Background: The Special Protection Waters regulations, consisting of Section 3.10.3.A.1. of the Water Quality Regulations (also, "Regulations"), are intended to maintain the quality of interstate waters where existing water quality is better than the established stream quality objectives. The Regulations consist in large part of a series of policies relating to: water quality management (§ 3.10.3.A.2.b.), allowable discharges (§ 3.10.3.A.2.c.), wastewater treatment facilities (§ 3.10.3.A.2.d.), the control of non-point sources of pollution (§ 3.10.3.A.2.e.), and inter-governmental responsibilities (§ 3.10.3.A.2.f.). Other sections of the rule include definitions (§ 3.10.3.A.2.a.), a list of waters classified as Special Protection Waters (§ 3.10.3.A.2.g.), a table defining existing water quality with numeric values for a series of different parameters in each of the river sections classified as Special Protection Waters (Table 1), and a table describing the location of the Boundary and Interstate Special Protection Waters Control Points, which are the locations used to assess water quality for purposes of defining and protecting existing water quality (Table 2).

To be protected as Special Protection Waters, stream reaches must be classified as either "Outstanding Basin Waters" or "Significant Resource Waters." "Outstanding Basin Waters" are defined as "interstate and contiguous intrastate waters that are contained within the established boundaries of national parks; national wild, scenic and recreational rivers systems; and/or national wildlife refuges that are classified by the Commission under Subsection 2.g.1). [of the Regulations] as having exceptionally high scenic, recreational and ecological values that require special protection" (§ 3.10.3.A.2.a.1.). "Significant Resource Waters" are defined as "interstate waters classified by the Commission under Subsection 2.g.2. [of the Regulations] as having exceptionally high scenic, recreational, ecological, and/or water supply uses that require special protection" (§ 3.10.3.A.2.a.2.).

In accordance with Section 3.10.3.A.2. of the Regulations, the Delaware Riverkeeper Network submitted to the Commission in April 2001 a nomination petition requesting that the Commission classify the Lower Delaware River as Special Protection Waters. The Commission initiated a five-year monitoring program in May of 2000 to characterize existing water quality in the Lower Delaware. Four years of data have been collected and analyzed. Data collection and analysis for the fifth year will be completed in 2004.

A series of studies, plans, and policies and a federal designation document the scenic, recreational, ecological and water supply values and uses of the Lower Delaware and support the goal of preserving these qualities. The four years of data and findings set forth in the report entitled, Lower Delaware River Eligibility Determination for DRBC Declaration of Special Protection Waters (DRBC, August 2004) demonstrate that water quality in the Lower Delaware River is better than the water quality criteria. The Lower Delaware National Wild & Scenic River Study Report (National Park Service, Northeast Region, 1999) documents that the Lower Delaware River includes islands, wetlands, and diverse ecosystems that support rare and endangered plant and animal species and constitute scenic and recreational amenities. The Lower Delaware River Management Plan (Lower Delaware River Wild and Scenic River Study Task Force and Local Government Committee, with assistance from the National Park Service, August 1997) (LDRMP) contains goals relating to water quality, natural resources, historic resources, recreation, economic development and open space preservation for the Lower Delaware River. Goal 1 of the LDRMP calls for maintaining, and where practical, improving existing water quality in the main stem of the Lower Delaware River and its tributaries. On November 1, 2000, the President of the United States signed Public Law 106-418, designating portions of the Lower Delaware River as part of the National Wild and Scenic Rivers System. The system was established by Congress in 1968 to preserve the character of rivers with "outstandingly remarkable scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar values" and to ensure that designated rivers remain free-flowing (P.L. 106-418, 106th Congress). The Water Resources Plan for the Delaware River Basin (DRBC Watershed Advisory Committee, September 2004) ("Basin Plan"), which is supported by each of the Commission's signatories, directs, "[w]here water quality meets or is better than standards for the protection of aquatic life and wildlife, implement anti-degradation regulations, policies and/or other mechanisms to maintain or improve existing water quality" (Basin Plan, p. 67).

Proposed Amendments: The Commission proposes to amend the Special Protection Waters regulations by adding one section of the main stem Delaware River to the list of stream reaches classified as Outstanding Basin Waters (see § 3.10.3.A.2.g.1) and two sections of the main stem Delaware River to the list of stream reaches classified as Significant Resource Waters (see § 3.10.3.A.2.g.2). The section of the main stem proposed to be classified as "Outstanding Resource Waters" is the reach extending from RM 171.4, a point just south of the Gilbert Generating Station in Holland Township, New Jersey, to RM 141.8, at Washington Crossing, Pennsylvania. The sections of the main stem proposed to be classified as "Significant Resource Waters" extend from RM 209.5, the downstream boundary of the Delaware Water Gap National Recreation Area, to RM 171.4, the location of which is noted above, and from RM 141.8 at Washington Crossing, Pennsylvania, to RM 133.4, the location of the head of tide at Trenton, New Jersey.

Written comments were accepted through Tuesday, November 30, 2004. A public hearing was held on October 27, 2004 as part of the Commission's regularly scheduled business meeting in the Kirby Auditorium of the National Constitution Center, 525 Arch Street, Independence Mall, Philadelphia. Since all those who wished to testify were afforded an opportunity to do so, the hearing was not continued at a later date. A powerpoint presentation provided by DRBC staff preceded the testimony (1,032 KB; free Adobe reader required to view). The Commission held informational meetings on the proposed rulemaking in Stockton, New Jersey on October 14 and in Easton, Pennsylvania on October 20 (view news release announcing the two informational meetings).

Additional Information, Contact: The full text of the draft resolution (19 KB; free Adobe reader required to view) containing the proposed rule change, a map illustrating the proposed stream classifications for the Lower Delaware (261 KB; free Adobe reader required to view), a map illustrating the Wild and Scenic Rivers System designations in the Lower Delaware (471 KB; free Adobe reader required to view), and reports about the Lower Delaware are available on the Commission's web site, http://www.drbc.net. Please contact Commission Secretary Pamela Bush, 609-883-9500 ext. 203, with questions about the proposed rule or the rulemaking process.

P.O. BOX 7360, West Trenton, NJ 08628-0360
Voice (609) 883-9500 FAX (609) 883-9522
clarke.rupert@drbc.state.nj.us