Sign this Letter of Support  

We invite you to sign this letter of support for our Safe and Healthy Delaware River petition  to the Delaware River Basin Commission (DRBC). This petition will secure increased protections for those that enjoy swimming and recreating on the  Philadelphia and Camden reach of the Delaware River in ways that bring them into direct contact with the water.

Overview

All sections of the Delaware River are enjoyed in ways that bring people, including children, into direct contact with the water. While most sections of the River enjoy designations and regulations that protect primary contact recreation (things like swimming and kayaking), the stretch from the mouth of the Pompeston Creek down to the Commodore Barry Bridge (in short, the Philadelphia-Camden reach of the River), does not. By signing this letter of support for  our Safe & Healthy Delaware River petition, you can help us convince the Delaware River Basin Commission, as well as the states of Pennsylvania and New Jersey that our urban River and its users are entitled to just as much protection, now and into the future, as the rest of the River. The map below shows stretch of the Delaware River in question:

Today, people enjoy our beautiful river in many ways that bring them into direct contact with the water, what is known as primary contact recreation, such as kayaking, swimming  and tubing. The regulations currently upheld by the Delaware River Basin Commission (DRBC), Pennsylvania and New Jersey fail to recognize that these primary contact recreation uses take place frequently on the Delaware River along Philadelphia and Camden. As a result, the current water quality standards cannot be relied upon to sufficiently protect the health and safety of individuals, children and families who enjoy primary contact recreation activities on this stretch of the Delaware River.

Our Petition

Our petition calls upon DRBC and the states of New Jersey and Pennsylvania to recognize primary contact recreation as a designated use for this section of the Delaware River in order to conform with the mandates of the Clean Water Act as well as to modify the water quality standards to better protect the health and safety of those who participate in activities on the river that involve direct contact with the water.

It is important for those of us who enjoy the River today, and those whowill enjoy the River for generations to come, to know that the DRBC and other agencies have put in place regulatory protections that will ensure the healthy water quality necessary to fully support ongoing recreational uses of the river, including those that put us in direct contact with the water.

If you would like to sign on in support of locking in the environmental successes we have achieved to date, and helping to make more progress that will make our Delaware River even safer for those who enjoy the water in our urban reaches, please sign this letter of support for our Safe & Healthy Delaware Petition.

 You can read the full petition here.

In summary, the petition requests:

“…the Delaware River Basin Commission promptly upgrade the designated use of  Zone 3 and River Miles 95.0 to 81.8 of Zone 4 of the Delaware Estuary to include primary contact recreation. Zone 3 and Upper Zone 4 are currently designated only for secondary contact recreation. This designation is inconsistent with the existing uses of these portions of the Delaware River. A designation that includes primary contact recreation is needed to bring DRBC into conformance with the mandates of the Clean Water Act, thereby avoiding state, federal and/or interstate conflicts over the designated and existing uses of these Delaware River waters, and protecting those recreating on and in this portion of the Delaware River. Recognizing the existing use of primary contact recreation will ensure the DRBC and the member states prioritize putting in place, and enforcing, the standards and protections essential for those who are enjoying these reaches of the River for primary contact recreation. 

Petitioners are organizations that serve communities who live, work, and recreate in the Delaware River Watershed and have a strong interest in seeing the public’s uses of the River protected. Petitioners share a common interest in promoting the health and enjoyment of the Delaware River for the benefit of the public. Upgrading the designated use of Zone 3 and Upper Zone 4 of the Delaware Estuary to reflect the full array of their existing recreational uses, including primary contact, is necessary to protect the communities we serve and the health of the waterways our members rely on.”                                                              

Our Safe and Healthy Delaware River Petition and the supporting efforts of our Coalition of partners seeks to ensure that water quality standards governing the river provide protections to those that come into direct contact with the water during recreational activities.  According to the petition, the identified river reaches are heavily used in ways that bring people into direct contact with the water, including children. As a result, according to the environmental petitioners, the DRBC and the states should modify the existing legally designated uses to reflect the actual existing uses of the river. This action, the petitioners contend, is needed in order to ensure those recreating on the river receive the proper level of protection from pollution now and into the future.

