In December, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion that vacates the Federal Energy Regulatory Commission’s (FERC) licensing of the Conowingo Dam. In its decision, the court determined that FERC exceeded its authority when it approved a license without including the Water Quality Certification that Maryland issued in 2018—upholding Clean Water Act protections and preventing government agencies from prioritizing corporate interests over healthy waterways. Although CRC was not party to the lawsuit challenging the license, we did weigh in with objections in letters to FERC and to Governor Hogan.
The Clean Water Act provides that no license or permit under Section 401 shall be granted until certification has been obtained or has been waived by a state. The court, after almost three months of deliberation, agreed, writing in the ruling that Maryland had, in fact, not waived anything. “Maryland did not fail or refuse to act. Just the opposite. The state acted when it issued the 2018 certification.” Furthermore, the court stated that FERC cannot issue “a license based on a private settlement arrangement entered into by Maryland after the state had issued a certification with conditions but then changed its mind.” Constellation Energy (formerly Exelon) now has to either request a brand-new water quality certification from the state, or FERC has to incorporate all the information in the original 2018 water quality certification into the license.