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Del Flow issues continued, final thoughts in green

Fly Tier

Jim Just a few more questions in red for you..

Are there are any statutory or regulatory requirements requiring that NY
State maintain a 225 flow at Hale Eddy or for that matter is there is
any requirement that they have to use the habitat banks at all?

If you read the first couple of pages of the Resolution, the parties
have committed to this plan and to continue discussions to formulate a
long term fisheries plan for the Upper Delaware. This plan calls for NYS
DEC to maintain minimum flows on all three rivers using the banks
allocated in this resolution. Habitat bank water will be used to
maintain the minimum flows and thermal bank water will be used to
maintain temperatures. Thermal bank water can be used (if any is left)
after October 31 to maintain minimum flows. I guess I do not really know
what you mean by "statutory or regulatory". The 225 has become a
regulation under DRBC authority. If NYS DEC is not maintaining minimum
flows, DRBC will require them to. This is under normal operations and
assuming the banks are available.

Jim, Good answer but as I understand it, this is a contactual agreement,
not a regulation. The only authority that the DRBC has would be to in
effect take any party who withdraws form the agreement to Federal Court
for breach of contract. If it were challenged, it would ultimately go to
the US Supreme Court which highly unlikely. As I also understand it, any
state being challenged in court by the DRBC would likely withdraw that
states financial support from the DRBC. Is this correct?

I checked with the DRBC and this is in fact a Regulation. This is why
the DRBC was created in 1961, to reduce the parties going to court all
the time.

• Conservation/Thermal/Habitat banks and the amelioration (sp) bank which only kicks in during August when PP&L is producing.
These banks have indeed been increased. Problem is, that there have been thermal banks provided for since 1976 which as you know have virtually never been fully applied despite NY State regulations specifying their use. That alone raises questions about the use of these banks in the future.
• Regulation or contract?
It is indeed a DRBC "regulation" the problem as you point out is compliance. My understanding is the only recourse for the DRBC should NY City choose not to follow this "regulation" is to take the state of NY to court for a violation of what is in effect a contract. A better method of forced compliance would have been have each of the states pass statutes and subsequent regulations that would enforce this agreement since it is the legislatures who control the jobs of those responsible for enforcing the regulations.

I need to ask a few questions too:

What is a better way to get compliance?

Where is your information from, it is incorrect and I would like to
correct it?

Can't this new passed agreement be stamed out by any of the 4 states
involved at any time?

NOT TRUE. This is an action by the DRBC and it will take another
unanimous vote to undo it.

Ok, I agree with that but if for instance NY pulls out given the above,
wouldn't that nullify any plan?

No, for reasons stated above. This will take a unanimous decision to
change now.

This is all based upon 3 burocracies and 1 power company keeping their
word for the next 3-6 years. History shows it won't happen,

This is now a regulation and must be followed. They have also committed
to continue discussions to reach the objective of a fisheries plan that
is sustainable.

Again, from what I understand, this is a contract, not a regulation, see

According to DRBC, this is a Regulation. Please let me know where your
information states otherwise and the source. Thanks.

Plus its a minimum 225 "flow" which doesn't mean release. This flow
could be warm water spillage over the dam.

The first part is true. 225,175,115 cfs minimum flows are not releases.
Temperature targets must also be maintained. Warm overflow is supposed
to be mitigated by an equal release of cold bottom water. This is also a
regulation. NYC DEP did this the last two times it occurred in 2003.
Hopefully, this is a change in policy that will be adhered to. NYC DEP
actually released water before the warm spill and kept the warm spill to
a minimum.

They did not adhere to this last summer. I agree this regulation needs
to be inforced and one of the items FUDR is advocating, and anyone who
fished the river last season knows the fishing season was virtually lost
because of the overflow and the DEC not adhering to the regulation.

My point was that the last two times this occurred, it was adhered to. I
think this is the start of a change of operation by NYC DEP. We will see

Perhaps I misunderstood the way you phrased it. They did infact provide those releases at virtually the end of the season but ignored countless request to comply with 671.3 from the end of June through all of July.
I agree with you, lets hope this last minute effort by the DEP does portend better things for the future; the problem is there is almost forty years of history that points out the DEP has no regard for the fishery.

This isnt a DRF plan anyway is it? The DRF is just supporting a bad plan
by the DRBC and NY CIty.

This is not a DRF plan. If DRF could formulate a plan, there would be
alot more water for the fisheries.

Well, if this is the case, why is the DRF not supporting the FUDR plan
for a 600CFS Constant flow?

Formulate, may have been a bad choice of a word. We have many ideas
about new plans, but the real challenge will be to get all parties to
agree to the new plan. We feel working within the system is the best way
to accomplish that goal. To see all of the parties sitting at the same
table and seriously committing to finding solutions is exciting. That is
happening now.

The DRF has often talked of working within the system, in this case the system being talked about is the DRBC/NYC System. FUDR is also trying to work within a system- a political system to effect the changes necessary to protect the fishery.. Guaranteed to all citizens by our Constitution.

