5.6 Criteria for Waters of Exceptional
Recreational or Ecological Significance (ERES Waters)
5.6.1 General Policy
5.6.1.1 Designated ERES waters shall be
accorded a level of protection and monitoring in excess of that provided most
other waters of the State. These waters are recognized as special natural
assets of the State, and must be protected and enhanced for the benefit of
present and future generations of Delawareans.
5.6.1.2 ERES waters shall be restored, to the
maximum extent practicable, to their natural condition. To this end, the
Department shall, through adoption of a pollution control strategy for each
ERES stream basin, take appropriate action to cause the systematic control,
reduction, or removal of existing pollution sources, and the diversion of new
pollution sources, away from ERES waters.
5.6.1.3 Discharges to ERES waters shall be
avoided to the maximum extent practicable. In order to be permitted, a
discharge must be the least environmentally damaging practicable
alternative.
5.6.1.4 Prior to any
public notice for a discharge permit required pursuant to 7 Del.C. Ch. 60, the
Department shall make a determination that potential impacts have been avoided
to the maximum extent practicable, and that remaining unavoidable impacts will
be minimized to the extent appropriate and practicable. Findings shall be based
upon appropriate factual determinations, evaluations, and tests with special
emphasis on the persistence and permanence of the impacts. Under this provision
impacts considered individually or collectively include:
5.6.1.4.1 Impacts of pollutants on human
health and welfare;
5.6.1.4.2
Impacts of pollutants on life stages of aquatic life and other wildlife
dependent on aquatic ecosystems including, but not limited to, the transfer,
concentration, and spread of pollutants or their by-products through
biological, physical, and chemical processes;
5.6.1.4.3 Impacts of pollutants on aquatic
ecosystem diversity, productivity, and stability. Such impacts may include, but
are not limited to, loss of fish and wildlife habitat or loss of the capacity
of a wetland to assimilate nutrients, purify water, or reduce wave energy;
or
5.6.1.4.4 Impacts on
recreational, aesthetic, and economic values.
5.6.1.5 Any applicant for a discharge permit
required pursuant to 7 Del.C. Ch. 60 shall provide to the Department, as part
of a complete application, a resource assessment tailored to the site performed
by qualified professionals. Such assessments shall fully consider ecological
functions and values in light of the policies set forth in these standards.
Consideration shall be given to:
5.6.1.5.1
Potential impacts on physical and chemical characteristics of the aquatic
ecosystems which shall include, but not be limited to, substrates, substrate
particulates/turbidity, water, current patterns, water circulation, normal
water fluctuations, and salinity gradients;
5.6.1.5.2 Potential impacts on biological
characteristics of the aquatic ecosystem which shall include, but not be
limited to, fish, crustaceans, mollusks and other organisms in the food web,
other wildlife, and threatened or endangered species; and
5.6.1.5.3 Potential effects on human use
characteristics which shall include, but not be limited to, water supplies,
recreational and commercial fisheries, water related recreation, aesthetics,
parks, research sites, wildlife areas or public access
areas.
5.6.2
General Provisions
5.6.2.1 In cases where
natural conditions prevent attainment of applicable fresh or marine dissolved
oxygen criteria, reduction in dissolved oxygen levels as a result of human
activities shall be prohibited.
5.6.2.2 All point, and human induced nonpoint
sources subject to control through use of best management practices or
otherwise, shall be required to remove nutrients to the extent necessary to
prevent excessive growth of photosynthetic organisms.
5.6.2.3 All point, and human induced nonpoint
sources subject to control through use of best management practices or
otherwise, shall be required to remove particulate matter to the extent
necessary to minimize turbidity.
5.6.2.4 ERES waters shall not exhibit
toxicity within aquatic habitats commonly used by native or migratory aquatic,
terrestrial, and avian species. Such habitats include, but may not be limited
to, spawning sites, nursery areas, forage areas, and migratory
pathways.
5.6.2.5 ERES standards
shall not apply in excavated waters. All other appropriate criteria shall
remain in force for these waters.
5.6.2.6 The ERES criteria set forth in
subsection 5.6 supplement all other applicable requirements of these standards
for ERES waters. Nothing in subsection 5.6 relieves or reduces the obligation
of any person to comply with other requirements of these Standards, federal or
state laws and regulations.
5.6.3 Pollution Prevention
5.6.3.1 Existing Sources: For the purposes of
this Section, an existing source shall be defined as a discharge for which a
permit has been issued by the Department pursuant to 7 Del.C. Ch. 60 prior to
January 1, 1991. In the case of a water body designated as ERES waters pursuant
to Section 3.0 of the Standards, the Department shall not issue or reissue a
permit for an existing source unless the applicant demonstrates a utilization
of all economically feasible and reasonably available waste minimization
practices and technologies, and the lack of feasible alternative production
processes and disposal options.
5.6.3.2 The provisions of subsections
5.6.1.4, 5.6.1.5, and 5.6.3.1 shall apply to existing sources on January 1,
1996, or upon adoption of a Pollution Control Strategy as provided in
subsection 5.6.3.5, whichever occurs first. In either event, the provisions of
subsection 5.6, including all requirements of the Pollution Control Strategy
shall apply to existing sources.
