PROPOSED RULEMAKING
DELAWARE RIVER
BASIN COMMISSION
[25 PA. CODE CH. 901]
Proposed Rulemaking to Implement a Flexible Flow Management Program for the New York City Delaware Basin Reservoirs
[37 Pa.B. 6914]
[Saturday, December 29, 2007]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 p.m. to 5:30 p.m. and from 7 p.m. to 10 p.m. or until all those who wish to testify have had an opportunity to do so. The hearing will take place at the West Trenton Volunteer Fire Company, 40 West Upper Ferry Road, West Trenton, NJ. Persons wishing to testify are asked to register in advance with the Commission Secretary at (609) 883-9500 ext. 224. Written comments will be accepted through the close of business on Friday, January 18, 2008. Written comments may be submitted by email to paula.schmitt@drbc.state.nj.us; by United States 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. 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 resubmitted.
Four informational meetings on the proposed amendments will be held. The first two meetings took place on Tuesday, December 18, 2007, from 3 p.m. to 5 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 p.m. to 5 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. Directions to the hearing and meeting locations are available via links on the DRBC website.
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 United States 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 (mgd) 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 (cfs), 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 bg or 83% 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 mgd from the basin without compensating releases. It assigned to the United States 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 cfs 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.''
The 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. The 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 Proposed 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 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 mgd and 20 mgd, 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 cfs-days for nonleap years and 17,125 cfs-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 cfs to 1,850 cfs 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 mgd to 85 mgd during drought warning operations and from 65 mgd to 85 mgd 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 through 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 mgd) 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 Notices. The text of the proposed Water Code amendments that appears below was published on the DRBC website, www.drbc.net, on December 3, 2007. Notices on the proposed FFMP appeared in the Federal Register at 72 FR 6509 (February 12, 2007); 72 FR 49268 (August 28, 2007) and 72 FR 57875 (December 3, 2007) and at 37 Pa.B. 785 (February 17, 2007), 37 Pa.B. 3099 (June 25, 2007) and 37 Pa.B. 4871 (September 8, 2007). In response to the February and August notices (and similar notices published in the registers of the other Delaware Basin states), 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 DRBC resolutions and dockets relating to operation of the New York City Delaware Basin reservoirs are available on the Commission's website at www.drbc.net or upon request from the Delaware River Basin Commission, P. O. Box 7360, West Trenton, NJ 08628-0360. The DRBC website 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' agreement of September 26, 2007.
Further Information, Contacts
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.
It is proposed to amend Sections 2.5.3 through 2.5.6 of the Water Code as set forth below. Material proposed to be added is printed in bold face and material proposed to be deleted is enclosed in brackets [ ] and printed in bold face. Asterisks indicate ellipses of rule text retained without change.
The proposed amendments entail changes to the outline and organization of Section 2.5.3 in order to make DRBC's regulations relating to operation of the New York City Delaware Basin reservoirs more comprehensive, to incorporate into the regulations conditions formerly included only in DRBC dockets, and to follow to the extent possible and appropriate the outline of the Decree Parties' agreement dated September 26, 2007. Accordingly, the portions of current (un-amended) Water Code subsections 2.5.3 A. through D. that relate to normal operating conditions are included in proposed subsections 2.5.3 C. through E. (entitled ''Diversions,'' ''Flow Objectives'' and ''Releases,'' respectively). Provisions of the un-amended Water Code sections 2.5.3 A. through E. that relate to operation of the New York City reservoirs during drought are proposed to be placed in amended Sub-section 2.5.3 F., Drought Management (see proposed sub-sections 2.5.3 F.1. through 2.5.3 F.3). The provisions of current sub-section 2.5.3 E., which establish the triggers and duration of certain drought operating conditions, are proposed to be placed in amended Sub-section 2.5.3 F.4. Paragraphs of the current Section 2.5.3 that are proposed to be moved or re-numbered but which otherwise closely track the existing Water Code language are presented in normal face type.
Sections 2.5.3 through 2.5.6 of the Water Code in their entirety and showing all proposed amendments are posted on the Commission's web site, drbc.net. Graphics on the website are in color.
