Upper Delaware Fisheries Protection
The Upper Delaware River Basin is home to a renowned wild trout fishery. However, the well-being of the fishery depends on coldwater releases from three reservoirs built and operated by the City of New York for public water supply.
Allocation of the waters in the upper basin is governed by a decree of the U.S. Supreme Court, issued in 1954 to settle an interstate water dispute between New York and the lower basin states which centered on the New York City Delaware Basin reservoirs. The parties to the Supreme Court decree ("decree parties") are the four basin states (Delaware, New Jersey, New York, and Pennsylvania) and the City of New York. The 1954 decree allows New York City to export up to 800 million gallons per day from its three Delaware Basin reservoirs for water supply purposes, provided that compensating releases from those reservoirs are made (when necessary) to maintain a prescribed minimum flow at Montague, New Jersey for the use of the lower basin states. The 1954 decree made no provision for spill mitigation, conservation or ecological releases.
In the years since 1954, however, various programs of reservoir releases for fisheries protection have been agreed to by the decree parties. The 1961 law (known as the Delaware River Basin Compact) creating the Delaware River Basin Commission (DRBC) gives the commission the power to allocate the waters of the basin, but prohibits it from adversely affecting the reservoir releases or diversions provided in the 1954 decree without the unanimous consent of the five decree parties. The members of the DRBC are Delaware, New Jersey, Pennsylvania, New York State, and the federal government. New York City, a decree party, is not a DRBC member.
The web site of the Delaware River Master, which administers provisions of the decree, provides a history of the reservoir releases program in the Upper Basin.
Three-Year Interim Fisheries Protection Program (2004)
In 2002, New York State presented a proposal to the decree parties to revise the existing reservoir releases program. This proposal continued a process of fishery-related negotiations among the decree parties that has taken place since 1977. After negotiation among the decree parties and with their unanimous consent, a program was approved by the DRBC on April 21, 2004 (Resolution 2004-3). Prior to this commission action, the DRBC conducted an informational meeting and a public hearing on the proposed fisheries protection program on March 2, 2004 in Hawley, Pennsylvania. A number of additional changes to the proposed program were made in response to public comments.
The approved program to provide additional water for fishery protection established minimum flow targets at three tailwater locations during a three-year interim period that originally extended from May 2004 to May 2007. During normal conditions, the flow targets were those recommended by New York State Department of Environmental Conservation (NYSDEC) fisheries biologists based on a trout habitat study completed in 1983. During various drought stages, flow targets were proportionally reduced. In addition to flow targets, an expanded water bank was available to make additional releases to avoid high instream water temperatures that are harmful to trout. The interim program also included a monitoring plan to assess the program's effects on the fisheries and other aquatic resources. Based on results of the three-year program and on further deliberations on the sustainability of the water available to support fishery releases, the decree parties intended to develop and implement a flexible program of reservoir releases to better address the needs of the upper basin fisheries and other needs in the main stem Delaware River and the Delaware Bay.
On May 10, 2007, the DRBC approved Resolution 2007-7 extending the program through September 30, 2007.
Flexible Flow Managment Program (2007)
On the morning of September 26, 2007, the five Parties to the U.S. Supreme Court Decree of 1954 (Delaware, New Jersey, Pennsylvania, New York State, and New York City) reached unanimous consensus on a revised Flexible Flow Management Program (FFMP) for operation of the three New York City Delaware Basin reservoirs. The agreement can be viewed on the web site of the Office of the Delaware River Master, which adminsters the provisions of the decree.
In order to be implemented by the DRBC, relevant portions of this revised FFMP proposal developed by the Decree Parties must be incorporated into (a) amendments to the DRBC's Water Code; (b) one or more DRBC dockets (similar to permits) or docket revisions; or (c) a combination of Water Code amendments and dockets. The DRBC's Comprehensive Plan may also require revision.
At the DRBC's September 26 public meeting and hearing, the commissioners adopted Resolution 2007-14 directing staff to begin the public rulemaking process to incorporate the FFMP into the commission's rules and regulations. This process will include the preparation and publication of proposed rules, holding informational meetings and public hearings, reviewing the public comments received, making possible modifications to the proposed rules, and adopting final regulations. Click here to view the Notice of Proposed Rulemaking and Public Hearing.
The FFMP is intended to provide a more adaptive means for managing the Cannonsville, Pepacton, and Neversink reservoirs for multiple, competing uses, including water supply and drought mitigation, management of the reservoir tailwater fisheries along with other habitat needs, and spill mitigation. The FFMP agreement reached by the decree parties will be implemented on a temporary basis by New York State and New York City, in coordination with the Delaware River Master appointed under the decree, beginning on October 1, 2007, while DRBC conducts the public comment and rulemaking process.
A central feature of the interim fishery management program which expired on September 30, 2007 was the creation of reservoir storage "banks" to be used for narrowly defined purposes under specific hydrologic and temperature conditions at certain times of the year. The FFMP would largely eliminate the use of banks and instead base releases on reservoir storage levels, resulting in larger releases when water is abundant and smaller releases when storage is at or below normal. This approach would more closely approximate natural flows and provide more gradual transitions from higher to lower releases, which has been a concern voiced in the past by Upper Delaware anglers.
In response to the three main stem Delaware River floods in September 2004, April 2005, and June 2006, the FFMP agreement also includes a spill mitigation component intended to reduce the likelihood that the three reservoirs could be full and spilling coincident with a major storm or thaw. It does not include specified void targets.
An earlier FFMP proposal was published in February 2007. That draft resulted in over 400 comments received from approximately 120 agencies, organizations, elected officials, and private citizens. The decree parties decided to withdraw that version from receiving further DRBC consideration and resumed negotiations, taking under advisement the comments received. That concluded with the current version that was unanimously agreed to on the morning of September 26 just prior to the afternoon commission meeting.
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