A valued public resource

“The Delaware River is a valued public resource, it is a resource that belongs to the people.  Communities should be able to enjoy swimming, fishing, boating and utilizing the River for recreation knowing that our government officials are recognizing these uses and ensuring they are protected under the law for both present and future generations,” said Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network.  “We know that communities throughout the region are right now enjoying the River in ways that bring them into direct contact with the water.  All we are asking is for the DRBC to recognize this use and to ensure that standards are in place that are ensuring the ongoing protection of these uses.  All of the other reaches of the mainstem are protected for primary contact recreation, the urban reaches should be protected too.”

“Upgrading the water quality standards for this section of the Delaware River will not only make the river safer for the many people who recreate there now, but would represent a broader win for the health and safety of the public and the environment for generations to come,” saidJoe Minott, Executive Director of the Clean Air Council.

 “The Clean Water Act requires that our waters be protected for the way that people actually use them,” said PennFuture president and CEO Jacquelyn Bonomo. “This petition presents clear evidence and support that the community actually uses the urban sections of the Delaware River for things like swimming, tubing, and jet skiing. Because these uses put people, including children, in direct contact with the water, it is imperative that the DRBC and the states protect the water quality of this section of the river for primary contact. Ensuring the safety of our communities to use these waters for primary contact recreation is the legal responsibility of the DRBC.”

“The transformation of the lower Delaware River over the last 50 years is a direct testament to the power of the Clean Water Act to clean up our waterways. Yet the Act’s original vision to protect waterways based on how the public uses them isn’t being fulfilled in the lower Delaware – and that’s why the DRBC should act to meet the vision of the Clean Water Act,” said Doug O’Malley, director of Environment New Jersey. “As water quality has improved along the Lower Delaware, the public is voting with their feet and their bodies – people are recreating in the Delaware. As our cities and river towns revive and access to the water is seen as a premium, the DRBC should protect the lower Delaware River for primary contact. The Delaware River should not be treated as a regulatory mixing zone – it is the people’s river and the DRBC should protect it for all recreational uses based on the Clean Water Act.”

The petition seeks to secure higher protections from River Mile 108, near the mouth of the Pompeston Creek, down to river mile 81.8, near the Commodore Barry Bridge – currently this reach of River is designated only for secondary contact recreation.  According to the petition, because this reach of river is heavily used in ways that bring people in direct contact with the water, the DRBC is legally obligated to recognize the primary contact uses and put in place higher standards that ensure protection of human health.  Survey results and data included in the petition demonstrate that the affected reach of the river is used for swimming, snorkeling, tubing, and jet skiing; it is also used by a wide variety of organizations such as the health and wellness organization Aqua Vida for paddleboard yoga, acro and fitness classes; and educational organizations such as Urban Promise that brings young people to the river for kayaking who, given their inexperience in paddling, do come into direct contact in the water.

“The Delaware River is an iconic part of the region’s natural heritage where visitors from throughout the Mid Atlantic and across the nation come to boat, fish, swim, hike and recreate, ” noted PennEnvironment Executive Director David Masur. “The action we’re taking today is a crucial step to ensure that we can restore and protect the Delaware River now and for future generations.”

“Our right to clean water has been denied since the industrial era. Although our water policies helped to improve some of the most egregious forms of pollution it has not gone far enough to clean up our shared resource. With the latest technology and science there is no reason why we can’t clean up the Delaware River,” said Jaclyn Rhoads, President of the Darby Creek Valley Association.

The petition explains that “secondary contact” recreation refers to activities where the probability of significant contact or water ingestion is minimal – according to federal regulation this includes things like boating and activities where people are expected to have limited contact with surface waters such as fishing from the shoreline. “Primary contact” recreation includes activities where people engage, or are likely to engage, in activities that could result in ingestion of, or immersion in, water, such as swimming and water-skiing.

“We strongly support the initiatives laid out in this petition. A stronger designation for these portions of the Delaware Estuary will ensure the water quality is optimal for recreational use. On-water organizations such as ours highly value clean water as we want our audiences to have the safest, most enjoyable river experience possible,” said Rupika Ketu, Environmental Program Coordinator for Glen Foerd on the Delaware.

The petition closes by urging: “Failure to recognize and protect the primary contact recreation uses taking place in the River today puts the health and safety of our River communities and river users at risk. The DRBC has the authority to initiate the necessary changes to accurately reflect the uses and activities that are actually taking place in the Delaware Estuary and in so doing to protect the communities that enjoy and depend upon a healthy Delaware River, including in Zones 3 and Upper Zone 4.”

