The Flexible Flow Management Plan (FFMP), which dates from 2007, expired on May 31 because New Jersey, one of the five so-called decree parties covered by a Supreme Court decree in 1954, refused to extend it for another year. That means the water management plan of the river and reservoir releases could have reverted to a plan called Revision 1 from the 1983. That would have resulted in much less water being released from the reservoirs into the river system than has been the case under the FFMP.

The New York City Department of Environmental Protection (NYC-DEP), however, deemed that though Revision 1 set minimums for the amount of water to be released from the reservoirs, there is nothing in it that prevents them from releasing more. Therefore, with support from three of the other decree parties, New York State, Pennsylvania and Delaware, NYC-DEP determined that it would maintain current release levels as determined by FFMP, a course advocated by Peter Kolesar, a professor who participated in the development of the FFMP (see TRR op-ed, “A Plan to Save the Upper Delaware Fisheries,” in the May 11 newspaper).

Changes to the way the water in the basin is managed requires unanimous consent by all five decree parties, but NYC-DEP’s move appears to circumvent that. By withholding consent to extend the FFMP for another year, the New Jersey Department of Environmental Protection (NJ-DEP) appeared to be trying to force the other decree parties to renegotiate the entire deal to allow the state to take more water from the river.

At a press conference about the situation at the Sullivan County Government Center on June 1, Adam Bosch, director of public affairs for the NYC-DEP, was very candid about what NJ-DEP wants. He said, “I’m not saying anything they haven’t said publicly. They want the ability to take additional water during all three stages of drought—drought watch, drought warning, drought emergency—from the river. That’s not a non-starter; the issue is not their request. The issue is their unwillingness to listen to the requests of others as part of a give and take and a discussion in a negotiation.”

Bosch said the FFMP was the best water management plan that had ever been used to divvy up the water in the Delaware River Basin, because it was the “fairest” to all of the parties involved. It was first adopted in 2007, and had been updated since then. It was developed with input from many stakeholders, using a lot of science and modeling, and for the first time took into consideration the concerns of the fishing community and people who were concerned about flooding.

Bosch said that NJ-DEP’s decision not to extend the FFMP would have cut the amount of water released from the reservoirs into the river system by more than half, inflicting “undue harm on businesses that rely on river tourism, on the fishery, on the ecological health of the river, and it would stoke the fears of people who are concerned about flooding….” Thus, the decision was made by NYC-DEP to voluntarily release the same amount of water called for by FFMP, with support from three other decree parties.

He also said that for two years, NYC-DEP’s scientists have been working on a plan to update the FFMP. Their view, according to Bosch, is that a flow program is a good program “only if it advances the interests of everyone.” He said that the program was presented to the decree parties in March. Bosch said that New York, Pennsylvania and Delaware have looked at the program, and “they think it’s pretty darn good,” but NJ-DEP refuses even to look at it.

There is no question that NJ-DEP came out of this press conference looking like the villain in this situation. Naturally, we wanted to hear their side of the story. We called their public relations department, and were told someone would get back to us. No one did return the call, so it’s hard for us to know for sure what the other side of the story might be.

Certainly the elected legislators in Sullivan County support the NYC-DEP’s move, and singled out New Jersey for criticism. A press release included a statement from county manager Josh Potosek which said, “While disappointed with New Jersey’s refusal to work through its differences whilst keeping the FFMP in force, Sullivan County is grateful the other stakeholders in the watershed realize the crucial importance of the Delaware River to the environment, tourism and the overall quality of life in our region and beyond. However, Sullivan County will be reviewing its legal alternatives in the event that the agreement enacted today falls apart.”

With no word from NJ-DEP, it’s hard not to see them as the bad guys, and also hard to know whether or not they will take the matter to court.

We’ll keep our eyes on it, as that could open a whole new can of worms.