§ 2.5.3 FLEXIBLE FLOW MANAGEMENT PROGRAM
A. Program Established
1. A Flexible Flow Management Program (FFMP) is hereby established, whereby diversions and releases from the New York City Delaware Basin reservoirs provided for by the Supreme Court Decree in the matter of New Jersey v. New York, 347 U.S. 995, 74 S. Ct. 842 (1954) (referenced elsewhere in these Regulations as ''the Decree'') shall be implemented as herein amended with the following objectives: to provide safe and reliable supplies of water from the Delaware River Basin to the more than 17 million people who depend upon this water source; to provide flows to help control temperatures in the tailwaters to help sustain cold water fisheries; to assist in mitigating the impacts of flooding; and to provide freshwater flows to the main stem and bay to help protect ecological health, withdrawal and non-withdrawal uses and repel salinity.
2. The FFMP shall be comprised of Section 2.5.3 of these regulations and the revisions to other Sections of the Water Code adopted simultaneously for consistency with Section 2.5.3.
B. Criteria for Program Modification. Criteria to be considered by the DRBC in evaluating proposed modifications to the FFMP shall include but shall not be limited to the following (without any particular priority):
1. Decree Party equity
2. Net benefits and costs to environmental and economic resources
3. Source and sustainability of water available to support the proposed modification
4. Habitat types--with naturally-occurring habitats receiving consideration over man-made habitats
5. Scientific basis for modification
6. Implications for drought management, water supply and flood mitigation, including but not limited to impacts on: 1) frequency, duration and seasonal timing of the various drought operating conditions; and 2) frequency and duration of changes to levels of storage, diversions, releases and flows
7. Extent to which the diversions and the minimum basic rate of flow at Montague, New Jersey established by the Decree are met
8. Potential impacts on water quality, including effect on water quality standards, national and state pollutant discharge elimination system permits issued in accordance with the Clean Water Act, DRBC dockets, wasteload allocations, assimilative capacity of the Delaware River and ecological health
9. Ease and practicability of operation
10. Consistency with adaptive management principles
11. Applicability and implementation of water conservation practices
12. Impacts on salinity
C. Diversions
1. City of New York
a. In accordance with Paragraphs III.A.3 and III.A.4. of the Decree, and subject to the limitations set forth in these regulations, the City may divert the equivalent of 800 million gallons per day (mgd), to be computed such that ''[a]t no time during any twelve-month period, commencing June 1, shall the aggregate total quantity of water diverted [by the City], divided by the number of days elapsed since the preceding May 31, exceed [800 million gallons per day (mgd)].''
b. In accordance with Paragraph III.B. of the Decree, diversions by the City of New York from the Delaware River shall be made under the supervision and direction of the Delaware River Master.
2. State of New Jersey
a. In accordance with Paragraph V.A. of the Decree, and subject to the limitations set forth in these regulations, ''[t]he State of New Jersey may divert outside the Delaware River watershed, from the Delaware River or its tributaries in New Jersey, without compensating releases, the equivalent of 100 m.g.d. . . . .''
b. In accordance with Paragraph V.B. of the Decree, diversions by New Jersey from the Delaware River shall be made under the supervision of the Delaware River Master.
c. In addition to the limitations on New Jersey's diversion established by these Regulations for periods of drought, the State's diversion shall be subject to the conditions and obligations set forth in Paragraphs V.B.1. through V.B.3. of the Decree, as modified in accordance with Sections 2.5.3 C.2.d. and e. immediately below.
d. Until the State of New Jersey builds and utilizes one or more reservoirs to store waters of the Delaware River or its tributaries for the purpose of diverting the same to another watershed, or purchases or leases reallocated water or new storage from an existing or new storage facility, the State of New Jersey diversion may not exceed 100 mgd as a monthly average, with the diversion on any day not to exceed 120 million gallons.
