Environmental groups filed an appeal on Thursday in an attempt to overturn a federal commission’s decision to relicense the Conowingo Dam.
They contend the terms of the new license do not do enough to address efforts needed to clean up the Susquehanna River and Chesapeake Bay.
In March, the Federal Energy Regulatory Commission announced its decision to grant the electric power company Exelon Corp. a new 50-year license to continue operating the Conowingo Dam.
In their appeal to the U.S. Court of Appeals for the D.C. Circuit, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, Sassafras Riverkeeper and the Chesapeake Bay Foundation wrote that FERC’s action was unlawful because it did not include cleanup requirements that the Maryland Department of the Environment determined were necessary.
The environmental groups also wrote that by not adequately considering harm the dam does to the river and to the Bay, FERC’s action violates the federal Clean Water Act, Federal Power Act and the National Environmental Policy Act.
“The Conowingo Dam is the single largest threat to the Chesapeake Bay watershed. We simply can’t allow this license to go through for the next 50 years without sufficient protections,” said Betsy Nicholas, the executive director of Waterkeepers Chesapeake.
The 93-year old hydroelectric dam is located between Harford and Cecil counties in Maryland, about 10 miles upriver from where the Susquehanna flows into the Chesapeake Bay. For decades, the dam has trapped sediment and nutrient pollution from the river, preventing it from reaching the Bay.
But the reservoir behind the dam has filled up faster than expected, so it no longer catches sediments and lets more nitrogen and phosphorus pollutants pass through the dam and into the Bay.
FERC’s license has no parameters to remove nitrogen, phosphorus and sediment — the most significant pollutants to the Bay watershed, Nicholas continued.
The environmental groups’ action came after they filed a petition in April for a rehearing of FERC’s approval of Exelon’s license application. But their request was denied, Nicholas said.
In a Friday morning statement, Exelon noted that FERC issued a unanimous decision on the new 50-year license, “which also was supported by the Maryland Department of the Environment, the Susquehanna River Basin Commission, the US Fish and Wildlife Service, and state environmental protection agencies in Pennsylvania.”
The company said the new license provides $700 million in immediate help for environmental programs, projects and payments to benefit residents and aquatic life.
“We’d prefer to focus on Chesapeake Bay restoration efforts — not on protracted litigation that may serve to delay or deny these benefits at a time when they are most needed,” the statement concluded.
A long history
This is only the latest step in the ongoing disputes over the Conowingo Dam’s role in polluting the Chesapeake Bay and who should be required to pay for cleaning it.
“Every time the floodgates of Conowingo open, all of that debris and sediment and pollution…contained behind the dam flow free and end up in our rivers on our shorelines and the Eastern Shore is really bearing the brunt of this flow,” said Zach Kelleher, the Sassafras Riverkeeper.
“That means our watermen whose livelihoods are already threatened enough by degrading water quality — they can’t work,” he continued. “No one should be allowed to profit from a public natural resource without having to contribute meaningfully to the protection and restoration of that resource.”
In 2017, all six states in the Chesapeake watershed agreed to collaborate on a Conowingo Watershed Implementation Plan to address the additional pollutants entering the Bay. But they realized that there was no funding mechanism, mostly because Exelon was expected to bear a large portion of the cost of pollution reduction efforts, said Morgan Johnson, a staff attorney for Waterkeepers Chesapeake.
And without dedicated funding, environmentalists warn that the cost of pollution reduction projects will fall on the shoulders of taxpayers in the Bay states.
Under the federal Clean Water Act, a federal license can only be issued if the state determines that it will not harm water quality. In 2018, the Maryland Department of the Environment issued a water quality certification as a part of Exelon’s license agreement, requiring Exelon to clean up the pollution for the next 50 years or pay the state $172 million a year to do it.
But Exelon — with its subsidiary Constellation based in Baltimore and utilities it owns serving roughly 1.8 customers in Maryland — sued the state. The suit led to a settlement between MDE and Exelon in October 2019. The settlement requires the power company to spend more than $200 million over the next 50 years on clean up projects, which include restoring populations of mussels and fish and reducing the nitrogen and sediment flowing into the Bay.
And FERC’s approval to reissue Exelon’s license to operate the Conowingo Dam maintains this settlement agreement.
Environmentalists lambasted the settlement for not doing enough to require Exelon to repair damages the dam has already done. By agreeing to this settlement, MDE waived its certification and relinquished its legal authority to enforce water quality provisions for the next 50 years that it was required to do under the federal Clean Water Act.
But environmentalists argue that MDE cannot waive their right to issue something that was already issued. Instead, the department would have had to withdraw their water quality certification, but that would have required the same public process that was used in issuing it, Nicholas said.
“Exelon is a rich company with a lot of political clout,” said Jim Pew, senior attorney at Earthjustice.
“It doesn’t even make sense for MDE to waive its rights to issue a certification that it has in fact already issued three years ago,” Pew said. “The Clean Water Act certainly does not allow FERC to issue a license based on this bogus arrangement.”
State legislation has been introduced for the past two years to try to address the issue. Before FERC reissued Exelon’s license to operate the Conowingo Dam in March, Sen. Stephen Hershey (R-Upper Shore) and Del. Jay A. Jacobs (R-Upper Shore) introduced SB 540/HB 427, which would have prohibited the state from entering into an agreement that waives the state’s authority under the Clean Water Act related to the relicensure of the Conowingo dam.
But the legislation did not move out of committee in either year.
MDE said it will work on enforcing the current clean up requirements that are in place for Exelon.
“MDE is focused on implementing and enforcing the significant new state and federal requirements Exelon must now meet while continuing to work with upstream states and the federal government to do even more for the river and the bay,” Jay Apperson, spokesman for MDE, said in a statement.
Editor’s Note: This story was updated to including a statement received Friday from Exelon.