Political bickering could harm the fishing industry of the Upper Delaware

We might notice when the river is really low, or really high, but aside from being careful when we choose to go tubing or canoing, it doesn't make much difference, right? Wrong!

(But you already knew that!)

One of the industries that's based on the river is fishing, and the cold-water fishing in the Upper Delaware is key not just to the trout anglers that praise the area, but to the many businesses that rely on tourism to keep afloat. Though that part of the world is lovely, it doesn't have a ton of ways to make a solid living. Something to keep in mind as we enjoy the area up close, or when we enjoy the clean waters of the Delaware further away.

Anyway, that fishing relies on the cold water that comes from New York City's reservoirs. The cold water becomes vital for the fish (and the insects they feed on) as the weather warms up.

The water level is also important for the canoe and watercraft  businesses.

When the argument about the Delaware's waters reached the Supreme Court back in the '50s, it divvied up the waters – allocating some big piece of the pie (can water be a pie?) to quench the thirst of New York City. But it stipulated that a certain flow had to be maintained at a point in Montague, N.J. That was because there's a little city called Philadelphia whose water needs had to be suppled from the Delaware.

Over the years, the decree parties as they're called (New York, New Jersey, Pennsylvania, Delaware and New York City), have agreed on modifications to the original decree, which is allowed but only if the changes are agreed to unanimously. The Flexible Flow Management Program developed ways for the NYCDEP to release more water, when it (or the city to be more accurate) didn't need it.

There's a lot more detail. If you're interested, check this out.

Nearly all the stakeholders of these waters will agree – some only in private – that the water allocation should come in for a broad revamp, but it's New Jersey that has issued demands and  said it won't agree to a re-up of the FFMP unless that broad revamp takes place. And not just that – it wants certain points to be revised to its benefit.

So, the deadline of midnight May 31st looms, and to be frank, the decree parties may know what's happening, but most of those outside that circle are left to read inscrutable tea leaves. And people, especially those people who rely on those revisions, are getting nervous.

And not just upriver people. There have been devastating floods on the Delaware, and some believe that provisions in the FFMP to manage the reservoirs are vital in preventing future floods.

I'm concluding this article with verbatim copies of two opinions from people with knowledge of the Upper Delaware River and the FFMP. There's no mistaking their passion or insight.

Then, finally, if you're still awake and clearly are a water nerd, is an excerpt from New Jersey's long overdue Water Supply Plan, released just this month, where it specifically references New Jersey's concern about its water supply from the Delaware River during droughts.

Here's the Action Alert sent out by the Friends of the Upper Delaware River and its executive director Jeff Skelding, who clearly is getting to the end of his tether!

The headline reads: "Tell Decree Parties to Work Together to Protect the Delaware River! "


Upper Delaware River Wild Trout Fishery and Economy in Peril

Despite years of negotiation, the 1954 Decree Parties (NY, NJ, PA, DE, and NYC) appear to be no closer to a long term management plan (FFMP) for the NYC Delaware River basin reservoirs.

Unlike the past 5 years where the ongoing stalemate resulted in consecutive one year extensions of an unchanged plan, there's a new twist this year that puts the Upper Delaware River wild trout fishery and the recreational economy of the watershed in grave danger.

In February 2017, the state of New Jersey declared that it was not prepared to vote for another one year extension unless their demands for Delaware River water allocations are met. Since then, discussions have occurred between the Decree Parties but it appears as if the key negotiators are more interested in inflicting political pain upon one another than actually arriving at a real deal that satisfactorily meets everybody's water resource needs and protects the river.

At this late hour, it appears there are two possible outcomes:

1. a 6th straight one year extension of an unchanged plan

2. a reversion back to a 1980's reservoir management approach called "Revision 1"

Revision 1 would be a dangerous step backward for the Upper Delaware River and will trigger alarmingly low water releases from the reservoirs (45 cfs from Cannonsville/70 cfs from Pepacton) from June 1 through June 15.

This poses serious ecological threats to the river and will harm the economy of the Upper Delaware River at a critical time in the recreational season.

Who's to blame? All of the Decree Parties.

Bureaucratic bickering, overly rigidly parochial demands, and a "You don't get yours if I don't get mine" attitude has unnecessarily placed the Upper Delaware River watershed in ecological and economic peril.

We need you to take action!

Please call or email the Decree Party Member from your state NOW! Here's the message:

Work together to develop a reservoir management plan before June 1 that avoids Revision 1 and provides strong environmental and economic protections for the Upper Delaware River and the entire watershed.

1954 U.S. Supreme Court Decree Party Principals/Designees:

Paul Rush (NYC): prush@dep.nyc.gov, 845-334-7107

Mark Klotz (NY): mark.klotz@dec.ny.gov, 518-402-8233

Kelly Heffner (PA): kheffner@pa.gov, 717-783-2300

Dan Kennedy (NJ): dan.kennedy@dep.nj.gov, 609-292-4543

David Wunsch (DE): dwunsch@udel.edu, 302-831-8258

For the river,

Jeff Skelding, Executive Director



Here is an opinion column written by Peter Kolesar, who is a Columbia University professor emeritus and who participated in the development of the math behind the current FFMP. He gets pretty technical, but he does show the detail that these revisions demand.

With only a few weeks to go before the May 31 expiration of the Flexible Flow Management Plan (FFMP) that governs water releases from New York City’s three Delaware reservoirs, and with the threat by New Jersey not to extend the FFMP, we face a return to a water release regime that will have a devastating effect on the Upper Delaware’s wild trout fishery.

For example, on June 1, the conservation releases from the Cannonsville dam into the West Branch of the Delaware could drop from 500 to 45 cubic feet per second, which would de-water the river, imperiling both the fish and the aquatic insects on which they feed.

