16 pages (includes illustrations and maps)

Healy, J. Kevin

English

Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons New Sources of Water for Energy Development and Growth: Interbasin Transfers: A Short Course (Summer Conference, June 7-10) 1982 6-9-1982 New York City’s Battles for Imported Water J. Kevin Healy Follow this and additional works at: https://scholar.law.colorado.edu/new-sources-of-water-for-energy-development-and-growth-interbasin-transfers  Part of the Agriculture Law Commons, Animal Law Commons, Aquaculture and Fisheries Commons, Biodiversity Commons, Contracts Commons, Energy and Utilities Law Commons, Environmental Law Commons, Hydrology Commons, Law and Economics Commons, Legal History Commons, Legislation Commons, Natural Resource Economics Commons, Natural Resources and Conservation Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, Oil, Gas, and Mineral Law Commons, Property Law and Real Estate Commons, State and Local Government Law Commons, Transportation Law Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Healy, J. Kevin, "New York City’s Battles for Imported Water" (1982). New Sources of Water for Energy Development and Growth: Interbasin Transfers: A Short Course (Summer Conference, June 7-10). https://scholar.law.colorado.edu/new-sources-of-water-for-energy-development-and-growth-interbasin-transfers/18 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     J. Kevin Healy, New York City’s Battles for Imported Water, in NEW SOURCES OF WATER FOR ENERGY DEVELOPMENT AND GROWTH: INTERBASIN TRANSFERS (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law 1982).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  NEW YORK CITY'S BATTLES FOR IMPORTED WATERJ. Kevin HealyGeneral Counsel, New York City Departmentof Environmental Protection, New YorkNew Sources of Water for EnergyDevelopment and Growth: Interbasin Transfersa short course sponsored by theNatural Resources Law CenterUniversity of Colorado School of LawJune 7-10, 1982_n--en 	 NEW YORK CITY' BATTLES FORIMPORTED WATERI. DESCRIPTION OF NEW YORK CITY'S WATERSUPPLY SYSTEM.New York City uses more than 1.2billion gallons of water per day, whichis supplied by a series of reservoirs lo-cated north and west of the City in theCatskill Mountains. There are three sep-arate watershed areas in the water supplysystem:1. The Croton watershed, located im-mediately north of the City in Westchesterand Putnam Counties is the oldest, havingbeen initiated in the late 19th century,and completed by 1920. It provides 200million gallons of water per day from acomplex system of controlled lakes andreservoirs.•2. The Catskill watershed is situatedin the northern Catskills, about 100 milesupstate, near Kingston, N. Y. It consistsof two huge reservoirs, which were constructed• in the 1920's, and supplies about 450 mil-lion gallons of water to the City each day.3. The Delaware Watershed lies in anarea to the Northwest of the City, in the4-1western part of the Catskills. Thereare three major reservoirs in this system,and it supplies almost 700 million gallonsper day to the City - approximately 40%of the supply.II. LEGAL PROBLEMS INVOLVED WITH THEDEVELOPMENT OF THE CROTON AND CAT-SKILL WATERSHED RESERVOIRS.1. Neither system involves an inter-state waterway, so our legal problems layentirely within the State of New York.(a) The City needed State legis-lation to allow it to condemn propertyoutside of its boundaries for water supplypurposes. The basic legislation giving usthis right, the Water Supply Act of 1905requires us to provide water to severalupstate communities and to treat sewagein some of them.(b) The condemnation proceedingswe initiated to take title to the 96,000acres of land we needed for our reservoirswere hotly contested. In fact a residueof bitterness on the part of the upstatecitizenry, many of whom lost family home-steads, remains to this day.Q-2(c) Riparian owners brought claimsagainst the City for damages suffered whenwe obstructed the flow of several riversand streams. Thousands of these claims haveyet to be settled, so the City maintainsan office staffed with two attorneys inKingston, New York, working on riparianclaims almost exclusively.III. LEGAL PROBLEMS INVOLVED WITH THEDEVELOPMENT OF THE DELAWARE WATER-SHED.1. These reservoirs capture waterwhich would otherwise flow into the Dela-ware River, an interstate waterway risingin New York and flowing through New Jersey,Pennsylvania and Delaware. The DelawareRiver provides a primary source of waterto New Jersey and Pennsylvania and is es-sential to the economy of Delaware , soa tremendous amount of interstate contro-versy arose when we initiated our plansto divert its waters.2. The first round came in 1929, whenthe City began the initial phase of itsDelaware program - construction of thePepacton and Neversink Reservoirs.(a) New Jersey brought suit againstNew York State and the City in the U.S.4-3Supreme Court. Pennsylvania and Delawareintervened. Three basic issues were liti-gated.1. Was New York City, a municipalitysituated outside of the Delaware RiverBasin, entitled to divert water for itsuse?2. If it was, what principles shouldbe applied to determine what amount it isentitled to take?3. Applying such principles, whatquantity of water could the City divertfrom the River?(b) The Court appointed a SpecialMaster, who submitted his report two yearslater, finding:1. The City was entitled totake water from the River. Utilization ofthe portion of the Delaware River lyingwithin its borders, the Special Master found,is a matter left to the discretion of theState of New York. If it opts to allow theCity to divert water for water supply pur-poses, (which the Master felt was the highestuse to which a river can be put) it can doso. Even though the City lies within thebasin of the Hudson River, a major waterwayQ-4which could be used to supply its water,it may, with the permission of the State,select to import the higher quality waterof the Delaware River.2. However, this right mustbe limited by the application of certainprinciples. The Special Master found thatneither the doctrine of Riparian Rightsnor that of Prior Appropriation could prop-erly be applied, so he developed the Doc-trine of Equitable Apportionment, suggest-ing that the waters of the Delaware be dis-tributed among the States according to theprinciples of equity.3. Applying such principles,he recommended that the City be allowed todivert 440 million gallons per day. TheCity had requested 600 m.g.d.The Court approved the Special Master'sreport in one of Justice Holmes' most not-able opinions. N.J. v. N.Y. 283 U.S. 336(1931).3. The second round came in theearly 1950's, when the City sought to con-struct the Cannonsville Reservoir. TheCity made an application to amend the 1931decree, to allow it to divert up to 800 m.g.d.4-5Again a Special Master was appointed;testimony was taken and negotiationswere convened over a period which lastedfor two years. The parties were able tonegotiate a consent decree which wasadopted by the Court in 1954. N.J. v. N.Y.347 U.S. 995 (1954).