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ELWOOD v. CITY OF NEW YORK

March 31, 1978

GEORGE ELWOOD, Administrator of the Estate on Beatrice A. Van Loan, Plaintiff,
v.
THE CITY OF NEW YORK, Defendant. GEORGE K. GREGORY and HELEN GREGORY, Plaintiffs, v. THE CITY OF NEW YORK, Defendant. LILLIAN J. BADGLEY, Plaintiff, v. THE CITY OF NEW YORK, Defendant. EMIL LAKE and HELEN LAKE, Plaintiffs, v. THE CITY OF NEW YORK, Defendant. LLOYD F. CANFIELD and ELOISE L. CANFIELD, Plaintiffs, v. THE CITY OF NEW YORK, Defendant.


Brieant


The opinion of the court was delivered by: BRIEANT

FINDINGS AND CONCLUSIONS

Brieant, J.

 These five actions, consolidated for trial, have been brought by, or in the name of, owners of riparian land situated in Pennsylvania, who claim that the value of their lands along the Delaware River and its West Branch was diminished by the City of New York's diversion of the headwaters of the Delaware River for public water supply purposes.

 The Court has subject matter jurisdiction based upon diversity of citizenship of the parties at the dates of commencement of the actions, pursuant to 28 U.S.C. § 1332(a)(1). Trial was before the Court without a jury, commencing on June 2, 1975. Post-trial briefs, memoranda and submissions of the parties have been read and considered.

 The Delaware River

 An understanding of the location, design and operation of that portion of the New York City water supply system drawn from the Delaware River is essential to an understanding of this litigation. The Delaware is one of the major rivers on the Atlantic seaboard. From its sources in New York State to Delaware Bay, the River runs 410 miles, and drains a watershed of some 12,765 square miles. The Delaware River has two main branches, the East Branch and the West Branch. The West Branch rises north of Stamford, New York in Delaware County. The East Branch has its origin near Margaretville, New York. On its way to the sea, the Delaware River is joined by many streams and tributaries.

 The two branches join at Hancock, New York. Thereafter, the River flows in a generally southeasterly direction. Commencing near Deposit, New York, the West Branch forms the boundary line between New York and Pennsylvania. At Tri-State Rock, near Port Jervis, New York, the boundaries of New Jersey, New York and Pennsylvania converge. Below Tri-State Rock, the River constitutes the boundary between New Jersey and Pennsylvania. The Lehigh River joins the Delaware near Easton, Pennsylvania. At the head of Delaware Bay near Wilmington, Delaware, it discharges into the Atlantic Ocean.

 Pursuant to proceedings in the Supreme Court, discussed below, the City of New York constructed Pepacton Reservoir, on the East Branch of the Delaware near Downsville, New York. This, and all of the City's reservoirs discussed herein are located entirely in New York State. No part of New York City is located in the drainage basin of the Delaware or any of its tributaries.

 Impoundment of water behind the dam erected to create the Pepacton Reservoir began in September 1954; the first diversion to New York City occurred in January 1955; and the dam spilled for the first time on April 16, 1956. Pepacton Reservoir is 180 feet deep at its deepest point, and has a capacity of some 147 billion gallons. The drainage area impounded by Pepacton is 371 square miles.

 Thereafter, the City constructed Cannonsville Reservoir, on the West Branch of the Delaware near Stilesville, New York. Impoundment at the Cannonsville Reservoir began in September 1963; the first diversion to New York City occurred in January 1964; and that dam first spilled on May 9, 1967. The Cannonsville Reservoir has a maximum depth of 150 feet and a capacity of 97.4 billion gallons. The drainage area impounded by Cannonsville is 450 square miles. On the Neversink River, a tributary of the Delaware, the City also has the older and smaller Neversink Reservoir, impounding a drainage area of 92 square miles and having a maximum storage capacity of 37.1 billion gallons.

 The premises of the plaintiffs described below, are all, except for Van Loan, located downstream of the confluence of the West Branch and East Branch of the Delaware, and above the point where the Neversink River enters the Delaware. The Van Loan property is situated upstream from Hancock, near Ball's Eddy, New York, and is affected only by operation of the Cannonsville Reservoir.

