clean Water Act obligations to designate uses for surface waters by deferring generally to the water quality standards (“WQS”) set forth by DRBC or “provid[ing] for application of the more stringent of state and DRBC standards within the basin.”2 As such, DRBC is uniquely situated as the unified authority responsible for developing, managing, and implementing WQS for the Delaware River Estuary. The context this Petition arises out of is DRBC’s failure to discharge its duty under the DRBC Water Code to properly upgrade the designated uses for the Delaware River Estuary.

DRN and others have petitioned DRBC—and New Jersey, Delaware, and the Commonwealth of Pennsylvania by extension—to upgrade aquatic life uses and D.O. stream quality criteria based on data dating back nearly 20 years that demonstrates the subject zones of the Delaware Estuary have been used by resident and migratory fish for spawning and rearing habitat for decades. DRBC has not acted on the requests made in these petitions but instead has indicated that it needs more time to study this problem.

Because the DRBC is failing to discharge its duty to protect the health of the Delaware River Estuary at the expense of valuable aquatic life—including the federally endangered Atlantic sturgeon—Petitioners now request of the EPA to promptly exercise its Clean Water Act Section 303(c)(4)(B) authority to prepare and publish proposed regulations setting forth a revised WQS that includes a designated use for fish “propagation” and upgraded D.O. criteria to support that revised designated use.

As will be further articulated throughout this petition, it is necessary for EPA to set a revised WQS for the subject zones of the Delaware River Estuary because DRBC has consistently refused to revise the WQS to which the Estuary-encompassing states—New Jersey, Delaware, and the Commonwealth of Pennsylvania—defer. Without a “propagation” designated use for the subject zones of the Delaware River Estuary, and attendant upgrade to D.O. criteria, the health of valuable aquatic life continues to be unnecessarily threatened. DRBC initiated the regulatory process for upgrading the designated uses to include “propagation” for the subject zones in 2009 and has unjustifiably prolonged the regulatory time frame by which it will make a decision. Given DRBC’s protracted decision-making process and patterned refusal to take meaningful action to protect the health of the Delaware River Estuary, the most effective and practical means of addressing these issues is for EPA to exercise its Clean Water Act Section 303(c)(4)(B) authority. Put simply, the existing designated use of the subject zones of the Delaware River Estuary are insufficient to meet the requirements of the Clean Water Act (“Act”).

Federal rulemaking authority is of the utmost necessity under the extant circumstances. The EPA must issue and publish proposed regulations upgrading the WQS for the subject zones of the Delaware River Estuary for said WQS to meet the requirements of the Act. DRBC has consistently demonstrated that it will continue to delay action at a point when swift revision is sorely needed to protect the health of the Estuary and the aquatic life that depends on it.

Petitioners urge EPA to promptly initiate federal rulemaking to revise the WQS of the subject zones of the Delaware River Estuary pursuant to its Section 303(c)(4)(B) authority. First, this Petition discusses: 1) the organization and charge of the DRBC; 2) the timeline of DRBC’s failure to revise the designated use of the subject zones to include the existing use of “propagation;” and 3) EPA’s authority to hear and grant this Petition for rulemaking under the Administrative Procedure Act and Section 303(c)(4)(B) of the Act. Second, in this Petition, Petitioners assert that: 1) establishing a designated use of “propagation” aligns with the requirements of the Act; and 2) existing criteria for dissolved oxygen is not in accordance with the Act’s Delaware River Basin Comm’n [DRBC], Resolution 2017-4.