Overview

In October 2009, the Army Corps announced a Notice to Proceed with the Delaware Deepening project.  In November 2009, the Delaware Riverkeeper Network led four other citizen environmental organizations – National Wildlife Federation, New Jersey Environmental Federation, Delaware Nature Society, Clean Water Action in Pennsylvania – to file suit in Federal District Court in New Jersey against the Delaware deepening proposal.  DRN and the groups also filed a motion in Delaware District Court to intervene in and support the legal action brought against the deepening by the State of Delaware, including a motion for a preliminary injunction. 

 When the Army Corps announced that it was going to proceed with the Deepening project at this time, it was announcing its arbitrary and capricious intent to violate the Administrative Procedures Act, based on non-compliance with no less than 6 federal environmental and community protection laws as well as state environmental and community protection laws.  
 

In addition to being a flagrant violation of state and federal law, the Notice to Proceed and related action by the Army Corps (supported by Pennsylvania) to move forward with the deepening without needed Delaware and New Jersey permits and approvals is a stripping of state environmental protection authority that cannot be allowed to stand. 

While DRN fully supported (and indeed advocated for) legal challenges by New Jersey and Delaware, DRN did not believe the states’ legal challenges fully represented all of the legal violations, nor did the states represent all the interests that DRN and its partners bring to bear on the issue.   New Jersey’s action was broader than Delaware’s and included more environmental claims to be sure, but neither included the full array of environmental harms that is included in the Delaware Riverkeeper Network litigation, and it is impossible to know how the states will proceed strategically.   Further, DRN represents a holistic view of the watershed and the protection of the River and environments, not based on political boundaries, but on their importance to our members and the citizens of the region.

Responding To a Motion

Responding to a motion for a preliminary injunction filed in the Delaware case the Army Corps was allowed to begin one 12 mile stretch of the project with an injunction imposed on the forward movement of the rest of the project.  That initial work began on March 1, 2010.

The New Jersey Judge denied a request by the Army Corps to transfer the New Jersey case to Delaware and therefore to allow the consolidation of the two cases.  As a result the two District Court cases proceeded on parallel tracks.  RN’s attorneys, on behalf of our coalition of clients, filed motions for summary judgment in both district courts.

Delaware Riverkeeper Network, on October 18, 2010, filed a notice of intent to sue regarding the deepening project and ensuring it does not violate the Endangered Species Act with regards to Atlantic Sturgeon, proposed October 6, 2010 for ESA listing by the National Marine Fisheries Service and identified as at particular risk from the deepening project.  

On November 4th, Judge Joel Pisano of the federal District of New Jersey denied our motion to stay proceedings pending the Army Corps of Engineers’ compliance with its obligations under the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) to protect Atlantic sturgeon in the Delaware River. We filed this motion after the National Marine Fisheries Service proposed the Atlantic sturgeon for listing under the Endangered Species Act on October 6, 2010. Judge Pisano ruled that our motion to stay was premature because the Corps needs more time to fulfill its obligations under NEPA and the ESA and that granting the stay would cause economic harm to the Port of Philadelphia. He also stated that granting our motion to stay is unnecessary because the Corps is currently under an injunction issued by Judge Robinson of the federal District of Delaware in our litigation in front of that court, preventing the Corps from proceeding with further dredging. 
 
Notably, however, even prior to Judge Pisano’s ruling, the Corps had already canceled its contract process for the next phase of dredging that was intended to begin on December 1, 2010. We understand that the Corps does not intend to begin further work on the Deepening Project until August 2011, and that it is currently working to fulfill its obligations under the ESA to confer with the National Marine Fisheries Service on the Deepening Project’s impacts on Atlantic sturgeon as well as its obligations under NEPA to consider doing a Supplemental Environmental Impact Statement.

On November 17, 2010, Judge Robinson of the federal district court in Delaware issued  her decision on the parties’  cross-motions for summary judgment, rationalizing the Army Corps’ decision to proceed with a multi-year, multi-million dollar project to deepen the shipping channel by a full five feet as an action to “maintain” navigation. Her decision found for the Corps on all counts and enabled the Corps to avoid all responsibility for complying with environmental review, particularly review under Delaware state law. Simultaneously she also denied our motion to stay based on the Army Corps’ need to comply with the ESA and NEPA to ensure protection for the proposed endangered Atlantic sturgeon in the River. Judge Robinson lifted her injunction against the Deepening Project’s proceeding in all reaches of the River, giving the Army Corps the green light to proceed with its plans to deepen, straighten, and otherwise permanently degrade and alter the River and its habitats.  
 
