Thursday 20 September 2018

Exelon Made a Bad Choice Featured

Exelon's challenge of the 401 Water Quality Certification is unfortunate, but not unexpected. From the start of the dam relicensing process back in 2012, Exelon has demonstrated that they would rather pay lawyers to fight to avoid responsibility, rather than investing in protect the nation's largest estuary -- the Chesapeake Bay. Throughout this process, the State of Maryland, and other federal parties, have had to continually push Exelon to provide even the most basic of information on environmental studies and impacts of dam operations, which are essential to making informed decisions about water quality conditions for the 50-year dam operating license.

Exelon has profited billions from this public resource and has a guaranteed profit as long as the Susquehanna River flows for the next 50 years. President Teddy Roosevelt fought for decades to create the Federal Power Act (1919) so that corporations profiting from a public resource were required to provide public benefits. Cleaning up the Bay is an agreed upon bipartisan goal that benefits millions of people in the region. Under the Federal Power Act, we the citizens are providing an exclusive right for a for-profit corporation to have exclusive use of a public river - the Susquehanna - for power generation. In order for this exclusive license to be granted, Exelon must meet a significant burden, including showing the impacted state, here Maryland, that all impacts to state water quality will be addressed through conditions on this license. The sediment that has been building up behind the dam, and the threat it poses to the watershed downstream is the single largest impact associated with the dam. This simply must be properly addressed before this license can be issued.

In its court filings, Exelon complains that having to address these impacts is an "unfair burden." This approach ignores that millions of dollars contributed to the clean up effort by the Chesapeake States and Federal Government, and suggests that Exelon, alone, is being held responsible. This simply isn't true. And, Exelon's delay of this process to date, by failing to provide timely information, and now challenging the state's certification, will continue to push off implementation of best management practices to address sediment and nutrient pollution that is passing through the dam and harming downstream water quality and fisheries.

This shouldn't be a choice of either the dam and hydroelectric power or water quality and fisheries. That is why we need strong conditions in the license. With strong protection for downstream populations, Exelon can continue to operate the dam, generate power and make money, while the crabs, shellfish, people and drinking water downstream are also protected from harm. Exelon had an opportunity to be a leader in the region and protect the critical resource that provides them with their business; instead they chose to fight and put the burden on everyone else. They made a bad choice.

More info: Exelon sues MD, calls Conowingo requirements an ‘unfair burden’, July 9, 2018, Bay Journal 

Virginia’s State Water Control Board invited the public to submit new comments on two massive natural gas pipelines that will impact Virginia’s waterways. Waterkeepers Chesapeake were among over 13,000 groups and people who submitted comments to the board.

In our comments on the Atlantic Coast and Mountain Valley Pipelines, we asked for a swift review of the U.S. Army Corps of Engineers Nationwide Permit 12 (NWP 12) and requested that the State Water Control Board (Board) direct the Department of Environmental Quality (DEQ) to conduct stream-by-stream analyses of crossings and to impose the necessary standards to ensure full protection of Virginia’s water resources. We also requested that the Board put on hold MVP and ACP development until all legal and regulatory challenges are resolved.

These fracked gas pipelines will cross rivers, streams, and wetlands more than a thousand times in Virginia. Instead of relying on insufficient permits, the State Water Control Board should direct the DEQ to conduct stream-by-stream analyses of crossings using its authority under § 401 of the Clean Water Act and impose the necessary standards to ensure full protection of Virginia’s designated water uses, including aquatic life, recreation, wildlife, and drinking water supplies.

DEQ and the Board should also put on hold the § 401 “upland” certifications for both the ACP and MVP until the Board has completed its review of public comments on the adequacy of NWP 12 and the Board has determined whether it will take additional action. Likewise, while petitions for rehearing are pending before FERC and court challenges to Virginia’s § 401 certifications, FERC permits, and other critical permits are pending in the federal courts of appeals - all development activities along the pipeline routes in Virginia should halt.

Nationwide permits are appropriate for certain routine projects that have only minimal effects on water quality. The MVP and ACP are not appropriate candidates for coverage under NWP 12 because they are major construction projects that will each cross hundreds of waterways, including some of the most pristine rivers and streams in Virginia.

Further, NWP 12 does not consider cumulative impacts to water quality where there are multiple crossings along the same stream and its tributaries (i.e. the cumulative harm to these watersheds). Therefore, it is appropriate—and necessary—for the Board to direct DEQ to conduct its own more thorough, site-specific review that considers the cumulative effects of multiple crossings within individual watersheds.

