Conowingo: A Better Deal Coming for the Chesapeake Bay

PEER is working with a coalition of groups led by the Waterkeepers Chesapeake to help ensure that the Federal Energy Regulatory Commission (FERC) imposes adequate pollution controls and wildlife conditions on a new permit for the Conowingo Dam in Maryland.

In a major victory for waterman and environmental groups, in December, the U.S. Court of Appeals for the District of Columbia Circuit vacated the Federal Energy Regulatory Commission’s (FERC) licensing of the Conowingo Dam in Maryland and remanded it back to FERC. In its decision, the court agreed with the plaintiffs that FERC exceeded its authority when it approved a 50-year license without including the Water Quality Certification that Maryland issued in 2018.

PEER had filed an amicus brief on behalf of Maryland Republican and Democratic lawmakers in support of the lawsuit. PEER also developed a video where watermen along the Bay talked about how poor maintenance at the dam threatens their livelihood and impacts recreational opportunities.

One Maryland official described the dam as a “loaded cannon pointing at the Bay.” That’s because the dam traps sediment behind it, and scientists estimate its retention capacity to continue trapping sediment is rapidly diminishing, if not already gone. Major storms currently scour sediment from behind the dam, leading to giant influxes of sediment and other pollutants into the Bay. The dam is also a significant impediment to fish and eel passage upstream.

The lawsuit against FERC revolved around the water quality certification issued by the Maryland Department of the Environment for the dam in 2018. Maryland’s certification required Exelon (now Constellation Energy) to develop a plan to reduce the sediment behind the dam and to cut nutrient pollution to the Bay or pay an annual fee of about $172 million for the duration of the 50-year license. However, when Exelon sued MDE over these requirements, Maryland waived these water quality requirements and others in a closed-door settlement with Exelon. FERC then approved Exelon’s permit to operate the dam without the conditions the State had determined were necessary in 2018. As a result, Maryland taxpayers were left with the responsibility of paying for the dam cleanup instead of requiring Exelon, a large private company that makes millions in annual profits from the dam, to pay its fair share.

The Clean Water Act provides that no license or permit under section 401 shall be granted until certification has been obtained or has been waived by a state. The court agreed with the plaintiffs that FERC cannot issue “a license based on a private settlement arrangement entered into by Maryland after the state had issued a certification with conditions but then changed its mind” without going through the proper administration procedures to withdraw the water quality certification.

The plaintiffs in the case were Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, ShoreRivers, and Chesapeake Bay Foundation. They were represented by Earth Justice.

PEER will work with these groups to support efforts to ensure the State keeps its 2018 water quality certification in force and that FERC applies the conditions in this certification to the Conowingo Dam permit.

---

Paula Dinerstein is PEER’s General Counsel and sits on the Board of Directors for Beyond Pesticides.