brachycentrus
Just finished a River Runs Through it!
Noticed this on another site.
Ralph E. Kates, III
Attorney-At-Law
(570) 824-9374 358 South Franklin Street Sharon Bensavage
rkates@epix.net Wilkes-Barre, PA 18702-3809 Paralegal
March 26, 2007
Delaware River Basin Commission
25 State Police Drive
P.O. Box 7360
West Trenton, NJ 08628-0360
RE: OBJECTIONS TO THE ADOPTION OF THE DRBC
FLEXIBLE FLOW MANAGEMENT PROGRAM Of The DRBC.
Dear People:
I represent the Stanley Cooper, Sr. Chapter of Trout Unlimited (“SCTU”).
By a unanimous decision of its Board of Directors on March 6, 2007, the Stanley
Cooper Sr. Chapter of Trout Unlimited voted to oppose the adoption of the “Flexible
Flow Management Program” (“FFMP”) proposed by the Delaware River Basin
Commission (“DRBC”).
Statement Of Interest.
The SCTU is a volunteer organization of more than 225 members headquartered
in Northeast Pennsylvania. SCTU is dedicated to the protection, preservation and
enhancement of cold water fisheries. Our members regularly fish the Upper Delaware
River system, including the West Branch, East Branch and main stem of the Upper
Delaware. Our members own real property abutting, and in the immediate area of,
these streams. SCTU has been a party before the Federal Energy Regulatory
Commission (“FERC”) in relicensing proceedings affecting the Upper Delaware and has
previously participated in DRBC proceedings concerning the streams. SCTU has a
history of active involvement regarding the Upper Delaware. Currently, SCTU has a
petition pending before the Pennsylvania Environmental Quality Board to classify
Upper Delaware waters, the West Branch and the main stem, as “High Quality,”
pursuant to 25 Pa. Code Chapters 92, 93 and 95.
Overview.
The FFMP and its supporting resolution are inadequate to the tasks that they are
designed to address. They are inadequate in very basic ways. There is no mention of
the extensive wild rainbow trout population in the Upper Delaware. The documents
did not address the impact of the proposal on the dwarf wedge muscle, an endangered
species under federal and Pennsylvania law. The documents ignore, indeed,
contravene, all of the existing scientific studies on the Upper Delaware. The DRBC
makes no effort to support any of its numbers -- for drought conditions, for releases, for
needed storage capacity, for the strange seasonal adjustments in its proposal -- with
science, history, experience or reason.
The FFMP proposal is also legally inadequate. The releases from these reservoirs
are point source discharges into streams that are supposedly protected from
degradation by federal law, by DRBC regulation, and by the laws of several states. S.D.
Warren, Co. v. Maine, 126 S.Ct. 1843 (2006). The DRBC proposal is a major alteration in
the quantity and quality of the water discharged into the streams. The DRBC has failed
to undertake an environmental assessment. All available data indicates that the DRBC
proposal will degrade the receiving streams.
In the items listed below, SCTU is not attempting to address every problem in
the DRBC proposal. Rather, SCTU is merely trying to highlight some of the egregious
problems that seem beyond dispute among reasonable people who share an interest in
protecting the Upper Delaware in ways that enhance the ecosystem, protect us and our
neighbors from flooding, assure New York City a clean, stable water supply, and
provide for the economic vitality of Upper Delaware communities.
SCTU Objections To The FFMP:
1. The FFMP Violates The DRBC Non-Degradation Policy.
The Upper Delaware is classified as a national wild, scenic and recreational river.
[16 U.S.C. §1274] Congress set aside this area of the river to protect unimpaired water
quality; fish and wildlife; and scenic, recreational and historical resources for the benefit
and enjoyment of present and future generations. This portion of the Delaware is
subject to the Special Protection Waters regulations established by the DRBC in 1992.
Strict anti-degradation measures prohibit human activities from causing any
measurable change in water quality. [DRBC regulations §3.10, et seq.] This policy
prohibits DRBC action that would have an adverse measurable change on existing
water quality. The FFMP violates this DRBC policy.
