The Delaware River The Delaware River Basin CompactBasin Compact

Theory and Practice in Interstate Theory and Practice in Interstate Water Resources ManagementWater Resources Management

Pamela M. Bush, EsquireSecretary and Asst. General Counsel

Delaware River Basin Commission

October 6, 2008

The Delaware River Basin CompactThe Delaware River Basin Compact

Signatories: New York, New Jersey, Signatories: New York, New Jersey, Pennsylvania, Delaware, United StatesPennsylvania, Delaware, United States

Enacted by the States and United States in Enacted by the States and United States in 19611961

Purpose:Purpose: Manage Water Resources of the Manage Water Resources of the Delaware River Basin Delaware River Basin

““Effective and economical direction, supervision and Effective and economical direction, supervision and coordination of efforts and programs of federal, state coordination of efforts and programs of federal, state and local governments and of private enterprise” and local governments and of private enterprise”

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The RiverThe River

Longest undammed River in the EastLongest undammed River in the East

Approximately 320 miles long from confluence Approximately 320 miles long from confluence of East and West Branches in Hancock, NY to of East and West Branches in Hancock, NY to the mouth of the Delaware Baythe mouth of the Delaware Bay

Over fifteen million people rely on the River for Over fifteen million people rely on the River for drinking water, recreation and business drinking water, recreation and business including New York City, Philadelphia and including New York City, Philadelphia and WilmingtonWilmington

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View of the Delaware River and Delaware Water Gap

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The Delaware River and Water Gap from Kittatinny Point NJ 

(NPS Photo)

                                          

Scenic NY Route 97 through Hawks Nest welcomes most visitors to the Upper Delaware River.  

Photo © David Soete

The LitigationThe Litigation Initial litigation among the states in the Initial litigation among the states in the

1930’s over equitable share of the River’s 1930’s over equitable share of the River’s flow led to 1931 Supreme Court Decree (283 flow led to 1931 Supreme Court Decree (283 U.S. 805)U.S. 805)

Second round of litigation in 1950’s due to Second round of litigation in 1950’s due to New York City’s plans to build reservoirs on New York City’s plans to build reservoirs on the East and West Branches led to the the East and West Branches led to the Amended Decree – Amended Decree – New Jersey v. New York, New Jersey v. New York, 347 U.S. 995 (1954)347 U.S. 995 (1954)

Amended Decree sets limits on New York Amended Decree sets limits on New York City and NJ diversions and establishes a City and NJ diversions and establishes a minimum flow target at Montague, NJminimum flow target at Montague, NJ

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1954 Decree (“Amended Decree”)1954 Decree (“Amended Decree”) NYC’s max. diversion – 800 m.g.d. as an NYC’s max. diversion – 800 m.g.d. as an

annual average, after completion of annual average, after completion of Cannonsville Reservoir Cannonsville Reservoir

Compensating releases by NYC – Sufficient Compensating releases by NYC – Sufficient to maintain flow of 1750 c.f.s. at Montague to maintain flow of 1750 c.f.s. at Montague (1131 m.g.d.)(1131 m.g.d.)

Excess Quantity to be released by NYC Excess Quantity to be released by NYC annually (ERQ) = 83% of the amt. by which annually (ERQ) = 83% of the amt. by which the City’s estimated consumption is less than the City’s estimated consumption is less than the City’s estimate of the continuous safe the City’s estimate of the continuous safe yield all its sources yield all its sources

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1954 Decree (“Amended Decree”)1954 Decree (“Amended Decree”) Diversions and releases by NYC to be made Diversions and releases by NYC to be made

under supervision and direction of River Master under supervision and direction of River Master (Chief hydraulic engineer of USGS or apptee.)(Chief hydraulic engineer of USGS or apptee.)

NJ’s max. diversion – 100 m.g.d. as a monthly NJ’s max. diversion – 100 m.g.d. as a monthly avg. (no more than 120 m.g. in any single day)avg. (no more than 120 m.g. in any single day)

No diversion authorized by decree shall constitute No diversion authorized by decree shall constitute a prior appropriation or confer any superiority of a prior appropriation or confer any superiority of right. Decree shall not be deemed to be an right. Decree shall not be deemed to be an apportionment of waters.apportionment of waters.

