DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL

Division of Water Resources

Statutory Authority: 7 Delaware Code, Chapter 60 (7 Del.C. Ch. 60)

FINAL

FINAL ORDER

Secretary’s Order No. 2005-W-0050

7412 Total Maximum Daily Loads (TMDLs) for Chester River Watershed in Delaware

Date of Issuance: December 15, 2005

Effective Date: January 11, 2006

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.

The proposed regulations under consideration are intended to protect and improve the water quality of the Delaware waters within the four Delaware watersheds of the following waters: Choptank River, Chester River, Marshyhope Creek and Pocomoke River. The Department conducted extensive testing and analysis, including applying approved and tested computerized water quality models, and developed Total Maximum Daily Loads (“TMDLs”) for nitrogen, phosphorus and bacteria. These TMDLs were included in proposed regulations published October 1, 2005, in the Delaware Register of Regulations, after the Department conducted two public workshops and provided opportunity for informal public comment. On October 27, 2005, a public hearing was held and the record remained open for public comment until October 31, 2005.

Based on the record of decision, including the public hearing record reviewed in the December 12, 2005 Hearing Officer’s Report (“Report”) attached as Appendix A hereto, I find and conclude that the proposed regulations are amply supported and are not arbitrary or capricious. I agree with the Report, which found that the proposed regulations set forth a reasoned basis to achieve the goal of improving the quality of waters within the four Delaware watersheds. The Department previously determined portions of these waters are impaired, that is, they failed to meet Delaware’s water quality standards. The Report reviews and summarizes the record and recommends approval of the proposed regulations as final regulations without any substantive modifications. I adopt the Report as part of this Order, and include the following additional reasoning.

The final regulations are based upon sound scientific evidence, are consistent with state and federal law, and are a reasonable means to achieve improved water quality through reducing or capping levels of nitrogen, phosphorus and bacteria that are entering the waters from nonpoint sources in the watershed. The regulations will control all the nonpoint sources in the four watersheds by requiring that the release of these substances will be under the TMDLs. The Department has determined that the TMDLs reasonably define the maximum limits of potential pollution causing substances that should be allowed to enter the waters already determined to be impaired. Thus, these regulations will allow the TMDLs to be used to develop the pollution control strategies to enforce the TMDLs in order that the goal of cleaner water may be achieved.

The Report discusses the public comments, including extensive comments submitted by the Mid-Atlantic Environmental Law Clinic, which, if adopted, would delay the establishment of these TMDLs, or any TMDLs, at this time. I find that any delay in approving these regulations is contrary to the effort to improve the water quality. I agree that the proposed regulations should be approved and adopted as final regulations without any delay, particularly since the Department is subject to a consent order deadline.

The substance of the proposed regulations is found in Article 1 through 3 of each of the proposed regulations for the four watersheds. These articles set forth TMDLs that will either cap at baseline levels or reduce from base line levels the amount of nitrogen, phosphorus and bacteria that will enter and harm the water quality. There will be significant reduction in the level of these substances entering the waters once the TMDLs are enforced through pollution control strategies. Approval of these TMDLs will allow all of the impaired waters within the four watersheds to meet the Delaware water quality standards, which is an important goal for the Department to achieve.

In conclusion, the following findings and conclusions are entered:

The Department, acting through this Order of the Secretary, adopts the proposed regulation as final regulations, 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;

The issuance of the proposed regulations as final regulations will protect and improve the water quality of the Chesapeake Drainage Watersheds, as defined by elevation maps, and allow the pollution control strategies to be developed for the watersheds that will result in improved water quality that meets Delaware’s water quality standards;

The TMDLs that are approved by this Order were developed consistent with the applicable law and regulatory standards and are adequately supported by technical analysis in the record;

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;

The Department’s proposed regulations, as published in the October 1, 2005, Delaware Register of Regulations, and set forth in Appendix B to this Order, were found by the Hearing Officer to be well-supported, not arbitrary or capricious, and are consistent with the applicable laws and regulations. I adopt the Report and hereby approve as final regulations the proposed regulations recommended for adoption by the Report; and that;

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 written comments.

John A. Hughes, Secretary

7412 Total Maximum Daily Loads (TMDLs) for Chester River[, Watershed in] Delaware

1.0 Introduction and Background

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

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 Chester River 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 Chester River[, Watershed in] Delaware

Article 1. The nonpoint source nitrogen load in the entire watershed shall be capped at the 2001-2003 baseline level. This shall result in a yearly-average total nitrogen load of 708 pounds per day.

Article 2. The nonpoint source phosphorus load in the entire watershed shall be reduced by 40 percent from the 2001-2003 baseline level. This shall result in reducing the yearly-average total phosphorous load from 54.6 pounds per day to 32.3 pound per day.

Article 3. The nonpoint source bacteria load in the entire watershed shall be reduced by 75.6% from the 1997 – 2005 baseline levels. This shall result in reducing a yearly-mean bacteria load from 1.9E+11 CFU per day to 4.6E+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 Chester River.

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 the Tributary Action Teams, other stakeholders, and the public.

9 DE Reg. 1102 (01/01/06) (Final)