November 13 – dbeard @dominionpost.com MORGANTOWN – Lake Lynn Generation successfully transferred a lawsuit filed against it by family-owned Marina 1 LLC of Biafora from Monongalia County Circuit Court to federal court, and is now arguing that the case should be dismissed.
Marina 1, doing business as Cheat Lake Marina, filed suit on September 30, alleging that Lake Lynn deliberately lowered the level of Cheat Lake below the minimum of 800 feet before the Labor Day weekend, in violation of the FERC -license.
The lake level has risen again. “However, the damage has already been done.” This includes boaters who used the docks in place of other inaccessible docks without permission, causing damage to Cheat Lake Marina’s docks. And the low water level caused the docks to slowly detach from their land mountains, “causing irreparable damage.”
The company alleged: “Cheat Lake Marina has suffered and will continue to suffer irreparable harm if Defendants are allowed to continually lower the water level of Cheat Lake in violation of their FERC permit. Conversely, Defendants will not be significantly harmed as a result.” The court prohibits them from doing so.”
Marina 1 is seeking an injunction and temporary restraining order to prevent Lake Lynn Generation from using its dam to lower lake levels. Lake Lynn Generation and its sister company, Eagle Creek Hydro Operations, are the defendants.
Lake Lynn filed notice Nov. 1 that the case has been removed to the U.S. District Court for the Northern District of West Virginia on the grounds that Lake Lynn’s dam operation is regulated by the Federal Energy Regulatory Commission and its actions have been taken in accordance with its FERC license.
Late last week, Lake Lynn filed a motion to dismiss and provided a number of reasons to support its request.
One is that Marina 1 is asking Lake Lynn to do the impossible: keep the lake at a suitable level for commercial interests during a drought while balancing competing FERC licensing mandates. Lake Lynn should maintain a level of 800 to 800 feet from May through October; maintain a flow rate of 212 cubic feet per second (cfs) in the Cheat, with an absolute minimum of 100 cfs, and maintain dissolved oxygen at 5 milligrams per liter for aquatic life.
(During the drought, Lake Lynn applied and later withdrew a request for a temporary variance from the lake’s minimum level of 800 feet to increase spillway discharge to address potentially low dissolved oxygen levels.)
Lake Lynn told the federal court: “Plaintiff recognizes that Lake Lynn was faced with an impossible scenario where he had to maintain the lake’s water level while simultaneously using the water in the lake to feed the downstream environment in the Cheat River… .Although he acknowledged Due to the impossibility of this situation, Plaintiff filed this lawsuit…To suit his purposes, the Cheat River downstream of the Lake Lynn Dam could be completely drained and dried, releasing all dissolved oxygen into the water. habitat is cut off – as long as the claimant’s commercial enterprise remains unharmed.”
Second, Lake Lynn views the lawsuit as an attack on the FERC license, and any challenge to the license must go first through a FERC administrative process and then to the federal court of appeals — not to the district court, which has no jurisdiction has.
And third, since the drought is over and the lake level is back to where it should be, Marina 1 can’t show any irreparable damage. Speculating about the future is just that: speculation. “It is unlikely that further damage will occur.”
Lake Lynn accuses Marina 1 several times of acting out of self-interest. “Plaintiff falsely claims that Lake Lynn’s primary obligation is to the recreational users of Cheat Lake, as opposed to the downstream aquatic environments and habitats protected under the FERC license.
It continues: “Plaintiff alleges that maintaining an appropriate water level for recreational and commercial use of Cheat Lake (for the benefit of commercial entities such as itself) should take precedence over the literal life or death consequences of shutting off the outflow. in the downstream area of the Cheat River.”
Chief District Judge Thomas Kleeh set a motion hearing on Marina 1’s request for a temporary restraining order and preliminary injunction on December 3 in Clarksburg.