Editor’s note: This issue is currently dormant. We will continue monitoring the situation and may take up the issue in the future.

Overview

The Southport Development project involves the filling in of 12.28 acres of open water (.2 of which is emergent wetlands, 1.08 acres of which is shallow water habitat, and 3.62 of which is deep water habitat); 3.75 acres of nontidal wetlands; .73 acres of a tidal drainage area; filling in an unspecified amount of floodplain lands with 3 to 4 feet of fill in order to raise the area to above the 100-year floodplain (in fact to raise it to the 200 year floodplain); dredging a 35-acre area within the River to a 40+2 foot depth; impacts to approximately 4600 linear ft of existing shoreline; the permanent loss of 1.08 acres of submerged aquatic vegetation; and having a 116 acre development footprint which will necessarily be on riverside lands and result in the loss of potential terrestrial habitat. The project is being postured as a method for disposing of spoils from the Army Corps’ Delaware deepening proposal.  And that explains why the push by PA and the apparent interest of the Army Corps to skew the review and public process to make approval for the project easier. 
  
As part of its overall vision for the Delaware River Deepening project, Pennsylvania conceived of, and advanced the proposed Southport project.  The project never recieved full and fair review from the US Army Corps who appreciated the project for providing a much needed rationale for deepening.  The Delaware Riverkeeper Network repeatedly expressed our concerns regarding the proposed Southport development project and what appeared to us to be an evolving abuse of process and politics.  Our review of the files demonstrated that the Army Corps supported efforts to truncate the environmental review process that should be taking place around this proposal.  And so the Delaware Riverkeeper Network urged the Environmental Protection Agency to step in and take the reigns. But they failed to act.  In fact, documents on the record showed us that rather than exercising any oversight they instead sought to work in collusion to evade full and fair review of the project.  In email from EPA officials to Army Corps officials it is said: “In light of the rash of activity recently from the riverkeeper regarding the Southport project, we are hoping to set up a meeting with you guys to make sure we are on the same page.”   

Ultimately, because of its connectivity to the Deepening the Southport project was approved. 

 

Overview

The Delaware Riverkeeper Network and project partner the Newton Creek Watershed Association trained volunteers to photo-document sources of non-point source pollutants throughout the Newton Creek Watershed.  The photos show the good, the bad and the ugly of this urban watershed that stretches from Haddonfield to Camden.

Newton Lake and Peters Creek, a Newton tributary, are both listed as “impaired waterways” by NJDEP because they cannot support a healthy mix of aquatic life.  These degraded conditions are primarily due to excessive stormwater runoff, which causes erosion, nutrient enrichment, local flooding and sewage overflows.

The volunteers, nearly all from area high schools, were given an introduction on the urban water cycle and the impacts on local waterways from impervious surfaces, poor stormwater compliance and maintenance.  The volunteers were each assigned a segment of the creek and, utilizing their own smartphones, took pictures of excessive erosion, discharge pipes going directly into the waterway, illegally disposed of yard waste and trash.  All photos were geo-tagged so the exact locations could be found again and placed on a GIS map.

The photos have already resulted in inspections by NJDEP compliance officers and meetings set up with officials from two town.

The objective of the Delaware Riverkeeper Network’s photo-documentation project is to show municipal officials and the general public what the source of the problems on the Newton Creek Watershed are and why it’s wasting tax-payer money and bad for the environment to continue to only focus on activities such as dredging, aeration and chemical treatment, which are only symptoms of a bigger stormwater management problem.

View the photo essay below:

 

Overview

The Newton Creek Watershed is located in Camden County New Jersey with its headwaters located in suburban Collingswood, Haddonfield and Haddon Heights and its confluence with the Delaware in the City of Camden. The Newton is a small (13.6 sq mi), urbanized watershed consisting of 11 municipalities.  It is approximately 38%   Multiple historic mill dams have created several manmade lakes that are now extremely popular parks.

