White Paper by Preston Luitweiler, Science and Policy Committee Chair, et al
USEPA could best advance the next level of water quality improvements in the Delaware Estuary by supporting DRBC’s existing data driver process. In addition, USEPA can assist regulated entities in securing federal funding for the significant improvements needed to meet new water quality standards.
INTRODUCTION AND BACKGROUND
The Water Resources Association of the Delaware River Basin (WRADRB) is a nonprofit, non-partisan, advocacy and public information organization that promotes the science-based management of water resources within the Delaware River Basin to protect water dependent uses and enhance the long-term sustainability and resiliency of the river system. WRADRB represents the water users and anyone dependent on or interested in the Basin’s water resources.
WRADRB was established in 1959 by representatives from industry, public and private utilities and other organizations with wide-ranging interests in water resources and sought to ensure public participation in the management of the Delaware River and its tributaries. In 1961, the WRADRB successfully participated in the development of a federal-interstate compact and the creation of the Delaware River Basin Commission. Since then, WRADRB has remained active in monitoring activities of the DRBC and other agencies of the four Basin states.
Over the past five years, the Delaware River Basin Commission (DRBC) has guided a collaborative process involving representatives of three of the Delaware River Basin (DRB) states, two USEPA regions, academics, fisheries scientists, environmental groups, and experts of all types to prepare a draft Analysis of Attainability: Improving Dissolved Oxygen and Aquatic Life Uses in the Delaware River Estuary. DRBC’s process of developing this analysis and the series of recommendations it contains has, so far, avoided missteps and litigation, and has brought a diverse group of industries, regulators, and advocates together with a shared vision of addressing a challenging issue.
EPA DETERMINATION LETTER
Almost five years into this process, in April 2022, a group of environmental organizations that have been involved in the process every step of the way filed a “petition” with the Washington DC office of USEPA, injecting a sense of urgency and introducing contention into the process. On December 1, 2022, the Washington DC office of USEPA issued a determination letter unilaterally declaring “propagation” as a designated use of the urbanized reach of the Delaware Estuary. Further, the determination letter sets a timetable of 12 months to propose new Water Quality Standards. This occurred after five years of EPA involvement in the DRBC process through two USEPA regional offices (Regions 2 and 3).
DRBC’S ROLE IN IMPROVING WATER QUALITY AND PROTECTING FISH POPULATIONS
For 60 years, from before the existence of the USEPA or any state environmental regulatory agency, the DRBC has worked with state and federal agencies to bring rigorous science and transparency to the regulation of the water resources of the Delaware River Basin. Some of DRBC’s first water quality regulations in 1967 were directed at improving dissolved oxygen (DO) in the urbanized reach of the river to allow passage of anadromous fish – including shad and striped bass – upriver to spawning areas. The success of the DRBC regulations, supported by federal grants to upgrade treatment plants, brought about a dramatic improvement of conditions in the river to the point where seasonal runs of shad and striped bass have returned and the overall health of the fishery has improved. This is a significant environmental success story for which DRBC and many others in the basin can and should be proud.
In the past 10 years, fishery scientists have found that other species of fish, including the Atlantic and short-nosed sturgeon that once reproduced in portions of what is now the urbanized reach of the river, had returned and were again reproducing. In the 1800s, sturgeon were landed in large numbers in southern New Jersey, particularly in the town of Bivalve where there is now a museum on the sturgeon fishery. Sturgeon roe was prized internationally for caviar. The fish were nearly extirpated from the Delaware Estuary by overfishing, and the fishery collapsed. The short-nosed sturgeon has been federally listed since the Endangered Species Act was created in 1973. All five U.S. Atlantic sturgeon distinct population segments are listed as endangered or threatened. Atlantic sturgeon that hatch out in the Gulf of Maine rivers are threatened, all others are endangered.
In 2016, NOAA National Marine Fisheries Service proposed critical habitat for sturgeon in 30 rivers up and down the east coast. That regulatory action was and remains controversial. The delineation of critical habitat was not specific. The designation, absent specific delineation, engendered costs and delays for many proposed projects in these rivers, particularly in the Delaware Estuary. No economic impact analysis was released with this designation. Nevertheless, sturgeon are now protected from fishing, and dissolved oxygen levels in the Fish Maintenance Area of the Delaware Estuary have improved above the 1967 DRBC criteria. These factors have contributed to the return of sturgeon to this portion of the estuary.
There is general consensus among regulators, scientists, environmentalists and the regulated community that the urbanized reach of the river currently supports some limited propagation of sturgeon and other fish species, and that improved DO levels are achievable that could enhance propagation of sturgeon. There is less consensus around where and when propagation of Atlantic sturgeon is occurring in the Delaware estuary, and how much this propagation could be enhanced by a given levels of improvement in DO. Additional work is required to determine how improvement in DO in specific critical habitat areas can most effectively be achieved, on what timetable this improvement can be achieved, how much it would cost, and who should pay for it
Dissolved oxygen levels in the estuary in the Fish Maintenance Area during the migration and spawning season for sturgeon varies widely from location to location, from year to year, and from day to day. Warm temperatures and low flows in the Delaware can contribute to DO levels that, while still allowing passage of anadromous fish, are unsuitable for spawning of sturgeon. Such conditions are believed to have prevailed in 2012, but data from that year are sparse. Those conditions have not occurred since, and the sturgeon population appears to be continuing its recovery. The Fish Maintenance Area (FMA) is not currently designated for propagation of fish. Fishery experts and environmentalists have argued that the FMA should be designated for fish propagation, and that such a designation would carry with it a burden to achieve reliably higher levels of DO from May 1 through October 15 every year to support robust fish propagation.
