FERC Renews Conowingo Dam’s Operating License

Bill Herb • April 13, 2021

For additional background on this issue, see Bill Herb’s earlier article, Dollars and Sense on the Susquehanna.

In August 2012, the Exelon Generation Company LLC applied to the Federal Energy Regulatory Commission (FERC) for a new license to continue operation and maintenance of the Conowingo Hydroelectric Project No. 405 (Project). The initial 50-year license expired in 1976.

Since 2014, Exelon has operated the dam under an annual license pending the disposition of its new license application. On March 19, 2021, FERC issued a new 50-year license.

The issuance of the license was the culmination of actions on three separate, but related, tracks: the requirements of the license; an increasing concern about water quality in the Chesapeake Bay; and the inevitable decline in the ability of the Conowingo Dam and Pond to protect the Bay. Overlaying these factors were issues of political will and money.

Under section 401(a)(1) of the Clean Water Act, FERC may not issue a license authorizing the construction or operation of a hydroelectric project unless the state water quality certifying agency — in this case, the Maryland Department of the Environment — has either issued water quality certification for the project or has waived certification by failing to act on a request for certification within a reasonable period, not to exceed one year.

Section 401(d) of the Clean Water Act provides that the certification shall become a condition of any federal license that authorizes construction or operation of the project. FERC found that Maryland waived certification.

Threats to the Bay include nitrogen, phosphorus, and sediment (NPS). The 1983, 1987, and 2000 Chesapeake Bay Agreements between the Environmental Protection Agency (EPA), District of Columbia, and various states in the Bay watershed had the goal of cleaning up the Bay through voluntary actions. By 2007, these agreements were found to be ineffective. As the result of a lawsuit filed in 2000, a legally enforceable agreement was reached in 2010 using Total Maximum Daily Load (TMDL) limits for NPS. This agreement was refined in the 2014 Chesapeake Bay Watershed Agreement (Agreement).

After the Agreement survived court challenges that reached the Supreme Court in 2016, all but one the parties to this “enforceable” agreement met their obligations to a greater or lesser degree. Pennsylvania, a major contributor of NPS to the Bay through the Conowingo Dam, would not meet its commitments, and the EPA declined to enforce the Agreement.

Ever since its construction in the late 1920s, the Conowingo Dam and its Pond have fortuitously protected the Bay by trapping massive amounts of NPS that flowed down the Susquehanna River. However, all impoundments lose their trapping ability as the available storage capacity is reached, and this loss was the case for the Conowingo Pond by the early 2000s.  

Although the Dam and Pond produced none of the NPS, many concerned entities sought to require Exelon to pay for the NPS flowing down the Susquehanna from sources in Pennsylvania and New York.

MDE attempted to do this when it issued a certification for the Project in April 2018. This certification required Exelon to annually remove 6,000,000 pounds of nitrogen and 260,000 pounds of phosphorus produced by others, or to make payments of $17 for each pound of nitrogen and $270 for each pound of phosphorus.

This would have resulted in potential liabilities around $172 million annually, or about $8.6 billion over the life of the license. This amount was far above the revenue (not profit) generated by the Project, according to an independent estimate prepared by Energy and Environmental Economics, Inc.

In February 2019, Exelon filed a petition asking FERC to find that Maryland had waived its right to issue a water quality certification based on a Supreme Court decision (Hoopa Valley Tribe v. FERC) which found that a delay in certification in excess of one year was tantamount to a waiver. In October 2019, Exelon and MDE reached a settlement which included a conditional waiver of MDE certification.  The settlement included off-license environmental provisions which were outside FERC’s jurisdiction, but committed Exelon to various actions and expenditures that were only 1-2 percent of the $8.6 billion.  

FERC has dismissed numerous challenges to the issuance of the license.

The EPA is currently being sued to enforce the requirements of the Chesapeake Bay Watershed Agreement.


William Herb is a retired hydrologist who worked for the U.S. Geological Survey from 1973 to 2005. He is an expert in sediment transport and has written and spoken extensively on Conowingo Dam issues since he moved to Kent County in 2008. His only connection to Exelon is through the electric outlet on his wall.


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