Most people in the Chesapeake Bay region don’t think about the Conowingo Dam, a hydroelectric dam located on the Lower Susquehanna River about 10 miles upstream from where it flows into the Bay. The dam is critically important to the health and ecology – and ultimately the cleanup – of the Chesapeake Bay. Behind the Conowingo Dam, the Susquehanna River flows for 450 miles, carrying with it half of the Chesapeake Bay’s freshwater, 41% of its nitrogen, 25% of its phosphorus, and 27% of its sediment load. Pollutants in the Susquehanna come from wastewater treatment plants, agricultural, urban and suburban runoff, and other sources of pollution throughout the Susquehanna River watershed.
Since its construction in 1928, the Conowingo Dam has fundamentally altered the river’s ecology – changing the seasonal river flow, blocking the migration of fish, and trapping nutrients and sediment behind the dam. Today, there are nearly 200 million tons of sediment, nutrients, and other pollutants trapped behind the Conowingo. Scientists estimate that the reservoir behind the Conowingo Dam is almost completely filled. As a result, during major floods caused by large storms, like Hurricane Agnes and Tropical Storm Lee, powerful floodwaters scoop out or “scour” the stored sediment behind the dam and send that, along with large amounts of trash and other debris, downstream to the Chesapeake Bay. In 2018, the dam’s flood gates were opened several times due to extreme rain falls and flooding, causing tons of debris, sediment and pollution to enter the Bay and clog marinas and beaches.
Exelon Corporation owns and operates the dam. Exelon’s current license for the Conowingo Dam expired in 2014, and it is seeking a new 50-year license from the Federal Energy Regulatory Commission (FERC). Before FERC grants a new license, the State of Maryland is required, under section 401 of the federal Clean Water Act, to certify that the project will meet state water quality standards.
On April 27, 2018, the Maryland Department of the Environment (MDE) issued a Water Quality Certification with special conditions for the proposed relicensing of the Conowingo Dam. The certification requires Exelon to reduce nitrogen and phosphorus pollution in amounts equal to what had previously been trapped by the dam (six million pounds of nitrogen and 260,000 pounds of phosphorus a year). However, it does not put concrete measures in place to achieve these reductions. Instead, the certification directs Exelon to develop a nutrient management plan to meet its obligation. The certification does not include specific requirements to reduce sediment.
Waterkeepers Chesapeake and Lower Susquehanna Riverkeeper believe that Maryland’s Water Quality Certification is incomplete because it is missing several key elements. On June 8, 2018, represented by Earthjustice, we filed a motion to reconsider the state’s Water Quality Certification of Conowingo Dam. While there is no defined timeline for the administrative appeal, it could last multiple years. It is critically important that MDE substantively address the threat of sediment scour through adaptive management and enforceable conditions because the Certification serves as a once in fifty-year opportunity to require Exelon to pay its fair share of cleanup around the dam. The next steps could be a decision from MDE or a move to a contested case hearing.
“This is our only opportunity in the next 50 years to get meaningful pollution reductions at Conowingo Dam – we have to hold Exelon accountable for its fair share of the cleanup,” — Betsy Nicholas, Waterkeepers Chesapeake Executive Director.
Exelon filed a case with the U.S. District Court for the District of Columbia that challenges the authority of the State to require nutrient pollution reductions as part of the 401 Certification. On July 20, 2018, we filed a motion to intervene in support of the State of Maryland. While we firmly believe that the State’s 401 water quality certification is deficient, we adamantly support the State’s legal authority to impose nutrient pollution reductions on Exelon as part of the relicensing process. The federal case will likely need to play out in state court before the federal courts will review it. This case is also likely to last multiple years with Maryland predicting that the case will ultimately end up in front of the United States Supreme Court. This issue could set national precedent on the scope of a state’s authority on 401 certifications for all federal actions, not just hydropower licenses. However, we are hopeful that it can be settled after a favorable decision at a lower court level.
“From the start of the dam relicensing process back in 2012, Exelon has demonstrated that they would rather pay lawyers to fight to avoid responsibility, rather than investing in protect the nation’s largest estuary — the Chesapeake Bay. Exelon has profited billions from this public resource and has a guaranteed profit as long as the Susquehanna River flows for the next 50 years.” – Katlyn Clark, Waterkeepers Chesapeake Staff Attorney.
The Environmental Protection Agency (EPA) has established the Chesapeake Bay Total Maximum Daily Load (TMDL), a “pollution diet”, to help restore clean water to the Chesapeake Bay and the watershed’s streams, creeks, and rivers. Watershed Implementation Plans (WIPs) are plans for how states, in partnership with federal and local governments, will achieve the TMDLs. Due to Exelon’s obstinance, Maryland and the surrounding states around the Chesapeake Bay watershed developed separate WIPs for Conowingo. The Phase I WIPs were introduced in 2010 and Phase II WIPs were announced in 2012.
At this point in time, there are no waste load allocations or any concrete actions being required of Exelon to clean-up Conowingo; nor are there any partnership agreements for Pennsylvania to pick up its pace in preventing pollution from entering Chesapeake Bay waters. The Phase III WIP is expected to be finalized by June 2019 and will hopefully address these deficiencies.
The EPA recently released a Request for Application (RFA) for the Conowingo WIP. The RFA outlines an estimated $1.8 to $8.1 million dollars in funding available over six years for grants to non-profit organizations, state and local governments, colleges, universities, and interstate agencies to: (1) facilitate development and implementation of the Conowingo WIP and associated two-year milestones; (2) develop and propose a comprehensive Conowingo WIP financing strategy and associated implementation plan, and; (3) track, verify, and report implementation of Conowingo WIP and two-year milestones.
We have and will continue to follow the development of the WIP, urge accountability to state and federal officials, and work to bring other private partners to the table to prevent further degradation of the Bay.