Upper Delaware Fisheries Protection
The Upper Delaware River Basin is home to a renowned wild trout fishery. However, the well-being of the fishery depends on coldwater releases from three reservoirs built and operated by the City of New York for public water supply.
Allocation of the waters in the upper basin is governed by a decree of the U.S. Supreme Court, issued in 1954 to settle an interstate water dispute between New York and the lower basin states which centered on the New York City Delaware Basin reservoirs. The parties to the Supreme Court decree ("decree parties") are the four basin states (Delaware, New Jersey, New York, and Pennsylvania) and the City of New York. The 1954 decree allows New York City to export up to 800 million gallons per day from its three Delaware Basin reservoirs for water supply purposes, provided that compensating releases from those reservoirs are made (when necessary) to maintain a prescribed minimum flow at Montague, New Jersey for the use of the lower basin states. The 1954 decree made no provision for spill mitigation, conservation or ecological releases.
In the years since 1954, however, various programs of reservoir releases for fisheries protection have been agreed to by the decree parties. The 1961 law (known as the Delaware River Basin Compact) creating the Delaware River Basin Commission (DRBC) gives the commission the power to allocate the waters of the basin, but prohibits it from adversely affecting any condition set forth in the 1954 decree, including the New York City reservoir releases or diversions that the decree established, without the unanimous consent of the five decree parties. The members of the DRBC are Delaware, New Jersey, Pennsylvania, New York State, and the federal government. New York City, a decree party, is not a DRBC member.
The web site of the Delaware River Master, which administers provisions of the decree, provides a history of the reservoir releases program in the Upper Basin.
Three-Year Interim Fisheries Protection Program (2004)
In 2002, New York State presented a proposal to the decree parties to revise the existing reservoir releases program. This proposal continued a process of fishery-related negotiations among the decree parties that has taken place since 1977. After negotiation among the decree parties and with their unanimous consent, a program was approved by the DRBC on April 21, 2004 (Resolution 2004-3). Prior to this commission action, the DRBC conducted an informational meeting and a public hearing on the proposed fisheries protection program on March 2, 2004 in Hawley, Pennsylvania. A number of additional changes to the proposed program were made in response to public comments.
The approved program to provide additional water for fishery protection established minimum flow targets at three tailwater locations during a three-year interim period that originally extended from May 2004 to May 2007. During normal conditions, the flow targets were those recommended by New York State Department of Environmental Conservation (NYSDEC) fisheries biologists based on a trout habitat study completed in 1983. During various drought stages, flow targets were proportionally reduced. In addition to flow targets, an expanded water bank was available to make additional releases to avoid high instream water temperatures that are harmful to trout. The interim program also included a monitoring plan to assess the program's effects on the fisheries and other aquatic resources. Based on results of the three-year program and on further deliberations on the sustainability of the water available to support fishery releases, the decree parties intended to develop and implement a flexible program of reservoir releases to better address the needs of the upper basin fisheries and other needs in the main stem Delaware River and the Delaware Bay.
On May 10, 2007, the DRBC approved Resolution 2007-7 extending the program through September 30, 2007.
Flexible Flow Managment Program (2007-Present)
On the morning of September 26, 2007, the five parties to the U.S. Supreme Court Decree of 1954 reached unanimous consensus on a Flexible Flow Management Program (FFMP) for operation of the three New York City Delaware Basin reservoirs. The agreement can be viewed on the web site of the Office of the Delaware River Master.
The decree party's FFMP agreement was developed to provide a more adaptive means than the previous operating regime for managing the Cannonsville, Pepacton, and Neversink reservoirs for competing uses, including: water supply; drought management; flood mitigation; protection of the tailwaters fishery; a diverse array of habitat needs in the main stem river, estuary, and bay; recreation; and salinity repulsion.
The conceptual framework of the FFMP agreement largely eliminates the reservoir storage "banks" previously used for habitat protection purposes and instead bases releases on storage levels, resulting in larger releases when water is abundant and smaller releases when storage is at or below normal. Its spill mitigation component is intended to reduce the likelihood that the three reservoirs could be full and spilling coincident with a major storm or thaw. It does not include specified void targets
At the DRBC's September 26, 2007 public meeting and hearing, the commissioners adopted Resolution 2007-14 directing staff to begin the public rulemaking process to incorporate the FFMP into the commission's rules and regulations. This process includes the preparation and publication of proposed rules, holding informational meetings and public hearings, reviewing the public comments received, making possible modifications to the proposed rules, and adopting final regulations. The proposed regulations were published on December 3, 2007. In response to these proposed regulatory changes, over 1,900 comments were received during the public comment period that ended on March 3, 2008. A summary of the comments and a response for each of the major issues has been prepared.
The DRBC at its December 10, 2008 public meeting withdrew the proposed amendments to the DRBC Water Code published in December 2007 and directed commission staff to develop new proposed amendments to the Water Code for public notice and comment by or in the summer of 2009 (or as soon thereafter as practicable).
Delaware Commissioner Katherine Bunting-Howarth, who represents the Governor of Delaware on the DRBC, presented a statement on behalf of the commissioners regarding the FFMP and related DRBC rulemaking at the December 10, 2008 DRBC Meeting.
The FFMP agreement reached by the decree parties continues to be implemented on a temporary basis by the decree parties through May 2011. The current agreement can be viewed on the web site of the Office of the Delaware River Master, which administers the provisions of the decree.
Voice (609) 883-9500 