ML20072N201
| ML20072N201 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 03/29/1983 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8304010470 | |
| Download: ML20072N201 (57) | |
Text
_
h G 31 m;.g; UNITED STATES OF AMERICA NUCLEAR REGULATORY COMfiISSION Before the Atomic Safety and Licensing Board In the Matter of
)
)
thiladelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
ANSWER OF APPLICANT PHILADELPHIA ELECTRIC COMPANY TO LATE FILED CONTENTION V-26 AND MOTION TO REOPEN BY DEL-AWARE UNLIMITED, INC.
I Beliminary Statement On March 14, 1983, counsel for Philadelphia Electric Company
(" Applicant" or " PECO'; )
received in the captioned proceeding the latest in a serie> of filings by Del-Aware Unlimited, Inc.
(" Del-Aware") which seeks permission from the Atomic Safety and Licensing Board
(" Licensing BoaI.d" or
" Board") to admit yet another late filed contention related to the issue of makeup water for the Limerick Generating Station.b
'/
-1/
" Request for Late Filed Contention V 26" (March 8,
1983).
The petition was accompanied by a cover letter which requests that the Board treat the petition as an application to reopen the record in the event that the Board finds in the Applicant's favo; in the interim.
The cover letter also sought to introduce into this proceeding additional information in support of the already twice rejected Contention V-25.
The Board properly concluded that this information does not provide a basis to reconsider its previous rulings 8304010470 830329
{DRADOCK05000
The proposed Contention V-26 seeks to relitigate the matter of low flows in the Delaware River as they may relate to withdrawals authorized by the Delaware River Basin Commission
("DRBC")
at Point Pleasant.
By way of back-
- ground, on March 8,
- 1982, the Board issued its Partial Initial Decision ("?ID") in this proceeding, finding, inter alia, that the operation of the Point Pleasant intake in the Delaware River would have no adverse effect on the American shad or shortnose sturgeon even at low flows.2/
In its subsequent Memorandum and Order,1! the Board stated that the substance of Del-Aware's motion could be construed as a motion to reopen as regards impacts at such low flows.
j Applicant agrees.
Applicant opposes the admission of proposed Contention V-26 on several grounds.
First, the matter raised therein is beyond the jurisdiction of the-Board.
Second, Del-Aware has wholly failed to meet its burden of proof with regard to late filed contentions.
Third, Del-Aware has not satisfied its very heavy burden to justify recpening the record before denying admission of Contention V-25.
Because the Board has already ruled on this portion of the Del Aware petition, Applicant will not address it here.
2/
PID at 21-22.
-3/
" Memorandum and Order Directing Parties to Address Jurisdiction to Rule on Del-Aware's ' Request for Late Filed Contention V-26' and Confirming Exclusion of Contention V-25"
(" Board Memorandum and Order")
(March 17, 1983).
).
the Board even reaches the criteria for late filed con-tentions.
Finally, Del-Aware wholly ignores the fact that the " Good Faith" negotiations are premised on the existing DRBC Comprehensive Plan, which includes the allocation of water for Limerick under the prescribed terms and conditions of withdrawal.
In any event, petitioners' remedy lies with the DRBC, which will follow the public bearing procedures in its regulations before these recommendations may be adopted.
As discussed below, the Board has jurisdiction to rule on the admissibility of this late filed contention, which should be denied.
Argument I.
The Matters Raised in the Proposed Contention are Beyond the Jurisdiction of the Board.
Proposed Contention V-26 states that the four state parties to the Supreme Court Decree of 1954 have just announced the signing of a revised management plan for the Delaware River.b The contention discusses this
- plan, whien is virtually identical in all respects to the earlier draft previously considered by the Board, which recommends a minimum flow objective at Trenton of 2,700 cfs in drought
- warning, 2,500 cfs in drought conditions, and recommends negotiation among the parties in time of drought emergency.
Del-Aware alleges that the Board must reconsider the 4/
Request for Late Filed Contention V-26 at 1.
_4-
" viability" of the river follower method and must reconsider evidence concerning impacts of withdrawals at Point Pleasant on fish.b Reconsideration of the river follower method is clearly beyond the jurisdiction cf this Board, which itself has ruled on numerous occasions that " absent a determination of significantly increased environmental impacts, we will not consider issues concerning the overall acceptability of the river follower method of cooling."b Because the Com-mission's regulations under 10 C.F.R.
S51.23(e) bar consid-eration at the operating license stage of those matters considered at the construction permit stage, absent new information which would substantially affect a
plant's cost / benefit analysis, the proposed contention should be denied.
Further, the recommendations by the parties to the 1954 Decree regarding minimum flow objectives for salinity control are not subject to review by the NBC.7/
This 5/
Id.
6/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), L3P-82-43A, 15 NRC 1423, 1464 (1982).
-7/
If Del-Aware believed that this was a
significant
- matter, it could have referred to the Draft Recommendations in its Proposed Findings of Fact and Conclusions of Law submitted to the Board.
Del-Aware did not do so.
The Board should not tolerate this attempt of Del-Aware to reopen this proceeding to consider a matter raised but not pursued by Del-Aware.
clearly involves a management function of the DRBC as river master.
In refusing on numerous occasions to review DRBC's decision to allocate water for Limerick, this Board has specifically held that flow management is a matter for the DRBC and is not subject to NRC review.~8/
Moreover, Del-Aware's instant request wholly misses the basic point of DRBC's docket decision approval for Limerick water.
Whatever low flow objectives may be adopted by the DRBC, the condition imposed on Philadelphia Electric Company in DRBC's Docket No. D-69-210 CP that it may not withdraw water from the Delaware River when the flows drop below 3,000 cfs will not be affected.
Del-Aware has expressly recognized this fact in its pleading.
Thus, any low flow objective adopted will be irrelevant in that PECO's with-drawal will still be conditioned on a minimum flow of 3,000 cfs at Trenton.S/
Further, insofar as Del-Aware alleges that a flow of less than 3,000 cfs at the Trenton gage would adversely affect certain fish during spawning and larval seasons, the matter has already been decided in favor of Applicant. Thus,
-8/
The decisions are enumerated in the most recent of the series.
See " Memorandum and Order - Denying Petitions of Del-Aware for Reconsideration and to Admit a Late Contention" at 2 (March 8, 1983).
9/
Only if PECO replaces from upstream storage the amount of water which it withdraws can PECO withdraw Delaware River water when flows are below 3,000 cfs.
in its PID the Licensing Board specifically determined that if "the flow was even less than 3,000 cfs and the bypass velocities still appeared substantial, that would indicate that there would be beneficial bypass velocities at even lower flows."E#
Finding that the bypass velocity at 2,500 cfs would be 0.8 fps, the Board concluded that "even at 2500 cfs, the ratio of bypass velocity to the average intake velocity would be greater than 2 to 1 and the bypass velocity would be significantly higher than the maximum high). "E Accord-intake velocity (although not twice as ingly, the matters which Del-Aware seeks to litigate lie beyond the jurisdiction of this Board or have already been decided against Del-Aware.
II.
Del-Aware has Failed to Meet the Standards for Late Filed Contentions N1-Aware has not met the standards set forth in 10 C.F.R.
S2.714a (a) (1) (i)-(v) regarding admission of late contentions.
In order to have its contention admitted, Del-Aware "must address each of those five factors and affirmatively demonstrate
- that, on
- balance, they favor permitting [its] tardy admission to the proceeding."E 10/ PID at 19.
11/ Id. at 21.
-12/ Duke Power Company (Perkins Nuclear Station, Units 1, 2
and 3), ALAB-615, 12 NRC 350, 352 (1980).
A.
Del-Aware has not Shown Good Cause for its Untimely Filing It is clearly established that the proponent of a
late-filed contention must make a substantial showing of
" good cause" for the untimeliness of its submission. E Del-Aware has entirely failed to show good cause for its untimeliness because there is no new information presented to the Board.
Del-Aware bases its argument for admission of this contention on an alleged "new" management plan for the Delaware River.
The document to which Del-Aware refers,
" Interstate Water Management Recommendations of the Parties to the U.S.
Supreme Court Decree of 1954 to the Delaware River Basin Commission Pursuant to Commission Resolution 70-20," dated November 1982, is not a "new" management plan for the Delaware River.
Rather it is a series of recommen-dations made to the DRBC.
It is not a final plan.
The DREC may or may not adopt one or all of the recommendations 4
13/ Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 2), ALAB-384, 5 NRC 612, 615 (1977); Duke Power Company (Cherokee Nuclear Station, Units 1, 2 and
- 3), ALAB-440, 6 NRC 642, 643 (1977); Duke Power Company i
(Perkins Nuclear Station, Units 1, 2 and 3), ALAB-431, 6 NRC 460, 462 (1977).
As to the requiremants for late-filed contentions, Applicant respectfully refers the Board to " Applicant's Answer to ' Application for Approval of Petition to Amend Contentions' Submitted by Del-Aware Unlimited, Inc." at 10 n.11 (September 24, 1982).
contained in this report after opportunity for public hearing.
In any event, there is nothing "new" in these recommen-dations, which are virtually identical to those contained in 4
the Draft Recommendations of the Parties dated July 1982.E!
Del-Aware's counsel cross-examined Applicant's
. witness with respect to this document at the hearing before N!
and proffered the Draft Recommendations and the Board Background ReportE! as Del-Awne Exhibit 8.
If Del-Aware j
believed that this was relevant to the impact of the intake on American shad or shortnose sturgeon, Del-Aware could have developed that point at the hearing.
B.
Other Factors
- Further, the other factors contained in 10 C.F.R. 52.714(a) do not balance in Del Aware's favor.
There are
-14/ " Interstate Water Management Recommendations of the Parties to the U.S. Supreme Court Decree of 1954 to the Delaware River Basin Commission Pursuant to Commission Resolution 78-20"
(" Draft Recommendations").
