Notice of Proposed Rulemaking: Proposed Amendments to the Comprehensive Plan and Water Code Relating to the Coordinated Operation of Lower Basin and Hydroelectric Reservoirs During a Basinwide Drought

AGENCY:

Delaware River Basin Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Delaware River Basin Commission (“Commission” or “DRBC”) will hold a public hearing to receive comments on proposed amendments to Section 2.5.5 of the Water Code, relating to the Coordinated Operation of Lower Basin and Hydroelectric Reservoirs During a Basinwide Drought. The Commission proposes to amend and codify changes to the Comprehensive Plan and Water Code effected by Resolution No. 2002-33, approved in November 2002 by the Commission and the parties to the U.S. Supreme Court Decree in New Jersey v. New York, 347 U.S. 995 (1954) (“Decree Parties”). The amendments are for purposes of clarification and accuracy and to better ensure that the benefits of the changes effected by Resolution No. 2002-33 are achieved without compromising habitat protection goals. Resolution No. 2002-33, which was not codified, in part amended the Comprehensive Plan and Water Code relating to the utilization of Lake Wallenpaupack during drought watch, drought warning and drought operations. The proposed changes are as follows: First, numbered paragraph 1 of Resolution No. 2002-33 provides that “any and all provisions pertaining to the operation of Lake Wallenpaupack during basinwide drought warning also apply to basinwide drought watch as temporarily defined by the Commission in Docket No. D-77-20 CP.” The proposed amendment adds the parenthetical “(Revision 7 and following)” at the end of this sentence to make clear that the most current applicable revision of Docket No. D-77-20 CP is intended to apply. Second, the inclusion of the term “drought watch” in brackets following every mention of “drought warning” in the November 2002 amendments is proposed to be deleted, because the Commission makes clear in numbered Paragraph 1 of the Resolution that provisions in Section 2.5.5 of the Water Code pertaining to the operation of Lake Wallenpaupack during drought warning also are intended to apply to drought watch as defined by Docket No. D-77-20 CP (Revision 7 and following). Third, throughout the language added by Resolution No. 2002-33, the terms “drought conditions” and “drought warning conditions” are replaced by “drought operations” and “drought warning operations,” respectively, to more accurately reflect the fact that the reservoir management activities described are triggered by a set of reservoir drought operating rules established by the Commission and the Decree Parties, rather than by hydrologic conditions. Fourth, the November 2002 amendments inserted language at Section 2.5.5 of the Water Code stating that “[d]uring ‘drought’ and ‘drought warning’ operations * * *, “the power companies shall release water only in accordance with Commission direction.” This statement is proposed to be changed to reflect the Commission's intention that “[d]uring ‘drought’ and ‘drought warning’ operations as defined in Figure 1 of Section 2.5.3.A. of the Water Code, releases from Lake Wallenpaupack shall be made only in accordance with Commission direction.” In a related amendment, a new sentence is proposed to be added to Section 2.5.5 addressing operation of the Mongaup reservoir system by the Commission, which may take place only under more limited circumstances. The proposed provision reads, “After issuance of a Conservation Order by the Commission, power generation releases from the Mongaup reservoir system shall be made only in accordance with Commission direction.” This statement restores the rule governing drought operation of the Mongaup system reservoirs to the rule in effect before the November 2002 amendments. Fifth, the Commission proposes to add a clause providing that when it directs releases from Lake Wallenpaupack during drought watch (including warning) and drought operations, it must give consideration to any flow and temperature targets established by the Commission and the Decree Parties in the upper Delaware River and in the West Branch Delaware, East Branch Delaware, and Neversink rivers for the protection of the cold water fisheries in these streams.

DATES:

The public hearing will be held during the Commission's regularly scheduled business meeting on January 19, 2005 at 1:30 p.m. Persons wishing to testify at the hearing are asked to register in advance with the Commission by phoning 609-883-9500, ext. 224. Submission of written comments by January 14, 2005 would be appreciated, but written comments will be accepted through the close of the public hearing on Wednesday, January 19, 2005.

ADDRESSES:

The public hearing will be held in the Goddard Room of the Commission's office building at 25 State Police Drive in West Trenton, New Jersey. Written comments should be addressed to the Commission Secretary as follows: by e-mail to paula.schmitt@drbc.state.nj.us; by fax to 609-883-9522; by U.S. Mail to Commission Secretary, DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360; or by overnight mail to Commission Secretary, DRBC, 25 State Police Drive, West Trenton, NJ 08628-0360.

FOR FURTHER INFORMATION CONTACT:

The full text of the proposed resolution, the text of Resolution No. 2002-33, and the text of the sections of the Water Code as amended by both Resolution No. 2002-33 and the proposed resolution, are posted on the Commission's Web site, http://www.drbc.net. Please contact Commission Secretary Pamela Bush, 609-883-9500 ext. 203, with questions about the proposed action.