Vermont’s top court has ruled that three dams on the Lamoille and Green rivers must follow flow rates imposed by environmental regulators, overturning a lower court’s decision.
In a decision issued Friday, the Supreme Court said the environmental court had “erred in failing to give deference” to the state Agency of Natural Resources’ water quality standards.
Morrisville Water and Light applied in 2010 for water quality certifications from the state as part of the relicensing process for three hydroelectric dams: at Cadys Falls and Morrisville on the Lamoille, and the Green River Reservoir dam.
In 2016, ANR issued the certification, setting flow rates at the Morrisville dam of 70 cubic feet per second to protect brook trout and 80 cubic feet per second at Cadys Falls for rainbow trout. The agency also set seasonal flow and reservoir elevation requirements for the Green River dam.
Morrisville Water and Light appealed the certification to the state Environmental Court, seeking lower flow rates to protect its hydroelectric operations.
Meanwhile, the Vermont Natural Resources Council and Vermont Trout Unlimited argued that ANR’s flow rates were too low to meet water quality standards. And the Vermont Paddlers’ Club also appealed, disputing the state’s finding that whitewater paddling was not an “existing use.”
Environmental Court Judge Thomas Walsh issued a decision last year siding with the utility by rejecting the state’s minimum flow rates for the two Lamoille dams. The court upheld some of ANR’s mandates for the Green River dam, which the utility claimed would make operating that dam uneconomical — and possibly unsafe. Walsh sided with the paddlers in allowing for three annual scheduled releases, which neither the utility nor state had wanted.
Both the state Agency of Natural Resources and Morrisville Water and Light appealed the decision. ANR argued that the court had not adequately taken into account antidegradation and habitat protection, while the utility argued that it had erred by saying that “social and economic issues cannot be considered when issuing a water quality certification,” according to the Supreme Court decision.
In a decision written by Supreme Court Judge Karen Carroll, the higher court on Friday agreed with the state that economic and social factors should not be part of the water quality permit. The higher court sided with ANR in striking down the environmental court’s imposition of lower flow rates at the Cadys Falls, Morrisville and Green River dams.
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The higher court sided with the environmental court in upholding the state’s 1.5 foot limit for winter drawdown and timed releases at the Green River Reservoir.
Environmental advocates applauded the Supreme Court’s Friday ruling. Jon Groveman, policy and water director for the Vermont Natural Resources Council, said the decision affirmed that the “federal Clean Water Act and Vermont Water Quality Standards are about protecting water quality and uses such as swimming, fishing and boating, and these laws may not be used to justify the degradation of our public trust waters.”
Craig Myotte, general manager of Morrisville Water and Light, said in an email Friday that the utility is still reviewing the decision, including how it would impact the Green River Reservoir.
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