DRBC -- Notice of Proposed Rulemaking and Public Hearing

NOTICE OF PROPOSED RULEMAKING AND PUBLIC HEARING
December 3, 2007

Proposed Rulemaking to Implement a Flexible Flow Management Program for the New York City Delaware Basin Reservoirs

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Transcripts of January 16, 2008 Public Hearings on the Proposed FFMP Rulemaking:

DRBC Extends Comment Period on Proposed Rulemaking for New York City Delaware Basin Reservoirs Management Plan (January 17, 2008)

View Text of the Proposed Water Code Amendments

SUMMARY: The Delaware River Basin Commission (“Commission” or “DRBC”) will hold a public hearing to receive comments on proposed amendments to its Water Code and Comprehensive Plan to implement a Flexible Flow Management Program (“FFMP”) for the New York City Delaware River Basin reservoirs. The proposed amendments are consistent with provisions of an agreement dated September 26, 2007 among the parties to the 1954 Supreme Court decree in New Jersey v. New York – the states of Delaware, New Jersey, and New York, the Commonwealth of Pennsylvania and the City of New York – that provide a comprehensive framework for addressing multiple flow management objectives, including water supply, drought mitigation, flood mitigation, protection of the tailwaters fishery, a diverse array of habitat needs in the main stem Delaware River, the Delaware Estuary and Delaware Bay, recreational uses and salinity repulsion.

DATES: The public hearing will take place on Wednesday, January 16, 2008, from 3:00 p.m. to 5:30 p.m. and from 7:00 p.m. to 10:00 p.m. or until all those who wish to testify have had an opportunity to do so; it will take place at the West Trenton Volunteer Fire Company, 40 West Upper Ferry Road, West Trenton, N.J. Persons wishing to testify are asked to register in advance with the Commission Secretary at (609) 883-9500 ext. 224.

Four informational meetings on the proposed amendments will be held. The first two meetings will take place on Tuesday, December 18, 2007 from 3:00 p.m. to 5:00 p.m. and from 6:30 p.m. to 9:30 p.m. at the Best Western Inn at Hunt’s Landing, 120 Routes 6 and 209, Matamoras, Pa. The second two meetings will take place on Tuesday, January 8, 2008 from 3:00 p.m. to 5:00 p.m. and from 6:30 p.m. to 9:30 p.m. at the offices of Wolf, Block, Schorr and Solis-Cohen LLP, 1650 Arch Street, 26th Floor, Philadelphia, Pa. Each meeting will consist of an informational presentation followed by questions and answers.

View "Explanation of Reservoir Operating Curves" Handout Distributed at Informational Meetings

View Powerpoint Presentation Given at Informational Meetings (420 KB; Adobe Reader required)

Written comments will be accepted through the close of business on March 3, 2008. All testimony and written comments submitted to the Commission during its previous hearings or comment period on the FFMP, including comments on the form of the FFMP that was published on the Commission’s website in February 2007, will be included in the administrative record for this action and need not be re-submitted. Written comments may be submitted by email to paula.schmitt@drbc.state.nj.us; by U.S. Mail to Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360; or by fax to 609-883-9522. In all cases, the commenter’s name, affiliation and address should be provided in the comment document, and “FFMP” should appear in the subject line.

FOR FURTHER INFORMATION CONTACT: For further information about the rulemaking process, please contact Pamela M. Bush, Commission Secretary and Assistant General Counsel, DRBC, at 609-883- 9500 ext. 203.

SUPPLEMENTARY INFORMATION:
Background. The Delaware River Basin Commission (“Commission” or “DRBC”) was created by the Delaware River Basin Compact (“Compact”), a statute concurrently enacted in 1961 by the United States and the four basin states – Delaware, New Jersey, New York and Pennsylvania. The Compact empowers the Commission, among other things, “to allocate the waters of the basin to and among the states signatory to th[e] compact and to and among their respective political subdivisions, and to impose conditions, obligations and release requirements related thereto.” This authority is subject, however, to the significant limitation that the Commission may not “impair, diminish or otherwise adversely affect the diversions, compensating releases, rights, conditions, obligations and provisions for the administration thereof” established by the Supreme Court decree in New Jersey v. New York, 347 U.S. 995 (1954), without the unanimous consent of the decree parties (Compact,§ 3.3).

