[Federal Register Volume 72, Number 28 (Monday, February 12, 2007)]
[Proposed Rules]
[Pages 6509-6510]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2169]



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DELAWARE RIVER BASIN COMMISSION

18 CFR Part 410


Amendments to the Comprehensive Plan and Water Code Relating to a 
Flexible Flow Management Plan for Operation of the New York City 
Delaware Basin Reservoirs

AGENCY: Delaware River Basin Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commission will hold a public hearing and accept written 
comment on a proposal to amend the agency's Comprehensive Plan and 
Water Code to establish a Flexible Flow Management Program (FFMP) for 
the New York City Delaware Basin Reservoirs (``City Delaware 
Reservoirs'') for multiple objectives, including, among others, water 
supply and drought mitigation; management of the reservoir tailwater 
fisheries and other habitat needs, and spill mitigation. The current 
reservoir releases program, which was established by Resolution No. 
2004-3 in April of 2004, will expire on May 31, 2007. The current spill 
mitigation program, established by Resolution No. 2006-18, also will 
expire on May 31, 2007. The Commission will also accept comment on 
alternative reservoir management strategies that may be adopted in the 
event that consensus on the proposed FFMP is not reached. The 
alternative reservoir releases options to be considered are: extending 
the current reservoir releases program or reinstating a previous 
reservoir releases program plan. Either option would be considered in 
combination with a seasonal spill mitigation program or an annual spill 
mitigation program for the three reservoirs. The releases program 
adopted in the event consensus is not reached on the FFMP would 
continue in effect until any expiration date contained in the program 
adopted or unless and until replaced by another program that has been 
approved by the Commission following a notice and comment rulemaking 
process. In accordance with Section 3.3 of the Delaware River Basin 
Compact, any program affecting the diversions, compensating releases, 
rights, conditions, and obligations of the 1954 Supreme Court Decree in 
the matter of New Jersey v. New York, 347 U.S. 995, 74 S. Ct. 842 also 
requires the unanimous consent of the decree parties, which include the 
states of Delaware, New Jersey and New York, the Commonwealth of 
Pennsylvania, and the City of New York.

DATES: Two public hearings on the proposal will be conducted at 2:30 
p.m. and 6:30 p.m. respectively on Tuesday, March 27, 2007 at the Lake 
Wallenpaupack Environmental Learning Center in Hawley, PA. Written 
comments will be accepted through April 6, 2007. To allow sufficient 
time for consideration of written comments, comments must be received, 
not merely postmarked, by that date. In addition, three informational 
meetings will be held on the proposal. The first will take place during 
the morning conference session of the Commission's regularly scheduled 
meeting on Wednesday, February 28, 2007 at the DRBC office building in 
West Trenton, NJ. The second will take place during a meeting of the 
Commission's Regulated Flow Advisory Committee (RFAC), which will take 
place at 10 a.m. on Tuesday, March 6, 2007 at the Commission's office 
building in West Trenton, NJ. The third informational meeting will take 
place at 1 p.m. on Tuesday, March 27, 2007, immediately prior to the 
first public hearing on the proposal, scheduled for that date at the 
Lake Wallenpaupack Environmental Learning Center in Hawley, PA.

ADDRESSES: Directions to the Lake Wallenpaupack Environmental Learning 
Center are available at http://www.pplweb.com/lake+wallenpaupack/contacts+and+directions/get+directions.htm and will be posted on the 
DRBC Website, http://www.drbc.net, by February 20, 2007. Driving 
directions to the Commission's office building, located at 25 State 
Police Drive in West Trenton, NJ, are available on the DRBC Web site at 
http://www.drbc.net. Please do not rely upon MapQuest or other Internet 
mapping services for driving directions, as they do not provide 
accurate directions to the DRBC. Written comments must include the 
name, address and affiliation of the commenter. Comments may be 
submitted by e-mail to [email protected]; by U.S. Mail to: 
Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360; 
and by fax to Attn: Commission Secretary at 609-883-9522. In all cases, 
the subject line, ``Comment on Flexible Flow Management Plan for City 
Delaware Reservoirs'' should be included.

FOR FURTHER INFORMATION CONTACT: The text of the proposed FFMP in its 
entirety will be posted on the Web site of the Delaware River Basin 
Commission, http://www.drbc.net, on Tuesday, February 20, 2007 and will 
remain posted through May 9, 2007. Please contact Pamela M. Bush, 
Esquire, Commission Secretary and Asst. General Counsel at 609-883-9500 
ext. 203 with questions about the proposed rule change or the 
rulemaking process.

