In re Morrisville Hydroelectric Project Water Quality (VT Natural Resources Council, VT Council of Trout Unlimted & Agency of Natural Resources, Appellants)
224 A.3d 473
Vt.2019Background
- Morrisville Water & Light (MWL) operates three hydroelectric facilities (Morrisville, Cadys Falls, Green River) that sought §401 water-quality certification from the Vermont Agency of Natural Resources (ANR) as part of FERC relicensing. ANR imposed minimum flows, seasonal rules, and Green River reservoir drawdown limits to protect aquatic habitat.
- Gomez & Sullivan conducted habitat/flow studies; ANR used a "most-limiting species" analysis (80% of maximum usable habitat threshold, with dual-flow analysis at Green River); MWL used a time-series flow-energy averaging model and proposed lower flows.
- The Environmental Division rejected ANR’s flow rates (adopting MWL’s lower flows for Morrisville and Cadys Falls), affirmed ANR’s 1.5-foot winter drawdown at Green River, and added three scheduled releases for whitewater boating; multiple parties appealed.
- The Vermont Supreme Court reviewed deference to ANR’s interpretation of the VWQS antidegradation policy and its high-quality aquatic habitat methodology, ANR’s duty to consider socio-economic factors, the Green River drawdown, and timed releases for boating.
- Holding: the Court reversed the Environmental Division for failing to defer to ANR on antidegradation and habitat-methodology issues (reinstating ANR’s Cadys Falls flow and remanding Morrisville/Green River flows for application of ANR’s standard), and affirmed the 1.5-foot winter drawdown, the exclusion of socio-economic derogation, and the scheduled releases for whitewater boating.
Issues
| Issue | MWL / Paddlers (Plaintiffs) Argument | ANR (Defendant) Argument | Held |
|---|---|---|---|
| Interpretation of antidegradation / protection of existing uses | ED/MWL: antidegradation requires protecting existing uses (e.g., hydroelectric generation) and permits balancing to avoid degrading those uses | ANR: antidegradation protects water quality and the highest/best designated use; cannot authorize degradation to preserve existing uses | Court: defer to ANR; ED erred by balancing to degrade designated-use quality; reinstated ANR 100 cfs at Cadys Falls |
| Definition/methodology for "high-quality aquatic habitat" and flow-setting | MWL: use time-series flow-energy averaging across species/life stages (supports lower flows) | ANR: use most-limiting-species approach (maintain ≥80% of max usable habitat for most sensitive species/life stages) | Court: ANR’s methodology entitled to deference; ED erred; ED-imposed flows for Morrisville/Green River struck and remanded to apply ANR standard |
| Green River winter drawdown limit | MWL: current larger drawdown acceptable; ANR study unreliable (comparisons to natural lakes) | ANR: 1.5-foot winter drawdown necessary to protect littoral zones, macrophytes, macroinvertebrates and fish habitat | Court: factual findings supporting ANR credited; affirmed 1.5-foot winter drawdown |
| Consideration of social and economic factors in §401 certification | MWL: ANR should apply its Streamflow Procedure and statutes to weigh socio-economic impacts and may reduce flows accordingly | ANR: not required to consider socio-economic factors in a way that derogates VWQS; Streamflow Procedure not binding rule for §401 | Court: ANR not required to consider socio-economic factors to weaken water-quality protections; summary judgment for ANR affirmed |
| Timed releases for whitewater boating | Paddlers: whitewater boating is an existing (and recreationally designated) use; scheduled releases are needed to preserve that use | ANR: whitewater not previously treated as existing use; timed releases could degrade aquatic habitat and are not required | Court: ED correctly found whitewater an existing use, lack of record of harm from scheduled releases, and ordered three annual releases; affirmed |
Key Cases Cited
- PUD No. 1 of Jefferson Cty. v. Wash. Dep’t of Ecology, 511 U.S. 700 (states may include minimum stream-flow requirements in §401 certifications to enforce water-quality standards)
- S.D. Warren Co. v. Me. Bd. of Envtl. Prot., 547 U.S. 370 (state §401 certification authority applies to hydroelectric projects and can require flow protections)
- Plum Creek Me. Timberlands, LLC v. Vt. Dep’t of Forests, Parks & Recreation, 155 A.3d 694 (Vt. 2016) (deference to agency methodology where statute delegates technical expertise)
- Conservation Law Found. v. Burke, 645 A.2d 495 (Vt. 1993) (agency interpretations of own regulations entitled to deference absent compelling evidence of error)