A copy of the Draft Recommendations was provided by Applicant as i
an attachment to
" Applicant's Answer to Motion of Del-Aware Unlimited, Inc.
to Compel Answers to Interrogatories" (August 12, 1982).
A copy of the November 1982 signed Recommendations is attached.
M/ See Tr. 1654-61.
-16/ " Draft Recommendations" and
" Background Report Concerning the Interstate Water Management Recommendations of the Parties to the U.S.
Supreme Court Decree of 1954 to the Delaware River Basin Commission Pursuant to Commission Resolution 78-20" (July 1982).
See Tr 1660.
other means available to protect Del-Aware'c interest.
If Del-Aware objects to these low flow objectives, the appro-priate forum for Del-Aware to raise these arguments is the DRBC.
In Grand Gulf the Appeal Board noted the "importance of the third and fifth factors specified in 10 C.F.R. S2.714(a)
- the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record, broaden the issues or delay the proceeding." 18/
(
Because the matter raised in the contention lies beyond the jurisdiction of the Board or has been already decided in the PID, it is unnecessary to include it in any " sound record."
- Moreover, Del-Aware's participation with respect to this contention cannot be expected to assist in developing a sound record.
Since Del-Aware raised this point before, but failed to develop it, there is no reason to assume that Del-Aware would do any better now.
-17/ Pursuant to the DRBC rules and regulations, an opportunity for hearing will be provided prior to adoption of any of the recommendations.
See Delaware River Basin Commission, Rules of Practice and Procedure, 2-6.1, M/ Mississippi Power & Light Company (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-704, 16 NRC (Dec.
8, 1982) (slip op at 9).
M/ As the Appeal Board in Grand Gulf further explained, when addressing the criterion concerning the development of a sound record, the petitioner should
" set out with as much particularity as possible the precise issues it plans to cover and summarize Finally, it is beyond dispute that to reopen the record at this point to consider this new contention would certain-ly delay the proceeding unduly.
III. Del-Aware Has Not Met Its Heavy Burden of Proof in Requesting That the Proceeding be Reopened.
The record in this proceeding was closed on October 26, 1982.
It is well settled that a party seeking to reopen the record to file late contentions must first satisfy a heavy burden to juotify reopening the case before the Board even reaches the five criteria for late contentions.20_/
The standard enunciated in the Wolf Creek proceedingEl summari::es the basic legal requirements for a motion to reopen the record.
The Appeal Board there stated:
the proposcd testimony."
I_d.
at 10 citing South Carolina Electric Gas Company (Virgil C.
Summer Nuclear Station, Unit 1),
ALAB-642, 13 NRC 881, 894 (1981) aff'd sub nom.
Fairfield Unitud Action v.
Nuclear Regulatory Commission, 679 F.2d 261 (D.C. Cir.
1982); Detroit Edison Company (Greenwood Energy Center, Units 2
and 3),
ALAB-476, 7
NRC
- 759, 764 (1978).
Del-Aware has failed to do so.
M/ South Carolina Electric & Gas Company (Virgil C.
Summer Nuclear
- Station, Unit 1),
Docket No.
50-395-OL
" Memorandum and Order" (April 28, 1982)
(slip op. at 2);
Kansas Gas and Electric Company (Wolf Creek Generating Station, Unit 1), ALAB-462, 7 NRC 320, 338 (1978).
21/ Wolf Creek ALAB-462,
- supra, 7
NRC at 338.
This standard was approved by the Commission in Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 362-63 (1981); Metrcpolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), ALAB-699, 16 NRC (Oct.
27, 1982) (slip op. at 6).
- 11. -
As is well settled, the propcaent of a motion to reopen the record has a heavy burden.
Duke Power Company (Catawba Nuclear
- Station, Units 1
and 2),
ALAB-359, 4 NRC 619, 620 (1976).
The motion must be both timely presented and addressed to a
significant safety or environmental issue.
Vermont Yankee Nuclear Power Corp.
(Verment Yankee Nuclear Power Station), ALAB
'.38, 6 7 EC 520, 523 (1973);
id.,
ALAB-167, 6 AEC 1151-1152 (1973);
Georgia Power Co.
(Alvin W.
Vogtle Nuclear Power Plant, Units 1 and 2), ALAB-291, 2 NRC 404, 409 (1975).
Beyond that, it must be estab-lished that "a
different result would have been reached initially had (the material been submitted in support of the motion] been considered."
Northern Indiana Public Service Co (Bailly Generating
- Station, Nuclear
- 1),
ALAB-227, 8 AEC 416, 418 (1974).
In applying these criteria to Del-Aware's petition it becomes clear that Del-Aware's motion must be denied for the 4
reasons discussed above.
The Draft Recommendations which l
have been available since July 1982 contained identical pro-visions relating to flow objectives. b 22/ See note 14, supra at 7.
The heavy burden imposed upon the proponent of a motion to reopen is significantly greater where the lateness is unjustified.
As the Appeal Board in Three Mile Island held:
In the case of a motion which is untime-ly without good cause, the movant has an even greater burden; he must demonstrate not merely that the issue is significant but, as well, that the matter is of such gravity that the public interest demands its further exploration.
Metropolitan Edison Company (Three Mile Island Nuclear
- Station, Unit No. 2), ALAB-486, 8 NRC 9, 21 (1978).
- Also, the matter raised in Del-Aware's late filed I
i contention is not significant to any issue in this proceed-ing.
The river follower method is not under reevaluation here, and the low flow objectives would have no impact on aquatic biota.23/
Thus, this matter is not even signifi-cant, let alone "of such gravity that the public interest demands its further exploration."EI IV.
The Atomic Safety and Licensing Board has Jurisdiction to Rule upon Del-Aware's Motion to Reopen.
The question of jurisdiction to rule on Del-Aware's pleadingb has arisen because Del-Aware's request for the admission of a late contention is postmarked, and therefore served,El the same day as the Board issued its PID.
The 23_/ See pages 4 - 6, supra.
2_4,/ Three Mile Island, ALAB-486, supra at 21.
For the same reasons, the Board clearly would not have reached a different result had the low flow recommendations as signed by the
- parties, as distinguished from the virtually identical draft recommendations in the existing record before the Board, been available at the hearing.
2_5,/ It is appropriate that the Licensing Board be the body 5
l to rule on this question in the first instance.
A hearing board has the inherent right and duty to determine its ovn jurisdiction in the first instance.
Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3) ALAB-591, 11 NRC 741, 742 (1980); id., ALAB-597, 11 NRC 870, 873-74 (1980) cited in Cine nnati Gas &
l Electric Company (Wm.
H. Zimmer Nu dear Power Station, Unit 1), Docket No. 50-358 OL, " Memorandum and Order" (Mar. 10, 1983) (slip op at 1).
M/ 10 C.F.R. S2.712 (d) (3).
l l
Commission's regulations and case law establish that the Licensing Board has jurisdiction to rule on a motion to reopen if it is filed before the issuance of an initial decision. 1!
Further, it has been held that the Licensing Board loses jurisdiction to rule on a petition to reopen if it is filed after exceptions to the initial decision have been taken.E The Board has summarized the status of the law on this point in its Memorandum and Order.29/
After its review of the controlling case law, Applicant has con-cluded that jurisdiction to rule on a motion to reopen which is filed af ter the issuance of a partial initial decision, but before the filing of exceptions, lies with the Licensing Board.E The Board has suggested that analogies or distinctions between considering a motion to reopen after the issuance of 27/ 10 C.F.R.
S2. 718 (j ).
28/ Metropolitan Edison Company (Three Mile Island, Unit No. 1), ALAB-699, 16 NRC iOct. 27, 1982) (slip op.
at 5-6).
2_9_/ Board Memorandum and Order at 2-6.
9
-30/ As the Board has pointed out, the Three Mile Island case offers the latest guidance on this jurisdictional issue.
The Appeal Board held that jurisdiction to rule on a motion to reopen passes to the Appeal Board upon the filing of exceptions, but specifically left "for another day the question of where jurisdiction lies to rule on a mot ion to reopen filed af ter the issuance of the initial decision but before the filing of exceptions."
Three Mile Island, MAB-6 9 9, supra, slip op. at 6 n.6.
r.
an initial decision can be drawn from cases dealing with the question of whether the licensing board has jurisdiction to rule en a motion to reconsider its initial decision.
This analogy is particularly appropriate because Commission regulations are unclear on the issue of jurisdiction to rule upon a motion to reconsider as well.
The Appeal Boards have held that a licensing board does have jurisdiction to rule on a motion to reconsider its initial decision and the rationale of those decisions applies equally here.
See Duke Power Company (Perkins Nuclear Station, Units 1,
2 and 3)
ALAB-597, 11 NRC 780 (1980);
Consumers Power Ccmpany (Midland Plant, Units 1 and 2), ALAB-235, 8 AEC 645 (1974).
The practical considerations which led the Appoal Board to find that the licensing board had jurisdiction in Midland and Perkins likewise exist here.
The Licensing 20ard is far more familiar with the. record in this proceeding and with its rulings on previous, related late filed contentions.
Moreover, the Licensing Board is familiar with the-issues in this proceeding generally and with the relationship of this late filed contention to the pertinent issues.
It is clearly in a better position to pass initial judgment on the admissibility of this proposed contention.
Additionally, it is possible that in some cases no exceptions to an initial decision will be taken, and the decision of the Licensing Board will therefore become final.
In such cases, it would be impractical to convene an Appeal Board panel to hear only the motion to reopen.
i
-=.-.
Applicant submits that this approach provides a work-able solution to the jurisdictional issue in conformity with the spirit of the Commission's regulations and case law in analogous areas.
To hold otherwise would be to elevate form above substance.31/
Applicant agrees with the Licensing Board that the pendency before it of unrelated issues, which must be resolved before the issuance of an initial decision on all issues, should not be the basis for determining where jurisdiction lies.