The Cannonsville reservoir is a bottom release dam that supplies water to the
West Branch. For approximately 25 years, between 1976 and 2001, the average release
from Cannonsville between May and September was nearly 650 cfs. This historical
release level was altered a few years ago when the DRBC approved an interim plan for
New York State to release less water. SCTU opposed that change at the time. [See:
SCTU correspondence to the DRBC dated March 19, 2004.] At that time, SCTU noted that
the interim plan would result in water temperatures adverse to trout, low flows adverse
to aquatic insect life, and excess, unnecessary water retention behind the dams.
Implementation of the interim plan resulted in fish kills and flooding, adversely
impacting the habitat and the people who reside along the Upper Delaware.
The FFMP proposes to release between 80 cfs (from April 1 to April 30) to 250 cfs
(from June 1 to August 31) from the Cannonsville reservoir. Releases this low will dewater
portions of the riverbed of the West Branch, result in temperatures toxic to trout
in the lower West Branch and the upper main stem, increase the dissolved oxygen
demand within the streams, cause a die-off of aquatic insects, and result in trout
mortality. This proposal, if implemented, will violate the DRBC’s own non-degradation
policy. The excessive water retention in the FFMP holds the potential for additional
flooding in the Upper Delaware and salt migration from the estuary to public water
supplies in the lower Delaware basin.
If this were not bad enough, the FFMP does not even guarantee these meager
releases. Releases are not mandatory under any circumstances. The FFMP release
figures assume that additional capacity will be built into the reservoirs. And, assuming
that the additional capacity exists, any release is then at the discretion of New York
City.
2. The FFMP Lacks Any Basis In Science.
The release levels established by the FFMP are artificial constraints without any
scientific basis. The release levels are DRBC selected numbers arbitrarily determined in
an unverifiable process. The numbers are supposedly derived from tables, referred to
as “L1” through “L5,” that depict the combined storage of three Delaware River
reservoirs. Reservoir storage levels are important for assuring adequate drinking water
supply in dry weather conditions and sufficient water storage capacity in wet weather
conditions. Unfortunately, the DRBC numbers do neither. By combining the storage
capacities of three reservoirs into a single number, the DRBC has ignored the different
purposes and functions of the individual reservoirs. This results in an FFMP that is
anything but “flexible."
The Pepacton and Neversink reservoirs were designed to provide an assured
source of potable water for New York City. The Cannonsville reservoir was designed to
provide water to the Upper Delaware. Any rational system of water allocation must
take these individual uses into account in some meaningful way. The FFMP does not
do so.
The FFMP increases the drought action level by 4 billion gallons over the current
plan. There is no explanation for this increase in FFMP.
There is no data in the FFMP to explain the basis for selecting 75 percent of
combined reservoir capacity as the starting point for L2. There is no explanation in the
FFMP for selecting the same level of water storage for L1 through L5 for all three
reservoirs.
There is no explanation in the FFMP for the exclusion of the billions of gallons of
water in the Roundout reservoir from any of the DRBC’s calculations.
The DRBC makes a nod toward a scientific basis by mentioning the OASIS model
in the FFMP.
The OASIS model has serious flaws as a scientific instrument. According to an
evaluation by Dr. Kolesare of Columbia University, conducted on behalf of FUDR, the
original data inputs to the OASIS model were seriously flawed. As of 2005, those data
entry errors were not corrected and no data had been entered into the OASIS model in
the preceding 20 years. Recently, the DRBC has stated informally that newer data has
been entered; however, no formal statement to this effect has been made by the DRBC.
The accuracy of data entries has not been verified by any outside evaluator.
There is a lack of transparency in the OASIS model itself. The complex structure
of weighting constants that is employed by the model is not well articulated in any of its
documentation. The OASIS model is excessively complex. The forecasting prowess of
the OASIS model is less than reliable. The DRBC supposedly based its last plan for the
Upper Delaware flows, known as Revision 7, on the OASIS model. The results were
fish kills and habitat destruction in low water and devastating floods in wet weather.
The ability of the OASIS model to provide reasonable predictions of likely outcomes
under varying hypotheses has never been independently verified.
3. The FFMP Violates Pennsylvania Law.
Under Pennsylvania law, the Upper Delaware is classified as “High Quality”
water. As such, it is subject to Pennsylvania’s non-degradation regulations.
