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### STATE OF VERMONT SUPERIOR COURT ENVIRONMENTAL DIVISION Docket No. 103-9-16 Vtec

Morrisville Hydroelectric Project Water Quality Decision on Motions

The present appeal is from a water quality certific ation issued by the Agency of Natural Resources to Morrisville Water and Light for the Mo rrisville Hydroelectric Project located on the Lamoille River and its tributaries in northern cent ral Vermont. Morrisville Water and Light appealed the certification to this Court. The matt er presently before the Court is the Agency of Natural Resources’ (ANR) motion for summary judgmen t 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 fo r 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 Lam oille River and its tributaries (the Project).
2. The Project consists of the Morrisville Facility, t he Cadys Falls Facility, the Green River Facility, and the Lake Elmore Facility.
3. On August 9, 2016, ANR issued a water quality certi fication 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.

1 ANR has titled their motion as a motion for summar y judgment. The motion, and ANR’s reply to Morrisville’s opposition, however, requests “summar y 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 f rom presenting certain evidence at trial. We decli ne to interpret the motion in this manner and instead rea d the motion in its entirety as a motion for summar y judgment because ANR requests judgment on all questions.2

5. The Project additionally operates pursuant to a lic ense issued by the Federal Energy Regulatory Commission (FERC), originally issued in 1981 (Project 2629).
6. Pursuant to the FERC license, MWL is required, with in five years from the date of issuance of the license, to “acquire title in fee with the r ight in perpetuity all lands, other than lands of t he United States, necessary or appropriate for constru ction, maintenance, and operation of the Project.” MWL must also hold “all riparian or othe r 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 P ark 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 “i f the movant shows that there is no genuine dispute as to any material fact and the mov ant 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 a ccept 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., I nc., 2004 VT 15, ¶ 15, 176 Vt. 356 (citation omitted). The nonmoving party also receives the be nefits of all reasonable doubts and inferences. Id.
Discussion
I. Whether the Court’s June 13, 2017 Decision preclude s MWL from raising issues of practicability
In a June 13, 2017 decision, we determined that “st ate and federal water quality laws do not authorize consideration of economic or social f actors 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 imp licitly address social and economic concerns and, therefore, they are entitled to judgm ent pursuant to our June 13, 2017 decision.3

MWL disagrees, arguing that these questions raise i ssues regarding practicability that are properly before the Court. These questions do not explicitly ask whether soci al 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 summar y judgment on Questions 4, 7, 9, 12, and 13
is DENIED

. The Court looks forward to the parties’ presentatio n of evidence on issues properly before us at trial. Nothing in this decision limits the p arties’ rights at trial to raise objections to evid ence implicating social and economic considerations. Th e 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 e stopped 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 c laiming MWL’s retention of private property rights cannot estop ANR from enforcing rea sonable governmental regulation of the Project.

2 The challenged questions read as follows: Question 4: “[w]hether the bypass flow conditions f or the Morrisville and Cady’s Falls facilities are in excess of what is necessary to provide a “high quality aqu atic habitat,” pursuant to [the VWQS] § 3-04.A.1, an d whether lower bypass flows would provide such habitat and m eet all applicable requirements of the [VWQS], inclu ding considerations set forth in ANR Streamflow Procedur e, Part E—Hydroelectric and Hydromechanical. Question 7: “[w]hether ANR’s condition requiring sp illing water over the crest of the Morrisville and Cady’s Falls dams for aesthetic purposes is appropriate, g iven the limited visibility to the public and the e xtreme difficulty of complying with this condition.” Question 9: “[w]hether the Water Quality Certificat ion should be revised to specifically allow new flo w and water level management conditions to be phased in o ver an extended period of time (10 years) to accomm odate engineering design, permitting and construction imp rovements 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, com mercial activity (which includes hydroelectric powe r generation), and other recreation.” Question 13: “[f]or all facilities, whether less si gnificant changes to existing operations, that resu lt in less of a loss to renewable energy generation, would meet t he [VWQS].”4

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 th eir deed precludes ANR from regulating the Project. The deed includes, in relevant part, a cl ause in which MWL retained the right to raise or lower the reservoir’s water level and generally reg ulate the cycle of water. 3 As a general matter, “all contracts entered into, a ll charters granted, all rights possessed and all property held are subject to the proper exe rcise 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, V t. 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 r esulting 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 p reempt 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 r emoved from the Water Quality Certification as MWL does not currently draw down L ake Elmore for generation purposes and proposes to eliminate any draw down from Lake Elmor e in the future.” ANR’s motion asks the Court to conclude we cannot remove Lake Elmore from the pending action.

3 The Court notes that, to the extent this action s eeks to address private property rights as set fort h in the warranty deed, we are without jurisdiction to inter pret private property rights. See Appeal of Yates and Leetle, No. 158-9-04 Vtec, slip op. at 3 (Vt. Envtl. Ct. May 4, 2 005) (Durkin, J.).

4 The parties have briefed this issue in the framewor k of equitable estoppel. Even if the Court applied the equitable estoppel factors, ANR would be entitled t o judgment as a matter of law because, where a part y asserts estoppel against the government, as in this case, t he party must additionally demonstrate that “the in justice that would result from denying the estoppel outweighs th e negative impact on public policy that would resul t from applying estoppel.” In re Griffin, 2006 VT 75, ¶ 18 , 180 Vt. 589 (mem.). The Court concludes that the state has a strong pub lic policy interest in enforcing environmental regu lations and it’s CWA delegated authority. Denying the esto ppel claim would not result in an injustice that wo uld outweigh this important public policy interest. Therefore, this is not one of the rare or extraordinary circum stances in which estoppel against the government should be recognize d. See In re McDonald’s Corp., 146 Vt. 380, 383 (19 85).5

We conclude, and the parties agree, that we are wit hout jurisdiction to narrow the scope of the water quality certification application befo re 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 Summar y 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