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Office of the Delaware River Master (ODRM)



SUPREME COURT OF THE UNITED STATES

No. 5, ORIGINAL.--OCTOBER TERM, 1950.

State of New Jersey, Complainant, 

v.

State of New York and City of New York, Defendants,
Commonwealth of Pennsylvania and State of Delaware, Intervenors.

AMENDED DECREE

[June 7, 1954.]

  The Court, having considered the amended petition of the City of New York, 
joined by the State of New York, to which is appended the consent of the State 
of New Jersey, the answer filed by the State of New Jersey seeking affirmative 
relief and the answers filed by the Commonwealth of Pennsylvania and the State 
of Delaware, the evidence and exhibits adduced by the parties, the report of 
Kurt F. Pantzer, Esquire, Special Master, and statements from all the parties 
addressed to the Court expressing the intention of the parties not to file 
exceptions or objections to the report, and being fully advised in the 
premises, now enters the following order:   

  I. REPORT OF SPECIAL MASTER APPROVED. The "Report of the Special Master 
Recommending Amended Decree," filed May 27, 1954, is in all respects approved 
and confirmed. 

  II. 1931 DECREE SUPERSEDED. The decree of this Court entered May 25, 1931 (283 
U.S. 805) is modified and amended as hereinafter provided and, upon the entry 
of this amended decree, the provisions of the decree of May 25, 1931, shall be 
of no further force and effect.   

  III. DIVERSIONS BY THE CITY OF NEW YORK ENJOINED EXCEPT AS HEREIN AUTHORIZED. 
The State and City of New York are enjoined from diverting water from the 
Delaware River or its tributaries except to the extent herein authorized and 
upon the terms and conditions herein provided.

  A. Authorized Diversions.

  1. 440 M. G. D. The City of New York may divert from the Delaware River 
watershed to its water supply system the equivalent of 440 million gallons 
daily (m. g. d.) until the City completes and places in operation its 
reservoir presently under construction on the East Branch of the Delaware 
River. 

  2. 490 M. G. D. After the completion and commencement of operation of the East 
Branch reservoir, the City may divert the equivalent of 490 m. g. d. until the 
completion of its proposed dam and reservoir at Cannonsville on the West 
Branch of the Delaware River, provided, however, that in the event of an 
abnormal or unforeseeable interruption of its facilities, the City may divert 
in excess of the equivalent of 490 m. g. d. to meet its emergency 
requirements, but in no event shall such diversion impair the obligation of 
the City to make the releases hereinafter specified.   

  3. 800 M. G. D. After the completion of the Cannonsville reservoir, the City 
may divert the equivalent of 800 m. g. d. 

  4. Computation of Diversion. At no time during any twelve-month period, 
commencing June 1, shall the aggregate total quantity diverted, divided by the 
number of days elapsed since the preceding May 31, exceed the applicable 
permitted rate of diversion.

  B. Conditions and Obligations Imposed in Connection With Diversions and 
Releases by City. The diversions and releases by the City of New York from the 
Delaware River shall be made under the supervision and direction of the River 
Master, hereinafter appointed, and shall be subject to the following 
conditions and obligations:

  1. Compensating Releases--The Montague Formula. The City shall release water 
from its reservoirs as follows:   

  (a) Until the East Branch reservoir is completed and placed in operation, on 
the day following each day in which the average flow in the Delaware River 
falls short of 0.50 cubic feet per second per square mile (c. s. m.), either 
at Montague, New Jersey (below the mouth of the Neversink River), or at 
Trenton, New Jersey (0.50 c. s. m. being equivalent to a flow of 1740 cubic 
feet per second (c. f. s.) at Montague and 3400 c. f. s. at Trenton), the City 
shall release water from the Neversink reservoir at an average of 0.66 
c. s. m. or 61.38 c. f. s.   

