In re Morrisville Hydroelectric Proj Water Quality

• Decision Date: 26 August 2020
• Docket Number: 103-9-16 Vtec
• Parties: Morrisville Hydroelectric Proj Water Quality
• Court: Superior Court of Vermont

Morrisville Hydroelectric Proj Water Quality

No. 103-9-16 Vtec

Superior Court of Vermont, Environmental Division

August 26, 2020

Filed Date: May 29, 2020

Count 1, ANR Decision Other (103-9-16 Vtec)

Count 2, ANR Decision Other (103-9-16 Vtec)

Count 3, ANR Decision Other (103-9-16 Vtec)

Attorney: Elijah D. Emerson

Response filed on 06/12/2020 by Attorney Kane H. Smart for Interested Person Agency of Natural Resources

Opposition

Response filed on 06/23/2020 by Attorney Ryan M. Long for party 5 Co-counsel

Reply

Response filed on 06/26/2020 by Attorney Jon Groveman for Cross Appellant Vermont Natural Resources Council

Opposition

Response filed on 07/15/2020 by Attorney Ryan M. Long for party 5 Co-counsel Supplemental MOL in Support

Elijah D. Emerson (ERN 5010), Attorney for Appellant Morrisville Water & Light Dept

Daniel P. Richardson (ERN 1502), Attorney for Cross Appellant American Whitewater & VPC, Inc

Interested Person Barrett M. Singer

Interested Person Christine Hallquist

Anthony L. Iarrapino (ERN 4781), Attorney for Petitioner to Intervene Friends of Green River Reservoir

For Informational Purposes Only Michael J. Wickenden

Jon Groveman (ERN 5336), Attorney for Cross Appellant Vermont Natural Resources Counci

Robert J. Carpenter (ERN 8064), Attorney for Cross Appellant VT Council of Trout Unlimited

Interested Person Town of Morristown

Kane H. Smart (ERN 4770), Attorney for Interested Person Agency of Natural Resources

Ryan M. Long (ERN 9918), Attorney for party 5 Co-counsel

ENTRY REGARDING MOTION

Thomas G. Walsh, Judge Superior Court

Title: Motion to Stay (Motion 21)

Filer: Morrisville Water & Light Dept

The motion is DENIED.

This appeal involves a water quality certification issued by the Agency of Natural Resources (ANR) to Morrisville Water and Light (MWL), pursuant to Clean Water Act (CWA) § 401, for three Morrisville Hydroelectric Facilities located on the Lamoille River and its tributaries (the Project): the Morrisville, Cadys Falls, and Green River Facilities. MWL appealed ANR's § 401 certification, which imposed additional conditions.^[1] See 10 V.S.A. § 8504(a); 33 U.S.C. §1341(a)(1). The American Whitewater and Vermont Paddlers' Club (AW/VPC) also appealed, objecting to the flow rates instituted at the Green River Reservoir Facility. The Vermont Natural appeals. Presently before the Court is MWL's motion to stay the proceeding. ANR opposes, joined by VNRC and TU.

MWL is represented by Ryan M. Long, Esq. ANR is represented by Kane Smart, Esq. VNRC is represented by Jon Groveman, Esq. TU is represented by Robert J. Carpenter, Esq. AW/VPC is represented by Daniel P. Richardson, Esq.

Procedural History^[2]

This Court held an eight-day trial and issued a Merits Decision that instituted MWL's proposed flow rates, ANR's winter drawdown conditions, and scheduled releases of water as requested by the Paddlers.^[3] In re Morrisville Hydroelectric Project Water Quality, No. 103-9-16 Vtec, slip op. at 68-69 (Vt. Super. Ct. Envtl. Div. Sept. 18, 2018) (Walsh, J.). ANR appealed and MWL cross appealed this decision to the Vermont 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 the three facilities, holding that ANR's flow rate conditions be reinstated at Cadys Falls). On remand, Supreme Court directed this Court to consider flow-rate conditions for the Morrisville and Green River facilities. Id. This Court concluded that the remaining question before the Court on remand is limited to what flow conditions are consistent with the Vermont Water Quality Standards (VWQS) and ANR's definition of high-quality habitat at the two facilities. In re Morrisville Hydroelectric Project Water Quality, No. 103-9-16 Vtec, slip op. at 2 (Vt. Super. Ct. Envtl. Div. Feb. 4, 2020) (Walsh, J.). We then directed parties to brief this particular issue. Id.