 Water flows in the Delaware River are affected by the impoundment activities of third parties. Lake Wallenpaupack in Pennsylvania has been dammed by a hydroelectric generating station. It contains a drainage area of 228 square miles, and discharges into the Delaware through the Lackawaxen River at a point upstream from Barryville, New York, and also upstream from the Montague, New Jersey gauging station, mentioned below. As electric demand varies, the amount of impounded water being released increases or decreases. A similar project on the Mongaup River in New York State has a similar effect. The Mongaup also joins the Delaware above Montague, New Jersey.

 All plaintiffs are located upstream from the Lackawaxen, Mongaup and Neversink Rivers. Streamflow in the Delaware at their parcels is not augmented when water is released downstream by the City from the Neversink Reservoir, or by the generation of electric power by unrelated persons on the Lackawaxen and the Mongaup.

 The function of the three City reservoirs mentioned above is to impound spring runoff, store it during periods of little or no rainfall, and divert the stored water from the watershed of the Delaware to the Hudson River Valley by means of the Delaware Aqueduct System. The water is used by the City of New York, and, to a minimal extent, also by other New York communities situated along the course of the Aqueduct. After use, it is discharged into drainage basins other than that of the Delaware River, generally the Hudson River and New York Bay.

 The term "diversion" is neutral in the law. It can indicate the perfectly proper "ordinary and domestic uses," York Haven Water & Power Co. v. York Haven Paper Co., 201 F. 270, 275 (3d Cir. 1912), to which every riparian owner can turn the waters of a stream flowing through or at the boundary of his land, so long as he returns the residue to the stream within the boundaries of his land. See, Mayor v. Commissioners, 7 Pa. 348, 367-68 (1847). To be lawful, such uses need only be reasonable. Where, however, a riparian owner's uses of the waters of a stream unreasonably deprive a downstream riparian owner of the value of his location, see, Williams v. Fulmer, 151 Pa. 405, 414, 25 A. 103 (1892), by changing the channel, direction, flow, stage, quality, etc., of the stream -- all of which are summed up in the common law phrase "currere solebat," -- the diversion invades a valuable property right of a downstream owner and is actionable. See, United States v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 702, 43 L. Ed. 1136, 19 S. Ct. 770 (1899); Hackensack Water Co. v. Village of Nyack, 289 F. Supp. 671 (S.D.N.Y. 1968). The permanent massive diversion of water out of a channel for uses outside the drainage area and unconnected with the ownership and use of riparian land, as, for example, to add to the water supply of a community that is not within the drainage area of the stream, is unreasonable. See, e.g., Standard Plate Glass Co. v. Butler Water Co., 5 Pa. Super. Ct. 563 (1897).

 At the present time, New York City relies on three principal sources to meet its water supply needs. The two older sources are the Croton System, on the Croton, Bronx and Byram Rivers, and the Catskill System, on Esopus Creek and Schoharie Creek. The Delaware System, comprising the reservoirs on the East and West Branches and on the Neversink River, is the City's most recent source of supply and provides fully 50% of the City's needs. Since in years normal rainfall the available water exceeds requirements, the City can and does draw at varying times greater or lesser amounts from its different sources, having regard to operating costs, pending maintenance and repair projects, comparable quality, tastes and odors, and related operating criteria. Because of its larger size, and the relatively smaller human population and industrial activity in the watershed area, Delaware water is regarded as the best quality water presently available from the various City sources. New York chlorinates its supply but has not yet found it necessary to filter or otherwise treat its water, as do most communities.

 The Parties and Their Properties

 The lands of four of the plaintiffs here are located on the Pennsylvania side of the main body of the Delaware River between Hancock, New York and Narrowsburg, New York. The property of one of the plaintiffs, Van Loan/Elwood, is located on the Pennsylvania side of the West Branch, above Hancock, New York near Ball's Eddy. All are located upstream from Montague, New Jersey, and upstream from the points where the Lackawaxen, Mongaup and Neversink Rivers join the Delaware.

