States and New York City fight to get Delaware River ‘just right’

WATER IS TRICKY. Too much, it's a flood. Too little and there's a drought. When it's just right, it's invisible.

There's a huge machinery in operation to help us not notice the Delaware River, to make it "just right" for the millions of people who rely on it for drinking water; for the many people who've suffered from its floods; for the fish whose presence we look for to see how healthy the river is as well as for the businesses and municipalities that base a big chunk of their economic fortunes on the tourist trade that is vital to their survival.

That machinery is complicated, bureaucratic, almost impenetrable, and essential.

Four states and New York City have "dibs" on these waters since, for four of them, the Delaware's waters wash up on their land. And New York City? That's nowhere near the river, right? Yes, but NYC is one of the important players since it uses the waters of the Delaware in its earliest stages to quench the thirst of city users and other municipalities that tap into its supply.

How much water and when is at the core of any number of disagreements that these five parties have had over the years especially since New York City built its most recent set of reservoirs to hold onto Delaware River waters.

Since the arguments were among states, the case went directly to the U.S. Supreme Court and that court made a decree in 1954 that allocated the water stipulating a certain flow of the river below those reservoirs. This flow was to be measured at Montague, N.J., and monitoring that flow is the job of the Delaware River Master, based in Milford, Pa. Releases from the reservoirs were to be made to keep that flow at a certain minimum.

Ever since that decree, there have been changes and modifications agreed to by the decree parties in response to drought or flood conditions as well as modifications to support the habitats of the river. Also, there have been changes that recognize that the flow of water downstream needs to be strong enough to hold back the ocean's power to push salt water further upstream, endangering the drinking water of millions.

The Delaware River Basin Commission is the tactical agent on the ground created by the decree parties in 1961 to monitor how much water there is, and how it's used. The DRBC has guided decisions about water use and this coming Tuesday, April 5, it will host one of many committee meetings that advise the decision-makers about possible changes to previous agreements.

The Regulated Flow Advisory Committee is made up of representatives of those four states, New York City and another party, the U.S. Army Corps of Engineers. New York City does not serve on the governing board of the DRBC. The Corps of Engineers does, it represents the federal government. Any decision of the DRBC board has to be unanimous. And big decisions, such as how much water there is/should be in the river, get kicked upstairs to the decree parties themselves, which then includes New York City.

Most often, the changes are made by the decree parties behind closed doors. Negotiations are not usually public. New Jersey has re-written that custom. It has publicly stated its strong opposition to "business as usual," and insisted that there is a different way to allocate water resources that would be fairer, not just to New Jersey, but also to the two other states.

At issue here, among others, is the question of whether the other decree parties have the "right" to look at the whole New York City reservoir system or just the reservoirs that are part of the Delaware River system. The model devised by New Jersey attempts to "crack the code" of the whole system. At the last RFAC meeting, that attempt was rejected by New York as outside the scope of what has been either decreed by the Supreme Court or re-negotiated in subsequent years.

"We had hoped our plan would help negotiations with the other decree parties," said Dan Kennedy, assistant commissioner for water resources, for the New Jersey Department of Environmental Protection.

He explained that New York City has only offered the "output" of its data about the water supply and never really shared how it reached those conclusions, adding: "After years of asking we did our own (model), based on up-to-date modeling tools." He said that NYC's model is still rooted in the 80's both in its scientific tools and in its assumptions about the water.

Kennedy said that New Jersey wanted to share this data with the public and that the public had a right to know what water there is in the system.

Paul Rush, deputy commissioner of New York City's Bureau of Water Supply, argued that the complexity of the system as well as security concerns makes New York City reluctant to share its data. He rejected the claim that its modeling and its view of the water system is outdated and pointed out that New York City has been open to re-negotiations over the years that have benefited the fishing community in the Upper Delaware as well as addressing issues of flooding and of maintaining the salt line.

He pointed out that New York's approach of flexibility and re-negotiating is the best way to make sure that all the water in the Delaware system is used either to supply drinking water to its customers, or to supply the various needs downstream of the reservoirs. He noted the cold water releases that benefit the fishing community, and the attention that is paid to the force of fresh water pushing against the salt water.

Rush also pointed out that the water New Jersey takes from the Delaware River via the Delaware and Raritan Canal is a constant, without regard to other inputs available from its own water reservoirs. And that, if there is excess water, this Delaware River water can end up in the Raritan River and make its way to the ocean.

He said that a system of re-negotiating allows for fine-tuning the system as needs arise and change.

Kennedy, from New Jersey, is frustrated by the lack of openness, does not want to continue making small changes when a complete overhaul is, in his state's opinion, called for.

So, this Regulated Flow Advisory Committee meeting is where the King Kong of New York tussles with the Godzilla of New Jersey.

Or not. Since they can sort it out behind closed doors any time before the meeting.

Then we have other interested parties who need to figure out how not to get stepped on as the battle is joined.

People who are worried about flooding, like Diane Tharp, who is the executive director of the North Delaware River Watershed Conservancy. Or people who are worried about the biodiversity of the Delaware River, like Maya von Rossum, the Delaware Riverkeeper, or Jeff Skelding, the executive director of the Friends of the Upper Delaware River, who represents the people who want a healthy trout fishery that brings significant dollars in tourism to businesses and towns in New York and Pennsylvania.

Their needs are also complicated. Trout thrive where the water runs cold and plentifully. That could pose a problem if you empty those reservoirs too much (for flood prevention) and then there's a lack of rain and a drought ensues.

Flooding is a serious issue and Tharp would like to see a constant "void" in the reservoirs, which would mean that the reservoirs are never full but that they could therefore absorb a heavy rainfall and not cause a rush of water downstream. But that, again, means New York City would have less water on hand.

There are other major players: Pennsylvania and Delaware. They would stand to gain from New Jersey's plan. But they've been quiet during all the fuss. They could be much less quiet during those off-stage negotiations.

One more thing: One of the ways the decree parties have organized the flow to suit changing conditions, without going back to lawsuits and the Supreme Court, is to develop what is called the Flexible Flow Management Program. It was first instituted in 2007 through 2012 and re-upped every year. This year's agreement expires on May 31, 2016.

Kennedy said that if there is no support for New Jersey's new approach, the FFMP would fall apart and the apportionment of water would fall back to the 80's system, which would likely fall hardest on the people, organizations and businesses of the Upper Delaware.

Rush said he is optimistic that something will be negotiated before then. And the River Master, Robert R. Mason, agreed, though he also said if there is nothing in place, "the general expectation is that the operational considerations for the reservoirs (timing and magnitude of flow releases) would revert to those specified by the revisions to the "Good Faith Agreement" that were agreed to by the Decree Party Principals and encoded into the DRBC Water Code in 1983."

The stage is set. The meeting is to be held at the Lake Wallenpaupack Environmental Learning Center, 126 PPL Drive, Hawley, Pa. It's unusual for the RFAC to meet so far north. It's a  measure of how agitated the parties are getting.

The meeting starts at 1 and is planned to end at 4 p.m. There's likely to be quite a crowd.