Currently before the Court is MWL's motion to stay. The subject of the stay concerns whether this Court should await a decision from the Federal Energy Regulatory Commission (FERC) as to whether ANR waived its authority pursuant to § 401 of the CWA to issue a water quality certification. MWL has petitioned for a declaratory judgment from the FERC, which argues that ANR waived its authority to issue water quality certification for the Project and requests a new license for the Project. ANR contends a FERC ruling does not moot the questions before the Court on remand and delay is highly prejudicial to the Agency and public interest. VNRC and TU mirror ANR's concerns that further delay would result in prejudice.

Standard of Review

Rule 5(e) of the Vermont Rules for Environmental Court Proceedings authorizes this Court to issue stays of "the act or decision [appealed from] and make such other orders as are necessary to preserve the rights of the parties upon such terms and conditions as are just." V.R.E.C.P. 5(e). In determining whether the interests justice and equity require a stay, this Court considers: (1) the likelihood of success in appealing on the merits; (2) whether the moving party will suffer irreparable injury if the stay is not granted; (3) whether a stay will substantially harm the other parties; and (4) the best interests of the public. N. Cmty. Inv. Corp. Conditional Use Application, Nos. 123-6-07 Vtec, 128-6-07 Vtec, and 152-7-07 Vtec, slip op. at 2 (Vt. Envtl. Ct. Aug. 30, 2007) (Durkin, J) (quoting In re Tariff Filing of New England Tel. & Tel. Co., 145 Vt. 309, 311 (1984)); see also Brattleboro Mem. Hospital Act 250 Amend. App., No. 96-9-18 Vtec, slip op. at 2 (Apr. 10, 2019) (Durkin, J.) (applying the four factors); Gilbert v. Gilbert, 163 Vt. 549 (1995). In addition, if there is a possibility that a stay will damage another party, the movant "must make out a clear case of hardship or inequity in being required to go forward." In re Woodstock Cmty. Tr. & Hous. Vt. PRD, 2012 VT 87, ¶ 36.

Discussion

We begin by reviewing the legal and regulatory framework of § 401 of the CWA. The CWA was enacted to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). In furtherance of this, the CWA includes a § 401 certification process for the purpose of ensuring that licensed or permitted activities comply with CWA "effluent limitations or other limitations" and "any other appropriate requirement of State law."^[4] 33 U.S.C. § 1341(d). CWA § 303 requires States to adopt water quality standards, ^[5] whichare considered as "other limitations."^[6] PUD No. 1 of Jefferson Cty. V. Washington Dep't of Ecology, 511 U.S. 700, 712-713 (1994) [hereinafter PUD No. 1]; S.D. Warren Co. v. Maine Bd. of Environmental Protection, 547 U.S. 370, 386 (2006) [hereinafter S.D. Warren]; 33 U.S.C. § 1313 (addressing water quality standards). In addition, a certifying agency can impose reasonable conditions and "limitations to assure compliance with state water quality standards[, ]" which are considered as "appropriate requirements] of State Law" under § 401.^[7] PUD No. 1, at 713; 40 C.F.R. § 121.2(a)(3); 33 U.S.C. § 1341(d). Here, the Vermont legislature adopted Vermont Water Quality Standards (VWQS) and delegated the administration of § 401 certification to ANR.^[8] 10 V.S.A. § 1004; In re Clyde River Hydroelectric Project, 2006 VT 11, ¶ 3, 179 Vt. 606.

While FERC has jurisdiction to determine whether the § 401 certification complies with the CWA, this alone does not divest this Court of concurrent jurisdiction without explicit or implicit statutory directive.^[9] See Alcoa Power Generating Inc. v. F.E.R.C., 643 F.3d 963, 971-972(D.C. Cir. 2011) (citing 33 U.S.C. § 1341(a)(1)) (noting that validity of § 401 certification is a question of federal law); Roosevelt Campobello Int'l Park Comm'n v. U.S. E.P.A., 684 F.2d 1041, 1056 (1st Cir. 1982) (citation omitted) (stating that state courts have jurisdiction to review § 401 certification when addressing "validity of requirements imposed under state law or in a state's certification"); see California v. Arizona, 440 U.S. 59, 66-67 (1979) (discussing the presumption of concurrent jurisdiction). Indeed, in most cases, a party seeking to challenge § 401 certification must do so through state courts as the applicable state "water quality standards . . . are more stringent than applicable federal standards." City of Tacoma, Washington v. F.E.R.C, 460 F.3d 53, 67 (D.C. Cir. 2006) (noting that "[i]f the question regarding the state's [§] 401 certification is not the application of...