The Kent County Commissioners on Tuesday heard from Clean Chesapeake Coalition attorney, Charles “Chip” MacLeod of Funk & Bolton, on efforts underway to force the cleanup of the Conowingo Dam – located near the mouth of the Susquehanna River – and the source of half the sediment and nutrient pollution into Chesapeake Bay annually.

The seven-county coalition, chaired by Kent County Commissioner Ron Fithian, was formed last fall to challenge the science of  the EPA’s Total Maximum Daily Load mandates in the state’s Watershed Implementation Plans. The CCC’s mission is to lower the $14.5 billion price tag to local governments by securing a multistate commitment to dredge the dam.

Coalitions members say the WIP would place exorbitant costs on taxpayers living below the dam and force local governments to significantly raise taxes and other fees.

The CCC further maintains that the WIP plan doesn’t steer a dime of resources towards reducing the 185 million tons of nutrient and sediment that menaces precariously behind the dam.

With exception of some studies, no Bay impacting state has ever spent or budgeted any money to physically reduce the sediment and nutrients behind the dam, MacLeod said.

The dam has released up to 49 millions of tons of sediment during major storm events – in addition to the 2.5 million tons of annual sediment discharge that occurs without storm events.

Scientists have amplified their warnings in recent years that massive hemorrhages from the dam will become more frequent during storms events because the dam is rapidly approaching its storage capacity of 204 million tons.

MacLeod said that the current WIP plan allocates the most dollars on the least effective cleanup measures.

The plan estimates $3.71 billion to reduce just http://talbotspy.com/wp-admin/post.php?post=37742&action=edit&message=17,440 tons of nitrogen from septic systems over the next 12 years – at a cost over $249 a pound.

The $7.38 billion associated with stormwater programs spikes even more to $280 a pound to remove just 13,200 tons of nitrogen over 12 years.

Over the same period, the $928 million estimated for agricultural programs will reduce 28,000 pounds of nitrogen at just $16 a pound.

“The costs are actually inverted,” MacLeod said. “The most expensive activity of regulating stormwater is going to get you the least amount of nitrogen reduction as far as improving water quality in the Chesapeake Bay.”

These three activities will reduce 49,000 tons of nitrogen in the Bay over 12 years, but MacLeod pointed out that the Conowingo released 42,000 tons of nitrogen into the Bay during Tropical Storm Lee — in just a nine days.

MacLeod said these costly local investments downstream from the dam would be “rendered worthless each time the watershed experiences a major storm event.”

Currently there are no published or legislated plans to reduce the 670,000 tons of nitrogen that has backed up at the dam since it its construction in 1928.

MacLeod spoke with the Spy after his presentation on what he thinks it will take take to increase storage capacity and get cooperation from northern Bay state. He said mitigating the sediment and nutrients behind the dam would cost just a penny a pound. He says that Maryland so far has contributed more than any other state to Bay cleanup and that it is now time for New York and Pennsylvania to help dredge the Conowingo. The video is about seven minutes.

MacLeod said the time to cut a deal is now because the dam’s operator, Exelon Energy Corporation, is trying to renew its operating license with the Federal Energy Regulatory Commission for the next 46 years.

The CCC has been barred from participating in Exelon’s relicensing negotiations that are ongoing with 23 unnamed stakeholders. In February, CCC Chairman Ron Fithian sent a letter to FERC requesting seat at the table.

“The Coalition respectfully requests an opportunity to coordinate with FERC officials with respect to the relicensing of Exelon’s Conowingo Hydroelectric project and the relicensing of other hydroelectric dams along the Susquehanna Reservoir. Section 204 of President Obama’s Executive Order 13508 (May 12, 2009) provides that in preparing strategies to the restore the Bay, federal agencies, such as FERC, are to closely coordinate with local agencies for the benefit of the Bay’s water quality and ecosystem and habitat health and vitality.”

FERC’s response on March 29

“While staff is interested in your views and urge you to file any comments that you have, as a rule, staff does not meet separately with interested entities during the licensing process. Although we do not meet separately with interested entities, the Commission’s integrated licensing process provides numerous opportunities for stakeholder input. The integrated licensing process that Exelon began in March 2009 provided a number of opportunities for stakeholder involvement, including public scoping meetings and site visits, study plan meetings, study report meetings, and comments on the draft license application. Although Exelon filed its final license application in August 2012, there will continue to be opportunities to provide comments, including when we issue the notice that the application is ready for environmental analysis and the draft environmental document prepared pursuant to the National Environmental Policy Act. Please note that your letter has been placed in the public record and we will consider your concerns as we conduct our environmental analysis.”