Conclusion For the reasons set forth above, Applicant believes that the Licensing Board should ass'ert jurisdiction in this matter and reject Del-Aware's petition to reopen and its request to admit a late filed contention.
Respectfully submitted, CONNER &'WETTERHAHN, P.C.
5,
=l
' Troy B. Conner, Jr.
Robert M. Rader Counsel for the Applicant 1
March 29, 1983 t
31/ Cf.
Houston Lightinc &
Power Company, (South Texas Project, Unit Nos.
1 and 2),
CLI-77-13, 5 NRC 1303, 1318 (1977).
j 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of
)
J I
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Answer of Applicant Philadelphia Electric Company to Late Filed Contention V-2G and Motion to Reopen by Del-Awae Unlimited, Inc.,"
dated March 29, 1983, in the captioned matter have been served upon the following by deposit in the United Statep mail this 29th day of March, 1983:
Judge Lawrence Brenner (2)
Docketing and Service Section Atomic Safety and Licensing Office of the Secretary Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission j
Commission Washington, D.C.
20555 Washington, D.C.
20555 Ann P. Hodgdon, Esq.
Judge Richard F. Cole Elaine I. Chan, Esq.
Atomic Safety and Licensing Counsel for NRC Staff Board Office of the Executive U.S. Nuclear Regulatory Legal Director Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Judge Peter A. Morris j
Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel l
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Philadelphia Electric Company Appeal Panel ATTN:
Edward G.
Bauer, Jr.
U.S. Nuclear Regulatory Vice President 6 Commission General Counsel Washington, D.C.
20555 2301 Market Street Philadelphia, PA 19101 4
r
Mr. Frank R.
Romano Walter W. Cohen, Esq.
61 Forest Avenue.
Consumer Advocate Office of Ambler, Pennsylvania 19002 Attorney General 1425 Strawberry Square Mr. Robert L. Anthony Harrisburg, PA 17120 Friends of the Earth of the Delaware Valley W. Wilson Goode P. O. Box 186 Managing Director 103 Vernon Lane City of Philadelphia Moylan, Pennsylvania 19065 Philadelphia, PA Mr. Marvin I.
Lewis Steven P. Hershey, Esq.
6504 Bradford Terrace Community Legal Philadelphia, PA 19149 Services,.Inc.
Law Center Judith A. Dorsey, Esq.
North Central Beury Bldg.
1315 Walnut Street 3701 North Broad Street Suite 1632 Philadelphia, PA 19140 Philadelphia, PA 19107 Donald S.
Bronstein, Esq.
Charles W.
Elliott, Esq.
1425 Walnut Street 123 N. 5th Street Philadelphia, PA 19102 Suite 101 Allentown, PA 18102 Mr. Joseph H. White, III B North Warner Avenue Mr. Alan J. Nogee Bryn Mawr, PA 19010 3700 Chestnut Street Philadelphia, PA 19104 Dr.' Judith H. Johnsrud Co-Director, ECNP 433 Robert W. Adler, Esq.
Orlando Avenue State Assistant Counsel College, PA 16801 Commonwealth of Pennsylvania DER Robert J.
Sugarman, Esq.
505 Executive House Sugarman & Denworth P.O.
Ecx 2357 Suite 510 Harrisburg, PA 17120 North American Building 121 South Broad Street Thomas Gerusky, Director Philadelphia, PA 19107 Bureau of Radiation Protection James M.
Neill, Esq.
Department of Environmental Box 217 Resources Plumsteadville, PA 18949 Sth Floor, Fulton Bank Bldg.
Third and Locust Streets Director Pennsylvania Harrisburg, PA 17120 Emergency Management Agency Basement, Transportation and Safety Building Harrisburg,.PA 17120-wYWit N
/C QIngrid M.' Olson
.}
. i*
D
\\.
c l
l INTERSTATE WATER MANAGEMENT Reco==endations of the Parties to the U.S. Supre=e Court
[-
Decree of 1954 to the Delaware River 3asin Cc~dssion r-
[_
Pursuant to Cot:: mission Resolution 78-20 (WITH APPENDICES)
New York Pennsylvania New Jersey Delaware i;
New York City i..
I:
2
=
l NOVEMBER 1982
s CONTENTS Page INTRODUCTION.
11 MAP OF THE DELAWARE RIVER BASIN AND ADJAC'ENT AREAS.
iii SECTIONS I.
Management Standards and Criteria.
1 II.
Diversions, Releases and Reservoir Management During Drought 2
III.
Water Storage, Water Supply and Flow Augmentation Projects.
5 IV.
Conservation.
8 V.
Depletive Water Use Budget 10 VI.
Conservation Releases--New York City Reservoirs.
11 VII.
Enforcement.
12 VIII.
Periodic Review.
13 APPENDICES:
COMPRE E SIVE PLAN DESCRIPTIONS A.
Francis E. Walter project 15 3.
Prompton proj ect.
17 C.
Merrill Creek project 19 D.
Cannonsville proj ect.
22 E.
Tocks Island project.
23 F.
Revised Docket D-77-20 CP: modification of release schedules from Cannonsville, Pepacton and Neversink reservoirs.
25 G.
Delaware River Basin Commission Resolution 78-20...
30
^t e
i
t INTRODUCTION Conditions in the Delaware River Basin have changed substantially over the past two decades.
The drought emergency of the mid-1960's and the decision of 1975 not to proceed.at that time with construction of the Tocks Island dam, were
=ajor background events giving rise to Commission action in 1978 calling upon the parties to enter into good f aith discussions (page 30).
The recommendations that follow constitute a series of interrelated manage-sent steps designed to respond to changed conditions in the Basin.
They are organized around h long-term salinity standard to be achieved through the devel -
opment of new reservoir storage and flow augmentation capacity, water conserva-tion actions, a drought management plan, and the regulation of new or expanded depletive water uses. Modified conservation releases from the New York City reservoirs to protect and enhance recreation below the reservoirs are proposed to be =ade permanent, but with required reductions during drought periods.
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I f
e SECTION I MANAGEMENT STANDARDS AND CRITERIA Recommendation 1 The Commission chould amend its Comprehensive Plan to include a revised salinity objective.
The amendment should include a set of interim and long-ters salinity objectives. The interim operating objective should be to limit salinity to a maximum 30-day average of 180 mg/l of chlorides and a maxi =um 30-day average of 100 mg/l of sodium at River Mile 98 (i.e., one mile upstream frem the Walt Whitman Bridge).
Through a set of step-by-step actions, a more protective objective should be established by the year 2000 to limit salinity to a maxi =um 30-day average of 150 mg/l of chlorides and a maxi =us 30-day average of 83 =g/l of sodium at River Mile 98.
As additional reservoir f acilities and storage capacity become available in the Basin they should be used both to augment water supply, and to i= prove environmental conditions, water cuality, and salipity protection.
A portion of the new storage capacity recommended in recommendation 5 should be ec=mitted to salinity protection.
As each unit ce=es on line, the operating salinity obj ec-tive should be revised until the year-2000 objective is reached.
Sinultaneously,
a series of depletive water use allocation budgets should be adopted at each stage.
Each budget should be designed to meet the operating salinity objective with the capacity of the storage facilities then available.
The salinity objective should be periodically reviewed by the Cvamission in light of existing conditions and knewledge.
The parties join in this recommendation, in view of the fact that they are also committed to the implementation of the depletive water use budget set forth in recemmendation 13, to the implemantation of a drought operating formula and conservation programs, as set forth in recommendations 3, 4, 10, 11, and 12, and to the development of proj ects set f orth in recommendations 5, 6, and 7.
All of the parties recognize the benefits of the salinity standards pro-posed in recommendation 1, but New York City abstains from supporting this recommendation because establishment of salinity standards is properly a matter for decision by the Commission.
However, the City does agree with the specific drought operating schedules set forth in recom=endation 3, which will assist in controlling salinity during drought periods over the course of this agree =ent.
Recommendation 2 The Basin's water management system should be capable of providing and i
protecting reliable water supplies for essential uses during a drought equal in severity to the drought of record, which occurred in the period 1961-1967.
The Commission should amend the Comprehensive Plan to include a specific management
[
criterion that the drought of record will be used as the basis for determination and planning of dependable water supply.
a v li t
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SECTION II DIVERSIONS, F M SES AND RESERVOIR MANAGEMENT DURING DROUGHT Recommendation 3 For purposes of management during a drought, the Parties agree to propose and support adoption by the Commission, pursuant to Section 3.3 of the Compact, a schedule of phased reductions in diversions, releases, and flow objectives as described in this section and set forth in Tables 1 and 2.
The formula is based upon a differentiation between "nor=al", " drought warning" and " drought" conditions as defined by the combined storage levels shown on the operation curves for Cannonsville, Neversink and Pepacton reservoirs (page four).
The division of the drought warning zone into upper and lower halves is defined as a physically equal divisior., or 20 billion gallons in each ::ene.
TABLE 1 Interstate Operation Formula for Reductions In Diversions, Releases, and Flow Objectives Duri.2g Periods of Drought Montague Trenton NYC Storage NYC Div.
NJ Div.
Flow Objective Flow Objective Condition egd mgd efs efs Nornal 800 100 1750 3000 Upper Half-Drought Warning 680 85 1653 2700 Lower Half-Drought Warning 360 70 1550 2700 Drought 520 65 1100-1650*
2500-2900*
Severe Drought (to be negotiated based on conditions)
- Varies with time of year and location of salt front as shown on Table 2.
3 During drought conditions as defined by the operation curves shown on page four, the Montague and Trenton flow objectives should vary according to the location F
of the salt front (250 mg/l chloride isochlor 7-day average), in accordance with jj the following table:
O
)j!
1 TA3LE 2 Flow Objectives for Salinity Control During Drought Periods Seven-day Average Location of Flow Objective, Cubic Feet Per Second At:
" Salt Front,"
Montague, N.J.