e. In accordance with Paragraph V.B.2. of the Decree, ''[i]f and when the State of New Jersey has built and is utilizing one or more reservoirs to store waters of the Delaware River or its tributaries for the purpose of diversion to another watershed, it may withdraw water from the Delaware River or its tributaries into such impounding reservoirs without limitation except during the months of July, August, September and October of any year, when not more than 100 m.g.d. as a monthly average and not more than 120 million gallons in any day shall be withdrawn.'' This restriction may be modified upon unanimous consent of the Decree Parties should the State of New Jersey purchase or lease reallocated water or new storage from an existing or new facility.
f. In accordance with Paragraph V.B.3. of the Decree, ''[r]egardless of whether the State of New Jersey builds and utilizes storage reservoirs for diversion, its total diversion for use outside of the Delaware River Basin without compensating releases shall not exceed an average of 100 m.g.d. during any calendar year.''
D. Flow Objectives
1. Montague Flow Objective
a. The City of New York shall release water from one or more of the City's Delaware Basin reservoirs in quantities designed to maintain a minimum basic rate of flow (or ''flow objective'') at the gaging station of the United States Geological Survey (U.S.G.S.) at Montague of 1,750 cubic feet per second (cfs) in accordance with Paragraph III.B.1.(b) of the Decree during basinwide normal operating conditions. Provided, however, that during the period from June 15 through September 15 annually during normal operating conditions, the Montague flow objective shall be elevated to 1,850 cfs, to the extent that this objective is supported by releases from the Interim Excess Release Quantity (IERQ), as defined in Section 2.5.3 E.2. below.
b. In accordance with Paragraphs III.B.1.(b) VII.B.2. and VII of the Decree, releases from the City's Delaware Basin reservoirs to maintain the Montague Flow Objective shall be as directed by the River Master. Such releases shall be referred to as ''directed releases.''
c. In evaluating alternatives to the Montague Flow Objective, the Commission shall consider the availability of increased storage and the impact of such alternatives on the Trenton Flow Objective.
2. Trenton Flow Objective
a. The minimum basic rate of flow at the gaging station of the U.S.G.S. at Trenton, New Jersey (or ''Trenton Flow Objective'') when both basinwide1 and lower basin2 operating conditions are normal shall be 3,000 cfs.
b. Reservoir releases required to maintain the Trenton Flow Objective during basinwide normal operating conditions shall be made from the City's Delaware Basin reservoirs in accordance with Sections 2.5.3. E.2. and Section 2.5.6. below, and from Commission storage in the Beltzville and Blue Marsh reservoirs in Pennsylvania.
c. IERQ releases from the City's Delaware Basin reservoirs in accordance with Section 2.5.3 E.2. below to maintain the Trenton Flow Objective during basinwide normal operating conditions shall be in such quantities and at such times as determined by the Delaware River Basin Commission and directed by the Delaware River Master.
d. Releases of stored water to maintain the Trenton Flow Objective at times other than during basinwide normal operating conditions shall be in accordance with the priorities established in Sections 2.5.5 and 2.5.6 of these regulations.
E. Releases
1. Tailwater Habitat Protection and Discharge Mitigation Program. In order to protect the ecology of the tailwaters below the City of New York's Delaware Basin reservoirs, including water quality and fishery habitat, as well as to help mitigate the impacts of flooding immediately below these reservoirs and support recreational uses, the City shall release water from the three reservoirs in accordance with the Tailwater Habitat Protection and Discharge Mitigation Program (THP-DMP), set forth in Section 2.5.3 G. of these Regulations.
2. Interim Excess Release Quantity (IERQ)
a. For the period commencing with the effective date of these regulations and ending May 31, 2011 unless extended in accordance with Section 2.5.3 J.2. below, the ''excess quantity'' (also referred to as the ''Excess Release Quantity'' or ERQ) defined by Paragraphs III.B.1.(c) and (d) of the Decree shall be used in support of an ''Interim Excess Release Quantity'' (IERQ), in accordance with this Section 2.5.3 E.2.
