Environmental

Court vacates FERC license for 570.15 MW Conowingo hydro project

Court vacates FERC license for 570.15 MW Conowingo hydro project

The United States Court of Appeals for the District of Columbia Circuit has vacated the Federal Energy Regulatory Commission operating license for the 570.15 MW Conowingo hydro project, saying FERC exceeded its authority due to questions about the project’s water quality certification.

Conowingo Dam and its 11-unit hydro powerhouse are located on the Susquehanna River in Maryland, upstream of the Chesapeake Bay. The project is owned by Constellation Energy.

The dam traps sediments and nutrients that enter the river upstream. However, the dam has reached full trapping capacity, meaning upstream pollution is entering Chesapeake Bay. In October 2021, the Maryland Environmental Services began the Conowingo Dredging and Innovative and Beneficial Reuse Pilot Project to help understand the role dredging can play in mitigating the effects of upstream discharges and the lost trapping capacity.

The court case was brought by Waterkeepers Chesapeake, et al, against the Federal Energy Regulatory Commission (respondent) and Constellation Energy Generation LLC, et al (intervenors). FERC issued a new 50-year operating license for the project in March 2021 and said its order resolved a complex proceeding pending for almost eight years and incorporated settlements involving the licensee, Department of the Interior and Maryland Department of the Environment.

However, the court’s opinion, issued Dec. 20, said:

“Under section 401(a)(1) of the Clean Water Act, FERC may issue a license only if the state where the dam is located either certifies that the dam will comply with the Act’s water quality standards or waives its authority to do so. After initially granting a section 401(a)(1) certification, Maryland attempted to withdraw it and waive its authority as part of a settlement with the dam’s operator, which FERC then used as the basis for the Conowingo license. By issuing a license under such circumstances, FERC exceeded its authority under section 401(a)(1), and we therefore vacate the license and remand to FERC.”

The court said: “… given that FERC had no statutory authority to issue the license under review … there is no ‘possibility that [FERC] may find an adequate explanation for its actions’ on remand.”

“Vacating the license will allow completion of the administrative and judicial review. That review could result in either the invalidation of Maryland’s 2018 certification, which would require Constellation to request a new certification, or the validation of the 2018 certification, which would require FERC to issue a license incorporating the conditions contained therein,” the opinion stated.