The implementation of the FFMP is possible only if the Pennsylvania
representative on the DRBC votes in its favor. Such a vote would contravene the
mandates of Pennsylvania law because adoption of the FFMP will degrade the streams.
The Upper Delaware is a wild trout fishery. Implementation of the FFMP would result
in damage to aquatic life. It would result in fish mortality. It would result in increased
flooding to downstream property owners. Neither scientific evidence nor experience
supports the FFMP. Pennsylvania’s legal obligations to prevent degradation of the
Upper Delaware cannot be negotiated away.
4. The FFMP Violates New York Law.
Title 6, Part 671.3 of New York State’s regulations require mandatory minimum
flows from Cannonsville of 325 cfs between June 15 and August 15, under normal
hydrologic conditions. These regulations further require that, in high water conditions,
Cannonsville reservoir must release as much water from its valves as is overflowing the
top of the dam. This is a critical requirement to ameliorate the adverse impact of warm
water overflow with an equal amount of cold water releases. We recognize that New
York State has not adhered to its legal obligations in the past. However, past errors do
not relieve the State from its future legal obligations.
The release levels proposed by the FFMP are far below those mandated by New
York State Regulations, Title 6, Part 671. The FFMP does not require cold water releases
during periods when water overflows the Cannonsville dam. The FFMP violates New
York law.
5. The F. F. M. P. violates the DRBC representations to the Federal Energy
Regulatory Commission.
In 2003, the DRBC supported the relicensing application of PPL for discharges
from Lake Wallenpaupack that was pending before the Federal Energy Regulatory
Commission (FERC). The environmental assessment submitted in support of the PPL
application recognized that PPL's proposed additional releases from Lake
Wallenpaupack would cause thermal increases in the Upper Delaware that would be
adverse to trout. However, these adverse thermals would be ameliorated “by a new
drought operations plan and temperature reduction plan” of the DRBC. (PPL
Environmental Assessment at 43 and accompanying DRBC resolution.) FERC approved the
PPL relicensing, in part, upon the DRBC representation that it would adopt a water
release plan to reduce water temperatures the Upper Delaware. The 2004
representations to FERC obligated the DRBC to honor its commitment and provide for
mandated releases when water temperatures in the Upper Delaware approach levels
that stressed the habitat. The FFMP contains no provision requiring that water
temperatures be maintained at the levels that existed prior to the PPL relicensing. In
fact, the FFMP contains no temperature-trigger releases at all.
It is also worth noting that the failure to include special releases to relieve
thermal stresses violates DRBC’s recognition of this obligation in the November 1982
Agreement among the parties to the 1954 Supreme Court Decree. In Appendix F to the
1982 Agreement, the DRBC noted its obligation to release sufficient water “in order to
relieve thermal stress conditions which pose a threat to the fisheries.”
Conclusion.
The FFMP violates the DRBC Comprehensive Plan. It adversely impacts the
Upper Delaware habitat. It is unnecessary. For 25 years, there were releases from
Cannonsville in excess of 600 cfs. During all that time, New York City had adequate
potable water. There were no floods resulting from excessive impoundment of water.
The Upper Delaware habitat flourished. Local economies began to find some footing in
fishing and tourism.
The DRBC is not confronting a situation where it must make difficult choices
between water for human consumption or habitat protection. There is sufficient water
for both, as every scientific study has concluded. The FFMP is an irrational concession
to New York City that it “owns” the water in the Upper Delaware and that can retain,
release or otherwise use, or not use, this water as it sees fit. That is legally
unsupportable. New York City lost that argument in 1954 before the United States
Supreme Court. There is no reason for the people to abandon, now, the Upper
Delaware habitat to a city bureaucracy.
The Upper Delaware deserves habitat protection. The law requires it -- federal
law, the laws of several states and the DRBC’s own comprehensive Plan and
regulations. The FFMP would have the DRBC ignore these obligations; pretend special
protection status can be ignored; kill the only trout that the FFMP acknowledges to exist
(brown trout); kill, without counting, the significant rainbow trout population; and,
dewater a wild and scenic riverbed. It would do all of this, and more, without any
demonstrated need for embarking on this reign of aquatic mayhem.
SCTU urges you to oppose the FFMP and its accompanying resolution.