  (b) Upon the completion and placing in operation of the Neversink and East 
Branch reservoirs, the City shall release water from one or more of its 
storage reservoirs in the upper Delaware watershed. Such releases shall be in 
quantities designed to maintain a minimum basic rate of flow at the gaging 
station of the United States Geological Survey (U. S. G. S.) at Montague of 
1525 c. f. s. (985.6 m. g. d.) until the Cannonsville project is completed and 
its reservoir first filled to the extent that 50 billion gallons above the 
lowest outlet are available for diversion and release, and of 1750 c. f. s. 
(1131.1 m. g. d.) thereafter. Compliance by the City with directions of the 
River Master with respect to such releases shall be considered full compliance 
with the requirements of this subsection (b).   

  (c) At the commencement of the calendar year following the completion and 
placing in operation of the Neversink and East Branch reservoirs and of each 
calendar year thereafter, the City of New York shall estimate and report to 
the River Master the anticipated consumption of water during such year to be 
provided for by the City from all its sources of supply. The City shall, as 
hereinafter provided, release in the aggregate from all its storage reservoirs 
in the upper Delaware watershed, in addition to the quantity of water required 
to be released for the purpose of maintaining the then applicable minimum 
basic rate of flow as hereinabove provided, a quantity of water equal to 83 
per cent of the amount by which the estimated consumption during such year is 
less than the City's estimate of the continuous safe yield during such year of 
all its sources obtainable without pumping. In any such year the City's 
estimate of anticipated consumption shall not exceed by more than 7 1/4 billion 
gallons the actual consumption in any previous calendar year; and its safe 
yield in any such year, obtainable without pumping, shall be estimated at not 
less than 1355 m. g. d. after the Neversink and East Branch reservoirs are put 
into operation; and at not less than 1665 m. g. d. after the Cannonsville 
reservoir is put into operation. If, at any time after the completion of the 
Cannonsville reservoir and prior to the year 1993, the continuous net safe 
yield for water supply of all of the City's sources of water supply, 
obtainable without pumping, is increased by the development of additional 
sources, such greater safe yield shall be used in determining the excess 
releases. 

  (d) The City of New York shall release the excess quantity provided for in 
subsection (c) at rates designed to release the entire quantity in 120 days. 
Commencing with the fifteenth day of June each year, the excess releases shall 
continue for as long a period, but not later than the following March 15, as 
such additional quantity will permit. Such period is hereafter referred to as 
the "seasonal period." The excess quantity required to be released in any 
seasonal period shall in no event exceed 70 billion gallons. In releasing the 
excess quantity specified for any seasonal period, the City shall not be 
required to maintain a flow at Montague greater than the applicable minimum 
basic rate plus the excess quantity divided by 120 days, or in any event 
greater than 2650 c. f. s., nor to release at rates exceeding the capacity of 
its release works. The City shall in each seasonal period continue its excess 
releases until March 15 or until the aggregate quantity of the flow at 
Montague in excess of the basic rate or in excess of such higher rates as are 
not the result of the City's prior releases, is equal to the total specified 
excess quantity. 

  (e) The terms and conditions provided in subsections (b), (c) and (d) hereof 
shall continue to be applicable in all respects in the event that the 
U. S. G. S. gaging station at Montague shall be relocated at a point below the 
confluence of the Neversink River with the Delaware River. 

  2. Minimum Capacity of Release Works at Reservoirs of City. In constructing 
the Cannonsville reservoir, the City shall install release works of such 
capacity as will provide a minimum aggregate release capacity from all its 
reservoirs in the Delaware River watershed of not less than 1600 c. f. s. 
under conditions of maximum reservoir depletion. 

  3. Releases to be Continued in Spite of Interference. In the event that any 
works hereafter constructed by public or private interests in the watershed of 
the Delaware River outside of the State of New York shall prevent the proper 
operation of the U. S. G. S. gaging station at Montague or interfere with the 
effective operation of the above release requirements by diverting water past 
the station or by intercepting the natural flow and storing it in reservoirs 
with an aggregate storage capacity in excess of 25 billion gallons, the City 
of New York shall continue to make the releases above specified which would be 
required in the absence of such interference, and appropriate gaging stations 
shall be established for that purpose. 

