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Judge’s decision awaited on next step in Cheat Lake drought lawsuit

Both sides of a dispute

following last summer’s

drought await a federal

judge’s decision on the fu-

ture of the case.

Judge Thomas Kleeh

held a hearing on the mo-

tions in May in the U.S.

District Court for the

Northern District of West

Virginia in Clarksburg,

and both sides have now

filed their briefs support-

ing their motions.

Marina 1 LLC, a Biafo-

ra family company doing

business as Cheat Lake

Marina, wants the case

sent back to county circuit

court. Lake Lynn Gener-

ation wants the matter to

remain in federal court

while it seeks a dismissal.

Marina 1 filed suit Sept.

30, alleging that before the

Labor Day weekend, Lake

Lynn deliberately lowered

the level of Cheat Lake be-

low the 868-foot minimum

in violation of its Fed-

eral Energy Regulatory

Commission license. This

caused various damages,

some of them irreparable,

Marina 1 claims.

Marina 1 is seeking

$50,000 compensation for

property damages.

The summer drought

put Lake Lynn Generation

in a position of having

to choose between three

competing Federal Ener-

gy Regulatory Commis-

sion license requirements:

maintain the summer lev-

el of 868-870 feet; maintain

a flow rate of 212 cubic feet

per second into the Cheat

River, with an absolute

minimum of 100 CFS; and

maintain dissolved oxy-

gen at 5 milligrams per li-

ter for the aquatic life.

Lake Lynn elected to

prioritize complying with

its license requirements to

minimize adverse aquat-

ic ecosystem impacts and

lower the lake level to keep

water flowing over the

dam and maintain down-

stream oxygen levels.

Marina 1 spells out its

arguments in a 10-page

brief. In making its choice,

“rather than providing

Cheat Lake residents and

businesses with notice …

informing them to take

precautions of the im-

pending lower water level,

[Lake Lynn Generation]

lowered the water level

without prior notification

or FERC approval (which

itself would have provided

notice).”

While Lake Lynn vi-

olated its FERC license,

Marina 1 alleges, the issue

should be resolved at the

state level.

“The true issue here,”

it alleges, “is simply

whether defendant acted

reasonably in making the

choice to rapidly lower the

water level of Cheat Lake

without prior notice and,

if not, is defendant liable

for the damage that its de-

cision caused under state

tort law theories. This

issue requires no federal

analysis, interpretation or

dispute.”

Lake Lynn filed a brief

late last week that count-

ers that its FERC license,

not state law, sets the stan-

dards of care for the oper-

ation of its license.

“FERC must be given

the opportunity to assess

if Lake Lynn’s license was

violated in the first place.

… Plaintiff’s claims must

be dismissed to seek relief

in FERC’s administrative

proceedings, and, if neces-

sary, before the Fourth Cir-

cuit [Court of Appeals].”

Lake Lynn argues that

having to decide between

competing license re-

quirements in the case of

an emergency was antici-

pated in FERC’s environ-

mental impact statement,

which notes that pre-

serving minimum flows

during a drought could

lower reservoir levels at

Cheat Lake.

The statement reads,

“The primary adverse ef-

fect of such draw-downs

would be on boating in the

marinas.”

Lake Lynn also not-

ed that the case should

remain in federal court

because it deals with con-

flicting interests between

two states: maintaining

lake levels in West Virgin-

ia above the dam, versus

downstream water flows

in Pennsylvania below the

dam.

Lake Lynn states five

factors must be weighed:

prioritizing license re-

quirements; balancing

lake recreational use

against the downstream

ecosystem; weighing

the impact of the 2024

drought; determining

what constitutes an emer-

gency justifying adjusting

the lake levels; and deter-

mining if its FERC license

was actually violated.

Kleeh did not set a date

for issuing his order on

the motions.


 
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