Respectfully submitted,
Ralph E. Kates, III, Esquire
REK/swb
Ralph E. Kates, III
Attorney-At-Law
(570) 824-9374 358 South Franklin Street Sharon Bensavage
rkates@epix.net Wilkes-Barre, PA 18702-3809 Paralegal
March 26, 2007
Delaware River Basin Commission
25 State Police Drive
P.O. Box 7360
West Trenton, NJ 08628-0360
RE: OBJECTIONS TO THE ADOPTION OF THE DRBC
FLEXIBLE FLOW MANAGEMENT PROGRAM Of The DRBC.
Dear People:
I represent the Stanley Cooper, Sr. Chapter of Trout Unlimited (“SCTU”).
By a unanimous decision of its Board of Directors on March 6, 2007, the Stanley
Cooper Sr. Chapter of Trout Unlimited voted to oppose the adoption of the “Flexible
Flow Management Program” (“FFMP”) proposed by the Delaware River Basin
Commission (“DRBC”).
Statement Of Interest.
The SCTU is a volunteer organization of more than 225 members headquartered
in Northeast Pennsylvania. SCTU is dedicated to the protection, preservation and
enhancement of cold water fisheries. Our members regularly fish the Upper Delaware
River system, including the West Branch, East Branch and main stem of the Upper
Delaware. Our members own real property abutting, and in the immediate area of,
these streams. SCTU has been a party before the Federal Energy Regulatory
Commission (“FERC”) in relicensing proceedings affecting the Upper Delaware and has
previously participated in DRBC proceedings concerning the streams. SCTU has a
history of active involvement regarding the Upper Delaware. Currently, SCTU has a
petition pending before the Pennsylvania Environmental Quality Board to classify
Upper Delaware waters, the West Branch and the main stem, as “High Quality,”
pursuant to 25 Pa. Code Chapters 92, 93 and 95.
Overview.
The FFMP and its supporting resolution are inadequate to the tasks that they are
designed to address. They are inadequate in very basic ways. There is no mention of
the extensive wild rainbow trout population in the Upper Delaware. The documents
did not address the impact of the proposal on the dwarf wedge muscle, an endangered
species under federal and Pennsylvania law. The documents ignore, indeed,
contravene, all of the existing scientific studies on the Upper Delaware. The DRBC
makes no effort to support any of its numbers -- for drought conditions, for releases, for
needed storage capacity, for the strange seasonal adjustments in its proposal -- with
science, history, experience or reason.
The FFMP proposal is also legally inadequate. The releases from these reservoirs
are point source discharges into streams that are supposedly protected from
degradation by federal law, by DRBC regulation, and by the laws of several states. S.D.
Warren, Co. v. Maine, 126 S.Ct. 1843 (2006). The DRBC proposal is a major alteration in
the quantity and quality of the water discharged into the streams. The DRBC has failed
to undertake an environmental assessment. All available data indicates that the DRBC
proposal will degrade the receiving streams.
In the items listed below, SCTU is not attempting to address every problem in
the DRBC proposal. Rather, SCTU is merely trying to highlight some of the egregious
problems that seem beyond dispute among reasonable people who share an interest in
protecting the Upper Delaware in ways that enhance the ecosystem, protect us and our
neighbors from flooding, assure New York City a clean, stable water supply, and
provide for the economic vitality of Upper Delaware communities.
SCTU Objections To The FFMP:
1. The FFMP Violates The DRBC Non-Degradation Policy.
The Upper Delaware is classified as a national wild, scenic and recreational river.
[16 U.S.C. §1274] Congress set aside this area of the river to protect unimpaired water
quality; fish and wildlife; and scenic, recreational and historical resources for the benefit
and enjoyment of present and future generations. This portion of the Delaware is
subject to the Special Protection Waters regulations established by the DRBC in 1992.
Strict anti-degradation measures prohibit human activities from causing any
measurable change in water quality. [DRBC regulations §3.10, et seq.] This policy
prohibits DRBC action that would have an adverse measurable change on existing
water quality. The FFMP violates this DRBC policy.