 (1) Van Loan/Elwood. Mrs. Beatrice Van Loan was the first of these plaintiffs to commence action against the City. Consequently, the procedural history of her action is the most complex.

 Mrs. Van Loan owned 124 acres of land with approximately one-half mile frontage on the West Branch of the Delaware, about five miles above the confluence of the East and West Branches at Hancock, New York. Hers is the only property not located on the main body of the Delaware. She bought the property in 1922, and operated a dairy farm at the time of her death.

 On July 23, 1962, she filed her original complaint seeking to enjoin construction of the Cannonsville Reservoir, then being built some 10 miles upstream from her property. She alleged that since no express statutory provision had been made by New York State to compensate Pennsylvania riparians for the City's damage to riverfront property, the City's action constituted a "taking" without compensation.

 By a Memorandum Opinion dated November 14, 1963, this Court dismissed Van Loan's complaint as premature, since the Cannonsville Dam had not yet been completed and would, when complete, cause no injury for which money damages would not be adequate compensation. Judge McLean granted leave to amend the complaint when the dam was completed. *fn1"

 Mrs. Van Loan died testate in May 1965. By a Memorandum Decision dated May 31, 1966, Judge Wyatt of this Court allowed the filing of an amended complaint by George Elwood, the ancillary administrator d.b.n., c.t.a. of Mrs. Van Loan's Estate, who had been appointed after the resignation of the named executor. The amended complaint was filed on May 4, 1966.

 On November 12, 1966, the administrator sold the Van Loan property at auction for $ 15,200.00. Title was conveyed on February 23, 1967. The administrator's deed expressly reserved all rights against the City of New York, for past or future damages or the taking. The Deed (Ex. 39) reads in relevant part as follows:

 
"ALSO EXCEPTING AND RESERVING unto the seller, the heirs, legatees and devisees of the Beatrice VanLoan Estate or their assigns, a claim or claims against the City of New York arising out of and by reason of rights heretofore acquired and to be acquired in connection with the past and future diversion of the West Branch of the Delaware River which has already and will cause a decrease in the market value of the real estate being sold, and for business damages heretofore incurred, and all aspects thereof."

 For a discussion of the effect of this Reservation of rights see text infra, pp. 52-53.

 On August 7, 1967, Judge Bonsal of this Court denied cross-motions for summary judgment in the Van Loan/Elwood action, holding that apparent disputed factual issues were present. Elwood v. City of New York, 271 F. Supp. 62 (S.D.N.Y. 1967).

 By a Memorandum Decision dated March 27, 1973, Judge Pierce of this Court dismissed the Elwood complaint for failure to allege the filing of a Notice of Claim pursuant to New York General Municipal Law §§ 50-e and 50-i. However, in light of plaintiff's claim of a continuing trespass, leave to amend the complaint on filing of a Notice of Claim was granted. The Court noted that "the initial period of the claim would be limited by this late filing to encompass trespass only up to 90 days before the notice of claim was filed," citing Hackensack Water Co. v. Village of Nyack, 289 F. Supp. 671 (S.D.N.Y. 1968).

 Elwood filed his notice of Claim on April 24, 1973, and on June 11, 1973 filed his amended complaint.

 (2) Badgley. Mrs. Lillian Badgley commenced her action against the City on July 15, 1966. In 1958 she and her husband had purchased approximately two acres of land with 530 feet of River frontage on the main body of the Delaware River just above the Lake parcel. They paid $ 22,500.00 for the property and she claims to have made some $ 40,000.00 worth of improvements on the property in order to make it into a resort. Her husband, Foster Badgley, died in 1965, and as a result, title vested in her. She has since remarried, to one Dixon, but retains title to the property in her prior name.

 Mrs. Dixon filed her Notice of Claim against the City on May 24, 1972.

 On March 22, 1973 on the City's motion in Lake, Badgley and in a third case, Duryea Pine Flats Hunting Lodge, 66 Civ. 2151, which is no longer pending, *fn2" this Court issued a Memorandum Decision dismissing the complaints with leave to amend the complaints to include proper allegations of filing the required Notices of Claim.

