RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
DELAWARE RIVER BASIN COMMISSION
[ 25 PA. CODE CH. 901 ]
Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Classify the Lower Delaware River as Special Protection Waters
[38 Pa.B. 5107]
[Saturday, September 13, 2008]By Resolution No. 2008-9 on July 16, 2008, the Commission approved amendments to its Water Quality Regulations, Water Code and Comprehensive Plan to establish numeric values for existing water quality for the reach of the main stem Delaware River known as the ''Lower Delaware'' and to assign the Special Protection Waters (SPW) classification ''Significant Resource Waters'' (SRW) on a permanent basis to this reach. The Commission also approved amendments to clarify aspects of the SPW regulations, especially with respect to facilities in place prior to SPW classification, that have confused some Delaware River Basin Commission (DRBC) docket holders and applicants since the SPW program was originally adopted by the Commission in 1992 for point sources and in 1994 for nonpoint sources.
Effective Date
The final-form rulemaking is effective upon filing with each of the signatory parties in accordance with Section 14.2 of the Delaware River Basin Compact and publication of a notice of final rulemaking in the Federal Register. Temporary classification of the Lower Delaware River as SRW will remain in place until this final-form rulemaking takes effect.
Supplemental Information
A detailed comment and response document addressing comments offered at the public hearing on December 4, 2007 and written comments received through the close of the comment period on December 6, 2007 is available on the Commission's web site, DRBC.net. Printed copies of this document may be obtained by contacting the Information Resources Coordinator, Kim Wobick, at (609) 883-9500, Ext. 263 or by email to kimwobick@drbc. state.nj.us. A charge for printing and mailing will apply.
Notice of the proposed regulation was published at 37 Pa. B. 5527 (October 13, 2007), as well as in the 72 FR 57255 (October 9, 2007), 11 DE Reg. 376-378 (10/01/07)), 39 N.J.R. 4392 (October 15, 2007) and the New York State Register (page 8) on October 10, 2007. In addition to the public hearing and comment period noted previously, the Commission held informational meetings about the proposed changes on October 25, 2007, in Stockton, NJ and on November 1, 2007 in Easton, PA.
Rule Text
DRBC Resolution No. 2008-9 incorporates the amended rule in its entirety as an attachment, showing the amendments as proposed in October of 2007 and as finally approved by the Commission on July 16, 2008. In the version of the resolution reprinted as follows, portions of the existing rule text that remain unchanged are replaced with asterisks. A complete copy of Resolution No. 2008-9 as adopted, including the full rule text, is available on the DRBC web site, DRBC.net. Hard copies may be obtained from the Commission by contacting Information Resources Coordinator Kim Wobick at (609) 883-9500, Ext. 263 or at kimwobick@drbc.state.nj.us. A charge for printing and mailing will apply.
NO. 2008-9 A RESOLUTION to amend the Water Quality Regulations, Water Code and Comprehensive Plan by permanently designating the Lower Delaware River as Special Protection Waters with the classification Significant Resource Waters.