DRN and our co-plaintiffs will file an appeal with the Third Circuit to challenge Judge Robinson’s decision, particularly her faulty reading of the Clean Water Act’s definition of the Army Corps’ ability to “maintain” navigation. 

On January 13, 2011, Judge Joel A. Pisano, District Judge for the United States District Court District of New Jersey issued his opinion in which he denied the motions for Summary Judgment filed by the State of New Jersey and five environmental organizations, including Delaware Riverkeeper Network.  In his decision, Judge Pisano gave the Army Corps deference for their actions and decisions, and used this as a firm basis upon which to rest his opinion.  The Delaware Riverkeeper Network does not believe this deference is factually or legally warranted and that the judge reached a flawed conclusion. 

Update: 2/1/2011

February 1, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed an appeal to the Third Circuit Court of Appeals of the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware. 

Update: 2/16/2011

February 16, 2011, the Delaware Riverkeeper Network, the Delaware Riverkeeper, New Jersey Environmental Federation, Clean Water Action, Delaware Nature Society and National Wildlife Federation filed their appeal to the Third Circuit Court of Appeals of the January 13, 2011 ruling by Judge Joel A. Pisano, U.S. District Court in the District of New Jersey regarding the Delaware deepening project. This appeal is the second one filed by the five environmental organizations. The first appeal was filed on February 1, 2011 and challenged the ruling by Judge Sue Robinson of the U.S. District Court in the District of Delaware. 

Update: 1/18/2012:

Oral argument before the Third Circuit Court of Appeals took place on this date. The organizations await decision.

Outcome:

Sadly the courts sided with the Army Corps of Engineers and have allowed the project to proceed without further environmental assessment or consideration.

 

The Salem Nuclear Generating Station is the Largest Predator in the Delaware Estuary.  Delaware Riverkeeper Network continues our multi-year legal challenge to defeat the permit that allows the unprecedented fish kills inflicted by Salem unnecessarily as there is an alternative technology that would reduce those kills by over 95%.

Overview

The Salem Nuclear Generating Station, located on Artificial Island in Salem County, NJ kills over 14 billion Delaware River fish, eggs and larvae every year impingement and entrainment including: 

• Over 59 million Blueback Herring 
• Over 77 million Weakfish 
• Over 134 million Atlantic Croaker 
• Over 412 million White Perch 
• Over 448 million Striped Bass 
• Over 2 billion Bay Anchovy 

(Source: correspondence from US Fish & Wildlife Service to NJDEP, June 30, 2000 relying on PSE&G permit application data)

By retrofitting the Salem plant with a closed cycle cooling system those fish kills could be reduced by over 95%.  

In the past, rather than require this existing, used and proven technology, the State of NJ has primarily allowed PSE&G, the owner and operator of Salem, to “mitigate” its fish kills by changing the ratios of vegetation in wetlands.  The problem is, this program does nothing to reduce the fish kills and according to PSE&G’s own data is not improving fish habitat or fish abundance in the Delaware River.  Court rulings, of which the Delaware Riverkeeper Network has been a part, have made clear that mitigation is not an appropriate path for fulfilling the requirements of the Clean Water Act to minimize these fish kills.  

Salem’s permit expired in July, 2006.  February 2006 PSE&G submitted a permit renewal application. As a result the facility has been allowed to continue to operate under its expired permit.  

DRN Work

In October 2013, the Delaware Riverkeeper Network filed on behalf of the Delaware Riverkeeper Network, New Jersey Sierra Club and the New Jersey Environmental Federation initiating a legal action requesting an order demanding that the NJDEP take action on PSE&G’s permit renewal application for the Salem Nuclear Generating Station located in Lower Alloways Creek Township, New Jersey.  