As a result of past and present land use, including industrial in Gloucester and Camden cities, as well as densely developed, older residential with little or no stormwater management infrastructure, water quality in the Newton Creek does not meet state water quality standards. In fact, it is listed as an “impaired waterway” by the NJ Department of Environmental Protection (NJDEP) indicating that it does not measure up to the standards required for maintenance of healthy aquatic communities of wildlife, especially of fish and smaller creatures at the base of the food chain. Based on DEP assessments, Newton Creek is characterized as having excessive siltation, nutrient enrichment, inadequate stormwater management, diminished stream base flows, nonpoint source pollution impacts, degraded habitat, and frequent nuisance flooding.

Over the past 15 years, the Delaware Riverkeeper Network has been actively engaged in a variety of efforts ranging from water quality monitoring, the preservation of Saddlers Woods, an old growth forest, advocating for riparian buffers, design and installation of several green stormwater infrastructure, trained volunteers to photo-document nonpoint pollution sources, leading stormwater driving tours and even sponsored a snakehead fishing contest.

Camden County is now proposing to dredge 260,000 cubic yards of sediment from the Newton and its largest tributary, the Peter’s Creek.  DRN and other members of the Newton Creek Dredging Task Force submitted joint comments to NJDEP on Camden County’s proposed 260,000 CY dredging project. The Newton and Peters are older, suburban watersheds and so, like many similar communities throughout the Delaware River Watershed, are recipients of large volumes of sediment and urban nonpoint pollution. Our comments focused on protecting sufficient areas of shallow water littoral zones that provide important aquatic habitat and wadding bird foraging area and the choice of dewatering technology. Not all dewatering is the same with some allowing significant amounts of dredged contaminants to actually flow back into the waterway. DRN’s strategy that we believe will result in better post-dredging water quality started with meeting with the County to discuss what actions need to be taken upstream to reduce the volume of runoff and increase infiltration. We focused on the many innovative stormwater green infrastructure in this watershed. Our strategy also included calling and meeting with NJDEP permit review team to establish a relationship with them, walking the dewatering sites, partnering with the impacted stakeholders, including fishing clubs, municipal environmental commissions and Sustainability Teams and making sure our comments not only pointed out our areas of concern, of which there were many, but also any positive aspects in the permits.

 

Overview

A stream is not just the water that flows through a channel.  A stream includes its bed, its banks, and the lands that run along its length. The land along our streams and rivers is an essential and living part of the stream ecosystem.  To be healthy, a stream needs its adjacent lands to be covered with healthy, varied and native vegetation.  

Vegetated buffers provide a living cushion between our upland land uses and our living streams providing important protections to both the stream and our human communities.  Vegetated buffers help protect our communities from non-natural flooding – the soils and vegetation soak up and hold floodwaters, gently releasing them after the storm has passed. This flood protection reduces flood damages in our communities as well as minimizing the need for costly emergency response. Vegetated buffers filter out pollution, that washed from the land as well as that already in the water thereby protecting our drinking water as well as our special places for  boating, swimming, fishing and birding.  Vegetated buffers  protect and improve our local economies – they increase the market value and marketability of nearby homes; they support the qualities needed to sustain a healthy ecotourism industry, and they provide the clean and fresh water needed to support a variety of industry and waterside needs.  Vegetated buffers help encourage infiltration of rainfall and runoff helping to keep our underground aquifers flowing and available during times of drought.  Vegetated buffers protect public and private lands from erosion. And, vegetated buffers provide essential habitat, in stream and on the land, for aquatic life, birds, wildlife, amphibians and reptiles.  
  
When we devegetate and fill our riparian buffer areas we not only destroy their ability to provide these community benefits, but the opposite harmful reaction results — rather than flood storage we have increased flooding; rather than aquifer recharge we have increased drought; rather than healthy streamside lands and habitats we have erosion and degraded ecosystems; and so on.

It is essential we protect our vegetated buffers for the health of our streams and our communities. 

How Much of a Buffer Should Be Protected?

In general, riparian buffers should be as wide as possible.  The bigger the buffer the more pollution it can filter, the better habitat it can provide, the more water it can absorb, hold and infiltrate.  
A wealth of new science focused on buffers is taking place.  These studies are telling us that a minimum 100 foot buffer is best for protecting water quality, for preventing and removing pollution, and for protecting habitats in the stream and on the land.  In a number of instances buffers ranging from 300 to 1000 feet are being recommended, or even required, in order to provide the greatest level of protection our natural waterways and habitats need.  When focused on bird life and wildlife the buffer minimum  is tending towards 300 feet or greater.  In this case too, bigger is definitely better – providing better quality habitat and needed migration paths for a variety of wildlife.  
  