Virginia’s response to the NWP and the §401 WQC will determine the quality of hundreds of local waterways across the state. Given our recent torrential thunderstorms, it’s even more critical that we ensure our waterways are protected from the exposed terrain and other harms along the construction path for the ACP and MVP. Without detailed review and research of our headwaters, there is no way for the pipeline developers and regulators to know what our frequent hurricane deluges do to the river bottoms and stream banks where the pipe is proposed to be buried. It's up to Virginia to step up in this process and require a stream-by-stream review of the Atlantic Coast and Mountain Valley pipelines.

READ OUR FULL COMMENTS

Appeal says certification fails to recognize potential harm to the Chesapeake Bay from sediment stored behind the dam

(Baltimore, Md.) – Waterkeepers Chesapeake and the Lower Susquehanna Riverkeeper Association filed an administrative appeal on June 8, 2018, urging the Maryland Department of the Environment to reconsider its recent water quality certification for the Conowingo Dam, which is owned and operated by Exelon Corporation. Exelon has requested a new 50-year federal license to operate the dam, and, in order to receive that license, the State of Maryland must certify that the dam’s operations will not adversely impact water quality under the Clean Water Act.

“This is one of the most important decisions in the effort to clean up the Chesapeake Bay,” said Betsy Nicholas, executive director of Waterkeepers Chesapeake, a coalition of 19 independent waterkeeper organizations. “We shouldn’t be approving a 50-year license without a solid, accountable plan for removing sediment from behind the dam.”

The Conowingo Dam was completed in 1928 and, since that time, it has been trapping sediment and nutrient pollution from the Susquehanna River and its 27,000-square-mile drainage area. Sediment is one of the three key pollutants, along with nitrogen and phosphorus, that is regulated under the federal Chesapeake Bay cleanup plan, known as the TMDL.

Scientists have concluded that the reservoir behind the dam is now at capacity and cannot trap any more sediment. After large storms, powerful floodwaters can scoop out or “scour” the stored sediment behind the dam and send that downstream to the Chesapeake Bay in the form of pollution.

“Sediment runoff from agriculture and development has been stockpiling behind Conowingo dam for nearly 100 years,” said Ted Evgeniadis, Lower Susquehanna Riverkeeper. “The Susquehanna River is a public resource, and Exelon profits from operating a dam on it. Exelon therefore shares a responsibility to help prevent this sediment from polluting the Bay and we believe the State of Maryland must hold them accountable to do so.”

Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper Association and Earthjustice submitted public comments during the relicensing process. The organizations say that the Maryland Department of the Environment has failed to address them.

The organizations also say that, for the certification to protect water quality, the State must understand the full potential of large flooding events that could cause dramatic harm to the Bay. The new license covers 50 years, but the State has yet to conduct a study or model how much sediment pollution would be scoured from behind the dam during a 50-year storm, or even a 25-year storm, which has an 83 percent chance of occurring during the license period. Scientists say large storms and heavy rain events are happening more frequently due to climate change, which means the risk of a catastrophic storm continues to increase.

“In just the last month, we’ve seen serious, damaging flooding throughout the region,” said Nicholas. “It’s irresponsible not to account for the increasingly likelihood that Conowingo Dam experiences a major flood during the next fifty years.”

The Maryland Department of the Environment issued its water quality certification for the Conowingo Dam on May 11, 2018. While the certification acknowledged the impact of the dam on water quality, including the threat posed by the accumulated sediment, it does not put specific measures in place to address the sediment.

“When Congress adopted the Clean Water Act, it purposefully gave states a very broad authority on federal permits,” said Jennifer Chavez, attorney for Earthjustice, which is serving as legal counsel for the appeal. “We’ve filed this request for reconsideration because we want to ensure that Maryland uses the best available science before exercising that critical authority.”

The Maryland Department of the Environment will review the appeal and either grant the request to reconsider and revise the certification or deny it. There is no deadline by which the Department must make its decision.

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Waterkeepers Chesapeake is a coalition of nineteen independent programs working to make the waters of the Chesapeake and Coastal Bays swimmable and fishable. www.waterkeeperschesapeake.org

The Lower Susquehanna Riverkeeper Association is a non-profit watershed association that seeks safe drinking water, sustainable use of natural resources, and the ability to fish and swim in the Susquehanna River and her tributaries. www.lowersusquehannariverkeeper.org

As the nation’s original and largest nonprofit environmental law organization, Earthjustice leverages our expertise and commitment to fight for justice and advance the promise of a healthy world for all. www.earthjustice.org