The CCC’s response dated April 3

Preliminarily, we are not an “interested entity.”  The coalition members are local governments that have been provided the authority to engage in land use planning, to engage in watershed implementation planning, to adopt and enforce laws and rules relative to environmental impacts to the Chesapeake Bay and Bay tributaries, and to tax our citizens in order to fund Bay restoration endeavors.  We are and remain concerned that FERC cannot coordinate or cooperate with us in those hopefully mutual endeavors if it refuses to meet with us and to obtain our input. 

Since September 2012, we have not had any opportunity to provide input into the relicensing process.  We have communicated with Emily Carter on a number of occasions to inquire how we might have input in the relicensing process.  Ms. Carter, who has been very polite and responsive, has told us that we should not intervene until after FERC issues the “ready for environmental analysis notice.”  She further advised that information submitted before the “ready for environmental analysis notice” would not be considered until after that notice is issued.  Our concern, particularly in light of recent developments, is that at that late juncture, our input will be meaningless.”

The series of letters follows an initial correspondence from the CCC last fall that called out Exelon’s misuse of data published by the US Geological Survey in a report on sediment movement that was conducted by an engineering firm contracted by the power company.

Michael Langland of USGS told Exelon and their engineers that the conclusions reached in the report were “flawed” because of the misuse of his data.

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 submit a WIP plan to the EPA that brought the Bay into compliance with the Clean Water Act by 2025.

Chesapeake Bay Foundation, the principal architect of the cleanup plans has been on the offensive with the CCC since its inception last fall. They feel the focus on the Conowingo Dam ignores long term benefits of local cleanup effort and they have accused MacLeod of choreographing a great lie to obfuscate local responsibility for Bay cleanup.

CBF says following through with local WIP plans in the Watershed States of New York and Pennsylvania will eventually reduce the amount of sediment and nutrients backing up at the dam by stopping the runoff from the source. But MacLeod insists that New York and Pennsylvania are still struggling with a way forward with their WIP plans and won’t decide anything in time to stop the dam from maxing out its storage capacity.

He said major storm events will continue to jettison toxic sediment and nutrients into the Bay until the dam is dredged.

Currently there is not one working oysterman he northern third of the Bay — where spills have had the most devastating effects on oysters and aquatic grasses.

CBF Maryland Communications Coordinator Tom Zolper said that the sticker price on Bay cleanup is coming down through “innovation and cooperation.

“Many jurisdictions around the Bay have dramatically reduced their initial cost estimates once they started to examine their particular pollution problems and potential solutions, including Talbot County, Frederick County, Lancaster City, PA, and Falls Church, VA,” Zolper said in an email to the Spy on Friday. “We expect that will be the trend going forward in many jurisdictions. Talbot County, for instance, has officially revised one part of its WIP cost estimate downward from $500 million to $10 million. The common thread in these jurisdictions is they decided to cooperate with rather than fight the regional plan to clean up water pollution.”

“Talbot worked with CBF, The Nature Conservancy and government agencies to devise an innovative plan to use existing farm and road-side ditches to treat polluted runoff at a dramatically reduced cost than traditional stormwater management upgrades which were originally contemplated,” he said.

“Other Eastern Shore counties have also decided that cooperation is a better path to cost effective pollution reduction,” Zolper said. “In Wicomico County, local clean water groups worked with the county to identify the most cost-effective locations to use pollution reduction technology. The county then authorized $200,000 in spending for these projects.”

MacLeod’s presentation comes a week before a final vote on Kent County’s 2014 budget that allocates a $25,000 retainer to Funk & Bolton for a second straight year. Other member counties will contribute in different amounts. The firm is looking for $300,000 for the next fiscal year.

MacLeod said the CCC has until the end of the month to file as an intervener in the FERC relicensing process.

The answer should be: we all do.