Also very important to the effective functioning of a riparian buffer is the quality and mix of vegetation. Characteristics such as species diversity, vegetation type, physical condition and maturity all affect the ability of the buffer to do its job. The forested buffer which includes a mix of plants, shrubs, and trees can work on steep slopes, where other vegetation, especially grass, and other BMPs may be difficult to install and maintain. 

Delaware Riverkeeper Network is working to get requirements at the state and regional level that ensure protective buffers for all streams in the watershed. We were leaders on the successful effort to get 300 foot buffer requirements for C-1 streams in NJ and 150 foot buffers on exceptional value and high quality streams in Pennsylvania.

In 2018, the Delaware Riverkeeper Netowrk released a report documenting the tremendous value of natural riparian buffers.

 

Overview

Stormwater User Fees and Utilities are gaining more attention as a mechanism for funding stormwater projects in communities.

Radnor Township, PA is currently considering a user fee.  
The concept of a user fee is neither supported nor opposed by the Delaware Riverkeeper Network as long as the funds are used for beneficial projects and not the standards collect, detain and pipe projects of the past.

The first proposed iteration of Radnor’s ordinance failed to ensure that fees collected and credits given can be invested in projects that avoid stormwater runoff and/or that directly address the damages of runoff. The ordinance faile to include criteria for selecting and evaluating projects. And, the ordinance faile to ensure equity between residential property owners and commercial/institutional property owners in fees paid.  

Delaware Riverkeeper Network gave extensive written and verbal comment and urged others to do the same.  Below you will see a summary handout of DRN’s comments as well as two sets of comments delivered to the Township, including via testimony on 8/26/13.

The Commissioners then came around and made critical fixes to the proposal.  
The ordinance was edited to address most of DRN’s concerns including focusing the use of fees collected and credits given on prevention, avoidance and minimization of the volume, pollution and other associated harms of runoff.    Much credit was given to the Delaware Riverkeeper Network for our guidance and input.

Below find some of the comments being submitted to the committee by the Delaware Riverkeeper Network as it monitors the implementation of the program.

Overview

The Federal Energy Regulatory Commission (“FERC”) is a demonstrably biased agency that has become a partner with, rather than a regulator of, the pipeline companies it purports to oversee. FERC is misusing legal loopholes and ignoring court orders to advance gas infrastructure projects, while preventing affected and concerned communities from participating in the process. The agency is funded 100% by the industry it regulates, and a revolving employee door between FERC and its regulated community feeds the agency’s bias and abuse of power. 

It is time that the public secure an independent investigation of FERC and that necessary reforms be identified. 

We need a review of FERC by Congress in the form of Congressional Hearings, as well as investigation by the Government Accountability Office (GAO).  

Organizations from across the nation have joined forces to advance these requests of our elected officials in Congress.

To see a comprehensive listing of reforms view here.

Related

FERC Pipeline Review Comment Process — PL18-1-000

People’s Dossier: FERC’s Abuses of Power and Law

People’s Hearing on FERC Abuses of Law & Power

Constitutional Challenge to FERC

 

Overview

On April 15, 2019, President Trump issued Executive Order 13868, titled “Promoting Energy Infrastructure and Economic Growth.” That order directed the Environmental Protection Agency (“EPA”) to review and revise its regulations implementing Section 401 of the Clean Water Act to make it easier for oil and gas infrastructure to be approved and constructed. Section 401 of the Clean Water Act gives states and tribes the ability to ensure that a proposed project requiring federal authorization does not degrade water quality within the certifying authority’s jurisdiction. A certifying authority can waive its authority, issue a certification, deny a certification, or issue a certification with conditions that ensure protection of water quality.

On August 22, 2019, EPA proposed a new rule overhauling its Section 401 regulations. The new rule dictated what items constituted a complete certification request from a project proponent (which determines when the one-year clock starts for a certifying authority to make a decision), limited the legal authorities that could serve as the bases of a certifying authority’s decision; treated non-compliant certifications as a waiver of certifying authority; vested the Federal agencies with the power to enforce a certifying authority’s certification; and attempted to make the determination as to whether an activity may affect a neighboring jurisdiction entirely discretionary. See DRN’s comment on the proposed rule here.

