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DC Circuit throws out 50-year license for Maryland dam

The Conowingo Dam initially worked as a pollution preventer, trapping sediment and debris into a reservoir behind the dam. But over time, the polluted water has found its way into the Chesapeake Bay.

WASHINGTON (CN) — Clean water activists have a reason for optimism after the D.C. Circuit on Tuesday vacated a half-century license between the federal government and Maryland's Constellation Energy for the operation of the controversial Conowingo Dam.

“The court’s decision today is a cause for celebration among all who fight for and appreciate clean water,” Alison Prost, Chesapeake Bay Foundation's vice president of environmental protection and restoration, said in a statement. “Maryland’s sweetheart deal with Constellation let the utility off the hook for what would have been decades of pollution related to the dam’s operations.”

Under the Clean Water Act, the Federal Energy Regulatory Commission can issue a 50-year license for the operation of a hydroelectric facility if the state where the dam operates certifies it will comply with water quality standards or waives its authority to do so.

In 2018, Maryland granted a certification for the Conowingo Dam, about an hour outside of Baltimore, that required Constellation to develop a plan to reduce the amount of nitrogen and phosphorus in the dam’s discharge, improve fish and eel passage, make changes to the dam’s flow regime, control trash and debris, provide for monitoring, and undertake other measures for aquatic resource and habitat protection. 

Constellation argued the requirements were too strict and asked Maryland to reconsider. The state and utility reached a settlement with less stringent water quality regulations for the dam to follow. 

FERC then issued a 50-year license for the dam on the basis that Maryland waived its authority under the Clean Water Act by entering into the settlement with Constellation. 

Chesapeake Bay Foundation, or CBF, and Waterkeepers Chesapeake challenged the license, arguing Maryland had no authority to waive its 2018 certification retroactively and that FERC exceeded its authority under the Clean Water Act by issuing a license that failed to incorporate the conditions of that certification.

The D.C. Circuit agreed with the environmental groups on Tuesday, finding the state took action when it issued the certification in 2018 and therefore gave up its ability to waive the certification. A three-judge panel led by Senior U.S. Circuit Judge David S. Tatel, a Bill Clinton appointee, vacated the license granted by FERC.

The ruling is a big win for those seeking stricter regulations imposed on the dam. 

“We urge the state to use this opportunity to force Constellation to invest in upstream environmental projects that will offset the harm caused by the dam’s presence and protect the Chesapeake Bay for generations to come,” Prost said. 

Though the case has been formally remanded back to FERC, the appeals court said the agency does not have authority to issue the same license again.

“Given that FERC had no statutory authority to issue the license under review, there is no possibility that FERC may find an adequate explanation for its actions on remand,” Tatel wrote.

Tatel was joined on the unanimous panel by Chief U.S. Circuit Judge Sri Srinivasan and U.S. Circuit Judge Patricia A. Millett, both appointees of Barack Obama.

The Conowingo Dam is located on the Susquehanna River, the Chesapeake Bay’s primary tributary, in Darlington, Maryland, and sits less than 10 miles from the river mouth of the Chesapeake Bay. Commissioned in 1928, the dam provides energy and drinking water to the city of Baltimore. 

The dam initially worked as a pollution preventer, trapping sediments and debris into a reservoir behind the dam. But over time as the pool has filled, the polluted water has found its way into the Chesapeake Bay through storms that cause erosion.

On average, 20% of all sediments that enter the bay through storms come from the dam’s reservoir, according to Maryland’s 2015 Lower Susquehanna River Watershed Assessment. The deposits contribute to algae blooms in the bay, causing dead zones devoid of oxygen where marine life can’t survive. 

“Maryland leaders now have the opportunity to directly address the negative downstream impacts of the dam through a new license complete with a state water quality certification,” Prost said. 

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