Trenton, N.J.
River-mile
- Dec-Apr Mav-Aug Sect-Nov Dec-Aor Mav-Aug Sept-Nov Upstream of R.M. 92.5 1600 1650 1650 2700 2900 2900 3etween R.M. 87.0 and R.M. 92.5 1350 1600 1500 2700 2700 2700 3etween R.M. 82.9 and R.M. 87.0 1350 1600 1500 2500 2500 2500 Downstream of R.M. 82.9 1100 1100 1100 2500 2500 2500 l
Diversions and releases under this drought operation formula should go into effect automatically whenever combined storage in the City reservoirs declines below the drought warning line and remains'below that lovel for five consecutive days. When the combined storage (including the projected water runoff equivalent of actual snow and ice) reaches a level 15 billien gallons above the drought warning line, and remains above that level for five consecutive days, the drought operation formula should automatically terminate and normal operations provided for in the Decree should be resumed.
Pursuant to Section 3.3(a) of the Compact, the Parties hereby give their
- unanimous consent to adoption and implementation of this drought operation formula by the Commission.
The Parties agree that the drought operation formula will go into effect automatically, and be binding on all parties for not less than 180 days following the triggering of drought warning operation, unless terminated automatically by i= proved storage conditions as described above.
During the 180-day period, the parties will convene no less frequently than once each month to review current conditions, and they may extend, modify, or extend as modified the for=ula reco== ended here.
If no unanimous agreement as to a continuing drought operation formula is reached within the 180-day period, all parties shall be released from the terms of the formula contained in this agree-l ment and may pursue their rights and obligations under the Del ware River Basin ll Compact and the U.S. Supreme Court Decree.
H y
The City of New York joins in recommendation 3 but does not by doing so accept any general responsibility under the doctrine of equitable apportionment or otherwise to vary releases from the City's reservoirs in accordance with the location of the salt front.
" Measured in statute miles along the navigation channel from the mouth of Delaware Bay. h
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'Reco=mendation 4 The Commission should develop a plan for coordinated operation of other existing inpoundments during drought periods to complement the operating for=ula for the New York City reservoirs, as outlined above, in order to maintain reliable supplies for essential uses, to conserve water, and to control salinity.
The plan should include operating criteria for the Beltzv111e, Blue Marsh, Walter, Prompton and Nockamixon projects, and the hydroelectric power reservoirs in the Basin of the Pennsylvania Power and Light Company and Orange and Rockland Utilities Inc. Criteria for defining a lower Basin drought warning and drought should be pre-pared and made part of the plan.
The plan should be completed by July 1, 1983, and nade part of the Commission's Comprehensive Plan.
SECTION III WATER STORAGE, WATER SUPPLY AND FLOW AUQiENTATION PROJECTS The parties agree that the Basin needs additional flow augmentation f acilities if the region is to grow and the risk of saline contamination in the estuary is to be held within reasonable bounds.
Development of new facilities according to sched-ules recom= ended here will allow the Basin to accommodate projected demands for
?
new water use and at the same time realize the year 2000 salinity objective.
But achievement of these goals will also require careful monitoring of increased depletive water use and rigorous application of conservstion measures during drought,
periods.
Reco==endation 5 The Parties agree to endorse and promote, individually and collectively, construction or modification of the following projects for water supply and flow augmentation for salinity control, according to the following ti=etables and imple-nenting provisions:
(a)
Enlargement cf the Francis E. Walter Reservoir in Luzerne County, Pennsylvania.
Implementing Provisions:
l lt The Parties agree to propose and support adoption by the Co==ission lL of an amendment to the Comprehensive Plan adding an updated description of the project, as set forth in Appendix A, page 15.
The Parties agree to support and assist timely completion of design
. p:
studias currently underway by the U.S. Army Corps of Engineers.
i The Parties agree to support action by Congress and the Federal Administration to appropriate funds necessary for timely design q
and construction of this project.
l i N
Prior to Dxcember 31, 1E84, Pennsylvania, New Jsrssy and Dalaware will negotiate arrangments to underwrite and finance non-Federal cost-sharing obligations necessary to complete this project.
Such arrangements may include action by the Commission to serve as non-Federal sponsor for water supply storage in the project, pursuant to Article 4 of the Compact and the 1958 Water Supply Act, as amended, 43 U. S.C. 5390 b-f.
Prior to Dec. doer 31, 1984, Pennsylvania, New Jersey and Delaware will negotiate and present for approval by the Commission a plan for utilization of the additional storage provided by the project, including proposed additions to apportionments within the deple-tive use budget and allocations to be used for improved salinity control within the Delaware Estuary.
The Parties agree that the target date for completion of construction is December 31, 1990.
(b)
Enlargement of Prompton Reservoir in Wayne County, Pennsylvania.
Imulementing Provisions:
- The Parties agree to propose and support adoption by the Com=ission of an amendment to the Comprehensive Plan adding an updated description of the proj ect, as set forth in Appendix 3.
Pursuant to 53.3(a) of the Cenpact, the Parties hereby give their unanimous consent and agree to support adoption by the Commission of a Comprehensive Plan amendment incorporating the following operating policy for the modified Frompton project:
When New York City is releasing from its reservoirs by direction of the River Master to meet Montague flow obj ectives--
(i) inflow to Prompton may be passed through the reservoir and released downstream with no change in the Montague flow objective, or stored in the reservoir with an equivalent reduction in the Montague flow objective; and (ii) releases may be made from Pro =pcon storage to meet Trenton flow requirements, and such releases will not be counted as part of the Montague objective.
I g-When New York City is not releasing from its reservoirs to meet Montague flow obj ectives--
(i) inflow at Prompton may be stored (except for minimum conser-
[
vation releases); and (ii) releases may be =ade from Pro =pton storage to meet Trenton
,i flow requirements, and such releases will not be counted as i
part of the Montague objective.
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1 Tha Partita agrca to support and atsist carly initiation and ti=ely co=pletion of design studies by the U.S. Ar=y Corps of Engineers.
- The Parties agree to support action by Cengress and the Federal Ad=inistration to appropriate funds necessary for ti=ely design and construction of this project.
F
[
Prior to Dece=ber 31, 1986, Pennsylvania, New Jersey, and Delaware i
will negotiate arrang=ents to underwrite and finance non-Federal cost-sharing obligations necessary to complete this project.
j Such arrangements =ay include action by the Co=sission to serve as non-Federal sponsor for water supply storage in the project, f
pursuant to Article 4 of the Compact and the 1958 Water Supply l
Act, as amended, 43 U.S.C.
5390 b-f.
- Prior to Dece=hcr 31, 1986 Pennsylvania, New Jersey and Delaware 3
will negotiate and present for approval to the Cc==ission a plan for utilization of the additional storage provided by the projec:,
including proposed additions to apportien=ents within the depletive use budget and allocations to be used for improved salinity
[
control in the Delaware Estuary.
f The Parties agree that the target date for cc=pletion of construction t
is Dece=ber 31, 1995.
L.
V L
A proposed revised Cc=prehensive Plan description of the Prompton f
project is =ade part of this report as Appendix 3, page 17.
tg' (c)
Construction of Merrill Creek Reservoir in Warren County, New Jersey.
6f I=olementing Provisions:
If deter =ined practicable by feasibilit; and environ = ental studies,
{'
1the Parties agree to support adoption by the Cc=sission of an m=endment to the Comprehensive Plan adding a description of this project, as set forth in Appendix C, page 19.
- If approved by the Co==ission pursuant to the Cor7act, the proj ect will be developed by the Merrill Creek Owners Group.
I*
- The Parties agree to expedite the processing of necessary per=its l
and approvals for this project.
j hi f
The Parties agree that, subject to the completion of necessary l
1 feasibility and environmental studies, the target date for c=mpletion l
of construction is December 31, 1986.
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Reco==endation 6 l
t l
l The State of New York will enlarge the Cannonsville reservoir in Delaware f
County, New York, if deter =ined to be practicable by feasibility and environ = ental studies.
Subject to the outcome of these studies construction should be co=pleted yy 1990.
The raquiremxnts of Section II13 of tha U.S. Suprema Court Decres of 1954 relating to excess releases should be waived as to ;he additional storage included in
- he Cannonsville modification project.
Additional project yield should be used primarily to maintain conservation releases.
Secondary purposes should be to support
- he Montague flow objectives and diversions to New York City within the 14 4ts of the 1954 U.S. Supreme Cour: Decree.
The Commission should amend its Comprehensive Plan by adding an updated description of the Cannonsville project.
A proposed revised Ccmprehensive Plan description is made part of this report as Appendix D, page 22.
.I Recommendation 7 i
New Jersey will undertake a study to examine potential solutions to the Camden
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Metropolitan area water supply problens and the related overpumping of the Poto=ac-i Raritan-Magothy aquifer system.
Alternatives to be explored should include the i
proposed conjunctive use of ground and surface water; pumping of ground water from the Cohansey Sands aquifer; and interconnection with and water transfer from the City i
of Philadelphia.
1 This study should be completed and an alternative or some ecmbination of alter-catives should be selected by December 31, 1985.
The selected alternative (s) should be i=plemented by December 31, 1990.
p Recennendation 8 It is recommended that the Commission evaluate the recommendation of its ground
[
water consultants that a field demonstration be made to gather further physical
[
infor=ation about the effects of pumping from glacial alluvium to supplement flow augmentation capacity during drought periods.* Possible development of such new sources of supply should be considered as a standby alternative, for use in emergency after the year 2000.
'[
Recommendation 9 The parties are agreed that the proposed Tocks Island project should be held in reserve status for development after the year 2000 if needed for water supply.
The Commission should amend its Comprehensive Plan by adding an updated description of the Tocks Island project.
A proposed revised Comprehensive Plan description is made part of this report as Appendix E, page 23.
SECTION IV CONSERVATION 1
Conservation during drought periods requires extraordinary measures not jus-tified under normal hydrologic conditions.
