Yearly Archives: 2013

18 July 2013: Alarming decline of lake water quality a serious concern

anabena03I assume others have noticed how murky the lake water has become. Over the past couple of weeks the water clarity has decreased significantly. No doubt this is due to the hot weather we’ve been getting coupled with a lack of rain and drastically low water levels. With the lake now down 50″ below the top of the dam, more than 875 million gallons of water or nearly 1/2 of all the water in the lake has been drained off. This has allowed the water to warm up significantly and has exposed soft bottom sediments to the effects of wave action, stirring them up and releasing phosphorous (think plant food) that has been until now safely bound up in the mud. Paul Kelley’s thoughtless water level management is poisoning the lake.

I put a sample of lake water under my microscope this morning to see if I could see what might be causing the cloudy appearance. I found a good number cyanobacteria of the genus Anabena which is the blue-green algae responsible for algal blooms. At left is a photograph I took last August of Anabena blue-green algae from the lake. There’s always a little Anabena in the lake, but I think to see this much this early in the season is not a good sign. Given sufficient nutrients, growth of this bacteria can explode. It bears watching.

I met with our resident water quality expert David Hodsdon this morning to discuss this and other things and he agreed that the water clarity has deteriorated. He and Jack Holland will be going out tomorrow morning to perform their regular water quality monitoring which includes secchi disk (clarity/transparency), dissolved oxygen, and temperature measurements. This data gets posted on the Clary Lake Water Monitoring Data page. Look for an update to this post sometime tomorrow.

17 July 2013: Land for Maine’s Future Project – Clary Lake

confused-monkey1I received an email today from a fellow with the Natural Resources Council of Maine. He was looking to update the listing for Clary Lake on the Land for Maine’s Future Projects page and wanted us to review the current listing:

Clary Lake

Clary Lake is a popular destination for boaters and anglers. With funds from the Land for Maine’s Future program and the U.S. Fish and Wildlife Service’s Sport Fish Restoration Program, the Maine Department of Inland Fisheries & Wildlife (IF&W) secured funds to acquire a site that provides permanent and safe access for motor boats and hand-carry craft, as well as bank fishing and swimming.

Clary Lake is a popular destination for fishing year-round, offering bass and perch as well as occasional brood stocks introduced by IF&W. The State purchased this parcel and built the access site to replace one across the lake that had a dangerous configuration (being located on a curve at the base of a long hill). The access site is owned and managed by IF&W.

Return to Land for Maine’s Future projects list.

Sounds idyllic doesn’t it. I emailed him and let him know that the State boat launch highlighted in the narrative is currently unusable due to low water conditions and that the future of Clary Lake is facing a serious challenge from a dam owner who just doesn’t give a dam. I don’t expect them to update the listing. Got to put a good face on it, know what I mean?

Anyways, I’ve added a link to the Natural Resources Council of Maine on the Links & Resources page. FYI, I was unable to actually find the Programs page without using the link provided.

15 July 2013: Completed form 1023 application for recognition of 501 C(3) status is in the mail!

phewWell almost in the mail. Our application to reinstate our 501 c(3) exemption is going in the mail in about an hour, just as soon as the post office window opens up again at 1 PM today. Again, we are grateful for Paul Kelley bringing this matter to our attention. Of course, I sincerely doubt he thought he was doing us any favors, but clearly he did. Who knows how long it would have been before we came to the realization that our 501 c(3) status had been revoked? What is totally ironic is that he filed an objection with the Attorney General’s office because he objected to our soliciting contributions without 501 c(3) status. And what were we soliciting contributions for? A dam repair fund which could well end up benefiting him. Go figure.

Incidentally, the approved form 1023 application with attachments in all their glory must by law be made available to the general public. The operative word there is “approved.” When our application is approved, I will post a link to it. Until then, try not to let the anticipation get to you.

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11 July 2013 Kennebec Journal: Clary Lake property owners putting hopes on water level management plan

newspaper-salesman-1flip-customPaul Koenig has written another article which has appeared in today’s Kennebec Journal. Paul and I spoke several times over the past few days about the closing arguments that Kelley and I submitted last Monday. I hadn’t expected the article to be published until tomorrow. Many thanks to Brandon K. for bringing it to my attention.