On November 13, 2014, the Delaware Riverkeeper Network, New Jersey Sierra Club and Clean Water Action settled their legal action against the New Jersey Department of Environmental Protection (NJDEP) and in-so-doing have secured a commitment from NJDEP to issue a draft discharge permit to PSE&G’s Salem Nuclear Generating Station by June 30, 2015. Issuance of the draft permit will cause NJDEP to take a position on whether the facility’s cooling water intake structures, which kill more than three (3) billion fish per year, must be updated to significantly reduce these fish kills and the facility’s water usage. Once the draft permit is issued the public will have a chance to submit comments and thereafter challenge any final NJDEP decision if it believes NJDEP has not required the proper level of environmental protection at the facility.

June 30, 2015, complying with the settlement agreement, the New Jersey Department of Environmental Protection (NJDEP) issued a draft permit. The permit largely allows PSE&G to operate Salem business as usual – that means drawing in over 3 billion gallons of water a day to use in their cooling operations, killing over 3 billion (with a ‘B’) fish a year, discharging super heated water into sensitive estuarine waters, along with other pollutants. 

The State

While the State took 9 years to craft and issue this draft, they only gave the public 60 days and 1 hearing in which to review and comment. And both the comment period and the hearing occured during the height of vacation season (July and August with the hearing on August 5). Nonetheless, the Delaware Riverkeeper Network submitted significant comments and expert reports on the draft permit issued by NJDEP for public comment.  Amongst the findings of our experts:

• Two major analyses show that stopping the killing of fish with closed cycle cooling could provide economic benefits worth up to $577 million….. ECONorthwest, p. vii
• 14.7 billion fish a year are impinged and/or entrained at Salem.  Closed cycle cooling at Salem would reduce this mortality by over 12.8 billion.  ECONorthwest, p. 4
• 14.7 billion fish impinged & entrained at Salem a year translates into 360 million fish killed in an average year that, but for Salem, would have survived to age one. ECONorthwest, p. 4
•  “The total installed cost of [closed cycle cooling at Salem] ($852 million) represents about 31 percent of the companies [PSEG & Exelon, Salem’s owners] combined annual capital expenditure, and the annual loan payment pf just two percent.”  ECONorthwest, p. 24
• Installing closed cycle cooling at Salem “would increase electricity rates by $0.0036 per kWh.”  ECONorthwest, p. 25

Copies of the Delaware Riverkeeper Network comment and expert reports can be found at:

• DRN Comment
• DRN Expert CEA 21527 Salem Generating Station Report
• DRN Expert EcoNW Final Report re Salem NGS

Despite the signficant expert, legal and factual challenges contained in our permit, on June 10, 2016, NJDEP issued a final permit that allowed PSEG to essentially continue business as usual when it came to their operations that result in the killing of over 14 Billion fish, eggs and larvae every year from our Delaware River.  In response, on July 8, 2016 the Delaware Riverkeeper Network filed a legal challenge with the Office of Legal Affairs in New Jersey’s Department of Environmental Protection seeking a new hearing to review the renewed permit issued by NJDEP to PSE&G’s Salem Nuclear Generating Station located on Artificial Island in Salem County, NJ. The permit, as issued, would extend the Salem facility’s use of once through cooling (OTC), a controversial technology that has been challenged as being outdated, unnecessary, and responsible for annually killing billions of fish, including the endangered Atlantic sturgeon. 

Throughout the legal battle NJDEP has sought to hide information from the public, forcing the Delaware Riverkeeper Network to have to engage in lengthy battles to gain access to text messages and emails sent by NJDEP staff regarding the issue and to secure the right to depose key NJDEP staffers who worked on the permit.  Finally, on October 28, 2019, the New Jersey Office of Administrative Law granted the Delaware Riverkeeper Network’s motion to compel the deposition of three New Jersey Department of Environmental Protection (NJDEP) employees regarding the Salem Nuclear Generating Station’s New Jersey Pollution Discharge Elimination System (NJPDES) permit and to secure access to emails that had so far been denied the organization.  While the Judge did not require NJDEP to produce unredacted pre-decisional drafts of the 2015 draft permit and the 2016 final permit, he overwhelmingly found in DRN’s favor on other requests. In a decision issued October 28, the judge granted DRN’s motion to compel the production of relevant emails.  In addition, finding DRN demonstrated good cause, the judge granted the Delaware Riverkeeper Network’s request to take the depositions of key NJDEP employees. The judge’s determination in part states, “I CONCLUDE that petitioner has demonstrated “good cause” – specifically there has been a showing that information requested is highly technical in nature and cannot be obtained in other ways.” 

To read the judge’s letter order, click here.

