By Ridge Hall
Posted in The Baltimore Sun, Feb 15, 2023
In a tremendous win for the Chesapeake Bay watermen, and downstream residents, the U.S. Court of Appeals for the District of Columbia Circuit recently issued a ruling vacating the issuance by the Federal Energy Regulatory Commission (FERC) of a 50-year license to Constellation Energy (formerly Exelon) to continue operating the Conowingo Dam hydroelectric power facility.
The judges found that FERC violated the Clean Water Act when it issued the license without including the water quality certification that the Maryland Department of the Environment (MDE) had issued in 2018. Constellation had objected to the certification as too burdensome and persuaded MDE to enter into a settlement in which MDE retroactively waived the requirement. The license incorporated that settlement. The lawsuit, brought by environmental groups, challenged the inclusion of the settlement with Constellation, arguing that MDE’s waiver was improper and that, without the environmental protections prescribed by the certification, the license failed to protect the bay’s water quality.
What does this mean moving forward? For now, Conowingo Dam will be required to operate on an annual license, instead of one that runs for 50 years, until FERC issues a new license. Since that license cannot be issued without Maryland’s water quality certification determination, the ball is now in Maryland’s court.
As the court emphasized in its ruling, under the Clean Water Act states are the “prime bulwark in the effort to abate water pollution.” To fulfill this duty to protect water quality, the Wes Moore administration and MDE should uphold the science-based 2018 water quality certification requirements, rather than start the process over from scratch. That certification identified the minimum steps necessary for the dam operations to protect the water quality of the Lower Susquehanna River and the Chesapeake Bay, including reducing the amount of nitrogen and phosphorus flowing from the dam, ensuring fish and eel passage, improving the dam’s flow regime to protect downstream habitats, controlling trash and debris, providing for monitoring and other measures. The need for these protections has not lessened. If anything, it is greater because of the increasing pollution caused by severe rainfalls spurred by climate change.
The Chesapeake Bay faces a number of costly environmental challenges, such as habitat destruction, sea level rise, species population decline, and air and water pollution. The bay was given a “D+” grade in the 2022 State of the Bay report. With the re-licensing of the dam, we can improve the health of our bay, and transfer the economic burden away from the communities and businesses that bear the brunt of the ecological damage caused by the operation of the dam.
We have a great opportunity before us. Now that the court has sent the licensing and certification matters back to the regulatory agencies, the 2018 certification, which was based on the best available science, must be included in any new long-term license issued by FERC to Constellation.
Because the dam has used up its trapping capacity, an additional 6 million pounds of nitrogen and 260,000 pounds of phosphorus now reaches the bay annually. To address the adverse impacts of this on water quality, while the licensing process was taking its course, the “Conowingo Watershed Implementation Plan” (CWIP) was developed to address this new pollution that had not been expected when the comprehensive bay watershed restoration plan was adopted in 2010. However, it needs funding. The measures that will be required by the water quality certification can and should be harmonized with those prescribed in the CWIP. Funding that is expected to be contributed by Constellation under a new license can support the CWIP water quality protection measures at the same time.
The new Moore administration thus has the tools to transform the re-licensing process into a true “watershed event.” It should coordinate with FERC and engage in a transparent and inclusive process as it moves forward, ensuring that, unlike in the previous licensing proceeding, members of the public — including environmental groups, watermen and other stakeholders — are kept informed and provided with opportunities to discuss whatever issues arise in the re-licensing process. The new license should also provide opportunities for MDE, Constellation and members of the public to ensure that the measures that are being implemented under the 50-year license, in coordination with the CWIP, continue to reflect the best current scientific information and include the most cost-effective measures to protect the health of the bay. I suggest 5-year intervals, since that is that is the term of a Clean Water Act permit.
Maryland has the chance to protect our waterways and all who rely on them for their health, livelihoods and recreation for the next 50 years. We must make sure that Constellation, a multibillion-dollar corporation, and not Maryland taxpayers, pays the costs to ensure that its operation of the dam prevents any adverse environmental and public health impacts. We need a cleaner Susquehanna and a cleaner bay. We must not squander this opportunity.
Ridge Hall (ridgehall(at)gmail.com) is the vice chair of the Chesapeake Legal Alliance, a former associate general counsel for water at the U.S. Environmental Protection Agency, and a retired partner with the law firm of Crowell & Moring.