Conowingo Dam license reissued after long fight over ecological impacts

(Mar 19, 2021 ) Federal regulators have approved the relicensing of the Conowingo Dam, blessing a controversial deal that Maryland reached with the dam's owner over its responsibility to help clean up pollution of the Susquehanna River and Chesapeake Bay.

The Federal Energy Regulatory Commission issued a brief press release March 18 announcing its decision to grant Exelon Corp. a new 50-year license to operate the dam, ending nearly eight years of study and debate.

"The license includes conditions to enhance fish migration, protect bald eagles and other wildlife, upgrade 13 public recreation sites, address sediment issues and protect archaeological and historic sites," the release said.

The order, released March 19, incorporates settlements negotiated between Exelon, the Maryland Department of the Environment and U.S. Department of the Interior. The deals address fish and eel passage upriver, as well as sediment and nutrient pollution flowing downriver past the dam.

MDE Secretary Ben Grumbles called the announcement by the Federal Energy Regulatory Commission "encouraging news for the Susquehanna River and the Chesapeake Bay after almost a decade of gridlock."

He said state officials are "committed to working with citizens and stakeholders immediately on environmental and climate resiliency projects included in the FERC-approved settlement" and to taking additional actions as well.

Bryan Hanson, executive vice president and chief generation officer of the Exelon subsidiary that runs the hydro facility, called the license renewal "a big win for Maryland's environment and economy." He said the company plans now to proceed with plans to invest up to $700 million on promised enhancements to water quality below the dam, fish and eel passage, aquatic habitats and debris removal.

Environmentalists, however, lambasted the commission's decision, accusing it of accepting a deal that requires far too little of Exelon to compensate for the environmental problems caused by the dam.

"Exelon has been let off the hook, and [the state] let it happen," said Ted Evgeniadis, the Lower Susquehanna Riverkeeper. "The Lower Susquehanna and the Chesapeake Bay will suffer because of today's decision."

The 94-foot-high dam straddles the lower Susquehanna in Maryland, about 10 miles upstream from the Bay. Its river-driven turbines generate enough electricity to power 165,000 homes, according to Exelon.

But since its completion in 1928, it has effectively blocked many migratory fish from getting upriver to spawn. It's likewise hampered the upriver migration of American eels, which in turn has depleted freshwater mussels that once helped filter nutrients and sediments out of the river.

Exelon agreed nearly five years ago to upgrade its main fish lift at Conowingo to help more spawning American shad and river herring move upriver. But actions Exelon agreed to take, including trucking fish upriver past three other dams, were put on hold amid disputes over the company's responsibility for cleaning up nutrient and sediment pollution passing through the dam.

The dam also has complicated Bay restoration efforts because the 14-mile reservoir it creates has reached its capacity to trap sediment from upstream sources. As a result, more nutrients and sediment from farm runoff, municipal wastewater and stormwater are flowing into the Chesapeake, where they contribute to algae blooms and other water quality woes.

And whenever a storm hits or heavy rains fall, as they did in 2018, the engorged river flushes sediment and nutrients that have built up behind the dam downriver. Those surges also carry trash and debris downriver to the Bay, littering shores and marinas.

Settlement questioned

The settlement Exelon and the MDE announced in October 2019 requires the company to spend more than $200 million total over the next 50 years on projects intended to rebuild eel, mussel and migratory fish populations in the river and to reduce nutrient and sediment pollution flowing into the Upper Bay.

But environmentalists, a coalition of rural Maryland local officials and others criticized the deal, saying it didn't come close to dealing with the water quality issues caused by the dam. They appealed to the commission more than a year ago to reject the settlement and force the parties back to the negotiating table.

The five-member federal commission, in a 144-page order, accepted the agreement between Maryland and Exelon and did not impose any additional conditions.

Environmentalists contend that the settlement doesn't require nearly enough from Exelon to compensate for the water quality problems and storm risks the dam poses, and that it lacks sufficient teeth to ensure that the company even does what it has promised to. They warn that Maryland taxpayers could be forced to pay for cleanup of pollution attributable to the dam.

"The Susquehanna River is a public resource and should not be sold off to a private company for exclusive use without ensuring that the impacts to the public have been properly mitigated, said Betsy Nicholas, executive director of Waterkeepers Chesapeake. She said her group would be considering "all legal options" to protect the river and Bay in response to the commission's action.

Critics pointed out that only about $52 million of the $200 million settlement would be spent on specific water quality improvement projects. And instead of being required to reduce pollution related to the dam, Exelon instead is to make payments into Maryland's Clean Water Fund, which underwrites a variety of environmental projects statewide.

Alison Prost, vice president for environmental protection and restoration at the Chesapeake Bay Foundation, called the settlement a "missed opportunity." Her group and others had wanted to see the proceeds spent on measures to control pollution upriver in Pennsylvania, where most of the nutrients and sediment flowing past the dam originate.

The MDE's Grumbles noted that a plan has been drafted for dealing with the nutrient pollution coming from upriver. It calls for installing runoff control measures, mostly on farmland in Pennsylvania. The effort would be privately financed upfront, but state and federal governments have yet to agree to repay that borrowing. Initial cost estimates are at least $53 million a year, but others say it could run far higher.

Deal moves ahead

The Clean Chesapeake Coalition, a group of local officials in five rural counties on Maryland's Eastern Shore, has long highlighted their concerns about the dam. They welcomed Gov. Larry Hogan's pledge to do something about it but have since expressed disappointment in the outcome.

"That settlement agreement, it may move the needle but only very slightly," said Charles "Chip" MacLeod, the coalition's lawyer.

Critics questioned the MDE's agreement to waive its regulatory leverage over the dam, which might have forced Exelon to be more forthcoming. Under the federal Clean Water Act, no license could be issued unless the state certified that it would not harm water quality. In early 2018, the MDE issued that certification, but with the condition that Exelon must either clean up the pollution itself or pay the state $172 million a year to have it done.

Exelon sued, contending that it was being forced to shoulder an "unfair burden" for pollution from upriver that the dam did not actually generate. The company also petitioned FERC to declare that Maryland had forfeited its right to put conditions on the Conowingo license because it had taken longer than the specified one-year timeframe to act.

With FERC ruling in energy companies' favor in some similar disputes, the parties announced their settlement not long afterward. MDE lawyers defended that decision in a filing with FERC last year, saying it avoided "many years of protracted litigation, during which time the environmental impacts of the dam would have languished without any solutions."

Opponents of the deal nevertheless pressed Maryland lawmakers to block it. Legislation that would have done so failed to pass in last year's pandemic-abbreviated General Assembly session. The bills were reintroduced this year. Sen. Stephen Hershey, a Kent County Republican and sponsor, had written FERC just a week ago asking it to postpone its decision while the legislation was pending.

The Nature Conservancy also had petitioned FERC to wait, arguing that the settlement had failed to address how the dam's ecological impacts would be mitigated, particularly with regard to climate change impacting conditions over the 50-year term of the license.

Conservancy experts called for the settlement to be tweaked to require adjustments in river flows through the dam that they said would improve fish habitat and water quality downstream. Those could be made without undermining the facility's profitability to Exelon, they argued.

"We were asking FERC to hit a pause button," said Mark Bryer, Chesapeake Bay program director for the Washington-based group. "It looks like today they chose not to do it."

Tim Wheeler is the Bay Journal's associate editor and senior writer, based in Maryland. You can reach him at 410-409-3469 or twheeler@bayjournal.com. This article was originally published on Bay Journal.com and was distributed by the Bay Journal News Service.