WHEREAS, by Resolution No. 70-3, codified in the Commission's Water Quality Regulations at Section 3.10.3 A., the Commission established an antidegradation policy for interstate waters within its jurisdiction, and by Resolutions No. 92-21 and 94-2, it instituted a set of regulations known as the ''Special Protection Waters'' program to implement this policy in certain portions of the Basin. The program is intended to maintain or improve the quality of interstate waters where existing water quality is better than the established stream quality objectives; and
WHEREAS, in accordance with Section 3.10.3 A.2 of the Commission's Administrative Manual-Part III, Water Quality Regulations (''Regulations''), the Delaware Riverkeeper Network submitted to the Commission in April 2001 a nomination petition requesting that the Commission classify the Lower Delaware River--the reach of the main stem Delaware River extending from River Mile 209.5 (the downstream boundary of the Delaware Water Gap National Recreation Area) to River Mile 133.4 (the Head of Tide)--as Special Protection Waters; and
WHEREAS, to be protected as Special Protection Waters, waters must be classified as either ''Outstanding Basin Waters'' or ''Significant Resource Waters,'' as defined in Section 3.10.3 A.2.a. of the Regulations; and
WHEREAS, ''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 the Commission has classified under Section 3.10.3 A.2.g.1 of the Regulations as having exceptionally high scenic, recreational and ecological values that require special protection; and
WHEREAS, ''Significant Resource Waters'' are defined as interstate waters that the Commission has classified under Section 3.10.3 A.2.g.2 of the Regulations as having exceptionally high scenic, recreational, ecological, and/or water supply uses that require special protection; and
WHEREAS, as set forth more fully in Resolution No. 2005-2, data and findings documenting the high quality of scenic, recreational, ecological and water supply attributes of the Lower Delaware River are contained in two studies (DRBC, 2004 and National Park Service, 1999, respectively), a management plan for the Lower Delaware that received a formal expression of Commission support in Resolution No. 98-2 (1997) (this plan was recently re-affirmed in the Lower Delaware River Management Committee Action Plan 2007-2011); a Federal designation of the Lower Delaware as part of the national Wild & Scenic Rivers System (Pub. L. No. 106-418, 106th Congress), and the Water Resources Plan for the Delaware River Basin (DRBC, 2004); and
WHEREAS, after a duly noticed public comment period and a public hearing on the matter, by Resolution No. 2005-2 on January 19, 2005 the Commission found on the basis of the foregoing studies, findings, plans, and federal designation that ''the section of the Delaware River from River Mile 133.4 to River Mile 209.5, known as the ''Lower Delaware River,'' is characterized by exceptionally high scenic, recreational, ecological and/or water supply values/uses within the meaning of Section 3.10.3 A. of the Water Quality Regulations and requires special protection in accordance with that section'' (Res. No. 2005-2, par. 1); and
WHEREAS, by Resolution No. 2005-2 the Commission temporarily classified the Lower Delaware River (also ''Lower Delaware'') as Significant Resource Waters, pending the determination of numeric values for existing water quality for this section of the river and a thorough evaluation of these data to determine whether or not to classify certain sections of the Lower Delaware as Outstanding Basin Waters and whether to make the temporary Special Protection Waters designation permanent for some or all of the Lower Delaware; and
WHEREAS, in the course of designating the Lower Delaware as Special Protection Waters the Commission determined that it would clarify certain provisions of the SPW rule to ensure the rule's uniform application in all parts of the basin in which the rule is applied; and
WHEREAS, to allow the Commissioners and staff time to evaluate implementation options and develop language to clarify aspects of the rule, the Commission extended temporary designation of the Lower Delaware by resolutions No. 2005-15 (extension through September 30, 2006), No. 2006-22 (extension through September 30, 2007) and No. 2007-13 (extension through May 15, 2008), before they caused to be published in October of 2007 in the Federal Register and in the Delaware, New Jersey, New York and Pennsylvania registers a new Notice of Proposed Rulemaking to Amend the Water Quality Regulations, Water Code and Comprehensive Plan to classify the Lower Delaware River as Special Protection Waters; and
WHEREAS, the Commission has determined values for existing water quality for the Lower Delaware, enabling the Commission for the first time to require applicants for new wastewater treatment facilities or for substantial alterations or additions to existing facilities to demonstrate that their new or increased discharges will cause no measurable change to existing water quality except toward natural conditions at a set of established water quality control points; and