b. The quantity of water to be provided annually by the City of New York for the IERQ during the period set forth in the preceding paragraph unless extended in accordance with Section 2.5.3 J.2. below, shall be fixed at 15,468 cfs-days, except that during any leap year the quantity shall be 17,125 cfs-days. For 365 and 366-day years respectively, these sums are equal to 83 percent of the difference between the highest annual consumption reported for the New York City water supply system during water years 2002 through 2006 (or 458,805 mg) and the City's estimate in 2007 of the continuous safe yield of the City water supply system obtainable without pumping (or 1,290 mgd multiplied by either 365 days or in a leap year, 366 days).
c. The IERQ shall be released for purposes of:
i. elevating the Montague Flow Objective from 1,750 cfs to 1,850 cfs annually during basinwide normal operations for the period from June 15 through September 15; and
ii. maintaining the Trenton Flow Objective of 3,000 cfs during basinwide normal operations for the period from June 15 through March 15.
d. The IERQ may be released for the additional purposes of:
i. establishing an Interim Excess Release Quantity Extraordinary Needs Bank in accordance with Section 2.5.3 E.3., below; and
ii. supplementing the quantity of water provided by New York City in a given year for THP-DMP releases in accordance with Section 2.5.3 G., if the quantity of water provided by the City is less than 35 mgd.
e. The City of New York shall release the IERQ during basinwide normal operating conditions at rates designed to maintain a minimum flow at Montague of 1,850 cfs for the period commencing annually on June 15 and continuing through September 15 and a minimum flow at Trenton of 3,000 cfs during basinwide normal operating conditions for the period commencing on June 15 and continuing through March 15. The latter period shall be referred to as the ''seasonal period.'' In releasing the IERQ, the City shall not be required to release water at rates exceeding the capacity of its release works. The City shall in each seasonal period continue its interim excess releases until the aggregate quantity of the releases from the IERQ is equal to the total specified in Section 2.5.3 E.2.b. above.
3. Interim Excess Release Quantity Extraordinary Needs Bank. The Commission, with the unanimous consent of the Decree Parties, may at any time place all or a portion of the available IERQ in an Interim Excess Release Quantity Extraordinary Needs Bank to help support research, aquatic life or any other water use approved by the Commission. Any quantity of water so banked shall be released in accordance with the defined use in a manner approved by the Commission and the Decree Parties, and shall be deducted from the IERQ otherwise available for release.
F. DROUGHT MANAGEMENT
1. Drought Operating Conditions
a. In accordance with Figure 1 and as defined by three drought management curves depicted therein, three drought operating conditions--''drought watch,'' ''drought warning'' and ''drought emergency''--are established, based upon specified combined storage levels in the City of New York's three Delaware Basin reservoirs--Cannonsville, Pepacton and Neversink. Figure 1 defines five zones of combined reservoir usable storage relative to the normal and drought management storage levels. The storage level corresponding to normal operations is divided into two zones--L1 and L2--and the drought management curves delimit Zones L3 through L5.
b. The three drought operating conditions shall be used in conjunction with other provisions of these Regulations to determine:
* the maximum allowable diversions from the basin by the City of New York and the State of New Jersey;
* the minimum rates of flow to be maintained in the main stem Delaware River at the U.S.G.S. gaging stations at Montague and Trenton; and
* the releases to be made from each of the City's three Delaware Basin reservoirs in accordance with the THP-DMP set forth in Section 2.5.3 G., below.
2. Reduced Diversions and Flow Objectives During Drought Operations
a. Out-of-basin diversions by the City of New York and the State of New Jersey and flow objectives at the Montague and Trenton U.S.G.S. gaging stations shall be reduced incrementally during drought watch, drought warning and drought emergency operations (collectively, ''drought operations'') in accordance with Table 1 and Section 2.5.3 F.4 below, to conserve water.
b. The Montague flow objective shall vary during basinwide drought emergency operations with the time of year, and the Trenton flow objective shall vary during basinwide drought emergency and during lower basin drought warning and drought emergency (defined in Section 2.5.6. below) with both the time of year and the location of the ''salt front,'' defined as the upstream location in the Delaware Estuary at which the seven-day average chloride concentration equals 250 mg/l as provided in Table 1. Within the ranges set forth in Table 1, the Montague and Trenton flow objectives shall be adjusted in accordance with the specific values set forth in Table 2.
c. Nothing in these Regulations shall affect the Commission's authority pursuant to Section 3.3(a) of the Compact to take action to address an emergency condition.