The crisis was precipitated by New Jersey’s statement of February 17 that unless the other parties to the 1954 Supreme Court decree that governs Delaware River water policy agreed to eight specific demands, New Jersey would exercise its veto on an extension of the FFMP. If this happens, water release policy will be governed by the destructive and archaic 1983 release rules, the so-called “Revision 1.”

Ironically, while New Jersey’s purpose is ostensibly to force New York City to reduce its water rights and increase its own, a return to the 1983 rules does not harm the city, but rather punishes the environment and economy of the Upper Delaware—and its innocent piscatorial bystanders.

The crisis is imminent for, as I write, every indication from highly placed officials is that the Decree Parties remain seriously stalemated, and Revision 1 will indeed go into effect on June 1.

But there is a way to protect the environment of the upper river, if only New York State Department of Environmental Conservation (NYS-DEC) and New York City Department of Environmental Protection (NYC-DEP) jointly have the courage to do so.

Here is the very simple idea: Revision 1 specifies minimum conservation releases. Nothing should keep the city and New York State from agreeing to voluntarily release more water into the Delaware. We know exactly how much water can and should prudently be released in the Delaware. It is the amounts specified by the FFMP which has been tested extensively via computer simulations, and which has been used on the river since 2007.

The FFMP is demonstrably prudent, and its implementation has not damaged the interests of any river stakeholders. So why not just continue to implement them?

There is only one legalistic proviso that could be limiting. It is an archaic agreement that New York City forced upon NYS-DEC back in the 1980 in resolution of a lawsuit that the city had brought to keep NYS-DEC from setting any conservation releases at all. Paragraph 2 of this “Stipulation of Discontinuance,” Index 5840-80 of the New York State Supreme Court, would appear to constrain the NYS-DEC from calling for a conservation release more the 10% above the minimums specified in Revision 1.

But it does not constrain the city from doing so on its own or in collaboration with the state, the Delaware River Basin Commission (DRBC) and the Delaware River Master. And of course, the precedent is established, as notwithstanding the 1980 restriction on conservation limits that can be demanded by the state, actual conservation releases into the Delaware have greatly exceeded these minimums for many decades—to the benefit of the fishery, and to no harm to other stakeholders.

So please let’s get the heads of the NYC-DEP, the NYS-DEC, the Delaware River Master and the executive director of the DRBC to meet their responsibilities and collaborate to save the upper river from an unnecessarily rigid and destructive return to the rules of 1983. We know how to do better; we must do better.

And here, if your eyelids haven't glued shut, is the excerpt from New Jersey's Water Supply Plan. In this excerpt New Jersey lays out one of its most important reasons for wanting a revision to the current FFMP.

While I have your attention, there will be three public hearings on this plan. You'll find those dates here. And you can read the whole plan here. This is from Page 51 of the draft plan:

Water flow, allocation and diversions of water from the Delaware River were initially dictated by a 1931 United States Supreme Court Decree. The parties to the Decree are Delaware, New Jersey, New York City and State, and Pennsylvania. The Decree set limits and conditions for out-of-basin diversions by New York City and New Jersey. In 1954, the Decree was amended to revise diversions and releases based upon the drought of the 1930’s (see the Delaware River Master’s website at http://water.usgs.gov/osw/odrm/ for more information on the 1954 Decree).

During the drought of the 1960’s, historically the most severe and considered the drought-of- record for the Delaware Basin, the amount of water that New York City’s Delaware Basin reservoirs could provide was less than previously calculated. As a result, in 1983 the Decree Parties reached an agreement on a reservoir operating plan for drought and near-drought conditions informally referred to as the “Good Faith Agreement.”

The Good Faith Agreement has been modified several times to address new issues or incorporate new scientific information. These issues included improved cold-water fisheries flows, more efficient management of the salt-front in the lower Delaware, and incorporation of hydropower operations. All of the programs agreed to by the Decree Parties since the 1983 Good Faith Agreement have been temporary and any changes must be made by unanimous consent. In 2007, the Decree Parties instituted a new approach to water management known as the Flexible Flow Management Program (FFMP). The 2015-2016 FFMP includes:

• Releases for upper-basin fisheries based on forecast-based available water rather than the “storage bank” concept;

• A modest degree of uncontrolled spill mitigation; and

• A temporary increase to New Jersey’s Delaware and Raritan Canal diversion during drought operations. Under non-drought conditions, New Jersey may withdraw 100 mgd 5 from the Delaware River via this canal. While the 1983 Good Faith Agreement limits withdrawals under drought emergencies to 65 mgd, the current FFMP increases such withdrawals to 85 mgd. Since the higher drought diversion is not permanent, it cannot be allocated or contracted per New Jersey’s Water Allocation program. Accordingly, a 65 mgd diversion during droughts must be assumed for water supply planning purposes.

New Jersey concludes that increasing New Jersey’s canal diversion to 85 mgd can be maintained during a repeat of the record drought with de minimis effects, thus allowing an additional 20 mgd to be allocated via New Jersey’s regulations. New Jersey continues to negotiate with the Decree Parties to restore the right to withdraw 85 mgd during a drought emergency, which increasingly plays a critical role in meeting New Jersey’s current and future water supply needs, and enhances water system resiliency in the Central, Coastal North and Northeast drought regions.

About Meg McGuire

Meg McGuire has been a journalist for 30 years in New York and Connecticut. She started in weekly newspapers and moved to full-time work in dailies 25 years ago. She knows about the tectonic changes in journalism firsthand, having been part of what was euphemistically called a "reduction in force" six years ago. Now she's working to find new ways to "do" the news as an independent online publisher of news about the Delaware River, its watershed and its people.

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