Spring 1999-Fall 2012
Update: December 11, 2018 Dam Relicensing
The Environmental Courts' 9/18/2018 Judgment Order on Morrisville Water and Light's ( MWL) appeal of a water quality certification issues by the Agency of Natural Resources ( ANR) has been appealed to Vermont's Supreme Court. ANR filed its own appeal as did Trout Unlimited (VTU) in conjunction with the Vermont Natural Resource Council (VNRC). MWL subsequently filed a cross-appeal. ANR and VNRC/VTU have filed their required initial “Briefs” explaining why that appellant believes the court's decision is wrong and should be reversed or altered. MWL has filed its “Docketing Statement” laying out the aspects of the Judgment Order it is appealing. MWL has until January 11, 2019 to file its principal brief, and than all parties will have additional time to file material in support of sections of the 9/18/2018 Order that other parties are appealing. The Supreme Court resolution is not expected before the end of 2019. The following is a brief summary of the appealed issues relating to the Green River Reservoir. For additional detail, ANR's Appeal can be found here, VTU and VNRC Appeal here, and MWL Docketing Statement here.
ANR claims that the Clean Water Act does “not require states to provide manufactured recreational opportunities” and thus MWL should not be required to provide 3 scheduled white water releases per year. ANR also claims that the Judge erred in not adopting the flow conditions it originally included in MWL’s water quality certificates. ANR claims that this error flows from the judge’s failure to defer to ANR's interpretation of “high quality aquatic habitat” and in not accepting ANR's interpretation of its own “Anti-Degradation Policy”.
In arguments that are similar to those raised by ANR, VNRC and VTU claim that MWL's hydroelectric facilities are not eligible to be considered “existing uses” as defined by the Clean Water Act. For that reason, the hydro dams are not entitled to Clean Water Act anti-degradation protections when those protections would negatively impact the ability of ANR to impose conditions on dam operation that would protect or improve downstream aquatic habitat.
MWL disputes the arguments raised by ANR, VNRC, and TU and supports the Order's finding that hydro is an existing use whose operational needs must be accounted for in setting flow limitations designed to protect aquatic habitat. MWL’s own appeal disputes that the winter drawdown needs to be “limited to 1.5 feet” to comply with the Water Quality Statue ( WQS) or that their proposed limitation to no more than 6 feet does not support high quality aquatic habitat. They also dispute that the Judge erred in excluding economic and social benefits from consideration in setting water quality standards. If MWL is successful in this appeal, the Supreme Court could order that Environmental Court to reconsider the winter drawdown conditions. If so, and if MWL could then provide sufficient evidence of economic harm due to the ordered foot and one-half restriction at GRR, those winter drawdown conditions might be modified.
To be clear, resolution of any of these issues will have no immediate effect on the operation of the GRR State Park. In addition, no party has appealed the 4-year transition period under which MWL can continue to operate under current conditions. However, MWL has made public statements asserting that the GRR hydrofacility is not financially viable under the newly imposed winter drawdown conditions and that they may consider their option to apply to FERC for approval of dam decommissioning/removal. As noted above, there is one long, winding path that could result in a ruling that addresses MWL financial issue. In the meantime, the FGRR Board of directors will continue to encourage responsible dialogue with the goal of preserving the reservoir while maintaining its high quality natural habitat.
Message from the FGRR Board on the Dam Relicensing – The Sky is Not Falling – at least not over Green River Reservoir, By Eric Nuse and Mike Wickenden,
In spite of dire headlines in the News and Citizen (local newspaper), the threat of Green River Reservoir being decommissioned and drained is not going to happen in the foreseeable future.
Here is why: In the recent environmental court ruling, Morrisville Water and Light (MWL) got almost all that they asked for to maximize generation of power from the Cady’s Falls and Morrisville facilities.
·MWL is limited to a 1.5 foot drawdown in the winter. The Judge noted that because MWL didn’t offer any economic arguments that the reduced drawdown would hurt the existing use of the Green River Reservoir for hydro generation he had to rely on the Agency of Natural Resources’ recommendations. He also noted that there was compelling evidence that the reduced drawdown would improve the health of the reservoir for fish, wildlife and recreation.
