License issued by FERC is illegal under the Clean Water Act
(Takoma Park, MD) Today, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper, and Sassafras Riverkeeper, represented by Earthjustice and joined by Chesapeake Bay Foundation, filed a petition for a rehearing with the Federal Energy Regulatory Agency (FERC) on its approval of the 50-year relicensing of the Conowingo Dam. This petition was filed because FERC’s action was unlawful under the Clean Water Act (CWA) since Maryland issued a water quality certification in 2018 under section 401 of the CWA and never withdrew it. This certification outlined conditions to address the adverse impacts the dam has on the Lower Susquehanna River and the Chesapeake Bay, which should have been included in FERC’s relicensing of the dam, but were not.
“Maryland issued a timely water quality certification with substantial protection, then inexplicably made an agreement to waive their authority to issue this very certification more than a year and half later,” said Betsy Nicholas, Executive Director of Waterkeepers Chesapeake. “By entering into this secret settlement agreement, the state and FERC ignored public participation procedures – which is also illegal under the Clean Water Act.”
Exelon’s response to the water quality certification was to file four legal challenges that resulted in an extremely flawed settlement agreement between Exelon and the Maryland Department of the Environment (MDE). Even more egregious, all of the weak terms of the settlement agreement relating to water quality are not included in the license, meaning that they cannot be enforced through this 50-year license by FERC or any third parties. Additionally, in the settlement agreement, Exelon is only responsible for paying less than one percent of what was required under the original 401 certification.
The practical effect of FERC’s order is to remove all the requirements MDE found necessary to assure Conowingo Dam’s compliance with water quality standards from the dam’s license. FERC makes no claim that the conditions in its license will ensure that the dam complies. Far from it, FERC insists the dam’s compliance with water quality standards is irrelevant to its licensing decision.
“It’s unfathomable that FERC insists that whether the dam complies with water quality standards is irrelevant to its licensing decision,” said Ted Evgeniadis, Lower Susquehanna Riverkeeper. “And to make matters worse, the settlement has grossly insufficient funds to deal with the risks to the Susquehanna River and Chesapeake Bay. The settlement requires less than 1 percent of what is required, while protecting Exelon from any Clean Water Act or other water quality laws for the next 50 years, and leaving taxpayers shouldering the full burden of paying for the cleanup of the dam.”
The groups’ petition also outlines how FERC’s order does not rest on meaningful consideration of environmental impacts required by the Federal Power Act and the National Environmental Policy Act (NEPA).
FERC received information showing the dam’s impacts will be significantly worse than it had estimated when it prepared an environmental impact statement for the project in 2015. In particular, “scour events” (where storms dislodge major quantities of nutrients and sediment from the reservoir and wash them over the dam) will increase in both frequency and severity as climate change causes more frequent and larger storms to occur. In addition, NEPA and the Federal Power Act do not allow FERC to issue a license that chooses an alternative flow regime for the dam that has the least impact on generation, which it did in this case; it must account for environmental harm.
“The Sassafras River is only 11 miles from the mouth of the Susquehanna, so we are one of the first areas to feel the effects every time the Conowingo flood gates are opened and trash, sediment, and other pollutants are allowed to flow free,” said Zack Kelleher, Sassafras Riverkeeper with ShoreRivers. “Exelon — a billion dollar company — is the only entity that profits from the water flowing through the dam. It is inexcusable that Maryland watermen, boaters, homeowners, and taxpayers have to suffer the consequences of this trash and pollution flowing down the Susquehanna and are then expected to pay for the cleanup.”
FERC also received information showing that dredging is significantly cheaper and more effective than it recognized when it completed the environmental impact statement for the dam in 2015. Failure to consider this new information violates NEPA and the Federal Power Act.
“We will work to hold Exelon accountable for its fair share of the dam cleanup through every venue possible,” added Nicholas. “The future of the Chesapeake Bay, the health of the waters and local communities, and the survival of the dependent fisheries is far too important to allow Maryland to simply shirk its duties and let Exelon push their expenses on to the taxpayers of Bay states to stop pollution.”
Media Contacts:
Betsy Nicholas, (202) 423-0504, betsy@waterkeeperschesapeake.org
Ted Evgeniadis, (609) 571-5278, riverkeeper@lowersusquehannariverkeeper.org
Press statement on petition to FERC for rehearing
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Background
MDE’s 401 CWA certifications for Conowingo Dam in 2018 determined that the dam “has significantly and adversely impacted biota in the Lower River and the northern Bay over the past 90 years of operation” by interrupting the natural flow regimes and fish passage upstream and downstream, and halted sediment transport downstream.
In addition, MDE found that the dam reservoir is now full as “no efforts have been undertaken over the life of the [dam]…. to maintain any trapping function.” Now, during large storm events, sediment is scoured from behind the dam and discharged downstream to the Lower River and the Bay.
To address these adverse impacts, the Certification required Exelon to reduce the amount of nitrogen in the Dam’s yearly discharges by 6,000,000 pounds and the amount of phosphorus by 260,000 pounds. Alternatively, it allows Exelon to make payments in lieu of these pollution reductions, in the amount $17 per pound of nitrogen and $270 per pound of phosphorus. Over the 50-year license, the money value of the combined nutrient reductions (or payments in lieu of such reductions) is approximately $8.6 billion.
In addition, based on these findings, MDE listed the Susquehanna below the Dam as impaired “due to pollution caused by flow alteration” in Maryland’s Final 2018 Integrated Report of Surface Water Quality.
In 2019, MDE’s watershed implementation plan to bring the Chesapeake Bay into compliance with water quality standards depended on Exelon achieving significant reductions in the nutrients that flow over the Dam during scour events. According to MDE, these reductions were needed “to mitigate the water quality impacts of the Dam’s lost trapping capacity” which “threatens the ability of both the state and the region to meet their Chesapeake Bay cleanup goals.”
Exelon’s response was to file four legal challenges to the Certification that resulted in an extremely flawed settlement agreement between Exelon and MDE, most of which is not included in FERC’s relicensing order. Exelon is now only responsible for paying less than one percent of what was required under the 401 certification.
In March 2021, FERC issued an order for the 50-relicensing of Conowingo Dam. All of the weak terms of the settlement agreement relating to water quality are not included in the license, meaning that they cannot be enforced through this 50-year license by FERC or any third parties. Additionally, in the settlement agreement, Exelon is only responsible for paying less than one percent of what was required under the original 401 certification.
FERC received information showing the Dam’s impacts will be significantly worse than it had estimated when it prepared an environmental impact statement for the project in 2015. In particular, “scour events” – where storms scour or dislodge major quantities of nutrients and sediment from the reservoir and wash them over the Dam – will increase in both frequency and severity as climate change causes more frequent and larger storms to occur.
FERC also received information showing that dredging is significantly cheaper and more effective than it recognized when it completed the environmental impact statement (EIS) for the Dam in 2015.
The practical effect of FERC’s order is to remove all the requirements MDE found necessary to assure the Dam’s compliance with water quality standards from the Dam’s license. FERC makes no claim that the conditions in its license will ensure that the Dam complies. Far from it, FERC insists the Dam’s compliance with water quality standards is irrelevant to its licensing decision.
More information at https://waterkeeperschesapeake.org/conowingo-dam/
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