Md. Inaction Can't Spur Dam Relicensing, DC Circ. Told - Law360.com

Md. Inaction Can’t Spur Dam Relicensing, DC Circ. Told, Law360.com, May 26, 2022, by Keith Goldberg

The Federal Energy Regulatory Commission can’t relicense an Exelon Corp. hydroelectric dam based on Maryland’s waiver of its authority to issue a water quality certificate for the project, environmentalists told the D.C. Circuit on Monday. FERC has defended its issuance of a new 50-year license to the 570-megawatt Conowingo Dam, saying it properly incorporated the settlement between Exelon and Maryland environmental regulators into its licensing decision, which included Maryland agreeing to waive its authority to issue a water quality certificate for the dam after previously issuing one.But the environmental groups — Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, ShoreRivers and the Chesapeake Bay Foundation — told the D.C. Circuit in a reply brief Monday that Section 401 of the Clean Water Act, which authorizes states to ensure projects meet their own water quality standards, doesn’t allow such a move.The green groups, which are seeking to undo FERC’s relicensing.

“Both FERC’s and Exelon’s briefs fail to show any concern for the Chesapeake Bay or the people who use it and make a living from it, let alone any plan to restore it,” Waterkeepers Chesapeake executive director Betsy Nicholas told Law360 on Tuesday. “This is particularly disheartening when this year we are seeing the lowest Bay crab populations since 1990 when scientists first started measuring the populations. Additionally, we are facing a funding shortfall in the billions of dollars to restore the harm resulting from Conowingo Dam’s impact on the Susquehanna River and the Chesapeake Bay.”