On July 13, 2020, EPA promulgated the final rule with some slight changes. That same day, Delaware Riverkeeper Network filed a challenge in the Eastern District of Pennsylvania. See the complaint here. EPA moved to dismiss Delaware Riverkeeper Network’s complaint, arguing that we did not have standing and that our challenge was not ripe. The court denied EPA’s motion in December 2020.

On Inauguration Day, January 20, 2021, President Biden issued Executive Order 13990, titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed federal agencies to immediately review certain actions taken during the Trump Administration, and revoking EO 13868. As a result, Delaware Riverkeeper Network and the EPA agreed to a 60-day abeyance of the lawsuit so that the EPA could evaluate the Certification Rule. That abeyance is scheduled to end on April 6, 2021.

 

Editor’s note: This issue is currently dormant but expected to return when the Army Corps of Engineers intends to dig to 50 ft. We will continue monitoring the situation and may take up the issue in the future.

Overview

For over 20 years the Delaware Riverkeeper Network battled against the U.S. Army Corps of Engineers proposal to deepen the Delaware River’s main navigation channel from 40 to 45 feet.   After grassroots organizing, advocacy and litigation the Army Corps finally got all of the approvals and funding it needed to start the project in 2010.  In 2019 the deepening work is still ongoing, with blasting taking place in the River in areas critical for our federal endangered sturgeon.

The deepening will have long term and enduring environmental and economic impacts on our River and region.

Uneconomical

Three times the Government Accountability Office  questioned and/or challenged the claims of economic benefit made by the Army Corps of Engineers for its proposed Delaware River Deepening Project.  In May 2011 the Army Corps, without any public awareness or announcement, completed its 8th economic review of the project in which it once again concluded the project was cost beneficial.  Having secured a copy of this report as the result of a Freedom of Information Act the Delaware Riverkeeper Network secured an independent review which found basic and fundamental flaws in the analysis done by the Army Corps and which proves their positive economic claims for the project are over-inflated and misrepresent reality. In short, merely correcting for a fundamental and basic economic analysis flaw identified the benefit-cost ratio for the project falls to a mere 1.1 to 1, i.e. at best one can claim 10 cents of net taxpayer benefit for every $1 invested in the Delaware River deepening project.  When additional errors are taken into consideration, this figure falls even further, supporting a conclusion that when accurately assessed the Delaware Deepening project yields less than $1 of benefit for taxpayers for every $1 they invest – i.e. it is a net loss for the taxpayers and therefore cannot warrant the nearly $300 million it requires for construction.  The new analysis also showed that the ports will continue to get traffic without a deepened channel and that the Army Corps knows this.

Environmentally Deepening is a Big Loser…

When it comes to the environmental and community harms, for years, agencies and environmental experts relying on sound scientific principles have documented the depth and breadth of the threats that deepening the River poses.  Those questioning the project include: the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Delaware River Basin Commission, the Delaware Department of Natural Resources and Environmental Control, the New Jersey Department of Environmental Protection, the University of Delaware’s Sea Grant Program, and more.

Environmentally, deepening the channel changes the movement and balance of fresh and salt water in a way that will move the salt line up river, threatening drinking water supplies and economically important oyster populations.  A multitude of species rely on the Delaware River for spawning; a changing salt line could diminish available freshwater spawning grounds that put at risk species like the Atlantic and shortnose sturgeon already in jeopardy of extinction. A changing salt line also risks the transformation of freshwater marshes, damaging the food and habitat they provide to a variety of fish and wildlife species important both ecologically and economically to the region.

A moving salt line is also a major threat to the oyster populations of the Delaware Estuary. The shifting salt line threatens significant changes, including the reintroduction of parasites and disease to the River’s oysters that in the past decimated these populations.  Oysters are vital to the ecology of the Delaware.  Oysters act as a vital food source for many of the River’s creatures and are important filters for pollution found in Estuary waters. Delaware Estuary oysters represent an important source of commercial value to the Delaware Estuary and Bay region. The annual harvest of oysters from the Delaware Estuary generates up to $80 million of annual economic benefit for the region, much of this in some of the region’s poorest communities that could not tolerate the loss of jobs, revenue and benefit if oyster populations decline.