Everyone, from the EPA to Eastern Shore county governments and a wide spectrum of environmental organizations, agree that the sediment buildup at the Conowingo Dam at the head of the Chesapeake Bay is an immense and imminent threat to the Bay’s health. Phosphorus and nitrogen laden sediment pouring over the Conowingo during an extreme weather event could severely impact any gains in Bay cleanup efforts.

Evaluating its rank on a list of Bay region environmental issues—how to fix it, and how to pay for it—is another matter. While environmental organizations clash with a seven county alliance formed to define their responsibility and role to meet Watershed Implementation Plan mandates, the DNR may have the last word on the dam’s overhaul by requiring Exelon to meet strict water quality requirements.

Online in 1928, the Conowingo was the largest run-of-the river hydroelectric stations ever built and is the last in line of more than 20 dams along the Susquehanna River flowing from Cooperstown, NY, to the northern tip of the Chesapeake Bay delivering to the estuary more than 60% of the Bay’s fresh water. Aside from providing power and cooling water for the Peach Bottom Nuclear Plant, three million tons of sediment arrive to the dam each year and one million tons spill over the gates. 83 years later, the sediment buildup, estimated by a US Geological Survey at 160 million tons, may be close to critical mass and a sediment spill-over driven by an extreme weather event could have catastrophic consequences for the Bay

Even without an extreme weather event like Tropical Storm Lee in 2011 that poured four years of sediment into the Bay in one day, the dam at full sediment buildup capacity could pour three million tons of oxygen depleting phosphorus and nitrogen into the Chesapeake Bay on a yearly basis.

But there are two contending evaluations about how to prioritize the growing sediment crisis at the dam.

Seven Eastern Shore counties, represented by Funk and Bolton attorney Charles “Chip” McCleod in Chestertown, have created an alliance of counties—The Clean Chesapeake Coalition— to make sure their concerns for fiscal responsibility are protected against what they consider to be an unfair burden of costs mandated by the Maryland Dept. of the Environment to meet the EPA pollution limits.  The counties also believe that the various upgrade requirements for storm water and wastewater treatment plants, septic system overhauls and other controls are ‘busy work’ programs adding little to Bay cleanup efforts while avoiding the true crisis at hand—the Conowingo.

In fact, the dam is often cast as being completely off the radar as far as any “official” concern for a solution to the sediment buildup crisis. But currently the U.S. Army Corps of Engineers and Maryland’s environmental agencies are undertaking a $1.4 million study seeking a solution.

The Conowingo has also not gone unnoticed by the EPA who have included calculations of the dam and its relationship to Bay pollution in its original Bay study, and agreed to revisit the dam issue during the EPA’s 2017 mid-point reevaluation.

The Chesapeake Bay Foundation points out that, while the Conowingo poses significant challenges to the Bay region’s health—specifically the northern part— sediment over the dam is not responsible for severe upriver and tributary pollution caused by phosphorus runoff above tidal zones, highlighting that fact that there are two fundamentally different issues requiring different funding mechanisms.

CBF says that the EPA mandates absolutely need to be continued and that the 2010 TDML (Total Daily Maximum Load) target of phosphorus, nitrogen and sediment should not be lost in a contest of prioritizations.  They do not see the sediment issue at the Conowingo and implementing the local WIP requirements as an either/or set of priorities.

Part of the answer lies in the relicensing of the dam to Exelon, its management company.  Currently, their operational license expires in 2014 and management contracts can last as long as 47 years. Everyone would like to get the sediment issue right for the Bay’s health to be locked into a 47-year contract.

Bruce Michael, Director of the DNR Resource Assessment Service, at a presentation given to the Democratic Club of Kent County on Saturday April 20, said that, “it behooves everybody to have [Exelon] relicense the facility. They’re generating power for the State, and it’s basically what we call green power, because it’s not producing a lot of carbon into the atmosphere. They want to get it done. We want to get it done.”

Michael also emphasized that sediment management is the highest priority in the DNR and MDE’s negotiations with Exelon, and that Exelon is aware of their priorities.

“There are a lot of issues that have to be addressed with relicensing, but I can tell you, and we have let the applicant and everybody know, that addressing the sediments behind Conowingo Dam is our single highest priority in the relicensing process,” Michael said.

After Exelon filed for their final license application in August of 2012, they will provide a “Ready for Environmental Assessment” in the next few months.