(a) The heart of the amended de-cree was the so called "Montague formula".Simply stated, this formula allowed theCity to divert up to 800 M.G.D. from allof its Delaware Reservoirs, provided thatit made sufficient releases back to theRiver to maintain a streamf low at Montague,New Jersey of at least 1750 cubic feet persecond at all times.1. This scheme was designedto allow the City to divert enough waterto meet its needs while maintaining a largeenough streamflow to continuously repelthe "salt front" which would otherwisecreep upstream from Delaware Bay, threaten-ing water supplies in New Jersey and Penn-sylvania.2. It was founded upon varioustechnical assumptions including the "droughtof record", the one which took place in theQ-6Northeast in the 1930's. It was antici-pated that no more severe a drought wouldbe experienced.(b) A River Master was appointedto oversee the City's compliance with theMontague formula, and to undertake otheractivities to "conserve the waters of thebasin".4. The third roUnd came after 1961,when the Delaware River Basin Compact wassigned, bringing the Delaware River BasinCommission into existence.(a) This compact, which is citedas Pub. L. 87-328 [75 Stat. 688], containsseveral important provisions including:1. Section 3.3, which providesDRBC with extraordinary powers to be usedin the event of a water supply emergency:including the power to alter the diver-sions and releases of the decree with theunanimous consent of the Commission mem-bers (the City of New York, a party to thedecree is not a "member" of the Commission -it must rely upon the State of N.Y. to re-present its interests in a water supplyemergency.)Q-72. Section 3.5 prohibits theDRBC from altering the diversions and re-leases of the City reservoirs without theunanimous consent of the parties to the 1954decree, except during an emergency.3. Section 3.4, whereby all ofthe signatory parties (including New YorkState, New Jersey, Pennsylvania and Delaware)absolutely waived their rights to seek anamendment to the 1954 decree for a periodof 100 years.(b) In the mid-60's a drought muchmore severe than the "drought of record",the one experienced in the 1930's, occurred.Compliance with Montague formula, basedas it was on a less severe drought, led tothe near depletion of the reservoirs, andto the declaration of a water supply emer-gency by DRBC.1. The Commission declared thisemergency only after the City abruptlyceased making releases at the direction ofthe River Master and streamf low fell sharply.2. The administrative proceed-ings which ensued, therefore took place inQ-8an atmosphere of crisis and interstateacrimony. However, emergency orderswere issued cutting back diversions andreleases, and imposing conservation re-quirements, so the emergency was abated.5. The fifth round of controversytook place in the 1970's. Pennsylvaniaand New Jersey had intended to cope withthe water supply problems made apparentby the drought of the 1960's by construct-ing a large reservoir on the mainstreamof the Delaware. However, this reservoir(known as "Tock's Island") was to besituated near the scenic Delaware WaterGap, and an environmental and politicalcontroversy flared. The project was aban-doned in 1977 when Congress (with the sup-port of the Governor of New York State)declared the area to be a wild and scenicpreserve.(a) Pennsylvania, in reaction,introduced a resolution in the DRBC in1978 which called for the parties to thedecree to renegotiate the Montague formula,and threatened to seek to reopen the decree(despite the waiver contained in the compact)Q-9if such negotiations were unsuccessful.1. The City objected, but recog-nizing that the drought of the 1960'sundercut the Montague formula, the partiesnegotiated a resolution which called for"good faith" discussions to develop a long-term drought contingency plan which wouldreduce the diversions and releases of thedecree in the event of a severe shortage.2. The "good faith" negotiationstook place from 1979-1980, but were sus-pended when a severe drought hit the north-east in the fall of 1980. The "good faith"negotiators turned their attention todealing with the drought of the 1980's.(b) This drought was nearly as severeas the drought of the 1960's, but the negoti-ations were not so acrimonious.1. A technical consensus had al-ready been negotiated fixing the point atwhich a drought "warning" and a drought"emergency" would be declared by the Com-mission. This point was based upon thewater level in the New York City DelawareBasin reservoirs.2. The parties had already gonesome way towards developing a phasedQ-10diversion/release cutback scheme, keyedto the depth of the drought.3. A consensus had already beenreached as to the basic elements of acommon conservation plan.(c) DRBC emergency orders, contain-ing specific diversion and release cut-backs were negotiated and implemented inthree stages during the drought. The fi-nal stage, which became effective duringthe most severe part of the drought reducedthe City's diversion to 520 m.g.d. and re-duced the releases required to maintainstreamf low at Montague at levels varyingfrom 1550 to 1100 c.f.s. depending uponthe geographical location of the salt front.(d) It rained in February, 1981 andample rain has continued since that timeso the reservoirs are now full, and the"good faith" discussions have been resumed.A proposed agreement is nearing completion,and will shortly be undergoing public re-view.It contains recommendations for con-trol of the advancing salt front, for regu-lation of consumptive and depletive uses,as well as emergency measures to be takenduring future times.Q-11

New York City’s Battles for Imported Water

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New York City’s Battles for Imported Water

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