 That decision held that, although the plaintiffs could not avail themselves of Title K of the Administrative Code of the City of New York, *fn3" and although, for the reasons therein stated, they had suffered no extraterritorial "taking" of their Pennsylvania property by the City of New York, they were entitled to pursue their actions for a continuing trespass, and to recover "damages not only to the date of judgment, but for anticipated future injury to the property during the foreseeable life of the diversion works, or in perpetuity." Id. at 4.

 Decision was reserved on the question whether, under Pennsylvania law, "one who conveys title may reserve to himself [in his deed of conveyance] the right to assert a claim for a permanent continuing trespass in futuro," but I rejected the City's defenses based on the interstate allocation of the waters of the Delaware River:

 
"Nothing is found in New Jersey v. New York, 347 U.S. 995, 98 L. Ed. 1127, 74 S. Ct. 860 (1954), or in the Delaware River Basin Compact, as approved in Pub. Law 87-328, or in any Pennsylvania statute enacted pursuant thereto, which implies otherwise." Id. at 10.

 An amended complaint in Badgley was filed thereafter, on April 25, 1973.

 (3) Lake. Emil and Helen Lake filed their complaint against the City on July 15, 1966. At that time they owned some 15 acres, bought in 1945 and 1951 for approximately $ 4,200.00, with 600 feet of frontage on the main body of the Delaware just upstream from the Gregory parcel, described below.

 On September 27, 1968 the Lakes sold their property for $ 18,500.00. By recital essentially the same as that found in the Elwood/Van Loan deed, they reserved all rights against the City of New York.

 On May 23, 1972, alerted by the pending City motion to dismiss in Gregory v. City of New York, supra, the Lakes filed the Notice of Claim required by the General Municipal Law, and amended their complaint on April 4, 1973.

 (4) Gregory. George and Helen Gregory commenced their action against the City of New York on July 15, 1966. They are New Jersey residents, who, in 1960, purchased 124 acres of riparian land in Pennsylvania with some 4,000 feet of frontage on the Delaware River. They paid $ 20,000.00 for the property, which included at the time of purchase a house, barn, sauna and four cottages. Between 1964 and the time of trial they sold some 34.5 acres of their land, including 3,323 feet of River frontage, for $ 48,900.00, and retained at the time of trial some 89 acres and 750 feet of frontage. The Gregory parcel is located some 39 miles downstream from the Pepacton Reservoir, and 22 miles downstream from the Cannonsville Reservoir.

 In a prior decision [Gregory v. City of New York, 346 F. Supp. 140 (S.D.N.Y. 1972)], familiarity with which is assumed, this Court held that the Water Supply Act, Title K, Chapter 51 of the Administrative Code of the City of New York, which prescribes a procedure by which owners can be compensated for the City's impairment of their riparian rights, was not available to holders of property in Pennsylvania, but that both New York and Pennsylvania law provided a cause of action to recover damages, if any, resulting from the City's continuing trespass. However, the original Gregory complaint was dismissed because of the plaintiffs' failure to file the Notice of Claim required by Sections 50-e and 50-i of New York's General Municipal Law. Plaintiffs were granted leave to file the Notice, and thereafter, an amended complaint alleging a continuing trespass to their rights as riparians to the extent not time barred. On May 25, 1972, these plaintiffs filed their Notice of Claim, and on July 27, 1972, filed an amended complaint demanding $ 50,000.00 damages for the City's continuing trespass.

 The claims alleged in the Gregory's amended complaint are typical of those made by all plaintiffs in this consolidated action, and are as follows:

 
"That by reason of the aforesaid diversions of the [Delaware] river and the trespasses by the defendants herein and absence of water in said river at the plaintiff's premises downstream therefrom, and the permanence of said diversion and of said trespasses and past, present and future operation by the City of New York of said dams at Cannonsville and Downsville, and the said Pepacton and Cannonsville Reservoirs, the said river has and will become a swamp, fishing therein has [been] and will be destroyed, and the river will become oderiferous, unsightly, and will be unable to provide plaintiff's property with ground water and surface water, will decrease the fertility of said property, will make such property unsuitable for recreational purposes, all of which has and will greatly decrease the market value of the plaintiff's property and cause damage thereto by reason of the foregoing and other effects of said diversions and trespasses too numerous to mention, all to the plaintiff's damage . . . ." [P 9, matter in brackets added.]

