Tuesday, December 20, 2022

CBF: Federal Court Vacates FERC Conowingo Power Dam License, Offering New Chance For Chesapeake Bay Protections

On December 20, the U.S. Court of Appeals in Washington, D.C., vacated the license issued by the Federal Energy Regulatory Commission for the Conowingo Dam just south of the Pennsylvania -  Maryland border on the Susquehanna River. 

It ruled that FERC had no authority to issue a license based on Maryland’s after-the-fact withdrawal and “waiver” of its Water Quality Certification granted for the Dam in 2018. The state attempted to waive the certification in a settlement agreement with the Dam’s operator, Constellation Energy. 

By vacating the 50-year license FERC issued in 2021, the Court of Appeals is in effect re-starting challenges by the utility and others to the water quality certification that Maryland issued before entering the settlement agreement with the Dam’s operator.  

Chesapeake Bay Foundation has consistently challenged Maryland’s Conowingo Dam settlement with Constellation, which split from the Exelon in 2022, because it failed to protect water quality in the Susquehanna River, the Bay’s primary tributary. 

The Conowingo settlement negotiated by Maryland provided $200 million over 50 years, but largely for fish passage and habitat improvements, and not nutrient reductions.

Among its failures: 

-- It forfeited Maryland’s right to modify the dam’s pollution permit, preventing the state from requiring Exelon to reduce pollution coming from the dam for the next 50 years. 

-- It didn’t expressly require Exelon to add the pollution reduction measures the company said it would fund as part of the settlement. 

-- It did not focus settlement funds to Pennsylvania, where pollution projects are most urgently needed to address Bay pollution being exacerbated by the dam’s presence on the Susquehanna River. 

Over time, Conowingo Dam went from a pollution preventer that trapped sediment and pollutants in the reservoir behind the dam to a pollution source after the reservoir filled up. 

Strong storms that produce significant rainfall cause scour events during which large amounts of water flowing through the dam wash the sediment, debris, and pollutants trapped behind the dam into the lower reaches of the Susquehanna River and the Chesapeake Bay. 

This process alters the form and timing of pollutants that enter the Bay by causing large amounts of pollutants to flow through the dam all at one time, overwhelming natural systems. 

The pollutants then contribute to algal blooms that cause dead zones devoid of oxygen where marine life can’t survive. 

CBF attorneys Paul Smail and Brittany Wright worked on the case in the Court of Appeals along with James Pew of Earthjustice, who represented Waterkeepers Chesapeake. 

In response to the ruling, CBF’s Vice President of Environmental Protection and Restoration Alison Prost issued the following statement-- 

“The court’s decision today is a cause for celebration among all who fight for and appreciate clean water. Maryland’s sweetheart deal with Constellation let the utility off the hook for what would have been decades of pollution related to the dam’s operations. 

“Maryland leaders now have the opportunity to directly address the negative downstream impacts of the dam through a new license complete with a state water quality certification. 

“We urge the state to use this opportunity to force Constellation to invest in upstream environmental projects that will offset the harm caused by the dam’s presence and protect the Chesapeake Bay for generations to come.” 

Conowingo Dam Plan

In September, Chesapeake Bay Watershed States and the U.S. Environmental Protection Agency agreed to a new plan for more nutrient and sediment reductions to make up for the  Conowingo Dam’s post pollution trapping capacity.  [Read more here]

Most of the plan’s initial phase focuses on watersheds that cross the Maryland-Pennsylvania state line, with some potential work along the Pennsylvania-New York border.  [Read more here]

The plan would need an estimated $53 million annually to fully implement and so far only Maryland has offered a one-time investment of $25 million.  [Read more here]

For more on Chesapeake Bay-related issues in Pennsylvania, visit the Chesapeake Bay Foundation-PA webpage.  Click Here to sign up for Pennsylvania updates (bottom of left column).  Click Here to support their work.

CBF has over 275,000 members in Bay Watershed.

[Visit DEP’s Chesapeake Bay Watershed webpage to learn more about cleaning up rivers and streams in Pennsylvania's portion of the Chesapeake Bay Watershed.  Click Here to sign up for regular updates on Pennsylvania’s progress.

[How Clean Is Your Stream?

[Check DEP’s 2022 Water Quality Report to find out how clean streams are near you.]

Related Article:

-- Bay Journal: States/EPA Agree To New Plan For More Nutrient, Sediment Reductions In Chesapeake Bay Watershed To Make Up For Conowingo Dam

Related Articles:

-- Chesapeake Bay Foundation Applauds DEP Grants To Support County Clean Water Action Plans To Clean Up Local Waters

-- Master Watershed Stewards Complete Live Stake Nurseries Across Pennsylvania  [PaEN]

-- York Master Watershed Stewards Participate In Vernal Pool Monitoring At Gifford Pinchot State Park [PaEN]

-- York County Watershed Organizations Remove 50,000 Pounds Of Trash From Waterways In 50K Trash Challenge In 2022  [PaEN]

[Posted: December 20, 2022]  PA Environment Digest

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