·MWL has 4 years to comply with the Judge’s ruling, so for now, generation of power can continue as it has in the past.
·Any of the parties in the case have until Oct 30th to file a Motion to Reconsider or an Appeal to the Vermont Supreme Court. Either action would stop the clock on the compliance date.
·If MWL should decide that they cannot afford to keep the Green River facility open, they would have to apply to the Federal Energy Regulatory Commission and be granted permission to decommission. In doing so, they would have to make a compelling and detailed financial case to support this position, as well as provide a detailed analysis of how the dam, reservoir, and associated recreational features will be disposed. This regulatory proceeding usually takes several years to run its course and is very expensive with no return on the investment. Lastly, if all the above were accomplished, MWL would be required to take the dam structure down and return the underlying land to its original state at an unknown but undoubtedly high price.
Another factor to consider is that in the run of the river up to this trial, all the parties, including MWL, told the Friends of Green River Reservoir (Friends) that they did not want the reservoir and the State Park to go away. This season 14,000 campers and day users visited the park and spent money in Lamoille County. All agree the reservoir is a recreational jewel and economic force for Lamoille County.
The Friends stand ready and able to assist in any way we can to facilitate the transition to a healthier and financially viable reservoir. For more detail on the ruling and updates please visit our website (www.fgrrvt.org). As always, we welcome your comments and questions on our Facebook page. In the meantime, we will continue to champion the preservation of the highest quality natural habitat, consistent with the continued operation of the Green River Reservoir State Park and hydro generation.
latest news:The Vermont Natural Resources Council (VNRC) with Vermont Trout Unlimited, and the Vermont Agency of Natural Resources have complied with the 30 day statutory deadline to file Notices of Appeal to the Vermont Supreme Court of the Environmental Court's recent Judgment Order concerning Morrisville's Hydroelectric Project Water Quality Certification. Their notices mention all three of the Morrisville Water and Light facilities. The contents of the notices do not explain, and are not required to explain, the issues VNRC et al. will seek to appeal. Additional filings will follow in the coming months that will detail the issues that are the subject of their appeals - and will be reported on our FGRR Website.
Dam Regulatory Update October 23, 2018
The Vermont Natural Resources Council (VNRC) with Vermont Trout Unlimited, and the Vermont Agency of Natural Resources have complied with the 30 day statutory deadline to file Notices of Appeal to the Vermont Supreme Court of the Environmental Court's recent Judgment Order concerning Morrisville's Hydroelectric Project Water Quality Certification. Their notices mention all three of the Morrisville Water and Light facilities. The contents of the notices do not explain, and are not required to explain, the issues VNRC et al. will seek to appeal. Additional filings will follow in the coming months that will detail the issues that are the subject of their appeals.
The Sky is Not Falling from Board Member Mike Wickenden
On September 18, 2018, Vermont Environmental Court Judge Thomas Walsh issued a Judgment Order in Morrisville Water and Light's ( MWL) appeal of a water quality certification issued by the Agency of Natural Resources ( ANR). In that Order, the Judge affirmed a proposed winter 18 inch winter drawdown limitation on the Green River Reservoir, and affirmed that Green River hydrogeneration and white water boating are “existing uses” of the Green River Reservoir and Green River respectively. “Existing uses” enjoy protected status under existing law and it is required that their continued status is supported. The Order also noted that at the Green River hydrogeneration facility “MWL does not argue that it cannot operate or operate practically without the six-foot drawdown it proposed.” The Judge went on to conclude, “Therefore, there is no need to balance the existing uses...” Clearly, if MWL had chosen to present the economic evidence substantiating its assertion that, according to Craig Myotte, general manager of the MWL, “The limited drawdown really makes it uneconomic for us to operate it”, the Judge could have had considered additional options.
