Delaware Riverkeeper Network Sends EPA Notice of Intent

PHILADELPHIA, PA – The Delaware Riverkeeper Network sent the US Environmental Protection Agency Administrator (EPA) a 60-day Notice of Intent to Sue to require EPA to finalize its proposed rule revising the dissolved oxygen Water Quality Standards for the Delaware River. On December 21, 2023, EPA published its proposed rule to establish federal Water Quality Standards for specific zones of the Delaware River. The Clean Water Act requires EPA to promulgate the final Water Quality Standard within 90 days of publishing the proposed standard. While EPA appeared on track to promulgate the scientifically-based dissolved oxygen standards in a timely manner, publication of final standards were expected in early May of 2024, this deadline has long passed. EPA is in violation of its Clean Water Act responsibilities, and has been for several months.

“It has been nearly nine months since the EPA offered its proposed rule. Since that time, there has been radio silence regarding the EPA’s intent to follow through with a final rule. We are in a moment in time where every day counts for the Atlantic Sturgeon. Once again we are seeing low dissolved oxygen in reaches of the River crucial to the genetically unique population of Atlantic Sturgeon found nowhere else in the world but in our River. Every day the dissolved oxygen water criteria is not improved and enforced is a day closer our Sturgeon swim into extinction,” Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network, makes clear.

In December of 2023, EPA proposed its revised Water Quality Standards. The proposed rule, once finalized, “would apply to Zone 3, Zone 4, and the upper portion of Zone 5 of the Delaware River . . . for the states of Delaware, New Jersey, and Pennsylvania.” The proposed rule set higher dissolved oxygen standards for the Delaware Estuary from Philadelphia to Wilmington in order to better protect aquatic life in the River, including the oxygen-sensitive Atlantic Sturgeon and Shortnose Sturgeon. The public was offered a 60 day public comment period that closed on February 20th, 2024. At this time, the agency has yet to publish the finalized Water Quality Standards. In response, the Delaware Riverkeeper Network Notice of Intent to Sue states: “EPA, the Administrator, and the Assistant Administrator are in violation of the [Clean Water Act] for failing to undertake the nondiscretionary duty mandated by [Clean Water Act] Section 303(c)(4)(B), 33 U.S.C. § 1313(c)(4)(B), to promulgate the final [Water Quality Standards] to protect aquatic life in the Delaware River within ninety days of publishing the proposed [Water Quality Standards] on December 21, 2023.”

“Once again we are seeing a summer of lethal conditions for Atlantic sturgeon and other fish species in the tidal Delaware River. In 2024, oxygen saturation is below 50% and dissolved oxygen concentrations have fallen into a range of 2.9 and 3.5 mg/L, far below the 6.65 mg/L and 85% saturation needed. These endangered fish are screaming for help, with a solution just a pen-stroke away. The critically endangered Atlantic sturgeon need EPA to immediately follow through with their promise, upgrade the standards, and stop the discharge of pollution that robs these fish of the vital oxygen needed just to survive another day,” emphasizes Dr. Erik Silldorff, Delaware Riverkeeper Network’s senior scientist and Restoration Director.

Continues van Rossum, “I will not let the Sturgeon die on the altar of election-politics. The Delaware Riverkeeper Network has been trusting EPA at their word that the agency would take on this important challenge in their role as stewards to the Delaware River and the aquatic life within it. We worry that EPA may be playing politics and looking to delay their decision-making until after the election. For over three decades the Delaware Riverkeeper Network has been advocating for the Atlantic Sturgeon of the Delaware River because their survival is on borrowed time. With less than 250 spawning adults left, it is crucial that EPA follow through on their promise and duty to deliver the final rulemaking in compliance with the mandates of the Clean Water Act. EPA has 60 days to respond to our NOI, and we guarantee you that Delaware Riverkeeper Network will file on Day 61!”

Background:
In April, 2022, the Delaware Riverkeeper Network and partners filed a legal petition pursuant to the federal Clean Water Act urging the federal government to promptly initiate the rulemaking necessary to protect aquatic life in the Delaware Estuary. On December 1st, 2022, EPA issued its determination to grant the petition and exercise its Clean Water Act Section 303(c)(4)(B) authority because revised water quality standards for the Delaware River estuary are necessary to meet the requirements of the Clean Water Act. EPA’s determination letter stated “ . . . the currently applicable dissolved oxygen criterion for these zones is not sufficient to protect propagation throughout the specified zones.”

The EPA granted that legal petition in early December of 2022, showing its intent to promulgate 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. The decision formally recognized the need for greater oversight and protection of aquatic life in the Estuary, including the federally endangered and genetically unique Atlantic sturgeon population. In December of 2023, EPA proposed the revised standards for the Delaware River Estuary.