Biaforas, Lake Lynn Generation await judge's decision on next step in Cheat Lake drought lawsuit

Dominion Post

a day ago

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MORGANTOWN – Both sides in the Biafora family business dispute with Lake Lynn Generation following last summer's drought await a federal judge's decision: whether the case might be dismissed, or remanded back to Monongalia County Circuit Court and continued there – or neither and simply continue in federal court.
Judge Thomas Kleeh held a hearing on the conflicting motions 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 supporting their motions.
Marina 1 LLC, a Biafora family company doing business as Cheat Lake Marina, wants the case sent back to county circuit court. Lake Lynn wants it kept in federal court and wants the case dismissed.
Marina 1 filed suit Sept. 30, 2024, alleging that before the Labor Day weekend, Lake Lynn deliberately lowered the level of Cheat Lake below the 868-foot minimum in violation of its Federal Energy Regulatory Commission license. This caused various damages, some of them irreparable.
Marina 1 is seeking $50,000 compensation for property damages.
As explained before, the summer drought put Lake Lynn in a trilemma – having to choose between three competing FERC license requirements: maintain the summer level of 868-870 feet; maintain a flow rate of 212 cubic feet per second (cfs) into the Cheat River, with an absolute minimum of 100 cfs; and maintain dissolved oxygen at 5 milligrams per liter for the aquatic life.
Lake Lynn elected to prioritize complying with its license requirements to minimize adverse aquatic ecosystem impacts and lower the lake level to keep water flowing over the dam and maintain downstream 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 impending lower water level, defendant lowered the water level without prior notification or FERC approval (which itself would have provided notice).' This was an unreasonable action.
While Lake Lynn violated its FERC license, Marina 1 alleges, the issue at question is a state tort law claim.
'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 decision caused under state tort law theories. This issue requires no federal analysis, interpretation, or dispute.'
Lake Lynn filed its brief late last week. It counters that its FERC license, not state law, sets the standards of care for the operation 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 necessary, before the Fourth Circuit [Court of Appeals].'
The company argues that having to decide between competing license requirements in the case of an emergency was anticipated in FERC's environmental impact statement, which notes that preserving minimum flows during a drought could lower reservoir (Cheat Lake) levels. The statement says, 'The primary adverse effect of such draw-downs would be on boating in the marinas.'
Lake Lynn also noted that the case should remain in federal court because it deals with conflicting interests between two states: maintaining lake levels in West Virginia above the dam, versus downstream water flows in Pennsylvania below the dam.
It says five factors must be weighed: prioritizing license requirements; balancing lake recreational use against the downstream ecosystem; weighing the impact of the 2024 drought; determining what constitutes an emergency justifying adjusting the lake levels; and determining if its FERC license was in fact violated.
Kleeh did not set a date for issuing his order on the motions.