Conowingo Dam relicensed for 50 years, settlement agreement with Md. finalized

Note: This story has been updated to include a new statement from Maryland Department of the Environment.

A federal commission has granted the Conowingo Dam's operator a new 50-year license to continue producing hydropwer in a case activists say will have a profound impact on states' ability to regulate water pollution nationwide.

The approval by the Federal Energy Regulatory Commission on Thursday represents a ratification of a controversial settlement agreement between the state of Maryland and the Exelon Corp., which provides power to about 10 million customers in Maryland, Delaware, D.C., Pennsylvania, New Jersey and Illinois.

The 90-year-old Conowingo Dam is located about 10 miles from where the mouth of the Susquehanna River opens to the Chesapeake Bay.

The Susquehanna funnels pollution that originates on farms, in urban areas, in mines and at wastewater treatment plants southward to the bay.

Some of that pollution and sediment ends up trapped behind the Conowingo, steadily filling up the reservoir — until, when waters rise during a storm and the floodgates open, the sheer force of the fast-moving water dislodges some of the reservoir’s contents in a concentrated plume.

With the reservoir now essentially full, these “burps” are more frequent, put in motion by increasingly smaller storms, even as climate change causes storms to be on average stronger and more frequent. There is also some evidence that processes are occurring inside the reservoir that put pollution into motion even outside storm events, though the matter requires more research.

The settlement agreement stipulated that Exelon would pay more than $200 million toward projects that would improve the bay's water quality and habitats. However, since the settlement was announced in October 2019, activist groups have panned it for demanding what they consider to be too little investment from Exelon, a Fortune 100 energy company.

Killing the Chesapeake:Dammed if you dredge, dammed if you don't: Conowingo's toxic muck a vexing problem for bay

Exelon has maintained throughout the process that the pollution, which includes nutrients like nitrogen and phosphorus that contribute to dead zones, originates entirely upstream, with the dam only acting as a pass-through point.

One concerned group, the Chesapeake Bay Foundation, agreed that the pollution mostly originates upstream, but said Exelon should nonetheless be paying more to help clean it up.

"CBF continues to believe Maryland should have pursued a settlement with Exelon that would have directed the bulk of the settlement proceeds to reduce pollution upstream — primarily in Pennsylvania — where most of the pollution that flows through the dam is generated," the foundation said in a statement.

The settlement agreement came about in response to a lawsuit Exelon filed against Maryland after the state tried in 2018 to require the company to reduce pollution levels out of the Conowingo Dam back to what they were before the reservoir filled up.

To do so would have cost an estimated $172 million annually, or almost $9 billion for the license's half-century duration.

Background:Conowingo Dam legal battle ends with $200M settlement for bay restoration

Of the settlement's $213 million total, only $61 million comes in cash, according to CBF. The money will be divided among 10 projects, the largest pertaining to new requirements for flow control to create more natural conditions and enhance aquatic life in the Lower Susquehanna.

In a statement, Maryland Environment Secretary Ben Grumbles said the settlement "dramatically" increased Exelon's investments in environmental stewardship at the dam.

“This is encouraging news for the Susquehanna River and the Chesapeake Bay after almost a decade of gridlock," Grumbles' said in a statement. "Maryland is 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, including the multi-state Conowingo Watershed Implementation Plan, to prevent upstream pollution and reduce the risks from the lost trapping capacity of the Conowingo Dam.”

Noting that the per-year amount of this agreement is dwarfed by Maryland's initial ask, activists with the Waterkeepers Chesapeake coalition called the settlement "extremely flawed" and "an example of corporate welfare," and denounced FERC's approval.

"We strongly condemn this decision, as this settlement not only provides grossly insufficient funds to deal with the risks that Conowingo operations pose to the Susquehanna River and Chesapeake Bay, but also lacks concrete assurances that the actions under the agreement will actually be fulfilled by Exelon,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake. 

The part of the settlement that most concerns some activists, however, is that the agreement involved Maryland waiving its authority to issue what is known as a Water Quality Certification, the enforcement mechanism it used in 2018 to try to force Exelon into paying more for restoration. 

"We remain disappointed in the Maryland Department of the Environment’s decision to surrender powerful regulatory tools the state could have used to reduce Conowingo Dam-related pollution," said CBF Vice President of Environmental Protection and Restoration Alison Prost.

As there is no federal policy on what to do about aging dams, the Conowingo case's precedent may end up allowing dam owners to bypass Water Quality Certifications in other similar cases around the country, Waterkeepers Chesapeake said. The organization said it would be considering "all legal options" in response to FERC's ruling.

"FERC’s decision will have profound impacts in Maryland and across the country," the Waterkeepers wrote.

In addition to activists' attempts to make Exelon pay more via litigation and legislation, some have proposed methods of cleaning up the pollution with help from private companies that could make a profit off dredged material. 

More:Worst-case scenario for river & bay: Climate change, flooding, dead zones, crab depletion

This winter, MDE will lead a $3 million pilot dredging program that will will dredge 1,000 cubic yards of muck from behind the dam and gather information about the quality of the sediments, dredging costs and feasibility, and possible reuse options for the dredged material.

While MDE cares about pollution prevention via efforts to stop its origination upstream, the Hogan Administration is approaching the Conowingo via a "holistic approach" that includes exploring downstream cleanup via dredging, Grumbles said in a statement.

Environmental watchdog reporter Julia Rentsch can be reached at jrentsch@delmarvanow.com.