The Cannonsville reservoir is a bottom release dam that supplies water to the
West Branch. For approximately 25 years, between 1976 and 2001, the average release
from Cannonsville between May and September was nearly 650 cfs. This historical
release level was altered a few years ago when the DRBC approved an interim plan for
New York State to release less water. SCTU opposed that change at the time. [See:
SCTU correspondence to the DRBC dated March 19, 2004.] At that time, SCTU noted that
the interim plan would result in water temperatures adverse to trout, low flows adverse
to aquatic insect life, and excess, unnecessary water retention behind the dams.
Implementation of the interim plan resulted in fish kills and flooding, adversely
impacting the habitat and the people who reside along the Upper Delaware.
The FFMP proposes to release between 80 cfs (from April 1 to April 30) to 250 cfs
(from June 1 to August 31) from the Cannonsville reservoir. Releases this low will dewater
portions of the riverbed of the West Branch, result in temperatures toxic to trout
in the lower West Branch and the upper main stem, increase the dissolved oxygen
demand within the streams, cause a die-off of aquatic insects, and result in trout
mortality. This proposal, if implemented, will violate the DRBC’s own non-degradation
policy. The excessive water retention in the FFMP holds the potential for additional
flooding in the Upper Delaware and salt migration from the estuary to public water
supplies in the lower Delaware basin.
If this were not bad enough, the FFMP does not even guarantee these meager
releases. Releases are not mandatory under any circumstances. The FFMP release
figures assume that additional capacity will be built into the reservoirs. And, assuming
that the additional capacity exists, any release is then at the discretion of New York
City.
2. The FFMP Lacks Any Basis In Science.
The release levels established by the FFMP are artificial constraints without any
scientific basis. The release levels are DRBC selected numbers arbitrarily determined in
an unverifiable process. The numbers are supposedly derived from tables, referred to
as “L1” through “L5,” that depict the combined storage of three Delaware River
reservoirs. Reservoir storage levels are important for assuring adequate drinking water
supply in dry weather conditions and sufficient water storage capacity in wet weather
conditions. Unfortunately, the DRBC numbers do neither. By combining the storage
capacities of three reservoirs into a single number, the DRBC has ignored the different
purposes and functions of the individual reservoirs. This results in an FFMP that is
anything but “flexible."
The Pepacton and Neversink reservoirs were designed to provide an assured
source of potable water for New York City. The Cannonsville reservoir was designed to
provide water to the Upper Delaware. Any rational system of water allocation must
take these individual uses into account in some meaningful way. The FFMP does not
do so.
The FFMP increases the drought action level by 4 billion gallons over the current
plan. There is no explanation for this increase in FFMP.
There is no data in the FFMP to explain the basis for selecting 75 percent of
combined reservoir capacity as the starting point for L2. There is no explanation in the
FFMP for selecting the same level of water storage for L1 through L5 for all three
reservoirs.
There is no explanation in the FFMP for the exclusion of the billions of gallons of
water in the Roundout reservoir from any of the DRBC’s calculations.
The DRBC makes a nod toward a scientific basis by mentioning the OASIS model
in the FFMP.
The OASIS model has serious flaws as a scientific instrument. According to an
evaluation by Dr. Kolesare of Columbia University, conducted on behalf of FUDR, the
original data inputs to the OASIS model were seriously flawed. As of 2005, those data
entry errors were not corrected and no data had been entered into the OASIS model in
the preceding 20 years. Recently, the DRBC has stated informally that newer data has
been entered; however, no formal statement to this effect has been made by the DRBC.
The accuracy of data entries has not been verified by any outside evaluator.
There is a lack of transparency in the OASIS model itself. The complex structure
of weighting constants that is employed by the model is not well articulated in any of its
documentation. The OASIS model is excessively complex. The forecasting prowess of
the OASIS model is less than reliable. The DRBC supposedly based its last plan for the
Upper Delaware flows, known as Revision 7, on the OASIS model. The results were
fish kills and habitat destruction in low water and devastating floods in wet weather.
The ability of the OASIS model to provide reasonable predictions of likely outcomes
under varying hypotheses has never been independently verified.
3. The FFMP Violates Pennsylvania Law.
Under Pennsylvania law, the Upper Delaware is classified as “High Quality”
water. As such, it is subject to Pennsylvania’s non-degradation regulations.
The implementation of the FFMP is possible only if the Pennsylvania
representative on the DRBC votes in its favor. Such a vote would contravene the
mandates of Pennsylvania law because adoption of the FFMP will degrade the streams.