3. Computation of Diversions During Drought Operations (Resolutions Nos. 83-13 and 2007-____)
a. Daily Running Average. Diversions by the City of New York and State of New Jersey set forth in Table 1 during drought watch, drought warning, and drought emergency operations shall in each case be computed as a daily running average, commencing on the day such operations become effective.
b. Unused Diversion. If during any drought operating period the allowable diversion is not fully used, the unused portion may not be credited or used during subsequent periods.
c. Resumption of Normal Operations. Upon the resumption of normal operations following any period of drought operations, diversions by the City of New York and the State of New Jersey shall in each case be computed as daily running averages commencing upon the date of return to normal operations.
d. Balancing Adjustment. In order to conserve water, the River Master is requested to utilize a balancing adjustment, based upon procedures agreed upon by the Decree Parties, when calculating the releases to be directed to meet the Montague flow objectives in Tables 1 and 2. Additionally, during drought watch, warning, and emergency, the amount of the conservation releases from the City's Delaware Basin reservoirs that is greater than the basic conservation release rates as set forth in Table 1 of Docket D-77-20 CP (Revised) shall be considered directed releases for the purpose of calculating the balancing adjustment.
4. Triggering Conditions and Duration of Reduced Diversions and Flow Objectives
a. The schedule of diversions and streamflow objectives for drought watch operations as set forth in Table 1 shall go into effect automatically whenever the combined storage in the New York City Delaware Basin Reservoirs declines below the drought watch line defined in Figure 1 and remains below that line for five consecutive days.
b. The schedule of diversions, and streamflow objectives for drought warning operations as set forth in Table 1 shall go into effect automatically whenever the combined storage in the New York City Delaware Basin Reservoirs declines below the drought warning line defined in Figure 1 and remains below that line for five consecutive days.
c. The schedule of diversions, and streamflow objectives for drought emergency operations as set forth in Table 1 shall go into effect automatically whenever the combined storage in the New York City Delaware Basin Reservoirs declines below the drought emergency line defined in Figure 1 and remains below that line for five consecutive days.
d. When the combined storage in the City's Delaware Basin reservoirs (including the projected water runoff equivalent of actual snow and ice within the watersheds tributary to the reservoirs) reaches a level 15 billion gallons above the drought watch line defined in Figure 1 and remains at or above that level for 5 consecutive days, normal diversions and flow objectives as set forth in Table 1 shall resume.
e. Pursuant to Section 3.3(a) of the Compact, the Parties to the U.S. Supreme Court Decree in New Jersey v. New York, 347 U.S. 995 (1954), have given their unanimous consent to adoption and implementation by the Commission of the drought operation schedules provided in this section. The Parties have agreed that drought operations will go into effect automatically, and be binding on parties for not less than 180 days following the triggering of drought watch operations, unless terminated automatically by improved storage conditions as provided in the preceding paragraph. During the 180-day period following triggering of drought watch operations, authorized representatives of the City of New York, States of Delaware, New Jersey, and New York, and Commonwealth of Pennsylvania, as parties to the U.S. Supreme Court Decree, shall convene no less frequently than once each month to review current conditions, and they may extend, modify, or extend as modified the schedules provided in this section. If no unanimous agreement as to a continuing drought operation formula is reached within the 180-day period, all Parties shall be released from the terms of the formula and schedules and may pursue their rights and obligations under the Delaware River Basin Compact and the U.S. Supreme Court Decree.
5. THP-DMP Releases During Drought. Provisions relating to THP-DMP releases under normal and drought conditions are set forth in Section 2.5.3 G., below.
6. Drought Emergency Actions. Provisions relating to Drought Emergency actions by the Commission in accordance with Section 3.3 of Article 10 of the Delaware River Basin Compact are set forth in Section 2.5.4 of these regulations.
7. Operation of Lower Basin and Hydroelectric Reservoirs During Basinwide Drought. Provisions relating to coordinated operation of lower basin and hydroelectric reservoirs during basinwide drought are set forth in Section 2.5.5 of these regulations.