Here’s a link to the online version:

It’s a good article; I have been pleasantly surprised in recent months with the coverage we’re getting from the local papers. Kelley is striking out at every turn, you’d think he’d read the handwriting on the wall and start taking a different, more conciliatory stance; his endless strident objections are falling on deaf ears. The Department is going to slap an order on his breached dam and it’s not going to specify a water level that is 2.7′ below the hole in his dam. Why he thinks the condition of the dam is relevant to the determination of a suitable water level for Clary Lake, I have no idea. He’s making that part up, along with a whole lot of other stuff. There is a way out of this mess he’s in but he’s just too damned stubborn, spiteful, and vindictive to consider it.

10 July 2013: Survey Plans of Clary Mill Property and Clary Lake Dam

compassI got my hands on copies of some survey plans some time ago. I wasn’t planning on releasing them for general consumption just yet but Paul Kelley posted one as part of his  FOAA booty so I figure I might as well put them all out there. First a little history: Back in 1981 there was a boundary dispute between Chester Chase and Albert and Alden Boynton. The property was surveyed by Coffin Engineering and the case went to court. As is the case with most boundary disputes that go to court, nobody but the lawyers won but the boundary lines did get established in the process. These two survey plans are sort of “before and after” plans: Continue reading

10 July 2013 Commentary: Paul Kelley fabricates reality to suit his own ends

mummy_falling_apart_0Paul Kelley fabricates reality to suit his own ends. The problem with fabrications however is they always unravel if you look closely at them. I’d like to unravel one of Kelley’s favorite fabrications right now- the one he likes to repeat occasionally about how Art Enos and Chester Chase managed to screw up the Clary Mill property and incidentally introduced the “mill privilege and flowage rights” language that had never existed before (or so he says). Kelley repeated this fabricated piece of reality in his 8 July 2013 closing brief on page 9 (emphasis added):

“In 1995, other substantial damage was done to Henry Clary’s vision and design of an integrated and functional hydrological unit. Then-mill owner Chase, acting in concert with the then-president of the Clary Lake Association (“CLA”) Arthur Enos, carved the historic mill property into pieces, including severance of the CLD from the historic mill parcel, sited on a marginal .13 acre of land. This ill-advised transaction invented and inserted the contentious phrase “mill privilege and flowage rights” both into the historic chain of title, and ultimately into these proceedings. That phrasing attempted transfer of a “mill privilege” which cannot be sold apart from a mill, and the sale of “flowage rights” which had not existed for decades.

So he’s stating that the phrase “mill privilege and flowage rights” first appears in the chain in the deed from Chester Chase to Arthur Enos dated 3 February 1995 and recorded in Book 2056 Page 340. The actual verbiage he’s referring to is this:

“ALSO CONVEYING HEREWITH all the mill privilege and flowage rights contained in the hereinafter referenced deeds and any other mill privileges and flowage rights on Clary Lake however obtained by Chester H. Chase and his predecessors in title.”

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10 July 2013 Lincoln County News article: DEP receives final comments on Clary Lake Dam

newsletter01An article by Shlomit Auciello has appeared in this week’s Lincoln County News (on page 12). Ms. Auciello has done a good job of summarizing both Kelley’s closing arguments and mine. For those of you who don’t want to slog through Kelley’s painfully obtuse 44 page closing brief, this is a good alternative 🙂

10 July 2013: Clary Lake Association’s Official 501 c(3) Status

oops

Paul Kelley was so happy to point out in his 44 page “closing brief” that the Clary Lake Association’s 501 C(3) non-profit status was revoked by the IRS somewhere back around 2007.  We were not aware of this. I looked into the matter and this is what I found out. From the Instructions for Form 1023 “Application for Recognition of Exemption Under Section 501(c)(3) of the Internal Revenue Code”:

“The following types of organizations may be considered tax exempt under section 501(c)(3) even if they do not file Form 1023:

Any organization that has gross receipts in each taxable year of normally not more than $5,000 is not required to file Form 1023

Even though the above organizations are not required to file Form 1023 to be tax exempt, these organizations may choose to file Form 1023 in order to receive a determination letter that recognizes their section 501(c)(3) status and specifies whether contributions them are tax deductible.”

