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Chesapeake Bay Foundation backs Conowingo lawsuits

ANNAPOLIS, Md. —The Chesapeake Bay Foundation (CBF) today filed a motion to intervene in a federal lawsuit that may determine whether Exelon Corporation, the owner of the Conowingo Dam, must contribute to clean up pollution problems related to the dam.

“We have a unique interest in the outcome of this case. Chesapeake Bay Foundation has worked for decades to reduce pollution coming down the Susquehanna River and despoiling the Chesapeake Bay,” said CBF Vice President for Litigation Jon Mueller. “Most recently, we commissioned an economic study proving that Exelon can make a sizeable contribution towards rectifying harm to natural resources and the Bay exacerbated by the dam. As the recent heavy rains and resulting discharges from the dam demonstrated, it is critical that CBF be permitted to present our information and represent the  interests of our members to the court.”

For decades, the Conowingo Dam on the Susquehanna River in Maryland trapped much of the nitrogen, phosphorus, and sediment pollution carried by the river and prevented it from reaching the main stem of the Chesapeake Bay. But now the area behind the dam has silted in, and more quickly than scientists had anticipated. Major storms scour some of that sediment and wash it downstream. The Bay states have agreed to share some of the responsibility for this problem. The Maryland Department of the Environment also has ordered that Exelon be accountable for a major portion of the pollution reduction or contribute significant funding.

That mandate was part of Maryland’s Water Quality Certification for the dam, required by Section 401 of the Clean Water Act. Exelon is seeking a 46-year license from the Federal Energy Regulatory Commission to continue operating the dam. Among other things, the certification requires Exelon to account for and reduce the amount of nitrogen and phosphorus discharged through the dam due to the dam’s reduced trapping capacity.  In addition, Exelon must mitigate all the lost capacity by any combination of dredging, installing best management practices or ecosystem restoration actions, or paying an annual fee-in-lieu based on pounds of pollution discharged. This final option would amount to an annual payment of approximately $172 million.

In response, Exelon filed two judicial actions: one in the U.S. District Court for District of Columbia and another in the Circuit Court of Baltimore City. On May 25, Exelon also filed a “Protective Petition for Reconsideration and Administrative Appeal” with the Maryland Department of the Environment in which it requests Maryland reconsider and stay its decision to issue the certification. Exelon argues Maryland exceeded its authority under state and federal law, and that the state’s decision was arbitrary and capricious, among other things. 

The state moved to dismiss Exelon’s DC Circuit Court action on July 11, arguing that the state is immune from suit under the Eleventh Amendment and that Exelon failed to exhaust its administrative remedies prior to filing suit.  CBF supports those arguments.

A similar motion will be filed in Baltimore City Circuit Court.

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