PROCESS AND PROGRESS TO DATE
In August 2016, USEPA sent a letter to DRBC and its member states recommending that the 1967 Water Quality Standards (WQS) be revised. In 2017, DRBC passed a resolution (2017-4) that set out a deliberate course of study to answer the questions of whether the urbanized reach of the river should be redesignated for propagation of sensitive species of fish, and if so, what new DO criteria could be achieved. Resolution 2017-4 set out a six-year timeline that would result in a final rule. In September 2020, largely because the impact of the COVID pandemic and identification of additional necessary work, DRBC extended the timeline for completing final new Water Quality Standards to March 2025.
Pursuant to DRBC’s work plan laid out in Resolution 2017-4, DRBC conducted extensive monitoring in 2019 to support development and calibration of a sophisticated three-dimensional eutrophication model for the estuary. This model was then applied to the river flow and water temperature conditions that prevailed in 2012 and the model results compared with the limited available data for that year. The agreement between the model output and the data was sufficient to justify using the model to investigate impacts of a variety of regulatory scenarios to determine the attainability of higher levels of DO in the Fish Maintenance Area under a return of the 2012 river temperature and flows. DRBC established an expert panel to guide the development and application of the model, and contracted with consultants to study feasibility, cost and affordability of upgraded treatment. DRBC also engaged the DRBC Water Quality Advisory Committee (WQAC) to review and guide the process. The WQAC has representatives from each of the basin states, USEPA Region 2 and Region 3, other state and federal agencies, environmental groups, academic institutions, water users and dischargers. It is exactly the kind of group USEPA would need to engage to achieve water quality criteria based on sound scientific rationale – a requirement of the Clean Water Act.
The WQAC had previously actively worked with DRBC to develop Phase 1 Total Maximum Daily Loads (TMDL) for polychlorinated biphenyls (PCBs) in the estuary that were eventually approved by USEPA. This effort has achieved substantial reductions in PCB loadings and levels in the Delaware estuary that have allowed some of the basin states to relax fish consumption advisories. Similar to the increase in DO levels in the river over 50 years achieved by the 1967 DRBC WQS, the Phase 1 PCB TMDL has been a major accomplishment achieved by a collaboration among state and federal regulators and the regulated community. The accomplishments of this collaborative effort were recognized in September 2022 by WRADRB at its Recognition Dinner.
Five years of work by DRBC, guided by the WQAC, led to the publication of the draft Analysis of Attainability: Improving Dissolved Oxygen and Aquatic Life Uses in the Delaware River Estuary in September 2022. This draft report indicates that the designated use of “propagation” of fish is achievable. The draft also proposes that the Highest Attainable Dissolved Oxygen of 5 milligrams per liter (mg/L) can be achieved with upgrades to treatment at 11 discharge locations at a total cost of $153 million per year. The proposed new target minimum DO represents a substantial improvement over the 3.5 mg/L criteria in the 1967 WQS.
RECOMMENDATIONS
Significant uncertainty remains about whether the identified upgrades at each of the targeted dischargers will be feasible and effective. There is also uncertainty about what the upfront capital improvement costs will be, when the improvements will be required, and what the cost impact will be to the communities served by these systems. Unless substantial federal funds are provided, as was done for the implementation of the 1967 DO criteria, the costs will fall on ratepayers of some of the poorest and most underserved communities in the Delaware River basin.
The work done by DRBC and its partners over the past five years, with guidance from the Water Quality Advisory Committee, should be commended. Without this work leading up to the September 2022 draft Analysis of Attainability: Improving Dissolved Oxygen and Aquatic Life Uses in the Delaware River Estuary, USEPA would be in no position to consider proposing a new use designation and water quality criteria for the Fish Maintenance Area in the Delaware Estuary. DRBC is on a timeline to achieve these goals by March 2025. For USEPA now, after five years of active involvement in this process with DRBC, to suggest that they can accomplish the final steps in 12 months is ill-advised and unrealistic. The USEPA’s surprise and unilateral 1st December 2022 determination letter may slow the process and impede the willingness of partners to continue to collaborate on solutions.
In its determination letter, USEPA “welcomes the opportunity to discuss whether DRBC’s March 2025 deadline could be accelerated.” WRADRB recommends that those discussions include a review of whether USEPA’s suggested December 2023 timeline is realistic, and whether it could be extended, and what potential adverse effects (if any) might flow from such an extension. WRADRB also hopes that USEPA recognizes that the recommendations in the DRBC Analysis of Attainability: Improving Dissolved Oxygen and Aquatic Life Uses in the Delaware River Estuary represent the outcome of five years of deliberative, collaborative work that has involved two USEPA regions, three states, environmental groups and the regulated community. Any significant unilateral deviation from those recommendations without consultation or support from the parties that have been involved in DRBC’s robust collaborative approach could potentially derail the process, introduce litigation risks, and substantially extend the timetable for implementation of future standards and improvements.
CONCLUSION
WRADRB believes that USEPA could best advance the next level of water quality improvements in the Delaware Estuary by supporting DRBC’s existing process, which has been data driven and transparent. In addition, USEPA can assist regulated entities in securing federal funding for the significant improvements needed to meet new water quality standards. Given the magnitude of the potential costs, continued collaborative work is critical to identify, prioritize and secure the funding needed, which will inevitably include not just low interest loans, but grants as well to offset significant affordability issues.