Waterkeeper Groups File Legal Challenge of Federal Order to Relicense Conowingo Dam

(Takoma Park, MD) – Today, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, and Sassafras Riverkeeper, represented by Earthjustice and joined by the Chesapeake Bay Foundation, filed a legal challenge in D.C. Circuit Court for a review of the Federal Energy Regulatory Commission’s (FERC) relicensing of the Conowingo Dam. The filing seeks to reverse FERC’s decision to grant a license to Exelon Generation, LLC, which will allow the power company to operate the Conowingo Dam for another 50 years without ever taking the cleanup steps necessary to restore the health of the Lower Susquehanna River and the Chesapeake Bay.

“The Conowingo Dam is the single most important issue as well as the largest threat to the success of the Chesapeake Bay cleanup plan,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake. “FERC issued Exelon a new 50-year license to operate the Conowingo Dam, which includes grossly insufficient provisions that require no specific nitrogen and phosphorus reductions, no significant restoration of mussels, shad, and other aquatic species, and absolutely no plan to address the 200 million tons of sediment stored behind the dam. We are going to court to overturn this license and demand protection for our water quality and communities in the Chesapeake Bay region.”

FERC’s action is unlawful because it does not include the cleanup requirements that the Maryland Department of the Environment (MDE) determined are necessary to assure the Dam’s compliance with water quality standards and, in particular, to restore the health of the Lower Susquehanna River and the Chesapeake Bay. It is also unlawful because FERC did not give adequate consideration to the harm the Dam currently does to the River, the Bay, and the fish and wildlife that live in them, as required by both the Federal Power Act and the National Environmental Policy Act.

“More than three years ago, MDE identified the requirements that are necessary to run the Dam in compliance with water quality standards and clean up the Chesapeake Bay and the Susquehanna River,” said Jim Pew, senior attorney at Earthjustice. “FERC issued a 50-year license that does not contain any of them. FERC doesn’t pretend the Dam will meet water quality standards now; it dismisses compliance with water quality standards as irrelevant. Federal law is quite clear that FERC lacks authority to issue a license on these terms.”

This challenge follows a petition to FERC by all the groups, seeking a rehearing on the grounds that FERC’s approval of the license and settlement ran afoul of the Clean Water Act, Federal Power Act, and National Environmental Policy Act requirements.

“The rehearing petition gave FERC ample opportunity to reverse course, come into compliance with the Clean Water Act, and avoid litigation,” added Nicholas. “FERC has chosen to deny it.”

“Exelon has dodged major responsibility in the Bay cleanup effort while continuously mischaracterizing the dam’s effects on water quality,” said Ted Evgeniadis, Lower Susquehanna Riverkeeper. “Maryland forfeited their own prescribed conditions to protect water quality through a closed backdoor deal with Exelon. These actions will prove to be the biggest mistake the state has ever made in managing its own estuary. FERC’s rubber stamping of this horrible deal and waiver of an already existing water quality certification will be rightfully challenged in federal court by Waterkeepers.”

FERC’s decision leaves Bay state taxpayers responsible for paying for the dam cleanup instead of requiring Exelon to pay its fair share. The Water Quality Certification that MDE issued in 2018 required $172 million per year just to reduce nitrogen and phosphorus pollution. 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 recent Conowingo Dam Watershed Implementation Plan. In this settlement and license issuance, Exelon is only responsible for paying less than 1% of what was required under the 401 certification.

“The Conowingo Dam acts as a catchment for everything that flows downriver — trash, sediment, and toxic substances — from New York and Pennsylvania until the floodgates open and it all flows free,” said Zack Kelleher, Sassafras Riverkeeper with ShoreRivers. “Exelon profits from the dam — a public natural resource — and they must contribute to the cleanup costs. MDE and FERC have put the interests of this for-profit company before the welfare of their citizens and the health of a public resource.”

FERC’s decision will have profound negative impacts in Maryland and across the country.

“Exelon has a responsibility to ensure its operation of Conowingo Dam does not harm the water quality of downstream communities,” said Paul Smail, Director of Litigation for the Chesapeake Bay Foundation. “The settlement and license do not require the company to meet its responsibility. We commissioned a study in 2017 that determined the company could provide up to $44 million per year to reduce the dam’s environmental impact and still generate a healthy profit. Instead of being a good corporate steward of a shared natural resource, Exelon has been allowed through the settlement and license to put profit above the protection of water quality, while leaving citizens of the several Bay watershed states to deal with the mess.”

Media Contact:
Betsy Nicholas, betsy@waterkeeperschesapeake.org, Waterkeepers Chesapeake, (202) 423-0504
Ted Evgeniadis, riverkeeper@lowersusquehannariverkeeper.org, Lower Susquehanna Riverkeeper, (609) 571-5278
A.J. Metcalf, Chesapeake Bay Foundation, (443) 482-2023, ametcalf@cbf.org

Download Press Release_20210617

Details & registration for June 29th Conowingo Dam town hall found here.

More info on Conowingo Dam can be found here.

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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

Chesapeake Bay Foundation is the largest independent conservation organization dedicated solely to saving the Bay. Serving as a watchdog, CBF fights for effective, science-based solutions to the pollution degrading the Chesapeake Bay and its rivers and streams.