 (5) Canfield. Lloyd and Eloise Canfield filed their complaint against the City on December 22, 1971, at which time they owned 166 acres on the main body of the Delaware with about 6,700 feet of River frontage. Their Notice of Claim against the City was filed on October 20, 1971, and was properly pleaded in their complaint.

 In 1954 Canfield acquired title to the property, then consisting of 278 acres, for $ 5,000.00 from his half brother, Grant Lee Canfield, a minor under the age of 14 years. This was accomplished through a judicial proceeding in a Pennsylvania court in which the Wayne County Savings Bank as guardian of the Estate of Grant Lee Canfield, sold the premises to these plaintiffs for $ 5,000.00. *fn4"

 The Court has visited each of the premises affected by this litigation and has made a personal inspection thereof in the presence of counsel for all parties. The price of $ 5,000.00 paid for the Canfield property, even in 1954, could not be, and is not regarded as reflecting an arms length sale. The price which a fully informed seller under no necessity of making a prompt sale would receive from an unrelated purchaser, in an arms length sale would be much larger.

 In a Memorandum Decision dated May 11, 1972, Judge Tenney of this Court denied the City's motion to dismiss the Canfield action, holding that the plaintiffs had a cause of action for a continuing trespass, and that the measure of damages for such trespass was the same as that provided in Title K of the Administrative Code of the City of New York, to wit: the difference between the market value of the property with the City's diversion of the stream and the market value without such diversion.

 Class action status was denied in the Canfield case after the decision of the Supreme Court in Zahn v. Int'l. Paper Co., 414 U.S. 291, 94 S. Ct. 505, 38 L. Ed. 2d 511 (1973). The Canfields had participated unsuccessfully in the Zahn case as amicus curiae favoring plaintiff Zahn's position. They had planned to assert the interest of all downstream owners adversely affected by the diversion. Some part of the delay in the case arose while the parties awaited the resolution of the Zahn class action issue.

 Proceedings Affecting the Delaware River; the River Master

 Beginning in 1929, the City of New York planned the diversion of the Delaware River and its tributaries to meet the increasing municipal water supply needs of the City, and other municipalities dependent on the City for all or part of such supply.

 To restrain this proposed diversion, the State of New Jersey began an original suit in the Supreme Court against the State of New York and the City. Pennsylvania intervened to protect its own sovereign interests in the Delaware River. New Jersey v. New York, 283 U.S. 336, 75 L. Ed. 1104, 51 S. Ct. 478 (1931).

 The Supreme Court found the River and its tributaries "a necessity of life [to] be rationed among those who have power over it," id. at 342, and applied the federal common law doctrine of equitable apportionment, to allow the City to divert from the Delaware watershed up to 440 million gallons of water a day, provided certain stream management conditions were met. Principal among these was the requirement that a sewage treatment plant be constructed at Port Jervis, New York, to lessen the accumulated pollution present in the diminished downstream flow of the River. A constantly maintained flow of .50 c.s.m. (1,535 c.f.s.) was also required to be maintained at Montague, New Jersey, just below Port Jervis.

 The Supreme Court retained continuing jurisdiction over its equitable decree in order to adjust the rights of the parties as equity might require in the future. The Court explicitly held that the diversion should "not constitute a prior appropriation, and shall not give the State of New York and City of New York any superiority of right over the State of New Jersey and Commonwealth of Pennsylvania in the enjoyment and use of the Delaware River and its tributaries." Id. at 347.

