Judge: Recreation, profit not part of Green River Dam equation

Green River Reservoir
Autumn colors surround the Green River Reservoir in Hyde Park. File photo by Richard Levine/Stowe Reporter
A judge has struck down the village of Morrisville’s key argument in a case that municipal officials say could spell the end of Green River Reservoir unless they prevail.

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.”

Green River
The dam on the Green River in Hyde Park. File photo by Mike Polhamus/VTDigger
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.

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  • Ken Egnaczak

    Maybe it is about time that ANR and the VNRC get out of the 20th century and start understanding 21st century priorities. We need renewable energy to combat a vastly bigger problem of Climate Change . This facility addresses Climate Change with more public benefits than wind or solar generation. It is insanity to allow shoreline “insects and aquatic plants” to destroy this valuable renewable energy asset……..insanity !

  • John farrell

    Regardless of the “law” to lose GRR as a recreational area State Park is a travesty.

    • Ken Egnaczak

      Furthermore, how many recreational opportunities are provided by wind, solar, or any other renewable energy generator installation ?

  • Gary Murdock

    “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.”
    OK…then consider this. The state protects and encourages the industrial ag that has destroyed Lake Champlain and waterways across the state. To me, this looks like two conflicting opinions from the state.

  • Jason Brisson

    Can’t make this stuff up…
    ANR wants to hold the GRR dam, a man made reservoir, up to environmental standards, but it will cost ANR a crown jewel of a state park to do so.
    State shooting itself in the foot at taxpayer expense right here.
    All for the environment, but enforcing draw down standards on a mad made reservoir–only to lose that entire reservoir…because of those standards–what happens to all those animals you’re trying to protect, if there is NO RESERVOIR?

    • Matthew Davis

      My understanding is the only one threatening to remove the dam, is Morrisville Light. I think the likelihood of that happening is low given public and state interest in maintaining the reservoir. Just because the utility can supposedly not run the plant “economically” without draw downs does not necessarily mean the dam would have to be removed.

      • Karl Riemer

        Good point! MWL owns the dam and the land on which it sits. If their contention is correct and the new certificate makes operation as a generating facility impractical, they’re entitled to remove the dam but certainly not obligated to. They won’t maintain the dam if it’s not working for the village, but they can sell it and responsibility for it to the state or another utility. If it continues producing power, they could contract for that power, even for producing that power. Several avenues forward exist short of demolition.

        As far as I can tell, no one wants the reservoir to disappear. Which, if you think about it, is odd given ANR’s enthusiasm for dam-removal. It’ll also be interesting to see the estimated environmental impact of recreational white-water releases if ANR administers the dam. Artificial flash floods are fun in squirt boats, but tear up the streambed.

      • Jason Brisson

        If the dam can’t economically produce power, and the costs outweigh the benefit, why would they continue to run it?
        The state forcing MoVegas light and power to continue running a dam at power production levels not economically feasible to them, is akin to all of Morrisville subsidizing GRRSP for the rest of the state.
        This issue will end badly, unless the state steps in to subsidize the uneconomical electricity generation for Morrisville, to save its state park.

        • Matthew Davis

          “The state forcing MoVegas light and power to continue running a dam at power production levels not economically feasible to them” Is the state or anyone else actually suggesting this?

          • Jason Brisson

            What exactly do you think it means, when in order for the dam to get a new permit, the state says they need to stop drawing down water?

  • Patty Smith

    If VT ANR is genuinely interested in protecting our precious aquatic life they should develop an effective plan to eliminate Glyphosate and excess phosphate from our waterways. Contrary to industry hype, Glyphosate has not undergone rigorous unbiased testing for safety to human and aquatic life. Indeed, independent research shows many dangers associated with Glyphosate use. Studies have proven it to be a contributor to deadly algae blooms and a major disruptor of aquatic life. It is highly toxic, a probable carcinogen, and is banned in many countries. Yet, Vermont’s farmers, municipalities and utilities douse hundreds of thousands of acres with this toxic killer. Additionally, VT has thousands of dams, many of which are not producing power, which constrict the flow and migration of numerous species. Removal of these dams has been way too slow. At least this dam is producing non-carbon energy. VT ANR needs intelligent, focused, proactive leadership, not just bureaucratic paper pushers, to develop plans to effectively deal with Vermont’s clean water crisis. Lastly, we need a stronger commitment from our legislature on issues affecting the water we all depend upon.

