Opinion: Bipartisan Emergency Bill Would Halt Bad Deal on Conowingo

Op Ed posted in Maryland Matters, March 12, 2020

The State of Maryland has a powerful and binding tool to help improve water quality and the health of the Chesapeake Bay for the next 50 years sitting right in front of it, but inexplicably, the state has decided not to use it.

If you are baffled by this shortsighted decision from our “champion of the Bay,” Gov. Larry Hogan, the same governor who earlier this year asked Attorney General Brian Frosh to sue the U.S. EPA and the State of Pennsylvania for “falling short of their shared obligation” to protect the Bay, you are not alone.

Sixty Republican and Democratic lawmakers in the Maryland General Assembly — including many Hogan allies — are so disturbed by his administration’s proposed decision to waive a Water Quality Certification for the Conowingo Dam federal license that they have co-sponsored emergency legislation that would force Maryland’s withdrawal from its flawed settlement with the Exelon Corp. that is currently under review by the Federal Energy Regulatory Commission (FERC). These lawmakers know what scientists, watermen, advocates, and Eastern Shore residents have known for decades: debris, pollution, and sediment from the Conowingo Dam are harming the health of the Bay, and we need to hold Exelon responsible for their share of the clean-up.

Ten miles upstream from where the Lower Susquehanna River flows into the Chesapeake Bay sits the Conowingo Dam. Since the Dam was built in the 1920s, it has changed seasonal river flow; blocked the migration of shad, herring, eel, and other fish; destroyed fragile habitat; and devastated the shellfish communities that naturally filtered the Susquehanna’s water.

Conowingo also traps polluted sediment from the Susquehanna River in its reservoir — nearly 200 million tons of it. During flooding caused by large storms, sediment trapped behind the dam is scooped up along with large debris fields flowing down the Susquehanna River, ending up in the upper Bay.

The impacted waterways include the drinking water sources for the City of Baltimore. The nitrogen, phosphorus, and sediments from the dam also kill aquatic species that are essential to Maryland’s seafood economy, such as crabs, fish, and oysters.

Since even before the federal license allowing Exelon to profit from the electricity generated through the dam expired in 2014, Exelon has fought tooth and nail against any additional requirements that would better protect affected waterways and aquatic life for the next 50 years. When Maryland issued a final Water Quality Certification in April of 2018, Exelon filed suit in administrative, state and federal court.

One of the most troubling aspects is that the proposed agreement includes Maryland waiving all legal and regulatory rights under state and federal law, including the Clean Water Act, the Chesapeake Bay TMDL, or clean-up plan, and Maryland water quality standards for the entire 50-year period of the new license – until 2070. What’s more, this proposed settlement would throw out all of the terms of the Water Quality Certification issued in 2018, including up to $172 million in water quality improvements every year for the next 50 years.

In other words, the Hogan administration had the opportunity to hold a multi-billion-dollar corporation — the most profitable utility company in the country — responsible for its share of the pollution in the Susquehanna River. Rather than doing that, he proposed a backroom deal with Exelon that holds the company responsible for less than 1% of its pollution and waives all Clean Water Act requirements for the next 50 years, leaving the public responsible for cleaning up Exelon’s mess.

A bipartisan group of Maryland legislators led by Sen. Stephen Hershey Jr. (R) and Del. Jay Jacobs (R) from District 36 have introduced emergency legislation that would block Exelon from receiving a new license without specific, measurable conditions that ensure its operations do no more harm to the Chesapeake Bay. House Bill 1465 and Senate Bill 955 would prevent the state from waiving its Water Quality Certification authority — essentially forcing Gov. Hogan’s hand to withdraw from the agreement with Exelon.  

The new 50-year license is our only insurance policy that the Conowingo Dam and the Susquehanna will be healthy and productive for a long time to come, for the benefit of Maryland, Pennsylvania, our children, and future generations. The effects of climate change will likely lead to more frequent and severe flooding, causing even greater damage to the Bay from the dam over the next half  century.

We must pass this critical legislation and do what Gov. Hogan has failed to do — protect aquatic life in the Susquehanna and the Chesapeake Bay by bringing Exelon officials back to the table and demand they pay fair share to clean up our waters. This is a twice in a century opportunity; we must get it right.

— BETSY NICHOLAS

The writer is the executive director of WATERKEEPERS® Chesapeake, a regional coalition of 17 Waterkeeper organizations protecting the rivers and streams of the Chesapeake and Coastal Bays Watersheds.