 NJDEP appealed the October ruling. In a remarkable twist, in this administrative proceeding, the arbiter to whom the NJDEP appealed was the head of the NJDEP, Commissioner Catherine McCabe. On December 16, 2019, Commissioner McCabe ruled against DRN’s right to take the depositions of three NJDEP employees.  In her ruling, Commissioner McCabe suggested that allowing the depositions would “set a precedent that makes depositions routine in all permitting matters and will cause an undue burden on the Department.” 

Despite this unsavory legal development, discovery in the case has continued to advance as has our legal challenge. It has been a slow slog but we continue to pursue this precedent setting legal challenge essential for protecting our Delaware Estuary and the fish and aquatic life essential ecologically, recreationally, and economically.

On a related note:  on August 13, 2019, once again, the Delaware Riverkeeper Network has reached out to the National Marine Fisheries Service (NMFS) to urge them to take action protect the endangered Atlantic Sturgeon of the Delaware River.  Time and again we have reached out about the excessive takes of sturgeon by both the Army Corps of Engineers and by PSEG’s Salem Nuclear Generating Station.  Every time they turn a blind eye. When will it stop? See the letter and horrific photos here.

Fact sheets discussing previous battles with Salem:

• Salem – Killing both marsh and fish
• Salem — A Report on NJPDES Special Conditions
• Salem — Killing both marsh and fish Fact Sheet #2
• Salem — Largest Predator in the Delaware Estuary
• Salem Nuclear Generation Station’s License to Kill

Overview

September 2013, a coalition of environmental groups including the Delaware Riverkeeper Network, filed three lawsuits in federal courts around the country (New York, San Francisco and Boston) seeking to force the U.S. Environmental Protection Agency to establish a clear standard that better protects the hundreds of aquatic species near the nation’s 1,065 power plants and other facilities. 

More than five hundred of America’s oldest and dirtiest power plants still use “once-through” cooling systems — Salem Nuclear Generation Station, Delaware City Refinery, and Mercer Powerplant on the Delaware River are among them.

These plants, along with others across the nation, withdraw trillions of gallons of water from our nation’s rivers, lakes, estuaries and marine waters each year, destroying billions of fish, shellfish and other marine life. The death toll includes hundreds of endangered species of fish, mammals, and sea turtles. Some of these species are being pushed to the very brink of extinction by once-through cooling. 

“Closed-cycle” cooling, on the other hand, is a widely used and proven technology that has been available for decades and can reduce fish kills, habitat disruption, and water withdrawals by 95% or more. Despite this fact, and decades of legal battles, EPA’s new rule, issued under Clean Water Act Section 316(b) and published on August 15th, once again fails to establish technology requirements that protect aquatic life in our rivers and oceans from destructive industrial cooling water intakes. EPA should have set a clear standard that requires closed-cycle cooling as the “best technology available” for minimizing these severe impacts. But EPA’s rule leaves it to resource-strapped state agencies to determine what technology is required on a site-specific basis. 

“EPA acknowledges that closed-cycle cooling is the most protective technology, and the agency’s own regulations have long required new plants to use it,” said Reed Super, lead attorney for many of organizations joined in this action.

Delaware Riverkeeper Maya van Rossum stated: “Facilities on the Delaware River and throughout the nation have been getting away with the needless slaughter of billions of fish — on the Delaware River there is one facility which alone kills over 3 billion fish a year, imagine the impacts nationwide of these operations. While these facilities are allowed to kill indiscriminately, commercial and recreational fisherfolk are limited in what size, how many and what species of fish they can take. Instead of addressing this horrible inequity, EPA, through its rules, is perpetuating it.” 

“The time has come to stop putting industry and big business before community interests and healthy ecosystems,” said Debbie Mans, Baykeeper and Executive Director of NY/NJ Baykeeper. “EPA’s ruling has failed its purpose in reducing significant environmental risks. Instead, billions of fish and other marine life will be killed and the effects, nationwide, may be irreversible. The environmental community certainly isn’t going to stand by and let that happen.” 