The Clary Lake Association’s annual receipts are and always have been well below the $5000 annual threshold so the fact that the IRS revoked our 501 C(3) status is a moot point: we are still a non-profit in the eyes of the law and donations made to the Association  have been, are now, and always will be tax-deductible. So Kelley’s assertion that the Clary Lake Association is technically not a registered 501(c)(3) at this time is correct, if irrelevant. Nonetheless, we thank Mr. Kelley for bringing this matter to our attention. We will be filing to reinstate our 501 C(3) status shortly.

The Association’s non-profit status is also irrelevant in regard the water level petition and one has to wonder why he felt it was worth mentioning at all in his closing brief. The petition was not filed by the Association. Clearly his goal was to discredit everyone he could think of.

Incidentally, the requirement for non-profits to file annually with the IRS was part of the Pension Protection Act of 2006; prior to 2006 there was no requirement for a non-profit of our size to file annually. After 3 years of receiving no filings, a non-profit organization’s 501 C(3) status is “automatically revoked.” This actually happened to hundreds of thousands of non-profits when the law went into effect. I spoke to our Treasurer and she was unaware of the need to file annually. If there was ever a notice sent to the Association, it was lost or misunderstood.

Reinstating an automatically revoked 501 C(3) status is a routine procedure. We’ll be submitting a new Form 1023 shortly.

08 July 2013: [UPDATED] A very few thoughts on Kelley’s “Final Brief”

jackass-donkeyI have read about as much of Kelley’s final brief as I can bring myself to read at this time which is to say I got through about half a dozen pages before I had to stop lest I start to claw my eyes out. I thought of having Acrobat read it to me but I was afraid my head would explode! Kelley’s rant will make the rounds at the Department and at the Attorney General’s office where it will cause a lot of head shaking and muttering. I pity the poor people whose job it is to actually read all 44 pages so they can render an official opinion on it. My official opinion? It is just more of the same: Kelley braying ad nauseum. I won’t be wasting any more of my time on it. I’m sorry I wasted precious ink and paper printing it out.

[UPDATE] Well I finally finished reading Kelley’s brief. It wasn’t easy. What a sad excuse for a defense, if you ask me. He introduced all kinds of evidence that is not in the record, a procedural no-no. My motion to supplement the record with additional information was DENIED by Heather Parent, hence I was unable to refer to that material in my closing arguments. Kelley offered NO RELEVANT TESTIMONY at the public hearing. He made up for that with his 44 page tirade.

He also raised issues that are totally irrelevant to the determination of a water level for Clary Lake for example, he’s still trying to play the dam safety card. He also claims my testimony should be stricken from the record because I’m no longer a licensed land surveyor, but I didn’t testify as a licensed land surveyor.

I am confident the Department will give Kelley’s closing brief all the attention it deserves: None.

08 July 2013: Pleasant Pond Mill LLC Final Brief, Clary Lake Water Level Petition

darth_vader-customAt 4:36 this afternoon Kelley filed his closing arguments with the Service list. It consists of 2 documents which his cover email describes as “the Final Brief of Pleasant Pond Mill LLC in the Clary Lake Water Level Proceeding, accompanied by an Exhibit comprised primarily of DEP Communications obtained under the (second) Freedom of Access Act, as well as a few pages from State of Maine databases, of which PPM believes it important that the agency take judicial Notice.” I haven’t read them yet. I’m sure I’ll have some comments when I’m done… I’m afraid, knowing Kelley, it’s going to be tough sledding to get through them.

08 July 2013: Petitioner’s Findings of Fact and Conclusions of Law submitted

phewPhew. I have submitted the Petitioner’s Findings of Fact and Conclusions of Law to the Service List, with time to spare even. Then in what can only be described as “totally anticlimactic”, I immediately received auto-responder email from Heather Parent informing me that she’s on vacation this week and won’t return to work until July 15th. Then I thought, far be it for me to begrudge Ms. Parent a vacation: she’ll arrive back at work next week, ready to munch tigers, I’m sure!

