Releases of cold water from the three New York City dams on the headwaters of the Delaware virtually dictate the conditions of the ecology of the upper river. Over the past five years, a consortium of conservation organizations has repeatedly petitioned the parties to the 1954 Supreme Court decree (the Decree Parties), who govern river flows, to include in their Flexible Flow Management Plan (FFMP), two simple science-based modifications that would significantly enhance the aquatic environment at no risk to the other river stakeholders. The proposals would add thermal relief to protect the Upper Delaware’s wild trout during summer heat waves, and eliminate the FFMP’s precipitous reductions in water releases, which strand fish and the insects they feed on when the river is suddenly de-watered—as has happened repeatedly in recent years.

In a lack of transparency in decision-making that is unacceptable on such a public policy issue, no explanation for the refusal has ever been given to the environmental petitioners, nor has there been a refutation of the coalition’s extensive supporting data and analysis. As reported in these pages (TRR, April 14), at the April 5 meeting of the Regulated Flows Advisory Committee (RFAC) in Hawley, PA, New Jersey representative David Kennedy made perfectly clear the reason for the rejection—one that had long been rumored. He stated that, notwithstanding the merits of the proposals, New Jersey would continue to exercise its veto and vote “no” unless it got approval for its larger goals. Those include a re-evaluation of water availability in the entire New York City water supply system and maintenance of New Jersey’s 100 million gallons per day of Delaware River water diversions even when the system is in drought—although in drought, both conservation releases and New York City diversions drop substantially.

The 1954 decree in fact stated that New Jersey’s diversion rights would not be increased unless and until it created additional water storage capacity—but a significant increase in diversions, without having to build such capacity, is what New Jersey really wants. And no wonder: New Jersey has estimated that such an upward revision of its drought diversion rights have a benefit equivalent to $150 million per year.

So two risk-free release improvements that are critical to the health of the upper river are held hostage, with no foreseeable end.

The reasons for pessimism are three-fold.

First, as a consequence of the 1961 Delaware River Compact, each Decree Party has a total veto on any modifications to the reservoir release rules, and each has abrogated its right to petition the Supreme Court for reconsideration of the 1954 decree’s provisions.

Second, increasing New Jersey’s diversions under drought is potentially harmful to the other Decree Parties: Delaware, Pennsylvania, New York State and New York City.

Third, New Jersey is not the only Decree Party that has a potentially enormous economic stake in the matter. New York City relies heavily on the clean waters of the Delaware to offset the sometimes-turbid water supplied by its other Catskill reservoirs. By mixing Delaware and Catskill water, New York City has been able to avoid the need for filtration. But it is a close call, and should the city lose its current federal EPA “filtration avoidance determination,” its cost to build a filtration plant has been estimated to exceed $10 billion, with over $150 million annual operating costs.

New Jersey is dissatisfied with the water allocations it agreed to in the 1954 Supreme Court case and in the 1983 Good Faith Agreement. It realizes that these agreements are binding, yet wants more water. In contrast, New York City appears to be content with the status quo. With each having veto power, it seems the environment will just have to suffer while these behemoths duke it out, probably in the courts over coming decades.

It’s hard to see a way out.