Home to the largest spawning population of horseshoe crabs in the world

The Delaware Bay is home to the largest spawning population of horseshoe crabs in the world.  Every season, migratory shorebirds descend on Delaware Bay to feast on the eggs of the horseshoe crabs. The deepening project directly threatens the horseshoe crabs and their ability to successfully spawn in key areas in Delaware and, as a result, poses unacceptable threats to migratory birds already in decline because of a lack of needed horseshoe crab eggs. Horseshoe crabs and the migratory birds dependent on them bring a $34 million boost to the region’s ecotourism industry every year. Nationally, horseshoe crabs represent a substantial benefit to the biomedical industry, to which one pint of Horseshoe Crab blood is worth $15,000 for required testing on medical devices, vaccines and intravenous drugs, representing $150 million of annual revenue and social welfare value.

According to experts, the deepening project and associated spoil disposal will introduce heavy metals, pesticides, and other toxins into the River, reintroducing them into the environment and food chain, and putting at risk drinking water aquifers important to communities in New Jersey and Delaware.

Deepening would change water patterns in such a way that it will exacerbate erosion of wetlands. Wetlands are important ecologically, aesthetically and provide important protection during catastrophic storm events. The list of harms goes on.

Already we are hearing noises about deepening the River to 50 feet — so this is a battle that may be dormant for now but is likely to return.

Litigation: Delaware Riverkeeper, et. al. v. US Army Corps of Engineers (2009)

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 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. 

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. 

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. 

On January 18th, 2012, oral arguments before the Third Circuit Court of Appeals took place.

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

 

Monitoring Horseshoe Crabs, Tagging, and Rescues

Update: February 2024:

Delaware Riverkeeper Network joined Center for Biological Diversity and over 20 conservation allies to draft and submit a petition to urge the US Commerce Dept to list the American Horseshoe Crab as threatened or endangered under the federal Endangered Species Act. Horseshoe crab populations crashed due to overharvesting for bait many years ago, and have not recovered to their historic numbers despite efforts underway by conservation groups.  As a keystone species to the Delaware Bay their continued decline is extremely worrisome cuasing cascading impacts to the flor and fauana of the Delaware Bay and beyond.  Their habitat is rapidly disappearing, they continue to be overharvested for both bait and blood, and their spawning beaches are threatened by development, erosion, pollution, and climate change.

Listing American horseshoe crabs under the Endangered Species Act would provide many important protections to this species and their habitats. This horseshoe crab petition will also initiate a federal review of the species that could provide important data, research, funding, and oversight of ASMFC and state management agencies who continue to attempt to eat away at long hard protections that are science based and essential for the horseshoe crab.  Please stay tuned to this important petition effort and we will update you when it is time to write in letters to support this initial petition.

Overview

Delaware Riverkeeper Network will be out along the Bay this coming May and June for horseshoe crab monitoring work.  If you would like to possibly join us in this community science based  volunteer monitoring and tagging effort that we have been a part of each year for over two decades on the New Jersey and Delaware beaches, please contact faith@delawareriverkeeper.org

For decades, the Delaware Riverkeeper Network along with our colleagues from around the region, country and world have struggled to protect the horseshoe crabs of Delaware Bay from their continuing decline and to protect the shorebirds dependent upon them from going extinct as a result of that decline. In 2010 we had a huge success.  New Jersey passed a moratorium on the harvest of horseshoe crabs until such time as the birds dependent upon them could be deemed to have recovered.  

The Delaware Bay is critical habitat to more than 400 species of birds and migrating shorebirds. In fact, the Delaware Bay “is one of the most important stopover sites in North America for long distance migratory shorebirds.”  Each spring, at least 11 species of birds, including the red knot rufa, stop over on the Delaware Bayshore to feed on the eggs of the horseshoe crab and thereby fuel their annual spring migration. 

