In re Morrisville Hydroelectric Project Water Quality, No. 2018-339

Docket NºNo. 2018-339
Citation2019 VT 84
Case DateNovember 22, 2019
CourtUnited States State Supreme Court of Vermont

2019 VT 84

In re Morrisville Hydroelectric Project Water Quality
(Vermont Natural Resources Council,
Vermont Council of Trout Unlimited, and
Agency of Natural Resources, Appellants)

No. 2018-339

Supreme Court of Vermont

March Term, 2019
November 22, 2019


NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Environmental Division

Thomas G. Walsh, J.

Thomas J. Donovan, Jr., Attorney General, and Laura B. Murphy, Assistant Attorney General, Montpelier, for Appellant Vermont Agency of Natural Resources.

Jill Witkowski Heaps, East Amherst, New York, and Kenneth J. Rumelt, Environmental and Natural Resources Law Clinic, South Royalton, for Appellants Vermont Natural Resources Council and Vermont Council of Trout Unlimited.

James G. Murphy and William M. Kovalchik, Law Clerk (On the Brief), National Wildlife Federation, Montpelier, for Amici Curiae National Wildlife Federation, Sierra Club, Connecticut River Conservancy.

Gregory M. Eaton and Clara E. Conklin of Primmer Piper Eggleston & Cramer PC, Littleton, New Hampshire, for Cross-Appellants/Appellees Morrisville Water & Light Department.

Daniel P. Richardson and Ronald A. Shems of Tarrant Gillies & Richardson, Montpelier, for Appellees American Whitewater and Vermont Paddlers' Club.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

¶ 1. CARROLL, J. This appeal involves a state water-quality certification pursuant to the federal Clean Water Act (CWA) issued by the Vermont Agency of Natural Resources (ANR) for the operation of hydroelectric dams. ANR certified three dams operated by Morrisville Water and Light (MWL) and imposed conditions, including those to control the minimum amount of

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water released from each dam to support habitat for fish. MWL appealed these conditions to the Environmental Division. American Whitewater and Vermont Paddlers' Club (collectively the Paddlers) also appealed, arguing that the conditions at one facility did not allow for whitewater boating. The Environmental Division rejected ANR's flow rates and imposed MWL's proposed flow rates, affirmed ANR's conditions regarding a winter drawdown for one site, and imposed scheduled releases of water as requested by the Paddlers. ANR appeals and MWL cross appeals. We conclude that the Environmental Division erred in rejecting ANR's interpretation of its antidegradation policy and methodology for calculating flow rate, and affirm the Environmental Division on the winter drawdown and timed releases for the Paddlers at the Green River facility. Therefore, we affirm in part and reverse and remand in part.

I. Statutory and Regulatory Framework

¶ 2. This appeal involves three hydroelectric facilities operated by MWL on the Lamoille River and its tributaries: the Morrisville, Cadys Falls, and Green River facilities. These facilities were constructed between the 1890s and 1940s. In 1981, the Federal Energy Regulatory Commission (FERC) issued the facilities' original license, which expired in April 2015. To renew its license with FERC, MWL applied for a state water-quality certification from the State of Vermont. See 10 V.S.A. § 1004 (indicating that ANR is certifying agency for CWA).

¶ 3. We begin with an overview of the federal and state regulatory framework underlying this certification process. The main objective of the Clean Water Act "is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). To reach that goal, the CWA requires states to develop water-quality standards that include designated uses for a waterbody and the water-quality criteria necessary to support those uses. Id. § 1313(c)(2)(A). An applicant for a federal license for any activity that may cause a discharge into navigable waters must obtain state certification, known as § 401 certification, that the activity will comply with provisions of the CWA and state law. Id. § 1341(a)(1), (d). The

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operation of a hydroelectric dam must receive state certification because dams potentially result in a discharge, as that term is used in § 401 of the CWA. S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370, 373 (2006).

¶ 4. The Vermont Legislature delegated to ANR the responsibility to provide water-quality certification pursuant to § 401 of the CWA. 10 V.S.A. § 1004. ANR also has authority to adopt procedures for certifying hydroelectric projects. Id. § 1006(b). Pursuant to this authority, ANR has adopted the Vermont Water Quality Standards. Agency of Natural Resources, Vermont Water Quality Standards, Code of Vt. Rules 12 030 025 [hereinafter VWQS], http://www.lexisnexis.com/hottopics/codeofvtrules.1 Any hydroelectric project seeking ANR certification must comply with the VWQS. In re Clyde River Hydroelectric Project, 2006 VT 11, ¶ 3, 179 Vt. 606, 895 A.2d 736 (mem.). As the agency tasked with granting § 401 compliance, ANR may impose reasonable conditions on a permit. PUD No. 1 of Jefferson Cty. v. Wash. Dep't of Ecology, 511 U.S. 700, 712 (1994). These conditions can regulate the quantity of water because stream flow impacts a waterbody's water quality. Id. at 719 (recognizing that "water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery").

¶ 5. The CWA and VWQS require water bodies "to achieve and maintain a level of quality that fully supports" the "designated uses" of those waters. VWQS § 3-04(A); see also 40 C.F.R. § 131.10(a). Designated uses are "those uses specified in water quality standards for each water body or segment whether or not they are being attained." 40 C.F.R. § 131.3(f). In Vermont, designated uses are identified for each class of water. See VWQS § 1-01(B)(14) (defining designated use as "any value or use, whether presently occurring or not, that is specified in the management objectives for each class of water"). The waters at issue in this appeal are Class B

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waters, and the designated use that was the primary focus in this case is the preservation of aquatic biota and wildlife through the establishment and maintenance of "high quality aquatic habitat."2 VWQS § 3-04(A)(1). The VWQS require "[n]o change from the reference condition that would prevent the full support of aquatic biota, wildlife, or aquatic habitat uses" and protection of "[a]ll life-cycle functions." Id. § 3-04(B)(4).