In order to protect public health,
[
economic activity and the environment, conservation of depletive use is of special
! i importance in the Delaware.
It is the depletive uses of both surface and ground waters that impact quantitatively upon minimum flows and the Basin's capability to j
maintain them.
l
- Special Ground Water Study of the Unoer Delaware River Basin, Studv Area III.
A j
report prepared for the Delaware River Basin Commission by R.E. Wright Associates,
Inc., July, 1982.
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Recomendation 10 Storage conditions in the New York City Delaware Basin reservoirs should be i
the principal consideration of the Comission in declaring a basinvide drought emergency under the Compact, and the initiation of emergency conservation neasures. The operation curves shown on page four should be the basis for such a declaration by the Commission based upon storage conditions.
The Co= mission I
should include within its Comprehensive Plan a statement of general policy that
{
a drought emergency will be declared for purposes of imposing mandatory in-Basin conservation measures whenever combined storage in the three reservoirs falls into tha drought :ene shown on the operation curves and remains in that :ene for j
five consecutive days.
The statement of policy should also provide that ter=in-
[
ation of a drought emergency will be considered by the Comission whenever
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combined storage in the three reservoirs reaches 40 billion gallons above the drought warning level and remains above that level for 30 consecutive days, and that the drought emergency will be terminated by the Commission whenever the combined storage remains above that level for 60 consecutive days unless the Co= mission unanimously agrees to extend the emergency.
This recomendation is not intended to extend, impair, or conflict with the Comission's authority under the Compact to declare or terminate a drought or l
water shortage emergency in the Basin, or sub-region thereof, in other instances 8
as conditions may require.
I J
Recommendation 11 E
j The Commission should include within its Comprehensive Plan a statement of general policy that conservation measures in the Basin designed for implementa-tion during drought periods shall be based upon the objective of reducing overall depletive use of fresh water by 15 percent.
Recoc=endation 12
(
Each State will prepare drought contingency plans for phased implementation l
during periods of drought warning and drought.
Such plans should be coordinated with action by the Commission in acnouncing a drought warning and in declaring a drought emergency under the Compact, and should be designed to achieve a target 15 percent reduction in depletive use at drought stage.
Contingency plans should be completed no later than Dece=ber 31,' 1983, and should include:
[
Identification of those restrictions on non-essential water uses, such i,
as car washing, lawn watering, et cetera, that can be effectively and I
practically applied; and outline procedures for coordinated initiation and termbuncion of public controls over such uses as drought conditions develop and subside.
a Contingency plans by large water users that provide for phased reduction J
of use as drought conditions worsen.
)
Proposed or existing legal authority to establish emergency conservation programs with enforcement powers, including fines and penalties.
l Ef fective and ti=ely public information services concerning the drought and the necessity for conservation by all classes of water users.
1
[
If adequate legal authority does not exist to i=plement contingency plans, I
including the foregoing features, the parties should seek such authority prior j
to Decenber 31, 1985.
?i SECTION V r
t DEPLETIVE WATER USE SUDGET I
E, t
Realization of the year-2000 salinity obj ective recommended in section I of j
i this report will require that depletive use in the Basin not be allowed to increase in the absence of offsetting storage capacity sufficient to maintain l
nini=um streamflow objectives.
In the absence of additional storage facilities, J
new depletivs use coupled with increases in existing depletive use will steadily reduce the ability of existing storage facilities to maintain streamflows needed to realite salinity control objectives.
The Basin cannot continue to authorite
+
new depletive use and at the sa=e ti=e defer actions to create new storage capacity.
a I
5 Reco==endation 13 I
The Commission should develop a regulatory progra= to id 4 t future depletive water use in such a way as to balance existing, new, or expanded depletive use a
with the availability of storage capacity required to meet salinity obj ectives.
~
The principal features of such a program should be:
e I
The control area in which the regulatory program would operate would I
be that area of the basin downstream of the Montague gage and upstreas 7
of the Chesapeake and Delaware Canal.
l Water available for allocation to new or expanded depletive uses within the control area would be li=ited to that which is in excess of the flows needed to maintain the applicable salinity control obj ective during drought periods.
Applications for new or expanded depletive water uses witnin the 1
L control area that would be in excess of the a=ount available for h
allocation would not be approved by the per=itting agencies of the States or by the Cocnission unless new storage capacity is brought on d
lins or existing uses are proportionately reduced by conservation or i l ab andonment, or unless such new or expanded uses are off set by water j
i= ported from outside the Basin.
l l
l Water available for allocation to new or expanced depletive uses would be allocated either among the States in proportion to the percentage of the control area within each State, or to the coc=on pool for use u
without regard to political boundaries.
l lt i,
!l l*
l If the Commission's regulatory program follows the State-by-State option, water available for allocation to a State would be increased (1) to reflect new storage capacity constructed and financed by that l
State, its agencies or subdivisions, or (2) to reflect that portion of new storage capacity constructed or financed by the Comission in accordance with agreements among the parties for each project.
If the Commission's regulatory program follows the " common pool" i
,I option, allocations to the pool weald be increased as new storage anies are constructed and water becomes available for new or expanded l
uses in accordance with existing State and Commission permitting i
programs.
ii A depletive water :se budget should be adopted and implemented by the k
Commission no later than December 31, 1985.
I SECTION VI 1
j CONSERVATION RELEASES l
NEW YORK CITY RESERVOIRS
\\
r f
Table 3 shows the program of augmented conservation releases from the New York City Delaware Basin reservoirs that has been in effect since 1977 on an experimental basis. The purpose of the releases is to protect and enhance the L
tecreational use of waters affected by such releases.
?'
f TABLE 3 i
{
3asic Augmented Reservoir and Conservation Conservation
[
Ooerative Dates t
Release Release Neversink
[.
4/1 - 4/7 5 cfs 45 cfs 4/8 - 10/31 15 15 l
11/1 - 3/31 5
25 Pepacton 4/1 - 4/7 6
70 4/8 - 10/31 19 70 11/1 - 3/31 6
50
(
Cannousv111e 6
4/1 - 4/15 8
45
{
4/16-6/14 23 45 6/15-8/15 23 325 8/16-10/31 23 45 i
11/1 - 11/30 23 33 12/1 - 3/31 8
33 i
i I
?,acommandation 14 The Cennission should amend docket D-77-20, as necessary to authorize on a permanent basis the augmented conservation release schedules at the three reser-voirs, as shown in Table 3.
The revised. docket, a draft of which is attached as Appendix F, page 25, should reflect the following conditions:
9 An additional quanrity of water up to 6000 cfs-days should be provided for the relief of thermal stress on aquatic life in the river down-l stream of the reservoirs and on the mainstem of the Delaware River, designed to prevent to the extent practicable, any water temperature higher thcn 75'F or daily average water temperature higher than 72*F in the designated dotastream areas as determined from measurements at Callicoon, Harvard, Woodbourne, and Eale Eddy gaging sites during i
the period May 1 to October 31, inclusive.
Releases for this purpose should be at the direction of the New York State Departnent of Environ-A mental Conservation.
In order to conserve available water in storage, no thermal stress releases should be made when the reservoirs are in y
7 drought warning or drought condition.
i Whenever combined water storage cond'itions in the three reservoirs decline to drought warning or drought levels, as shown on the operation curves (page four), the augmented conservation releases should be reduced to the basic rate in effect prior to 1977 for each reservoir, except that larger volumes of water would be released during those s
periods when the River Master is directing releases to meet the Montague flow objectives.
This reduction would be for the purpose of conserving available water in the reservoirs.
Conservation releases should be returned to normal aug=ented levels when combined storage in the three reservoirs reaches 25 billion gallons above the drought warning level, as shown on the operation f,
curves (page four), and remains at or above that level for 15 consecutive days.
Increases in the augmented conservation release levels should be made q
only in accordance with the allcwances provided for in the Stipulation a
of Discontinuance in The City of New York vs. The State of New York d
Depart =ent of Environmental Conservation, Index No. 5840-80, and h
should be subject to approval by the Commission.
E' t.
SECTION VII ENFORCEMENT 1.
The Parties consider this agreement to be a whole.
Each recemmendation and provision of this agreement is considered material to the entire agreement, and failure to i=plement or adhere to any reco=mendation or provision may be considered a material breach.
2.
Each of the Parties pledges to support implementation of all provisions of this agreement, and covenants that its officers and agencies will not hinder, impair, or prevent any other Party carrying out any provision or reccamandation of this agreement. - -
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3.
In the event that any Party is substantially hindered or prevented fro =
l perfor=ing an'f obligation or i=plementing any prevision under this agree =ent,
,f by reasons of circumstances beyond the control of the Party (including Acts of
}
God, natural disasters, labor disputes, judicial decrees, cr legislative
(
action of Congress), the Parties agree to meet and negotiate an appropriate modification of the applienble provisiens of the agreement to reflect the effect of such force majeure.
Such modifications may include extensions of applicable schedules and timetables, or agree =ents on substitute actions to fulfill the cLjectives and spirit of this agreement.
s.
Desiring that this agree =ent be carried out in full, the Parties agree that disputes between the Parties regarding interpretation, application, and implementation of this agreement shall be settled, to the =axi=cs extent possible, l
by negotiation and mediation.
a a.
If cny Party believes another Party has violated or failed to carry out any provision of this agree =ent, it shall notify such Party, and all other Parties, in writing, specifying the alleged violation or failure.
i l
b.
Any Party alleged to have violated or lailed to carry out any provision of this agreement (encept for a prevision relating to drought operations and construction actions) shall have 120 days from the receipt of notice as provided in paragraph (a) to correc't such violation or failure.
This period =ay be extended by the agreement of the Psrties.
c.
Within 30 days of notice provided under paragraph (a), all Parties will meet to discuss the alleged violation or failure, and to negotiate an appropriate settlement, including actions to correct such violation or failure.
