Ever since the federal license allowing it to operate the Conowingo Dam expired in 2014, Exelon Corp. has fought updated permit requirements that would better protect affected waterways and aquatic life for the next 50 years. 

Conowingo Dam exterior

A measure failed to get out of committee during the 2020 Maryland General Assembly that would have blocked the deal Maryland struck last year with Exelon Corp. over addressing the environmental impacts of the Conowingo Dam.

Initially, Maryland fought back against the utility that owns the hydroelectric dam. As the Chesapeake Bay cleanup plan entered its final phase, the state asked Exelon to contribute its share to reduce the 6 million additional pounds of nitrogen and 260,000 pounds of additional phosphorus and associated sediment estimated to come through the dam annually since its reservoir became filled and lost its trapping capacity. 

But Maryland has now inexplicably conceded on critical clean water requirements, funding and legal assurances in a proposed settlement with Exelon. The state’s local, state and federal representatives; conservation organizations; and affected communities upstream and downstream strenuously objected and voiced their concerns during the public comment period that ended Jan. 19.

This seriously flawed deal falls far short of protecting Maryland’s waterways or providing Pennsylvania with the pollution-reduction help it needs. Probably of greatest concern for clean water legal experts is that, as part of this settlement, Maryland would waive its right under the federal Clean Water Act to require an enforceable water quality certification for the dam, forfeiting its power to ensure compliance with water quality standards. Such a certification is normally issued before the Federal Energy Regulatory Commission would approve a new multi-decade license to operate the dam.

The settlement also provides grossly insufficient funds to deal with the risks that the dam’s operations pose to the Susquehanna River and Chesapeake Bay — primarily from moderate and large storms that will cause the 94-foot-high structure to allow nutrients, debris and millions of tons of sediment trapped behind it to flow into the Chesapeake.

The total settlement would require about $4 million per year from Exelon for environmental remediation, when vetted studies show that amount should be closer to $35 million a year. This includes a mere $500,000 for addressing the trapped sediment. Only $19 million of the $200 million settlement, or a paltry $380,000 annually, would go to forest buffers, agricultural cover crops, stormwater controls and other practices proven to reduce pollution. The water quality certification originally proposed by Maryland, and challenged by Exelon, would have required the company to provide $127 million a year for pollution controls. 

In a “trust me” kind of handshake deal, the settlement includes non-binding statements of intent that the initiatives and actions under the agreement will actually be accomplished; there are no stipulated timelines for completion of the work.

It also denies the public any ability to ensure the settlement terms are fulfilled in a sufficient manner, leaving enforcement entirely up to Maryland. No other parties would have standing to hold the state or Exelon accountable.

Numerous organizations provided comments on the proposed settlement agreement. Bills have been introduced in both the Maryland Senate and House of Delegates that would prevent the state from waiving its authority to issue a water quality certification for this project.

With a 50-year license, the next chance we’ll get to do right by the Susquehanna will be in 2070. How many of us will still be around? What shape will the Susquehanna’s mussels or eels be in then? How healthy will the Susquehanna flats underwater grasses be? What about Maryland’s oysters, crabs and the Chesapeake Bay’s economy? How resilient will we be to the increasing climate change impacts we will be experiencing? 

Exelon must do much more to reduce pollution from the Conowingo Dam. In addition to the other provisions in the proposed settlement, Exelon should provide at least $35 million per year for nutrient and sediment pollution control measures. This funding should be administered and managed by the independent third party recently selected by the state-federal Chesapeake Bay Program to write and implement a pollution control plan for the dam as part of the overall Bay cleanup effort. That third-party should be solely responsible for selecting the type and location of the pollution control practices implemented.

The settlement also should include a detailed schedule for accomplishing the activities and providing associated funding, as well as stipulated penalties for failure to perform. Finally, the agreement should include conservation and advocacy organizations as parties with full standing to enforce terms of the agreement.

The Susquehanna River is a public resource, and Exelon profits substantially from its use. This public resource should not be sold off to a private company for exclusive use without ensuring that the public, our environment and our economy are adequately protected.

The new 50-year license is our only insurance policy that the Conowingo Dam and Susquehanna will be healthy and productive for a long time to come. For the benefit of Maryland and Pennsylvania, for our children and future generations, we’ve got to get it right.

Nick DiPasquale is the former director of the U.S. Environmental Protection Agency’s Chesapeake Bay Program Office.

The views expressed by columnists are not necessarily those of the Bay Journal.

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