8. Lower Basin Drought Operations. Provisions relating to coordinated operation of reservoirs during a lower basin drought are set forth in Section 2.5.6 of these regulations.
[Figure 1 can be viewed in color on the DRBC web site, drbc.net.]
Table 1
Interstate Operation Schedule For Diversions and Flow Objectives
NYC Storage Condition NYC Diversion (mgd) NJ Diversion (mgd) Montague Flow Objective (cfs) Trenton Flow Objective (cfs) Normal (June 15--Sept 15) 800 100 1,850* 3,000 Normal (Sept 16--June 14) 800 100 1,750 3,000 Drought Watch (L3) 680 100 1,660 2,700 Drought Warning (L4) 560 85 1,550 2,700 Drought Emergency (L5) 520 85 1,100--1,500** 2,500--2,900*** Severe Drought (to be negotiated depending upon conditions) * To the extent supported by the IERQ in accordance with Section 2.5.3 E.2. Otherwise, 1,750 c.f.s.
** Varies with time of year, in accordance with Table 2.
*** Varies with time of year and location of salt front, in accordance with Table 2, except that for lower basin drought warning and drought emergency conditions, Section 2.5.6 of these regulations shall control.
Table 2
Interstate Operation Schedule
For Adjusting Montague and Trenton Flow Objectives
During Drought Conditions
Flow Objective (cfs) Trenton Montague 7-Day Average Location of ''Salt Front''* (RiverMile**) Dec 1-
Apr 30May 1-
Aug 31
Sep 1-
Nov 30June 1-
June 30
July 1-
Nov 31
Dec 1-
Dec 31
June 1-
May 311,450 1,500 1,350 1,100 Upstream of R.M. 92.5 2,700 2,900 2,900 R.M. 87.0--R.M. 92.5 2,700 2,700 2,700 R.M. 82.9--R.M. 87.0 2,500 2,500 2,500 Downstream of R.M. 82.9 2,500 2,500 2,500 * Defined as the 250 mg/L isochlor in the Delaware Estuary. ** Measured in statute miles along the center of the navigation channel, from the mouth of the Delaware Bay.
G. Tailwaters Habitat Protection and Discharge Mitigation Program (THP-DMP)
1. Program Established. A Tailwaters Habitat Protection and Discharge Mitigation Program (THP-DMP) is hereby established, which consists of conservation releases designed to protect the ecology of the tailwaters below the New York City Delaware Basin reservoirs and discharge mitigation releases, designed to help mitigate the effects of flooding immediately below these reservoirs.
2. Availability of Water to Support THP-DMP Releases. Until the earlier of 2012 or such time as the additional 13 billion gallons (equivalent to approximately 35 mgd) of combined storage proposed to be constructed at the Cannonsville and Pepacton Reservoirs as contemplated by New York State and the City of New York has been built, an unused portion of New York City's allowable diversion of 800 mgd not to exceed 35 mgd shall be made available on an annual basis to support THP-DMP releases in accordance with the following:
a. The City annually shall inform the River Master of a quantity of its allowable diversion not to exceed 35 mgd that it anticipates the City will not use during the ensuing year, which quantity shall be made available to support THP-DMP releases.
b. In any year in which the quantity of water furnished by the City in accordance with the preceding paragraph is less than 35 mgd, the states of Delaware, New Jersey and Pennsylvania may by unanimous agreement make available to support THP-DMP releases a quantity of the IERQ not to exceed the difference between the City's contribution and 35 mgd. The three states shall report such quantity to the River Master.
c. After December 31, 2012, if the additional storage under consideration by New York State and the City of New York has not been constructed, then THP-DMP releases shall be made in accordance with the schedule set forth in Table 3D (0 mgd) below except that the Decree Parties may in the exercise of their discretion agree to make additional water available for the program in accordance with the procedures for revision of the FFMP set forth in paragraph H below. In that event, releases shall be made in accordance with the schedule set forth in Table 3A (35 mgd), 3B (20 mgd), or 3C (10 mgd).
d. Releases made when the combined storage of the City's Delaware Basin Reservoirs is in Zone L1 in Figure 1 shall not be considered part of the quantity of water the City has made available to support THP-DMP releases pursuant to Section 2.5.3 G.2.b. above.