Appeals to the Vermont Environmental Court are considered to be “de novo” appeals. “De novo” is used to refer to a trial which starts over, which wipes the slate clean and begins all over again, as if any previous partial or complete hearing had not occurred. Consequently, only evidence entered into the court record by the parties to the appeal is eligible for consideration. MWL failed to present financial analysis regarding their public assertions that the lack of the ability to maintain their practice of 6 foot winter water level drawdowns of the Green River Reservoir would render the Green River hydrofacility financial insolvent. Consequently, Judge Walsh was unable to consider balancing the financial consequences caused by the reduction of Green River hydrogeneration against the potential reduction in high quality aquatic habitat.
The economic analysis of the viability of Green River Reservoir hydrogeneration is not straightforward. Many benefit and cost variables are estimated over the 30 year lifetime of the FERC permit. However, the Order did provide MWL with what appears to be an unexpected financial bonus in its decision regarding whitewater paddling on the Green River. The Order requires that annually there be 3 weekend, daytime, pre-scheduled releases of the Green River Reservoir, of 6 hour duration each, and of flows sufficient for whitewater boating on the Green River. These three whitewater releases mimic MWL past practice and are not subject to other drawdown limitations. Given that the Green River empties into the Lamoille upstream of Morrisville's two other hydrogeneration units, these three annual scheduled releases provide power at all three operating units. The economic impact of these required releases has not been reported by MWL.
What does this all mean for the future of our park? For starters, the appeal participants have until October 30th to file a Motion for Reconsideration with the Environmental Court, or an Appeal to Vermont's Supreme Court. Either action would stop the clock on the Order's implementation. Until those are resolved, it is business as usual. Secondly, the Order allots MWL a total phase-in period of four years after which MWL must comply with all aspects of the amended water quality certificate. . During the interim years, MWL is permitted to follow current drawdown practices. Consequently, for the next four years, we expect that this Order will have minimal impact upon the day to day operation of the Park. Board members will continue to review Court filings and Orders and meet as necessary with our legal counsel, Anthony Iarrapino. We will publish updates on our website ( www.fgrrvt.org ) . As always, we welcome your comments and questions.
The Friends remain dedicated to protecting the wilderness-like character and wildlife habitat of Green River Reservoir State Park while preserving its heritage and historical uses for future generations. Consequently, in these legal issues, will continue to advocate for the preservation of the highest quality natural habitat consistent with the continued operation of the Green River Reservoir State Park.
Morrisville Water and Light Water Quality Certificate Appeal Update – July 2018
The trial phase of Morrisville Water and Light's ( MWL) appeal from a Water Quality Certificate (WQC) issued by the Vermont Agency of Natural Resources ( ANR) ended April 14, 2019. The heart of the Green River Reservoir appeal remains the degree to which MWL can release water from the reservoir during winter months. The WQC limits the releases to 18 inches. ANR experts assert that this level of release achieves the standards as articulated in current State statutes regarding the dam water release effects on the aquatic ecology of the reservoir and the downstream Green River. MWL claims that the proposed release level is overly restrictive and seeks a certificate modification to allow releases to a depth of 6 feet during the winter months.
The FERC (Federal Energy Regulatory Commission) - the ultimate authority on hydro-dam regulation - ruled that MWL can continue to operate under its existing license until the Environmental Court makes its ruling. MWL current licensed practice is to limit winter releases to 6 feet, or, under special conditions, to 10 feet. The depth of the release increases the amount of hydro power produced at the Green River Reservoir hydro-facility as well as MWL's other two downstream Lamoille River hydro-power units. Given the proposed reduction in hydro-power, MWL claims that the Green River Reservoir hydro-project will not be financially viable and that Morrisville Village Trustees ( Green River Reservoir dam owners and operators) would look to alternatives to their continued operation of the dam. The judge has ruled that, under current state statutes, economic considerations are not relevant in a WQC appeal. Thus, the water release level issue remains centered upon differing experts conclusions regarding aquatic habitat effects.