5.6.3.3 Increased or New Sources: For the
purposes of subsection 5.6, new sources are those discharges for which a permit
has not been issued pursuant to 7 Del.C. Ch. 60 prior to January 1, 1991, and
increased sources are those discharges for which there is an increase in the
mass loading of any pollutant of concern from any existing source. For the
purposes of subsection 5.6, pollutants of concern are the following: oxygen
demanding substances (as may be measured by BOD and COD), nitrogen,
phosphorous, bacteria, heat, and total suspended solids. In the case of any
waterbody designated as ERES waters pursuant to Section 3.0 of the Standards,
the Department shall not issue or reissue a permit pursuant to 7 Del.C. Ch. 60
that allows an increase in or new source of pollutant loadings of pollutants of
concern unless the applicant demonstrates:
5.6.3.3.1 A need to discharge based upon a
showing of the full utilization of measures, processes, methods, systems or
techniques to eliminate the discharge altogether or minimize waste loadings
through process changes, substitution of materials, enclosure of systems or
other modifications. This can be demonstrated through the full utilization of
available waste minimization practices and technologies and the lack of
feasible alternative production processes and disposal options; and
5.6.3.3.2 That a proposed new discharge or
any increase in loading of pollutants of concern of an existing discharge is
consistent with the Pollution Control Strategy for the basin. Prior to adoption
of a Pollution Control Strategy for a stream basin no increase in loadings of
pollutants of concern shall be allowed to the stream basin from a surface water
discharger unless the Secretary determines that:
5.6.3.3.2.1 Such discharger offsets the
increased surface water discharge of pollutants of concern within the stream
basin to the maximum extent practicable in an acceptable manner;
5.6.3.3.2.2 The increased loadings of
pollutants of concern are necessary to prevent a substantial adverse economic
or social impact at the community or regional level, and
5.6.3.2.2.3 Water quality will be maintained
to fully protect existing uses.
5.6.3.4 Pollution Control Strategy
5.6.3.4.1 For each stream basin designated as
ERES waters pursuant to Section 3.0 of these standards, the Department shall
develop a pollution control strategy. The strategy shall provide for the
implementation of best management practices established pursuant to subsection
5.6.3.5 of this section and shall include such additional requirements,
measures, and practices as are necessary to:
5.6.3.4.1.1 Prevent the violation of water
quality standards;
5.6.3.4.1.2
Protect all resources in the stream basin in a manner that allows for natural
conditions to be maintained or restored; and
5.6.3.4.1.3 Assure the protection and
propagation of a balanced, indigenous population of fish, shellfish, aquatic
vegetation, and wildlife, and provide for recreational activities in and on the
water.
5.6.3.4.2 The
strategy pursuant to this subsection shall, at a minimum:
5.6.3.4.2.1 Provide an assessment of the
nature, degree, and extent of pollution to waters within such stream basin, in
terms of point source and non-point source contribution;
5.6.3.4.2.2 Identify the aspects of the
stream basin which are important, unique, or sensitive from a recreational or
ecological perspective;
5.6.3.4.2.3
Establish such additional indicators and criteria that satisfy the general
policy and provisions established for such stream basins;
5.6.3.4.2.4 Identify the means by which ERES
standards will be achieved;
5.6.3.4.2.5 Delineate, where appropriate, the
specific point source effluent limits, best management practices, and other
controls that will be used to achieve water quality standards; and
5.6.3.4.2.6 Indicate changes to be made to
state plans for control of water pollution or resource management to assure
implementation of the strategy.
5.6.3.4.3 The Department shall assure the
opportunity for public participation in the development of the strategy
required pursuant to this subsection and shall provide for public review and
comment on the strategy in accordance with 7 Del.C. §
6010.
5.6.3.4.4 The Department may, to the extent
it deems appropriate, provide technical assistance to local governments in
developing and implementing the strategy required pursuant to this
subsection.
5.6.3.4.5 The
Department shall, to the extent it deems appropriate, pursue and coordinate
implementation of any strategy developed pursuant to this subsection through
priority application of its resources to ERES waters through its regulatory and
non-regulatory programs.
5.6.3.4.6
The Department may, in accordance with 7 Del.C. §
6010, adopt and require
the use of specific combinations of methods, practices, and technologies which
it deems to be most effective for controlling, reducing, or removing waste
loadings to ERES waters. Such requirements shall be based upon the application
of good engineering and environmental science practices and principles, achieve
a high degree of reliability, and be appropriate for the categories of
activity.
5.6.3.5 Best
Management Practices
The Department may adopt, pursuant to 7 Del.C. §
6010,
best management practices for selected sources of pollution to ERES waters.
Best management practices identified by the Department pursuant to this
subsection shall provide a standard for the control of the addition of
pollutants which reflects the greatest degree of pollutant reduction achievable
including, where practicable, a standard requiring no discharge of
pollutants.
