Series 1997
Number 1

DELAWARE RIVER BASIN COMMISSION

Meeting of January 22, 1997

Minutes


The Commission met at its West Trenton, New Jersey offices.

Commissioners present: Gerard L. Esposito, Delaware
Irene B. Brooks, Pennsylvania
N.G. Kaul, New York
Steven P. Nieswand, New Jersey

Staff participants: Gerald M. Hansler, Executive Director
David B. Everett, Chief Engineer
Susan M. Weisman, Secretary
David J. Goldberg, General Counsel
George C. Elias, Project Review Branch Head
David P. Pollison, Planning Branch Head
Thomas L. Brand, Water Resources Engineer

The meeting was convened by Chairman Esposito at 1:25 p.m. with an announcement that U.S. Commissioner D’Anna will not attend today’s meeting due to an unavoidable scheduling conflict. Mr. Esposito also stated that the public hearing on the Commission’s proposed Fiscal Year 1998 budget will be deferred based upon the uncertainty of the federal contribution.

Minutes. The Minutes of the December 11, 1996 business meeting were moved by Ms. Brooks, seconded by Mr. Nieswand and approved.

Announcements. The next Commission meeting will be held on February 26, 1997. A Ground Water Advisory Committee meeting is scheduled for January 29, 1997 and a Flow Management Technical Advisory Subcommittee meeting will be held on February 20, 1997.

Report on Hydrologic Conditions in the Delaware River Basin. December concluded a wet year for the Basin with more than 62 inches of precipitation recorded above Trenton. However, January levels are well below normal. Storage in the New York City Delaware Basin reservoirs totaled 98.3 percent on January 21 with Cannonsville still spilling. Ground water levels are higher than normal and the salt front is some seven miles below its normal location for this date.

General Counsel’s Report. Mr. Goldberg reported no developments on the two matters pending before the Commission. The Wissahickon Spring Water, Inc. matter has been deferred until Pennsylvania proceeds. As to the remaining condemnation in connection with the upper Delaware ice diversion project, the Court has not yet scheduled the matter.

Public Hearing: A Resolution to Adopt the Commission’s Annual Budgets for the Fiscal Year Ending June 30, 1998 and to Apportion Among the Signatory Parties the Amounts Required for the Support of the Current Expense and Capital Budgets. Reiterating his earlier statement for the benefit of late arrivers that the hearing is deferred, Mr. Esposito offered an opportunity to Mr. Palmer of the Water Resources Association to speak as originally planned or defer that as well. Mr. Palmer stated that he would submit a copy of his statement today.

Public Hearing: Project Review Applications

With no testimony or statements presented at the hearing, the following dockets were moved by Mr. Nieswand, seconded by Mr. Kaul and approved:

Ms. Mary Ellen Noble, Associate Director of the Delaware Riverkeeper Network, first clarified the location of the intake which staff agrees is on the Delaware mainstem rather than on a man-made canal. Her primary concern is protection of aquatic life with respect to impingement and entrainment. Acknowledging that ownership of the intake complicates the issue, Ms. Noble urged the Commission to request PADEP, in issuing a cooling water discharge permit to PECO, to evaluate whether they have state-of-the-art intake facilities as envisioned by Section 316(b) of the Clean Water Act. While the Commission has no specific regulations dealing with intake structures, DRBC does have an implied responsibility to enforce the Clean Water Act. There is a need to determine what the current status of impingement and entrainment is and perhaps the Delaware River Basin Fish and Wildlife Cooperative could accomplish that. Ms. Noble stated that a retrofit based on that information would not be very expensive. She also suggested that the docket be deferred to determine whether there is any data available on this intake since the Cooperative’s 1973 investigation.

Mr. Brand confirmed that the intake is located on the mainstem and agreed to correct the docket. Based on USS water use reports, total withdrawal at the site has dropped dramatically over the years. He is unsure whether the intake meets Pennsylvania’s current standards but the intake is not before the Commission as part of this application. USS owns the intake; the applicant has no control over it. Ms. Noble asked how non-state-of-the-art intakes should be approached. Mr. Everett responded that a cumulative impact analysis of all the old intakes is proposed as a future Delaware Estuary program effort. Ms. Brooks thanked Ms. Noble for bringing the issue to the Commission’s attention. Following further discussion of how to address the issue of older intakes and possible impacts on fish, Ms. Brooks requested that Commission staff review the generic issue and provide recommendations on how to proceed. Ms. Brooks then moved the docket as revised per the intake location. Seconded by Mr. Nieswand, the revised docket was approved.

Consideration of a Resolution to Adopt the 1996-1997 Water Resources Program. Mr. Pollison explained that action on the resolution was deferred at the December 11 Commission meeting pending a workshop to address certain questions. That workshop was held earlier this month and several substantive revisions have been proposed; in addition to editorial changes and some updates, language describing the Blue Marsh Reservoir/ Tulpehocken Creek Watershed Assessment and Restoration Project has been expanded to focus on the Rosgen method. Language was also inserted on the success of the upper Delaware ice diversion project during the January 1996 heavy rain and snowmelt event. Also added was language concerning differences between the Corps of Engineers’ and DRBC’s modeling of salinity impacts with regard to possible deepening of the channel in the Delaware Estuary. Resolution No. 97-1 to adopt the 1996-1997 Water Resources Program was moved by Ms. Brooks, seconded by Mr. Kaul and adopted.

