By Aaron Zoellick, Waterkeepers Chesapeake Legal Intern
As February drew to a close, Exelon initiated proceedings in an attempt to use a recent federal appeals court decision as a sword to hack its way through regulatory compliance and secure a 50-year license to operate the Conowingo Dam (Conowingo), all while continuing to side-step any responsibility for ongoing clean-up efforts. Exelon petitioned the Federal Energy Regulatory Commission (FERC) for a Declaratory Order arguing that the Maryland Department of the Environment (MDE) effectively waived its authority to issue a Clean Water Act (CWA) Section 401 Water Quality Certification (WQC) for the Conowingo in light of the Hoopa Valley decision.
Exelon’s current license for the Conowingo expired in 2014. They have been operating the Conowingo on year-to-year renewals while seeking a new 50-year license from FERC. Before the license can be granted, the state of Maryland is given the opportunity under Section 401 of the CWA to certify that the project will meet state water quality standards. Shortly after submitting the WQC request, Exelon agreed to fund a three-year study to understand the impacts of sediment transport and withdrew their request. In 2017, the Environmental Protection Agency (EPA) released a 2017 Midpoint Assessment that concluded that it was necessary to reduce nutrient loads in the Susquehanna River by an additional six million pounds of nitrogen and 260,000 pounds of phosphorous per year. Later that same year, after completing their own study, Exelon re-submitted their request to MDE for a WQC.
MDE took into account the conclusions of EPA’s and Exelon’s studies and issued a WQC with special conditions attached in 2018. Under the certification, Exelon would be required to reduce nitrogen and phosphorous pollution in amounts equal to what had previously been trapped by the dam (six million pounds of nitrogen and 260,000 pounds of phosphorous a year). While the certification lacks any concrete measures to guarantee these reductions, it directs Exelon to develop a nutrient management plan to meets its obligation. The certification, unfortunately, does not include specific requirements to reduce sediment.
Exelon has gone on record saying that having to address the environmental impacts places an “unfair burden” on them. In response, they filed a case with the U.S. District Court for the District of Columbia that challenged the authority of the State to require nutrient pollution reductions as part of the 401 Certification. Now, Exelon is attempting to use the Hoopa Valley decision to argue that MDE exceeded the statutory one-year limit on issuing WQCs because MDE did not issue its certification until 2018 when the original request for certification process began in 2014.
Exelon’s petition reflects a dangerous interpretation of the Hoopa Valley decision, a distortion of the facts surrounding their own 401 certification request, and another blatant attempt to avoid any responsibility for the clean-up of the Conowingo.
Hoopa Valley Tribe v. FERC
In Hoopa Valley Tribe v. FERC, the DC Circuit Court determined that the facts of that particular case implied that the withdrawal-and-resubmission of WQC requests does not trigger a new one-year period of review. The CWA provides that state certification requirements “shall be waived with respect to such Federal application” if the state “fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request.” “[T]he purpose of the waiver provision is to prevent a State from indefinitely delaying a federal licensing proceeding by failing to issue a timely water quality certification from Section 401.”
The DC Circuit Courts opinion hinged on the fact that there was an agreement between the state regulatory agency and the utility company to delay the certification decision. Through the course of the hearing, the court found that the utility did not withdraw its request and submit a wholly new application in its place. Instead, “before each calendar year had passed, [the utility] sent a letter indicating withdrawal of its water quality certification request and resubmission of the very same…in the same one-page letter…for more than a decade.”
No such agreement to delay existed between MDE and Exelon. Exelon did agree to withdraw and resubmit its application after the completion of the sediment study but this plan was “not intended to delay re-licensing by [FERC], but rather to ensure that MDE’s certification relies on the most current information.” Additionally, the DC Circuit made no determination whether submitting a entirely new application would re-start the clock or how different a request must be to constitute a “new request” to restart the one-year clock.
Possibility for Profound and Far-reaching Impact
If FERC or the Courts were to side with Exelon there could be profound impacts in Maryland and across the country. Exelon would be given a 50-year license to operate the Conowingo without having to comply with the nutrient and sediment reductions called for by MDE. Additionally, there would be confusion among the Courts regarding the impact of withdrawing and re-submitting a request for water quality certification and when exactly the clock begins for the one year deadline.
Waterkeepers Chesapeake will continue to put pressure on Exelon, in the public square and in the courtroom, to contribute to the Conowingo Dam clean-up. This week Waterkeepers Chesapeake and the Lower Susquehanna Riverkeeper Association filed a Motion to Intervene with FERC. This will not be an easy or a quick fight. FERC has even recognized that this process could continue on well into the future.