Latest news with #ThomasKleeh
Dominion Post
2 days ago
- Business
- Dominion Post
Lake Lynn Generation: FERC's approval of its drought response supports dismissal of Marina 1 lawsuit
dbeard@ MORGANTOWN – On July 31, The Dominion Post reported that the Federal Energy Regulatory Commission told Lake Lynn Generation that it did not violate its hydroelectric project license when it responded to low dissolved oxygen levels during the summer 2024 drought. We noted in the report the potential connection of FERC's letter to Lake Lynn with an ongoing federal lawsuit, where whether Lake Lynn had violated its license requirements was a question raised in the case. Now Lake Lynn has made the connection, and is using the letter as evidence in its defense against the suit. 'Because FERC has found that Lake Lynn did not violate its project license,' in its newest filing in the suit, 'Plaintiff has no ability to argue that Lake Lynn deviated from the standard of care in this case and, therefore, Plaintiff's Amended Complaint fails to state a claim upon which relief may be granted.' In the suit filed suit Sept. 30, 2024, Marina 1 LLC, a Biafora family company doing business as Cheat Lake Marina, alleges 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. Both sides are awaiting a decision from Judge Thomas Kleeh in the U.S. District Court for the Northern District of West Virginia in Clarksburg: whether the case might be dismissed; or remanded back to Monongalia County Circuit Court, where it began, and continued there; or neither and simply continue in federal court. Marina 1 contends that while Lake Lynn violated its FERC license, the issue of damages at question is a state tort law claim, and it wants the case sent back to county circuit court where it originated. Lake Lynn 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].' In its newest filing in the case, Lake Lynn uses the July 30 FERC letter to support its contention. 'FERC's letter is demonstrative that Plaintiff's Amended Complaint is a collateral attack on Lake Lynn's project license,' it says. As we've reported before, in September 2024, the effects of the ongoing drought were apparent around Cheat Lake. Marinas were largely empty. Boats were stranded on mud flats. Related in part to the low lake levels, vast swaths of hydrilla covered portions of the lake surface. And the 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. FERC told Lake Lynn in its July letter to the company that it acted correctly in its efforts to maintain the required dissolved oxygen levels.
Yahoo
12-06-2025
- Business
- Yahoo
Biaforas, Lake Lynn Generation await judge's decision on next step in Cheat Lake drought lawsuit
Jun. 11—dbeard @ 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.
Dominion Post
11-06-2025
- Business
- Dominion Post
Biaforas, Lake Lynn Generation await judge's decision on next step in Cheat Lake drought lawsuit
dbeard@ 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.
