LOCAL

Federal court invalidates 50-year license for Maryland’s Conowingo Dam

Christine Condon
Baltimore Sun (TNS)

Environmental groups won a victory Tuesday in their fight for more pollution controls on Maryland’s Conowingo Dam when a federal court invalidated the dam’s 50-year license.

By voiding the license, issued last year by the Federal Energy Regulatory Commission, the District of Columbia Circuit Court of Appeals is sending it back to the agency for further review.

Local environmental groups, including Waterkeepers Chesapeake and the Chesapeake Bay Foundation, considered the license a missed opportunity to regulate how the hydroelectric dam’s operator manages the polluted sediment trapped behind the dam, which bridges the Susquehanna River between Harford and Cecil counties.

In 2018, the Maryland Department of the Environment issued a certification that would have forced then-dam owner Exelon to reduce pollution escaping the dam — or pay $172 million a year.

But after Exelon challenged Maryland’s requirements in court, arguing it shouldn’t be held responsible for pollution it doesn’t create, the two parties reached a settlement. The dam is now owned and operated by Constellation Energy, which Exelon spun off as a separate company earlier this year.

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Maryland voided the requirements and Exelon agreed to pay $225 million toward restoring the Susquehanna River and aiding the passage of fish through the dam. Those terms were adopted by FERC as part of the dam’s new 50-year license, which environmental groups then challenged.

On Tuesday, the D.C. Circuit judges ruled Maryland couldn’t “backtrack” on the original certification issued to Constellation. And therefore, FERC’s license cannot stand.

“When a state or other jurisdiction has issued a water quality certification, it can’t be considered waived after the fact or bargained away,” said Paul Smail, director of litigation for the Chesapeake Bay Foundation. “And that is very important.”

In a statement, Constellation Energy spokesman Paul Adams pushed back on the notion that the court’s decision is a win for the environment.

“No one who cares about clean air and the health of the Chesapeake Bay should be cheering this decision, which potentially jeopardizes the state’s largest source of renewable energy and could disrupt up to $700 million that Constellation pledged for environmental programs, projects and other payments that directly benefit water quality, aquatic life and citizens living on and near the bay,” read the statement.

That $700 million includes Conowingo’s settlement with Maryland, its settlement with the U.S. Fish and Wildlife Service and about $175 million worth of environmental requirements included in the FERC license, Adams wrote.

Maryland's Department of the Environment also was “disappointed” by the court’s ruling, according to a statement from agency spokesman Jay Apperson, and will “work with the Office of the Attorney General on the implications and next steps.”

The fall migration of bald eagles brings nearly 400 birds to the Conewingo Dam in Hartford, MD each fall. From October through January, the majestic birds-of-prey feed on migrating shad and find mates, drawing photographers and bird watchers by the hundreds. (John A. Pavoncello - The York Dispatch)

A spokesman for FERC declined to comment on the court’s ruling.

The court’s decision could have implications for other projects regulated by FERC, including oil pipelines and other hydropowered dams, said Betsy Nicholas, executive director of Waterkeepers Chesapeake. The D.C. Circuit is considered by many to be the nation’s second-most-powerful court, since it retains jurisdiction over decisions by federal agencies.

“This is not a local issue. This is national,” Nicholas said.

As a result of the decision, the process could be sent back to the courts that were considering Exelon’s challenges of Maryland’s 2018 certification for Conowingo, which were “interrupted by the settlement agreement,” according to the court’s opinion. It remains to be seen how Constellation will proceed.

A lower court could either invalidate the 2018 certification, forcing Constellation to ask Maryland for a new one, or validate it, forcing FERC to include the provisions in its license for the dam.

“Either result would comport with a major goal of the Clean Water Act: to make states the ‘prime bulwark in the effort to abate water pollution,’” read the court’s opinion.

The parties also could appeal Tuesday’s ruling, either by asking for all of the D.C. Circuit judges to review the decision “en banc” or by petitioning the U.S. Supreme Court, said James Pew, a senior attorney for Earthjustice, who represented Waterkeepers Chesapeake, ShoreRivers and the Lower Susquehanna Riverkeeper in the case. But Pew said he feels confident the decision, which was fairly succinct and relied on a straightforward interpretation of the Clean Water Act, would stand.

“I don’t think the court would change its mind, and I don’t think another court would view it differently,” Pew said. “It was really a blatant violation of the law. And FERC got caught.”

In its ruling Tuesday, the court acknowledged that vacating the dam’s license could “disrupt some of the environmental protections included” therein. But during the proceedings, FERC’s attorney stated that “such disruption could be avoided through issuance of interim, annual licenses.”

Nicholas said there’s nothing stopping Constellation from continuing its environmental programs while the new license is hashed out, and her group will fight for those programs to proceed. But either way, the contents of the 50-year license are far more important, she said.

“If we had to sacrifice two to three years of progress for substantive protections for 50 years, that’s obviously the choice we would make,” she said.

The dam has become a major flashpoint in conversations about the restoration of the Chesapeake Bay, and the sputtering agreement to reduce nutrient pollution into the estuary by 2025.

That’s because the reservoir behind the dam has trapped large amounts of sediment traveling down the Susquehanna, slowing the flow of harmful nutrients like nitrogen and phosphorous into the nation’s largest estuary. But the reservoir has reached what’s known as “dynamic equilibrium,” meaning it is essentially filled and can no longer trap sediment as it once did. During large storm events, sediment washes down the river, flooding the bay with nutrients.

Alison Prost, the Chesapeake Bay Foundation’s vice president for environmental protection and restoration, said her hope is for Constellation to help fund projects that could slow the flow of nutrients traveling down the river from Susquehanna, in addition to projects to help restore downstream areas impacted by the dam.

Environmental groups have maintained that the energy company should foot the bill because it is profiting from the river and altering its flow.