Federal Court Invalidates License For Conowingo Dam On The Susquehanna

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A view from atop the Conowingo Dam/Bridge. (Credit: Google/Google Earth)

HAVRE DE GRACE - A federal court on Tuesday invalidated the license for Maryland's Conowingo Dam on the Susquehanna, signaling a victory for Environmental groups who have said the dam traps polluted sediment.

With its decision, the District of Columbia Circuit Court of Appeals has sent the license, issued last year by the Federal Energy Regulatory Commission, back to the agency for further review.

The controversy over the Conowingo Dam began in 2018 when the Maryland Department of the Environment issued a certification that would have forced then-dam owner Exelon to reduce pollution escaping the dam or pay a $172 million fine every year.

Exelon subsequently challenged Maryland's environmental requirements in court, arguing it shouldn't be held responsible for pollution the dam does not directly create.

The two parties eventually reached a settlement under which Exelon spun off a separate company, Constellation Energy, which operates the dam. Additionally, Maryland voided the requirements for Exelon in exchange for the company agreeing to pay $225 million toward restoring the Susquehanna and aiding the passage of fish through the dam.

These terms were adopted in the Dam's new 50-year license, which environmental groups immediately challenged in court.

On Tuesday, D.C. Circuit judges declared that Maryland could not change its initial certification issued to Constellation; therefore, the license is invalid.

As a result of this decision, the case will likely be sent back to the courts that initially considered Exelon's challenges to Maryland's 2018 certification for Conowingo. It remains to be seen how Constellation and Exelon will proceed with the license.

If the court invalidates the 2018 certification, Constellation will be forced to start the licensing process from the beginning. If the court fully validates the license, the Federal Energy Regulatory Commission will have to include the state's agreement with Constellation in its license for the dam.

"Either result would comport with a major goal of the Clean Water Act: to make states the prime bulwark in the effort to abate water pollution," the Court's decision states.

Exelon could also appeal the decision by asking for all of the D.C. Circuit judges to review the decision "en banc" or petitioning the U.S. Supreme Court.

According to Paul Adams, spokesman for Constellation Energy, this may not be a victory for Chesapeake Bay's health.

"No one who cares about clean air and the health of the Chesapeake Bay should be cheering this decision," Adams said in a statement. "This potentially jeopardizes the state's largest source of renewable energy and could disrupt up to $700 million that Constellation pledged for environmental programs, projects, and other payments that directly benefit water quality, aquatic life, and citizens living on and near the bay."

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