The Background

On November 22, 2010, Riverkeeper and other environmental organizations signed a settlement agreement with the EPA that resolved two lawsuits they brought against the agency in 1993 and 2006 addressing its failure to issue regulations implementing Section 316(b) of the Clean Water Act for existing power plants and other industrial facilities. This section of the Clean Water Act requires industry to employ the “best technology available” for minimizing the adverse environmental impact of their cooling water intake structures. In 2001, EPA had issued regulations requiring all new facilities to use closed-cycle cooling, but EPA’s first attempt at existing facility regulations were send back to the agency by the courts as legally insufficient. In the 2010 settlement, EPA agreed to draft new regulations for existing facilities by March 14, 2011, and to take final action regarding the new regulations by July 27, 2012. EPA issued its final rule in May, 2014. 

In the 2014 rule, EPA failed to set a clear standard, leaving it completely to the discretion of state regulators to determine what cooling water intake technology is best on a case by case basis. This failure subverts the entire purpose of the 316(b) regulation, to have a national baseline standard that provides all waterways the highest level of protection. Federal agencies responsible for protecting endangered species found that 266 threatened and endangered species are affected by power plants with once-through cooling, with the effects ranging from direct injury to habitat degradation and destruction of other aquatic species relied on as part of the aquatic food chain.  

For decades, the power industry has campaigned against updating regulations to protect biologically and economically important aquatic ecosystems from further damage from industrial cooling water intakes. Industry argues that more environmentally protective regulations will force plants across the country to shut down and threaten the reliability of the nation’s electricity supply. But studies by EPA and by outside groups showed that the gradual move to closed-cycle cooling under this rule would have little or no impact on the power grid. In fact, EPA concluded that moving to closed-cycle cooling will actually reduce the vulnerability of the American power sector to droughts and climate change.

Overview

The US Environmental Protection Agency determined that Salem entrains 14.7 billion fish, eggs and larvae every year and impinges an additional 6.6 billion a year.  This is a direct loss of fish, but also removes the abundance of aquatic life from the food chain and all of the cascading benefits they provide to a host of other species.  

Many of the species PSEG impacts are either endangered (such as Shortnose and Atlantic Sturgeon as well as Kemps Ridley and Green Sea Turtles) or have already experienced population declines in the present or recent past, thus magnifying the adverse impact of the Salem impingement and entrainment takes they suffer.  For example:

• “The bay anchovy is a species whose numbers have been decreasing at an alarming rate.”[1]  
• Blueback herring and Alewife have been identified by NOAA as a species of concern and one that has been experiencing declines throughout their range, including in the Delaware River.[2]  
• The ASMFC has determined: “ The American shad stock in the Delaware River is considered stable but at low levels compared to the historic population.” (emphasis added) [3]  
• Weakfish populations in our region are in a “depleted state.”[4]
• The Atlantic Sturgeon of the Delaware River are listed as endangered as part of the NY Bight DPS:  “In the NYB DPS, there are two known spawning populations – the Hudson and Delaware Rivers. While the Hudson is presumably the largest extant reproducing Atlantic sturgeon population, the Delaware is presumably very small and extremely vulnerable to any sources of anthropogenic mortality.”[5]

The Federal Clean Water Act (CWA) 

Despite a requirement in Section 316(b) of the federal Clean Water Act (CWA) that facilities like the Salem Nuclear Generating Station (“Salem”) use the best technology available on the design, location, construction and capacity of their cooling water intake structures to minimize their adverse environmental impact (i.e. their kills of fish and aquatic life), and despite the existince of cooling water intake technology that could reduce the fish kills at salem by over 95%, the state of New Jersey continues to issue permits that allow the facility to continue to operate using their deadly, existing, once-through cooling system.  

The Delaware Riverkeeper Network has been fighting for over 30 years to stop the unnecessary death toll that is having such serious impacts on the aquatic life of our River.  Learn more about our efforts here.   

PSEG, the owner of Salem, has been looking to expand and to build yet another nuclear power plant called Salem 4 on the banks of the estuary in an area known to experience storm surge.  A new nuclear plant on our River, particiularly in this location, will have unwanted dangerous consequences.  Learn more about our efforts to stop the project here.

DRN is also fighting the proposal to take Salem Nuclear waste across the country to dispose of it in New Mexico near indigenous and other communities fearful of the environmental and safety ramifications.  Follow DRN’s efforts to oppose this dangerous, unwise and immoral effort.