“Everything has to be addressed one year after they do that. Specifically, a water quality certification by the Department of the Environment, and that’s our trump card…if they do not get a water quality certification, that means that MDE will say that if your facility is negatively impacting water quality to the Chesapeake Bay, we can deny the license, we will not give you the water quality certification. We’ve let Exelon know this, and that addressing the sediments behind the dam is our highest priority. We want to make sure that Exelon is part of the process, and they certainly understand that, and we’ve made it perfectly clear.”

“Just because they’re requesting a 46-year license doesn’t mean they are going to get a 46-year license. We can put together our water quality certification and say, “okay, we’re going to renew this in one year, we’re going to renew this in three years, as we get more information, but during the meantime, we want you to do this, this, and this.” So, it’s not like it’s an endgame that they have a license and forty-six years from now we’re going to revisit this. We have the opportunity through the WQC process to address some of those particular issues,” Michael said.

Along with the DNR, MDE and Exelon, other interested parties at the negotiations will include Pennsylvania environmental programs, fishing and boating commission, US Fish & Wildlife, looking at fish passage prescriptions, the National Park Service, Susquehanna River Basin Commission, The Nature Conservancy and  The Lower Susquehanna Riverkeeper.

Citing 2002 studies for the whole watershed implementation plan and the baywide TBL, Michael says that the combined efforts of Maryland, Pennsylvania and New York will reduce the sediment spill-over from three million tons to two million tons or less.

“This is what we’re using the models for — to help us forecast what the sediment loads might be, and what it means to the Chesapeake Bay. Even though it doesn’t mention the impacts in 2025 when it’s completely full, the model is using monitoring data over 1990 through 2000. We had some high-flow events in there and we’ve looked at the impact on water quality to the Chesapeake Bay with the high-flow events. We are doing a midpoint assessment in 2017 with the Chesapeake Bay Program and all of our partners, and we’re looking at what the impacts are to the Chesapeake when the dam is full, if it didn’t have the trapping capacity. We’re running those in the modeling scenarios that we’re looking at. Most of the impacts, and we’ve actually run some of those runs now, are in the upper bay. It doesn’t impact what’s happening in our tidal-fresh areas or portions of the Potomac, the Patuxent, the Choptank, the Chester, and what’s happening upsteam. It affects the mainstem of the Bay, but it doesn’t really impact the water quality at some of that local level upstream that everybody is responsible for.”

Michael’s overview of the Conowingo conveyed a need for a wider partnership when addressing all the issues facing the health of the Chesapeake.

“We all want clean water, and I know that the Clean Chesapeake Coalition — they want clean water as well. So we can’t just put it off and deal with the sediments behind the Conowingo Dam. There’s a lot of local impacts to water quality that we’re all responsible for, not just in MD, but in VA, WV, NY, PA, all the states. And all the states have committed at this point. We have a tracking system in place to monitor if they’re not meeting those. There are potential federal regulatory things that they can impose upon the states if they’re not making it. We have backstop plans.”

As US Army Corp of Engineers continue  their studies for a solution to sediment accumulation in the dam resevoir—including a look at a sluicing procedure that would deliver controlled amounts of sediment through the dam during winter months when Bay aquatic life is dormant—Federal and State partnerships will continue to develop plans for local Water Implementation Plans (WIPS). How the individual county WIP plans progress will depend on their interpretation of the benefits of the overall Bay restoration program, its costs per county, and the county’s ability to meet those costs.

Both the Chesapeake Bay Foundations and the Clean Chesapeake Coalition of counties believe the Conowingo Dam is of paramount importance and both feel that WIP plans are also strategically needed, but prioritizing the two appears to be the dam in the flow of dialogue.

For those wanting an in-depth understanding of this issue, here is a video of the April 17 meeting in Cambridge the Conowingo Dam panel discussion with Dr. William Dennison, Vice-President of Science Applications, University of Maryland Center for Environmental Science, Ron Fithian,Chair, Clean Chesapeake Coalition and Kent County Commissioner, Charles D. “Chip” MacLeod, Attorney, Funk & Bolton P.A., and Dr. Beth McGee, Senior Water Quality Scientist, Chesapeake Bay Foundation. This video is an hour long.