Superior Court, Environmental Division Judge Thomas Walsh ordered trial participants to make several additional filings before he will issue an order addressing the appeal. The parties initial filings are to summarize what each party feels are the relevant facts presented to the court to date ( the “Findings of Fact”) and conclusions of law ( proposed resolution), based upon those facts. Subsequent filings allow for parties to take issue with other parties filings.
The Judge contemplates issuing his final order before the end of this year. At that time, parties will have the option of a further appeal of Judge Walsh's order to the State's Supreme Court, or adhering to the Judge's decision. A State Supreme Court appeal would likely take a minimum of an additional year or two to reach its conclusion.
The Friends of Green River Reservoir Board of Directors continues to monitor Court communications and to encourage all parties to search for creative solutions that support the continued existence of the dam and advance reservoir preservation and ecological habitat protection and enhancement.
Update on the Green River Dam Relicensing Appeal 24 March 2018, By Michael Wickenden
The Friends of Green River Reservoir Board (“the Board”) continues to closely monitor MorrisvilleWater and Light’s(MWL) appeal to the Vermont Superior Court, Environmental Division (“the Court”) of a water quality certification issued by Vermont's Agency of Natural Resources (ANR). The water quality certificate is required by the Federal Energy Regulations Commission (FERC) and is used by FERC to establish the conditions for the renewal of a 30-year Green River Reservoir Dam license. FERC is the ultimate authority that regulates both the construction and operational phases of hydro-projects.
MWL's appeal raised over a dozen issues in regards to the certificate. Principally, MWL claims that ANR has not accurately applied Vermont's water quality standards. A consequence of ANR's alleged inaccuracy is their recommendation for a significant decrease in the amount and timing of water released that would be available to produce winter hydro-power. MWL states that if they have to abide by the conditions of ANR's water quality certification for Green River Reservoir, the profitability and utility of the dam will be compromised. If that is the case, MWL has publicly stated that they may consider asking FERC for permission to remove the dam and return the reservoir to its pre-reservoir natural condition. A FERC dam removal legal proceeding is typically an expensive, multiyear exercise that also requires Vermont ANR approval. Because the outcome of a proceeding of this nature is uncertain and would require sizable MWL legal, dam removal, and habitat restoration costs, MWL would exhaust all other alternatives before committing their ratepayers to fund that option.
The appeal trial date has been set for April 2 – 13, 2018.On April 2nd, the case will begin with a short discussion to set a date for a site visit. Hearings will begin on April 3rd and will be held in the Costello Courthouse on Main St. in Burlington. The parties will present their evidence in the following order: Morrisville Water and Light; American Whitewater/Vermont Paddlers Club; Vermont Natural Resources Council/Trout Unlimited; Vermont Agency of Natural Resources.
Many issues raised in MWL original appeal have been the subject of recent court orders. For example, on June 13, 2017, the Court ruled that “state and federal water quality laws do not authorize consideration of economic or social factors.” Consequently, lost hydro-power production and the resultant decrease in MWL revenue as a result of decreased winter water level draw-downs is not a factor that the Court will consider when it evaluates MWL's appeal. What remains to be decided by the Court is whether ANR's water flow recommendations accurately result in achieving Vermont's water quality standards, or, as MWL and American Whitewater's and Vermont Paddlers Club's expert witnesses will testify, ANR's requirements limiting winter water draw-downs are overly restrictive. The Court's decision is expected by the fall of 2018.
The Friend's fundamental mission remains the preservation of Green River Reservoir's highest environmental standards consistent with the long-term preservation of the dam. To advance thatmission, the Board hired Anthony Iarrapino, Esq. to be the Friend's legal counsel and enable our participation in the Green River Dam Relicensing and Appeal. The Board periodically meets with counsel to review legal filings and plan strategy. In February 2017, members of the Board met with MWL Trustees and participated in a MWL sponsored public hearing at People's Academy. In addition, the Board reached out and met with Julie Moore, the Secretary of ANR; with VNRC’s Jon Groveman, Esq., Public Policy and Water Program Director,and B.T. Fitzgerald, Dam Project & Vermont Dam Task Force Coordinator; and with Christine Hallquist, former CEO of Vermont Electric Coop. Our discussions have centered around how we can collectively come together to reach a beneficial and reasonable solution. What we can confirm is that all parties share the long-term vision of a safe, functioning dam and reservoir that meets or exceeds state and federal water quality standards. What is still unclear is the appropriate application of those standards to the Green River Reservoir and how their application will affect the dam's future operations. Rest assured that the Board will remain active in keeping its membership informed and working with any and all interested parties to achieve a solution that preserves an environmentally sound reservoir.