[1] Bay Anchovy Fact Sheet, NJDEP, http://www.state.nj.us/dep/fgw/pdf/delriver/artdel_sp_bayanchovy.pdf

[2] River Herring (Alewife & Blueback Herring), Species of Concern, NOAA National Marine Fisheries Service, 5/19/2009.

[3] Delaware River Sustainable Fishing Plan for American Shad, Prepared by the Delaware River Basin Fish & Wildlife Management Cooperative for The Atlantic States Marine Fisheries Commission  Shad and River Herring Management Board, December 2011.

[4] Atlantic States Marine Fisheries Commission, ADDENDUM IV TO AMENDMENT 4 TO THE WEAKFISH FISHERY MANAGEMENT PLAN, Nov 2009.

[5] Final Rule, Threatened and Endangered Status for Distinct Population Segments of Atlantic, Sturgeon in the Northeast Region, Fed Reg Vol 77 No. 24, Feb. 6, 2012.

Related Topics:

Salem 4 – New Nuclear Plant Being Pursued for Artificial Island

Salem Nuclear Generating Station

316b Cooling Water Intake Regulations Challenged Again for Fish Kills They Allow

Overview

Dragon Springs Buddhist Inc is proposing to dam a headwater stream, destroy headwater wetlands, discharge poorly-treated wastewater to a Basher Kill trout stream, create acres of impervious cover and runoff, all of which would adversely impact the Basher Kill and the Neversink River. This development has already damaged the aesthetics and quality of the Basher Kill and the Neversink River, impacting fish, mussels and other aquatic life that are both ecologically and recreationally important to the region.  The Basher Kill and Neversink River are important recreational resources supporting highly valued swimming and fishing opportunities for both residents and visitors. 

One of the biggest threatened impacts is the proposal to dam a headwater stream in order to manage stormwater runoff.  An extensive forested headwater wetland with amazing ecological biodiversity and ecosystem function would be lost. 

The proposed wastewater treatment plant would pollute both a local trout stream and the Basher  Kill and the Neversink River, with problems such as excessive nutrients impacting trout and endangered species living in these streams and rivers. 

Threatened and Endangered Species

A number of state and federally listed Threatened and Endangered species are also located on-site or in areas affected by on-site activities. Among the biggest impacts that need to be evaluated are the water quality impacts to the Dwarf Wedgemussel and the Brook Floater, two freshwater mussels whose last remaining strongholds in New York state are here in the Neversink River but whose populations have severely declined already in recent decades.

The Delaware Riverkeeper Network is actively working with concerned residents and local organizations to address this major threat.  Dragon Springs included a Draft Environmental Impact Statement with its proposal, but neither a Supplemental Environmental Impact Statement nor a Final Environmental Impact Statement have been shared.  Scathing testimony at the public hearing from the Delaware Riverkeeper Network and all of our partners and residents has slowed the impacts from this proposal. 

Overview

All across the Delaware River Watershed, townships and private landowners are using herbicides to control invasive plants on parks, trails and public lands.  And so the exposure of children, adults, pets, streams and wildlife is much more pervasive than just a single area that is the focus of a given discussion. In addition, there are many options available for controlling invasive plants to consider, including many non-toxic options.  While there is literature that touts the safeness of glyphosate — the active ingredient in Roundup, Rodeo and other Monsanto herbicides – there is also peer-reviewed science documenting the known and potential harms.  In addition, these herbicides contain more than their active ingredients, they also include surfactants which help the active ingredient glyphosate penetrate the outer layers of the plant so it can achieve the internal disruption that leads to death.  There is a significant body of science documenting the harms of the surfactant found in the Roundup family of products for people and valuable wildlife such as frogs and amphibians.

An Effective Strategy

In order to have an effective plan/strategy for eradicating non-native invasive plants from an area and allow restoration of a healthy native population, it is critical there be a clear understanding of what invasive plants a community is seeking to impact, coupled with a clear strategy that is known to have the greatest level of effectiveness for the species at issue, and a plan for how native species will be reintroduced in order to help prevent reinvasion of the invasives thereafter.

Communities need to develop a comprehensive strategy for addressing the problem of invasive weeds and how they will accomplish the laudable goal of restoring native plants to those areas controlled by invasives.  A comprehensive strategy needs to include recommendations for private homeowners who could be an important part of the solution for the Township.

Toxic Pesticides

Pesticides are toxic and must be avoided in order to protect local streams and aquatic life. There are various types of pesticides used throughout the United States that can have harmful effects on aquatic and other life. The three major groups of pesticides are herbicides, insecticides, and fungicides.

