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.