  4. Inspection Permitted. The States of New Jersey and Delaware and the 
Commonwealth of Pennsylvania, through accredited representatives, and the 
River Master, shall at all reasonable times have the right to inspect the 
dams, reservoirs and other works constructed by the City of New York, to 
inspect the diversion areas and the inflow, outflow and diverted flow of such 
areas, to inspect the meters and other apparatus installed by the City of New 
York and to inspect all records pertaining to inflow, outflow and diverted 
flow.   

  IV. TREATMENT OF PORT JERVIS SEWAGE. The effluent from the sewage treatment 
plant at the City of Port Jervis, New York, shall be treated so as to effect a 
reduction of 85 per cent in the organic impurities and shall be treated with a 
chemical germicide, or otherwise, so that the E. coli originally present in 
the sewage shall be reduced by 90 per cent. Untreated industrial waste from 
plants in the City of Port Jervis shall not be allowed to enter the Delaware 
and Neversink Rivers. The treatment of such industrial wastes shall be such as 
to render the effluent practically free from suspended matter and 
nonputrescent. The treatment of both sewage and industrial waste shall be 
maintained so long as any diversion is made from the Delaware River or its 
tributaries. 

  V. DIVERSIONS BY NEW JERSEY AUTHORIZED UNDER SPECIFIED CONDITIONS. 

  A. Authorized Diversions. The State of New Jersey may divert outside the 
Delaware River watershed, from the Delaware River or its tributaries in New 
Jersey, without compensating releases, the equivalent of 100 m. g. d., if the 
State shall not, prior to July 1, 1955, repeal Chapter 443 of the New Jersey 
Laws of 1953, and if, when the Commonwealth of Pennsylvania accepts the 
conditions as specified in Section 19 of that Chapter, the State of New Jersey 
shall join with the Commonwealth of Pennsylvania in requesting the consent of 
Congress to the agreement embodied in Chapter 443 of the New Jersey Laws of 
1953 and an Act of the Commonwealth of Pennsylvania accepting the conditions 
of such New Jersey Act. 

  B. Conditions and Obligations Imposed in Connection with Diversions by New 
Jersey. The diversions by New Jersey from the Delaware River shall be made 
under the supervision of the River Master and shall be subject to the 
following conditions and obligations:

  1. Until the State of New Jersey builds and utilizes one or more reservoirs to 
store waters of the Delaware River or its tributaries for the purpose of 
diverting the same to another watershed, the State may divert not to exceed 
100 m. g. d. as a monthly average, with the diversion on any day not to exceed 
120 million gallons. 

  2. If and when the State of New Jersey has built and is utilizing one or more 
reservoirs to store waters of the Delaware River or its tributaries for the 
purpose of diversion to another watershed, it may withdraw water from the 
Delaware River or its tributaries into such impounding reservoirs without 
limitation except during the months of July, August, September and October of 
any year, when not more than 100 m. g. d. as a monthly average and not more 
than 120 million gallons in any day shall be withdrawn. 

  3. Regardless of whether the State of New Jersey builds and utilizes storage 
reservoirs for diversion, its total diversion for use outside of the Delaware 
River watershed without compensating releases shall not exceed an average of 
100 m. g. d. during any calendar year.   

  VI. EXISTING USES NOT AFFECTED BY AMENDED DECREE. The parties to this 
proceeding shall have the right to continue all existing uses of the waters of 
the Delaware River and its tributaries, not involving a diversion outside the 
Delaware River watershed, in the manner and at the locations presently 
exercised by municipalities or other governmental agencies, industries or 
persons in the Delaware River watershed in the States of New York, New Jersey 
and Delaware and the Commonwealth of Pennsylvania.

  VII. RIVER MASTER.   

  A. Designation. Subject to the concurrence of the Director of the U. S. 
Geological Survey, the Chief Hydraulic Engineer of the U. S. Geological 
Survey, or such other engineer of the U. S. Geological Survey as shall at any 
time be designated by the Chief Hydraulic Engineer, is hereby designated as 
River Master.