WHEREAS, the Commission established a public comment period on the proposed amendments to run through December 6, 2007; it held informational meetings in Stockton, New Jersey on October 25, 2007 and in Easton, Pennsylvania on November 1, 2007; it made presentations on the proposed rule at a series of professional conferences as well as at meetings hosted by citizens' groups and elected officials within the affected regions; and it held a public hearing on the proposal on December 4, 2007; and;
WHEREAS, between September of 2004, when the Commission issued its first public notice of proposed rulemaking to classify the Lower Delaware River as Special Protection Waters, and December 6, 2007, when the comment period closed on the amendments noticed formally in October of 2007, the Commission received thousands of comments from residents, elected officials, treatment plant operators, and administrative agencies, of which the majority constituted petitions and letters in support of the action, and of which approximately three dozen expressed objections to it; and
WHEREAS, during the months of February through July of 2008 Commissioners and Commission staff participated in additional meetings and conference calls at the request of interested parties in order to listen first-hand to the concerns that some constituents raised in written comments submitted during the comment period; and
WHEREAS, the Commissioners and staff have painstakingly sorted, categorized reviewed and prepared written responses to these comments, and in a number of instances have revised the proposed amendments to address concerns raised by commenters and to improve the rule's clarity, especially as applied to existing facilities; and
WHEREAS, extending the full Special Protection Waters program to the Lower Delaware River on a permanent basis will afford these interstate waters the same uniform high standard of protection that has preserved water quality in the Upper and Middle Delaware for approximately 15 years--a standard of protection that could not be achieved by the Commission's member states acting independently of one another; and
WHEREAS, the Commission will reevaluate the Best Demonstrable Technology (BDT) requirements of the rule in light of wastewater technologies developed since the BDT requirements were initially promulgated in 1992, and will consider among other things the effects of employing wastewater technologies on other media, greenhouse gas emissions and energy demands; now therefore,
BE IT RESOLVED by the Delaware River Basin Commission:
1. The section of the non-tidal Delaware River known as the ''Lower Delaware'' between River Miles 209.5 (the downstream boundary of the Delaware Water Gap National Recreation Area) and 134.4 (the Calhoun Street Bridge near the Head of Tide at Trenton, New Jersey), is hereby classified as Significant Resource Waters.
2. The Commission's Water Quality Regulations and Water Code are amended as set forth in the attached, effective upon filing with each of the signatory parties in accordance with Section 14.2 of the Delaware River Basin Compact.
3. As of their effective date, these amendments are hereby incorporated in the Commission's Comprehensive Plan. All aspects of the rule shall be in effect for classified reaches, including the Lower Delaware, in accordance with the amended provisions and including without limitation those requirements that depend for implementation upon the determination of numeric values for existing water quality.
4. Temporary classification of the Lower Delaware River as Significant Resource Waters in accordance with Resolution No. 2005-2 and as extended by resolutions No. 2005-15, No. 2006-22, No. 2007-13, and No. 2008-3 is hereby continued and shall remain in effect until these amendments to the Water Quality Regulations and Water Code are filed in accordance with Section 14.2 of the Compact and a notice of final rulemaking has appeared in the Federal Register.
5. The Commission's Comment and Response Document, containing detailed responses to written and oral comments submitted on the proposed amendments, shall be finalized and made a part of the official rulemaking record for this action and shall be available for public inspection not later than upon the filing of these amendments with each of the signatory parties in accordance with Section 14.2 of the Compact.
MICHELE PUTNAM,
Chairwoman pro temPAMELA M. BUSH, ESQUIRE,
Commission SecretaryTHE AMENDMENTS TO SECTION 3.10.3 A. OF THE COMMISSION'S ADMINISTRATIVE MANUAL -- PART III, WATER QUALITY REGULATIONS ARE SET FORTH BELOW. ADDITIONS APPEAR IN BOLD FACE TYPE. DELETIONS APPEAR IN [BOLD FACE TYPE WITHIN BRACKETS]. UNDERSCORE INDICATES CHANGES THAT DID NOT ACCOMPANY THE NOTICE OF PROPOSED RULEMAKING [I.E., THAT WERE MADE IN RESPONSE TO COMMENTS RECEIVED] ASTERISKS INDICATE ELLIPSES OF THE RULE TEXT RETAINED WITHOUT CHANGE. INSTRUCTIONS TO THE READER EMBEDDED IN THE TEXT ARE SHOWN IN ITALICS.
