The case is at a crossroads, according to environmental advocates who are on the other side. But a municipal official says several other arguments remain that the village will pursue.
The Agency of Natural Resources is seeking increased protections for the reservoir. Morrisville Water & Light, the utility that manages the dam holding back the reservoir, say those conditions would make it unprofitable to keep generating electricity at the dam. Officials have said they would seek to tear down the dam in that case.
Morrisville Water & Light argued that ANR should take social and economic factors such as the dam’s profitability into account. The reservoir also is the site of a state park that’s popular with kayakers and canoeists.
But Judge Thomas G. Walsh of the Environmental Division of Superior Court ruled June 13 that ANR has correctly omitted social and economic concerns from its water quality recommendations as part of the federal dam relicensing process.
The Federal Energy Regulatory Commission uses such recommendations to write conditions for a new license, if it issues one.
Water advocates say Walsh’s decision guts Morrisville’s position before the case has even made it to trial.
“I think that has a fundamental impact on their appeal,” said Jon Groveman, the Vermont Natural Resources Council’s policy and water program director. “This really puts the case at a crossroads.”Had the court accepted Morrisville’s contention that the state could base water quality decisions on economics and other factors, Groveman said, “that would have been a sea change in the way we regulate these major operations on public waters.” Preventing that was one of the primary motivations for VNRC’s involvement, he said.
“We’re very pleased that the environmental court affirmed a notion that’s been in practice in Vermont for at least 20 years when looking at hydro facilities,” Groveman said.
ANR lawyers had argued the law in question, Section 401 of the federal Clean Water Act, makes no provision for considering economic and social factors — only water quality.
Groveman said Walsh’s agreement on that point “eliminates most of Morrisville’s arguments on the appeal.”
But Morrisville Water & Light General Manager Craig Myotte said the village intends to take the case to trial, despite having been “disappointed” by Walsh’s decision. There are at least five other arguments against ANR’s permit conditions that the village intends to pursue, he said.
“It’s not in my mind a real serious blow,” Myotte said. “I don’t see it being a show-stopper.”
An ANR attorney agreed the decision doesn’t hamstring Morrisville’s case.
Jen Duggan, the Agency of Natural Resources’ general counsel, said Walsh’s decision leaves numerous other avenues for Morrisville to pursue.
Duggan said, however, that the decision narrows the scope of what Morrisville can use to bolster its case, and called this portion of Walsh’s ruling the most significant piece of the decision.
Walsh also struck down another argument advanced by a separate party to the case, the whitewater advocacy group American Whitewater.
American Whitewater sought to quash the case at its outset on the grounds that the state had already effectively issued a permit by failing to respond adequately to a permit application Morrisville claimed to have submitted in 2013. The Agency of Natural Resources must file a Section 401 certificate within a year after receiving a permit application, or the agency is assumed by federal regulators to have given its approval.
But Walsh found that Morrisville had not actually completed its 2013 permit application, and said in his decision that the ANR’s Section 401 certificate — which requires reduction in Green River Dam’s power generation — is current.
American Whitewater is involved in the case to ensure that whitewater boating remains possible in the steep creek below the dam, and Walsh gave encouraging signs of that, said Bob Nasdor, the group’s Northeast stewardship director.
Morrisville Water & Light is seeking to relicense power generators at the base of the village-owned dam and to continue producing the same amount of power it has in previous years.
For that to happen, ANR would have to tell the Federal Energy Regulatory Commission that Morrisville won’t harm water quality in the process.
But ANR scientists found the village kills off insects and aquatic plants near the reservoir’s shore by draining it too deeply in the process of generating electricity through the winter.
Morrisville appealed ANR’s decision to environmental court in September.
The restricted drawdowns of the reservoir that ANR officials say would let Morrisville produce electricity without harming water quality would cut the generating capacity by a third, Morrisville officials have said.
The Section 401 certificate the agency has filed with FERC would allow Morrisville to draw the reservoir down by about 1½ feet during the winter. The utility currently draws down the reservoir by as much as 10 feet.
Morrisville officials say the new restriction would drive up the cost of operating the generators by as much as $100,000 annually for the next 30 years.