Such discussions and negotiations shall be pursued in good faith for not less than 120 days after original notice.
d.
If the Parties are unable to reach agree =ent on a settlement, after good faith discussions and negotiations within the period provided in
]
paragraph (c), any aggrieved Party may seek enforce =ent of this agreement as may'be available at law or equity.
l l
3.
The Parties agree that perfor=ance of the obligation and imple:entation of the provisions contained in this agreement are necessary to the protection of the health, safety and general welf art of their respective citizens.
Accordingly, the Parties agree that, to the maxi =vs extent provided by law, any breach of the obligations or provisions of this agree =ent may be subject to l
specific enforcement at equity, or through appropriate proceedings before the l
Co= mission.
l l
l SECIION VIII l
l PERIODIC REVIEW 1
The Parties agree that water manage =ent in the Delaware River Basin requires continuing cooperation by the Parties and continued long-term planning studies
. 1 l
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by the Commission. The Parties, in consultation with the Ccemission, will period-ically review this agreement, and recommend such adjustments or nodifications as say be required to respond to changing conditions.
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STATE OF DELAWARE t
l The State of Delaware hereby approves the recommendations t
of the Parties to the U.S. Suprene Court Decree of 1954 herein submitted to the Delaware River Basin Connaission pursuant to Conunission Rasolution No. 78-20.
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Signat te Gover:for I
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I STATEDFNE4 JERSEY The State of New Jersey hereby approves the recommendations of the Parties to the U.S. Supreme Court Decree of 1954 herein submitted to the Delaware River Basin Commissicn pursuant to Comission Resolution No. 78-20.
Dirk C. Fofman, P.E.
" Good Faith" Delegate Approved as to fann:
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Irwin I. Kicmelman Rooert E. Hugney, Ccf.1.fssioder Attorney General Dept. of EnvironmenM Protsetion 44 Thomas H. Xean l
Governor DATE:
/
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w STATE OF NEW YORK u
The State of New York hereby approves the recommendations of the Perties to the U.S. Supreme Court Decree of 1954 herein submitted to the Delaware River Basin Commission pursuant to Commission Resolution No. 78-20.
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f CCMMOFJ.ALTH OF PENNSTLVANIA The Commonwealth of Pennsylvania hereby cpproves the
=Aacions of the Parties to the U.S. Supreme Court Decree rec-of 1954 herein submitted to the D~ lr. ware River Basin Commission e
pursuant to Comission Resolution No. 78-20..
/
Date: Januarv 4, 1983 g
f Dick Thornbur f Governor f
l Approved as to form and legality:
MA Off6.ca of Generaf Couhsel[
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@MEe of AttorneWeneral l
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r-v CITT OF STJ YORK The City of New York. hereby approves *he reco=mendations of the Parties to the U.S. Supreme Court Decree of 1954 herein submitted to the Delavare River Basin Commission pursuant to Commission Resolution No. 78-20.
L L
m APPROYED AS 1Q F.ORM 1a--
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Acung Corporsaan Counset /
APPENDICES.
COMPREHENSIVE PLG DESCRIPTIONS
APPENDIX A e
l Proposed Revised Comprehensive Plan Description of Francis E. Walter Project Description The Francis E. Walter project, c:mpleted in 1961 as a single-purpose flood control project (with incidental rucreation use), will be = edified for =ultiple-purpose development to provide supplies of water and recreational use, as well as the presently authorited flood control.
The earth and rock ffil das is located on the Lehigh River 77 miles above its confluence with the Delaware River and about 5 miles north of White haven, Pennsylvania. At this location the das controls 288 square miles of drainage area.
The modifications to the existing dam, as originally proposed by the Corps of Engineers to =ake it serviceable for long-ter= storage in addition to the present flood control storage involve:
(1)
Moving and raising the spillway crest.
(2)
Raising the dam.
(3)
Adding a concrete conduit to the downstream end of the outlet tunnel.
(4)
Constructing new dikes and raising existing dikes north of the da=.
(5)
Clearing of reservoir land and relocating roads subject to inundation.
The modified dam will rise about 263 feet above the stream bed and have a lengeb of about 3,500 feet.
The spillway will be raised 31 feet and cut through rock to the north of the dam, and farther north a dike will fill a swale in the reservoir rim.
Multi-level outlet works will be provided in the new project.
The reservoir for long-term storage of 69,500 acre-feet of water would have a =axi=um depth of about 185 feet and would extend about 7.0 miles up the Lehigh River and about 4.0 miles up Sear Creek from the dam.
Modification of this reservoir will necessitate the purchase of land to be inundated on which flood easements have already been taken and require the acquisition of additional flood easements a: high elevations.
No economically valuable mineral deposits would be flooded.
Relocation of about five miles of Bear Creek Road would be required.
l Functions l
l Supplies of Water.
The modified project will aug=ent the flow of the Delaware River at Trenton by 290 cfs on the basis of complete and uniform drawdown of flow aug=entation ctorage (69,500 acre-feet) over a 120-day period.
Reduction of Flood Damages.
Tne 108,000 acre-feet of existing short-ters storage is effective in alleviating ficoding in the upper reach of the Lehigh River, where da= age is confined, primarily, to the Towns of Jim Thorpe, Lehighton, Weissport, Parryville, Pal =arton, and Bowmanstown, Pennsylvania.
Damage centers in the reach I
from Lehigh Gap to Allentown, Pennsylvania, include industrial and residential areas located ir the vicinity of the towns of Northampton, Hokendauqua, Catasauqua, i
j Allentown, Bethlehem, Freemansburg and Easton, Pennsylvania.
The flood control l
storage will be preserved as previously authorited, and flood reduction benefits will be unaffected by the modifications.
m-Recreation.
The sodified Francis E. Walter project will provide for public ownership of the desirable shore area and provide space for development of recreatica sites.
Oper3 tion of the project will consider the downstream flow tequirements for stream fisheries and the management of the i= pound =ent for lake fisheries.
Schedule Modification of the existing Francis E. t411ter project is targeted for completion by December 31, 1990.
I s
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A??ENDIX 3 e
Proposed Revised Comprehensive Plan Description of Pro =pton Proj ect Description The Prempton project, a single-purpose flood control project (with incidental recreation use) coepleted in 1960, will be =odified for =ultiple-purpose use to provide supplies of water and recreation benefits as well as the presently designed flood control function.
The Prompton dan is located in the valley of the Lackawaxen River about one-half mila upstream of the confluence of Waymart 3 ranch with the river, and about four ciles west of Honesdale, Pennsylvania.
The present dam controls 60 square miles of drainage area, and is 1,300 feet long and 140 feet high.
The long-term storage and operation for multiple-purposes will require the following additions or modifications to the existing structures:
(1) A control tower with gates to control releases frem the reservoir and a service bridge.
(2)
A blanket of i= pervious material on the valley wall and floor upstream of the dam.
(3) Widening of the spillway.
(4)
Clearing of reservoir land and relocating roads subject to inundation.
The reservoir to be created by long-ters storage will extend about 4.4 =iles upstream of the dam.
Functions Supplies of Uater.
The modified project will augment the flow of the Delaware River at Trenton by 130 cfs on the basis of complete and uniform drawdown of flow augmentation secrage (30,900 acre-feet) over a 120-day period.
Redaction of Flood Damage.
Flood heights on the Lackawaxen River are sub-stantially reduced by the existing flood control storage of the Prompton project and the Edgar Jadwin dam and reservoir on Dyberry Creek, above Honesdale, Pennsylvania.
The towns of Honesdale, located at the confluence of Dyberry Creek with the Lackawaxen River, and Hawley, located between the junctions of Middle Creek and Wallenpaupack Creek with the Lackawaxen River, and several villages and townships located on l
the lower reaches of the Lackawaxen River are protected.
Conversion of the Prompton dam and reservoir to a multiple-purpose development will preserve the flood control function of this project as originally authorized, and flood reduction benefits will be unaffected by the proposed modification.
l Recreation.
Due to the lack of suitable terrain, recreation potential at this project is limited.
However, lands suitable for day-use recreation may be included in the plan of improvement.
Operation of the project will consider the downstrea=
l flow requirements for stream fisheries and the management of the impound =ent I
for lake fisheries as a coordinated element for full realization of the recreational potential of the project.
l !
.Operating Policy Relenses from the project shall be coordinated with releases from the New York City reservoirs and accounted for at the Montague gaging station in accordance with the following policy:
(1)
When New York City is releasing from its reservoirs by direction of the River Master to meet Montague flow objectives--
(c) inflow to Prompton may be passed through the reservoir and released downstream with no change in the Montague flow objective, or stored in the reservoir with an equivalent reduction in the Montague flow objective; (b) releases say be made from Prompton storage to meet Trenton flow requirements, and such releases will not be counted as part of the Montague objective.
(2)
When New York City is not releasing from its reservoirs to meet Montague flow objectives--
(a) inflow at Prompton say be stored (except f or =ini=us conservation releases);
(b) releases may be made from Prompton storage to =eet Trenton flow requirements, and such releases will not be countcd as part of the Montague objective.
Schedule Modification of the existing Prompton project is targeted for completion by December 31, 1995.
~ 18-
l APP CDIX C I
t I
Proposed Ccmprehensive Plan l
Description of Merrin Creek Project I.oCation Merrill Creek Rosarvoir would be located on a tributary of Pohatcong Creek in Harmony Township, Warren County, New Jersey.
The site, which includes an existing small dam and resarioir, is approximacaly 5.2 miles east-northeast of Phillipsburg, New Jersey. Merrill Creek begins on a small plateau about 1,200 feet above sea level sema 3 miles east of the Delaware River.
It flows in a southerly direction through a valley to a small existing reservoir.
The channel narrows considerably below the existing reservoir and passes through a gap in Scotts Mountain about one =ile long. Merrill Creek then enters the Pohatcong Valley and joins Pohatcong Creek four miles south of the existing dam.