2. Special Protection Waters.
It is the policy of the Commission that there be no measurable change in existing water quality except towards natural conditions in waters considered by the Commission to have exceptionally high scenic, recreational, ecological, and/or water supply values. Waters with exceptional values may [could] be classified by the Commission as either Outstanding Basin Waters or Significant Resource Waters.
* * * * * a. Definitions
* * * * * 3) ''Existing Water Quality'' for purposes of the Special Protection Waters program is defined for a limited set of parameters, consisting of those listed in Tables 1 and 2. Existing water quality is defined in Table 1 for stream reaches between Hancock, New York and the Delaware Water Gap and in Table 2 for stream reaches between the Delaware Water Gap and Trenton, New Jersey. Where existing water quality is not defined in Tables 1 and 2, existing water quality may be defined by extrapolation from the nearest upstream or downstream Interstate Control Point, from data obtained from sites within the same ecoregion, or on the basis of best scientific judgment. [is defined as the actual concentration of a water constituent at an in-stream site or sites, as determined through field measurements and laboratory analysis of data collected over a time period determined by the Commission to adequately reflect the natural range of the hydraulic and climatologic factors which affect water quality. Existing water quality shall be described in terms of (a) an annual or seasonal mean of the available water quality data, (b) two-tailed upper and lower 95 percent confidence limits around the mean, and (c) the 10th and 90th percentiles of the data set from which the mean was calculated. Where available data are insufficient to determine existing water quality, existing water quality may be estimated from data obtained from sites within the same ecoregion or from best scientific judgment.]
4) ''Measurable Change to Existing Water Quality'' is defined as an actual or estimated change in a seasonal or non-seasonal mean (for SPW waters upstream of and including River Mile 209.5) or median (for SPW waters downstream of River Mile 209.5) [(annual or seasonal)] in-stream pollutant concentration that is outside the range of the two-tailed upper and lower 95 percent confidence [limits] intervals that define existing water quality. [In the absence of adequate available data, background concentrations will be assumed to be zero and ''measurable change'' will be based on in-stream concentrations greater than the detection limit for each parameter, based on the lowest limit of the most sensitive technique specified in 40 CFR Part 136.]
* * * * * [8) ''Detection limit'' is the lowest level of a substance that can be measured in natural waters by a specific analytical method. Detection limit as defined herein, corresponds to the most currently-acceptable values for parameter specific detection limits as specified in 40 CFR Part 136.]
Subsections 3.10.3A.2.a.9) through 12 are renumbered 3.10.3A.2.a.8) through 11).
Subsection 3.10.3A.2.a.13) is renumbered 3.10.3A.2. a.12) and is amended by the addition of the following sentence at the end of the existing text:
The locations of Boundary and Interstate Control Points are described in Part C of Table 1 for the reach between Hancock, N.Y. and the Delaware Water Gap and in Tables 2A and 2B for the reach between the Delaware Water Gap and Trenton, N.J.).
13[14]) ''Interstate [Special Protection Waters] Control Points'' are general locations used to assess water quality for purposes of defining and protecting Existing Water Quality. The locations of Boundary and Interstate Control Points are described in Part C of Table 1 for the reach between Hancock, N.Y. and the Delaware Water Gap and in Tables 2A and 2B for the reach between the Delaware Water Gap and Trenton, N.J.).
Subsection 3.10.3A.2.a.15) is renumbered 3.10.3A.2. a.14).
15[16]) An ''Expanding Wastewater Treatment Project'' is [refers to] a project involving either (a) alterations or additions to an existing wastewater treatment facility [facilities] that result in a reviewable project in accordance with the Commission's Rules of Practice and Procedure; or (b) a [any] new load or increased flow or loading from an existing facility that was not included in a NPDES permit or docket effective on the date of SPW designation [anticipated at the time of NPDES permit issuance].