So this is a big milestone! Submitting of findings represents the final step in the petition process, at least from our point of view. No more submissions, no more motions, no more responses. The Department is done collecting evidence. It’s now up to them to do the voodoo they do so well: deliberate, then draft the water level order and slap it on the Clary Lake dam. Hopefully this will happen sooner rather than later.

Continue reading

06 July 2013: Weekend Update, Findings, KML fun, etc.

eyesI hope everyone has been enjoying the hot weather we’ve been getting. I for one am grateful for living close enough to the lake that I can just throw myself in the water to cool off whenever I feel like it, and I’ve been feeling like it quite a bit. It’s hard for me to imagine how people can survive in the city in this kind of heat. We’re fortunate to have received so much rain lately, some of those afternoon thunderstorms have been some real splashers. While they haven’t done much to cool the air off, it’s been enough to largely offset the falling lake level. In the first 6 days of this month we’ve received almost 1″ of rain.

Tomorrow afternoon I’m heading up to the Branch Pond Association annual meeting to talk to them about the water level petition process. Their public hearing is scheduled for August 23rd. On the off-chance anyone wants to go with me, I’ll be leaving about 1 PM. Give me a call.

When I haven’t been floating in my tube this past week I’ve been sitting at my computer working on my Findings of Fact and Conclusions of Law, the deadline for submission of which is 5 PM this coming Monday afternoon. I’m in good shape and expect to get them submitted sometime around mid-day so I can take the rest of the afternoon off and float in my tube. I’ll post them here and send around a Petition Update after I’ve submitted them.

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02 July 2013: Clary Lake Watershed Survey Base Map is Online

M watershed_with_topoI’ve put together a Clary Lake Watershed Survey Base Map using Google Maps and watershed boundaries from the Maine Office of GIS for Clary Lake and Three Corner Pond. The map is basically a proof of concept effort, and a work in progress to boot as I’m still learning how to fit all the pieces together. The next step will be to put the 90 or so records of NPS (non-point-source) pollution sites from the original 2001 watershed survey into a database, geo-reference them with latitude and longitude, add pictures and updated information where necessary, and then finally, import them into the map. Continue reading

01 July 2013: [UPDATED] Whitefield and Jefferson Parcel Maps for Google Earth

googleearthIf you’re anything like me, you’ve been annoyed that the Maine office of GIS has not updated it’s Google Earth Parcels.kml file to include the recently completed Whitefield parcels map file. Whitefield parcels have been available for a while as a shape file, but that’s no help unless you have Arcinfo or Arcview. If you wanted to view Whitefield parcels in Google Earth, you’ve been out of luck.

No longer! I managed to get my hands on both Whitefield and Jefferson parcel maps. No need to load in every organized town in Maine, you can just load in the town you want. We’ll be making use of these when we get to work on updating the Clary Lake watershed Survey:

These links will open up in Google Maps. To add them to Google Earth, download them to your computer, then open them in Google Earth and save them to “My Places”. I’ll likely put these under the Charts & Data main menu heading at some point for easier downloading.

[UPDATE] I’ve also separated out the KML files for the Clary Lake watershed and the Three Corner Pond watershed (which flows into Clary Lake):

Clary Lake and Three Corner Pond Watershed (kml) file

These too will be useful when we get to updating the Clary Lake Watershed Survey. Like the Parcel files, these will open in Google Maps. Just download them and open them up in Google Earth, save them to “My Places.”

30 June 2013: Month-end Water Level Summary

6 June 2013June was the second month in a row with significantly above-average rainfall and this has helped keep the lake level up despite the dam owner draining 1.2″ of water out of it each day. It was the 6th wettest June in recorded history! We received approximately 6.13″ of rain, a good 2.6″ more than the average for the month of 3.56″. We started the month at -32.16″ below the top of the dam, fell to a low of -46″ on the 25th and then heavy rains brought it back up 5.5″ to 40.44″ at the end of the month. It we’d received the average rainfall for the month the lake would be at least a foot lower than it is today. It looks like this higher-than-average rainfall trend is going to continue for a little while; I’m torn between wanting more rain to offset the falling lake level and less rain to accommodate more outside activities.