Dam Update December 2016 The Friends of Green River Reservoir Board of Directors ( “the Board”) have been actively engaged in monitoring Morrisville's Water and Light's (MW&L) Federal Energy Regulatory Commission Green River Reservoir Dam re-licensing process. This is a complex legal process involving multiple parties that began in 2010. As recently reported in the media, this re-licensing process has been highly contentious and now is at in appeal before Vermont's Environmental Court (EC).
The Friends of Green River Reservoir ( “ the Friends”) are committed to preserving the Green River Reservoir (GRR) and to protecting and enhancing its ecological habitat. These goals are fundamental to the Friends' mission. To advance those goals in 2017, the Board has committed significant human and financial resources to review and respond to EC filings and court processes, per-trial negotiations, and potential settlement discussions. Absent a settlement among all parties and subsequent approval by the EC, a trial focusing on unresolved issues is scheduled to begin in early 2018.
In November, the Friends amended our intervention request and hired Montpelier's Anthony Iarrapino, Esq. to represent our non-profit corporation before the EC. On December 6th, the EC approved our intervention request. Thus, the Friends can now participate in all legal EC appeal processes including receiving all court correspondence, participating in Discovery, filing motions, presenting witnesses and expert testimony, cross examination of witness, and participation in potential settlement negotiations. The EC also Ordered the adoption of a schedule that has the parties performing various per-trail activities in 2017 and a tentative early 2018 trail date.
The Board has not predetermined its position on specific contentious issues raised by appealing parties, but will be actively participating in the review of required supporting evidence. Consistent with our mission, our goal will be to support reasonable and sustainable practices that advance reservoir preservation and ecological habitat protection and enhancement, and to urge the Court to reject practices that do not.
October 2016 Update Morrisville Water and Light's September ( “MM&L”) appeal of Vermont's Agency of Natural Resources (“ANR”) Water Quality Certification to the Vermont Environmental Court (“EC”)has started an appeal process that is likely to be lengthily and contentious. As previously reported to the Friends, your Board had filed with the EC a request to intervene in that proceeding, that, if granted, will enable the Friends of Green River Reservoir (“FGRR”)to receive all court filings and notices, as well as participate in any court hearings. We have not been notified of the Court's acceptance of our request, but expect a ruling by the end of October.
Since our last membership communication, we have received the “Statement of Questions” from both appellants: (1) MW&L and (2) the American Whitewater and Vermont Paddlers Club, Inc. ( “AWVPC”). Their “ questions” identify the specific areas of concern in ANR's Certification and will define the EC's scope of investigation. Those documents are posted on the FGRR website and can be located HERE. The Board has also posted a letter in various local publications and have received a number of new members and financial support. This increased support will enable us to have the option of obtaining the assistance of legal and environmental experts so as to be a stronger and better prepared participant in this ongoing legal proceeding.
On October 6th your Board meet to review the previously mentioned “Statement of Questions” and to further refine its strategic approach to resolving the issues that appear to threaten the long-term survival of the Green River Reservoir. Although the task appears complex and no simple solution is apparent, we remain confident that developing solutions to the issues at hand can be achieved and that the Reservoir will continue to provide the quality wilderness experience that we have come to know and value. We will be updating the FGRR website as new information becomes available. Thank you all for your support, suggestions, and comments.