The stream north of the existing reservoir is 4.3 niles in length and has a crainage area of 3.1 square miles.
L To creat'a Merrill Creek Reservoir, a dam would be constructed in the Scotts I
Mountain gap just downstream of the existing dam.
The drainage area above the new dam would be 3.2 square miles.
l.
Functions r
The primary function of the Merrill Creek project would be to replace water that is consumptively used by electric generating stations in the Basin, as required by the Commission.
During severe drought periods, releases to the Delaware River would be made for this purpose. The project would also provide incidental recreation benefits, and a recreation area is planned for the northeast side of the reservoir.
Floodwaters from the upper 3.2 square miles of the Merrill Creek drainage area would be contained in the reservoir.
Flood peaks at the Route 57 crossing of Merrill Creek would be reduced by 70 percent, and at the Strawchurch Road crossing by 30 percent.
Description The project layout is based on facilities necessary to obtain reservoir storage required for a yield of 200 cfs during critical drought periods, and provide for safe operation of the project under all condir. ions.
The layout includes the main dam, saddle dikes, relief spillway, and construction of diversion and conservation outlets.
As natural runoff from Merrill Creek is inadequate to refill the reae
- tr (drainage area 3.2 square miles), a tunnel / pipeline, an inlet / outlet tower, a one-way surge tank and a punphouse at the Delaware River are provided to insure filling under all hydrologic conditions.
The resarioir is to be formed by placing a compacted earth and rock-fill dam across the Scotts Mountain gap. The maximum height of the main dam is approximately 260 feet. The embankment is approximately 2,450 feet in length along the crest.
The width at the crest 1., 30 feet.
Three saddle dikes, two on the northwest side and one on the southemat side, are needed to seal off low areas along the reservoir rim.......
The protable maximum flood (PMF) can be stored in the reservoir shova cicvetion 923.0 above mean sea level, the design operating level.
In the unlikely event of additional inflow into the reservoir and that discharge through the tunnel / pipeline cannot be imple=ented, a relief spillway excavated in rock is to be provided to release excess water to Lopaccong Creek.
The relief spillway will have a length of approximately 400 feet along the crest at elevation 929.0 on the reservoir upstrea=
side, sloping down to elevation 923.0, a distance of 600 feet to the downstream end.
The inlet / outlet cover, having a hoist house at the top, is to be constructed at the upper end of the tunnel / pipeline running between the reservoir and the Delaware River to house piping, valves, and necessary equipment to ad=it and release required flows.
This reinforced concrete sloping structure is to be located along the northwest rim of the reservoir near Northwest Saddle Dike 1, so=e 5,000 feet upstream of the main dam.
This location will mini =1:e the length of required tunnel through Scotts Mountain, which connects the tower to the pipeline.
The inlet / outlet tower will be approximately 300 feet long and will contain cultiple inlet / outlet ports.
Each port will be at a different level so that water can be released from that reservoir level at which water te=perature and quality =cet nearly match that of the Delaware River.
The hoist house is to contain all necessary controls for operation of the valves, other ancillary equipment, and water quality
=onitoring devices.
The inlet / outlet tower will be urmannec except for =aintenance purposes, but will be provided with a security system.
The existing Merrill Creek channel has insufficient capacity to carry all the released flows to the Delaware River.
Therefore, a separate conduit is required to carry water between the reservoir and the river.
Since a pipeline is also needed to carry the water pumped from the river to the reservoir, a single conduit to serve both purposes is provided.
The inlet / outlet tower is to be connected to the pu=phouse by approxi=stely 17,000 feet of pipeline, 1,400 feet of which will be installed in a tunnel.
The tunnel will have a finished dimension of 96 inches.
The pipe will have a diameter of 57 inches, and except in the tunnel, will be buried a sini=us of six feet belev the ground surface. The conduit is sized to carry the design pu= ping rate of 145 cis to the reservoir and 200 cfs flow from the reservoir back to the river.
A one-way surge tank will be installed along the pipeline route to prevent water colu=n separation in the pipeline following motor-pump failure.
A pu=phouse to enclose equip =ent needed to refill the reservoir will be located on the Delaware River (R.M.192) near Keifer Island.
The equipment will have the capacity, utill:1ng two pumps, to transmit water at the design pu= ping race of 145 cfs from the river to Merrill Creek reservoir.
Three pu=ps with electric motors will be provided, one as a stand-by.
Each pump is equipped with shut-off and l
control valves.
The pumphouse will have an ice barrier and fixed screens to prevent ice, fish and debris from entering the pump well.
Adjacent to the pump chambers, energy dissipator chambers will be in operation during the release of water from the reservoir to the river.
The manifold at the end of the water conduit is provided with two sleeve valves, which will control discharge of water to energy dissipating su=ps.
The su=ps, in turn, release the water to the river through overflow weirs..
afth Relocat o eil be oo he p pc 1 e o r.
Existing public access to the area will be maintained to the greatest extent feasible. The secondary road through the valley from Route 57 may be terminated near the dam site.
Secondary roads from Phillipsburg and Harmony may I
be connected by a new secondary road along the west ridge of the reservoir.
I Relocation and termination of these roads will be subject to review and approval of local officials.
Schedule The Merrill Creek project is targeted for completion by December 31, 1986.
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APPENDIX D f'
Proposed Revised Comprehensive Plan Description of Cannonsv111e Project Cannonsv111e reservoir, part of the water supply system of the City of New York, is located on the East Branch of the Delaware River in Delaware County, New York, about four miles upstream of the Village of Deposit.
It was financed and II constructed by the City of New York and placed in operation in 1967.
I Cannonsv111e dam is approximately 2,800 feet long (at the top) with a =a i=um height of about 175 feet above the original river channel.
It has a top width of about 45 feet and is of the compacted (rolled) earth type.
At its northerly contact with the vallsy wall there is a spillway.
Spillage is directed into a channel, through a stilling basin, and into an outlet channel that guides the flow into the West Branch of the Delaware River.
Cannonsv111e reservoir covers roughly 4,800 acres at flow line elevation 1150 feet above mean sea level with a capacity above sill elevation 1027.5 of some 97 billion gallons, and impounds the runoff from a watershed of about 450 square milas.
The yield therefrom is used for supplying water to the City of New York, for con-servation releases to the West Branch Delaware River, and, together with releases obtainable from the Neversink and Pepacton reservoirs, for =eeting the Montague formula of the Supreme Court Decree of 1954.
I Cannonsville reservoir will be investigated for modification to increase the
{
storage as described generally in a report of the Temporary Commission on the Water Supply Needs of Southeastern New York (Dec. 15, 1973).
The reservoir level would be increased by the installation of gates in the existing spillway, if determined practicable by feasibility and environmental impact studies, which should be completed at the earliest possible date.
Subj ect to the outcome of these studies construction should be completed by December 31, 1990.
Modification of Cannonsv111e would add approximately 13 billion gallons of additional storage capacity. Additional project yield would be used primarily to maintain conservation releases.
Secondary purposes would be to support Montague flow objectives and diversions to New York City within the limits of the 1954 U.S.
Supreme Court Decree.
?
t APPINDII E e
Proposed Revised Comprehensive Plan Description of Tocks Island j
Description i
The Tocks Island project would be for multiple-purpose development to provide water supplies, flood control, electric power, and recreation.
The da= site is on i
f the Delaware River about five miles upstream from the Delaware Water Gap, at the upstream and of Tocks Island.
The contributing drainage area is 2,912 square miles, cxclusive of 915 square miles that contribute to the Neversink, Pepacton, and Cannonsville reservoirs of the City of New York.
The dam would contain about three and one-half million cubic yards of earth and rock, would be 3,000 feet long, and would rise 160 feet above the river bed to elevation 455.
Consideration would be given to the development of hydroelectric power including pu= ped storage.
Storage allocationr, as determined from studies by the Corps of Engineers, indicate 96,300 aare-feet of inactive long-term storage to elevation 356; 425,600 acre-feet of active long-term storage for supplies of water, power, recreation, and other uses to elevation 410; and 323,500 acre-feet of short-term storage for flood control to elevation 432.
The reservoir would extend approxi=acely nine miles up Flat Brook and 37 miles up the Delaware River to Port Jervis, New York.
It would necessitate the relocation of affected roads and Delaware Water Gap National Recreation Area facilities.
The Town of Matamoras, Pennsylvania, at the upper end of the reservoir would be protected by a dike.
The 37-mile section of the Delaware River that would be covered by the reservoir is a component 9f the National Wild and Scenic Rivers System.
Functions Supplies of Water.
Use of 425,600 acre-feet of active long-term storage at Tocks Island project would augment the flow of the Delaware River at Trenton by 1790 cfs on the basis of complete and uniform drawdown of flow augmentation storage over a 120-day period.
Net yield at the site on a year-round basis would be about 980 cfs.
Reduction of Flood Damage.
The 1955 flood damages in the reach from Tocks Island to Burlington, New Jersey, exceeded 85 percent of the total damages for the
=ainstem of the Delaware River, and occurred principally at the derage centers of Easton, Reigelsville, New Hope, and Yardley, Pennsylvania; and Belvidere, Phillipsburg, Trenton, and Burlington, New Jersey.
Damages in this reach would be substantially reduced by system operation of the flood-control storage at Tocks Island with other prcjects in the Comprehensive Plan; the stage of the 1955 flood at Trenton would be reduced by six feet.
Power.
The Tocks Island project was originally considered for a conventional hydropower installation of 46,000 kilowatts, a dependable capacity of 20,000 kilo-watts, and an average production of 281.5 million kilowatt-hours.
Reevaluation of conventional and pumped-storage power schemes resulted in deletion of the conven-tional hydropower installation frem the Comprehensive Plan.
In light of current and future uncertainties regarding energy supplies, a full reevaluation of power would be called for when the project is reconsidered after the year 2000.
l i :
1
l Recreation.
