A year ago, on December 20, 2022, the U.S. Court of Appeals for the D.C. Circuit issued an historic opinion vacating the Federal Energy Regulatory Commission’s (FERC) licensing of the Conowingo Dam and remanding it back to FERC. For almost 100 years, the Conowingo Dam has spanned the Susquehanna River, the largest river on the east coast, just ten miles from where it flows into Chesapeake Bay. And over that time, Constellation did not maintain the reservoir behind the dam. In addition to being a barrier for fish migration, it is now full of sediment and pollution which flows into the Bay.
In its decision, the court agreed with Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, and Sassafras Riverkeeper, represented by Earthjustice, and concluded that FERC exceeded its authority when it approved a 50-year license without including Maryland’s 2018 Water Quality Certification as required under the Clean Water Act. This decision set a national precedent, saying that states can’t walk away from a Water Quality Certification when pressured by industry, and FERC can’t include side deals in licenses. Water Quality Certifications include protections the state deems necessary to safeguard the state’s water quality standards and the health of their communities for federally permitted projects like dams and pipelines, which are often deliberately located in or routed through disadvantaged and overburdened communities.
In the judge’s own words: “Maryland did not fail or refuse to act. Just the opposite. The state acted when it issued the 2018 certification,” and furthermore, FERC cannot issue “a license based on a private settlement arrangement entered into by Maryland after the state had issued a certification with conditions but then changed its mind.”
Our work didn’t stop with this legal victory. By remanding the license back to FERC, the court stated that this would allow the 2018 administrative appeal process for the Water Quality Certification to resume. Waterkeepers Chesapeake and Lower Susquehanna Riverkeeper are parties to this appeal on one side, with Constellation, a $30 billion utility, on the other side. So this past year, we’ve been pushing to keep strong protections and conditions in the Water Quality Certification. Early in the year, several op eds were published urging the new Moore administration and the Maryland Department of the Environment (MDE) to stay strong on the Water Quality Certification. During MDE’s public comment period this summer, Waterkeepers Chesapeake and Lower Susquehanna Riverkeeper submitted briefs to strengthen the certification, and Constellation submitted briefs that did the opposite. In addition, this year, Maryland’s entire federal delegation and over 800 people and 40 organizations called on MDE to reject any attempts to weaken the prior certification.
Our work continues into 2024. We look forward to your support as we reach the goal of a Conowingo Dam license that protects water quality, ensures eels and other fish recover, and guarantees future generations have access to a clean river and Bay. More info on our work on getting a fair deal on the Conowingo Dam cleanup here: https://waterkeeperschesapeake.org/conowingo-dam/ #ItsAboutDamTime
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