SUPPLEMENTARY INFORMATION:

The Special Protection Waters regulations, consisting of Section 3.10.3.A.1. of the Commission's Water Quality Regulations, are intended to maintain the quality of interstate waters where existing water quality is better than the established stream quality objectives. They include rules that discourage new and increased discharges to designated waters. Where such discharges are permitted, the rules ensure that incremental pollutant loadings and visual impacts are minimized, that minimum standards of treatment are applied, and that new loadings cause no measurable change from existing water quality, as defined by the rule, except toward natural conditions.

The SPW regulations currently include a table establishing the numeric values that define existing water quality in the stream reaches permanently classified by the Commission as SPW in 1992. These reaches are located within the Upper Delaware Scenic and Recreational River Corridor and the Middle Delaware Scenic and Recreational River Corridor, between Hancock, New York, at River Mile (RM) 330.7 and the southern boundary of the Delaware Water Gap National Recreation Area at RM 209.5. They include the main stem and portions of intrastate tributaries to the Delaware located within the boundaries of the scenic and recreational corridors. The locations of water quality control points between Hancock, New York and RM 209.5 are provided in a second table. The water quality control points are the locations used to assess water quality for purposes of defining and protecting it. No changes are proposed at this time to the permanent classifications and water quality control points that the Commission established in 1992.

The portion of the non-tidal Delaware River known as the “Lower Delaware” extends from the southern boundary of the Delaware Water Gap National Recreation Area at RM 209.5 to the head of tide at Trenton, New Jersey, RM 133.4. Since 2005, the SPW regulations have listed the main stem Lower Delaware River as “Significant Resource Waters” (SRW) on a temporary basis and have applied a portion of the SPW regulations to this reach. The temporary classification was made pending the development of numeric values for existing water quality in the Lower Delaware and a determination as to whether the SRW classification should be assigned to the entire reach or whether the alternative classification, “Outstanding Basin Waters” (OBW), should be used for those portions eligible for that classification by virtue of their inclusion in the National Wild and Scenic Rivers System. The proposed amendments would permanently classify the entire Lower Delaware reach as SRW. By incorporating into the regulation a set of numeric values for existing water quality at established Lower Delaware River water quality control points, the amendments also would allow all applicable provisions of the SPW regulations, including those for “no measurable change” to existing water quality as defined by the rule, to apply to projects within the Lower Delaware drainage.

Key provisions of the SPW regulations that will continue to apply within the drainage area to the Lower Delaware River if the proposed amendments are approved include the following: Sections 3.10.3 A.2.c.1. through 3., in part requiring that no new or expanded wastewater discharges may be permitted in waters classified as SPW until all non-discharge-load reduction alternatives have been fully evaluated and rejected because of technical or financial infeasibility; sections 3.10.3 A.2.d.1. through 7., setting forth requirements for wastewater treatment facilities; and sections 3.10.3 A.2.e.1. and 2., conditioning project approval on the existence of an approved Non-Point Source Pollution Control Plan for the project area and requiring that approval of a new or expanded withdrawal and/or wastewater discharge project be subject to the condition that new connections to the project system be limited to service areas regulated by a non-point source pollution control plan approved by the Commission.

If the proposed amendments are adopted, numeric values for twenty parameters will be established, defining existing water quality by rule for purposes of the SPW program at 24 water quality control points in the Lower Delaware River. The parameters include: Ammonia-ammonium NH₃ -NH₄ (mg/l), chloride (mg/l), chlorophyll a (mg/m³ ), dissolved oxygen (mg/l), dissolved oxygen saturation (%), E. coli (colonies/100 ml), enterococcus (colonies/100 ml), fecal coliform (colonies/100 ml), nitrate NO₃ -N (mg/l), orthophosphate (mg/l), pH, specific conductance (umhos/cm), total dissolved solids (mg/l), total Kjeldahl nitrogen (mg/l), total nitrogen (mg/l), total phosphorus (mg/l), total suspended solids (mg/l), turbidity (NTU), alkalinity (mg/l), and hardness (mg/l). The proposed values are based upon five years of ambient water quality monitoring, from 2000 through 2004.

Adoption of numeric values for existing water quality and creation of a set of Boundary and Interstate Water Quality Control Points in the Lower Delaware River will mean that applicants seeking approval to construct new facilities or to expand existing facilities in the Lower Delaware drainage will be required for the first time to demonstrate that their new or increased discharges will cause no measurable degradation of existing water quality at the established water quality control points (sections 3.10.3 A.2.b.2. and 3.10.3 A.2.f.). As in the upper and middle portions of the non-tidal Delaware, the “no measurable change” requirement will apply whether a project discharges directly to the main stem or to a tributary. For certain main stem discharges, if minimum treatment standards alone do not ensure no measurable change at the downstream water quality control point, additional treatment may be required (section 3.10.3 A.2.b.2. in combination with section 3.10.3A.2.d.6.).

The amendments also would incorporate language intended to clarify aspects of the SPW regulations that have been a source of confusion for some DRBC docket holders and applicants since the program was originally adopted in 1992 for point sources and in 1994 for non-point sources. Notably, a new term—“substantial alterations or additions”—is proposed to be added to the Definitions section of the regulations and to be inserted in other sections of the rule to clarify which types of additions or alterations to existing wastewater treatment facilities will trigger certain SPW requirements that are deemed appropriate in connection with capital investment projects. For projects involving existing facilities discharging to SPW—whether in the upper, middle or lower portion of the Delaware River—only substantial additions or alterations as defined by the rule will trigger the requirements that no such project may be approved until (1) all non-discharge load reduction alternatives have been fully evaluated and rejected because of technical or financial infeasibility (section 3.10.3.A.2.c.1.) (OBW and SRW discharges); (2) the applicant has demonstrated the technical and/or financial infeasibility of using natural wastewater treatment technologies for all or a portion of the incremental load (section 3.10.3.A.2.d.5.) (OBW, SRW and tributary discharges); (3) the Commission has determined that the project is demonstrably in the public interest as defined by the rule (section 3.10.3.A.2.c.3.) (SRW discharges); and (4) the minimum level of treatment to be provided for such projects is Best Demonstrable Technology as defined by the rule (section 3.10.3.A.2.d.6.) (direct OBW and SRW discharges). The proposed amendments further clarify that alterations limited to changes in the method of disinfection and/or the addition of treatment works for nutrient removal at existing facilities are not deemed to be “substantial alterations or additions” triggering the foregoing requirements.

In addition, the proposed amendments more clearly define the baseline to be used in measuring predicted changes to existing water quality and in evaluating the effect of discharge/load reduction alternatives and/or natural treatment alternatives for projects that involve substantial alterations or additions to existing facilities. Also noteworthy, a new paragraph is proposed to expressly authorize effluent trading between point sources to satisfy the requirement for no measurable change to existing water quality under certain circumstances.

Previous Federal Register notices concerning designation of the Lower Delaware River as Special Protection Waters include notices published on September 23, 2004 (69 FR 57008) (proposed designation), August 22, 2005 (70 FR 48923) (proposed extension), August 21, 2006 (71 FR 48497) (proposed extension), and August 22, 2007 (72 FR 46931) (proposed extension). The proposed and final versions of the initial designation and the subsequent extensions also were published on the Commission's Web site, www.drbc.net.

72 FR 57255