Recreation capacity and facilities of the existing Delaware i
Unter Gap National Recreation Area, developed under P.L.89-138, would be altered to an extent to be determined by future studies.
Reservoir operation would con-sider fisheries within the i=poundment and downstream of the dam.
Passage for anadromous fisheries would be provided and consideration given to additional flow cugmentation from this project in October and November for moving fish population through the zone of low dissolved oxygen in the estuary.
Schedule The Tocks Island project is placed in reserve for development if needed for wcter supply after the year 2000.
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+J APPENDIX F D
DRAFT i
DOCKET No. D-77-20 CP (REVISED)
DELAWARE RIVER 3ASIN CCFDiISSION MODIFICATION TO THE FFT FME SCHEDULES FROM CANNONSVIT T 7, PEPACTON, AND NEVERSINK RESERVOIRS t
DELAWARE AND SULLIVAN COUNTIES, NEW YORK Proceedings The New York State Department of Envirers: ental Conservation (NYDEC) adopted regulations in 1977 to modify the schedule cf conservation releases from Cannonsv111e, Pepacton, and Neversink Reservoirs.
The regulations provided for the new schedule of releases to be tried on a limited experimental basis.
The Delaware River Basin Commission (DRSC) approved the e; peri = ental release program on May 25, 1977, by Docket decision D-77-20 and extended that approval through May 31, 1983, by Resolution 82-7.
Docket decision D-77-20 also directed the parties to the 1954 Decree to develop criteria defining the onset and stages of drought (mergencies.
NYDEC proposes to amend the experi= ental regulations by removing the auto-
=atic termination date, deleting the relationship to the " excess quantity" as established by the U.S. Supreme Court Decree (347 U.S. 995 (1954)) and limiting releases according to a reservoir storage curve in time of drought warning and drought.
Research findings and comments from fisher =en and recreationists indicate that the program has had a beneficial effect.
The DREC held a hearing on May 28, 1980, on the amended release regulations and a proposal that the Commission's approval of the schedule of aug=ented releases be cade permanent.
Reservoir Release Program A.
New Conservation Releases In place of the previous New York City schedule of conservation releases, a new conservation release schedule on a year-round basis has been tried as an experi= ental program and is proposed to be continued on a per=anent basis.
Under this schedule, the minimum releases from Cannonsv111e, Pepacton, and NeversirJc Reservoirs will be as follows:
April 1 - June 14 June 15 -
Nov. 1 -
Aug. 16 - Oct. 31 Aug. 15 March 31 Neversink 45 cfs*
45 efs 25 cfs Papacton 70 70 50 Cannonsv111e 45 325 33 160 cfs 440 cfs 108 cfs
- cubic feet per second.-
6 Th:so total conssrvation releasca brack down as follows:
TABLE 1 Column 1 Colu=n 2 Colu=n 3 Proposed Basic Augmented Total New Reservoir and Conservation Conserration Conservation Operative Dates Release
+
Release Release
=
Neversink 4/1 4/7 5 cis 40 cfs 45 efs
)
4/8 - 10/31 15 30 45 11/1 3/31 5
20 25 Pepacton 4/1 4/7 6
64 70 4/8 - 10/31 19 51 70 11/1 3/31 6
44 50 Cannonsville 4/1 4/ 15 8
37 45 4/16 - 6/14 23 22 45 6/15 - 8/ 15 23 302 325 8/16 - 10/31 23 22 45 11/1 - 11/30 23 10 33 12/1 3/31 8
25 33 3.
Basic Montague Release Atallti=es,NewYorkCitywculdberequiredto=akesuchrelasesasdirecteh by the River Master designed to maintain a minimum basic flow of 1750 cfs at the Montague gaging station, or the excess release rate during the seasonal period, as already required by the Decree.
C.
Special Thermal Stress Releases Special relases may be made from one or = ore of the reservoirs in order to relieve thermal stress conditions which pose a threat to fisheries.
The total volume of such releases shall not exceed 6,000 cis-days from all reservoirs.
Ther:a1 releases, with a one-day lead time, would be made whenever the maximum water ta=peraturg in designated downstream areas as determined from measure =ents at Callicoon, Harvard, Woodbourne, or Hale Eddy is proj ected to exceed a maximum of 75*?, or a 72*? daily average.
If the 6,000 cfs-days reserve is not used by October 31 of any year it will not be used thereaf ter.
No releases for relieving thermal stress would be required from November 1 to April 30 of any year.
Releases for purposes of relieving thermal stress shall be at the direction of NYDEC.
.=
D D.
Drought Wcrning and Drought Conditions The augmented conservation release will be reduced to the basic conservation release (shown in Table 1) during drought warning and drought periods as defined by the attached reservoir storage curves marked " Operation Curves for Cannonsville, Pepacton, and Neversink Reservoirs" (page 29) except that when the Delaware River Master directs releases according to the provisions in the 1954 U.S. Supreme Court Decree, New York City shall make such releases from Cannonsv111e, Pepacton, and Neversink Reservoirs as are necessary and sufficient to =aintain the constant minimum flows specified in "A" above on the West Branch Delaware River, East 3 ranch Delaware River, and the Neversink River, and provided that the total amount of water released from the three reservoirs does not exceed the snount directed by the Delaware River Master.
If the amount of directed releases by the River Master is not sufficient to maintain the augmented releases from all three reservoirs, the releases from cach reservoir will be determined at the discretion of NYDEC and New York City --
Department of Environmental Protection (NYC - DEP).
Conservation releases shall be returned to nor=al aug=ented levels following a drought.
Return to normal augmented levels shall not be made unless and until combined storage in the three reservoirs reaches 25 billion gallons above the drought warning level, as shown by the attached reservoir storage curves (page 29), and remains at or above that level for 15 consecutive days.
Findings The NYDEC's Amended Part 671 Regulations entitled, Reservoir helease Regulations:
Cannonsville, Pecacto,u and Neversink Reservoirs adopted May 2,1980, are consistent with this proposed action.
The Monitoring and Evaluation Program during the experi= ental reservoir release period has been reported in two performance reports by NYDEC.
One for the year July 1 1977, through June 30, 1978, and a second for the July 1, 1978 through December 31, 19.9 period.
These evaluations indicate that the conservation release program has been very effective and beneficial and should be continued.
The report includes an estinate that an additional 52,500 -- 65,500 angler-trips annually could result from the release program.
The economic value of these additional angler trips could range from S1,650,000 to $2,066,000 annually.
The project does not conflict with nor adversely affect the Comprehensive Plan.
It provides beneficial use of the water resources and does not adversely influence the present or future use and development of the water resources of the 3asin.
Decision I.
The project, as described above, with modifications specified hereinafter, is hereby added to the Comprehensive Plan.
II.
The project is approved pursuant to Section 3.8 of the compact, subject to the following conditions:
a.
Approval is subject to all conditions imposed by NYDEC..
b.
Monthly summaries of reservoir operations submitted by NYC-DE? to NYDEC shall also be submitted to the DR3C.
Detailed operational records of each reservoir, =aintained by both c.
the City and State Reservoir Release Managers, shall be available to the DR3C upon request.
d.
The provisions of the reservoir release program approved herein shall not be applicable to any action taken by NYC-DEP or NYDEC with regard to the operation of the Cannonsville, Pepacton, or Neverzink Reservoirs in any emergency situation where there is a threat to the continued existance or safe operation of the dams or tunnels or to any appurtenant structures or to the public health or safety.
Any emergency action shall continue only for such time as is necessary to avert the threat and is subject to the approval of the Executive Director of the DR3C.
Increases in the augmented conservation release levels nay not be e.
made except in accordance with the allowances provided for in the Stipulation of Discontinuance in The City of New York vs. The State of New York Decart=ent of Environmental Conservation, Index No. 5840-80, and shall be subject to approval by the DRSC.
f.
Releases under emertency conditions.
The Commission retains its power under Section 3.3(a) and Article 10 of the Compact to declare a drought emergency af ter consultation with the River Master, in order to conserve the waters in the Delaware River and its tributaries and in the reservoirs of the Upper Delaware River Basin, in order to protect water supply, health, and safety of the residents of the Delaware River Basin and its service ares.
The River Master retains all of his powers under the Decree including the powers under Article VII, 3.1 of the 1954 Decree to conserve the waters in the river, its tributaries, and in reservoirs owned by the City of New York, or in reservoirs developed by other parties to the Decree after 1954.
SY THE COMMISSION DATED:
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RESOLUTION NO. 78-20
+
BE IT RESOLVED by the Delaware River Basin Commission:
1.
The Co= mission invites each of the parties to the 1954 Supreme Cour: Decree in their individual capacities to enter into i
serious good faith discussions to establish the arrangements, pro-cedures, and criteria for management of the waters of the Delaware Basin consistent with the Compact.
The Commission also invites the participation or assist-ance of the United States to the extent it shall be recuested by the parties.
2.
To assis: the parties, the Commission staff shall provide technical information as requested by the parties.
3.
The Commission urges the parties to undertake these dis-cussions promptly with the view of concluding by October 1,1979, unless extended by the agreement of the parties.
A the conclusion of the discussions, the Commission invites the parties to submit any agreement reached to the Commission for approval pursuant to the Compact.
4 The Commission requests the chief executive and legal officers of the respective parties to the 1954 Decree to exchange letters agreeing to enter into good faith discussions consistent with this Resolution by December 31, 1973.
5.
Each of the parties participating in these discussions preserves any rights, claims or defenses which exist as of the date of this Resolution.
This Resolution shall not be deemed an action which shall alter, i= pair, diminish or adversely affect the rights, powers, privileges, conditions or obligations contained in the Compact or 1954 Decree.
k c7 j p - - -
Sherman W. Tribbitt, Chairman yo tem
/
N th' W.
Brinton Whitall, Secretary ADOPTED:
December 13, 1978.