[Federal Register: December 3, 2007 (Volume 72, Number 231)]
[Proposed Rules]
[Page 67875-67878]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03de07-19]
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DELAWARE RIVER BASIN COMMISSION
18 CFR Part 410
Proposed Rulemaking To Implement a Flexible Flow Management
Program for the New York City Delaware Basin Reservoirs
AGENCY: Delaware River Basin Commission.
ACTION: Notice of public hearing and informational meetings.
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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. 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. 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 Web site in
February 2007, will be included in the administrative record for this
action and need not be re-submitted. Four informational meetings on the
proposed amendments will be held. The first two meetings will take
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. 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.
Each meeting will consist of an informational presentation followed by
questions and answers.
ADDRESSES: The January 16, 2008 public hearing will take place at the
West Trenton Volunteer Fire Company, 40 West Upper Ferry Road, West
Trenton, NJ. The December 18, 2007 informational meetings will take
place at the Best Western Inn at Hunt's Landing, 120 Routes 6 and 209,
Matamoras, PA. The January 8, 2008 informational meetings will take
place 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 Web site.
Written comments may be submitted by e-mail 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
[[Page 67876]]
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, Sec. 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).
[[Page 67877]]
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 2.5.3 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
[[Page 67878]]
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 http://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 will be published on the DRBC Web site, http://www.drbc.net,
on or before December 3, 2007.
Dated: November 27, 2007.
Pamela M. Bush,
Commission Secretary.
[FR Doc. E7-23383 Filed 11-30-07; 8:45 am]
BILLING CODE 6360-01-P