ANNAPOLIS — After years of playing a regulatory and legal chess game over the Conowingo Dam, Maryland and Exelon have reached an agreement that allows concessions for both parties.
Gov. Larry Hogan’s office announced Tuesday, Oct. 29 that the Maryland Department of the Environment (MDE) and Exelon had reached an agreement, which requires Exelon to invest $200 million in environmental projects and improvements to water quality.
In return, the MDE would waive any right to issue a water quality certification under the Clean Water Act’s Section 401. That would require Exelon, which is filing for federal licenses and permits provide a certification that any discharges from the dam comply with the act — including state-established water quality and standard requirements.
The Conowingo Dam’s operating license expired in 2014, and Exelon has since been operating it on year-to-year renewals while seeking a new 50-year license.
Eager to finally address decades of sediment build-up, the Hogan administration issued the water quality certificate (WQC) in spring 2018, but with a number of costly environmental protection requirements. Among those conditions is the reduction of millions of pounds of nitrogen and phosphorus pollution that flows past the dam annually, or an annual payment to the state of more than $170 million per year.
Exelon has been fighting those restrictions ever since, and its strongest move was filing a petition with federal regulators to toss out Maryland’s WQC and forge on under previous requirements.
The agreement struck between Maryland and Exelon now heads to the Federal Energy Regulatory Commission (FERC) for approval. If FERC signs off, then Maryland’s WQC and Exelon’s petition would be immediately dropped.
The Hogan administration touted the agreement as a landmark for Chesapeake Bay restoration, while also ending the prospect of years of costly litigation and further delays. Hogan himself celebrated the agreement as building onto the $5 billion in bay initiatives his administration has made to address the sediment at the dam.
“This settlement is a significant and positive step in the right direction, and with the cooperation of Exelon and upstream states, we can continue making progress in our efforts to preserve and protect this great national treasure,” Hogan said in a prepared statement.
Within the $200 million agreement is $52 million to implement new requirements for flow control to create a more natural conditions for the Susquehanna River to help fish passage in the aquatic ecosystem; $41 million to significantly increase efforts to remove trash and debris flowing down the river; $12 million to support the state in overseeing the agreement and $500,000 to fund a study for dredged material, among other conditions.
But for local advocates that have been pushing to hold Exelon responsible for their part in the Chesapeake Bay’s water quality, the agreement does little to answer for the sediment clean-up and ends the once-in-a-lifetime chance to sweeping change.
“We believe in the terms of the health of the Chesapeake Bay, this is insufficient and that the MDE is squandering its biggest leverage on Exelon which is the WQC,” said Chip MacLeod, general counsel of the Clean Chesapeake Coalition, a coalition of Eastern Shore counties, including Cecil County, that are pursuing bay water quality improvement in a fiscally responsible manner. “We’re disappointed with the settlement because it does not fully reach the goals of water quality improvement.”
MacLeod noted that while $47 million was promised in sediment clean-up, the agreement stipulates that Exelon will remove “up to the level of debris removed in 2018.” The agreement notes that is 450 twenty-yard dumpster loads of debris.
“When you look at $47 million for clean-up it sounds significant. But you have to remember that this is for 50 years, so that’s spending less than $1 million for clean-up,” he told the Whig. “For all us downstream that have been dealing scour events, we have to ask — is this the new normal?”
Waterkeepers Chesapeake Executive Director Betsy Nicholas cautioned that every provision in this agreement was still subject to change by both the MDE and Exelon, and there still were no guarantees to mitigate the impacts of the dam on water quality.
“We believe the settlement has insufficient funds to deal with the risks to the Susquehanna River and Chesapeake Bay from the extreme weather events scouring large amounts of sediment and nutrients trapped behind Conowingo Dam,” she said in a prepared statement. “There is a stated intent for Exelon to make payments to Maryland for the purposes of achieving activities such as mussel habitat restoration and working to address upstream pollution sources. Yet these are merely statements of intent, and they are not binding.”
While groups including Waterkeepers Chesapeake and the Lower Susquehanna Riverkeeper Association have been involved in the process up to an extent, they are not a party of the settlement, Nichols added.
They also hold no power to make sure the money Exelon is committing to various programs will be spent on those initiatives. The agreement maintains that Exelon would make payments to the MDE for the state’s Clean Water Fund, which can be reallocated by the governor or the general assembly, rather than a “lock box” of funds.
“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 mitigated,” she said.
Lower Susquehanna Riverkeeper Ted Evgeniadis said even with the agreement, the nutrient scours and sediment build up will remain a threat with Pennsylvania and New York upstream.
“Significant improvements must be made upstream and those communities need support now in part of this settlement,” Evgeniadis said in a press statement. “At face value, the settlement carries certain strengths that we applaud, but there are deficiencies that must be addressed in order to protect water quality in the Lower Susquehanna and Chesapeake Bay for the next 50 years.”
As the agreement has been filed with FERC, it’s up to the federal to approve or deny it.