A group of Maryland counties challenging the science and efficacy of the 2010 EPA cleanup mandate for the Chesapeake Bay has filed a Motion to Intervene with the Federal Energy Regulatory Commission in the relicensing of the Conowingo Hydroelectric Dam.
“The Coalition’s formal intervention in the FERC relicensing of the Conowingo Dam is a significant step towards improving the health of the Bay and protecting Bay restoration efforts and expenditures below the Dam,” wrote Ron Fithian, chair of the Clean Chesapeake Coalition and President of the Kent County Commissioners, in a press release on Monday.
The dam’s operator, Exelon Generation, is in a yearlong application process with the Federal Energy Regulatory Commission to renew its license before the current one expires in September of 2014. Exelon is currently in settlement negotiations with 23 anonymous parties that will determine how sediment and nutrient pollution is managed for nearly five decades.
But the Coalition has been barred from the negotiations so far and is what prompted the Motion to Intervene on Monday.
The Coalition was formed last November to challenge the science of the EPA’s Total Maximum Daily Load mandates established in the state’s Watershed Implementation Plan — because the mandate did not adequately consider a remedy to the 185 million tons of sediment and nutrient pollution that menaces precariously behind the dam.
The Coalition has advocated dredging the dam as the most expedient and cost effective way to improve water quality in the Bay. The Coalition is vying to secure a multi-state commitment to dredge, which could significantly lower the $14.5 billion price tag to Maryland’s local governments to implement their WIPs. The savings could reduce the WIP costs to other states as well, the Coalition says.
“Unmanageable amounts of nutrients and sediments are being scoured from the Conowingo Reservoir and flushed into the upper Bay during storm events,” Fithian wrote. “Local WIPs will be difficult to justify and Maryland’s Bay restoration efforts will continue to be undermined if this single largest source of pollution is not addressed during the FERC relicensing.”
The dam contributes nearly half of all the nutrient and sediment pollution into the Chesapeake Bay from Susquehanna River.
The Coalition says the WIPs in all Bay impacting states could be recalibrated once the benefits of restoring storage capacity at the dam can be measured in the water quality.
The EPA estimated in their 2010 Chesapeake TMDL Report that removing sediment from the dam would cost just a penny per pound.
“The objective of the Coalition is to pursue improvement to water quality of the Chesapeake Bay in a prudent and fiscally responsible manner,” the press release said.
The Coalition argues that massive sediment discharges from the dam have become more frequent over the years as the dam nears its storage capacity of 204 million tons. There is currently 185 million tons of sediment backed up at the dam, which collects 2.5 million tons annually. But storm events were never factored in the EPA report in 2010, or in a report from the U.S. Geological Survey in 1997, the Coalition said.
In September 2011 Tropical Storm Lee scoured four million tons of sediment into the Bay over a nine-day period.
“Neither the EPA estimates in the 2010 TMDL nor the USGS estimates made in 1997 take into account the nutrient and sediment loading that comes from the scouring of the bottom of the Susquehanna River Basin that occurs at the five major dams in the basin during significant storm events,” the Motion to Intervene said.
“The TMDL is flawed in that the dam is already full and will load the Bay when any big storm hits, which is an inevitable, albeit unpredictable, future occurrence,” said Gordon P. Smith, one of the attorney’s representing the Coalition.
Maryland’s WIP plan was the result of a lawsuit won by Chesapeake Bay Foundation in 2010 that compelled the EPA to enforce the 1972 Clean Water Act. Under a consent decree, states in the Chesapeake Watershed, from New York to Virginia, were required to implement WIP plans that brought the Bay into compliance with the Clean Water Act by 2025.
But Pennsylvania, the largest source of sediment and nutrients flowing into the Susquehanna, is balking at the TMDL and WIP mandates with slow implementation and litigation. Almost immediately after the TMDL report in 2010, the Pennsylvania Farm Bureau, joined by the American Farm Bureau Federation, filed suit against the EPA to challenge the legality of the TMDL process under the Clean Water Act and the science in the mandates.
“EPA relied on inaccurate assumptions and on a scientific model that EPA itself admits was flawed,” the AFBF suit alleged. “…the TMDL violates the Administrative Procedures Act’s prohibition of “arbitrary and capricious” agency action.”
“The AFBF asserts that EPA violated the APA requirement that agencies allow meaningful public participation on new rules,” the AFBF suit alleged.
Because of the litigation in Pennsylvania, Coalition members are concerned that Pennsylvania will not have implemented its WIP plans in time before the dam has reached its capacity — and that costly efforts to communities in Maryland below the dam could be wiped out if a major storm or hurricane passes over the region.
Cecil County Councilwoman Diana Broomell testified in January before the Environmental Matters Committee in Annapolis that any gains made by Cecil’s local WIP could be washed away by a single storm event.
“We could invest the $600 million in our WIP plan to put all the measures in, and one storm event would undo all that good,” Broomell said.
In the Motion to Intervene, the Coalition again referenced the EPA’s 2010 TMDL report, which pointed to New York and Pennsylvania as the largest source of pollutants into Bay.
“In 2010, EPA estimated that 48% of the nitrogen loading to the Bay, 29% of the phosphorus loading to the Bay and 36% of the sediment loading to the Bay come from Pennsylvania and New York,” The Motion to Intervene said. “It is beyond dispute that there is no larger source of nitrogen loading to the Bay than the loading that comes from the Susquehanna River. EPA estimated that only 20% of the overall nitrogen loading to the Bay originates in Maryland.”
“EPA estimated that only 20% of the phosphorus loading and only 17% of the sediment loading to the Bay originates in Maryland. Thus, EPA…reported in its conclusion that the nutrient and sediment loading from the Susquehanna River is significantly greater than the nutrient and sediment loading from all Maryland sources,” the Motion to Intervene said.
Any agreements brokered in the relicensing negotiations could have considerable cost implications for more than 50 million people, from Virginia to New York, who live in what is defined as the Chesapeake Water Shed, said the Coalition’s chief counsel, Charles “Chip” MacLeod.
“This is why local government intervention in the relicensing of Conowingo is a critical activity to the future water quality of the Chesapeake Bay.”