Harrison Commission Looking at Eminent Domain to Keep West Fork Dams

Clarksburg Exponent
24 March 2015
By Jeremiah Shelor, Saff Writer

CLARKSBURG — The Harrison County Commission is moving forward on plans to save the Highland, Two-Lick and West Milford dams.

The Clarksburg Water Board owns the dams. The board agreed Monday to use funding from the U.S. Fish & Wildlife Service to remove the dams, which no longer serve their intended purpose and have created liability concerns for the utility.

But the commission, responding to a group of county residents opposed to removing the dams, has made it clear it wants to take ownership of the dams as part of plans to build a water trail along the West Fork.

The commissioners are scheduled to discuss the dams and the water trail project when they hold their regular meeting at the courthouse Thursday.

Last week, the commission voted for the second time this year to declare its support for the water trail, with the implication being that the commission would use the project as the basis for an attempt to seize the dams for the county’s public use.

Currently the county is taking necessary steps to file a petition for eminent domain. Prosecuting Attorney Rachel Romano — instructed by the commission last week to formulate a legal strategy for acquiring the dams — said Tuesday that she’s in the process of getting the dams appraised.

“We have to get an appraiser out there to determine a fair market value, if there is even a fair market value for the property,” Romano said. “That’s the stage I’m at right now. I’m taking it step by step.”

Romano confirmed that the county would be responsible for paying for a professional to appraise the dams in order for the eminent domain process to move forward.

Advising the Clarksburg Water Board members prior to their vote Monday, Tim Stranko, the board’s general counsel, discussed the eminent domain process as it might apply to the dams.

“The county commission would have to deposit into the court the appraised value of those dams as a surety, and then we would litigate how much the water board, our ratepayers, would recover for the taking of the dams by the county commission,” Stranko said. “So eminent domain is problematic, I think.”

Stranko, elaborating on his comments Tuesday, said the provisions for eminent domain laid out in Chapter 54 of West Virginia State Code do not neatly apply to the current situation between the water board and the county commission.

State Code section 54-1-2 lists “public uses for which private property may be taken or damaged.”

“It is for public condemnation of private property. This would be public condemnation of public property,” Stranko said. “I don’t know of any case in my 20 years in West Virginia where a public entity has condemned another public entity’s property.”

Officials from the U.S. Fish & Wildlife Service, the state Division of Natural Resources and the National Park Service have also disputed the idea that the dams are necessary for a successful water trail along the West Fork River.

Frank Jernejcic, a retired DNR fisheries biologist, said Monday that removing the dams might even attract more boaters by eliminating the need to circumnavigate the dams.

But Watson said his main concern is in preserving the river for those that enjoy the West Fork the way it is. He said removing the dams could eliminate recreational opportunities currently available with deeper, slower moving water.

“I’d like to have three distinct areas of usability with the river created by the dams,” Watson said. “The river trail is nice, but that’s second, as far as I’m concerned, to giving those other individuals that use it those slow, deeper pools in those longer stretches.”

Commissioner Frank “Chunki” Angotti said he sees preserving the dams as important to the long-term success of the water trail.

“There’s nothing like having a place on the river that has flow,” Angotti said. “This river trail that can go through a few counties, I think it deserves us to take a good, hard look at saving these dams to make the river trail a better investment for the future.”

Keeping the dams as part of the water trail project would likely require additional investments to make them safer for boaters and others on the water. The county spent $4,000 earlier this year to bring in an engineer from Colorado to evaluate modifying the dams.

Watson said the county hasn’t received an exact quote on how much retrofitting the dams would cost.

“Let’s remember this: Whatever the cost is, and whatever the construction phase would be, is not going to happen over night,” Watson said. “The only thing the county would be able to do would be to plan it, to facilitate it and to generate whatever the funding — however we could do the combination of the funding — and do it in stages.”