FRIENDS OF THE UPPER DELAWARE RIVER
MARCH 5, 2007
FEDERAL & STATE LEGISLATORS SHUT OUT OF REGULATORY PROCESS
CANNOT OFFICIALLY REPRESENT CONSTITUENTS IN DELAWARE WATERSHED
For decades, the Delaware River Basin Commission (DRBC) has exercised its authority over the issues, concerns and tragedies in the Delaware River Basin - without accountability or consequence for their decisions. It is a regulatory agency where there is no avenue for official input, much less oversight, from the members of Congress, the contiguous state legislatures, or the local elected officials whose constituents the DRBC’s decisions intimately affect. It does not need to be this way.
The DRBC is the federally created, state subsidized regulatory agency for the Delaware Watershed and is governed by a Commissioner from each of the four contiguous states. The City of New York, while not an official “Party,” has been given the same veto power as the regular Commission members. Though represented, the Federal government has neither a vote, nor a veto. While legally it is the respective Governor from each contiguous state who is the DRBC Commissioner, in point of fact, overburdened Governors appoint someone within their respective state government to represent them. This generally high-ranking designee, often also overburdened, in turn appoints a subordinate to do the actual work, to make the fundamental decisions, and to provide - with the opportunity to filter - summaries, advice and regulatory vote recommendations up the political chain of command. Given this structure, the DRBC and these non-elected state employees – not directly responsible to the public - vote and act virtually unilaterally under an umbrella that is for all intents sacrosanct.
Two current issues dramatically underscore the need for change, for active legislative participation and more importantly, for active legislative oversight: First, there is the widespread and growing outrage over the devastating effects the DRBC’s proposed “Flexible Flow Management Plan” (FFMP) will have on the upper Delaware’s unique wild trout fishery - most especially on the world recognized wild rainbow trout. And, directly related, the FFMP’s impact on the fishery will, most certainly, result in a negative economic impact on local economies. Second, there is the widespread and growing outrage over the effects the DRBC’s “Flexible Flow Management Plan” will have on flood mitigation. Two different areas of focus with two seemingly different constituencies have already found common ground on this ill-conceived proposed “Management” plan.
The question is who will objectively investigate these and other issues? Who will objectively evaluate and safeguard these and other watershed concerns, as it now stands? Not the members of Congress or the state legislatures who annually vote on appropriations for the DRBC, and who often provide grants for DRBC programs and studies. And not the county, city, town or village officials, whose districts are contiguous to the River and whose constituents are the most intimately affected. None have any official voice in the decisions of DRBC.
Underlying this seriously flawed autonomy, is the wide spread misunderstanding among elected officials that the 1954 U.S. Supreme Court Decision mandates this particular management system for the DRBC. That is not entirely accurate. The ’54 Decision was a Consent Decree, which means, as long as the parties agree they can change virtually anything within the ‘54 Decision (and they often have). Thus, under the Supreme Court Decree, the respective Governors of the contiguous states (NY, PA, NJ and DE) do indeed have the authority to modify this autocratic, failed management system by forming bipartisan oversight committees within their administrations. Further, the respective state legislatures through their various authorities (appropriations, grants, line items, appointments, confirmations, etc., etc.) also have the influence to bring legislative oversight and, most especially accountability, to this regulatory agency. They do indeed have the influence to end the unilateral decisions made by one or two state employees, on behalf of their state. Similarly, members of Congress have much the same influences that can also be suggested as a means of encouraging Governors and/or state legislatures to establish appropriate oversight committees.
As to the undue and often over stated influence of the City of New York’s DEP within the DRBC, again the NY State legislature and/or the members of Congress certainly have the ability to influence appropriations, grant applications, etc., that the typically cash strapped City so often needs. Moreover there is precedent, of sorts, with regard to NYC’s reservoir dominance and its roll in overall watershed management. In the mid ‘70s then Assemblyman, now Congressman Maurice Hinchey, was successful in having the NY State Legislature remove control of the reservoirs from the City and transfer that authority to the state. In 1980, that control was reversed through an Article 78 proceeding (referred to as a Mandamus in some states). A bad court decision can always be revisited.
In short, while elected officials may not have been aware of the authorities they have within the ’54 Decree, they do indeed have the tools necessary to insure that representative government, representative oversight and bureaucratic accountability is, for the first time, brought to the Delaware Watershed.
Given four decades of mismanagement history; given the widespread public outcries over the DRBC’s proposed Flexible Flow Management Plan (FFMP), and over the DRBC’s Flood Mitigation Proposals, it is our genuine hope that the members of Congress and the state legislatures will take the initiative, will exercise their authority and will begin the process of establishing appropriate oversight and accountability of the DRBC and its actions. More importantly, that they install the fundamental mechanisms of a representative government; that is, that the members of Congress, the state legislatures and local elected officials will take the measures necessary to insure that that the voices of the people most effected by the DRBC’s decisions are not only heard, but carry influence.
What may have been a prudent Supreme Court decision over half a century ago when there were virtually no environmental laws, etc.; what may have been the expectations over four decades ago for the DRBC as a deferential regulatory agency, today represent a failed, autocratic management system that is beyond the oversight of representative government. Times have changed, and it is time for a change. Join FUDR, urge our elected officials to take action to correct this failed system.