16) ''Substantial Alterations or Additions'' are those additions and alterations resulting in: (a) a complete upgrade or modernization of an existing wastewater treatment plant, including substantial replacement or rehabilitation of the existing wastewater treatment process or major physical structures such as headworks, settling tanks, and biological/chemical treatment [or] and filtration tanks, whether conducted as a single phase or a multi-phased project or related projects; or (b) a new load or increased flow or loading from an existing facility that was not included in a NPDES permit or docket effective on the date of SPW designation. Among other projects, modifications made solely to address wet weather flows; and alterations that are limited to changes in the method of disinfection and/or the addition of treatment works for nutrient removal are not deemed to be ''Substantial Alterations or Additions.''
17) ''Load'' and ''loading'' are used interchangeably in these regulations and refer to the amount of a substance or material, expressed as a weight per unit time (pounds per day, for example), that is discharged from a facility.
18) ''Incremental load'' and ''incremental loading'' are used interchangeably in these regulations and refer to the load that is greater than the actual load discharged by a facility at the time of SPW designation.
Subsections 3.10.3A.2.a.17) through 20) are renumbered 3.10.3A.2.a.19) through 22).
b. No Measurable Change to Existing Water Quality [Management Policies]
1) Outstanding Basin Waters shall be maintained at their existing water quality. Point and non-point sources of pollutants originating from outside the boundaries of stream reaches classified as Outstanding Basin Waters shall be treated as required and then dispersed in the receiving water so that no measurable change occurs at Boundary and Interstate [Special Protection Waters] Control Points. Point sources of pollutants discharged to Outstanding Basin Waters shall be treated as required and then dispersed in such a manner that complete mixing of effluent with the receiving stream is, for all practical intents and purposes, instantaneous.
2) Significant Resource Waters shall not be degraded below existing water quality as defined in these regulations, although localized degradation of water quality may be allowed for initial dilution if the Commission, after consultation with the state NPDES permitting agency, finds that the public interest warrants these changes. Point and non-point sources of pollutants originating from outside the boundaries of stream reaches classified as Significant Resource Waters shall be treated as required and then dispersed in the receiving water so that no measurable change occurs at Boundary and Interstate [Special Protection Waters] Control Points, unless a mixing zone is allowed in Significant Resource Waters, and then to the extent of the mixing zone designated as set forth in this section. If [localized] degradation of water quality is allowed for initial dilution purposes, the Commission, after consultation with the state NPDES permitting agency, will designate mixing zones for each point source and require the highest possible point [and non-point] source treatment levels necessary to limit the size and extent of the mixing zones. [Mixing zone size will be based on] The dimensions of the mixing zone will be determined by the Commission after consultation with the state NPDES permitting agency based upon an evaluation of (a) site-specific conditions, including channel characteristics; (b) the cost and feasibility of treatment technologies; and (c) the design of the discharge structure. [In general, mixing zones should not exceed a radial distance equal to 1/4 of the width of the river under low flow design conditions] Mixing zones will be developed using the wastewater treatment facility design conditions and low ambient flow conditions unless site-specific characteristics indicate otherwise. Non-point sources shall be subject to the requirements of Section 3.10.3 A.2.e. for the implementation of non-point source control plans.
c. [Policy on] Allowable Discharges
1. Direct discharges of wastewater to Special Protection Waters are discouraged. [No new or expanded wastewater discharges shall be permitted in waters classified as Special Protection Waters until] The following categories of projects discharging directly to Special Protection Waters may be approved only after the applicant demonstrates that it has fully evaluated all non-discharge/load reduction alternatives and is unable to implement these alternatives [have been fully evaluated and rejected] because of technical and/or financial infeasibility: new wastewater treatment facilities and substantial alterations or additions to existing wastewater treatment facilities. When evaluating non-discharge/load reduction alternatives, the applicant shall consider alternatives to any and all loadings -- both existing and proposed -- in excess of actual loadings at the time of SPW designation.
