High court ruling puts Green River Reservoir at risk

One of those dams forms the 653-acre Green River Reservoir, the centerpiece of an isolated, pristine 5,110-acre state park in Hyde Park.

The dispute involves water flow rates allowed for three hydroelectric dams that Morrisville Water & Light operates on the rivers.

“Friday’s ruling by the Supreme Court is a chilling decision for renewable energy, Vermont electric ratepayers and the future of the Green River Reservoir,” Craig Myotte, general manager of the small utility, said on Monday.

The Supreme Court said the state environmental court “erred in failing to give deference” to the state Agency of Natural Resources on water quality standards. 

Morrisville Water & Light, a municipal utility, applied in 2010 to relicense its Lamoille River dams at Cadys Falls and in Morrisville, and the Green River Reservoir dam. As part of that process, the utility needed state water quality certifications. 

In 2016, the Agency of Natural Resources issued the certification, setting flow rates at the Morrisville dam of 70 cubic feet per second to protect brook trout and 80 cubic feet at Cadys Falls to protect rainbow trout; and seasonal flow and reservoir elevation requirements for the Green River dam. Essentially, the flow rates define how much water the utility must allow to bypass its dams.

The electric utility wanted lower flow rates to protect its hydroelectric operations, and appealed the certification to the state Environmental Court. 

Meanwhile, the Vermont Natural Resources Council and Vermont Trout Unlimited argued that the state agency’s flow rates were actually 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” on the Green River Reservoir. 

On the flip side, outdoor recreation fans who love the Green River Reservoir expressed alarm that Morrisville Water & Light might demolish that dam.

Last year, Judge Thomas Walsh issued a decision siding with the utility, and rejecting the state’s minimum flow rates for the two Lamoille dams.

But, he sided with the state agency in limiting the amount of water Morrisville can draw down from the Green River Reservoir each winter, a condition that the utility says will make the Green River dam unprofitable, and possibly unsafe.

And the court sided with the paddlers in allowing for three annual scheduled releases of whitewater, which neither the utility nor state had wanted. 

10 million kilowatt-hours

The two Lamoille River dams account for 9 million of the 10 million kilowatt-hours of electricity that Morrisville generates at its three hydro facilities each year.

The other 1 million kilowatt-hours are generated at the Green River dam, and utility staff say up to a third of that could be lost if the state recommendations are enforced.

“At Green River Reservoir, it was disappointing. The limited drawdown really makes it uneconomic for us to operate it,” Myotte said after the earlier decision. The utility has said repeatedly said it won’t operate the dam at a loss, and it has raised the possibility of draining the reservoir and decommissioning the dam as a solution.

That would eliminate one of the most extraordinary outdoor locations in Vermont.

Morrisville Water & Light sold over 5,000 acres to the state in March 1999, laying the groundwork for the now-popular state park. Since then the number of visitors has steadily climbed, peaking at over 12,000 per year in recent years.

The 19 miles of undeveloped shoreline and surrounding hills give off a vibe similar to much more remote areas in the western United States or the Allagash wilderness in Maine, despite being just minutes from downtown Morrisville.

The reservoir is a designated “quiet” lake, and day use at the park is limited to non-motorized transport — mainly canoes, kayaks and stand up paddle boards — and there are also 27 remote campsites, almost all of which can be reached only by boat.

The wild, isolated feel of the park and reservoir are only occasionally broken by the eerie cry of the several pairs of nesting loons that live there, and the park has become a recreation destination, not just for locals and other Vermonters but for people from across New England and the northeastern United States. A visit to the always-crowded parking lots reveals license plates from dozens of neighboring states.

With the Supreme Court decision, the future of the reservoir — which seems to be universally thought of as a gem and one of Vermont’s hidden treasures — is now in doubt.

Competing interests

When the state Agency of Natural Resources appealed Walsh’s decision, it argued that the court had not adequately taken into account the anti-degradation and habitat protection the state was seeking.

The utility argued that the court 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 Justice Karen Carroll, the Supreme Court agreed Friday with the state that economic and social factors should not be part of the water quality permit. The higher court struck down the environmental court’s imposition of lower flow rates at the Cadys Falls, Morrisville and Green River dams. 

The higher court sided with the environmental court in upholding the state’s 1.5-foot limit for winter drawdown — in the past, drawdowns had been about 10 feet — and timed whitewater releases at the Green River Reservoir. State officials think the winter drawdowns of several feet expose too much aquatic habitat to Vermont’s extreme winter temperatures.

Morrisville had proposed to limit its drawdown to 6 feet each winter, but Walsh ruled in favor of the state-proposed drawdown of just 18 inches, and the higher court upheld that ruling.

Morrisville says that could cut the Green River Dam’s electricity output by up to 300,000 kilowatt-hours, nearly one-third of the annual output, making it unprofitable to continue operating.

“Morrisville Water & Light cannot and will not operate the Green River Reservoir Dam at a loss,” Myotte reiterated Monday. As a small utility, revenues must cover costs, he said, and the state’s water quality conditions “make this impossible.”

In addition, the Morrisville utility has raised the possibility that minimal winter drawdowns could lead to safety concerns at the dam, but no safety study has been done yet.

The state conditions “will compromise the dam’s ability to operate safely and Morrisville Water & Light’s ability to generate power (and revenue) from the facility to cover the cost of operating and maintaining it,” Myotte said.

Is there a way forward?

State officials have not offered any plans for what to do if Morrisville really does decide to decommission the dam or turn it over to someone else.

Environmental advocates applauded the Supreme Court’s 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.” 

By Monday, Myotte was working with the utility’s legal team and a few experts to determine the next steps, but in a way the Supreme Court decision is “the end of the road,” he said.

Utility staff had accepted Walsh’s environmental-court decision and weren’t planning to appeal, but took part in the appeal to the Supreme Court when other parties filed it.

Now, Myotte isn’t sure where the utility goes from here. The two Lamoille dams likely need upgrades to remain productive and profitable, given the new flow requirements. And, there’s no plan for the Green River dam given the concerns voiced by utility staff regarding its profitability and safety.

Myotte expected his legal staff and consultants to formulate a plan to move forward, somehow, over the coming days.

“We will now look to the state of Vermont for potential solutions that will ensure the preservation of the reservoir and state park,” he said.