Morrisville Hydroelectric Proj Water Quality - Decision on Motions ( 2018 )

STATE OF VERMONT
SUPERIOR COURT ENVIRONMENTAL DIVISION
Docket No. 103-9-16 Vtec
Morrisville Hydroelectric Project Water
Decision on Motions
Quality
The present appeal is from a water quality certification issued by the Agency of Natural
Resources to Morrisville Water and Light for the Morrisville Hydroelectric Project located on the
Lamoille River and its tributaries in northern central Vermont. Morrisville Water and Light
appealed the certification to this Court. The matter presently before the Court is the Agency of
Natural Resources’ (ANR) motion for summary judgment on Questions 4, 7, 9, 10, 11, 12, 13
raised by Morrisville Water and Light (MWL).1
Findings of Fact
We recite the following factual findings solely for the purpose of ruling on the pending
motion.
1. On September 9, 2015, MWL submitted an application for water quality certification to
ANR for hydroelectric facilities located on the Lamoille River and its tributaries (the Project).
2. The Project consists of the Morrisville Facility, the Cadys Falls Facility, the Green River
Facility, and the Lake Elmore Facility.
3. On August 9, 2016, ANR issued a water quality certification to MWL with conditions
regarding the Clean Water Act and the Vermont Water Quality Standards (VWQS).
4. The Project does not affect any high-quality waters as defined by the VWQS.
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ANR has titled their motion as a motion for summary judgment. The motion, and ANR’s reply to
Morrisville’s opposition, however, requests “summary dismissal” and summary judgment on Questions 4, 7, 9, 12,
and 13. MWL asserts that this motion is actually a motion in limine, because in addition to requesting judgment on
these questions, the motion seeks to preclude MWL from presenting certain evidence at trial. We decline to
interpret the motion in this manner and instead read the motion in its entirety as a motion for summary judgment
because ANR requests judgment on all questions.
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5. The Project additionally operates pursuant to a license issued by the Federal Energy
Regulatory Commission (FERC), originally issued in 1981 (Project 2629).
6. Pursuant to the FERC license, MWL is required, within five years from the date of issuance
of the license, to “acquire title in fee with the right in perpetuity all lands, other than lands of the
United States, necessary or appropriate for construction, maintenance, and operation of the
Project.” MWL must also hold “all riparian or other rights that are necessary or appropriate in
the operation or maintenance of the project.”
7. On March 30, 1999, the State of Vermont conveyed to MWL by warranty deed an interest
in approximately 5,110 acres in the towns of Hyde Park and Eden, Vermont.
8. Part of this conveyance included land “around (but not beneath)” the Green River Facility.
Standard of Review
The Court may grant summary judgment to a party “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” V.R.C.P. 56(a), applicable here through V.R.E.C.P. 5(a)(2). When determining if there is a
genuine dispute as to any material fact, “we will accept as true the allegations made in opposition
to the motion for summary judgment, so long as they are supported by affidavits or other
evidentiary material.” Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citation
omitted). The nonmoving party also receives the benefits of all reasonable doubts and
inferences. Id.Discussion
I. Whether the Court’s June 13, 2017 Decision precludes MWL from raising issues of
practicability
In a June 13, 2017 decision, we determined that “state and federal water quality laws do
not authorize consideration of economic or social factors in this case.” In re Morrisville
Hydroelectric Project Water Quality, No. 103-9-16, slip op. at 14 (Vt. Super. Ct. Envtl. Div. Jun. 13,
2017) (Walsh, J.). This determination still stands and, therefore, any questions that directly raise
social or economic considerations are not properly before the Court.
ANR asserts that Questions 4, 7, 9, 12, and 13 implicitly address social and economic
concerns and, therefore, they are entitled to judgment pursuant to our June 13, 2017 decision.
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MWL disagrees, arguing that these questions raise issues regarding practicability that are
properly before the Court.
These questions do not explicitly ask whether social and economic factors should be
considered.2 As such, these questions address issues that are properly before the Court. To the
extent that they implicitly raise these issues, the Court’s June 13, 2017 determination remains in
effect. For these reasons, ANR’s motion for summary judgment on Questions 4, 7, 9, 12, and 13
is DENIED.
The Court looks forward to the parties’ presentation of evidence on issues properly before
us at trial. Nothing in this decision limits the parties’ rights at trial to raise objections to evidence
implicating social and economic considerations. The Court will rule on such evidentiary issues at
that time.
II. Whether MWL’s deed prevents ANR from regulating the Project
Question 11 asks the Court to determine if ANR is estopped from imposing conditions on
various aspects of the Green River Facility because of language included in MWL’s deed from
ANR. ANR now moves for judgment on this question claiming MWL’s retention of private
property rights cannot estop ANR from enforcing reasonable governmental regulation of the
Project.