Court retains jurisdiction – any party (complainant, Court retains jurisdiction – any party (complainant, defendants or intervenors) may apply for other or defendants or intervenors) may apply for other or further action or relief. S.Ct. retains jurisdiction.further action or relief. S.Ct. retains jurisdiction.

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The Delaware River Basin CompactThe Delaware River Basin Compact

Concurring legislation of four states – NY, Concurring legislation of four states – NY, NJ, PA and DE – and the federal govt.NJ, PA and DE – and the federal govt.

Five members are the governors of the four Five members are the governors of the four states and the North Atlantic Division states and the North Atlantic Division Commander of the U.S. Army Corps of Commander of the U.S. Army Corps of EngineersEngineers

Each member appoints alternates to attend Each member appoints alternates to attend Commn. meetings.Commn. meetings.

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The Compact AddressedThe Compact AddressedSeveral ProblemsSeveral Problems

Adversarial posturing and proceedings to Adversarial posturing and proceedings to modify Supreme Court Decree inefficient modify Supreme Court Decree inefficient and results uncertainand results uncertain

Need for mechanism to adjust River flows Need for mechanism to adjust River flows due to drought or changing demographic or due to drought or changing demographic or economic factorseconomic factors

Water resource planning often requires Water resource planning often requires many years for development and many years for development and construction of projectsconstruction of projects

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Basin subject to uncoordinated Basin subject to uncoordinated administration of 43 State agencies, 14 administration of 43 State agencies, 14 Interstate agencies, 19 Federal agenciesInterstate agencies, 19 Federal agencies

Regional development of a common Regional development of a common resource requires a regional agencyresource requires a regional agency

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Cooperative FederalismCooperative Federalism

Federal government is full voting member Federal government is full voting member

Federal government will not take any action in Federal government will not take any action in conflict with the Commission’s comprehensive conflict with the Commission’s comprehensive plan if federal Commissioner votes in favor of planplan if federal Commissioner votes in favor of plan

President can suspend the comprehensive plan if President can suspend the comprehensive plan if national interest so requiresnational interest so requires

Federal government may withdraw from CompactFederal government may withdraw from Compact

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Reasons to Include the Federal Reasons to Include the Federal GovernmentGovernment

Federal agencies do not always speak with a single Federal agencies do not always speak with a single voice – the Compact places onus on federal voice – the Compact places onus on federal representative to coordinate within federal governmentrepresentative to coordinate within federal government

Need to coordinate all government agencies with Need to coordinate all government agencies with regulatory or project authorityregulatory or project authority

Strong federal interest in proper management of Strong federal interest in proper management of navigable River and intelligent development of the navigable River and intelligent development of the BasinBasin

Funding?Funding?

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General Areas of Commission General Areas of Commission AuthorityAuthority

Water Supply (Flow Management)Water Supply (Flow Management) Pollution ControlPollution Control Flood ProtectionFlood Protection Watershed Management (soil conservation, fish Watershed Management (soil conservation, fish

and wildlife habitats)and wildlife habitats) RecreationRecreation Hydroelectric PowerHydroelectric Power Withdrawals and Diversions Withdrawals and Diversions

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Comprehensive PlanningComprehensive Planning

Commission’s Comprehensive PlanCommission’s Comprehensive Plan Basin-wide plan with allocated Basin-wide plan with allocated

responsibilitiesresponsibilities Integration of water quality and water Integration of water quality and water

quantityquantity View of surface water and groundwater as View of surface water and groundwater as

integrated system integrated system SE Pennsylvania groundwater protected areaSE Pennsylvania groundwater protected area

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Regulation of Water QualityRegulation of Water Quality

Regulation of dissolved oxygen levels – 1960s Regulation of dissolved oxygen levels – 1960s program similar to present day TMDLs that allowed program similar to present day TMDLs that allowed return of shad to the Riverreturn of shad to the River

Commission regulation allows for consistent Commission regulation allows for consistent standards and complementary actions in all states standards and complementary actions in all states bordering the Riverbordering the River

Commission is utilizing a technical advisory Commission is utilizing a technical advisory committee for PCB TMDL to take stakeholder committee for PCB TMDL to take stakeholder concerns into account at an early stageconcerns into account at an early stage

Commission is establishing an implementation Commission is establishing an implementation advisory committeeadvisory committee