The Upper Delaware is a wild trout fishery. Implementation of the FFMP would result
in damage to aquatic life. It would result in fish mortality. It would result in increased
flooding to downstream property owners. Neither scientific evidence nor experience
supports the FFMP. Pennsylvania’s legal obligations to prevent degradation of the
Upper Delaware cannot be negotiated away.
4. The FFMP Violates New York Law.
Title 6, Part 671.3 of New York State’s regulations require mandatory minimum
flows from Cannonsville of 325 cfs between June 15 and August 15, under normal
hydrologic conditions. These regulations further require that, in high water conditions,
Cannonsville reservoir must release as much water from its valves as is overflowing the
top of the dam. This is a critical requirement to ameliorate the adverse impact of warm
water overflow with an equal amount of cold water releases. We recognize that New
York State has not adhered to its legal obligations in the past. However, past errors do
not relieve the State from its future legal obligations.
The release levels proposed by the FFMP are far below those mandated by New
York State Regulations, Title 6, Part 671. The FFMP does not require cold water releases
during periods when water overflows the Cannonsville dam. The FFMP violates New
York law.
5. The F. F. M. P. violates the DRBC representations to the Federal Energy
Regulatory Commission.
In 2003, the DRBC supported the relicensing application of PPL for discharges
from Lake Wallenpaupack that was pending before the Federal Energy Regulatory
Commission (FERC). The environmental assessment submitted in support of the PPL
application recognized that PPL's proposed additional releases from Lake
Wallenpaupack would cause thermal increases in the Upper Delaware that would be
adverse to trout. However, these adverse thermals would be ameliorated “by a new
drought operations plan and temperature reduction plan” of the DRBC. (PPL
Environmental Assessment at 43 and accompanying DRBC resolution.) FERC approved the
PPL relicensing, in part, upon the DRBC representation that it would adopt a water
release plan to reduce water temperatures the Upper Delaware. The 2004
representations to FERC obligated the DRBC to honor its commitment and provide for
mandated releases when water temperatures in the Upper Delaware approach levels
that stressed the habitat. The FFMP contains no provision requiring that water
temperatures be maintained at the levels that existed prior to the PPL relicensing. In
fact, the FFMP contains no temperature-trigger releases at all.
It is also worth noting that the failure to include special releases to relieve
thermal stresses violates DRBC’s recognition of this obligation in the November 1982
Agreement among the parties to the 1954 Supreme Court Decree. In Appendix F to the
1982 Agreement, the DRBC noted its obligation to release sufficient water “in order to
relieve thermal stress conditions which pose a threat to the fisheries.”
Conclusion.
The FFMP violates the DRBC Comprehensive Plan. It adversely impacts the
Upper Delaware habitat. It is unnecessary. For 25 years, there were releases from
Cannonsville in excess of 600 cfs. During all that time, New York City had adequate
potable water. There were no floods resulting from excessive impoundment of water.
The Upper Delaware habitat flourished. Local economies began to find some footing in
fishing and tourism.
The DRBC is not confronting a situation where it must make difficult choices
between water for human consumption or habitat protection. There is sufficient water
for both, as every scientific study has concluded. The FFMP is an irrational concession
to New York City that it “owns” the water in the Upper Delaware and that can retain,
release or otherwise use, or not use, this water as it sees fit. That is legally
unsupportable. New York City lost that argument in 1954 before the United States
Supreme Court. There is no reason for the people to abandon, now, the Upper
Delaware habitat to a city bureaucracy.
The Upper Delaware deserves habitat protection. The law requires it -- federal
law, the laws of several states and the DRBC’s own comprehensive Plan and
regulations. The FFMP would have the DRBC ignore these obligations; pretend special
protection status can be ignored; kill the only trout that the FFMP acknowledges to exist
(brown trout); kill, without counting, the significant rainbow trout population; and,
dewater a wild and scenic riverbed. It would do all of this, and more, without any
demonstrated need for embarking on this reign of aquatic mayhem.
SCTU urges you to oppose the FFMP and its accompanying resolution.
Respectfully submitted,
Ralph E. Kates, III, Esquire
REK/swb