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28 June 2013: The Clary Lake Watershed Survey and the NPS program

M mapclarylake_with_watershedBack in 2001 members of the Clary Lake Association with the assistance of some DEP staff conducted a watershed survey to identify and catalog sources of non-point source pollution. Typically these were areas where soil was eroding and running into the lake: road side ditches, road shoulders, driveways, unprotected shorelines, unstable slopes, clogged, poorly maintained, or improperly installed culverts, etc. Money for erosion control measures was available under the State’s Nonpoint Source Water Pollution Control Grants (“319”) program. 90 sites were identified and categorized as to whether they were Low, Medium, or High priority and a grant was obtained and erosion control measures were implemented at a number of the high priority site

The NPS pollution and “319” grant program is still in existence today. At this summer’s Congress of Lake Associations’ 43rd Annual Maine Lakes Conference held last Saturday the 22nd at Colby College which I attended, Norm Marcotte of DEP gave a short presentation on DEP’s new NPS Tracker Program which is basically like the old NPS program with added spreadsheet functionality and computer mapping features made possible by such programs as Google Earth and Google Maps.

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28 June 2013: Branch Pond Petition gearing up for August 23rd hearing

index_html_d44d137Things are heating up for the Branch Pond water level petition. As previously mentioned the hearing has been scheduled for August 23rd. It will be held in China, I believe at the China Elementary School. From what I’m hearing, DEP has made major changes to how they handle and process water level petitions compared to how they’ve run ours. For example, petitioners, interveners, and interested parties are all required to submit sworn and notarized pre-file testimony over a month before the actual hearing, followed by rebuttal comments. The actual public hearing sounds a quite different from what we went through, even a little perfunctory- an opportunity to review and discuss already-submitted comments and testimony. The following is an excerpt from an email I recently received from Brandon Kulik, Branch Pond Petition Spokesperson: Continue reading

27 June 2013 Lincoln County News: State Inspector visits Clary Lake dams, DEP sets comment deadline [UPDATED]

paperThere’s an article in this week’s Lincoln County News by Shlomit Auciello about the State Dam Inspector’s visit to the Clary Lake dams back on the 18th as well as describing the recently released Procedural Order 7. All of this has been covered here. The article is not available online to non-subscribers. Sadly, my printer/scanner fried a few days ago so I can’t scan it and post it. If you want to read the article you’ll have to buy the paper. If anyone out there has a subscription and is willing to “print it” to a PDF and send it to me, that would be appreciated.

[UPDATE] Well it turns out I can’t just live without a printer/scanner/fax so I went and bought an HP Officejet Pro 8600 Plus printer/scanner/fax. It’s sweet. Here’s the article:

26 June 2013: Rain! [UPDATED THRICE!]

26june2013radar_mapYou know it’s a slow news day when all I got to write about is rain but I’ve been doing a rain dance daily for a while now and it is finally paying off. This afternoon a beautiful storm cell formed up and moved in over Clary Lake and sat there. It’s still there. I just checked my rain gauges (a coffee cup and a dog food can out in the yard) and we’ve already received 1.375″ of rain and it is still raining steadily and shows no sign of letting up. The ground is pretty well saturated so I expect a good amount of runoff on top of yesterday’s rain… and more wet weather is forecast for the next couple of days. Keep an eye on the Current Water Level Charts.

[UPDATE 1] We ended up getting 1.5″ of rain out of that storm. Channel 6 weather report is calling for heavy rains tomorrow, as much as 2-3″

[UPDATE 2] Both David Hodsdon and Tim Chase got more like 0.9″ of rain out of yesterday’s storm, leading me to believe my 1.5″ measurement included “splash” since the rain was coming down pretty violently for a while. Certainly, 0.9″ of rain is more consistent with the lake level rise I observed this morning. I’ll be revising my rainfall amount and altering my make-do rain gauge setup.

[UPDATE 3] Don Norman called to tell me the he too got 1.5″ of rain yesterday. I guess that’s the meaning of “locally higher amounts.” I suspect that the total average rainfall, judging from the lake level rise, was between 1″ and 1.5″