[Federal Register Volume 72, Number 231 (Monday, December 3, 2007)]
[Proposed Rules]
[Pages 67875-67878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23383]


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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 
[email protected]; 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 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, 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