Delaware • New Jersey • Pennsylvania
New York • United States of America
In 1954, the United States Supreme Court issued a decree in the case of New Jersey v. New York that established an equitable allocation under federal common law. When one state sues another state, original jurisdiction lies in the U.S. Supreme Court. A lawsuit between states is one of the few instances in which the U.S. Supreme Court hears a case that has not come up through the trial and appellate courts. In this particular case, there were five parties before the U.S. Supreme Court – the four basin states and New York City. Through the auspices of a Special Master, the Court eventually entered a decree that established the following terms:
- Allocated to New York City the equivalent of 800 million gallons per day from the city’s three Delaware Basin reservoirs, effective when all three of those reservoirs were fully constructed, which occurred in 1964;
- Required compensating releases to maintain a flow of 1,750 cubic feet per second at Montague, N.J.;
- Established an excess quantity to be released from the reservoirs each year (the “Excess Release Quantity” or “ERQ”); and
- Granted certain diversion rights to New Jersey.
These are the essential elements of the U.S. Supreme Court Decree, equivalent to a court order, and those elements became the law of the river when the decree was issued in 1954.
Now in addition to the judicial branch, we also have in our system the legislative branch. The legislature, just like the U.S. Supreme Court, has the power to provide for the allocation of water resources between states. In 1961, the four basin states and the United States enacted legislation known as the Delaware River Basin Compact. The compact granted to the DRBC the authority to perform an equitable allocation of waters throughout the basin. However, the compact included an important limitation: Sections 3.3 and 3.5 of the compact provide that the DRBC may not adversely affect the rights and obligations of the parties to the U.S. Supreme Court Decree of 1954 (“decree parties”) without the unanimous consent of the decree parties. As a result, we have a hybrid process. The DRBC can take an action through notice and comment rulemaking, but it cannot put into effect any allocation of water resources that would adversely affect the rights and obligations established by the 1954 decree without the consent of each party to the decree. When changes to the DRBC’s Water Code that involve releases from the New York City Delaware reservoirs are considered, they can go into effect only with the unanimous consent of the decree parties because that is what the statute – the DRBC compact – requires.
(Thanks to DRBC General Counsel Kenneth Warren for this explanation.)