¶ 6. The VWQS also protect existing uses, which are uses that have occurred in the waterbody on or before November 28, 1975. VWQS § 1-01(B)(18). To identify existing uses, ANR must consider at least five factors:

a. Aquatic biota and wildlife that utilize or are present in the waters;
b. Habitat that supports existing aquatic biota, wildlife, or plant life;
c. The use of the waters for recreation or fishing;
d. The use of the water for water supply, or commercial activity that depends directly on the preservation of an existing high level of water quality; and
e. . . . under paragraphs (a) and (b) above, evidence of the use's ecological significance in the function of the ecosystem or evidence of the use's rarity.

Id. § 1-03(B)(1). The VWQS include an antidegradation policy, which requires that waters be managed "to protect, maintain, and improve water quality." VWQS § 1-03(A). The meaning of the antidegradation policy, the definition of habitat "that supports existing aquatic biota, wildlife, or plant life," and the protection to be afforded designated and existing uses are central issues in this case.

II. Factual and Procedural Background

¶ 7. The Environmental Division found the following. MWL's hydroelectric facilities impact three Vermont waters: the Lamoille River, the Green River, and the Green River Reservoir. The rivers support several fish species including brook trout, brown trout, and rainbow trout.

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Several more species of fish live in the Green River Reservoir. The Reservoir provides habitat for two to three nesting loon pairs. The Morrisville and Cadys Falls facilities are on the Lamoille River. They divert water from the river to generate electricity. The dams at Morrisville and Cadys Falls create bypass reaches, which are parts of the river where water would naturally flow if not diverted to the facilities. 10 V.S.A. § 1006(a)(1) (defining bypass reach). Once the facility has used the water, it returns it to the river downstream at the end of the bypass reach.3 The Green River facility operates in a store-and-release mode. The Green River Reservoir is upstream of the dam. To generate electricity, the facility draws water from the reservoir and passes it through the facility and down to the Green River, which flows into the Lamoille River.

¶ 8. To prepare for the recertification process, MWL hired a consulting firm, Gomez and Sullivan, to study the Morrisville, Cadys Falls, and Green River facilities. ANR and MWL agreed on the study's scope and goals in advance as part of the FERC relicensing. One of the goals was to determine the flow of water necessary to support aquatic habitat. In general, for the Morrisville and Cadys Falls facilities, the study considered how different flows in the bypass reach affected downstream passage, habitat connectivity, water movement, and availability of cover. For the Green River facility, Gomez and Sullivan conducted a habitat flow study in the Green River to assess the relationship between flow and habitat for target species at different life stages. From the data, the study produced habitat flow curves showing the amount of habitat...

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8 practice notes
  • Vt. Nat'l Tel. Co. v. Dep't of Taxes, No. 19-280
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...2017 VT 22, ¶ 16, 204 Vt. 313, 167 A.3d 320 (quotation and alteration omitted); In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 17, 211 Vt. 233, 224 A.3d 473 ("To preserve an argument for appeal, a party must present an argument with specificity and clarity." (quotation......
  • Vt. Nat'l Tel. Co. v. Dep't of Taxes, No. 2019-280
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...to rule on it." Pratt, 2017 VT 22, ¶ 16 (quotation and alteration omitted); In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 17, ___ Vt. ___, 224 A.3d 473 ("To preserve an argument for appeal, a party must present an argument with specificity and clarity." (quotation omi......
  • In re Morrisville Hydroelectric Proj Water Quality, 103-9-16 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • August 26, 2020
    ...Supreme Court. The Supreme Court affirmed in part and reversed and remanded in part. In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 15 (affirming the winter drawdown and timed releases for AW/VPC at the Green River Facility and reversing the flow-rate conditions for th......
  • Morrisville Hydroelectric Proj Water Quality, 103-9-16 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • August 26, 2020
    ...Court. The Supreme Court decision affirmed in part and revered and remanded in part. In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 15. The Decision is broken into five issues: winter drawdown, social and economic factors, timed releases, antidegradation policy, and hi......
  • Request a trial to view additional results
8 cases
  • Vt. Nat'l Tel. Co. v. Dep't of Taxes, No. 19-280
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...2017 VT 22, ¶ 16, 204 Vt. 313, 167 A.3d 320 (quotation and alteration omitted); In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 17, 211 Vt. 233, 224 A.3d 473 ("To preserve an argument for appeal, a party must present an argument with specificity and clarity." (quotation......
  • Vt. Nat'l Tel. Co. v. Dep't of Taxes, No. 2019-280
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2020
    ...to rule on it." Pratt, 2017 VT 22, ¶ 16 (quotation and alteration omitted); In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 17, ___ Vt. ___, 224 A.3d 473 ("To preserve an argument for appeal, a party must present an argument with specificity and clarity." (quotation omi......
  • In re Morrisville Hydroelectric Proj Water Quality, 103-9-16 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • August 26, 2020
    ...Supreme Court. The Supreme Court affirmed in part and reversed and remanded in part. In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 15 (affirming the winter drawdown and timed releases for AW/VPC at the Green River Facility and reversing the flow-rate conditions for th......
  • Morrisville Hydroelectric Proj Water Quality, 103-9-16 Vtec
    • United States
    • Vermont Superior Court of Vermont
    • August 26, 2020
    ...Court. The Supreme Court decision affirmed in part and revered and remanded in part. In re Morrisville Hydroelectric Project Water Quality, 2019 VT 84, ¶ 15. The Decision is broken into five issues: winter drawdown, social and economic factors, timed releases, antidegradation policy, and hi......
  • Request a trial to view additional results

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