Preview:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND THE MAYOR AND CITY COUNCIL OF BALTIMORE, MARYLAND v. : SUSQUEHANNA RIVER BASIN COMMISSION : : : Civil Action WMN-98-3135

MEMORANDUM Before the Court are cross motions for summary judgment. Paper Nos. 15 (Plaintiff's) & 23 (Defendant's). Also pending

are two motions related to the appropriate scope of the administrative record to be reviewed by the Court in ruling on the summary judgment motions. Paper Nos. 16 (Plaintiff's

motion to supplement the administrative record) & 18 (Defendant's motion to strike). Upon a review of the motions

and the applicable case law, the Court determines that no hearing is necessary and that: Plaintiff's motion to supplement the record will be granted; Defendant's motion to strike denied; Plaintiff's motion for summary judgment denied; and, Defendant's motion for summary judgment granted. I. FACTUAL AND PROCEDURAL BACKGROUND At the center of this controversy is the purported "right" of Plaintiff Mayor and City Council of Baltimore, Maryland ["the City"] to withdraw 250 million gallons per day ["mgd"] of water from the Conowingo Pool, a reservoir created

by the damming of the Susquehanna River.

The reservoir The

straddles the border between Maryland and Pennsylvania.

City contends in its Complaint that this purported right has been infringed by a "Determination Regarding Withdrawals and Diversions by the City of Baltimore" ["the Determination"], issued by Defendant Susquehanna River Basin Commission ["the Commission"] on June 19, 1998. A summary of the relevant

procedural and factual background follows. The City began plans for the use of the Susquehanna's water as part of its municipal water system as early as the 1920s, when it signed a Memorandum of Understanding with the power company planning to build the Conowingo Dam. In 1955,

the Maryland General Assembly passed legislation authorizing the City to take water from the River at any point above the Conowingo Dam. In 1960, the City entered an Agreement with

the licensee of the Dam whereby the City would be permitted to withdraw water from the Conowingo Pool at a rate of 250 mgd free of charge if there was surplus water, and at a more limited withdrawal rate during periods of low flow. Pursuant to that agreement, the City designed and began the construction of the system of tunnels and pumps that could transport water from the Conowingo Pool to the City's Montebello Filtration Plants. By 1966, the City had in place 2

an intake structure at the pool capable of handling 500 mgd, a 35 mile long conduit from Conowingo to Montebello capable of transporting 250 mgd, and sufficient pump and motor capacity to move 137 mgd of Susquehanna water through the conduit. The

City also obtained the right-of-way for a parallel conduit of equal size. The City invested approximately $40 million in

this construction.1 Although this infrastructure has been in place since 1966, the City has used water from the Susquehanna only intermittently due to higher costs associated with the transportation and treatment of Susquehanna water, as compared with using water from other sources available to the City. Susquehanna water has only been used when the City's three primary reservoirs have become significantly depleted. On

average, the City has pumped just slightly more than 5 mgd during the period 1965 - 1997. Also in the 1960s, the three states within which the Susquehanna River Basin lies - New York, Pennsylvania, and Maryland - formed the Interstate Advisory Committee on the Susquehanna River Basin to "study and recommend legislation for the creation of a permanent intergovernmental agency for

The City notes that the cost of this construction at the present value of the dollar is close to $280 million. 3

1

the management and effective utilization of the resources of the Susquehanna River Basin." The formation of this Advisory

Committee led to the drafting and enactment of the Susquehanna River Basin Compact, Pub. L. 91-575, 84 Stat 1509 (1970) ["the Compact"]. The Compact was signed by the governor of Maryland

on April 21, 1967, after passage by the legislature; signed by the governor of New York on May 2, 1967, after passage by its legislature: and signed by the governor of Pennsylvania on July 17, 1968, after passage by its legislature. The United

States Congress enacted the Compact on December 24, 1970, and it was signed into law by President Nixon. The expressed goal of the Compact was to establish "comprehensive planning, programming, and management" of the Basin's water resources "under the direction of a single administrative agency." Compact

Download Mayor and City Council v Susquehanna.pdf

Maryland Law