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The challenged questions read as follows:
Question 4: “[w]hether the bypass flow conditions for the Morrisville and Cady’s Falls facilities are in excess
of what is necessary to provide a “high quality aquatic habitat,” pursuant to [the VWQS] § 3-04.A.1, and whether
lower bypass flows would provide such habitat and meet all applicable requirements of the [VWQS], including
considerations set forth in ANR Streamflow Procedure, Part E—Hydroelectric and Hydromechanical.
Question 7: “[w]hether ANR’s condition requiring spilling water over the crest of the Morrisville and Cady’s
Falls dams for aesthetic purposes is appropriate, given the limited visibility to the public and the extreme difficulty
of complying with this condition.”
Question 9: “[w]hether the Water Quality Certification should be revised to specifically allow new flow and
water level management conditions to be phased in over an extended period of time (10 years) to accommodate
engineering design, permitting and construction improvements needed to implement new conditions.”
Question 12: “[r]egarding the Green River facility, whether ANR failed to adequately consider the
requirements of the Hydrology Criteria (VWQS § 3-01.C), the Class B Waters Management Objectives (VWQS § 3-
04.A), and the Anti-Degradation Police (VWQS § 1-03) with respect to providing for adequate flows that fully support
and maintain the use of the waters for boating, commercial activity (which includes hydroelectric power generation),
and other recreation.”
Question 13: “[f]or all facilities, whether less significant changes to existing operations, that result in less of
a loss to renewable energy generation, would meet the [VWQS].”
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The State, through ANR, conveyed to MWL by warranty deed a parcel of land in the towns
of Hyde Park and Eden in 1999. MWL asserts that their deed precludes ANR from regulating the
Project. The deed includes, in relevant part, a clause in which MWL retained the right to raise or
lower the reservoir’s water level and generally regulate the cycle of water.3
As a general matter, “all contracts entered into, all charters granted, all rights possessed
and all property held are subject to the proper exercise of [the State’s] police power, and must
submit to its valid regulations and restrictions.” Vermont Woolen Corp. v. Wackerman, 122 Vt.
219, 224 (1961) (citing State v. Quattropani, 99, Vt. 360, 363 (1926)).
We find no merit in the argument that the State, by conveying state-owned property to a
private person or entity, can be precluded by the resulting deed from properly exercising its
police powers in regulating the subject parcel. We conclude that any rights retained by MWL in
an arm’s length transaction with the State cannot preempt ANR’s power to regulate the Project
pursuant to the VWQS and its delegated authority to certify water quality under the Clean Water
Act. We therefore, additionally conclude that we need not address the question of equitable
estoppel.4 ANR’s motion for summary judgement on Question 11 is GRANTED.
III. Whether the Lake Elmore Facility is subject to the pending action
Question 10 asks “[w]hether Lake Elmore should be removed from the Water Quality
Certification as MWL does not currently draw down Lake Elmore for generation purposes and
proposes to eliminate any draw down from Lake Elmore in the future.” ANR’s motion asks the
Court to conclude we cannot remove Lake Elmore from the pending action.
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The Court notes that, to the extent this action seeks to address private property rights as set forth in the
warranty deed, we are without jurisdiction to interpret private property rights. See Appeal of Yates and Leetle, No.
158-9-04 Vtec, slip op. at 3 (Vt. Envtl. Ct. May 4, 2005) (Durkin, J.).
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The parties have briefed this issue in the framework of equitable estoppel. Even if the Court applied the
equitable estoppel factors, ANR would be entitled to judgment as a matter of law because, where a party asserts
estoppel against the government, as in this case, the party must additionally demonstrate that “the injustice that
would result from denying the estoppel outweighs the negative impact on public policy that would result from
applying estoppel.” In re Griffin, 2006 VT 75, ¶ 18, 180 Vt. 589 (mem.).
The Court concludes that the state has a strong public policy interest in enforcing environmental regulations
and it’s CWA delegated authority. Denying the estoppel claim would not result in an injustice that would outweigh
this important public policy interest. Therefore, this is not one of the rare or extraordinary circumstances in which
estoppel against the government should be recognized. See In re McDonald’s Corp., 146 Vt. 380, 383 (1985).
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We conclude, and the parties agree, that we are without jurisdiction to narrow the scope
of the water quality certification application before the Court. For this reason, ANR’s motion for
summary judgment on Question 10 is GRANTED and the Lake Elmore Facility will not be removed
from this action.
Conclusion
For the foregoing reasons, ANR’s Motion for Summary Judgment is DENIED as to
Questions 4, 7, 9, 12, and 13 but GRANTED as to Questions 10 and 11.
Electronically signed on March 14, 2018 at 10:35 AM pursuant to V.R.E.F. 7(d).
_________________________________________
Thomas G. Walsh, Judge
Superior Court, Environmental Division
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