DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Water Resources

7 DE Admin. Code 7410, 7411

Statutory Authority: 7 Delaware Code,

Chapter 60 (7 Del.C. Ch. 60)

ORDER NO. 2005-W-0038

7410 TMDLs for the Naamans Creek Watersheds

7411 TMDLs for Shellpot Creek, Delaware

Under the authority vested in the Secretary of the Department of Natural Resources and Environmental Control (“Department” or “DNREC”) under 29 Del.C. §§8001 et seq., 29 Del.C. §§10111 et seq. and 7 Del.C. §6010 (a), the following findings, reasons and conclusions are entered as an Order of the Secretary in the above-referenced rulemaking proceeding.

Based on the record, including the public hearing record reviewed in the November 10, 2005, Hearing Officer’s Report (“Report”), attached as Appendix A, I find that the proposed regulation is well supported and is not arbitrary or capricious. The Report reviews and summarizes the public hearing record, which was developed at the September 7, 2005, public hearing. The Report recommends approval of the proposed regulation as a final regulation without modification. I agree with the Report and adopt it as part of this Order along with its reasons.

The proposed regulation is based upon sound scientific evidence, is consistent with state and federal law, and is a reasoned regulation that will result in improved water quality within the two watersheds. The improvements will occur through the Total Maximum Daily Loads (“TMDLs”), which will require nonpoint sources to reduce or cap nitrogen, phosphorous and bacteria loads. The TMDLs will reduce pollutants to levels that the Department’s experts have determined are necessary to improve the quality within these waters. The levels should meet the water quality standards that the Department and the federal government have determined are necessary to support the waters’ beneficial uses. Thus, the establishment of these TMDLs for these watersheds is part of a multi-step federal and state regulatory process that will result in improved water quality for both watersheds.

The Report discusses the comments submitted by the Mid-Atlantic Environmental Law Clinic (“MAELC”). The Report notes that these comments, if adopted, would result in a significant delay in the establishment of any TMDLs. The Report further states that the proposed regulation reflects a reasonable regulation that should be approved now, as opposed to later, because it represents a clear improvement over not establishing any TMDLs. The proposed regulation was the subject of considerable public outreach efforts, including contacting interested persons when the process was first approved. The public participation culminated in the public hearing on the proposed regulation. The public comments received during the hearing were excellent, but do not convince me to change the prompt promulgation of the proposed regulation as a final regulation because that will improve the environment sooner than if the comments were to be adopted.

The comments, if adopted, would require the Department to undertake more studies, which would delay the establishment of any TMDLs for a long time. Moreover, the studies that the comments seek may result in no change to the conclusion supported in the present record. If the studies do not change the conclusions, then the result would be a considerable delay in the regulatory progress towards cleaner waters in the two watersheds. The Department considers it more important to move forward now and direct definite pollution control steps now through establishing well-supported TMDLs that will be in effect next month, as opposed to possibly years from now.

The Report also recommends that MAELC participate earlier in the regulatory process. I agree and encourage the early and often participation of MAELC and others in this and other of the Department’s regulatory proceedings.

In conclusion, the following findings and conclusions are entered:

1. The Department, acting through this Order of the Secretary, adopts the proposed regulation as a final regulation, as set forth in the Appendix B to the Report, under 29 Del.C. §6010 (a) and pursuant to the federal Clean Water Act, 33 U.S.C §1251 et seq. and the United States Environmental Protection Agency’s regulations pursuant to the Clean Water Act;

2. The issuance of the proposed regulation as a final regulation will protect and improve the water quality of the Shellpot Creek and Naamans Creek watersheds, as defined by elevation maps, and allow Pollution Control Strategies to be developed for them;

3. The TMDLs that are approved by this Order were developed consistent with the applicable law and regulatory standards, and are adequately supported by expert technical analysis;

4. The Department provided adequate public notice of the proceeding and the public hearing in a manner required by the law and regulations, held a public hearing in a manner required by the law and regulations, and considered all timely and relevant public comments in making its determination;

5. The Department’s proposed regulation, as published in the August 1, 2005, Delaware Register of Regulations, and set forth in Appendix B to the Report, is adequately supported, not arbitrary or capricious, is consistent with the applicable laws and regulations, and should be approved as a final regulation to go into effect ten days after its publication in the next available issue of the Delaware Register of Regulations; and that;

6. The Department shall provide written notice to the persons affected by the Order, as determined by those who participated in this rulemaking at either the public workshop or at the public hearing, including participation through the submission of timely and relevant written comments.

John A. Hughes, Secretary

Department of Natural Resources and Environmental

Control

Date of Issuance: November 15, 2005

Effective Date: December 11, 2005

7410 TMDLs for the Naamans Creek Watersheds

1.0 Introduction and Background

1.1 Water quality monitoring performed by the Department of Natural Resources and Environmental Control (DNREC) has shown that Naamans Creek is impaired by high levels of bacteria and elevated levels of the nutrients nitrogen and phosphorous, and that the designated uses are not fully supported by water quality in the stream.