SUPPLEMENTARY INFORMATION: Background. The flow management objectives 
considered by the Supreme Court Decree of 1954 were narrower than the 
diverse objectives that have emerged in the decades since. Today, the 
finite waters of the Delaware, and the limited storage available in the 
basin are being managed for multiple purposes, including among others 
water supply and drought mitigation, flood mitigation, and habitat 
protection in the tailwaters fishery, the mainstem and the estuary. In 
accordance with the Delaware River Basin Compact, a statute 
concurrently enacted in 1961 by the U.S. Government and the four basin 
States--Delaware, New Jersey, New York and Pennsylvania--the Delaware 
River Basin Commission may modify diversions, releases, rights, 
conditions and obligations established by the decree, provided that the 
decree parties unanimously consent to such modifications. The 
Commission and decree parties have made use of this authority to 
provide flexibility to respond to fluctuating hydrologic conditions and 
evolving priorities throughout the Commission's history. In 1983, in 
accordance with an agreement among the parties known as the ``Good 
Faith Agreement,'' a reservoir release regime was established on a 
permanent basis to supplement the provisions of the decree for the 
limited purpose of protecting and enhancing the tailwaters fishery. 
Since the adoption of this regime in the form of a docket (similar to a 
permit) issued to the New York State Department of Environmental 
Conservation--Docket D-77-20 CP (Revised)--the ``fishery management 
program'' as the plan is sometimes called, has been modified repeatedly 
by the Commission with the unanimous consent of the decree parties. 
Resolution No. 2004-3, approving Docket D-77-20 CP (Revision 7), 
established the three-year interim program that is set to expire on May 
31, 2007. A series of temporary spill mitigation programs also have 
been established, the latest in the form of Docket D-77-20 CP (Revision 
9), approved by DRBC Resolution No. 2006-18 in September 2006.
    Unlike the experimental programs instituted by the Commission in 
the

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past, the FFMP is intended to provide a comprehensive framework for 
addressing multiple flow management objectives, including, in addition 
to water supply, drought mitigation and protection of the tailwaters 
fishery, a diverse array of habitat protection needs in the mainstem, 
estuary and bay, flood mitigation, recreational goals and salinity 
repulsion. Some of the flow needs identified by the parties have not 
yet been defined sufficiently for the development of detailed plans. 
These include protection of the dwarf wedgemussel, a Federal and State-
listed endangered species present in the mainstem, oyster production in 
Delaware Bay, and protection of warm-water and migratory fisheries in 
the lower basin. Incremental and periodic adjustments are expected to 
be made to the FFMP for these purposes, based upon ongoing monitoring, 
scientific investigation, and periodic re-evaluation of program 
elements.
    A central feature of the reservoir release programs implemented to 
date for management of the tailwaters fishery has been the use of 
reservoir storage ``banks'' to be used for narrowly defined purposes 
under specific hydrologic and temperature conditions and at specified 
times of the year. These are applied in conjunction with a set of fixed 
seasonal flow targets. The system requires complex daily flow and 
temperature modeling as a component of determining the releases, and as 
a result, the program is difficult and costly to administer. The 
current approach also lacks the seasonal fluctuations characteristic of 
a natural flow regime. The FFMP would largely eliminate the use of 
banks and would base releases instead on reservoir storage levels, 
resulting in larger releases when water is abundant and smaller 
releases when storage is at or below normal. The result would more 
closely approximate a natural flow regime. In addition, the FFMP would 
provide for more gradual transitions (or ``ramping'') from higher to 
lower releases and vice versa than the current regime. The FFMP would 
include a spill mitigation component similar to but potentially more 
aggressive than the temporary programs implemented in the past. The 
storage represented by snowpack water content would continue to be 
considered.
    Hydrologic modeling and habitat assessments are being undertaken to 
evaluate the sustainable benefits of the FFMP for the tailwaters 
fishery and for spill mitigation. In addition, an evaluation is being 
made of the potential benefits and costs of increasing storage in one 
or more of the City Delaware Reservoirs that may improve the capacity 
of the system to meet the full range of flow objectives.
    If consensus among the decree parties and DRBC commissioners cannot 
be reached on details of the FFMP in time to approve and initiate 
implementation of the plan by June 1, 2007, the parties intend to 
continue to work at refining and improving the FFMP until such a 
consensus can be reached. The Commission will conduct a separate notice 
and comment rulemaking process on the proposed program at that time. 
Under such circumstances, for an interim period, the parties will 
consider extending the current fisheries management program or 
reinstating a previous regime. In either case, the releases program 
will be considered in combination with a spill mitigation plan.
    The proposed FFMP in its entirety will be posted on the Web site of 
the Delaware River Basin Commission, http://www.drbc.net, on Tuesday, 
February 20, 2007.

    Dated: February 5, 2007.
Pamela M. Bush,
Commission Secretary.
[FR Doc. E7-2169 Filed 2-9-07; 8:45 am]
BILLING CODE 6360-01-P