Available scientific studies clearly indicate large declines in shorebirds that is directly linked to decreasing shorebird weights and their decreased ability to feed themselves with horseshoe crabs eggs when they arrive along Delaware Bay beaches during their spring migration. Horseshoe crab numbers are at historic lows, resulting in low abundance and availability of horseshoe crab eggs for migratory shorebirds. As horseshoe crabs take 7-10 years to mature, we have a long way to go before historic densities of eggs will once again be found on the beaches of the Delaware Bay. The horseshoe crabs are not only vital for the shorebirds, but they currently provide an irreplaceable substance necessary for testing vaccinations and medical devices to ensure they are safe for human use.  Efforts continue to advocate the biomedical industry replaces this horseshoe crab use of blood with artificial alternatives that have been developed to further take pressure off of the struggling horseshoe crab populations.    

Peak counts of red knots on the Delaware Bay stopover have declined by 70% since 1998. Other shorebirds that rely on horseshoe crab eggs, such as ruddy turnstone, semipalmated sandpiper, sanderling, dunlin and short-billed dowitcher have also declined in number on the Delaware Bay migratory stopover. These species, together with red knots, make up 99 percent of the shorebird concentration in the Delaware Bay. All are dependent upon horseshoe crab eggs for all or most of their diet during the stopover, and all have significantly declined in population.  Sea turtles and other animals also feast on horseshoe crab eggs. 

Much of the recreation and culture of the New Jersey Bayshore is linked to the spawning of the horseshoe crabs and the annual arrival of the migratory shorebirds, including the red knot. The arrival, feasting and migration of the shorebirds supports a multi-million dollar ecotourism industry. Birding and outdoor enthusiasts from all over the world flock to the Delaware Bay shore to watch the spectacular feeding frenzy. During their visits, they buy recreation-related goods and services, stay in the region’s hotels, visit parks and patronize restaurants and local shops. According to one report, horseshoe crab-dependent ecotourism generates between approximately $7 million and $10 million of annual spending in Cape May, New Jersey alone, and creates 120 to 180 related jobs, providing an additional $3 million to $4 million in social welfare value.  According to a New Jersey Department of Fish and Wildlife report, the economic value of the horseshoe crab and migratory bird phenomenon seasonally for the Delaware Bay shore area is over $11.8 million with over $15 million of economic value generated if other beneficiaries beyond New Jersey are included. Annually, it provides $25 million in benefits to the Delaware Bay shore region and $34 million regionally. Because most of these expenditures occur in the “off-season”, they are particularly valuable to local economies. 

The continuing existence of the horseshoe crab and migrating shorebird phenomenon is vital for the related ecotourism industry. Of those surveyed, only 6.6% said that the horseshoe crab and shorebird phenomenon was unimportant to their visitor satisfaction. On average those surveyed said they would be willing to pay as much as $212.45 (in decreased annual household income) annually for a program to protect these resources; and that they would “be willing to tolerate no more than 50.7% decline in Horseshoe Crabs and migratory shorebirds before they would cease visiting the Delaware Bay shore area.” 

About the Petition

In 2005, the Delaware Riverkeeper Network led the creation and submission of a petition to the U.S. Fish and Wildlife Service (USFWS) to list the red knot (Caladris canutus rufa) as an endangered species under the Endangered Species Act.  The USFWS finally on September 30, 2013 took steps to list the Red Knot as “Threatened” under the Endangered Species Act in response to our petition.  Delaware Riverkeeper Network continued to push for “Endangered” listing through the public comment process that ended June 2014 to urge for elevation of protections.   A final USFWS listing rule of “Threatened” for the red knot was published December 11, 2014, with an effective date of January 12, 2015, triggering the full Section 7 consultation requirements of the Endangered Species Act. 

Delaware Riverkeeper Network continues to advocate, collaborate, and assist with monitoring  and tagging projects and stakeholder groups for the protection of the horseshoe crabs and shorebirds as threats emerge and continue for these essential animals that are keystone species to the Delaware Bay.   DRN currently sits on a stakeholder group as part of enforcement of the ESA and Published Biological Opinion (PBO) on the Effects of Existing and Expanded Structural Aquaculture of Native Bivalves in the Delaware Bay to watchdog the impacts that oyster aquaculture farming activities could have on red knots and the horseshoe crabs as this farming footprint operates and continues to seek to expand in the Delaware Bay

View a video from May 2014 showing horseshoe crab tagging with the Delaware Riverkeeper Network and efforts for volunteers to take part in citizen science to help the crabs and shorebirds.