The Commission and the decree parties are the same with two exceptions. Although the U.S. Government is a member of the Commission, it is not a party to the 1954 decree; and although the City of New York is a decree party, it is not a member of the Commission. The Compact provides for the City of New York (“City”) to serve as an advisor to the State of New York in Commission matters.

The 1954 Supreme Court decree gave the City the right to divert up to 800 million gallons per day (m.g.d.) of water from its three Delaware Basin reservoirs – Cannonsville, Pepacton and Neversink – subject to the condition that it release water from its reservoirs in quantities designed to maintain a minimum basic rate of flow at Montague, New Jersey of 1,750 cubic feet per second (c.f.s.), a condition known as “the Montague flow objective”. The decree further required the City to release annually an excess quantity (“the excess release quantity” or “ERQ”) of up to 70 billion gallons (b.g.) during the seasonal period June 15 – March 15. The amount of the ERQ is determined each year based on the City’s estimate of the amount by which its available water from all sources will exceed its estimated consumption for that year. (The ERQ is calculated as the lesser of 70 b.g. or 83 percent of the amount by which the City’s continuous safe yield during the year from all its sources obtainable without pumping exceeds its estimated consumption.) The decree gave New Jersey the right to divert up to 100 m.g.d. from the basin without compensating releases. It assigned to the U.S. Geological Survey the role of supervising the diversions and releases established by the court, in the person of a Delaware River Master.

Since the Commission’s creation, the agency has provided a forum for the decree parties and commissioners to adapt reservoir operations to hydrologic conditions and flow needs not contemplated by the decree. Almost simultaneously with the Commission’s creation, a new drought of record from 1961 to 1967 gave rise to conditions in which the diversions and flow objectives established by the decree could not be sustained. To apportion limited water supplies in an equitable fashion, avert severe shortages, and avoid the need to negotiate future reductions during a severe drought, the parties eventually responded by entering into the Good Faith Agreement of 1983. “Good Faith”, a term used to refer collectively to the 1983 agreement and the DRBC instruments adopted to implement it, among other things established a schedule of graduated reductions in diversions and flow objectives to conserve water when storage in the City’s three Delaware Basin reservoirs declines below specified thresholds; it also established a flow objective of 3,000 c.f.s. at Trenton, subject to stepped reductions during periods of drought, to prevent chloride concentrations from rising in the vicinity of key water supply intakes in the Delaware Estuary; and it provided for supplemental releases by New York City and from other Delaware Basin reservoirs during drought emergency operations to augment river flows at Montague and Trenton in order to repel salt, a concept known as the “salt front vernier.”

DRBC with the unanimous consent of the decree parties adopted the Good Faith recommendations for modified diversions and flow targets during drought through Resolutions Nos. 83-13, 84-7 and 88-22 in 1983, 1984 and 1988, respectively, and subsequently incorporated these resolutions into the Commission’s Water Code. DRBC established the conservation releases contained in the Good Faith agreement when it approved Docket D-77-20 CP (Revised) with the unanimous consent of the decree parties in November of 1983. From time to time thereafter, in revisions 2 through 9 of Docket D-77-20 CP, the Commission with the unanimous consent of the decree parties approved temporary revisions to the reservoir releases program for purposes that included, among others, fisheries protection and spill mitigation. Some of these docket revisions also modified on a temporary basis reservoir operating conditions that had been placed in the Water Code. The latest of the operating conditions established by revisions 2 through 9 of Docket D‑77-20 CP expired on September 30, 2007.

On September 26, 2007, the decree parties reached unanimous agreement on a Flexible Flow Management Program (FFMP) that would provide a framework for managing diversions and releases from New York City’s Delaware Basin reservoirs for multiple objectives, including water supply, drought mitigation, flood mitigation, protection of the tailwaters fishery, a diverse array of habitat needs in the main stem, estuary and bay, recreation and salinity repulsion. On the same day, the Commission unanimously approved Resolution No. 2007-14, authorizing the Commission’s executive director to publish proposed regulations for implementing the FFMP, and to conduct notice and comment rulemaking, including public hearings, on such proposed regulations. Today’s notice is issued in accordance with that authorization.