Craig Findley
President
Friends of the Upper Delaware River
Friends of the Upper Delaware River Home Page
MARCH 5, 2007
FEDERAL & STATE LEGISLATORS SHUT OUT OF REGULATORY PROCESS
CANNOT OFFICIALLY REPRESENT CONSTITUENTS IN DELAWARE WATERSHED
For decades, the Delaware River Basin Commission (DRBC) has exercised its authority over the issues, concerns and tragedies in the Delaware River Basin - without accountability or consequence for their decisions. It is a regulatory agency where there is no avenue for official input, much less oversight, from the members of Congress, the contiguous state legislatures, or the local elected officials whose constituents the DRBC’s decisions intimately affect. It does not need to be this way.
The DRBC is the federally created, state subsidized regulatory agency for the Delaware Watershed and is governed by a Commissioner from each of the four contiguous states. The City of New York, while not an official “Party,” has been given the same veto power as the regular Commission members. Though represented, the Federal government has neither a vote, nor a veto. While legally it is the respective Governor from each contiguous state who is the DRBC Commissioner, in point of fact, overburdened Governors appoint someone within their respective state government to represent them. This generally high-ranking designee, often also overburdened, in turn appoints a subordinate to do the actual work, to make the fundamental decisions, and to provide - with the opportunity to filter - summaries, advice and regulatory vote recommendations up the political chain of command. Given this structure, the DRBC and these non-elected state employees – not directly responsible to the public - vote and act virtually unilaterally under an umbrella that is for all intents sacrosanct.
Two current issues dramatically underscore the need for change, for active legislative participation and more importantly, for active legislative oversight: First, there is the widespread and growing outrage over the devastating effects the DRBC’s proposed “Flexible Flow Management Plan” (FFMP) will have on the upper Delaware’s unique wild trout fishery - most especially on the world recognized wild rainbow trout. And, directly related, the FFMP’s impact on the fishery will, most certainly, result in a negative economic impact on local economies. Second, there is the widespread and growing outrage over the effects the DRBC’s “Flexible Flow Management Plan” will have on flood mitigation. Two different areas of focus with two seemingly different constituencies have already found common ground on this ill-conceived proposed “Management” plan.
The question is who will objectively investigate these and other issues? Who will objectively evaluate and safeguard these and other watershed concerns, as it now stands? Not the members of Congress or the state legislatures who annually vote on appropriations for the DRBC, and who often provide grants for DRBC programs and studies. And not the county, city, town or village officials, whose districts are contiguous to the River and whose constituents are the most intimately affected. None have any official voice in the decisions of DRBC.
Underlying this seriously flawed autonomy, is the wide spread misunderstanding among elected officials that the 1954 U.S. Supreme Court Decision mandates this particular management system for the DRBC. That is not entirely accurate. The ’54 Decision was a Consent Decree, which means, as long as the parties agree they can change virtually anything within the ‘54 Decision (and they often have). Thus, under the Supreme Court Decree, the respective Governors of the contiguous states (NY, PA, NJ and DE) do indeed have the authority to modify this autocratic, failed management system by forming bipartisan oversight committees within their administrations. Further, the respective state legislatures through their various authorities (appropriations, grants, line items, appointments, confirmations, etc., etc.) also have the influence to bring legislative oversight and, most especially accountability, to this regulatory agency. They do indeed have the influence to end the unilateral decisions made by one or two state employees, on behalf of their state. Similarly, members of Congress have much the same influences that can also be suggested as a means of encouraging Governors and/or state legislatures to establish appropriate oversight committees.
As to the undue and often over stated influence of the City of New York’s DEP within the DRBC, again the NY State legislature and/or the members of Congress certainly have the ability to influence appropriations, grant applications, etc., that the typically cash strapped City so often needs. Moreover there is precedent, of sorts, with regard to NYC’s reservoir dominance and its roll in overall watershed management. In the mid ‘70s then Assemblyman, now Congressman Maurice Hinchey, was successful in having the NY State Legislature remove control of the reservoirs from the City and transfer that authority to the state. In 1980, that control was reversed through an Article 78 proceeding (referred to as a Mandamus in some states). A bad court decision can always be revisited.
In short, while elected officials may not have been aware of the authorities they have within the ’54 Decree, they do indeed have the tools necessary to insure that representative government, representative oversight and bureaucratic accountability is, for the first time, brought to the Delaware Watershed.
Given four decades of mismanagement history; given the widespread public outcries over the DRBC’s proposed Flexible Flow Management Plan (FFMP), and over the DRBC’s Flood Mitigation Proposals, it is our genuine hope that the members of Congress and the state legislatures will take the initiative, will exercise their authority and will begin the process of establishing appropriate oversight and accountability of the DRBC and its actions. More importantly, that they install the fundamental mechanisms of a representative government; that is, that the members of Congress, the state legislatures and local elected officials will take the measures necessary to insure that that the voices of the people most effected by the DRBC’s decisions are not only heard, but carry influence.
What may have been a prudent Supreme Court decision over half a century ago when there were virtually no environmental laws, etc.; what may have been the expectations over four decades ago for the DRBC as a deferential regulatory agency, today represent a failed, autocratic management system that is beyond the oversight of representative government. Times have changed, and it is time for a change. Join FUDR, urge our elected officials to take action to correct this failed system.
Craig Findley
President
Friends of the Upper Delaware River
Friends of the Upper Delaware River Home Page