 Until 1953, when the Neversink Reservoir was completed, the City did not avail itself of its right under this decree to withdraw 440 m.g.d. from the Delaware and its tributaries. The Neversink is tributary to the Delaware at a point downstream from the properties which are the subject of this suit. These plaintiffs were not affected by the diversion of water from the Neversink. Those waterworks are involved here only insofar as releases from Neversink Reservoir form one element contributing to the combined minimum flow that must be maintained at Montague, New Jersey under the Supreme Court's revised Decree of 1954. For a discussion of compensation of riparians on the Neversink River, see In re Ford (Whitton), 35 App.Div.2d 626, 313 N.Y.S.2d 42 (3d Dept. 1970). All such properties are in New York State.

 In 1952, the City, with the approval and support of New York State, petitioned the Supreme Court for a modification of the 1931 Decree which would allow additional diversions of water from the Delaware by means of proposed dams at Cannonsville and Downsville (Pepacton) New York. The petition was allowed. New Jersey v. New York, 343 U.S. 974, 96 L. Ed. 1367, 72 S. Ct. 1068 (1952). A motion by the City of Philadelphia to intervene in the proceedings to protect its interests in the River was denied on the finding that its rights were "invariably served by the Commonwealth's [i.e., Commonwealth of Pennsylvania's] position." 345 U.S. 369, 374 (1953).

 In 1954, the Supreme Court modified and superseded its 1931 Decree. 347 U.S. 995 (1954). Under the terms of the new Decree, the City was allowed to continue the diversion of 440 m.g.d. from the Delaware and its tributaries until the completion of the Pepacton Reservoir then under construction on the East Branch, at which time it could begin to divert 490 m.g.d., subject to a requirement of maintaining a flow of 1,525 c.f.s. at Montague, New Jersey. After the completion of the Cannonsville Reservoir on the West Branch of the Delaware, the City was authorized to divert the full amount of 800 m.g.d. on a cumulative average basis, subject again to the requirement of maintaining a minimum flow of at least 1,750 c.f.s. at Montague, New Jersey.

 In addition to the aforementioned minimum flow requirement at Montague, New Jersey, the City is also required to release an "excess release quantity" of its impounded water into the Delaware. Essentially, this is a device to enable the City gradually to adapt to increased demands for water. On the first day of each calendar year, the City is required to make an estimate of its total annual consumption of water from all sources (excluding pumping) for the next year. This estimate is based on the maximum consumption for any previous year plus an annual increment of 7.25 billion gallons. The City is then required to release over any 120 day period after the fifteenth day of June of each year, an additional amount of water into the Delaware equal to 83% of the amount by which its estimated consumption and yearly increment exceed 1,665 m.g.d. (the City's minimum "safe yield" from all sources, excluding pumping, as determined by the Supreme Court). In no calendar year is this "excess release quantity" of water so computed required to exceed 70 billion gallons, and the City is never required to maintain a flow at Montague, New Jersey greater than 2,650 c.f.s. Since 1968, as New York City's consumption has increased, this "excess release quantity" has steadily diminished. At the time of trial, the flow at Montague, New Jersey was being maintained at approximately 2,000 c.f.s.

 Under the system of stream management established by the Supreme Court, any daily diversion, no matter how large, is permitted from any one or all of the three reservoirs (Pepacton, Cannonsville and Neversink) so long as the required minimum flow at Montague, New Jersey is maintained, and so long as the quotient of the total amount of water diverted that year, divided by the number of days of the year to that date, does not exceed 800 m.g.d., and so long as it satisfies the "excess release quantity" provision.

 In its 1954 Decree, the Supreme Court appointed a River Master, the Chief Hydraulic Engineer of the United States Geological Survey, to oversee and implement the Decree. It is the River Master's duty to require the City to maintain the required flow at Montague. Under the Decree, the City is not required to make any releases of impounded water unless and until the River Master calls for them. On at least one occasion, during the drought in June 1965, the City has refused to comply with the River Master's requests for increased flow. *fn5"

 Under the provisions of the revised Decree, the Supreme Court continued to retain jurisdiction over the controversy. 347 U.S. at 1005. The City has a continuing equitable duty to develop its available sources of water to meet its increasing needs, by the construction of additional impoundment and storage facilities, and by developing those other sources, including the Hudson River, directly available to it, and can be required to do so by the Supreme Court. All parties have assumed, correctly, that in times of unusually high consumption, drought, fires or similar situations of short or long duration, the City would discharge its obligations to the public consumers of water prior to performing its duties owed under the Decree to downstream communities and riparian owners. When and how often in the future the City, will refuse ex necessitate to comply with the River Master's requests presents a question which is primarily speculative, but plaintiffs and the Court must assume that such occasions will arise again during the existence of these Dams, as happened in 1965.