Water Code Sections to be Amended. The proposed rulemaking would place reservoir operating rules consistent with the decree parties’ September 26, 2007 agreement into a revised Section 2.5.3 of the Water Code newly titled, “Flexible Flow Management Program”. Water Code sections 2.5.4 (concerning drought emergency actions by the Commission in accordance with Section 3.3 of the Compact), 2.5.5 (providing for coordinated operation of lower basin and hydroelectric reservoirs during a basinwide drought), and 2.5.6 (relating to coordinated operation of upper and lower basin reservoirs during a lower basin drought) are proposed to be amended for consistency with the new Section 2.5.3. The proposed amendments to Sections 2.5.3 through 2.5.6 collectively would comprise the “FFMP.”

Term of Amendments. The amendments constituting the FFMP are proposed to expire on May 31, 2011, unless the decree parties’ agreement of September 26, 2007 is extended prior to that date. Absent further revisions adopted by the DRBC with the unanimous approval of the decree parties, upon expiration of the amendments comprising the FFMP, the New York City Delaware Basin reservoirs will be operated in accordance with the pre-FFMP Water Code and Docket D-77-20 CP (Revised).

Effect of Proposed Amendments. The proposed amendments would substitute a fixed volume of releases called the “Interim Excess Release Quantity” for the ERQ calculated annually in accordance with a formula established by the decree. They would modify the schematic rule curves diagram that defines basinwide normal, drought watch, drought warning and drought emergency operating conditions by updating labeling of the diagram, adding a discharge mitigation trigger curve, and adding labels for storage levels L1 through L5. The amendments also would increase New Jersey’s allowable diversion during drought warning and drought emergency operations by 15 m.g.d. and 20 m.g.d., respectively, above the levels established by the Good Faith agreement; eliminate the link established by the Good Faith agreement between the Montague flow objective and the location of the salt front during basinwide drought emergency operations (“the Montague vernier”); and establish the rate of releases to be made from each of the City’s Delaware Basin reservoirs for habitat protection and discharge mitigation, based upon combined reservoir storage levels and individual reservoir storage levels. Key aspects of each of these proposed amendments are set forth below:

An Interim Excess Release Quantity (“IERQ”) in the fixed amount of 15,468 c.f.s.-days for non-leap years and 17,125 c.f.s.-days for leap years is proposed to replace the ERQ calculated annually in accordance with the decree. The IERQ is proposed to be released from the City’s Delaware Basin reservoirs during basinwide normal operations in order to: 1) increase the Montague flow objective from 1,750 c.f.s. to 1,850 c.f.s. during the period from June 15 through September 15; and 2) maintain the Trenton flow objective of 3,000 c.f.s for the period from June 15 through March 15. All or a portion of the available IERQ also is proposed to be subject at any time to placement in an “IERQ Extraordinary Needs Bank” to support research, aquatic life, or other activities approved by the DRBC with the unanimous agreement of the decree parties.

Labels for the rule curves diagram that establishes basinwide operating conditions in accordance with combined storage in the City’s three Delaware Basin reservoirs are proposed to be updated to reflect normal, drought watch, drought warning and drought emergency conditions. Although the term “drought watch” has been used consistently since April 28, 1999 in accordance with a definition established by Docket D-77-20 CP (Revision 4), this term has not previously appeared in the Water Code. The label “drought emergency” is proposed to replace the more ambiguous “drought”. No change is proposed to the placement of the three curves established by Docket D-77-20 CP (Revision 4). A fourth curve is proposed to be added, however, to indicate the combined storage level at which L1 discharge mitigation releases are triggered. The rule curves with updated labeling are depicted in Figure 1 of proposed Section 2.5.3 F., Drought Management, of the proposed amendments. Figure 1 is linked to the schedule of diversions and flow objectives set forth in proposed Table 1 of the same section and to provisions set forth in the text of that section. Figure 1 is proposed to be further amended by the addition of labels L1 through L5 for the five storage zones delineated by the curves. The storage zones correspond to minimum releases from each of the City’s Delaware Basin reservoirs for purposes of habitat protection and discharge mitigation in accordance with Tables 3A through 3D of proposed Section 2.5.3 G., the Tailwaters Habitat Protection and Discharge Mitigation Program (“THP-DMP”).
New Jersey’s allowable diversion is proposed to be increased from 70 m.g.d. to 85 m.g.d. during drought warning operations and from 65 m.g.d. to 85 m.g.d. during drought emergency operations. The lower diversions during drought warning and drought emergency operations have not been changed since they were established by Good Faith. These amendments are proposed to be included in Table 1 of proposed Section 2.5.3 F., Drought Management.
The Montague flow objective is proposed to be “detached” from the 7-day average location of the 250 mg/L chloride concentration (the “salt front”) in the Delaware Estuary during basinwide drought emergency operations. Current Water Code provisions that link the Trenton flow objective to the salt front location will remain in place. The Montague and Trenton flow objectives are set forth in Tables 1 and 2 of proposed Section 2.5.3 F. Rules establishing the Trenton flow objective for lower basin drought operating conditions are set forth in Section 2.5.6.
A Tailwaters Habitat Protection and Discharge Mitigation Program (THP-DMP) is proposed, consisting of conservation releases to help maintain minimum flows and adequate temperatures in the tailwaters below the City’s Delaware Basin reservoirs to protect the cold water fishery, and discharge mitigation releases designed to help mitigate the effects of flooding immediately below the three reservoirs. Releases are defined for each of the reservoirs individually, based upon total combined storage in accordance with the four rule curves contained in Figure 1 in proposed Section 2.5.3 F.

