On Tuesday, the D.C. Circuit Court of Appeals issued an order in Waterkeepers Chesapeake, et al v. FERC holding that the Federal Energy Regulatory Commission’s (FERC) exceeded its authority under the Clean Water Act when issuing a license for the Conowingo Dam in Maryland.
According to the order, the Federal Power Act authorizes FERC to issue licenses for the operation of hydroelectric dams. However, before FERC may issue a license, the Clean Water Act requires FERC to obtain a certification from the state where the dam is located stating the dam will comply with the Act or the state must waive its authority.
The court states that, in 2014, petitioner Constellation Energy Generation, LLC, the Conowingo Dam’s operator, submitted a certification request to Maryland in order to receive a FERC license. Following years of public hearings and back and forth, Maryland issued a certification in 2018 requiring Constellation to develop a plan to reduce pollution and protect the environment.
Subsequently, Constellation challenged the certification arguing that it was unprecedented and extraordinary. While the challenge was pending, Maryland and Constellation arrived at a settlement in which Maryland would waive its authority under the Clean Water Act if the FERC license contained certain requirements. After receiving comments on the settlement, FERC issued a 50-year license to Constellation adopting the proposed requirements.
In response several environmental groups, Waterkeepers Chesapeake, Lower Susquehanna Riverkeeper Association, ShoreRivers, and Chesapeake Bay Foundation, filed a petition for rehearing arguing that Maryland had no authority to retroactively waive its 2018 certification and that FERC therefore exceeded its authority. FERC then affirmed the license stating that “nothing in the Clean Water Act prevents a state from affirmatively waiving its authority to issue a water quality certification.” The environmental groups then appealed to the D.C. Court of Appeals.
The appellate panel stated the Clean Water Act only allows FERC to issue a license if a state failed to or waived its authority to issue a certification and, since Maryland issued a certification, FERC may not use the settlement to avoid the requirements of the Clean Water Act. The court therefore vacated the 50-year license issued by FERC and remanded the case to FERC for further proceeding. The court stated FERC may either vacate the 2018 certification requiring Constellation to reapply or it could validate the 2018 certification requiring FERC to issue a license incorporating its conditions.
The environmental organizations are represented by Earthjustice. Constellation is represented by Jenner & Block.