3. Schedule of Releases. Depending upon the amount of water made available in accordance with the preceding section, 2.5.3 G.2., THP-DMP releases in a given year shall be made in accordance with Table 3A (35 mgd), 3B (20 mgd), 3C (10 mgd) or 3D (0 mgd). The quantity of controlled releases to be made from each of the City's Delaware Basin reservoirs shall be further determined on the basis of the following:
a. Combined storage levels in accordance with Figure 1. In Figure 1, the percentage of combined usable storage associated with basinwide normal operations is subdivided into two ranges (or ''zones'')--L1 and L2. The percentage of combined usable storage associated with drought operations is subdivided into three zones--L3, L4, and L5--in order of diminishing storage, corresponding to drought watch, drought warning and drought emergency operating conditions, respectively.
b. For the highest combined storage range only, individual reservoir storage levels in accordance with Figure 2. In Figure 2, for purposes of determining the quantity released from individual reservoirs, Zone L1 (representing maximum combined reservoir storage) is sub-divided into three storage zones--L1-a, L1-b, and L1-c--expressed as percentages of usable storage. When combined storage in the City's three Delaware Basin reservoirs is in Zone L1, the time of year and the percentage of usable storage available in each individual reservoir will determine whether the L1-a, L1-b or L1-c release quantity specified in Table 3 is made from that reservoir.
c. Dates. Releases from each of the reservoirs are established for eight date ranges, grouped by season as set forth in Table 3. These are: June 1-15, June 16-30, July 1-August 31 (Summer); September 1-30 and October 1--November 30 (Fall); December 1--March 31 and April 1-30 (Winter); and May 1-31 (Spring).
d. THP-DMP releases during recovery from drought. During recovery from drought, THP-DMP releases corresponding to the lowest storage level attained will continue until combined storage in the three New York City Delaware Basin reservoirs reaches 25 billion gallons above the drought watch level and remains at or above that level for 15 consecutive days.
[Figure 2 can be viewed in color on the DRBC web site, drbc.net.]
Table 3A
Schedule of Releases (cfs)
With 35 mgd Available
Winter Spring Summer Fall Cannonsville Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 1500 1500 * * 1500 1500 1500 1500 L1-b 250 * * * * 350 275 250 L1-c 110 110 225 275 275 275 140 110 L2 80 80 215 260 260 260 115 80 L3 70 70 100 175 175 175 95 70 L4 55 55 75 130 130 130 55 60 L5 50 50 50 120 120 120 50 50
Winter Spring Summer Fall Pepacton Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 700 700 * * 700 700 700 700 L1-b 185 * * * * 250 200 185 L1-c 85 85 120 150 150 150 100 85 L2 65 65 110 140 140 140 85 60 L3 55 55 80 100 100 100 55 55 L4 45 45 50 85 85 85 40 40 L5 40 40 40 80 80 80 30 30
Winter Spring Summer Fall Neversink Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 190 190 * * 190 190 190 190 L1-b 100 * * * * 125 85 95 L1-c 65 65 90 110 110 110 75 60 L2 45 45 85 100 100 100 70 45 L3 40 40 50 75 75 75 40 40 L4 35 35 40 60 60 60 30 30 L5 30 30 30 55 55 55 25 25 * Storage zone does not apply during this period. Releases shall be made in accordance with zone L1-c.
