Federal court rules arrangement at Conowingo Dam did not follow the process laid out by the Clean Water Act
December 20, 2022 at 5:55 p.m. EST
A deal that exempted a Maryland power company from cleaning up or paying for pollution that passes from its dam on the Susquehanna River into the Chesapeake Bay has been thrown out in federal court in a win for environmental groups.
The Federal Energy Regulatory Commission (FERC) “exceeded its authority” in approving an arrangement that issued a 50-year operating license to Exelon, and did not follow the process laid out by the Clean Water Act, a panel of three judges on the U.S. Court of Appeals for the D.C. Circuit ruled. That license is now void, pending an appeal by the power company, now operating under Constellation Energy.
“This is a national precedent here. Generally these cases don’t go this way,” said Zack Kelleher, the Sassafras Riverkeeper — one of a group of advocates for local waterways. “It impacts not just … our local rivers here, but it impacts waterways across the country.”
A Constellation spokesman said the company was “still reviewing the order” but is “surprised and disappointed.”
The Conowingo Dam, a massive hydroelectric facility in northeast Maryland dating back to 1928, traps nitrogen and phosphorus in the sediment in a reservoir behind its turbines. Over the past 100 years, that debris has built up so that the pool has shrunk from 120-feet deep to barely 15 feet. When storms come through and the dam’s floodgates are open, that pollution travels down into the Chesapeake Bay.
Under Section 401 of the Clean Water Act, a federal agency cannot issue a license to operate that may result in any water discharge unless a water quality certification is issued or waived by the relevant state. Four years after the dam’s 50-year license expired, Maryland in 2018 issued a certificate that required the dam’s operator to either dredge the reservoir or pay billions in compensation for the nutrients flowing out.
But the power company challenged those requirements in court, and a year later Maryland made a settlement with Exelon that required the company to pay the state about $200 million over the next half century to address pollution. FERC then approved a new 50-year license.
Environmental activists sued, saying the original certification with requirements attached was legally sound and the new license a violation of federal law.
“The court made very clear that the language of the Clean Water Act is absolute,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake. A state cannot issue a certification with certain requirements “and then change its mind.”
Now Maryland has a new chance to either hold Constellation Energy to the 2018 plan or come up with new environmental standards.
Constellation argued that Maryland’s demands were unreasonable, holding a dam that creates carbon-free electricity responsible for pollution that comes from factories and farms.
“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,” the spokesman said.
The environmental advocates say that by trapping those pollutants and then dumping them all at once during storms, the dam makes the problem significantly worse.
“They claimed it’s not their pollution, they have nothing to do with it, it’s not their responsibility, but it actually is,” said Ted Evgeniadis, the Lower Susquehanna Riverkeeper. “If they want to use a public resource for private profit, then they have to make sure that that river is maintained.”
The sediment covers underwater grasses and oyster beds, the nutrients feed algae blooms that suck up oxygen and block sunlight, and the influx of water lowers the salinity, which affects oyster growth.
“We’re basically the closest oyster farm to the Conowingo Dam, and we’ve been operating that way for the better part of a decade, and we definitely notice water quality swings,” said Scott Budden, founder of Orchard Point Oyster Company. “When they’ve opened more gates, after 24 hours or so, we see the degradation.”
Advocates also say Constellation could avoid the steep payments by dredging the reservoir, which would cost about $41 million a year. But they agree the problem goes beyond Constellation, to pollution from states up the Eastern Seaboard.
“It’s not total victory; we still have to keep the fight and keep the pressure up,” Kelleher said. “We have to make sure that whatever steps happen next, there’s accountability across the board — not just from Constellation but from Pennsylvania and New York.”
The dam also blocks fish from traveling upstream to spawn, and eels that carry the larvae of freshwater mussels. Millions of fish once traveled up the river; now only a few thousand do. The license approved by FERC included a commitment from Constellation to promote mussel restoration, fish and eel passage, turtle management, and waterfowl nesting, including transporting fish upriver and protecting endangered species. Constellation says that could cost the company up to $500 million.
During oral arguments, an attorney for the Interior Department expressed concern that restoration efforts would by disrupted by the vacating of the license. Nicholas said there’s no reason that FERC cannot put such requirements into a temporary license.
“When you’re talking about a 50-year license, it’s worth a couple of years of delay to get it right,” Nicholas said. “This decision will last longer than I will.”
An earlier version of this article misidentified the location of the dam. This article has been corrected.