 A more serious and recurring problem with this regulatory scheme from the point of view of these plaintiffs is that the River Master is unconcerned, nor is he required to be concerned, with the sources of the required minimum flow at Montague. In planning how to assure the daily flow at Montague, the River Master must and does take into account the anticipated releases resulting from electric power generation on the Mongaup and the Lackawaxen (Lake Wallenpaupack), described supra, p. 4.

 These electric generating utilities each make independent determinations as to the amount of water which will be discharged. Such determinations are based only on the economics of the electric generating activities of the utility, and the demand for power. The amounts of such discharges are unpredictable, and vary significantly from day to day. There is no provision in the Delaware River Compact or the Supreme Court's Decree by which the River Master can require the power plant operators to make any minimum release from impounded water on any particular date, in addition to that needed for power generation. Presumably, provisions authorizing any such direction would require compensation to be made to the power plant owners. *fn6"

 Uncontradicted testimony at trial showed that the River Master has relied increasingly over the years on these power plant releases to make up the required flow at Montague. Only when the projected run-off of all upstream tributaries and the projected releases of the two power plant reservoirs are anticipated to produce less than the minimum required flow at Montague Gauging Station does the River Master call on the City for net releases from its dams. These demands, in a typical year, range from zero to as much as 1.5 billion gallons on a given day.

 Once a demand has been made upon the City for releases to maintain the required flow at Montague, the City is faced with a choice of three reservoirs (Cannonsville, Pepacton, Neversink) from any or all of which it may make the required releases in whole or in part.

 The testimony of the City's expert witness, Mr. Paul Blomquist, former head of the Bureau of Claims of the Board of Water Supply for the City, establishes the existence of a general policy of the City to make major releases through the Cannonsville dam because of its greater release capacity (2,440 c.f.s., as compared with 760 c.f.s. from the Pepacton Reservoir). *fn7" On numerous occasions these releases from the Cannonsville Reservoir into the West Branch have amounted to approximately One Billion Gallons during a day.

 A second decision facing the City is the time span within which to make its required releases. The River Master requires only an average daily flow at Montague, and it is within the discretion of the City to release the required amounts over the whole 24-hour period, or in some shorter time. No evidence was introduced, however, which would indicate that such precipitous releases have ever been made by the City.

 The final element affecting the flow of water in the River is the "conservation releases" that the City is required by order of the New York Supreme Court to make daily from each of its reservoirs releasing into the Delaware River. Such releases must be made independently of any called for by the River Master, but they are taken into consideration by the River Master in projecting the flow at Montague. The Cannonsville Reservoir is required to release 15 m.g.d. during the summer (April 16th through November 30, inclusive) and 5 m.g.d. during the winter (December 1st through April 15th, inclusive); the Pepacton Reservoir is required to release 12 m.g.d. during the summer (April 8th through October 31st, inclusive) and 4 m.g.d. in the winter (November 1st through April 7th, inclusive). These figures were arrived at on the basis of pre-diversion low flows in the West and East Branches, and were ordered in order to maintain the environmental quality of the River. It has frequently happened that these "conservation releases" were, over extended periods of time, the only waters released into the Delaware River from the City's reservoirs. The right to have such "conservation releases" continued into the indefinite future is, of course, not graven in stone, nor do these plaintiffs have any vested property right in their perpetuation.

 All the City's dams release water into the Delaware River from spillways or outlets at the bottom of the dam.

 Because the required minimum flow is implemented at the Gauging Station at Montague, New Jersey, downstream from Port Jervis, when the River Master calls upon the City to release water from its various impoundments, he does so based on the flow at Montague, and makes no specification ...


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