Several groups, legislators, and businesses support lawsuit challenging relicensing
(Takoma Park, MD) – Last Friday, three amicus briefs were filed by nonprofit watershed organizations, a bipartisan group of Maryland legislators, and several fishing businesses in support of the lawsuit challenging the Federal Energy Regulatory Commission’s (FERC) relicensing of Conowingo Dam for the next 50 years to Constellation Energy Corporation, formerly Exelon Corporation*. The first brief, filed by the National Wildlife Federation, was joined by 18 local nonprofit watershed organizations that support the implementation of the Chesapeake Bay’s cleanup plan (Bay TMDL). A second brief, filed by Public Employees for Environmental Responsibility on behalf of a bipartisan group of four Maryland legislators, outlines how the Maryland Department of the Environment (MDE) has failed to fulfill their responsibility of protecting the public. The third brief, filed on behalf of recreational and commercial fishermen, stresses the extreme harm to fisheries and aquatic species, the negative impact on recreational opportunities, and the massive economic loss to businesses caused by Conowingo Dam.
The briefs are in support of the lawsuit filed by Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper Association, and ShoreRivers, represented by Earthjustice, and joined by the Chesapeake Bay Foundation, in June of 2021 in the D.C. Circuit Court of Appeals. These groups filed their opening brief in this lawsuit on Jan. 28, 2022.
“The amicus briefs filed in support of our challenge to the FERC license show there is widespread and strong condemnation of Maryland’s backroom settlement with Exelon, now known as Constellation Energy Corporation, and FERC’s rubber stamping of a license that illegally ignored the water quality certification issued in 2018,” said Jim Pew, Senior Attorney at Earthjustice. “It’s incomprehensible how FERC believes in their words that ‘the dam’s compliance with water quality standards was irrelevant to its licensing decision.’”
The significance of this lawsuit is underscored by EPA Region 3’s recent review of the Conowingo Watershed Implementation Plan (CWIP), which states that the EPA has “no confidence” in the implementation of the dam’s pollution reduction plan due to the absence of a funding source. There is currently no funding for the CWIP.
“What we have been saying for years has now been made clear by the EPA – Maryland and other Bay State taxpayers are going to end up paying billions of dollars to clean up Conowingo Dam’s mess because Maryland and FERC both failed to hold Exelon accountable,’ said Betsy Nicholas, Executive Director of Waterkeepers Chesapeake. “This failure will be Governor Hogan’s legacy.”
The letter from EPA states that unless a new funding source can be identified in the next 60 days, EPA will redistribute the new required pollution reductions (6 million pounds of nitrogen and 0.26 million pounds of phosphorus) from Conowingo among the seven Bay jurisdictions in the watershed.
“The focus of the Conowingo watershed implementation plan is the reduction of excess nutrient and sediment pollution flowing downstream because the dam’s reservoir is full,” said Ted Evgeniadis, Lower Susquehanna Riverkeeper. “This pollution now flows directly into the Bay. The dam’s owner should pay its fair share to clean it up as originally required by the State of Maryland, including the tons of sediment behind the dam.”
The actual cost of meaningfully reducing the 200 million tons of nutrients and sediment behind the dam was estimated to be between $53 – $300 million per year in the CWIP. During the creation of the CWIP, the Chesapeake Bay Program anticipated that a substantial portion of the funding would come from Exelon (Constellation Energy) through the federal relicensing process. Unfortunately, Maryland and Exelon (Constellation Energy) entered into a private settlement agreement that let this multi-billion dollar corporation out of their obligations for just pennies on the dollar, only requiring them to pay $1.2 million per year.
In Maryland’s 2023 fiscal budget, $31 million is being proposed for the Conowingo Dam pollution mitigation, which is less than 18% of what is really needed every year. The 2018 water quality certification that MDE and FERC illegally ignored required $172 million per year just to reduce nitrogen and phosphorus pollution.
* On Wednesday, Feb. 1, 2022, Constellation Energy became a stand-alone public energy company after separating from Exelon Corp., the owner of Baltimore Gas and Electric Co., and is now the owner of Conowingo Dam. Constellation Energy will rank high among the Fortune 500 companies.
= = = = = = = = = = = = = =
Background on Amicus Briefs Filed February 4, 2022
In the National Wildlife Federation brief, the signatories argue the billions of dollars invested in the restoration of the Bay could be negated by one severe storm scouring the sediment from behind the dam, delivering it to the Lower Susquehanna, the Bay, and the upper tributaries. This would have a devastating impact on the aquatic species and the businesses and communities that depend on them. These organizations outlined grave concerns about Maryland and FERC’s failure to include water quality conditions and sufficient funds in Constellation Energy’s license for the next 50 years. The agreement forces additional costs onto the Bay states, including an increase in each state’s contribution to implementing the Conowingo Dam WIP. Meanwhile, Constellation Energy, a Fortune 500 company that profits from its use of the hydroelectric dam, is not being held responsible for their fair share of the Conowingo Dam cleanup plan. Additionally, these groups condemn the illegal dismissal of the water quality certification. That dismissal could set a national precedent with negative implications for all future FERC licenses for dams, pipelines, and other energy infrastructure, allowing a state agency to just change its mind and ignore all public input that occurred over years.
The brief filed on behalf of Maryland Senator Stephen Hershey and Maryland Delegates Jay Jacobs, Dana Jones, and Vaughn Stewart, outlines how the Maryland Department of the Environment (MDE) has failed to fulfill their responsibility of protecting the public. The legislators argue that the FERC license leaves Maryland’s citizens to suffer the environmental consequences and Maryland’s state coffers to pick up the multi-billion-dollar tab for the damage from the Conowingo Dam’s pollution. Instead, these responsibilities belong with Exelon, now Constellation Energy, where the state’s water quality certification originally placed them. The legislators also provide examples of how pollution resulting from dam operations harms their communities’ economies, including seafood, tourism, and recreation-related businesses. Furthermore, they outline how their communities are forced to grapple with frequent onslaughts of algae, sediment and large debris from the dam overrunning their shorelines and neighborhoods.
The third brief, filed on behalf of the Maryland Charter Boat Association, outlines current and future harms to fishermen. They are unable to navigate the upper and middle Bay due to sediment, debris and trash, while also experiencing economic harms from both a decrease in harvests due to loss of habitat and shellfish beds, and increased expenses due to dredging in marinas and rising bait prices. They detail how species such as shad, American eel, and freshwater mussels that provide economic and ecological benefits to the region have been severely impacted by the construction and operation of the dam. The situation has been exacerbated the last two years by the additional economic stresses caused by the COVID-19 pandemic. In addition, climate-driven extreme storms are becoming more frequent and will increase the damage caused by the dam’s operation.
###
Waterkeepers Chesapeake fights for clean water and a healthy environment by supporting Waterkeepers throughout the Chesapeake and coastal regions as they protect their communities, rivers, and streams from pollution. www.waterkeeperschesapeake.org
Lower Susquehanna Riverkeeper Association is dedicated to improving the ecological health of the Lower Susquehanna River Watershed and the Chesapeake Bay. Current and future citizens of the Lower Susquehanna River Watershed deserve high water quality, wise and sustainable use of all aquatic resources, and preservation of aesthetic value of our waterways. Improvement will come about through education, research, advocacy, and insistence upon compliance with the law. www.lowersusquehannariverkeeper.org
ShoreRivers protects and restores Eastern Shore waterways through science-based advocacy, restoration, and education. ShoreRivers is the home of four Riverkeepers for the Sassafras, Chester, Miles-Wye and Choptank Rivers. www.shorerivers.org
EN 
ES