  • Rod West

    I suspect Morrisville is a winter peaking utility load (they are more about heat and lights than air conditioning). I am sure the reservoir refills reliably each Spring and that 10′ of draw down is more like a “fully charged battery” that they count on being able to draw off of each winter during their peak usage time.

    • Matthew Davis

      Makes sense. Though the EIA production data for that dam does have some pretty low production, almost as low as late summer (lowest), during winter. It looks like it peaks in Apr-June, which makes sense as flow is highest.

      Clearly the draw-downs are to get thru a meager flow winter period and still produce, but the data suggests that the meager flow period is more pronounced in the late summer/early fall.

      Does their permit have requirements for summer level in the reservoir? I have been several times to camp in summer and there is clearly evidence of fluctuating level, but they clearly keep it high.

      This same water quality issue must be affecting other hydro plants in VT, right?

      • Rod West

        One last piece to add to the equation is it may not be about total production, but about avoiding purchasing power at peak prices. Utilities are desperate to “shave” their peaks so they are not buying extra power when it is most expensive. Maybe someone at MWL would care to elaborate on the economics of their utility…

        • Matthew Davis

          Some elaboration can be found here: http://www.mwlvt.com/Business%20Plan.pdf

          Looks like MWL has been looking at alternate options as to how to run the Sanders Plant instead of in the forward capacity market which is what they have been doing.

          “MWL operates this plant in order to reduce peak demand and when market prices are high during the winter months of November through March.”

          Their permit limits drawdowns from May 1 to Aug. 1 for the loons, hence why production is limited then.

          If they become limited in their winter drawdowns, the plant could still produce for the village as a “purpa” generator or as a “load reducer” but that may not make sense for the utility to do so…

  • Matthew Davis

    Is destroying the reservoir actually being proposed?

  • Matthew Davis

    But it’s not up to ANR to decide if it is economically feasible for the utility to operate the plant, it is up to MWL to decide if they will given the conditions of their next permit.

    ANR merely provides a “water quality certificate” as part of the plant’s FERC license.

  • Matthew Davis

    “GRR is a great example how hydro uses a “meager flow” to create energy storage.” It is also a great example of how doing so can have negative impacts on water quality…..

    • Ken Egnaczak

      ….and positive impacts to wildlife habitat, recreation, emergency water supply, and lets not forget renewable energy without cutting trees and covering productive land with those attractive solar panels or blasting ridges for wind generators. Bugs and water weeds are a small price to pay for all the benefits that hydro provides.

      Is there any documented information that anything other than bugs and weeds are actually harmed by these drawdowns ? Less fish ? Less loons ? Unsafe recreation ?

  • Matthew Davis

    “Before these dams are destroyed they should be assessed for their energy potential.” Regardless of their impacts on water quality?

    • Ken Egnaczak

      What do bugs and water weeds have to do with water quality ? Nature’s wildlife excrement and decomposing plants and animals degrades water quality ( and air quality by GHG emissions) far more than the effects of this hydro facility and reservior do.

  • Matthew Davis

    I have camped at the state park and do not own a camp there. MWL is limited by their permit in how much they can draw down the reservior both in summer and winter. In summer they can draw down 6″ to protect Loon habitat.

    The current concern is that the conditions MWL would like to continue to create in the reservoir and downstream are “not sufficient to protect fisheries and other aquatic habitat.”


    I can’t speak to the exact water quality specifics that are being negatively impacted but clearly fish habitat and loon habitat are factors.

    • Jason Brisson

      “clearly fish habitat and loon habitat are factors”
      How did the fish and loons fair before the reservoir was installed?

      • Matthew Davis

        I don’t know…you should ask them.

  • Ray Gonda

    The dam blocks migration of fish species for spawning – mainly trout. Thus is has had a negative impact on natural reproduction in the stream. A natural lake or pond cannot be helped – it’s there – but unless its outlet is a high falls it allows migrations to occur and may even be spawning habitat. But man made ones are made and torn down by man. So there are choices available that are not present with a natural body of water.