Although pesticides are regulated under the Federal Insecticide, Fungicide and Rodentcide Act as well as the Federal Food, Drug and Cosmetic Action, citizens must take action to prevent the further degradation that excessive pesticide use can cause on the environment. Pesticides are merely a short term solution and do not solve the problem. There are a number of methods that can be taken to ensure that public lands, lawns and gardens remain healthy and maintained without using dangerous chemicals.

The best strategy when it comes to pesticides of all kinds is to exercise the precautionary principle in your own life, if you can’t prove to yourself it is safe perhaps you shouldn’t use it.  In those limited instances when there may be an overriding reason for use, such as engaging in a native plant restoration in an area overrun but invasive plants that cannot be eradicated via any other means, be sure to do your homework.

Most recently the Delaware Riverkeeper Network has been encouraging Radnor Township, Delaware County, PA to avoid the use of herbicides on their public lands.  Herbicides should not be used as the primary mode of weed control on public lands. The unilateral use of herbicides is not an effective means for reintroducing the healthy plant life and habitats that can help keep non-native invasive plants at bay, provide wildlife food and habitats, provide beauty for those enjoying the public lands, and allow children and adults to be educated about the value of healthy native ecological systems.

The Paulins Kill River

In the Town of Highland, Sullivan County, New York, Northgate Resorts is proposing to overhaul the former Kittatinny Campground with an operation they call Camp FIMFO.  The proposal would transform most of the existing low impact tent camp sites to RV sites, cabins or glamping structures with water, sewage and/or electric hook ups; adding a mountain roller coaster, water slides, a swimming pool, mini golf, more parking, more septic systems, as well as replacing some of the old existing buildings with new.

The Paulins Kill river in northern New Jersey still maintains extraordinary biological diversity and high water quality, but the river has been fragmented by dams and has suffered from other human abuses for decades.  The Delaware Riverkeeper Network has been working with the State of New Jersey and a number of outstanding groups (including the U.S. Geological Survey, the National Park Service, The Nature Conservancy, American Rivers, and the Academy of Natural Sciences) to both reverse the historical damage to the ecosystem and to bolster the diversity of native species that continue to live within the system.

Among the most important positive steps forward has been the removal of the first dam on the Paulins Kill in 2018.  The Columbia Lake Dam was located less than a half mile upstream from the Delaware River confluence, blocking the strong runs of migratory fish still thriving in the Delaware River from utilizing the Paulins Kill watershed.  Led by the State of New Jersey, the Nature Conservancy, and American River, this first-blockage dam was removed beginning in August of 2018, with documentation of migratory fish returning to the Paulins Kill already in both 2019 and 2020!!.

But the return of migratory fish (including American Eel and American Shad) is just the beginning of the broader ecological restoration of the Paulins Kill.  Further work by the Delaware Riverkeeper Network and its partners seeks a more complete and holistic recovery of water quality and ecological diversity, including such key species as freshwater pearly mussels.

Watch this video from our 2019 Paulins Kill Mussel Survey:

High Quality, Cold Water Fishery

The Bushkill Creek is a High Quality, Cold Water Fishery in Northampton County, Pennsylvania. It is a prized wild trout stream, fished and enjoyed by many, spanning several boroughs, townships and communities, flowing into the Delaware River at Easton. As a stream that is protected under Pennsylvania’s Special Protection Waters program, it is protected by regulation against degradation and its existing use as a Fishery is required to be preserved. Substantial evidence, gathered over several years by various agencies and experts, shows that the Stockertown Quarry (the Quarry) owned and operated by Hercules Cement, doing business as Buzzi Unicem USA, is contributing the repeated dewatering and pollution of the Bushkill Creek and surrounding region, including the formation of sink holes in the creek that remove water that is diverted to the quarry. Reports are that adverse impacts occur in the Little Bushkill Creek and on land as well. The Quarry mines limestone.

The Quarry pumps approximately 55 million gallons of water per day from the Quarry into the Bushkill Creek to replace a portion of the lost water that has been uncontrollably diverted there by their mining activity, which has destabilized the hydrologic balance.