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CoordinationCoordination

DRBC Standing Advisory CommitteesDRBC Standing Advisory Committees Regulated Flow (SEF subcommittee)Regulated Flow (SEF subcommittee) Water QualityWater Quality Flood Flood ToxicsToxics MonitoringMonitoring

Federal Forum (every 2 years)Federal Forum (every 2 years) Ad Hoc CommitteesAd Hoc Committees ACOE Local SponsorshipsACOE Local Sponsorships

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Flow Mgmt Under Compact & DecreeFlow Mgmt Under Compact & Decree

Compact allows DRBC to change flow Compact allows DRBC to change flow regimes established by S. Ct. only with regimes established by S. Ct. only with unanimous consent of Decree Parties – unanimous consent of Decree Parties – § 3.3§ 3.3

Except that in drought emergency, DRBC can Except that in drought emergency, DRBC can modify Decree by unanimous consent of modify Decree by unanimous consent of signatories to Compact – signatories to Compact – § 3.3§ 3.3

Each of signatory parties and their respective Each of signatory parties and their respective political subdivisions “waives and relinquishes political subdivisions “waives and relinquishes for the duration of this Comact” its right to for the duration of this Comact” its right to appeal to S. Ct. for modification of Decree – appeal to S. Ct. for modification of Decree – § 3.4§ 3.4

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Good Faith Agreement of 1983Good Faith Agreement of 1983 Prompted in part by new drought of record of Prompted in part by new drought of record of

1962-66, which rendered Decree terms 1962-66, which rendered Decree terms obsolete. obsolete.

Terms of “Good Faith Agreement” embodied in Terms of “Good Faith Agreement” embodied in DRBC’s regulations reduce max. diversions, DRBC’s regulations reduce max. diversions, releases and flow objectives in stages (“watch”, releases and flow objectives in stages (“watch”, “warning” and “drought”) to reduce risk of “warning” and “drought”) to reduce risk of severe shortages’severe shortages’

Lower Basin drought operations, Trenton targetLower Basin drought operations, Trenton target Depletive water use budgetDepletive water use budget

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Experimental Augmented Experimental Augmented Conservation Releases ProgramsConservation Releases Programs

Series of Dockets D-77-20 CP and Series of Dockets D-77-20 CP and Revisions 1-9 Revisions 1-9

Rev. 1 is the only non-temporary docketRev. 1 is the only non-temporary docket To provide additional flows in reservoir To provide additional flows in reservoir

tailwaters when releases are not needed tailwaters when releases are not needed to meet Montague targetto meet Montague target

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FFMPFFMP

Objectives – Objectives – permanent framework for flexible programpermanent framework for flexible program one reference point for flow management one reference point for flow management

– DRBC Water Code– DRBC Water Code multiple interests addressed – fisheries, multiple interests addressed – fisheries,

flood protection, drought mgmt, ecological flood protection, drought mgmt, ecological health of estuary and bay, salinity control health of estuary and bay, salinity control for estuary water supply intakes, for estuary water supply intakes, endangered speciesendangered species

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Strength of Federal-Interstate Strength of Federal-Interstate CompactCompact

Regional problems managed regionallyRegional problems managed regionally Opportunity to coordinate state agenciesOpportunity to coordinate state agencies Opportunity to coordinate federal Opportunity to coordinate federal

government agenciesgovernment agencies Forum and mechanism for resolving water Forum and mechanism for resolving water

allocation and related disputesallocation and related disputes Ability to develop and enforce a Ability to develop and enforce a

comprehensive regional plancomprehensive regional plan

Ability to consider all facets of water Ability to consider all facets of water management in an integrated mannermanagement in an integrated manner Surface and groundwaterSurface and groundwater Water quantity and qualityWater quantity and quality Land-water and air-water relationshipsLand-water and air-water relationships

Utilize physical boundaries such as Utilize physical boundaries such as watersheds rather than political boundarieswatersheds rather than political boundaries

Ability to examine cumulative impacts within a Ability to examine cumulative impacts within a watershedwatershed

ChallengesChallenges Competing demands for limited storageCompeting demands for limited storage Reluctance of states and federal government to Reluctance of states and federal government to

yield authorityyield authority Relationship of Commission’s programs with Relationship of Commission’s programs with

federal and state programsfederal and state programs Land management as local prerogativeLand management as local prerogative Nonpoint source pollutionNonpoint source pollution Funding, resources, attentionFunding, resources, attention