2) The following categories of projects within the drainage area of Special Protection Waters may be approved only after the applicant demonstrates that it has fully evaluated all natural wastewater treatment system alternatives and is unable to implement these alternatives because of technical and/or financial infeasibility: new wastewater treatment facilities and substantial alterations or additions to existing wastewater treatment facilities. When evaluating natural treatment alternatives, the applicant shall consider alternatives to any and all loadings -- both existing and proposed -- in excess of actual loadings at the time of SPW designation.
[2) The general number, location and size of future wastewater treatment facilities discharging to Outstanding Basin Waters (if any) shall be developed taking into consideration any adopted regional resource management plan as defined in Section 3.10.3.A.2.a.6) and, on an individual project basis, based on the feasibility of non-discharging options.]
3) [Discharges] The following categories of projects discharging directly to Significant Resource Waters may be approved only following a determination that the project is [shall only be allowed for circumstances which are demonstrably] in the public interest as that term is defined in Section 3.10.3.A.2.a.5): new wastewater treatment facilities and substantial alterations or additions to existing wastewater treatment facilities.
4) The general number, location and size of future wastewater treatment facilities discharging to Outstanding Basin Waters (if any) shall be developed taking into consideration any adopted regional resource management plan as defined in Section 3.10.3 A.2.a.6) and, on an individual project basis, considering [based on] the feasibility of non-discharge [non-discharging] /load reduction alternatives.
d. [Policies Related to] Wastewater Treatment Facilities
* * * * * [5) All applicants seeking wastewater treatment project approval under Section 3.8 of the Compact shall satisfactorily prove the technical and/or financial infeasibility of using natural wastewater treatment technologies.]
5[6]) The minimum level of wastewater treatment for the following categories of projects will be ''Best Demonstrable Technology'' as defined below: all new [and expanding] wastewater treatment facilities and all projects involving substantial alterations or additions to existing wastewater treatment facilities when the new or expanding facility discharges directly to Outstanding Basin Waters or Significant Resource Waters[, including projects approved by the Commission after September 1988, will be ''Best Demonstrable Technology'']. Equivalent effluent criteria for industrial facilities and seasonal limits, if any, will be developed on a case-by-case basis. The following 30-day average effluent criteria define Best Demonstrable Technology*:
5-day CBOD: 10 mg/l or less Dissolved oxygen: 6.0 mg/l or greater Total suspended solids: 10 mg/l or less Ammonia-nitrogen: 1.5 mg/l or less Total nitrogen: 10.0 mg/l or less Total phosphorus: 2.0 mg/l or less Fecal coliform: 50/100 ml or less * The effluent criteria that define Best Demonstrable Technology (BDT) were established by these Regulations in 1992 when DRBC originally promulgated the Special Protection Waters regulations for point source discharges. Although treatment technologies have advanced since that year, these ''BDT'' criteria have been retained for the limited purposes of the SPW program. BDT as defined herein may be superseded, however, by applicable federal, state or DRBC criteria that are more stringent.
6[7]) Best demonstrable technology for disinfection shall be ultraviolet light disinfection or an equivalent disinfection process that results in no harm to aquatic life, does not produce toxic chemical residuals, and results in effective bacterial and viral destruction.
7) For wastewater treatment facility discharge projects that satisfy applicable requirements of Sections 3.10.3 A.2.b. through d. above, the Commission may approve effluent trading on a voluntary basis between point sources within the same watershed or between the same Interstate or Boundary Control Points to achieve no measurable change to existing water quality. Applicants seeking the Commission's approval for a trade must demonstrate equivalent load and pollutant reductions and the ability (through contracts, docket conditions, NPDES effluent limits or other legal instruments) to ensure continuous achievement of the required reductions for a term of not less than five (5) years or the time required for the point source(s) to install the treatment needed to demonstrate no measurable change to Existing Water Quality, whichever term is longer. States will be encouraged to incorporate appropriate conditions in the next NPDES permits issued to the trading dischargers.