DRN believes that in the past twenty years there have been at least 15 events of pump failure resulting in the dewatering of the Bushkill Creek and significant fish deaths, including a severe event on June 5, 2020, killing approximately 2,000 fish and an unknown number of other aquatic species. This event lasted for 15 hours, causing a significant fish kill, including the death of wild brown trout. This is a grievous loss, especially because these are wild reproducing brown trout, not stocked trout, and these fish and the ecosystem they require to thrive is gravely harmed by these events. The last such event occurred on October 15, 2020. Hercules/Buzzi Unicem does not have backup systems in place to operate the pumps when there is an outage or, in the case of October 15, a planned maintenance operation. There is no excuse for his, yet it has been occurring for years and many fish and aquatic species have been lost.

Notification of a Citizen Suit 

Notification of a Citizen Suit was mailed by Delaware Riverkeeper Network to Hercules Cement/Buzzi Unicem on November 6, 2020. This letter served as a pre-suit 60-day notification for a Citizens’ Suit on behalf of the Delaware Riverkeeper Network, its members, and Maya van Rossum in her role as the Delaware Riverkeeper (collectively “DRN”). DRN is demanding that the situation be remedied so that no more dewatering events occur as a result of the Quarry’s mining operation or the quarry operations should be shut down. DRN is prepared to file suit under the Clean Streams Law and the Non-Coal Surface Mining Act, and is also willing to engage in discussions with Hercules Cement should they wish to prevent further harms to the environment and the community that relies upon it. See the Notification letter and other supporting materials below.

Right to Know Requests 

DRN continued to file Right to Know requests with PADEP to discover what the plans are for addressing the issue. Through file reviews and other research it was made clear that the quarry was considering installing generators to back up the electric system that operates the pumps from the quarry into the creek. These generators would prevent the pumping from stopping in case electric power was lost, as in the 2020 storm that caused a 15-hour outage.  But the cost was considered too high by the company. DRN, members of the public, and local partners at Trout Unlimited advocated for backup generators to be installed.

The quarry also was in the process of securing permission from PADEP to deepen the quarry, expanding their operations. There is tremendous community concern over the effects that would have on the stream. The Bushkill Creek is pulled into the quarry through sinkholes that have developed over the years due to the mining operations, disrupting the natural flow of the stream and the aquifer.

Trout Unlimited members presented organized testimony from many members of the local chapter – the Forks of the Delaware. Other members of the public spoke as well. DRN testified verbally at the Hearing and submitted written comment to PADEP. DRN’s comments are under Supporting Documents below. Hercules Cement Company, LP d/b/a Buzzi Unicem USA announced that they would be installing backup generators to prevent any future dewatering of the Bushkill and any fish kills.

Since then DEP has not made any pubic announcements or shared any new information about the plans to deepen the quarry.

On May 17 and 18, 2023 Hercules/Buzzi Unicem started to install the generators. Why they waited almost 2 years to install the generators is unknown. However, they chose a dry spell with little rainfall. The Bushkill Creek was dewatered and a fish kill and the loss of aquatic life occurred on the second day of installation operations (May 18) because of the company’s actions. This latest catastrophe is documented as a catastrophic pollution event that DRN responded to starting when we were notified on May 18. The letter documenting the event, which recounts DRN’s report to PADEP and PA Fish and Boat Commission, is posted below under Supporting Documents. DRN is advocating that action be taken by PADEP and the Fish and Boat Commission immediately to ensure no further dewatering or fish kill events occur, that reparations be made by the company, and that the quarry not be allowed to expand its operations, based on its inability to manage their operations without harming the creek and its inhabitants. Trout Unlimited members of the Forks of the Delaware Chapter who were at the creek as a result of the notification of an planned outage to install the generators, responded swiftly and with dedication to the dewatering event and fish kill, trying to save fish and documenting with photographs and a location map what occurred. This evidence was included in DRN’s letter to the agencies.  Copies of the photographs and location map and copies of the USGS gauge graphs are included in the letter.

DRN has engaged a geologist who is a karst expert to assist in the review of technical reports and proposed permits related to the Hercules Cement Company/Buzzi Unicem mining operation. The quarry is planning to expand by increasing the depth of their mining and the environmental impacts of that expansion are of great concern, as are the ongoing effects of mining operations there, alongside the Bushkill Creek. PADEP has not announced any final action on the permitting or conditions for the permits to expand the mining operations as of January 2024.