Green River Reservoir Dam Relicensing Situation September 16th ,2016
The dam which creates Green River Reservoir belongs to Morrisville Water and Light (MWL), a municipal power company. MWL originally owned all land which the State purchased to create Green River Reservoir State Park. All dams must be relicensed every 30 years by the Federal Energy Regulatory Commission (FERC), the first step toward which is a state certification. MWL is in the process of having their four dams relicensed and is appealing the recent Water Quality Certification issued by the Vermont Agency of Natural Resources (ANR) which requires that the water drawdown in winter be limited. MWL has appealed that decision stating that it would no longer be economical to operate the Green River dam under the limitations required by ANR’s Water Quality Certification and that therefore removing the dam is a possibility. The Vermont Agency of Natural Resources is required by the federal clean water act to protect aquatic habitat and states that these limitations are necessary.
The Friends of Green River Reservoir (FGRR) Board has been actively engaged in monitoring MWL’s Federal Energy Regulatory Commission (FERC) Green River Reservoir Dam re-licensing process. This is a complex process involving multiple parties that began in 2010. As recently reported in the media, this re-licensing process has been highly contentious (see recent articles in the News and Citizen and on VTDigger (http://vtdigger.org/2016/09/18/conflicting-goals-create-dilemma-green-river/) for more detail.
Statement by the FGRR Board to the Membership:
The FGRR Board is actively seeking more detailed information regarding the issues at contention and will be advocating for reasonable, environmentally sound and sustainable solutions that include the ongoing sustainability of the Park's reservoir. To be able to influence this process, the Board is seeking formal party status in the Environmental Court's proceeding. This will enable the Board to have access to all information that will form the basis of any court decision, question witnesses, ask for additional information, and be part of any formal and informal negotiations. We have filed our intervention request and should know the outcome of that request before October's end.
On August 9, 2016, as required by Federal law, the Vermont Agency of Natural Resources (ANR) filed with FERC their decision regarding the Water Quality Certification that would apply to MWL's four hydroelectric generation projects under review. The GRR Dam is one of those projects. On September 7, MWL filed with the Vermont Environmental Court (EC) an appeal of ANR's August 9 decision. On September 9, American Whitewater and Vermont Paddlers Club, Inc. filed a separate appeal of ANR's decision regarding the number of summer water releases. These appeals automatically result in a proceeding being opened in Vermont Environmental Court and will stay implementation of all newly-proposed ANR recommendations. The timing of the conclusion of this process is hard to predict and could take more than one year.
Since our last membership communication, we have received the “Statement of Questions” from both appellants: (1) MWL and (2) the American Whitewater and Vermont Paddlers Club, Inc. ( AWVPC). Their “ questions” identify the specific areas of concern in ANR's Certification and will define the EC's scope of investigation. A link to the Statement of Questions is posted on the FGRR website’s News page. The Board has also posted a letter in various local publications and has received a number of new members. This increased support will enable us to have the option of obtaining the assistance of legal and environmental experts so as to be a stronger and better prepared participant in this ongoing legal proceeding.
On October 6 your Board met to review the previously mentioned “Statement of Questions” and to further refine its strategic approach to resolving the issues that appear to threaten the long-term survival of the Green River Reservoir. Although the task appears complex and no simple solution is apparent, we remain confident that developing solutions to the issues at hand can be achieved and that the Reservoir will continue to provide the quality wilderness experience that we have come to know and value. We will be updating the FGRR website as new information becomes available. Thank you all for your support, suggestions, and comments.
The Board will actively communicate with our membership as to the status of this process as we work towards a solution that ensures the preservation of the reservoir. We believe that one constructive step right now would be build the FGRR membership base and therefore encourage you to reach out to your friends to become FGRR members. Anyone can join the FGRR by visiting the FGRR website at http://www.fgrrvt.org/get-involved/ . This will provide us with a credible and strong base of community support for any steps needed to preserve the treasure that we have in the Green River Reservoir.
Check the FGRR website under News- http://www.fgrrvt.org/news-events/ -for the latest information on this situation. We will send emails occasionally as well; if you want to receive them be sure that we have your current email address. Michael Wickenden is taking the lead on this issue for the Board, and can be reached directly at firstname.lastname@example.org .