  B. Duties. The River Master shall either in person or through his assistants 
possess, exercise and perform the following duties and functions:

  1. General Duties.   

  (a) Administer the provisions of this decree relating to yields, diversions 
and releases so as to have the provisions of this decree carried out with the 
greatest possible accuracy; 

  (b) Conserve the waters in the river, its tributaries and in any reservoirs 
maintained in the Delaware River watershed by the City of New York or any 
which may hereafter be developed by any of the other parties hereto; 

  (c) Compile and correlate all available data on the water needs of the parties 
hereto; 

  (d) Check and correlate the pertinent stream flow gagings on the Delaware 
River and its tributaries;

  (e) Observe, record and study the effect of developments on the Delaware River 
and its tributaries upon water supply and other necessary, proper and 
desirable uses; and 

  (f) Make periodic reports to this Court, not less frequently than annually, 
and send copies thereof to the Governors of Delaware, New Jersey, New York and 
Pennsylvania, and to the Mayor of the City of New York. 

  2. Specific Duties with Respect to the Montague Release Formula. In connection 
with the releases of water which the City of New York is required to make 
under Par. III-B-1 (b) of this decree, the River Master, in co-operation with 
the City of New York, shall, by appropriate observation and estimates, perform 
the following duties: 

  (a) Determine the average times of transit of the flow between the release 
works of the several reservoirs of the City and Montague and between the 
release works of other storage reservoirs in the watershed and Montague; 

  (b) Make a daily computation of what the average flow observed on the previous 
day at Montague would have been, except for that portion previously 
contributed by releases of the City or as affected by the contributing or 
withholding of water at other storage reservoirs, for the purpose of computing 
the volume of water that would have had to be released in order to have 
maintained precisely the basic rate on that day; 

  (c) Take account of all changes that can be anticipated in the flow from that 
portion of the watershed above Montague not under the City's control and allow 
for the same by making an appropriate adjustment in the computed volume of the 
daily release; and 

  (d) After taking into consideration (a), (b) and (c), direct the making of 
adjusted daily releases designed to maintain the flow at Montague at the 
applicable minimum basic rate. 

  C. Distribution of Costs. The compensation of, and the costs and expenses 
incurred by, the River Master shall be borne equally by the State of Delaware, 
State of New Jersey, Commonwealth of Pennsylvania, and the City of New York. 

  D. Replacement. In the event that for any reason the Chief Hydraulic Engineer 
of the U. S. G. S. or his designee cannot act as River Master, this Court 
will, on motion of any party, appoint a River Master and fix his compensation. 

  VIII. NO PRIOR APPROPRIATION NOR APPORTIONMENT. No diversion herein allowed 
shall constitute a prior appropriation of the waters of the Delaware River or 
confer any superiority of right upon any party hereto in respect of the use of 
those waters. Nothing contained in this decree shall be deemed to constitute 
an apportionment of the waters of the Delaware River among the parties hereto. 

  IX. DECREE WITHOUT PREJUDICE TO THE UNITED STATES. This decree is without 
prejudice to the United States. It is subject to the paramount authority of 
Congress in respect to commerce on navigable waters of the United States; and 
it is subject to the powers of the Secretary of the Army and Chief of 
Engineers of the United States Army in respect to commerce on navigable waters 
of the United States. 

  X. RETENTION OF JURISDICTION; NO ESTOPPEL. Any of the parties hereto, 
complainant, defendants or interveners, may apply at the foot of this decree 
for other or further action or relief, and this Court retains jurisdiction of 
the suit for the purpose of any order or direction or modification of this 
decree, or any supplemental decree that it may deem at any time to be proper 
in relation to the subject matter in controversy. The fact that a party to 
this cause has not filed exceptions to the report of the Special Master or to 
the provisions of this decree shall not estop such party at any time in the 
future from applying for a modification of the provisions of this decree, 
notwithstanding any action taken by any party under the terms of this decree. 

  XI. COSTS OF THIS PROCEEDING. The costs of this proceeding shall be paid by 
the parties in the following proportions: State of New Jersey, 26 2/3 per 
cent, City of New York, 26 2/3 per cent, State of New York, 10 per cent, 
Commonwealth of Pennsylvania, 26 2/3 per cent, and State of Delaware, 10 per 
cent.


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