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Enviros sue FERC over re-licensing of Exelon’s Conowingo dam

3 minute read

A bald eagle lands on a concrete barrier at the Conowingo Dam on the Susquehanna River in Maryland November 26, 2013. REUTERS/Gary Cameron

  • Groups say FERC exceeded statutory authority under Clean Water Act
  • Lawsuit follows failed challenge before FERC

(Reuters) - Environmental groups have sued the Federal Energy Regulatory Commission (FERC) in federal appeals court, alleging that it unlawfully issued a new license to a subsidiary of electricity generator Exelon Corp for its Conowingo Dam in northern Maryland by failing to include conditions the state once imposed to mitigate environmental risks to water bodies downstream.

With the lawsuit filed on Thursday in U.S. Court of Appeals for the District of Columbia, Waterkeepers Chesapeake and others claim that FERC exceeded its authority under the Clean Water Act (CWA) by issuing in March a new license to Exelon Generation Company for the dam without including water-quality conditions Maryland specified when reviewing the company's application, but later dropped.

FERC did not immediately respond to a request for comment.

Exelon Generation spokesperson Deena O'Brien said the company "supports FERC's thorough and unanimous decision to issue the new 50-year license for the Conowingo Dam."

"We'd prefer to focus on Chesapeake Bay restoration efforts - not on protracted litigation," the spokesperson added.

Waterkeepers Chesapeake's executive director Betsy Nicholas said in a statement that the license "includes grossly insufficient provisions that require no specific nitrogen and phosphorus reductions."

An environmental review FERC published in 2015 found that the downstream portion of the Susquehanna River on which the 572-megawatt dam sits, and the Chesapeake Bay further downstream, are "affected" by nitrogen and phosphorous from agricultural runoff that thrive on sediment in the dam's reservoirs.

The crop nutrients can spur excessive algae growth, a phenomenon that can choke off marine life.

The green groups' lawsuit revolves around a water-quality certification of the dam the Maryland Department of the Environment (MDE) issued in 2018. When FERC licenses dams, it must include in a license order, pursuant to the CWA, conditions a state has specified to be met in its water-quality certification.

Maryland's certification required Exelon to develop a plan to reduce sediment that gets trapped in the reservoir abutting the dam and to cut nutrient pollution, or pay an annual fee of about $172 million for the duration of the license.

The conditions prompted lawsuits by Exelon in state and federal courts, an administrative appeal before the MDE and a petition before FERC.

The parties settled in 2019. Under that settlement, Maryland waived its rights to issue a CWA water-quality certification. In exchange, Exelon committed to investing more than $200 million in environmental protection and mitigation measures over the 50-year term of its new license.

Thursday's plaintiffs, who intervened in the petition before FERC, petitioned the commission to vacate the licensing order in April but were met with a denial.

In their complaint before the D.C. Circuit, they ask the court to review that denial.

James Pew of Earthjustice, a lawyer representing Waterkeepers Chesapeake, said the groups argue that FERC lacks the statutory authority to issue a license for the dam without including the water-quality certification that MDE issued in 2018 as a condition of that license.

The plaintiffs also make claims under the National Environmental Policy Act and the Federal Power Act.

MDE did not immediately respond to a request for comment.

The case is Waterkeepers Chesapeake, et al v. FERC, U.S. Court of Appeals for the District of Columbia, No. 21-1139.

For Waterkeepers Chesapeake, et al: James Pew of Earthjustice and Paul Smail of Chesapeake Bay Foundation

Sebastien Malo reporters on environmental, climate and energy litigation. Reach him at sebastien.malo@thomsonreuters.com

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