Add-on Item: A Resolution Providing for Annual Salary Rates of Commission Employees for Fiscal Year 1997. Ms. Brooks read and moved the following Resolution for the Minutes:

Seconded by Mr. Nieswand, the Resolution for the Minutes was adopted.

Public Dialogue. Mr. Palmer alluded to the turmoil surrounding the Chester County withdrawal of water by bottled water companies. The issue has advanced to the point where Senator Gerlach and others, including South Coventry Township, are putting into motion legislation to allow municipalities and/or counties to regulate the withdrawal of water from the aquifers in that region. The Water Resources Association (WRA) affirms its support of the management of water withdrawals and allocations by the DRBC, a regional authority organized on the basis of river basin boundaries, not municipalities. The WRA opposes state legislation or local ordinances which would seek to establish authority over water allocations based on local political boundaries. He asked that Commissioner Brooks take this message to Harrisburg. Ms. Brooks thanked him for his view, noting that she is very much aware of the proposed amendment. The Commission, State and County will be meeting to review respective responsibilities in this area. Mr. Goldberg stated that under the Delaware River Basin Compact, the ultimate responsibility for managing the waters of the Basin is vested in the Commission with few caveats. The Commission, on the other hand, has the legal ability to determine the extent to which its power, to some extent, can be delegated. The issue of Commission actions superseding state or local action is active in Pennsylvania. In fact, there is now pending before the Pennsylvania Supreme Court litigation involving different parties and the Susquehanna River Basin Commission regarding certain local action. That litigation is several steps removed from the DRBC and in his view, the definitive judicial rulings about DRBC powers derive from the federal court structure.

Mr. Chuck Sapp of US EPA Region III, announced that the 25th anniversary of the Clean Water Act Amendments will be celebrated this fall. Focusing on improvements in water quality, he cited the vast improvement in the Delaware Estuary, especially in the Philadelphia-Camden-Wilmington area over the past 20 to 30 years. The driving force behind that improvement was the Delaware River Basin Commission water quality standards adopted in 1968, well before EPA existed. The Commission was the leader then and its standards are still in effect. The recent waterfront developments on both sides of the river can be directly traced to this cleanup.
Ms. Brooks announced that Pennsylvania is hosting the first year of the Delaware Estuary Program’s three-year Conference. The conference will be held on January 30, 1997 in Bensalem at Pen Ryn Mansion.

Mr. Esposito called for a brief recess and reconvened the meeting to address the following matter:

A Resolution to Consider a Request to Alter Reservoir Releases From New York City’s Pepacton Reservoir for Flood Protection Purposes. Mr. Hansler provided some background, stating that in January 1996 heavy flooding occurred in the Basin as a result of a large snowpack, sudden warm weather and several inches of rain. While the Delaware River reached its second highest flow of record, what prevented far worse flooding below the three New York City Delaware system reservoirs was the fact that those reservoirs were only 60 percent full. The remaining 40 percent storage capacity was available to retain high flood runoffs. The reservoirs held without spilling, until ten to fourteen days later when there was a second fairly heavy rainfall. During the past year, the Basin had high precipitation levels. By late November and December the City’s reservoirs were filled and with localized heavy rainfall there was more flooding and damage, especially on the East Branch of the Delaware below the Pepacton Reservoir. A number of local and state legislators have expressed concern that with high reservoir levels there could be additional flooding and have asked if the City’s reservoirs could temporarily be used for flood storage capacity where needed. Today, the representatives to the Parties of the 1954 U.S. Supreme Court Decree have discussed this issue. The primary purpose of New York City’s reservoirs, i.e., water supply, as well as their corollary use, to maintain the cold water fishery and their possible use temporarily for flood control, was thoroughly discussed. These discussions have resulted in a draft resolution for consideration today.

Mr. Goldberg stated the resolution is an appropriate action for consideration and action. The full text of the resolution was provided to each Commissioner including modifications read by Mr. Goldberg. The resolution was moved by Mr. Kaul and seconded by Ms. Brooks. Following clarification and several minor editorial revisions, Resolution No. 97-2 was then adopted and consented to in writing by each of the Parties to the 1954 U.S. Supreme Court Decree. Mr. Stasiuk, Deputy Commissioner and Director of the Bureau of Water Supply, Quality and Protection for the New York City Department of Environmental Protection, expressed New York City’s appreciation to the other Parties to the Decree for the spirit of cooperation that they have extended in helping the City address the concern for its partners, the people who live in and around New York City’s watershed. This has made the City’s ability to be good neighbors easier to do and he greatly appreciates it. Mr. Bill Douglass, Director of the Upper Delaware Council, offered his appreciation to the City, New York State and the Commission for all the work that led to this action.

With no further business to come before the Commission, the meeting was adjourned at 3:40 p.m.

Susan M. Weisman, Secretary
sweisman@drbc.state.nj.us

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