1.2 Section 303(d) of the Federal Clean Water Act (CWA) requires states to develop a list (303(d) List) of waterbodies for which existing pollution control activities are not sufficient to attain applicable water quality criteria and to develop Total Maximum Daily Loads (TMDLs) for pollutants or stressors causing the impairment. A TMDL sets a limit on the amount of a pollutant that can be discharged into a waterbody and still protect water quality. TMDLs are composed of three components, including Waste Load Allocations (WLAs) for point source discharges, Load Allocations (LAs) for nonpoint sources, and a Margin of Safety (MOS).

1.3 DNREC listed the Naamans Creek on several of the State’s 303(d) Lists and proposes the following Total Maximum Daily Load regulation for nitrogen, phosphorous, and Enterococcus bacteria.

2.0 Total Maximum Daily Loads (TMDLs) Regulation for Naamans Creek, Delaware

Article 1. The nonpoint source nitrogen load shall be capped at the 2000-2004 baseline level. This shall result in a yearly-average total nitrogen load of 228 pounds per day.

Article 2. The nonpoint source phosphorous load shall be capped at the 2000-2004 baseline level. This shall result in a yearly-average total phosphorous load of 13 pounds per day.

Article 3. The nonpoint source bacteria load shall be reduced by 78%. This shall result in reducing a yearly-mean bacteria load from 5.8E+10 CFU per day to 1.6E+10 CFU per day.

Article 4. Based upon water quality model runs and assuming implementation of reductions identified by Articles 1 through 3, DNREC has determined that, with an adequate margin of safety, water quality standards will be met in Naamans Creek.

Article 5. Implementation of this TMDL Regulation shall be achieved through development and implementation of a Pollution Control Strategy. The Strategy will be developed by DNREC in concert with a Naamans Creek Tributary Action Team, other stakeholders, and the public.

7411 TMDLs for Shellpot Creek, Delaware

1.0 Introduction and Background

1.1 Water quality monitoring performed by the Department of Natural Resources and Environmental Control (DNREC) has shown that the Shellpot Creek is impaired by high levels of bacteria and elevated levels of the nutrients nitrogen and phosphorous, and that the designated uses are not fully supported by water quality in the stream.

1.2 Section 303(d) of the Federal Clean Water Act (CWA) requires states to develop a list (303(d) List) of waterbodies for which existing pollution control activities are not sufficient to attain applicable water quality criteria and to develop Total Maximum Daily Loads (TMDLs) for pollutants or stressors causing the impairment. A TMDL sets a limit on the amount of a pollutant that can be discharged into a waterbody and still protect water quality. TMDLs are composed of three components, including Waste Load Allocations (WLAs) for point source discharges, Load Allocations (LAs) for nonpoint sources, and a Margin of Safety (MOS).

DNREC listed Shellpot Creek on several of the State’s 303(d) Lists and proposes the following Total Maximum Daily Load regulation for nitrogen, phosphorous and Enterococcus bacteria.

2.0 Total Maximum Daily Loads (TMDLs) Regulation for the Shellpot Creek, Delaware

Article 1. The nonpoint source nitrogen load from the area south of Business Route 13 shall be reduced by 35% (from the 2000-2003 baseline). This shall result in reducing the yearly-average total nitrogen load from 19.2 pounds per day to 12.5 pounds per day.

Article 2. The nonpoint source nitrogen load from the area north of Business Route 13 shall be capped at the 2000-2003 baseline level. This shall result in a yearly-average total nitrogen load of 89.4 pounds per day.

Article 3. The nonpoint source phosphorous load from the area south of Business Route 13 shall be reduced by 35% (from the 2000-2003 baseline). This shall result in reducing the yearly-average total phosphorous load from 2.0 pounds per day to 1.3 pound per day.

Article 4. The nonpoint source phosphorous load from the area north of Business Route 13 shall be capped at the 2000-2003 baseline level. This shall result in a yearly-average total phosphorous load of 5.7 pounds per day.

Article 5. The nonpoint source bacteria load shall be reduced by 74% from the 1998-2004 baseline level. This shall result in reducing a yearly-mean bacteria load from 3.7E+10 CFU per day to 9.0E+9 CFU per day.

Article 6. The bacteria load from Wilmington CSO 31 shall be reduced by 28% from the 1998-2004 baseline level. This shall result in reducing a yearly-mean bacteria load from 5.4E+10 CFU per day to 3.9E+10 CFU per day.

Article 7. Based upon water quality model runs and assuming implementation of reductions identified by Articles 1 through 6, DNREC has determined that, with an adequate margin of safety, water quality standards will be met in Shellpot Creek.

Article 8. Implementation of this TMDLs Regulation shall be achieved through development and implementation of a Pollution Control Strategy. The Strategy will be developed by DNREC in concert with a Shellpot Creek Tributary Action Team, other stakeholders, and the public.

9 DE Reg. 1002 (12/01/05)(Final)