The Delaware River Basin Compact Theory and Practice in Interstate Water Resources Management Pamela M. Bush, Esquire Secretary and Asst. General Counsel Delaware River Basin Commission October 6, 2008

The Delaware River Basin Compact  Signatories: New York, New Jersey, Pennsylvania, Delaware, United States  Enacted by the States and United States in 1961  Purpose: Manage Water Resources of the Delaware River Basin “Effective and economical direction, supervision and coordination of efforts and programs of federal, state and local governments and of private enterprise” “Effective and economical direction, supervision and coordination of efforts and programs of federal, state and local governments and of private enterprise” 0:00

The River  Longest undammed River in the East  Approximately 320 miles long from confluence of East and West Branches in Hancock, NY to the mouth of the Delaware Bay  Over fifteen million people rely on the River for drinking water, recreation and business including New York City, Philadelphia and Wilmington 1:40

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View of the Delaware River and Delaware Water Gap 2:15

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 Litigation  Initial litigation among the states in the 1930’s over equitable share of the River’s flow led to 1931 Supreme Court Decree (283 U.S. 805)  Second round of litigation in 1950’s due to New York City’s plans to build reservoirs on the East and West Branches led to the Amended Decree – New Jersey v. New York, 347 U.S. 995 (1954)  Amended Decree sets limits on New York City and NJ diversions and establishes a minimum flow target at Montague, NJ 2:20

1954 Decree (“Amended Decree”)  NYC’s max. diversion – 800 m.g.d. as an annual average, after completion of Cannonsville Reservoir  Compensating releases by NYC – Sufficient to maintain flow of 1750 c.f.s. at Montague (1131 m.g.d.)  Excess Quantity to be released by NYC annually (ERQ) = 83% of the amt. by which the City’s estimated consumption is less than the City’s estimate of the continuous safe yield all its sources 3:20

1954 Decree (“Amended Decree”)  Diversions and releases by NYC to be made under supervision and direction of River Master (Chief hydraulic engineer of USGS or apptee.)  NJ’s max. diversion – 100 m.g.d. as a monthly avg. (no more than 120 m.g. in any single day)  No diversion authorized by decree shall constitute a prior appropriation or confer any superiority of right. Decree shall not be deemed to be an apportionment of waters.  Court retains jurisdiction – any party (complainant, defendants or intervenors) may apply for other or further action or relief. S.Ct. retains jurisdiction. 5:40

The Delaware River Basin Compact  Concurring legislation of four states – NY, NJ, PA and DE – and the federal govt.  Five members are the governors of the four states and the North Atlantic Division Commander of the U.S. Army Corps of Engineers  Each member appoints alternates to attend Commn. meetings. 7:20

The Compact Addressed Several Problems  Adversarial posturing and proceedings to modify Supreme Court Decree inefficient and results uncertain  Need for mechanism to adjust River flows due to drought or changing demographic or economic factors  Water resource planning often requires many years for development and construction of projects 10:50

 Basin subject to uncoordinated administration of 43 State agencies, 14 Interstate agencies, 19 Federal agencies  Regional development of a common resource requires a regional agency 12:40

Cooperative Federalism  Federal government is full voting member  Federal government will not take any action in conflict with the Commission’s comprehensive plan if federal Commissioner votes in favor of plan  President can suspend the comprehensive plan if national interest so requires  Federal government may withdraw from Compact 13:20

Reasons to Include the Federal Government  Federal agencies do not always speak with a single voice – the Compact places onus on federal representative to coordinate within federal government  Need to coordinate all government agencies with regulatory or project authority  Strong federal interest in proper management of navigable River and intelligent development of the Basin  Funding? 16:30

General Areas of Commission Authority  Water Supply (Flow Management)  Pollution Control  Flood Protection  Watershed Management (soil conservation, fish and wildlife habitats)  Recreation  Hydroelectric Power  Withdrawals and Diversions 18:10

Comprehensive Planning  Commission’s Comprehensive Plan  Basin-wide plan with allocated responsibilities  Integration of water quality and water quantity  View of surface water and groundwater as integrated system SE Pennsylvania groundwater protected area SE Pennsylvania groundwater protected area 19:15

Regulation of Water Quality  Regulation of dissolved oxygen levels – 1960s program similar to present day TMDLs that allowed return of shad to the River  Commission regulation allows for consistent standards and complementary actions in all states bordering the River  Commission is utilizing a technical advisory committee for PCB TMDL to take stakeholder concerns into account at an early stage  Commission is establishing an implementation advisory committee 20:00

Coordination  DRBC Standing Advisory Committees Regulated Flow (SEF subcommittee) Regulated Flow (SEF subcommittee) Water Quality Water Quality Flood Flood Toxics Toxics Monitoring Monitoring  Federal Forum (every 2 years)  Ad Hoc Committees  ACOE Local Sponsorships 21:50

Flow Mgmt Under Compact & Decree  Compact allows DRBC to change flow regimes established by S. Ct. only with unanimous consent of Decree Parties – § 3.3  Except that in drought emergency, DRBC can modify Decree by unanimous consent of signatories to Compact – § 3.3  Each of signatory parties and their respective political subdivisions “waives and relinquishes for the duration of this Comact” its right to appeal to S. Ct. for modification of Decree – § :45

Good Faith Agreement of 1983  Prompted in part by new drought of record of , which rendered Decree terms obsolete.  Terms of “Good Faith Agreement” embodied in DRBC’s regulations reduce max. diversions, releases and flow objectives in stages (“watch”, “warning” and “drought”) to reduce risk of severe shortages’  Lower Basin drought operations, Trenton target  Depletive water use budget 31:45

Experimental Augmented Conservation Releases Programs  Series of Dockets D CP and Revisions 1-9  Rev. 1 is the only non-temporary docket  To provide additional flows in reservoir tailwaters when releases are not needed to meet Montague target 45:20

FFMP Objectives –  permanent framework for flexible program  one reference point for flow management – DRBC Water Code  multiple interests addressed – fisheries, flood protection, drought mgmt, ecological health of estuary and bay, salinity control for estuary water supply intakes, endangered species 52:10

Strength of Federal-Interstate Compact  Regional problems managed regionally  Opportunity to coordinate state agencies  Opportunity to coordinate federal government agencies  Forum and mechanism for resolving water allocation and related disputes  Ability to develop and enforce a comprehensive regional plan

 Ability to consider all facets of water management in an integrated manner Surface and groundwater Surface and groundwater Water quantity and quality Water quantity and quality Land-water and air-water relationships Land-water and air-water relationships  Utilize physical boundaries such as watersheds rather than political boundaries  Ability to examine cumulative impacts within a watershed

Challenges  Competing demands for limited storage  Reluctance of states and federal government to yield authority  Relationship of Commission’s programs with federal and state programs  Land management as local prerogative  Nonpoint source pollution  Funding, resources, attention