8) For wastewater treatment facilities within the drainage area to Special Protection Waters, the actual loads and design flows included in a NPDES permit or docket effective at the time of Special Protection Waters designation (''SPW designation'') may continue without triggering the additional treatment requirements and alternatives analyses required by these regulations. However, when Substantial Alterations or Additions as defined herein are proposed, although the actual discharge at the time of SPW designation remains exempt from additional requirements, the proposed expansion cannot be approved until (a) the applicant demonstrates that it has evaluated all non-discharge load reduction alternatives for all or a portion of the incremental load and is unable to implement these alternatives because of technical or financial infeasibility (for discharges directly to Outstanding Basin Waters (OBW) and Significant Resource Waters (SRW)); (b) the applicant demonstrates that it has evaluated all natural wastewater treatment system alternatives for all or a portion of the incremental load and is unable to implement these alternatives because of technical or financial infeasibility (for discharges directly to OBW and SRW and for tributary discharges); (c) the Commission has determined that the project is demonstrably in the public interest as defined herein (for discharges directly to SRW); (d) the minimum level of treatment to be provided for the incremental discharge is Best Demonstrable Technology as defined herein (for discharges directly to OBW and SRW); and (e) the applicant demonstrates that the project will cause no measurable change to Existing Water Quality as defined herein (for discharges directly to OBW and SRW and for tributary discharges).
9) For wastewater treatment facility projects subject to the no measurable change requirement, the demonstration of no measurable change to existing water quality shall be satisfied if the applicant demonstrates that the new or incremental increase in the facility's flow or load will cause no measurable change at the relevant water quality control point for the parameters denoted by asterisks in Tables 1 and 2 of this section: ammonia (NH3 N); dissolved oxygen (DO); fecal coliform (FC); nitrate (NO3 N) or nitrite + nitrate (NO2 N + NO3 N); total nitrogen (TN) or total Kjeldahl nitrogen (TKN); total phosphorus (TP); total suspended solids (TSS); and biological oxygen demand (BOD) (Table 1 only). In making the demonstration required in the preceding sentence the applicant shall use a DRBC-approved model of the tributary or main stem watershed if available. Where a DRBC-approved model is not available, the applicant shall use other methodologies submitted to and approved in advance by the Commission to estimate cumulative effect at the applicable control point.
e. [Policies Concerning the] Control of Non-Point Sources
* * * * * The [Commission] Executive Director may, upon agreement with the state, delegate review and approval responsibilities under this section to the appropriate state environmental agency.
Exceptions to this policy are:
(a) Public authorities, other special purpose districts, and private corporations that do not have the legal authority to implement non-point source controls in their new or expanded service areas. Such entities are subject, however, to the requirement set forth in paragraph 3.10.3 A.2.e.2) below, that no new connection may be approved unless the area(s) served is (are) regulated by a non-point source pollution control plan approved by the Commission.
* * * * * 3) Within two years after the adoption of Special Protection Waters non-point source control regulations, . . . .
* * * * * Watershed priorities will be determined from a comparative analysis of each watershed's location and potential, future impact on existing water quality at designated Boundary and Interstate [Special Protection Waters] Control Points. In determining priorities, the Commission will consider:
* * * * * f. Policies Regarding Inter-Government Responsibilities
1) Inter-relationship of State and Commission Responsibilities.
The applicable state environmental agency shall assure to the extent possible[,] that existing water quality in Special Protection Waters is not measurably changed by pollution discharged into the intrastate tributary watersheds within its jurisdiction. For water quality management purposes, the state environmental agency and the Commission will jointly establish Boundary Control Points as described in Section 3.10.3.A.2a.12[13]) and g.4).