The proposed amendments would largely eliminate the use of storage “banks” for purposes of habitat protection. Such banks were central to the program established by Docket D-77-20 CP. Instead, conservation releases would be based on reservoir storage levels, resulting in larger releases when reservoir storage is high and smaller releases when storage is at or below normal. Conservation release rates for each storage zone are set forth in new Tables 3A thru 3D of Section 2.5.3 G.

Discharge mitigation releases from the City’s Delaware Basin reservoirs are proposed to be triggered when total combined storage in the reservoirs is in the uppermost storage zone (L1) of the rule curves diagram (Figure 1). When this condition applies, the individual reservoir storage zones (L1-a, L1-b, and L-1c) defined by Figure 2 in proposed Section 2.5.3 G. are proposed to be used in conjunction with Tables 3A through 3D to establish the applicable release rates. The schedule of releases (either 3A, 3B, 3C or 3D) to be used during a given year depends upon the quantity (not to exceed 35 m.g.d.) that the City makes available for the program from its allowable daily diversion in accordance with proposed Sub-section 2.3.5 G.2. Discharge mitigation releases are limited by potential downstream flood stages in accordance with conditions set forth in proposed Table 4 in Sub-section 2.5.3 G.4.

Temporary Suspension or Modification of FFMP in Case of Emergency. The proposed amendments provide at Section 2.5.3 H. a procedure for temporary suspension or modification of provisions of the FFMP if the executive director after consultation with the decree parties and with their unanimous consent finds that customary notice and comment rulemaking by the Commission is impracticable and contrary to the public interest. In that event, the proposed amendments provide for the executive director to issue an emergency order, which must be ratified, rejected or modified at the next meeting of the Commission, subject to the unanimous approval of the decree parties. Public notice of such action in advance of the public meeting is required. In the event that a suspension or modification of rules by emergency order were proposed to remain in effect on more than a temporary basis, ratification by the Commission would be temporary, pending completion of notice and comment rulemaking.

Previous Federal Register Notices. Previous notices on the proposed FFMP appeared in the Federal Register on February 12, 2007 (72 FR 6509) and August 28, 2007 (72 FR 49268). In response to the February and August notices (and similar notices published in the state registers), the Commission received written and oral comments from more than 100 agencies, organizations, elected officials and private citizens. The decree parties in revising their agreement considered the broad range of public comments the Commission received. The Commission will consider these comments along with any and all additional comments received during the rulemaking process.

Related Documents. All resolutions and dockets relating to operation of the New York City Delaware Basin reservoirs are available on the Commission’s web site at www.drbc.net or upon request from the Delaware River Basin Commission, P.O. Box 7360, West Trenton, NJ 08628-0360. The DRBC web site includes a link to the site of the U.S. Geological Survey, Office of the Delaware River Master, http://water.usgs.gov/orh/nrwww/odrm/, which includes the decree parties’ September 26, 2007 agreement.

Text of the Proposed Amendments. The text of the proposed Water Code amendments can be found by clicking here (600 KB; Adobe Reader required to view).

PAMELA M. BUSH, ESQ.
Commission Secretary