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.