VT Supreme Court Protects Whitewater Boating on the Green River
The Vermont Supreme Court decided today that whitewater boaters have the right to paddle on the Green River. The Supreme Court affirmed the decision by the Environmental Division of the Superior Court that required the hydropower project on the Green River in Morrisville to provide three annual scheduled releases. The releases had been banned by the state agency in their 401 water quality certificate. AW appealed the decision and won in the lower court after a two week trial. The state appealed that decision to the state Supreme Court. In its decision today, the Supreme Court ruled:
Because ANR did not identify whitewater boating as an existing use, it did not consider the impact of accommodating whitewater boating in its studies or evaluate whether timed releases would impact water-quality standards, leaving a vacuum in the evidence. ANR asserts that the lack of evidence operates against the Paddlers and it is the Paddler's burden to show that accommodating its use will not degrade aquatic biota, wildlife, and aquatic habitat. On the other hand, the Paddlers assert that ANR had the burden of producing evidence to show that timed releases of water would have a detrimental impact. We conclude that the lack of evidence on this issue operates against ANR. To the extent ANR determined that timed releases would deteriorate water quality, it was up to ANR to create a record to support that. Given the record before it, the Environmental Division did not err in adding a condition providing for scheduled releases to support whitewater boating. Therefore, we affirm.
This is a precedent setting decision because it establishes that whitewater boating is a designated and existing use protected under the Clean Water Act, that scheduled releases are necessary to protect that use, and that Vermont ANR failed to meet its burden to show that providing scheduled release would result in a lowering of water quality. Special thanks to Dan RIchardson and Ron Shems at the Montpelier law firm Tarrant, Gillies & RIchardson for their legal support. Also, special thanks to the support from Vermont Paddlers Club and all those who donated funds to support this effort.