* * * * * g. Classified Special Protection Waters
* * * * * 2) The following stream reaches are classified as Significant Resource Waters:
* * * * * (b) The Lower Delaware River between River Miles 209.5 (the downstream boundary of the Delaware Water Gap National Recreation Area) and [133.4] 134.34 (the Calhoun Street Bridge near the Head of Tide at Trenton, NJ).
3) Definitions of Existing Water Quality for waters classified in paragraphs 1) and 2) above are presented in Part A of Table 1 for the Upper Delaware Scenic & Recreational River and Part B of Table 1 for the reach from Millrift, Pa. to the Delaware Water Gap, including the Middle Delaware Scenic and Recreational River; and in Table 2 for the reach between the Delaware Water Gap and Trenton, N.J. [Definitions of existing water quality for waters classified in 1) and 2) above are presented in Table 1.]
4) The locations of Boundary and Interstate [Special Protection Waters] Control Points are described in [Table 2] Part C of Table 1 for the reach between Hancock, N.Y. and the Delaware Water Gap and in Table 2 for the reach between the Delaware Water Gap and Trenton, N.J.
* * * * * [6) For the stream reach listed in Section 3.10.3A2.g.2).(b), all provisions of Section 3.10.3A.2 shall be in effect except those listed below:]
* [The requirement at Section 3.10.3A.2.b.2). that ''[p]oint and non-point sources from outside the boundaries of stream reaches classified as Significant Resource Waters shall be treated as required and then dispersed in the receiving water so that no measurable change occurs at Boundary and Interstate Special Protection Waters Control Points.'']
* [The requirement of Section 3.10.3A.2.b., read in combination with Section 3.10.3A.2.d.6), that new and expanding wastewater treatment projects discharging to Special Protection Waters may be subject to additional treatment requirements, above and beyond the effluent criteria defining Best Demonstrable Technology, as necessary to ensure no measurable change in existing water quality in Special Protection Waters.]
* [The requirement at Section 3.10.3A.2.f. that state environmental agencies ''shall assure to the extent possible, that existing water quality in Special Protection Waters is not measurably changed by pollution discharged into the intrastate tributary watersheds within their jurisdiction.'']
[Sections 3.10.3A.2.g.2).(b) and 3.10.3A.2.g.6). shall expire on May 15, 2008 unless extended by amendment to this rule.]
TABLE 1. DEFINITION OF EXISTING WATER QUALITY IN THE DELAWARE RIVER BETWEEN HANCOCK, NEW YORK AND THE DELAWARE WATER GAP1
1 The numeric values for Existing Water Quality set forth in Parts A, B and C of Table 1 were developed through field measurements and laboratory analysis of data collected over a time period determined by the Commission to adequately reflect the natural range of the hydraulic and climatologic factors that [which] affect water quality. Existing water quality [shall be] is defined in terms of (a) an annual or seasonal mean of the available water quality data, (b) two-tailed upper and lower 95 percent confidence limits around the mean, and (c) the 10th and 90th percentiles of the data set from which the mean was calculated.
[PART C: NOTES ON STATISTICS USED TO DEFINE EXISTING WATER QUALITY] 2 The definitions of Existing Water Quality presented in Parts A and B of this table were developed by performing parametric statistical analyses using logarithmic transformation of available water quality data to derive normality. The numbers represent the anti-log of the statistical results and, thus, will differ from numbers generated by using non-transformed data. Means derived from log transformations, for example, will be lower than means derived from non-transformed data. The 95 percent confidence limits were derived from a two-tailed distribution. Biocriteria were not developed using log-transformed data. The three indices used to develop the biocriteria were derived from specialized transformations of the original data, resulting in values that are normally distributed.
[TABLE 2. BOUNDARY AND INTERSTATE SPECIAL PROTECTION WATERS CONTROL POINTS]
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