I believe the Friends are asking for a constant release of 600 and not a
constant flow of 600. 600 might be the best release. I do not know.

Jim I am confused on this. In a recent article in the schenectady news paper you are quoted as saying that you felt confident that when all the studies are completed, the released would be within the 5-600CFS range. Also, at a recent meeting of the Croton TU Chapter you said that the DRF wanted exactly the same releases that FUDR is calling for except wanted the studies done first.

I do
know a 600 constant release is too inflexible. A release of 325 with a
larger Habitat bank would be better. I do not know. DRF chooses to work
within the system and using the best science available, determine what
the flows should be for all four rivers.

The downbasin states will not agree to this plan. All you New Jersey
guys, the challenge has been laid down to get NJ to change its position
on the Montague Target. Again, working within the system is going to get
the problem solved.

It was the montague mandate that created the fishery by neccesatating cold water releases. Reducing that mandate also reduces NYC's requirement to continue releasing cold water for the fishery.

DRF also feels it is important to determine releases for the EB and
Neversink that are also compatible. If you use the same criteria as the
Friends for the West Branch. That would mean a release of 400 cfs on the
East Branch and 200 cfs on the Neversink. Again, we need more total
water to be made available to the fishery.

To the best of my knowledge, FUDR is still conducting research to determine the best flow rates for both of those rivers. And from what I've read, have not suggested anything like 400 and 200CFS releases
As a new organizations, FUDR has said that their first priority in conducting their research was the Cannonsville since it is those release that threaten the wild trout fishery. You and I will wait to see what their recommendations are for the EB and Neversink.

The best flows for all four rivers at various times and conditions are
being determined as we speak. Using the top fisheries flow people in the
country USGS is starting their study tomorrow. They will be mapping the
river bottom in 5 mile segments. From these maps, it can be determined
what flows and releases are best for redds, juveniles adults, and bugs.
Flows and requirements will be determined. Water then needs to be
allocated for this purpose. Come on you NJ guys, get NJ to cooperate on
the MOntague Target.

To date I have not seen anything in detail about any of these studies but I do wonder in a practical sense what purpose they will serve- that is what we dont already know - and what the cost to taxpayers will be for this "NEW" information.
I a seperate thread could you share with all of us the details of USGS plan that you mentions starts today?

Higher releases during the summer on all three reservoirs and better
management of available water, to name a few. I of course do not agree
that this is a bad plan. It is a better plan than we had and the best
plan we could get by the April 21 deadline. Remember, just like the plan
can be changed if a party want s to stop it, the plan can also be
changed when something better comes along. Either of these scenarios
require a consent by the decree parties and a unanimous vote of the

This 225 CFS "FLOW" just replaced a mandatory 325CFS cold water
"release" out of the Cannonsville that was a required law per part 671.3
of the NY State Department of Environmental Conservation Regulations.

part 671.3 does require 325 release from 6/15-8/15. DEC modified this to
160 cfs 6/1-9/15. The idea was that the river needed cold water earlier
and later to protect it. The saved water from this change (about 3000
cfs-days) was added to the thermal bank to try to add flexibility to the
system. This now has been further modified to the new plan regulation.
As i understand it, the 671.3 is still on the books as a 325 cfs release
as mentioned above.

Under NY State Law isn't there a process where changes in departmental
regulations must first have public notices followed by public hearings?
and has this been done?

Question of you: Are you an attorney?

I am not and do not know the answer to this question. The real concern
should be getting more water. The 325 regime and other regimes utilize
the water allocated to the fisheries. The total amount of water did not
change. The new plan adds water for the fisheries. Almost 10,000
cfs-days. This is a significant increase over previous plans. This is
the first time water has been added by NYC to the plan. (5100 cfs-days)

A final fisheries plan needs to add more total water for fisheries.
There are two ways to accomplich this.

Add storage to the reservoirs. Another 20 billion gallons added to
Cannonsville and Pepacton would, I think, be agreeable to all paties of
the decree. DRF has had preliminary discussions on this plan with NYS
DEP and the DRBC.

This maybe true, but its a bit more depth than I have but like a good many others i received the attached email from a Mr. Bill Chase that seems to explain a great deal. File is attached titled "Drought Plans for the Delaware River and their effects"

Secondly, Alter the Montague Target in some way. Believe it or not, this
will be the more difficult of the two. New Jersey is adament about
receiving their water in this way. Since this is a New Jersey website, I
challenge all the NJ fishermen who fish the Delaware to get this

I hope this helps in you better understanding the situation. If you have
any other questions I will endeavor to get the correct information to
you and anyone else that asks in a civil manner.

Jim, I have enjopyed our discussions of these issues and now its time to fish!

Now for the really important information!! You should be up here
fishing, we are into hendricksons and blue quill BIG TIME. Caddis are
down on the mainstem too and will be here in a few days!!!

Hope this helps,



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