Table 3B
Schedule of Releases (cfs)
With 20 mgd Available
Winter Spring Summer Fall Cannonsville Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 1500 1500 * * 1500 1500 1500 1500 L1-b 250 * * * * 350 275 250 L1-c 110 110 225 275 275 275 140 110 L2 72 72 194 234 234 234 104 72 L3 63 63 90 158 158 158 86 63 L4 50 50 68 117 117 117 50 54 L5 45 45 45 108 108 108 45 45
Winter Spring Summer Fall Pepacton Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 700 700 * * 700 700 700 700 L1-b 185 * * * * 250 200 185 L1-c 85 85 120 150 150 150 100 85 L2 59 59 99 126 126 126 77 54 L3 50 50 72 90 90 90 50 50 L4 41 41 45 77 77 77 36 36 L5 36 36 36 72 72 72 27 27
Winter Spring Summer Fall Neversink Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 190 190 * * 190 190 190 190 L1-b 100 * * * * 125 85 95 L1-c 65 65 90 110 110 110 75 60 L2 41 41 77 90 90 90 63 41 L3 36 36 45 68 68 68 36 36 L4 32 32 36 54 54 54 27 27 L5 27 27 27 50 50 50 23 23 * Storage zone does not apply during this period. Releases shall be made in accordance with zone L1-c.
Table 3C
Schedule of Releases (cfs)
With 10 mgd Available
Winter Spring Summer Fall Cannonsville Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 1500 1500 * * 1500 1500 1500 1500 L1-b 250 * * * * 350 275 250 L1-c 110 110 225 275 275 275 140 110 L2 65 65 175 212 212 212 94 65 L3 57 57 82 143 143 143 77 57 L4 45 45 61 106 106 106 45 49 L5 41 41 41 98 98 98 41 41
Winter Spring Summer Fall Pepacton Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 700 700 * * 700 700 700 700 L1-b 185 * * * * 250 200 185 L1-c 85 85 120 150 150 150 100 85 L2 53 53 90 114 114 114 69 49 L3 45 45 65 82 82 82 45 45 L4 37 37 41 69 69 69 33 33 L5 33 33 33 65 65 65 24 24
Winter Spring Summer Fall Neversink Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 190 190 * * 190 190 190 190 L1-b 100 * * * * 125 85 95 L1-c 65 65 90 110 110 110 75 60 L2 37 37 69 82 82 82 57 37 L3 33 33 41 61 61 61 33 33 L4 29 29 33 49 49 49 24 24 L5 24 24 24 45 45 45 20 20 * Storage zone does not apply during this period. Releases shall be made in accordance with zone L1-c.
Table 3D
Schedule of Releases (cfs)
With 0 mgd Available
Winter Spring Summer Fall Cannonsville Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 1500 1500 * * 1500 1500 1500 1500 L1-b 250 * * * * 350 275 250 L1-c 110 110 225 275 275 275 140 110 L2 58 58 157 190 190 190 84 58 L3 51 51 73 128 128 128 69 51 L4 40 40 55 95 95 95 40 44 L5 37 37 37 88 88 88 37 37
Winter Spring Summer Fall Pepacton Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 700 700 * * 700 700 700 700 L1-b 185 * * * * 250 200 185 L1-c 85 85 120 150 150 150 100 85 L2 47 47 80 102 102 102 62 44 L3 40 40 58 73 73 73 40 40 L4 33 33 37 62 62 62 29 29 L5 29 29 29 58 58 58 22 22
Winter Spring Summer Fall Neversink Storage Zone Dec 1 - Mar 31 Apr 1 -
Apr 30May 1 - May 31 Jun 1 - Jun 15 Jun 16 -
Jun 30Jul 1 -
Aug 31Sep 1 -
Sep 30Oct 1 -
Nov 30L1-a 190 190 * * 190 190 190 190 L1-b 100 * * * * 125 85 95 L1-c 65 65 90 110 110 110 75 60 L2 33 33 62 73 73 73 51 33 L3 29 29 37 55 55 55 29 29 L4 26 26 29 44 44 44 22 22 L5 22 22 22 40 40 40 18 18 * Storage zone does not apply during this period. Releases shall be made in accordance with zone L1-c.
[Continued on next Web Page] _______
1 The terms ''basinwide operations'' and ''basinwide operating conditions'' refer to reservoir operations determined by combined storage levels in the three New York City Delaware Basin reservoirs, as set forth in Figure 1.
2 The terms ''lower basin operations'' and ''lower basin operating conditions'' refer to operations as set forth in Section 2.5.6. of these regulations.
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
